C-118/75

2. Free movement of persons — National of a Member State — Movement into another Member State and stay in that State — Administrative formalities — Acceptability — Conditions — Failure to observe such formalities — Penalties — Limits

(EEC Treaty, Article 7, Article 48)

1. Articles 48 to 66 of the Treaty and the must inform the said authorites of the measures adopted by the Community identity of such foreign nationals are in application thereof implement a in principle compatible with the fundamental principle of the Treaty, provisions in question provided, first, confer on persons whom they concern that the period fixed for the discharge individual rights which the national of the said obligations is reasonable courts must protect and take and, secondly, that the penalties precedence over any national rule attaching to a failure to discharge which might conflict with them. them are not disproportionate to the 2. National regulations which require gravity of the offence and do not nationals of other Member States who include deportation. benefit from the provisions of Articles In so far as such rules do not entail 48 to 66 of the EEC Treaty to report restrictions on freedom of movement to the authorities of that State and for persons they do not constitute prescribe that residents who provide discrimination prohibited under accommodation for foreign nationals Article 7 of the Treaty.

In Case 118/75

Reference to the Court under Article 177 of the EEC Treaty by the Pretura di Milano, for a preliminary ruling in the criminal proceedings pending before that court against

composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, J. Mertens de Wilmars, P. Pescatore, M. SØrensen and Lord Mackenzie Stuart, Judges,

Advocate-General: A. Trabucchi

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

he is staying in order to notify his Failure to observe the terms of the presence and to make a declaration of preceding provisions entails the residence'. imposition of the penalties provided In the case of failure to discharge this for in Article 1, that is, detention for obligation, the penalty provided for is up to six months, to which may be a maximum of three month's added a fine of up to Lit. 240 000.' detention or a maximum fine of Lit. 80 000 (Article 17 TULPS in 2. By order of 18 November 1975, conjunction with Article 3 of Law No received at the Court Registry on 1 603 of 12.7.1961, Gazzetta Ufficiale December 1975, the Pretura di Milano No 181 of 24.7.1961, p. 2828). In decided to refer to the Court the addition, a foreign national who is following questions, which had been set accused of such an offence may be out by the accused in their statement of deported from the territory of the defence and which it has adopted: State (Article 150 (4) TULPS); for the (a) Do the prohibition of discrimination foreign national the principal result between nationals of the Member of such deportation is a prohibition States of the Community and their on entry into Italy without the special freedom of movement, residence and permission of the Minister for the establishment in the Member States Interior (Article 252 (1)). of the Community constitute In pursuance, in particular, of certain fundamental principles which the Council Directives, the Italian Court will enforce while protecting authorities have modified Article 142 the rights conferred upon private (1) TULPS so that at present the parties thereunder? obligation set out therein is no longer (b) Do these fundamental principles imposed on workers who are include those which are common to nationals of the other Member States the Member States, in particular those and who are working as employed set out and protected under the persons for a period of more than European Convention on Human three months. In all other cases, Rights, especially the right to privacy however, the provision is unchanged (Article 8 of the Convention) the (cf. Articles 1 to 3 of Decree No 1656 importance of which becomes clear of the President of the Republic of when it is viewed in conjunction with 30.12.1965, Gazzeta Ufficiale No 55 freedom of movement, residence and of 3.3.1966, p. 990; Article 1 of establishment, and [do they also Decree No 1225 of the President of include] the obligation upon a the Republic of 29.12.1969, Gazzetta foreign national or upon others on Ufficiale No 75 of 25 March 1970, p. his behalf to report or make his 1882). presence, for whatever reason, on the — Article 2 of Decree-Law No 50 is territory of the State known to the worded as follows: competent authorities. Any person who provides board and (c) In case of conflict, do those funda­ lodging, on whatever basis, to a mental principles, as part of Com­ foreign national or a stateless person, munity law, prevail over national laws?

(d) Does the obligation imposed upon a national who does not fulfil the foreign national under national law to obligation set out in Article 142 TULPS: report within three days of his entry detention for up to three months; into the territory of the State to one deportation on the basis of a mere of its authorities in order to notify his information alleging an offence, presence (or rather, 'give an account independently of conviction. Account of himself') and to make a declaration should be taken of Article 3 (1) and (2) of of residence, notwithstanding that the Council Directive No 64/221 of the foreign national is in transit and Council of 25 February 1964 'on the remains, pending departure, on the coordination of special measures territory of the State for not more concerning the movement and residence than two months: of foreign nationals which are justified (1) produce discrimination between on grounds of public policy, public nationals of Member States, security or public health' (62/221/EEC, especially if such obligation exists Official Journal, English Special Edition only in one or some of the States; 1963-1964, p. 117) according to which (2) constitute a direct or indirect 'Measures taken on grounds of public restriction of or impediment to policy or of public security shall be based the residence (and possibly also to exclusively on the personal conduct of the movement) of nationals of the individual concerned' and 'Previous Member States within the criminal convictions shall not in Community, whether in the themselves constitute grounds for the capacity of 'self-employed taking of such measures'. persons' or 'employed persons', 'persons providing services' or In accordance with Article 20 of the 'persons for whom the services are Protocol on the Statute of the Court of

stay in Italy as follows: 'Hospitality, and more specifically board and lodging [il In its statement giving the grounds for vitto e l'allogio], were offered in exchange the order, the Pretura observes, as regards for the aid and assistance which the girl question (d), that the Court may take into was to provide [within the Belmann account, as a consideration of fact, the family], in particular, by looking after a heavy penalties incurred by a foreign child who was still in infancy'.

Community law contains fundamental enjoyment of the rights conferred principles, observance of which is thereby on individuals. ensured by the Court. Those principles are expressed, in particular, in the Taken as a whole the abovementioned prohibition of discrimination set out in Community provisions lay down, for the Article 7 of the Treaty which is laid nationals of Member States to whom they down in further detail in the provisions apply, the right to enter the territory of providing for freedom of movement another Member State on presentation of (Article 48 et seq.: freedom of movement a valid passport or identity card without for workers; Article 52 et seq.: right of the need for any visa or equivalent establishment; Article 59 et seq.: freedom requirement, and to reside in that State to provide services). They are common to without being subject to any formality, the legal systems of the Member States where the period of residence does not and are protected by the European exceed three months.

States. In this instance, it is necessary to period during which the services are consider Articles 8 and 14 of the provided. Reference should, however, be Convention, as well as Article 2 of its made to Article 8 (2) of Directive No Protocol No 4. 68/360 and Article 4 (2) of Directive No 73/148. Apart from the provisions of the Treaty referred to above, the Community rules The defendants in the main action have of importance in this instance are certain provided a description and a detailed measures adopted by the Council, in criticism of the Italian legislation which particular Regulation No 1612/68 of 15 may be of interest in this instance; they October 1968 on freedom of movement

manner. Directive No 73/148 of 21 May 1973 'on the abolition of restrictions on movement and residence within the Self-employed persons and persons Community for nationals of Member providing and receiving services are in an States with regard to establishment and unfavourable position in comparison the provision of services' (OJ, L172 of with employed workers since, 28.6.1973, p. 14). The Court has found independently of the length of their on several occasions that these provisions period of residence in Italy, they remain take precedence over national rules subject to the obligations laid down in which form an obstacle to the effective Article 142 (1) TULPS.

simplified, in favour of nationals of other of the Treaty. The penalties attaching to Member States, the details which the a failure to observe Article 2 of individual must provide when he makes Decree-Law No 50 tend to dissuade a declaration of residence. In practice, Italian nationals from offering hospitality however, this is only an apparent or lodging to foreign nationals whom simplification, since the declaration of they intend to employ. residence form (modello), provided for in the abovementioned Decree, has never (c) In short, the obligations laid down been distributed to the Questura, which by the provisions of Italian law which the continues to use the old forms. defendants in the main action are alleged to have violated establish discrimination between Italian nationals and nationals (b) As regards the obligation imposed of other Member States and form an on persons who give lodging to foreign obstacle to freedom of movement and nationals or take them into their employment (Article 2 of Decree-Law residence, which is closely linked to the No 50), the requirement that it be freedom to take up and pursue activities discharged within 24 hours is extremely as a self-employed or employed person. strict and unjustified. The same applies to the penalties laid down. Furthermore, These provisions are not covered by the the provision may be criticized on the exception to the principle of the freedom ground that it is applicable, first, without of movement which is provided for, regard to the reason for the period of under Articles 48 (3), 56 and 66 of the residence and, secondly, independently Treaty, in relation to limitations justified of whether the foreign national has on the grounds of public policy. The himself reported his presence to the concept of public policy must be given a public authorities or is a national of restrictive interpretation and may only be another Member State. The provision is relied on in cases of particular gravity. even more incomprehensible since a Although the Member States are free to check is already made at the frontier, exercise a certain discretion as regards when the foreign national enters Italy. the application of these limitations, their evaluation cannot be unilateral, but is

WATSON AND BELMANN

taken account of certain fundamental law in the sense of being directly principles common to the Member applicable in Member States, except in so States, a number of which have also been far as the rights which they guarantee sanctioned by the Convention. However, have been embodied or may be implied the Court regards these principles rather in provisions of Community law. as sources of inspiration than as forming part of the corpus of Community law (cf. Any exercise of overlapping jurisdiction in particular, Judgment of 14 May 1974, by the institutions established by the Nold, Kohlen- und Baustoffgroßhand­ Convention and by the Court of Justice lung v Commission of the European of the European Communities could give Communities, Case 4/73, [1974] ECR rise to confusion and conflict. The 491). generalized and somewhat imprecise language of the Convention and of the The possible relevance of a provision of exceptions to which most of the rights the Convention to the interpretation and set out in Section I thereof are subject application of Community law should be can give rise to questions of construction assessed independently, and then only in which fall with the ultimate jurisdiction the light of the particular circumstances of the institutions created by the of each case. Certain provisions of the Convention. Similarly, it is for those Convention are so far removed from the institutions alone to make a ruling on a objectives of the Community that they national measure which is contrary to the are unlikely to play any role in a Convention but compatible with Community context. Community law.

1219) and as regards the prohibition on unless it is subject to onerous and discrimination on the grounds of unreasonable conditions or provides, in nationality (cf. Articles 7 and 48 (1) of the event of failure to comply, for the Treaty; Article 14 of the Convention). disproportionate penalties in relation to On the other hand, Community rules the gravity of the offence. At all events, a guarantee to nationals of Member States notification requirement may be justified certain fundamental rights which are not on grounds of public policy, public referred to by the Convention, that is, security or public health. freedom of movement for workers, freedom of establishment, freedom to The Italian Government expresses its provide services and the right of regret that, as the national court omitted residence (Articles 48, 52 and 59 of the to indicate clearly the reason for Miss Treaty; Directives Nos 68/360 and Watson's residence in Italy, it has given 73/148). the Court 'an irksome task which is, in many respects, unnecessary'. There is no justification for treating the principles established by the Convention, However, it appears from Question (d) or any of them, as part of Community that the individual concerned entered

JUDGMENT OF 7. 7. 1976 — CASE 118/75

Italy as a tourist. If this is correct, she rule on the interpretation of the said does not fall into any of the categories of Article 8.

177 to give a ruling 'on the interpretation States. Under the terms of Article 7 of

of provisions of international law which Decree No 1656, the decision bind Member States outside the authorizing the residence of such a framework of Community law'). national or refusing such authorization must be taken within six months of the

Having said this, it is undeniable that the declaration of residence and, meanwhile, principles of non-discrimination and of the person concerned is entitled to reside freedom of movement and residence provisionally in Italian territory. The constitute fundamental principles of the obligation to make this declaration Community, on which Community therefore affects neither the right to enter nationals may rely. The same applies to the State nor the right to reside there and the fundamental rights common to the move about freely. Moreover, it is not Member States and acknowledged by the contrary to Article 8 of the Convention European Convention on Human Rights. on Human Rights. However, as regards in particular the right to respect for private life, protected At all events, the obligation imposed on by Article 8 of the Convention and foreign nationals to report their presence referred to in Question (b) raised by the to the authorities is fully justified on Pretura of Milan, there is here no specific grounds of public policy, according to relationship with the sphere of economic the interpretation of this concept in the activity governed by the Treaty. From abovementioned directives. This is shown this point of view, and in the light of its in particular by the fact, to which judgment in Case 130/73 referred to reference has already been made, that above, the Court has no jurisdiction to that obligation must be related to the

duty to issue a residence permit, which is discriminatory measure. This is the case imposed on the authorities by those for example, where the different directives. treatment applied to a foreign national as compared with a national of the State The Commission begins its observations concerned corresponds to a real with a detailed description of the Italian difference in their factual situation. It legislation. follows that, as Community measures gradually bring the position of the It considers that Miss Watson came to foreigner into line with that of the Italy as a tourist. She must, therefore, be national, the possibility of providing for regarded as a person receiving services discriminatory treatment becomes who is covered by Articles 59, et seq. of progressively more restricted.

As they are still bound to respect the limits such, it has been authorized by Article 8 imposed by the Treaty, in particular the (2) of Directive No 69/360 and by Article fundamental principles of the Com 4 (2) of Directive No 73/148 for those munity system. Therefore, a measure cases in which it is unnecessary to issue a which, although adopted on grounds of residence permit. public policy, infringes other general principles of Community law or conflicts However, it must be remembered that a with the fundamental rights of nationals check is already carried out at the of the Member States, is not 'justified' frontier, that in Italy, foreign nationals, within the meaning of Article 56. like Italian nationals, are required to ask for their names to be added to the In general terms, it is not sufficient that a register of local residents of the measure is justified on grounds of public commune in which they have established policy; it must, in addition, be their place of residence and, finally, that impossible for public policy to be under Italian legislation hotel-keepers safeguarded effectively other than by a and any persons who offer lodging in

provision contained in Article 142 (1) TULPS is only of very limited use and, Following its ratification by the Member therefore, appears to be oppressive and States, the Convention is now legally excessively severe, particularly if one binding upon the Community, both in considers the brevity of the period laid relation to measures adopted by down for this purpose and the severity of Community institutions and each time the penalty attaching to a failure to that a provision of Community law is invoked. discharge the obligation. This penalty is even less justified in the light of the fact Finally, therefore, the Commission that Italian nationals only risk a fine of proposes that an affirmative reply be Lit 2 000 to Lit 10 000 for a failure to given to Questions (a), (b) and (c) and that discharge their obligation to add their in addition it be stated that: names to the register of local residents. Articles 48 (3) and 56 (1) of the EEC In short, therefore, the provision in Treaty must be interpreted as meaning dispute violates the fundamental that the following cannot be regarded as principle of proportionality, which forms being justified on grounds of public part of the common legal heritage of the policy and public security: Member States and is set out in Article (1) National measures which oblige 56 (1) of the Treaty, which only allows nationals of other Member States to for exceptions which are 'justified' on notify their presence to the grounds of public policy, public security authorities, where that obligation: and public health. — must be discharged within an unreasonably short period from (b) As regards the obligation contained the time of entry into the territory in Article 2 of Decree No 50, it is only of the State; imposed in cases in which hospitality is — is in addition to other obligations offered to a foreign national. It thus imposed on the said foreign creates discrimination between Italian nationals or on other persons citizens and nationals of other Member which are intended to ensure that States, to the detriment of the latter. a check is kept on the population; and

On that occasion, the following Furthermore, the British Government statements were made in particular: points out that as regards the question of the extent to which the Court must The Italian and British Governments protect the fundamental rights referred to disagree with the argument put forward in the European Convention on Human by the Commission, that any citizen of a Rights, a distinction must be made Member State moving within the according to whether the action in territory of another Member State, even question is taken by the Community or as a tourist, is protected by the Treaty as by the Member States. In this respect, the a person for whom services are intended. latter, who have a certain area of Taken as a whole, their arguments discretion in connexion with the maintain that although Article 59 of the implementation of the Convention, are Treaty also refers to the person for whom only liable to the institutions provided the services are intended, this is not for for thereby. the purpose for protecting that person as such, but in order to enable those who The Advocate-General delivered his provide the services to be protected, since opinion at the hearing on 2 June 1976.

Law

1 By order of 18 November 1975 received at the Court Registry on 1 December 1975 the Pretura, Milan, referred to the Court under Article 177 of the EEC Treaty a series of questions dealing in particular with the interpretation of Articles 7 and 48 to 66 of that Treaty.

2 These questions have been raised within the context of criminal proceedings against, on the one hand, a British national who spent several months in Italy and, on the other, an Italian national who gave her accommodation.

6 They also ask whether the above mentioned Community rules constitute fundamental principles which create individual rights and take precedence over national rules to the contrary.

7 1. It is appropriate to deal with these questions as a whole.

8 Without giving the reason for the temporary residence in Italy of the defendant in the main action or defining her position in relation to the provisions of Community law which might be applicable to her the national court referred to the first three chapters of Title III of Part Two of the Treaty, which concern workers, the right of establishment and services, without making any distinction between those chapters.

9 Nevertheless comparison of these different provisions shows that, to the extent to which they may be applied in cases such as the present, they are based on the same principles both in so far as they concern the entry into

WATSON AND BELMANN

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.

14 Article 4 of Directive No 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 (loc. cit. p. 485) 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.

JUDGMENT OF 7. 7. 1976 — CASE 118/75

15 Further, the preamble to Directive No 73/148 of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ, L 172, p. 14) 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 have 'the right of residence for the time during which the services are being provided'.

16 The provisions of the Treaty and of secondary Community law to which reference has just been made implement a fundamental principle contained in Article 3 (c) of the Treaty, which states that, for the purposes set out in Article 2, the activities of the Community shall include the abolition, as between Member States, of obstacles to freedom of movement for persons, services and capital.

These provisions take precedence over any national rule which might conflict with them.

17 By creating the principle of freedom of movement for persons and by conferring on any person falling within its ambit the right of access to the territory of the Member States, for the purposes intended by the Treaty, Community law has not excluded the power of Member States to adopt measures enabling the national authorities to have an exact knowledge of population movements affecting their territory.

21 As regards other penalties, such as fines and detention, whilst the national authorities are entitled to impose penalties in respect of a failure to comply with the terms of provisions requiring foreign nationals to notify their presence which are comparable to those attaching to infringements of provisions of equal importance by nationals, they are not justified in imposing a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of persons.

22 In so far as national rules concerning the control of foreign nationals do not involve restrictions on freedom of movement for persons and on the right, conferred by the Treaty on persons protected by Community law, to enter and reside in the territory of the Member States, the application of such legislation, where it is based upon objective factors, cannot constitute 'discrimination on grounds of nationality', prohibited under Article 7 of the Treaty.

23 Provisions which require residents of the host State to inform the public authorities of the identity of foreign nationals for whom they provide accommodation, and which are for the most part connected with the internal order of the State, can only be called into question from the point of view of Community law if they place an indirect restriction on freedom of movement for persons.

The foregoing observations concerning the obligations imposed on nationals of other Member States are therefore equally valid as regards the above mentioned requirement.

JUDGMENT OF 7. 7. 1976 — CASE 118/75

Costs

— require nationals of other Member States who benefit from the provisions of Articles 48 to 66 of the EEC Treaty to report to the authorities of that State,

and

— prescribe that residents who provide accommodation for such foreign nationals must inform the said authorities of the identity of such foreign nationals

are in principle compatible with the provisions in question provided, first, that the period fixed for the discharge of the said obligations is reasonable and, secondly, that the penalties attaching to a failure to discharge them are not disproportionate to the gravity of the offence and do not include deportation.

WATSON AND BELMANN

3. In so far as such rules do not entail restrictions on freedom of movement for persons, they do not constitute discrimination prohibited under Article 7 of the Treaty.

DELIVERED ON 2 JUNE 1976 1

Mr President, to determine the compatibility with Members of the Court, Community law of a single national administrative act (denial of entry, 1. On the subject of the movement of expulsion order, territorial restriction on workers, the provision of services and the freedom of residence) adopted by the right of establishment, the Court has national authorities in the case of aliens hitherto had occasion to concern itself under the wide powers of discretion with the application, in particular cases, conferred upon them by national of the clause safeguarding public policy. legislation concerning aliens. The Judgments in Cases 41/74, Van Duyn, 67/74, Bonsignore, 36/75, Rutili In the present case, on the other hand, and 48/75, Royer, laid down basic the decision which the Italian court is principles and criteria on this subject and called upon to make regarding began to outline the limits of the powers compatibility with Community law is of derogation exceptionally allowed to directly and exclusively concerned with the States in carrying out the task of national legislative acts. It must also, and safeguarding public policy on their at once, be emphasized that these acts territory. were not adopted in exercise of an exceptional power of derogation, as in In each of those cases, the references to the case of the state measures with which this Court for a preliminary ruling were the abovementioned cases were intended to enable the court of reference concerned, but were the expression of a

I — Translated from the Italian.