C-8/77

JUDGMENT OF 14. 7. 1977 - CASE 8/77

penalties for the failure to possess 4. It is for the competent authorities of such a permit. each Member State to impose 3. The force of res judicata arising from penalties where appropriate on a a prior conviction arrived at on the person subject to the provisions of basis of national provisions not in Community law who has failed to accordance with the requirements of provide himself with one of the Community law cannot justify an documents of identity referred to in increase in the penalties to be Article 3 (1) of Directive No 68/360 imposed for an infringement of the but the penalties imposed must not be provisions which a Member State has disproportionate to the nature of the adopted to secure the application of offence committed. Directive No 68/360 in its territory.

In Case 8/77

Reference to the Court under Article 177 of the EEC Treaty by the Amtsgericht (Local Court) Reutlingen (Federal Republic of Germany) for a preliminary ruling in the criminal proceedings pending before that court against

CONCETTA SAGULO, GENNARO BRENCA and ADDELMADJID BAKHOUCHE, residing in Reutlingen,

on the interpretation of Articles 7 and 48 of the EEC Treaty relating respectively to the prohibition of discrimination on grounds of nationality and freedom of movement for workers and on the interpretation of Article 4 of Council 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,

JUDGMENT

Facts and issues

JUDGMENT OF 14. 7. 1977 - CASE 8/77

valid can be sentenced under Article 5 year had been fined for an offence of the Ausländergesetz for residence against the Ausländergesetz com­ or entry without a valid residence mitted intentionally because he had permit, or does such a sentence resided in the territory of the Federal contravene the EEC Treaty? Republic without a residence permit 2. Is the EEC Treaty contravened if an is sentenced to imprisonment for a alien directly entitled under Article 48 similar offence after the judgment for of the EEC Treaty and the the previous offence has become abovementioned Council Directive is absolute?

issued only with a residence permit under Article 5 of the Ausländergesetz The order of the Amtsgericht Reutlingen with the possible adverse effects of was registered at the Court on 18 January Article 47 of that Law? 1977.

SAGULO, BRENCA AND BAKHOUCHE

The concept of residence expressly provides that persons entitled permit is ambiguous: it may stand both to freedom of movement under Article 1 for the mere attestation of an existing thereof are permitted entry and require right of residence and for the right itself. no residence permit. The provisions of this law as a lex specialis have For the application of national provisions precedence over the Ausländergesetz. which treat the residence permit as an Entry without a residence permit by attestation, that is, a means of proof of an those entitled under Article 48 of the existing right, its assimilation to the EEC Treaty is therefore not punishable residence permit referred to in Article 4 under the national law of the Federal of Directive No 68/360 does not appear Republic. to be excluded.

capable of giving rise to the penal provisions governing the residence consequences of the second permit as a substantive right to residence subparagraph of Article 47 (1) of the cannot be assimilated to the residence Ausländergesetz; the answer to this document in the directive. In this respect question depends on the legal nature of there can be assimilation only at the this residence permit. level of the right of residence itself It follows from the judgment of the arising from Article 48 of the EEC Court of 8 April 1976 (Case 48/75, Royer Treaty; the question then would not be [1976] ECR 497) that freedom of the absence or expiry of validity of the movement arises directly from Article 48 document but the absence or cessation of of the EEC Treaty and the provisions the preconditions for the right of adopted for its implementation; the issue freedom of movement itself. of a residence permit does not give rise to rights but is of a declaratory nature. Neither the wording nor the objective of On the other hand the residence permit the second subparagraph of Article 47 (1) provided generally for aliens by Article 2 of the Ausländergesetz nor the penalties (1) of the German Ausländergesetz does provided for in the event of its give rise to legal rights. Thus whereas the infringement enable it to be clearly right to residence under Article 48 of the stated whether this provision is in fact EEC Treaty arises independently of the applicable in the event of the absence or residence permit provided for in Article expiry of validity of a residence permit 4 of Directive No 68/360 and continues under Article 4 of Directive No 68/360; in spite of such a permit losing its at most it may be assumed from the validity the right of residence under relationship existing between Article 47 Article 2 (1) of the Ausländergesetz has and the other provisions of the

Ausländergesetz that it concerns a permit Gesetz über Einreise und Aufenthalt von conceived as a substantive right. Staatsangehorigen der Mitgliedstaaten der Europäischen Wirtschaftsgemeinschaft is Subject to the reservations set out above an offence punishable by imprisonment it may be stated that the residence or fine under the first and second permit referred to in Article 4 of subparagraphs of Article 47 (1) whereas Directive No 68/360 cannot be non-possession of a valid identity card by assimilated to the general residence nationals is simply a minor offence permit referred to by the Aus­ punishable by a fine the amount of ländergesetz. which is within the discretion of the authorities under Article 7 of the Gesetz Second question über Ordnungswidrigkeiten (Law on Minor Offences) of 25 March 1952 If the penal provision in the second (Bundesgesetzblatt 1952 I, p. 177). subparagraph of Article 47 (1) of the Ausländergesetz refers to the substantive The obligation in respect of identity right of residence its application cannot cards for aliens who are entitled to depend on the kind of residence permit freedom of movement under Article 48 — that is to say, under Directive No of the EEC Treaty cannot be judged 68/360 or the national law — decided differently from that of nationals. upon by the authorities responsible for Community law does not prevent the aliens: the mere issue of a general Member States from making special residence permit under Article 2 (1) of police regulations regarding the entry the Ausländergesetz cannot affect the and residence of such aliens and substantive legal position of an alien providing the sanctions necessary for directly entitled under Article 48 of the their implementation. Such sanctions EEC Treaty. If on the other hand the must however be appropriate and must second subparagraph of Article 47 (1) of not be disproportionate to the the Ausländergesetz relates to the permit seriousness of the act; otherwise they as an attestation then the penalty in the would be a limitation on freedom of event of the absence or expiry of validity movement. They must moreover have of either permit would be applicable. regard to the principle of equal treatment of nationals and aliens and the sanctions In any event the authorities responsible must be comparable with those imposed for aliens are obliged, on issuing the on nationals for acts of a comparable attestation of the right of residence of nature.

serious offence. In particular deprivation relation to control of aliens in the of liberty and the imposition of a fine event of the lack or expiry of the appropriate to a serious offence would be substantive right of residence are quite disproportionate to the gravity of therefore not applicable when an alien such an infringement of formalities in possessing an entitlement under respect of control of aliens; threats of Article 48 of the EEC Treaty has no such sanctions would constitute a direct residence permit or it has expired. obstacle to the freedom of movement 2. Member States are obliged to issue to guaranteed by Community law. aliens entitled under Article 48 of the EEC Treaty a document with regard The same considerations must apply to to their right of residence complying the punishable nature of the failure to with the provisions of Council possess any, or any valid, residence Directive No 68/360. permit. Having regard to the purely 3. Regulations of Member States for the declaratory nature of the residence control of aliens infringe the permit for aliens who have this right prohibition on discrimination under Article 48 of the Treaty, failure to contained in Article 7 of the EEC obtain this document does not constitute Treaty where and so far as they make a more serious criminal offence than an infringement of the obligation to disregard of the obligation to have an possess an identity card on the part of identity card. aliens entitled under Article 48 of the EEC Treaty punishable as a serious An alien who has originally had a right offence by imprisonment or fine of entry and residence under Article 48 whereas the same infringement on the of the Treaty and who has lost this right part of nationals is punishable as a is no longer protected by the provisions minor offence subject to a fine of Community law as from the time imposed at the discretion of the when the conditions of Article 48 are no administrative authorities. Moreover longer fulfilled; Member States are the treatment of such infringements therefore not prevented from applying as serious criminal offences is a direct their general regulations for the control obstacle, in view of its of aliens in respect of acts subseqent to disproportionate severity, to the that date. freedom of movement guaranteed by Article 48 et seq. of the EEC Treaty. Fourth question The same applies to sanctions laid The observations made in respect of the down by the law of Member States for third question apply equally to the the control of aliens with respect to fourth. It is necessary to stress that a non-possession or expiry of validity of prior conviction contrary to Community the residence permit. law cannot have any effect on the assessment of the same act in the event III — Oral procedure of further proceedings. The Commission, represented by its In conclusion the Commission considers Legal Adviser, Norbert Koch, submitted that the questions put to the Court oral observations and replied to a should be answered as follows: question put by the Court at the hearing 1. The right or residence under Article on 24 May 1977. 48 of the EEC Treaty and the provisions implementing it arises The Advocate General delivered his without the issue of a residence opinion at the hearing on 14 June 1977.

— Can the special residence document which has declaratory effect and is referred to in Article 4 of Council Directive 68/360 issued as proof of a right of residence for aliens entitled thereto by virtue of Article 48 et seq. of the EEC Treaty be treated as being on all fours for the purposes of administrative and criminal law with the residence permit issued under the German Ausländergesetz with the result that such aliens who do not hold the document authorizing residence under the first or second subparagraph of Article 47 (1) of the Ausländergesetz or who hold such a document which has ceased to be valid can be sentenced under Article 5

of the Ausländergesetz for residence or entry without a valid residence permit, or does such a sentence contravene the EEC Treaty?

— Is the EEC Treaty contravened if an alien directly entitled under Article 48 of the EEC Treaty and the abovementioned Council Directive is issued

SAGULO, BRENCA AND BAKHOUCHE

only with a residence permit under Article 5 of the Ausländergesetz with the possible adverse effects of Article 47 of that Law?

— Is the EEC Treaty contravened if an alien to whom Article 48 of the EEC Treaty applies who in the previous year had been fined for an offence against the Ausländergesetz committed intentionally because he had resided in the territory of the Federal Republic without a residence permit is sentenced to imprisonment for a similar offence after the judgment for the previous offence has become absolute?

5 If a Member State executes the directive on the basis of its general regulations on the legal status of aliens, it must naturally not adopt administrative or judicial measures which would have the effect of limiting the full exercise of the rights which the Community law guarantees to the nationals of other Member States. In particular it would be incompatible with Community law for a general residence permit to be required or issued having a different scope from the proof of the right of residence by the issue of the special 'Residence Permit' provided for in Article 4 (2) of Directive No 68/360.

6 The imposition of penalties or other coercive measures is therefore ruled out in so far as a person protected by the provisions of Community law does not

JUDGMENT OF 14. 7. 1977 - CASE 8/77

comply with national provisions which prescribe for such a person possession of a general residence permit instead of the document provided for in Directive No 68/360, since the national authorities should not impose penalties for disregard of a provision which is incompatible with Community law. On the other hand Community law does not preclude the appropriate punishment for infringement by the person concerned of national provisions adopted in conformity with Directive No 68/360.

7 The same applies to the question whether the repeated disregard of provisions which a Member State has adopted in execution of Directive No 68/360 can where appropriate justify increasing the penalties imposed. Community law does not prevent such an increase in penalties which is consistent with general principles of penal law. However this does not affect the obligation of the court to ascertain whether the conditions for such an increase in penalties are fulfilled where there has been a prior conviction on the basis of legal provisions the application of which was not justified under Community law. Even if the force of res judicata does not allow such a prior conviction to be completely nullified its effect cannot be extended in such a way that it is regarded as an aggravating circumstance in connexion with a subsequent conviction which is justified under Community law.

an alien, who under Article 48 of the EEC Treaty or under one of the provisions made in implementation thereof is or originally was entitled to reside in or to enter the Federal Republic of Germany for the purposes set out therein and whose national passport or document in lieu thereof required under Article 3 of the Ausländergesetz and Article 10 of the Aufenthaltsgesetz/EWG (Law on Entry and Residence of Nationals of the Member States of the EEC) has ceased to be valid, can be sentenced within the ambit of the German Ausländergesetz under the first or second subparagraph of Article 47 (1) thereof to imprisonment for up to one year or fined up to 360 times his net daily income for an offence, whilst a German national whose identity card required under the comparable Federal or Regional Laws governing identity cards has ceased to be valid can only be fined for a minor offence (Article 47 of the Gesetz über Ordnungswidrigkeiten (Law on minor offences)) — although proceedings are not as a rule taken — up to DM 500 where the offence is committed negligently or up to DM 1 000 where it is committed intentionally?

10 This question concerns in particular the case where a person who is entitled under Community law to reside in the territory of the country in question neglects to obtain a valid identity card. Since this requirement is expressly contained in Directive No 68/360 the power of Member States to punish infringements of this duty cannot in principle be contested. The court making the reference nevertheless asks in this connexion whether it is compatible with Community law and in particular with the prohibition on discrimination in Article 7 of the Treaty to make a person who is subject to Community law liable to the relatively heavy penalties which the general law on aliens provides for such an infringement whereas a national on infringing similar legal provisions is liable only to the considerably lighter penalties which apply to minor offences.

comparison. In the absence of a criterion which in the present case might be based on the principle of national treatment contained in Article 7 of the Treaty it is nevertheless to be observed that although Member States are entitled to impose reasonable penalties for infringement by persons subject to Community law of the obligation to obtain a valid identity card or passport, such penalties should by no means be so severe as to cause an obstacle to the freedom of entry and residence provided for in the Treaty. To this extent it cannot be ruled out that the penalties prescribed in general provisions of laws relating to aliens, having regard to the objective of such provisions, are not compatible with the requirements of Community law which is based on the freedom of movement of persons and, apart from certain exceptions, on the general application of the principle of equal treatment with nationals. If a Member State has not adapted its legal provisions to the requirements of Community law in this sphere it is the task for the national court to use its judicial discretion to impose a punishment appropriate to the character and objective of the provisions of Community law the observance of which the penalty is intended to safeguard.

13 The answer to the question raised must therefore be that it is for the competent authorities of each Member State to impose penalties where appropriate on a person subject to the provisions of Community law who has failed to provide himself with one of the documents of identity referred to in Article 3 (1) of Directive No 68/360 but that the penalties imposed must not be disproportionate to the nature of the offence committed.

THE COURT

in answer to the questions referred to it by order of the Amtsgericht Reutlingen on 13 January 1977 hereby rules:

1. The issue of the special residence document provided for in Article 4 of Council 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 has only a declaratory effect and for aliens to whom Article 48 of the Treaty or parallel provisions give rights, it cannot be assimilated to a residence permit such as is prescribed for aliens in general, in connexion with the issue of which the national authorities have a discretion.

2. A Member State may not require from a person enjoying the protection of Community law that he should possess a general residence permit instead of the document provided for in Article 4 (2) of Directive No 68/360 in conjunction with the Annex thereto nor may it impose penalties for the failure to possess such a permit.

3. The force of res judicata arising from a prior conviction arrived at on the basis of national provisions not in accordance with the requirements of Community law cannot justify an increase in the penalties to be imposed for an infringement of the provisions which a Member State has adopted to secure the application of Directive No 68/360 in its territory.

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 14 JUNE 1977 <apnote>1</apnote>

Mr President, on Concetta Sagulo, an Italian national Members of the Court, employed as a bookbinder, for infringing the second subparagraph of Article 47 (1) I — The reference for a preliminary of the Ausländergesetz in that from 24 ruling with which my opinion today is February to 4 September 1975 she had concerned relates to three independent resided in the Federal Republic of criminal proceedings pending before the Germany without a passport and without Amtsgericht Reutlingen and concerned a residence permit. On 28 November with the interpretation of the German 1975 Mrs Sagulo appealed against this Ausländergesetz (Aliens Law) of 28 April conviction. 1965 and in particular with the application of the penal provisions of 2. On 25 November 1976 the Amts­ Article 47 of that law to nationals of the gericht Reutlingen on application of the Member States of the Community. The Staatsanwaltschaft of 22 November 1976 facts of the three cases are as follows: imposed a fine of DM 100 plus costs of the proceedings and execution on 1. On 21 November 1975 the Amts­ Gennaro Brenca, an Italian worker, for gericht Reutlingen on the application of infringement of the second subparagraph the Staatsanwaltschaft (Public of Article 47 (1) of the Ausländergesetz Prosecutor's Office) of 12 November in that from '30 February' to 16 June 1975 imposed a fine of DM 100 plus 1976 he had resided in the Federal costs of the proceedings and execution Republic of Germany without a passport