CJEC, April 8, 1976, No 48-75

1 By a judgment of 6 may 1975 which was received at the Court registry on 29 may 1975, confirmed by the judgment of the Cour d'appel of liege of 22 December 1975 which was received at the Court registry on 30 December 1975, the tribunal de premiere instance of liege asked, pursuant to article 177 of the EEC treaty, a number of questions concerning the interpretation of articles 48, 53, 56, 62 and 189 of the EEC treaty of Council directives Nos 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) and 68-360 of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of member states and their families (oj, English special edition 1968 (ii), p.485).

2 These questions were raised in the course of criminal proceedings against a French national for illegal entry into and illegal residence in Belgian territory.

3 It appears from the file that in his country of origin the accused has been convicted of procuring and prosecuted for various armed robberies without, however, according to the information available, having been convicted of them.

4 The accused ' s wife, also a French national, runs a cafe and dance hall in the liege district acting as an employee of the company owning the business and the accused had joined her but failed to comply with the administrative formalities of entry on the population register.

5 Having detected his presence, the competent authorities ordered him to leave the country and initiated proceedings against him for illegal residence which resulted in a first conviction by a Court.

6 After a brief stay in Germany the accused returned to Belgian territory and rejoined his wife, once again failing to comply with the legal formalities for the control of aliens.

7 He was again apprehended by the police and committed to prison but the committal was not confirmed by the judicial authorities.

8 Before his release however the accused was served with a ministerial decree of expulsion on the grounds that 'royer's personal conduct shows his presence to be a danger to public policy ' and that ' he has not observed the conditions attached to the residence of aliens and he has No permit to establish himself in the kingdom '.

9 Following this expulsion order the accused does in fact seem to have left Belgian territory but the prosecutions for illegal entry and illegal residence followed their course before the tribunal de premiere instance.

The relevant community provisions

10 At the present stage of the proceedings the national Court has not yet finally determined the position of the accused with regard to the provisions of community law applicable to him.

11 The facts submitted by the national Court and the choice of the provisions of community law of which it seeks interpretation allows of different hypotheses according to whether the accused falls within the provisions of community law by virtue of an occupation which he carried out himself or by virtue of a post which he had himself found or again as the husband of a person subject to the provisions of community law because of her occupation so that the accused ' s position may be regulated by either:

(a) the chapter of the treaty concerning workers and, more especially, article 48 which was implemented by regulation (EEC) No 1612-68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (oj, English special edition 1968 (ii), p.475) and Council directive No 68-360-EEC or

(b) the chapters concerning the right of establishment and freedom to provide services, in particular articles 52, 53, 56, 62 and 66 implemented by Council directive No 73-148 of 21 may 1973 concerning the removal of restrictions on the movement and residence of nationals of the member states within the Community for establishment and provision of services (oj, l. 172, p.14).

12 Nevertheless comparison of these different provisions shows that they are based on the same principles both in so far as they concern the entry into and residence in the territory of member states of persons covered by community law and the prohibition of all discrimination between them on grounds of nationality.

13 In particular article 10 of regulation (EEC) No 1612-68, article 1 of directive No 68-360 and article 1 of directive No 73-148 extend in identical terms the application of community law relating to entry into and residence in the territory of the member states to the spouse of any person covered by these provisions.

14 Further, article 1 of directive No 64-221 states that the directive shall apply to any national of a member state who resides in or travels to another member state of the Community either in order to pursue an activity as an employed or self-employed person, or as a recipient of services, and his or her spouse and members of their family.

15 It is apparent from the foregoing that substantially identical provisions of community law apply in a case such as the one at issue if there exists either with regard to the party concerned or his spouse a connexion with community law under any of the above-mentioned provisions.

16 The questions referred by the tribunal de premiere instance will be answered in the light of these considerations and without prejudice to the national Court ' s right to determine the situation before it with respect to provisions of community law.

The first, second, third and fourth questions (source of rights) conferred by the treaty in respect of entry into and residence in the territory of the member states)

17 The first, second, third and fourth questions seek to determine, with particular regard to article 48 of the treaty and directives Nos 64-221 and 68-360 the source of the right of any nationals of a member state to enter into and reside in the territory of another member state and the effect on the exercise of this right of powers exercised by the member states with regard to the supervision of aliens.

18 More particularly, it is asked in this connexion

(a) whether this right is conferred directly by the treaty or other provisions of community law or whether it only arises by means of a residence permit issued by the competent authority of a member state recognizing the particular position of a national of another member state with respect to community law ;

(b) whether it is to be inferred from article 4 (1) and (2) of directive No 68-360 that member states are obliged to issue a residence permit once the person concerned is able to produce proof that he or she is covered by the provisions of community law ;

(c) whether the failure by a national of a member state to comply with the legal formalities for the control of aliens constitutes in itself conduct endangering public policy or public security and whether such conduct may therefore justify a decision ordering expulsion or the provisional deprivation of an individual ' s liberty ;

(d) whether an expulsion order made subsequently to such a failure is a measure of a ' general ' preventive nature or whether it is governed by considerations of a ' special ' preventive nature attaching to the personal conduct of the individual concerned.

19 Article 48 provides that freedom of movement for workers shall be secured within the community.

20 Paragraph (3) of that article provides that it shall entail the right to enter the territory of member states, to move freely there, to stay there for the purpose of employment and to remain there after the end of this employment.

21 Article 52 provides that restrictions on the freedom of establishment of nationals of a member state in the territory of another member state shall be abolished by progressive stages which shall be completed by the end of the transitional period.

22 Article 59 provides that restrictions on freedom to provide services within the Community shall also be abolished in the same manner.

23 These provisions, which may be construed as prohibiting member states from setting up restrictions or obstacles to the entry into and residence in their territory of nationals of other member states, have the effect of conferring rights directly on all persons falling within the ambit of the above-mentioned articles, as later given closer articulation by regulations or directives implementing the treaty.

24 This interpretation has been recognized by all the measures of secondary law adopted for the purpose of implementing the above-mentioned provisions of the treaty.

25 Thus article 1 of regulation No 1612-68 provides that any national of a member state, shall, irrespective of his place of residence, have ' the right to take up activity as an employed person and to pursue such activity within the territory of another member state ' and article 10 of the same regulation extends the ' right to install themselves ' to the members of the family of such a national.

26 Article 4 of directive No 68-360 provides that ' member states shall grant the right of residence in their territory ' to the persons referred to and further states that as ' proof ' of this right an individual residence permit shall be issued.

27 Further the preamble to directive No 73-148 states that freedom of establishment can be fully attained only ' if a right of permanent residence is granted to the persons who are to enjoy freedom of establishment ' and that freedom to provide services entails that persons providing and receiving services should have ' the right of residence for the time during which the services are being provided '.

28 These provisions show that the legislative authorities of the Community were aware that, while not creating new rights in favour of persons protected by community law, the regulation and directives concerned determined the scope and detailed rules for the exercise of rights conferred directly by the treaty.

29 It is therefore evident that the exception concerning the safeguard of public policy, public security and public health contained in articles 48 (3) and 56 (1) of the treaty must be regarded not as a condition precedent to the acquisition of the right of entry and residence but as providing the possibility, in individual cases where there is sufficient justification, of imposing restrictions on the exercise of a right derived directly from the treaty.

30 In view of these considerations the specific questions referred by the national Court may be answered as follows.

31 (a) it follows from the foregoing that the right of nationals of a member state to enter the territory of another member state and reside there for the purposes intended by the treaty - in particular to look for or pursue an occupation or activities as employed or self-employed persons, or to rejoin their spouse or family - is a right conferred directly by the treaty, or, as the case may be, by the provisions adopted for its implementation.

32 It must therefore be concluded that this right is acquired independently of the issue of a residence permit by the competent authority of a member state.

33 The grant of this permit is therefore to be regarded not as a measure giving rise to rights but as a measure by a member state serving to prove the individual position of a national of another member state with regard to provisions of community law.

34 (b) article 4 (1) and (2) of directive No 68-360 provides, without prejudice to article 10 thereof that member states shall ' grant ' the right of residence in their territory to persons who are able to produce the documents listed in the directive and that ' proof ' of the right of residence shall be constituted by issue of a special residence permit.

35 The above-mentioned provisions of the directive are intended to determine the practical details regulating the exercise of rights conferred directly by the treaty.

36 It follows therefore, that the right of residence must be granted by the authorities of the member states to any person falling within the categories set out in article 1 of the directive and who is able to prove, by producing the documents specified in article 4 (3), that he falls within one of these categories.

37 The answer to the question put should therefore be that article 4 of directive No 68-360 entails an obligation for member states to issue a residence permit to any person who provides proof, by means of the appropriate documents, that he belongs to one of the categories set out in article 1 of the directive.

38 (c) the logical consequence of the foregoing is that the mere failure by a national of a member state to complete the legal formalities concerning access, movement and residence of aliens does not justify a decision ordering expulsion.

39 Since it is a question of the exercise of a right acquired under the treaty itself, such conduct cannot be regarded as constituting in itself a breach of public policy or public security.

40 Consequently any decision ordering expulsion made by the authorities of a member state against a national of another member state covered by the treaty would, if it were based solely on that person ' s failure to comply with the legal formalities concerning the control of aliens or on the lack of a residence permit, be contrary to the provisions of the treaty.

41 It must nevertheless be stated in this respect that on the one hand the member states may still expel from their territory a national of another member state where the requirements of public policy and public security are involved for reasons other than the failure to comply with formalities concerning the control of aliens without prejudice to the limits placed on their discretion by community law as stated by the Court in its judgment of 26 October 1975 (case 36-75, Rutili v Minister for the Interior (1975) ecr 1219).

42 On the other hand community law does not prevent the member states from providing, for breaches of national provisions concerning the control of aliens, any appropriate sanctions - other than measures of expulsion from the territory - necessary in order to ensure the efficacity of those provisions.

43 As to the question whether a member state may take measures for the temporary deprivation of liberty of an alien covered by the terms of the treaty with a view to expelling him from the territory it must first be stated that No measure of this nature is permissible if a decision ordering expulsion from the territory would be contrary to the treaty.

44 Moreover the validity of a measure of provisional deprivation of liberty taken in the case of an alien who was unable to prove that he was covered by the treaty or who could be expelled from the territory for reasons other than failure to comply with the formalities concerning the control of aliens depends on the provisions of national law and the international obligations assumed by the member state concerned since community law as such does not yet impose any specific obligations on member states in this respect.

45 (d) article 3 (1) of directive No 64-221 provides that ' measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned '.

46 This provision obliges the member states to make their assessment, as regards the requirements of public policy and public security, on the basis of the individual position of any person protected by community law and not on the basis of general considerations.

47 Nevertheless it is evident from the foregoing that the failure to comply with the legal formalities concerning the entry, movement and residence of aliens does not in itself constitute a threat to public policy and public security within the meaning of the treaty.

48 In itself such conduct cannot therefore give rise to the application of the measures referred to in article 3 of the above-mentioned directive.

49 It is therefore apparent from what has already been stated that this part of the questions No longer serves any purpose.

50 The questions put should therefore be answered in the sense that the right of nationals of one member state to enter the territory of another member state and to reside there is conferred directly, on any person falling within the scope of community law, by the treaty, especially articles 48, 52 and 59 or, as the case may be, by its implementing provisions independently of any residence permit issued by the host state.

51 The mere failure by a national of a member state to comply with the formalities concerning entry, movement and residence of aliens is not of such a nature as to constitute in itself conduct threatening public policy and public security and cannot therefore by itself justify a measure ordering expulsion or temporary imprisonment for that purpose.

The fifth question (implementation of measures of expulsion and legal remedies)

52 In substance the fifth question asks whether a decision ordering expulsion or a refusal to issue a residence or establishment permit may, in view of the requirements of community law, give rise to immediate measures of execution or whether such a decision only takes effect after remedies before the national Courts have been exhausted.

53 Under article 8 of directive No 64-221 any person subject to an order of expulsion from the territory shall have the same legal remedies in respect of these decisions as are available to nationals in respect of acts of the administration.

54 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 measures restricting his freedom.

55 It is appropriate to state in this respect that all steps must be taken by the member states to ensure that the safeguard of the right of appeal is in fact available to anyone against whom a restrictive measure of this kind has been adopted.

56 However this guarantee would become illusory if the member states could, by the immediate execution of a decision ordering expulsion, deprive the person concerned of the opportunity of effectively making use of the remedies which he is guaranteed by directive No 64-221.

57 In the case of the legal remedies referred to in article 8 of directive No 64-221, the party concerned must a least have the opportunity of lodging an appeal and thus obtaining a stay of execution before the expulsion order is carried out.

58 This conclusion also follows from the link established by the directive between articles 8 and 9 thereof in view of the fact that the procedure set out in the latter provision is obligatory inter alia where the legal remedies referred to in article 8 ' cannot have suspensory effect '.

59 Under article 9 the procedure of appeal to a competent authority must precede the decision ordering expulsion in cases of urgency.

60 Consequently where a legal remedy referred to in article 8 is available the decision ordering expulsion may not be executed before the party concerned is able to avail himself of the remedy.

61 Where No such remedy is available, or where it is available but cannot have suspensory effect, the decision cannot be taken - save in cases or urgency which have been properly justified - until the party concerned has had the opportunity of appealing to the authority designated in article 9 of directive No 64-221 and until this authority has reached a decision.

62 The question must therefore be answered to the effect that a decision ordering expulsion cannot be executed, save in cases of urgency which have been properly justified, against a person protected by community law until the party concerned has been able to exhaust the remedies guaranteed by articles 8 and 9 of directive No 64-221.

The sixth, seventh and eighth questions (prohibition of new restrictions)

63 The sixth, seventh and eighth questions ask whether, by virtue of articles 53 and 62 of the treaty prohibiting the introduction by a member state of new restrictions on the establishment of nationals of other member states and on the freedom to provide services which has in fact been achieved, a member state may revert to provisions or practices which are less liberal than those which it had previously applied.

64 More particularly, it is asked in this respect

(a) whether national provisions which have the effect of making the provisions previously applied less liberal are justified when they seek to bring national law into line with the relevant community directives ;

(b) whether the prohibition on new restrictions applies also to provisions of a formal or procedural nature in spite of the fact that article 189 of the EEC leaves to the member states ' the choice of forms and methods ' for the implementation of directives.

65 (a) articles 53 and 62 prohibit not merely the introduction of new restrictions as compared with those applying in the situation existing when the treaty entered into force, but also the revocation of liberalizing measures taken by the member states in implementation of their obligations under community law.

66 In this respect, the measures adopted by the Community particularly in the form of directives for the implementation of the treaty provisions may give some indication as to the scope of the obligations borne by the member states.

67 In particular this is true of directive No 64-221 which sets out a number of limits on the discretion enjoyed by the member states and of obligations imposed upon them with regard to the safeguard of public policy, public security and public health.

68 On the other hand it is not possible to rely on the rule in articles 53 and 62 in cases where it is established that the advantages granted by a member state to nationals of other member states are not granted in execution of an obligation under community law.

69 (b) there is No contradiction between the prohibition of new restrictions by articles 53 and 62 and the provision contained in article 189 which leaves to the member states ' the choice of form and methods ' for the implementation of directives.

70 In fact the choice of form and methods can only operate in compliance with the stipulations and prohibitions in community law.

71 With respect to the directives intended to implement the free movement of persons the competent community institutions have attached particular importance to a group of stipulations of a formal and procedural nature intended to ensure the practical working of the scheme established by the treaty.

72 This is the case in particular as regards directive No 64-221 on special measures justified on grounds of public policy, public security or public health, in that some of the guarantees provided by the directive for persons protected by community law, namely the obligation to inform any person subject to a restrictive measure of the reasons for it and to give him a right of appeal, are of a procedural nature.

73 The member states are consequently obliged to choose, within the bounds of the freedom left to them by article 189, the most appropriate forms and methods to ensure the effective functioning of the directives, account being taken of their aims.

74 The questions should therefore be answered to the effect that articles 53 and 62 of the treaty prohibit the introduction by a member state of new restrictions on the establishment of nationals of other member states and the freedom to provide services which has in fact been attained and that they prevent the member states from reverting to less liberal provisions or practices in so far as the liberalization measures already adopted constitute the implementation of obligations arising from the provisions and objectives of the treaty.

75 The freedom left to the member states by article 189 as to the choice of forms and methods of implementation of directives does not affect their obligation to choose the most appropriate forms and methods to ensure the effectiveness of the directives.

Costs

76 The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable.

77 Since the proceedings are, so far as the parties to the main action are concerned, in the nature of a step in the action pending before the tribunal de premiere instance of liege, it is for that Court to make an order as to costs.

On those grounds,

The Court

In answer to the questions referred to it by the tribunal de premiere instance, liege, hereby rules:

1. The right of nationals of a member state to enter the territory of another member state and reside there is a right conferred directly, on any person falling within the scope of community law, by the treaty - especially articles 48, 52 and 59 - or, as the case may be, by the provisions adopted for its implementation, independently of any residence permit issued by the host state.

2. Article 4 of directive No 68-360 entails an obligation for member states to issue a residence permit to any person who provides proof, by means of the appropriate documents, that he belongs to one of the categories set out in article 1 of the directive.

3. The mere failure by a national of a member state to comply with the formalities concerning the entry, movement and residence of aliens is not of such a nature as to constitute in itself conduct threatening public policy and public security and cannot therefore, by itself, justify a measure ordering expulsion or temporary imprisonment for that purpose.

4. A decision ordering expulsion cannot be executed, save in cases of urgency which have been properly justified, against a person protected by community law until the party concerned has been able to exhaust the remedies guaranteed by articles 8 and 9 of directive No 64-221.

5. Articles 53 and 62 of the treaty prohibit the introduction by a member state of new restrictions on the establishment of nationals of other member states and the freedom to provide services which has in fact been attained and prevent the member states from reverting to less liberal provisions or practices in so far as the liberalization measures already adopted constitute the implementation of obligations arising from the provisions and objectives of the treaty.

6. The freedom left to the member states by article 189 as to the choice of forms and methods of implementation of directives does not affect their obligation to choose the most appropriate forms and methods to ensure the effectiveness of the directives.