CJEC, October 28, 1975, No 36-75

1 By a decision of 16 December 1974, received at the Court registry on 9 April 1975, the tribunal administratif, Paris, has referred to the Court two questions under article 177 of the EEC treaty concerning the interpretation of the reservation made in respect of public policy in article 48 of the EEC treaty in the light of the measures taken for implementation of that article, especially regulation No 1612-68 of the council of 15 October 1968 and council directive No 68-360 of the same date, on freedom of movement for workers (oj English special edition 1968 (ii) pp.475 and 485).

2 These questions were raised in the course of proceedings brought by an Italian national residing in the French Republic against a decision to grant him a residence permit for a national of a member state of the EEC subject to a prohibition on residence in certain French departments.

3 The file of the tribunal administratif and the oral procedure before the Court have established that the plaintiff in the main action was, in 1968, the subject first of all of a deportation order and then of an order directing him to reside in a particular department.

4 On 23 October 1970 this measure was replaced by a prohibition on residence in four departments including the department in which the person concerned was habitually resident and where his family continues to reside.

5 It is also clear from the file on the case and from information supplied to the Court that the reasons for the measures taken against the plaintiff in the main action were disclosed to him in general terms during the proceedings brought before the tribunal administratif on a date subsequent to the commencement of the action, namely, 16 December 1970.

6 From information given to the tribunal administratif by the ministry for the interior, which, however, is contested by the plaintiff in the main action, it transpires that his political and trade union activities during 1967 and 1968 are the subject of complaint and that his presence in the departments covered by the decision is for this reason regarded as 'likely to disturb public policy '.

7 In order to resolve the questions of community law raised during the proceedings concerning the principles of freedom of movement and equality of treatment for workers of the member states, the tribunal administratif referred two questions to the Court for the purpose of ascertaining the precise meaning of the reservation regarding public policy contained in article 48 of the treaty.

First question

8 The first question asks whether the expression 'subject to limitations justified on grounds of public policy' in article 48 of the treaty concerns only the legislative decisions which each member state has decided to take in order to limit within its territory the freedom of movement and residence for nationals of other member states or whether it also concerns individual decisions taken in application of such legislative provisions.

9 Under article 48 (1), freedom of movement for workers is to be secured within the community.

10 Under article 48 (2), such freedom of movement is to entail the abolition of any discrimination based on nationality as regards employment, remuneration and other conditions of work and employment.

11 Under article 48 (3), it is to entail the right for workers to move freely within the territory of member states, to stay there for the purpose of employment and to remain there when employment has ceased.

12 Subject to any special provisions in the treaty, article 7 thereof contains a general prohibition, within the field of application of the treaty, on any discrimination on grounds of nationality.

13 Nevertheless, under article 48 (3), freedom of movement for workers, in particular their freedom to move within the territory of member states, may be restricted by limitations justified on grounds of public policy, public security or public health.

14 Various implementing measures have been taken for the purpose of putting the above-mentioned provisions into effect, in particular regulation No 1612-68 and council directive No 68-360 on freedom of movement for workers.

15 The reservation concerning public policy was laid down in council directive No 64-221 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, English special edition 1963-1964, p.117).

16 The effect of all these provisions, without exception, is to impose duties on member states and it is, accordingly, for the Courts to give the rules of community law which may be pleaded before them precedence over the provisions of national law if legislative measures adopted by a member state in order to limit within its territory freedom of movement or residence for nationals of other member states prove to be incompatible with any of those duties.

17 Inasmuch as the object of the provisions of the treaty and of secondary legislation is to regulate the situation of individuals and to ensure their protection, it is also for the national Courts to examine whether individual decisions are compatible with the relevant provisions of community law.

18 This applies not only to the rules prohibiting discrimination and those concerning freedom of movement enshrined in articles 7 and 48 of the treaty and in regulation No 1612-68, but also to the provisions of directive No 64-221, which are intended both to define the scope of the reservation concerning public policy and to ensure certain minimal procedural safeguards for persons who are the subject of measures restricting their freedom of movement or their right of residence.

19 This conclusion is based in equal measure on due respect for the rights of the nationals of member states, which are directly conferred by the treaty and by regulation No 1612-68, and the express provision in article 3 of directive No 64-221 which requires that measures taken on grounds of public policy or of public security 'shall be based exclusively on the personal conduct of the individual concerned '.

20 It is all the more necessary to adopt this view of the matter inasmuch as national legislation concerned with the protection of public policy and security usually reserves to the national authorities discretionary powers which might well escape all judicial review if the Courts were unable to extend their consideration to individual decisions taken pursuant to the reservation contained in article 48 (3) of the treaty.

21 The reply to the question referred to the Court must therefore be that the expression 'subject to limitations justified on grounds of public policy' in article 48 concerns not only the legislative provisions which each member state has adopted to limit within its territory freedom of movement and residence for nationals of other member states but concerns also individual decisions taken in application of such legislative provisions.

Second question

22 The second question asks what is the precise meaning to be attributed to the word 'justified' in the phrase 'sucject to limitations justified on grounds of public policy' in article 48 (3) of the treaty.

23 In that provision, the words 'limitations justified' mean that only limitations which fulfil the requirements of the law, including those contained in community law, are permissible with regard, in particular, to the right of nationals of member states to freedom of movement and residence.

24 In this context, regard must be had both to the rules of substantive law and to the formal or procedural rules subject to which member states exercise the powers reserved under article 48 (3) in respect of public policy and public security.

25 In addition, consideration must be given to the particular issues raised in relation to community law by the nature of the measure complained of before the tribunal administratif in that it consists in a prohibition on residence limited to part of the national territory.

Justification of measures adopted on grounds of public policy from the point of view of substantive law.

26 By virtue of the reservation contained in article 48 (3), member states continue to be, in principle, free to determine the requirements of public policy in the light of their national needs.

27 Nevertheless, the concept of public policy must, in the community context and where, in particular, it is used as a justification for derogating from the fundamental principles of equality of treatment and freedom of movement for workers, be interpreted strictly, so that its scope cannot be determined unilaterally by each member state without being subject to control by the institutions of the community.

28 Accordingly, restrictions cannot be imposed on the right of a national of any member state to enter the territory of another member state, to stay there and to move within it unless his presence or conduct constitutes a genuine and sufficiently serious threat to public policy.

29 In this connexion article 3 of directive No 64-221 imposes on member states the duty to base their decision on the individual circumstances of any person under the protection of community law and not on general considerations.

30 Moreover, article 2 of the same directive provides that grounds of public policy shall not be put to improper use by being 'invoked to service economic ends '.

31 Nor, under article 8 of regulation No 1612-68, which ensures equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto, may the reservation relating to public policy be invoked on grounds arising from the exercise of those rights.

32 Taken as a whole, these limitations placed on the powers of member states in respect of control of aliens are a specific manifestation of the more general principle, enshrined in articles 8, 9, 10 and 11 of the convention for the protection of human rights and fundamental freedoms, signed in Rome on 4 November 1950 and ratified by all the member states, and in article 2 of protocol No 4 of the same convention, signed in Strasbourg on 16 September 1963, which provide, in identical terms, that No restrictions in the interests of national security or public safety shall be placed on the rights secured by the above-quoted articles other than such as are necessary for the protection of those interests 'in a democratic society '.

Measures adopted on grounds of public policy: justification from the procedural point of view

33 According to the third recital of the preamble to directive No 64-221, one of the aims which it pursues is that 'in each member state, nationals of other member states should have adequate legal remedies available to them in respect of the decisions of the administration' in respect of measures based on the protection of public policy.

34 Under article 8 of the same directive, the person concerned shall, in respect of any decision affecting him, have 'the same legal remedies. .. As are available to nationals of the state concerned in respect of acts of the administration '.

35 In default of this, the person concerned must, under article 9, at the very least be able to exercise his right of defence before a competent authority which must not be the same as that which adopted the measure restricting his freedom.

36 Furthermore, article 6 of the directive provides that the person concerned shall be informed of the grounds upon which the decision taken in his case is based, unless this is contrary to the interests of the security of the state.

37 It is clear from these provisions that any person enjoying the protection of the provisions quoted must be entitled to a double safeguard comprising notification to him of the grounds on which any restrictive measure has been adopted in his case and the availability of a right of appeal.

38 It is appropriate to state also that all steps must be taken by the member states to ensure that this double safeguard is in fact available to anyone against whom a restrictive measure has been adopted.

39 In particular, this requirement means that the state concerned must, when notifying an individual of a restrictive measure adopted in his case, give him a precise and comprehensive statement of the grounds for the decision, to enable him to take effective steps to prepare his defence.

The justification for, in particular, a prohibition on residence in part of the national territory

40 The questions put by the tribunal administratif were raised in connexion with a measure prohibiting residence in a limited part of the national territory.

41 In reply to a question from the Court, the government of the French Republic stated that such measures may be taken in the case of its own nationals either, in the case of certain criminal convictions, as an additional penalty, or following the declaration of a state of emergency.

42 The provisions enabling certain areas of the national territory to be prohibited to foreign nationals are, however, based on legislative instruments specifically concerning them.

43 In this connexion, the government of the French Republic draws attention to article 4 of council directive No 64-220 of 25 February 1964 on the abolition of restrictions on movement and residence within the community for nationals of member states with regard to establishment and the provision of services (oj, English special edition 1963-1964, p.115) which reads: 'subject to any measures taken in particular cases on grounds of public policy or public security, the right of residence shall be effective throughout the territory of the member state concerned '.

44 It is clear that this provision is peculiar to the directive concerned and is exclusively applicable in respect of establishment and the provision of services and it has not been re-enacted in the directives on freedom of movement for workers, in particular directive No 68-360, which is still in force, or, again, in council directive No 73-148 of 21 may 1973 concerning establishment and the provision of services (oj l 172, p.14), which has meanwhile replaced directive No 64-220.

45 In the Commission's view, expressed during the oral proceedings, the absence of this provision in the directives at present applicable to employed persons or to establishment and the provision of services, does not, however, mean that member states have absolutely No power to impose, in respect of foreigners who are nationals of other member states, prohibitions on residence limited to part of the territory.

46 Right of entry into the territory of member states and the right to stay there and to move freely within it is defined in the treaty by reference to the whole territory of these states and not by reference to its internal subdivisions.

47 The reservation contained in article 48 (3) concerning the protection of public policy has the same scope as the rights the exercise of which may, under that paragraph, be subject to limitations.

48 It follows that prohibitions on residence under the reservation inserted to this effect in article 48 (3) may be imposed only in respect of the whole of the national territory.

49 On the other hand, in the case of partial prohibitions on residence, limited to certain areas of the territory, persons covered by community law must, under article 7 of the treaty and within the field of application of that provision, be treated on a footing of equality with the nationals of the member state concerned.

50 It follows that a member state cannot, in the case of a national of another member state covered by the provisions of the treaty, impose prohibitions on residence which are territorially limited except in circumstances where such prohibitions may be imposed on its own nationals.

51 The answer to the second question must, therefore, be that an appraisal as to whether measures designed to safeguard public policy are justified must have regard to all rules of community law the object of which is, on the one hand, to limit the discretionary power of member states in this respect and, on the other, to ensure that the rights of persons subject thereunder to restrictive measures are protected.

52 These limitations and safeguards arise, in particular, from the duty imposed on member states to base the measures adopted exclusively on the personal conduct of the individuals concerned, to refrain from adopting any measures in this respect which service ends unrelated to the requirements of public policy or which adversely affect the exercise of trade union rights and, finally, unless this is contrary to the interests of the security of the state involved, immediately to inform any person against whom a restrictive measure has been adopted of the grounds on which the decision taken is based to enable him to make effective use of legal remedies.

53 In particular, measures restricting the right of residence which are limited to part only of the national territory may not be imposed by a member state on nationals of other member states who are subject to the provisions of the treaty except in the cases and circumstances in which such measures may be applied to nationals of the state concerned.

54 The costs incurred by the government of the French Republic, the government of the Italian Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

55 As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the tribunal administratif, Paris, the decision on costs is a matter for that Court.

The Court

In answer to the questions referred to it by the tribunal administratif, Paris, by judgment of 16 December 1974, hereby rules:

1. The expression 'subject to limitations justified on grounds of public policy', in article 48 concerns not only the legislative provisions adopted by each member state to limit within its territory freedom of movement and residence for nationals of other member states but concerns also individual decisions taken in application of such legislative provisions.

2. An appraisal as to whether measures designed to safeguard public policy are justified must have regard to all rules of community law the object of which is, on the one hand, to limit the discretionary power of member states in this respect and, on the other, to ensure that the rights of persons subject thereunder to restrictive measures are protected.

These limitations and safeguards arise, in particular, from the duty imposed on member states to base the measures adopted exclusively on the personal conduct of the individuals concerned; to refrain from adopting any measures in this respect which service ends unrelated to the requirements of public policy or which adversely affect the exercise of trade union rights and, finally, unless this is contrary to the interests of the security of the state involved, immediately to inform any person against whom a restrictive measure has been adopted of the grounds on which the decision taken is based to enable him to make effective use of legal remedies.

In particular, measures restricting the right of residence which are limited to part only of the national territory may not be imposed by a member state on nationals of other member states who are subject to the provisions of the treaty except in the cases and circumstances in which such measures may be applied to nationals of the state concerned.