C-48/75

JUDGMENT OF 8. 4. 1976 — CASE 48/75

for its implementation, independently imprisonment for that purpose. of any residence permit issued by the 4. A decision ordering expulsion cannot host State. The exception concerning be executed, save in cases of urgency the safeguard of public policy, public which have been properly justified, security and public health contained against a person protected by in Articles 48 (3) and 56 (1) of the Community law until the party Treaty must be regarded not as a concerned has been able to exhaust

In Case 48/75

Reference to the Court, pursuant to Article 177 of the EEC Treaty by the Tribunal de première instance of Liege for a preliminary ruling in the criminal proceedings pending before that court against

JEAN NOEL ROYER, resident in Lisieux (France)

on the interpretation of various provisions of Community law relating to freedom of movement for workers, to the right of establishment and the freedom to provide services, in particular Articles 48, 53, 56 and 62 of the EEC Treaty and 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 and 68/360 of 15 October 1968 on the abolition of

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restrictions on movement and residence within the Community for workers of Member States and their families.

The facts giving rise to the case, the On 24 January 1972, acting on the procedure and the observations instructions from the general admin­ submitted in accordance with Article 20 istration of the Sûreté, Aliens of the Protocol on the Statute of the Department, the Belgian Police Court of Justice may be summarized as Judiciaire served on Royer an order ot follows: leave the country on the ground that he was unlawfully resident there, and forbidding him to return. I — Facts and written procedure In compliance with the order to leave the In pursuance of instructions from the country, Royer went to Aachen where he Procureur General of Liege concerning remained until 10 February 1972. the suppression of gangsterism and the adoption of measures against inter­ national criminals, Mr Jean Noel Royer, The Belgian Police Judiciaire once again a tradesman of French nationality, a detected the presence of Royer in Grâce-Hollogne on 11 March 1972. The resident of Lisieux (France), was, on 18 local Gendarmerie arrested him on 27 January 1972, 'detected' in Grâce- Hollogne since the month of November April 1972. 1971 without having comp­ leted the administrative formalities of Royer was put under arrest for having entry on the population register and that, disobeyed the order to leave the country in France, he had been prosecuted for and the prohibition on returning, and various armed robberies committed was handed over to the office of the between 1959 and 1966 and sentenced to Procureur General and committed to two years' imprisonment for procuring. prison on 28 April 1972.

On 3 May 1972 the Chambre du Conseil provide services, the 11th Chamber of made an order that Royer should be set the Tribunal de première instance of at liberty. Liege (tribunal correctionnel) in a judgment, the grounds of which were On 10 May 1972, the Chambre des Mises given at length, of 6 May 1975, decided, en Accusation heard the applications of pursuant to Article 177 of the EEC the Public Prosecutor for the preventive Treaty, to stay the proceedings until the detention to be continued and confirmed Court of Justice had given a preliminary the order setting the accused at liberty. ruling on the following questions: (1) Does a failure to comply with the Royer was set at liberty the same day but national legal requirements laid down before leaving prison was served with a for controlling the exercise of the ministerial decree dated 5 May 1972 right based on the Treaty constitute expelling him from the country, and an in itself personal conduct capable of order to leave, the country. endangering public policy, public security or public health, within the The expulsion order made by the meaning of Article 3 (1) of Directive Minister of Justice pursuant to Article 3 No 64/221, in the light of which of the Law of 28 March 1952 on the national laws must be interpreted? control of aliens was based on the Taking into account the effect to be grounds that 'Rover's personal conduct given to the Treaty, the principle of shows his presence to be a danger to the protection of basic rights in the public policy … and that he has not application of Community law and the fact that this failure occurred in observed the conditions attached to the residence of aliens and he has no permit the exercise of a right, does such a failure in itself constitute a lawful to establish himself in the Kindgdom.' ground for depriving an individual provisionally of his liberty? By a judgment of 6 November 1972, the Does an expulsion order adopted for Tribunal (Correctionnel) de première this reason under the heading of instance of Liege imposed on Royer a unlawful residence constitute a suspended sentence of imprisonment for measure of a general preventive one month and a fine of FB 3 000 for nature or of a special preventive illegal residence in Belgium from nature? November 1971 to 10 February 1972. (2) Do the rights based on Article 48 et seq. of the Treaty vest directly in the In 1973 Royer was again summoned and individual, without any connexion charged before the Tribunal de premiere with the organization and exercise of instance of Liege for having, between 10 the national sovereignty of either the February and 27 April 1972, re-entered country of origin or the host country? and resided in Belgium without having (3) Are the limitations provided in been authorized by the Minister of Article 48 et seq. inherent in the Justice in the manner determined by the conceptual content of these rights or Royal Decree of 21 December 1965 are they merely external and relating to conditions of entry, of fortuitous factors of such a nature as residence and of establishment for aliens to call in question the existence and in Belgium. exercise of a right which is complete in itself?

right of residence. nevertheless in line with a directive In these circumstances, constitute a new restriction: (a) Must the words 'able to' be (a) as regards Articles 53 and 62 of interpreted to mean in a position the Treaty; to bring evidence that they can (b) as regards Article 4 (3) of produce the permits and Directive No 64/221? documents provided for? (b) Does the right based on the (7) Article 53 of the Treaty prohibits the Treaty exist independently of the introduction of any new restrictions. document which proves it? Article 56 does not prejudice the (c) Is not the host State therefore applicability of national rules for the obliged, when a national of a control of foreign nationals. Must not Member State is within its terri­ these provisions be coordinated with tory, to request and assist him to each other by a statement that any obtain the document in question progress resulting from more liberal and is it entitled to take solutions, advancing more rapidly proceedings against such individ­ towards the implementation of the ual and deny him admittance basic principles of the Treaty than is without itself having complied required by the directives, shall be irrevocable and, therefore, that all the with these preliminary obli­ gations, if it is accepted in the guarantees which national legislation answer to the first question that a may have provided on the adoption failure to comply with the of measures taken in implementation necessary formalities does not of the limitations imposed by Article itself constitute personal conduct 48 must be regarded as having been threatening public policy or finally established? public security, and that (8) Article 53 of the Treaty prohibits the convictions or exclusions from introduction of any new restrictions. Article 189 leaves to the Member the territory on this ground States the choice of form and merely represent objectives of a methods. general preventive nature? (5) National courts are required to Must not these two provisions be protect these rights. In these brought into line by a statement that circumstances, do a decision to expel where progress has been achieved in an individual and a decision to refuse a Member State as a result of to issue a residence or establishment procedures or methods which offer permit only become definitive and greater guarantees than are required take effect after rights of appeal in the directives, in particular before the national courts have been through the free choice of the exhausted, or, at the cost of depriving authority which is empowered to take Articles 48 et seq. of their proper the decision and the compulsory effect, must the administrative nature of prior consultation, such measures be agreed to have pro­ progress must be regarded as visional effect? irreversible'

The judgment of the Tribunal de could make the exercise of the right première instance of Liège was received subject to a proventive control de­ at the Court Registry on 29 May 1975. signed to ascertain whether or not there is any ground which falls under In accordance with Article 20 of the these limitations or, on the contrary, Protocol on the Statute of the Court of are these limitations merely excep­ Justice of the EEC, written observations tions to a pre-existing complete right, were submitted by the Commission of and must reliance on them be the European Communities on 29 July justified in each individual case? 1975. (4) (a) Does failure to comply with the administrative formalities for Upon hearing the report of the obtaining the permits or docu­ Judge-Rapporteur and the views of the ments providing the right to Advocate-General the Court decided not residence in itself constitute to hold a preparatory inquiry. personal conduct within the meaning of Article 3 (1) of Directive No 64/221 endangering II — Written observations sub­ or threatening public policy or mitted to the Court public security thereby justifying an expulsion order? The Commission of the European (b) Does an expulsion order adopted Communities feels that it would be for this reason constitute a useful, in order to identify the essential measure of a general preventive points of Community law raised by the nature prohibited by Community case, to rearrange and to reformulate the law or of a special preventive questions referred as follows: nature related to the personal (1) Is the right of residence in the conduct of the party concerned? territory of a Member State for (c) If failure to comply with the nationals of other Member States, above-mentioned administrative who benefit from the principles of formalities is not a danger or a freedom of movement for workers menace to public policy or to and of the right of establishment, public security, is it a legitimate conferred directly by the Treaty and, reason for taking away individual where appropriate, by measures of freedom, a fundamental human secondary legislation for the im­ right which is part of the plementation thereof, or only by the principles of Community law? issue of a document drawn up the (5) Are the effects of a decision to refuse authorities of that State? to grant a residence permit, and to (2) Is this right a subjective right expel a person before the issue of this attached to the person in such a way permit, suspended, in the case of that for its existence and exercise it is recourse to the national courts and not dependent on the structure of the then until the judicial remedies are public authorities of the Member exhausted, under the provisions of State of residence, particularly with Articles 7, 8 and 9 of Directive No regard to the supervision of the 64/221? territory and the control of foreign (6) Questions Nos 6, 7 and 8 formulated nationals? by the court making the order of (3) Do the limitations on the right of reference.

directly from Community law. necessarily be legal by virtue of the Community legal system against which The right of residence clearly exists prior incompatible provisions of nationals law to all administrative formalities, in may not prevail. particular the issue of a document simply designed to prove the right and in­ (b) With regard to the effect on the dependently of these formalities. nature of the right of residence of the limitations stipulated by Articles 48 (3) Administrative control by the Member and 56 of the EEC Treaty it should be States of the presence of foreign stated that they are a derogation from the nationals on their territory is certainly fundamental principle of freedom of legitimate and even necessary to facilitate movement and that therefore the

JUDGMENT OF 8. 4. 1976 — CASE 48/75

the particular and justified reliance on to reside in the territory of another the existence of such a ground of Member State in order to carry out objection. economic activity there.

In addition an expulsion order for failure (c) In weighing up the failure to comply with the administrative for­ to comply with certain administrative formalities is intended to secure com­ malities as against the requirement of personal conduct justifiying. a measure of pliance with administrative rules of public policy, in particular expulsion general application; it is therefore from the territory and loss of freedom, it possible to take the view that it is based cannot be denied that the exception of on the ground of general prevention, or, public policy is a limited exception to be more exactly, on that good ad­ ministration. interpreted strictly and may therefore only be relied on if the conduct in In this respect, however, it is sufficient to question is of particular gravity and the state that the infringements of the rules Court of Justice is empowered to rule governing the supervision of the whether matters of the kind with which presence of aliens in the territory are Royer is charged may legitimately be simply of a minor nature and may be invoked by a Member State under this dealt with by penalties and measures of exception. enforcement of less gravity than a prohibition on residence. The mere offence of not having presented oneself to the local ad­ In matters relating to entry, residence ministration of one's place of residence and expulsion of Community nationals, for the purposes of registration and the national authorities are under an

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security and on the other hand, the making procedures depending on fundamental principle of the free whether the residence card was issued or movement of persons, does not permit not. the imposition on the State of residence, for the duration of the appeal, of the The possibilities left to Member States by continued presence in its territory of a Directive No 64/221 clearly cannot national of a Member State against whom prevail over Article 53 of the Treaty. the exception of public policy or public However, it would certainly not be security has legitimately been invoked correct to take the view that the Treaty for serious reasons. automatically replaced the establishment permit under national law by an Clearly the provisions of Community law 'establishment permit' derived ipso jure are only in the nature of minimum from the Treaty and that therefore only

However, the whether a Member State whose legis entry into force of the Treaty did not lation has, independently of the automatically bring about the right of requirements of Community directives, establishment; during the transitional achieved a more extensive degree of period this depended on the directives to protection of the rights of nationals of be adopted by the Council. Therefore the other Member States than is required by right of residence cannot come into these provisions, may reverse this state of being in advance of the creation of the affairs by making its legislation accord right of establishment.

JUDGMENT OF 8. 4. 1976 — CASE 48/75

from the Treaty. It follows that an order Treaty. to leave the country, before the issue of a (5) Under Community law, an appeal residence permit, is only valid under against an expulsion order only has Community law if it is sufficiently suspensory effect if this is so in the justified by reasons of public policy or of case of appeals available to nationals public security based upon the personal against administrative measures. conduct of the person concerned. The (6) Article 53 applies to the situation national court can be under no existing on 1 January 1958 (for the obligation to give any effect to a first new Member States 1 January 1973). order to leave the country served upon a Any Member State which recognized, person enjoying the right of residence if at that time, the distinction between this order is solely based upon his failure the forms and guarantees surrounding to register with the local administration expulsion orders according to of his place of residence. whether an establishment permit has been granted or not, may retain this (f) In conclusion the Commission con

In any event Article 53 no longer has (2) It is an individual right the exercise any practical relevance in relation to of which is not subject to the matters arising after the end of the condition of the issue of a residence transitional period. permit by the national authorities Article 4 (3) of Directive No 64/221 and which is subject to no reservation only concerns restrictions justified by other than the exceptions justified on reasons of public health. grounds of public policy, public security or public health.

With regard to the danger or threat to public policy or to question of deprivation of liberty the public health; mere minor infringe Commission emphasized that this comes ments of the law, such as the failure within the sphere not only of the right of to comply with administrative residence guaranteed by the Treaty but formalities relating to entry in the also the protection of fundamental rights

Law

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.

JUDGMENT OF 8. 4. 1976 — CASE 48/75

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.

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 première 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.

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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

JUDGMENT OF 8. 4. 1976 — CASE 48/75

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 première 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

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.

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.

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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.

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 [1973] 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.

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

so 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

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

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opportunity of appealing to the authority designated in Article 9 of Directive No 64/221 and until this authority has reached a decision.

(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.

JUDGMENT OF 8. 4. 1976 — CASE 48/75

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.

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.

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.