CJEC, October 27, 1977, No 30-77

1 By order of 20 November 1976, received at the Court on 2 march 1977, the Marlborough street magistrates 'Court, London, referred to the Court of justice three questions concerning the interpretation of article 48 of the treaty and of certain provisions of Council directive No 64-221-EEC of 25 February 1964 on the co-ordination 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)

2 The questions arose within the context of proceedings against a French national who had been employed in the United Kingdom since May 1975 and who was found guilty in June 1976 of unlawful possession of drugs, which is an offence punishable under the misuse of drugs act 1971.

3 On 7 January 1976 the defendant had pleaded guilty to an identical offence before another Court and had been conditionally discharged for twelve months.

4 The Marlborough street magistrates 'Court was minded to make a recommendation for deportation to the secretary of state pursuant to its powers under section 6 (1) of the immigration act 1971 and the appropriate notice was served on the defendant, who maintained, however, that article 48 of the EEC treaty and the provisions of directive No 64-221-EEC prevented such a recommendation from being made in that instance.

5 As the national Court considered that the action raised questions concerning the interpretation of community law it referred the matter to the Court of justice under article 177 of the treaty.

The first question

6 The first question asks 'whether a recommendation for deportation made by a national Court of a member state to the executive authority of that state (such recommendation being persuasive but not binding on the executive authority) constitutes a' 'measure' 'within the meaning of article 3 (1) and (2) of directive No 64-221-EEC'.

7 That question seeks to discover whether a Court which, under national legislation, has jurisdiction to recommend to the executive authority the deportation of a national of another member state, such recommendation not being binding on that authority, must, when it does so, take into account the limitations resulting from the treaty and from directive No 64-221-EEC on the exercise of the powers which, in that area, are reserved to the member states.

8 According to the observations submitted by the government of the united kingdom in accordance with article 20 of the protocol on the statute of the Court of justice of the EEC, the question referred to the Court raises two separate problems: whether a judicial decision can constitute a ' measure ' for the purposes of the directive and, if the answer is in the affirmative, whether a mere ' recommendation ' by a national Court can constitute a measure for the purposes of that same directive.

(a) as regards the first point

9 Article 2 of directive No 64-221-EEC states that the directive relates to all ' measures ' (dispositions, vorschriften, provvedimenti, bestemmelser, voorschriften) concerning entry into the territory, issue or renewal of residence permits or expulsion from their territory taken by member states on grounds of public policy, public security or public health.

10 Under paragraphs (1) and (2) of article 3 of that directive, 'measures' (mesures, massnahmen, provvedimenti, forholdsregler, maatregelen) taken on grounds of public policy or 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.

11 Although the government of the united kingdom declares that it accepts unreservedly that paragraphs (1) and (2) of article 3 are directly applicable and confer rights on nationals of member states to which the national Courts must have regard, with the result that it is not open to a Court of a member state to ignore those provisions on any matter coming before the Court to which they are relevant, it submits that a judicial decision of a national Court cannot constitute a ' measure ' within the meaning of the said article 3.

12 On that point the government observes that the fact that the term ' measures ' is used in the english text in both articles 2 and 3 shows that it is intended to have the same meaning in each case and that it emerges from the first recital in the preamble to the directive that when used in article 2 the expression only refers to provisions laid down by law, regulation or administrative action, to the exclusion of actions of the judiciary.

13 A comparison of the different language versions of the provisions in question shows that with the exception of the Italian text all the other versions use different terms in each of the two articles, with the result that no legal consequences can be based on the terminology used.

14 The different language versions of a community text must be given a uniform interpretation and hence in the case of divergence between the versions the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part.

15 By coordinating national rules on the control of aliens, to the extent to which they concern the nationals of other member states, directive No 64-221-EEC seeks to protect such nationals from any exercise of the powers resulting from the exception relating to limitations justified on grounds of public policy, public security or public health, which might go beyond the requirements justifying an exception to the basic principle of free movement of persons.

16 It is essential that at the different stages of the process which may result in the adoption of a decision to make a deportation order that protection may be provided by the Courts where they are involved in the adoption of such a decision.

17 It follows that the concept of ' measure ' includes the action of a Court which is required by the law to recommend in certain cases the deportation of a national of another member state.

18 When making such a recommendation, therefore, such a Court must ensure that the directive is correctly applied and must take account of the limits which it imposes on the action of the authorities in the member states.

19 That finding is, moreover, in line with the point of view of the government of the united kingdom which ' is not suggesting that it would be open to a Court of a member state to ignore the provisions of article 3 (1) and (2) on any matter coming before the Court to which the articles are relevant ' but on the contrary accepts ' that the provisions of those articles are directly applicable and confer rights on nationals of member states to which the national Courts must have regard '.

(b) as regards the second point

20 As regards the second aspect of the first question, the government of the united kingdom submits that a mere recommendation cannot constitute a ' measure ' within the meaning of article 3 (1) and (2) of directive No 64-221-EEC, and that only the subsequent decision of the secretary of state can amount to such a measure.

21 For the purposes of the directive, a ' measure ' is any action which affects the right of persons coming within the field of application of article 48 to enter and reside freely in the member states under the same conditions as the nationals of the host state.

22 Within the context of the procedure laid down by section 3 (6) of the immigration act 1971, the recommendation referred to in the question raised by the national Court constitutes a necessary step in the process of arriving at any decision to make a deportation order and is a necessary prerequisite for such a decision.

23 Moreover, within the context of that procedure, its effect is to make it possible to deprive the person concerned of his liberty and it is, in any event, one factor justifying a subsequent decision by the executive authority to make a deportation order.

24 Such a recommendation therefore affects the right of free movement and constitutes a measure within the meaning of article 3 of the directive.

The second question

25 The second question asks ' whether the wording of article 3 (2) of directive No 64-221-EEC, namely that previous criminal convictions shall not ' in themselves ' constitute grounds for the taking of measures based on public policy or public security means that previous criminal convictions are solely relevant in so far as they manifest a present or future propensity to act in a manner contrary to public policy or public security ; alternatively, the meaning to be attached to the expression ' in themselves ' in article 3 (2) of directive No 64-221-EEC '.

26 According to the terms of the order referring the case to the Court, that question seeks to discover whether, as the defendant maintained before the national Court, ' previous criminal convictions are solely relevant in so far as they manifest a present or future intention to act in a manner contrary to public policy or public security ' or, on the other hand, whether, as counsel for the prosecution sought to argue, although ' the Court cannot make a recommendation for deportation on grounds of public policy based on the fact alone of a previous conviction ' it ' is entitled to take into account the past conduct of the defendant which resulted in the previous conviction '.

27 The terms of article 3 (2) of the directive, which states that ' previous criminal convictions shall not in themselves constitute grounds for the taking of such measures ' must be understood as requiring the national authorities to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy, which does not necessarily coincide with the appraisals which formed the basis of the criminal conviction.

28 The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.

29 Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.

30 It is for the authorities and, where appropriate, for the national Courts, to consider that question in each individual case in the light of the particular legal position of persons subject to community law and of the fundamental nature of the principle of the free movement of persons.

The third question

31 The third question asks whether the words ' public policy ' in article 48 (3) are to be interpreted as including reasons of state even where no breach of the public peace or order is threatened or in a narrower sense in which is incorporated the concept of some threatened breach of the public peace, order or security, or in some other wider sense.

32 Apart from the various questions of terminology, this question seeks to obtain a definition of the interpretation to be given to the concept of ' public policy ' referred to in article 48.

33 In its judgment of 4 December 1974 (case 41-74, van Duyn v home office, (1974) ECR1337, at p.1350) the Court emphasized that the concept of public policy in the context of the community and where, in particular, it is used as a justification for derogating from the fundamental principle of freedom of movement for workers, must 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.

34 Nevertheless, it is stated in the same judgment that the particular circumstances justifying recourse to the concept of public policy may vary from one country to another and from one period to another and it is therefore necessary in this matter to allow the competent national authorities an area of discretion within the limits imposed by the treaty and the provisions adopted for its implementation.

35 In so far as it may justify certain restrictions on the free movement of persons subject to community law, recourse by a national authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society.

Costs

36 The costs incurred by the government of the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

37 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 national Court, the decision on costs is a matter for that Court.

On those grounds,

The Court,

In answer to the questions referred to it by the Marlborough street magistrates 'Court by order of 20 November 1976, hereby rules:

(1) any action affecting the right of persons coming within the field of application of article 48 of the treaty to enter and reside freely in the member states under the same conditions as the nationals of the host state constitutes a ' measure ' for the purposes of article 3 (1) and (2) of directive No 64-221-EEC. That concept includes the action of a Court which is required by the law to recommend in certain cases the deportation of a national of another member state, where such recommendation constitutes a necessary prerequisite for a decision to make a deportation order.

(2) article 3 (2) of directive No 64-221-EEC, according to which previous criminal convictions do not in themselves constitute grounds for the imposition of the restrictions on free movement authorized by article 48 of the treaty on grounds of public policy and public security, must be interpreted to mean that previous criminal convictions are relevant only in so far as the circumstances which gave rise to them are evidence of personal conduct constituting a present threat to the requirements of public policy.

(3) in so far as it may justify certain restrictions on the free movement of persons subject to community law, recourse by a national authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation to the social order which any infringement of the law involves, of a genuine and sufficiently serious threat affecting one of the fundamental interests of society.