C-67/74

JUDGMENT OF THE COURT 26 FEBRUARY 1975 1

Carmelo Angelo Bonsignore v Oberstadtdirektor der Stadt Köln

(preliminary ruling requested by the Verwaltungsgericht Köln

'Public policy and public security'

Case 67/74

Summary

1 — Language of the Case: German.

JUDGMENT OF 26. 2. 1975 — CASE 67/74

CARMELO ANGELO BONSIGNORE, chemical worker, residing in Cologne,

and

THE OBERSTADTDIREKTOR (Chief Administrative Officer) of the City of Cologne,

in the presence of the representative of the public interest before the Verwal- tungsgericht Köln,

Facts

The facts of the case, the procedure and chemical worker in Cologne. His the observations submitted under Article residence permit, which was issued on 5 20 of the Protocol on the Statute of the November 1968, was renewed on 8 Court of Justice of the EEC may be August 1969 by the Oberstadtdirektor summarized as follows: (Chief Administrative Officer) of Cologne for a period of five years. In May 1971 Mr Bonsignore bought I — Facts and procedure from an unknown person a 6.35 calibre pistol without being in possession of a Carmelo Angelo Bonsignore, an Italian firearms permit. national, arrived in the Federal Republic On 30 May 1971, while handling the of Germany in October 1968, at the age pistol, he fatally injured his younger of 18 years, to take up employment as a brother Angelo.

BONSIGNORE v STADT KOLN

On 20 October 1971 the Amtsgericht, residence of nationals of Member States

Mr. Bonsignore from the territory of the Federal Republic of Germany and set out in paragraph (1) may be adopted ordered the immediate execution of this only if they are justified on grounds of measure by Ordnungsverfügung (admin- the personal conduct of the foreigner in question and, according to paragraph istrative decree) of 15 September 1972, (4), the existence of a criminal pursuant to Article 10 (1) No 2 of the conviction cannot in itself constitute

of 22 July 1969. There can be no doubt that this question turns on an interpretation of internal The objection put forward on 4 October law; as, however, such law must be 1972 by Mr Bonsignore was dismissed interpreted in accordance with Com- by decision of the Oberstadtdirektor of munity law and its objectives, a final 10 October. reply presupposes an interpretation of On an application by Mr Bonsignore, Article 3 (1) and (2) of Council Directive lodged on 26 October 1972, the No 64/221/EEC of 25 February 1964 on Verwaltungsgericht Köln stayed the the coordination of special measures deportation order by order of 10 concerning the movement and residence November 1972. of foreign nationals which are justified An extra-judicial appeal brought by Mr on grounds of public policy, public Bonsignore against the deportation order security or public health (OJ, p. 850) was dismissed by the Regierungspräsi- according to which: 'Measures taken on dent (Chief District Administrative grounds of public policy or public Officer) of Cologne by decision of security shall be based exclusively on the 26 April 1973. personal conduct of the individual concerned' and: 'Previous criminal Mr Bonsignore appealed against this convictions shall not in themselves decision on 23 May 1973 to the constitute grounds for the taking of such Verwaltungsgericht Köln. measures'. This court found, in particular, that German administrative case-law is By order of 30 July 1974, therefore, the divided over the interpretation of the Verwaltungsgericht Köln (Fifth Senate) principal national legislative provisions decided, in accordance with Article 177 concerning limitations of freedom of of the EEC Treaty, to stay proceedings movement within the Federal Republic, until the Court of Justice had given a in particular over Article 12 of the Law preliminary ruling on the following of 22 July 1969 on the entry and questions:

'1. Is Article 3 (1) and (2) of Council Advocate-General, the Court decided to Directive No 64/221 of the European open the oral procedure without any Economic Community of 25 preparatory inquiry. February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on II — Written observations grounds of public policy, public submitted to the Court security or public health, to be interpreted as excluding the The Oberstadtdirektor of the City of deportation of a national of a Cologne, the defendant in the main Member State of the European action, considers that the distinction Economic Community by the State drawn by the Verwaltungsgericht Köln authoritiy of another Member State between reasons of a 'special preventive for the purpose of deterring other nature', which are characterized by clear foreign nationals from committing indications that the foreigner convicted such criminal offences as those with of an offence will commit further which the person deported was offences, and reasons of a 'general charged, or similar offences or other preventive nature', which justify the infringements of public security or deportation of a foreigner for the public policy, that is, for reasons of a purpose of deterring other foreign general preventive nature? nationals from committing such or

offence always supplies the reason for the EEC, that is, for reasons of a his deportation by his own personal special preventive nature?' conduct. The order of the Verwaltungsgericht By its reference to public policy and pub- Köln was lodged at the Court Registry lic security the Directive alludes to the on 14 September 1974. concept of danger. The task facing the In accordance with Article 20 of the administrators of the police and security Protocol on the Statute of the Court of services is not only to put an end to Justice of the EEC, written observations existing disturbances but also and were submitted on 28 October 1974 by primarily to provide a preventive the Oberstadtdirektor of the City of defence against dangers threatening Cologne the defendant in the main public security and public policy; such a action; on 18 November by the Commis- 'danger' may consist in the possibility of sion of the European Communities; harm which the competent authorities, on 27 November by the representative on the basis of their experience, consider of the public interest before the Ver- likely to occur. In connexion with this waltungsgericht Köln, the intervener in central concept of danger the German the main action; and on 28 November legislation on aliens stresses certain by the Government of the Italian categories of reprehensible conduct, Republic. including offences against the firearms Upon hearing the report of the legislation, which are regarded as of Judge-Rapporteur and the opinion of the particular danger to the peaceful, secure

population, such as the prohibited use of (1) of the Aliens Law is present. firearms, and by the threat which they As regards the Law on the entry and pose to public security and public policy. residence of nationals of Member States The authorities must be entitled to of the EEC, it must be noted that Article deport them. 12 (1) provides that nationals of In certain circumstances the deportation Member States may be deported only for of a foreigner has the subsidiary and reasons of public security or policy or if desirable consequence that news of such their presence is such as to prejudice a measure spreads and has an other important interests of the Federal unquestionable deterrent effect. Republic of Germany. These two The representative of the public interest hypotheses combined correspond to the before the Verwaltungsgericht Köln, the concept of public policy developed in intervener in the main action, observes legal systems based on Roman law, and that to the extent to which the law on embody all provisions drawn up in the the entry and residence of nationals of general interest. They constitute the Member States of the EEC places such implementation of Article 48 (3) of the nationals in a more favourable legal Treaty, according to which restrictions on freedom of movement for workers situation as regards residence in the Federal Republic than that in which the may be imposed on grounds of public Aliens Law places foreigners in general, policy. the former must prevail. Thus, the provisions of the Aliens Law and the Law on the entry and residence In this instance the proposed deportation of nationals of Member States of the of Mr Bonsignore has been ordered by EEC converge. reason of his unlawful acquisition and possession of a firearm, in pursuance of The more favourable system governing the combined provisions of Article 10 (1) the latter arises, in this instance, from No 2 of the Aliens Law and of Article 12 Article 12 (3) and (4) of the Law of of the Law on the entry and residence of 1969. In particular, according to the first nationals of Member States of the EEC. sentence of Article 12 (3) deportation He has been convicted of an offence; can be ordered only on the basis of the. moreover, the unlawful acquisition and personal conduct of the foreigner possession of firearms is a threat to public concerned; Mr Bonsignore invited security and public order and, for this deportation by infringing the German reason, justifies a deportation order firearms legislation, that is, through his under Article 10 (1) No 11. In fact, it personal conduct. Moreover, Article 12 is 'reasonable to regard as 'important (3) of the Law on the entry and interests of the Federal Republic of residence of nationals of Member States

of the EEC must be interpreted in the of freedom of movement is subject to light of. Directive No 64/221, in 'limitations justified on grounds of particular of Article 3 (1) thereof, public policy, public security or public according to which 'Measures taken on health'. The Community is obliged to grounds of public policy or of public acknowledge this right only if it does not security shall be based exclusively on the adversely affect public policy; the personal conduct of the individual consequences of an 'undue' freedom of

Article 3 (1) of Directive No 64/221 prevention within the context of the must therefore be interpreted to mean maintenance of order, the directive had, that a deportation order which is ex hypothesi, to set out its prohibition in clear terms. objectively justified by reasons of a general preventive nature and which is The purpose of the directive is to intended to reinforce public policy is prohibit any abuse of measures to compatible with Community law. maintain order which are authorized, in

Its first preventive nature or of a general paragraph lays down that special preventive nature are objectively measures shall be based exclusively on justified, that is, when they are capable the personal conduct of the individual of fulfilling their purpose of acting as a concerned, while the second paragraph deterrent, such measures are lawful expressly states that previous criminal according to the directive, as being convictions shall not in themselves measures taken on grounds of public constitute sufficient and adequate policy.

BONSIGNORE v STADT KOLN

manner; a general reference to an the adoption of special measures based assessment made by a judge in criminal solely on the existence of a criminal proceedings when making a decision to conviction. Although the directive does convict cannot justify such measures. not even acknowledge the existence of a Thus, special measures against non-nat- criminal conviction to be an appropriate ional Community workers can be factor on which to base a special adopted only for reasons of a special measure, it must be concluded a fortiori preventive nature and not those of a that the power to adopt special measures general preventive nature. merely for the purpose of general prevention is excluded, as such measures The very text of the provision shows must necessarily be based not on a that a close and special correlation must concrete assessment of the conduct of exist between the expected threat to workers, but on an abstract and public policy and the conduct of the worker concerned. predetermined assessment of factors which are still less objective and less Although the measure could also be easily verified than that of the existence adopted on the basis of broad objectives of a criminal conviction. of a general preventive nature, the conduct of the individual concerned in The Commission of the European Communities recalls that member States this case is not the cause of the expected are entitled to limit the freedom of threat to public policy, but merely constitutes a non-specific opportunity to movement granted by the Treaty to nationals of the countries of the EEC 'on introduce such a measure. Article 3 (1) of the directive requires the existence of grounds of public policy, public security a chain of causation between the or public health'. The rules laid down in conduct of workers and the feared threat this connexion in Article 3 of Directive

JUDGMENT OF 26. 2. 1975 — CASE 67/74

Although, ex hypothesi, the text of reply as follows to the questions referred Article 3 (1) might give rise to differing by the Verwaltungsgericht Köln: interpretations, the fundamental require- Article 3 of Directive No 64/221 of the ment of a restrictive interpretation Council must be interpreted to mean demands that, if doubt arises, the that the deportation of a national of a deterrent effect is not to be regarded as Member State of the EEC who has been of greater importance. convicted in criminal proceedings cannot This interpretation corresponds to the be ordered for the purpose of deterring spirit and objective of the directive. The other foreign nationals from committing consequence of the right of freedom of such or similar offences (concept of movement is that nationals of Member general prevention) but only when, after States of the EEC are entitled, under the a thorough consideration of all the facts conditions specified by that directive, to of the case, it may be feared that the reside in the territory of the other foreigner in question will again offend Member States. These States may of against public policy and public security course make use of the reservation (concept of special prevention). concerning 'measures taken on grounds of public policy and public security', but the discretionary powers retained by III — Oral procedure Member States in this field — even if a Community bias is correctly put on the The Oberstadtdirektor of the City of concepts public policy, public security Cologne, represented by Trutz von and public health — must be limited by Wolff, Oberrechtsrat, the Government of Article 3 (1) of the directive. This the Italian Republic, represented by limitation has no meaning unless it Giorgio Zagari, Deputy State Advocate- places nationals of the countries of the General and the Commission of the EEC in a more favourable situation than European Communities, represented by that of other foreign nationals, which its Legal Adviser, Rolf Wagenbaur, would no longer be the case if submitted oral observations at the

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 'Auslanderbehörde' (Aliens Authority) ordered the individual concerned to be deported in accordance with the Ausländergesetz (Aliens Law) of 28 April 1965 (Bundesgesetzblatt, Teil I, p. 353), in conjunction with the Gesetz fiber Einreise und Aufenthalt von Staatsangehorigen der Mitgliedstaaten der Europäischen Wirtschafts- gemeinschaft (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 Auslanderbehörde 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.

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.

BONSIGNORE v STADT KOLN

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.

OPINION OF MR MAYRAS — CASE 67/74

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.

Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco

Pescatore Kutscher Sørensen O'Keeffe

Delivered in open court in Luxembourg on 26 February 1975.

A. Van Houtte R. Lecourt