CJEC, February 26, 1975, No 67-74

1 By order of 30 July 1974, received at the Court registry on 14 September 1974, the verwaltungsgericht koeln referred to the Court, under article 177 of the eec treaty, two questions concerning the interpretation of article 3 (1) and (2) of Council directive No 64-221-eec of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (oj p. 850).

2 These questions arose within the context of an appeal brought by an Italian national residing in the federal republic of Germany against a decision to deport him taken by the auslaenderbehoerde (aliens authority) following his conviction for an offence against the firearms law and for causing death by negligence.

The order containing the reference shows that the plaintiff in the main action, who was unlawfully in possession of a firearm, accidentally caused the death of his brother by his careless handling of the firearm concerned.

For this reason the relevant criminal Court sentenced him to a fine for an offence against the firearms legislation.

The Court also found him guilty of causing death by negligence but imposed No punishment on this count, considering that No purpose would be served thereby in view of the circumstances, notably the mental suffering caused to the individual concerned as a result of the consequences of his carelessness.

3 Following the criminal conviction the 'auslaenderbehoerde' (aliens authority) ordered the individual concerned to be deported in accordance with the auslaendergesetz (aliens law) of 28 april 1965 (bundesgesetzblatt, teil i, p. 353), in conjunction with the gesetz ueber einreise und aufenthalt von staatsangehoerigen der mitgliedstaaten der europaeischen wirtschaftsgemeinschaft (law on the entry and residence of nationals of member states of the European Economic Community) of 22 July 1969 (bundesgesetzblatt, teil i, p. 927), which was adopted in order to implement directive No 64-221 in the federal republic of Germany.

4 The verwaltungsgericht, which heard the appeal against this decision, considered that by reason of the particular circumstances of the case the deportation could not be justified on grounds of a 'special preventive nature' based either on the facts which had given rise to the criminal conviction or on the present and foreseeable conduct of the plaintiff in the main action.

The verwaltungsgericht considered that the only possible justification for the measure adopted would be the reasons of a 'general preventive nature', which were emphasized both by the auslaenderbehoerde and by the representative of the public interest and were based on the deterrent effect which the deportation of an alien found in illegal possession of a firearm would have in immigrant circles having regard to the resurgence of violence in the large urban centres.

As it is required to apply legislative provisions adopted for the implementation of a community directive - in particular article 12 of the law of 22 July 1969 - the verwaltungsgericht takes the view that it is necessary to request the Court to give an interpretation of the relevant provisions of that directive, in order to ensure that national law is applied in accordance with the requirements of community law.

In these circumstances the verwaltungsgericht has referred to the Court the following two questions:

'1. Is article 3 (1) and (2) of directive No 64-221-eec of the Council of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, to be interpreted as excluding the deportation of a national of a member state of the European Economic Community by the state authority of another member state for the purpose of deterring other foreign nationals from committing such criminal offences as those with which the person deported was charged or similar offences or other infringements of public security or public policy, that is, for reasons of a general preventive nature?

2. Does the said provision mean that the deportation of a national of a member state of the eec is possible only when there are clear indications that the eec national, who has been convicted of an offence, will commit further offences or will in some other way disregard public security or public policy of a member state of the eec, that is, for reasons of a special preventive nature?'

5 According to article 3 (1) and (2) of directive No 64-221, 'measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned' and 'previous criminal convictions shall not in themselves constitute grounds for the taking of such measures '.

These provisions must be interpreted in the light of the objectives of the directive which seeks in particular to coordinate the measures justified on grounds of public policy and for the maintenance of public security envisaged by articles 48 and 56 of the treaty, in order to reconcile the application of these measures with the basic principle of the free movement of persons within the community and the elimination of all discrimination, in the application of the treaty, between the nationals of the state in question and those of the other member states.

6 With this in view, article 3 of the directive provides that measures adopted on grounds of public policy and for the maintenance of public security against the nationals of member states of the community cannot be justified on grounds extraneous to the individual case, as is shown in particular by the requirement set out in paragraph (1) that 'only' the 'personal conduct' of those affected by the measures is to be regarded as determinative.

As departures from the rules concerning the free movement of persons constitute exceptions which must be strictly construed, the concept of 'personal conduct' expresses the requirement that a deportation order may only be made for breaches of the peace and public security which might be committed by the individual affected.

7 The reply to the questions referred should therefore be that article 3 (1) and (2) of directive No 64-221 prevents the deportation of a national of a member state if such deportation is ordered for the purpose of deterring other aliens, that is, if it is based, in the words of the national Court, on reasons of a 'general preventive nature '.

8 The costs incurred by the government of the Italian Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the verwaltungsgericht koeln, the decision as to costs is a matter for that Court.

The Court

In answer to the questions referred to it by the verwaltungsgericht koeln by order of 30 July 1974, hereby rules:

Article 3 (1) and (2) of Council directive No 64-221-eec of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health prevents the deportation of a national of a member state if such deportation is ordered for the purpose of deterring other aliens.