C-36/75

persons subject thereunder to may be applied to nationals of the restrictive measures are protected. State concerned.

In Case 36/75

Reference to the Court under Article 177 of the EEC Treaty by the Tribunal administratif, Paris, for a preliminary ruling in the action pending before that court between

Roland Rutili, residing at Gennevilliers,

and

The Minister for the Interior

JUDGMENT

Facts

The facts of the case, the procedure and affecting Mr Rutili and, on the same date, the observations submitted under Article informed the Prefect of the Moselle of 20 of the Protocol on the Statute of the his decision to prohibit Mr Rutili from Court of Justice of the EEC may be residing in the departments of Moselle, summarized as follows: Meurthe-et-Moselle, Meuse and Vosges.

On 17 January 1970 Mr Rutili applied I — Facts and written procedure for the grant of a residence permit for a national of a Member State of the EEC. Mr Roland Rutili, of Italian nationality, was bom on 27 April 1940 in Loudun (Vienne), and has been resident in France On 9 July 1970 he appealed to the since his birth; he is married to a Tribunal administratif, Paris, against the Frenchwoman and was, until 1968, the implied decision refusing him this document. holder of a privileged resident's permit and domiciled at Audun-le-Tiche (in the department of Meurthe-et-Moselle), On 23 October 1970, the Prefect of where he worked and engaged in trade Police, acting on instructions given by union activities. the Minister for the Interior on 17 July, granted Mr Rutili a residence permit for On 12 August 1968, the Ministry for the a national of a Member State of the EEC, Interior made a deportation order against which was valid until 22 October 1975 him. but subject to a prohibition on residence in the departments of Moselle, On 10 September 1968 an order was Meurthe-et-Moselle, Meuse and Vosges. issued requiring him to reside in the department of Puy-de-Dôme. On 16 December 1970, Mr Rutili brought proceedings before the Tribunal By orders of 19 November 1968 the administratif, Paris, for annulment of the Minister for the Interior revoked the decision limiting the territorial validity of deportation and residence orders his residence permit.

During the proceedings before the Advocate-General, the Court decided to Tribunal administratif, it became open the oral procedure without any apparent that Mr Rutili's presence in the preparatory inquiry. departments of Lorraine was considered by the Minister for the Interior to be On 2 September 1975, the Government 'likely to disturb public policy' and that of the French Republic supplied to the there were complaints against him in Court at the request of the latter certain respect of certain activities, the truth of details of the substantive and procedural which is, however, contested, which are conditions in which a prohibition on alleged to consist, in essence, in political residence in part of the national territory actions during the parliamentary may be issued against a French national. elections in March 1967 and the events of May and June 1968 and in his participation in a demonstration during II — Written observations sub the celebrations on 14 July 1968 at mitted to the Court

particular, Article 3 (1) thereof provides for nationals of other Member States as follows: 'Measures taken on grounds of or does it also concern individual public policy or of public security shall decisions taken in application of such be based exclusively on the personal legislative decisions? conduct of the individual concerned.' 2. what is the precise meaning to be This is the directive expressly referred to attributed to the word 'justified'? in the third recital of the preamble to Council Directive No 68/360 of 15 The decision of the Tribunal adminis October 1968 on the abolition of tratif, Paris was entered at the Court restrictions on movement and residence Registry on 9 April 1975. within the Community for workers of Written observations under Article 20 of Member States and their families (OJ, the Protocol on the Statute of the Court English Special Edition 1968 (II) p. 485), cited in the decision of the Tribunal of Justice of the EEC were submitted on Administratif, Paris. 16 June 1975 by the Commission of the European Communities, on 20 June by the Government of the French Republic The Government of the Italian Republic and on 26 June by the Government of considers it desirable that regulations of a the Italian Republic. general and abstract nature adopted in the Member States of the EEC should After hearing the report of the specify the grounds of public policy Judge-Rapporteur and the views of the which, on the basis of uniform criteria

which have been promulgated for the answer in the affirmative, though very purpose of restricting this accompanied by certain details, should discretionary power in view of the be given to the question whether the objectives embodied in Article 48. reservation made concerning public policy in Article 48 (3) of the EEC Treaty On the question whether an individual also covers individual decisions administrative measure may decide to implementing legislative decisions taken prohibit residence in certain regions of a by a Member State in order to restrict the State only, it must be stated that freedom of movement and residence on although Article 6 (1) (a) of Directive No its territory of the nationals of Member 68/360 provides that the residence States. permit of a national of a Member State of the EEC must be valid throughout the (a) The wide discretion traditionally territory of the State which issued it, enjoyed by the immigration authorities is Article 10 of the same directive allows limited by Directive No 64/221, the Member States to derogate from its object of which is to restrict the actions provisions on grounds of public policy, of national authorities by means both of public security or public health. It would, provisions covering matters of substance therefore, appear that a decision (Articles 2, 3 and 4) and by procedural prohibiting residence in certain parts of provisions (Articles 5 to 9). Some the national territory may be justified on provisions of Community law concerning grounds of public policy. the reservation on public policy, in particular Article 48 of the Treaty and However, it follows from the judgment of Article 3 (1) of Directive No 64/221, are the Court of Justice of 26 February 1975 directly applicable in the legal systems of in Case 67/74 (Bonsignore v Stadt Köln the Member States. Thus, the [1975] ECR 297; reference for a discretionary powers of the national preliminary ruling by the Verwaltungs­ administrative authorities are circum­

taken, as the directive requires each case principle of freedom of movement for to be examined individually. workers in a case where such a national proposes to take up a particular offer of (c) The expression, 'subject to limi employment even though the Member tations justified on grounds of public State does not place a similar restriction policy', used in Article 48 (3) of the EEC upon its own nationals.' Treaty is, therefore, primarily concerned with individual decisions taken against The Government of the Italian Republic foreigners who are nationals of a Member considers that, particularly in view of

principle of freedom of movement for of movement cannot be regarded as workers, must be interpreted strictly, so justified under Community law if they that its scope cannot be determined are imposed without guaranteeing the unilaterally by each Member State rights of appeal for those concerned without being subject to control by the under the terms laid down by Articles 8 institutions of the Community. and 9 of Directive No 64/221. Nevertheless, the particular circum stances justifying recourse to the concept Finally, the limitations imposed upon of public policy may vary from one workers' freedom of movement on country to another and from one period grounds of public policy and to another, and it is therefore necessary countenanced, exceptionally, under in this matter to allow the competent Article 48 (3) of the Treaty, may be national authorities an area of discretion regarded as justified if they fulfil the within the limits imposed by the Treaty'; substantive and formal requirements

RUTILI v MINISTER FOR THE INTERIOR

the precise meaning to be given to the — The concept of public policy must, word 'justified' may be based on three therefore, be resorted to only in viewpoints: particularly serious cases.

Thus, Directive No 64/221, the Member States an activity which consists of the must make available to him. Under legitimate exercise of a freedom enjoyed Article 6 of the Directive: The person by the public and recognized as such by concerned shall be informed of the national law can scarecely be considered grounds of public policy, public security to affect adversely the public policy of a or public health upon which the decision State because the person responsible for taken in his case is based, unless this is it is a foreigner. contrary to the interests of the security of the State involved.' In the present case, it — In fields involving the exercise by the is for the Court dealing with the public of its freedoms, an appraisal substance of the case to assess whether whether a foreigner has acted contrary to the grounds are, in this sense, really public policy must be made by reference 'justified'. not only to the national rules of a host State which recognizes its own citizens as (b) With regard to the meaning of the being entitled to those freedoms, but also concept of public policy which is capable of the relevant international obligations of justifying measures taken against a into which the State has entered. foreigner, in view in particular of Directive No 64/221, the case-law of the — The exercise of trade union rights by Court and the viewpoint of the French a foreigner, under the same conditions as Minister for the Interior, the following a national, cannot be regarded as in itself considerations must be borne in mind: constituting an offence against public

The restrictively interpreted. exercise of trade union rights is subject

to certain limitations laid down by the embodying, in administrative terms, the law and which, in a democratic society, right of residence recognized by the are necessary to ensure respect for the directive, must, in principle, be valid rights and liberties of others and to throughout the territory of the State safeguard public order, national security, which issued it. It is open to question public health and morals. In this whether the French authorities were connexion, it must be borne in mind entitled to limit the scope of that that the concept of political neutrality, Community provision by providing, in which applies particularly to foreigners, the Decree of 5 January 1970, that 'a must be handled with care in the context residence permit for a national of a of a Community which is trying to Member State of the EEC shall be valid integrate the migrant worker more and throughout French territory save in the more closely into the host country and case of an individual decision taken by which likes to emphasize its political the Minister for the Interior on grounds

may be made: In the present case, however, the measure contested in the main action appears to — Directive No 64/221 expressly refers be discriminatory or unfounded. to refusal of entry into a territory and expulsion from a territory as special — Finally, refusal of a residence permit measures which may be taken against a may have very serious consequences for national of a Member State; on the other the person concerned and also for his hand, it contains no provision that family. prohibitions on residence in part of the territory may be justified on grounds of (d) In conclusion, in order to be public policy. 'justified' within the meaning of Article 48 (3) of the EEC Treaty, a measure — One might, at first, be tempted to affecting an individual must: conclude that, as the administrative authorities are justified in adopting a — in accordance with the provisions of deportation measure against a foreigner, Articles 8 and 9 of Directive No 64/221, they may a fortiori adopt a less drastic state the grounds on which it is based; measure, and that it would be to encourage them in every case to opt for — be based on particularly serious deportation if they were prohibited from grounds, especially when the activity for adopting a less radical measure. which the national of a Member State is criticized is the result of exercising a — Nevertheless, the right to move freely freedom expressly recognized by the within a State and to choose to reside State in which he resides or a there is a basic human right; thus, Article fundamental right enshrined in an 6 (1) (a) of Directive No 68/360 provides international document; the exercise of that a residence permit, which is a trade union freedom cannot constitute an straightforward entitlement to residence offence against public order or public

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.

JUDGMENT OF 28. 10. 1975 — CASE 36/75

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'.

RUTILI v MINISTER FOR THE INTERIOR

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).

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 'subject 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

RUTILI v MINISTER FOR THE INTERIOR

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.

JUDGMENT OF 28. 10. 1975 — CASE 36/75

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.'

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.

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.

RUTILI v MINISTER FOR THE INTERIOR

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.

Costs

54 The costs incurred by the Government of the French Republic, the Government of the Italian Republic and the Commission of the European

JUDGMENT OF 28. 10. 1975 — CASE 36/75

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.

On those grounds,

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

RUTILI v MINISTER FOR THE INTERIOR

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.

Lecourt Kutscher Donner Mertens de Wilmars

Pescatore Sørensen Mackenzie Stuart

Delivered in open court in Luxembourg on 28 October 1975.