C-30/77

Regina

and

Pierre Bouchereau

on the interpretation of Article 3 of Council Directive No 64/221/EEC of 25

February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117),

THE COURT

Facts and issues

The judgment referring the case to the commendation being persuasive but Court and the written observations not binding on the executive "measure"

submitted under Article 20 of the authority) constitutes a

Protocol on the Statute of the Court of within the of Article 3 (1) meaning Justice of the EEC may be summarized and (2) of Directive No 64/221/EEC. as follows: 2. Whether the wording of Article 3 (2) of Directive No 64/221/EEC, namely that previous criminal convictions I — Facts and procedure "in themselves"

shall not constitute

grounds for the taking of measures 1. On 9 June 1976 a worker of French based on public policy or public nationality was brought before the Magistrates' security means that previous criminal Marlborough Street Court on convictions are solely relevant in so a charge of unlawful possession of drugs. 7 far as they manifest a present or On January 1976 another London future propensity to act in a manner court had found the same person guilty contrary to public policy or public for the first time of a similar offence.

law before a recommendation for peace or order is threatened; or deportation may be made written notice (b) in a narrower sense in which is

has to be served on the defendant incorporated the concept of some

informing him of rights attaching to threatened breach of public peace, patrial status. At the end of the order or security; or

proceedings which followed notification (c) in some other wider sense? the parties to the main action raised As the court did not consider itself certain questions of interpretation of competent to grant legal aid in the Community law which led the proceedings for a preliminary ruling Marlborough Street Court to ask the before the Court of Justice at Luxem­ Court of Justice to give a preliminary bourg, the defendant lodged an appeal ruling on the following questions: against the order for of 20 reference 1. whether a recommendation for November 1976. deportation made by a national court of a Member State to the executive The appeal was heard by the Divisional State (such Court which, 17 1977, authority of that re­ on January ruled

JUDGMENT OF 27. 10. 1977 - CASE 30/77

that the power to grant legal aid also referred to above to the expressions

Court Registry on 2 March 1977. EEC Treaty in a public law context and therefore may not be interpreted as

The Commission of the European an almost unlimited discretion. granting Communities, the Government of the Furthermore, it is difficult to reconcile

United Kingdom, the Metropolitan such an interpretation Articles 8, 9, with

Police and the defendant submitted 10 and 11 of the Convention for the written observations in accordance with Protection of Human Rights and

Article 20 of the Protocol on the Statute Fundamental Freedoms signed in Rome of the Court of Justice of the EEC. on 4 November 1950 and with Article 2 of Protocol No 4 on the same

Upon hearing the report of the Convention, signed in Strasbourg on 16 Judge-Rapporteur and the views of the September 1963, which provide that no

of the of of concept of

the EEC greater precision than that which can, at first sight, be readily deduced from the

A Observations of the Commission English 'public (Case policy'

— phrase

41/74, Van Duyn v Home Office, The Commission sets out, first of all, the judgment of 4 December 1974 [1974] 2 provisions which, within the framework ECR 1337; Case 67/74, Bonsignore v of Community law, attach limitations to Oberstadtdirektor der Stadt Köln, the discretionary powers of Member judgment of 26 February 1975 [1975] States as regards measures justified on the ECR 297; Case 36/75, Rutili v Minister grounds of public policy, public security for the Interior, judgment of 28 October and public health. Those provisions are 1975 [1975] ECR 1219; Case 48/75, Article 48 (3) of the EEC Treaty, Council Royer, judgment of 8 April 1976 [1976] Directive No 64/221/EEC of 25 February ECR 497). 1964 (OJ, English Special Edition 1963-1964, p. 117) and Council Directive The first question

No 72/194/EEC of 18 May 1972 ex­

word 'measures', which would leave public policy must be based on the

outside the scope of the directive personal conduct of the individual repressive national practices capable of concerned, the Commission concludes

forming restrictions on the free that previous criminal convictions can

movement of persons. A comparative and only be relevant in so far as they provide teleological interpretation of Article 3 (1) supplementary proof that the personal

and (2) of Directive No 64/221/EEC conduct of an individual constitutes a

confirms the wide interpretation which grave and existing danger to public

The 'measure However, Commission expulsion'

concept of thus the refers to

includes Directive No de­ not only the power of the 64/221/EEC, which

executive to deport a national of another fines the scope of the concept of public

Member State but also all the steps in the policy, and notes that drug addiction

exercise of such power and, in particular, appears in the exhaustive list of diseases a recommendation made by a court, which, under Article 4 of that directive, where such recommendation is a justify refusal of entry into a territory or pre-condition of the exercise of that refusal to issue a first residence permit

From the emphasis placed in the mentioned judgments in the Van Duyn judgment in the Bonsignore case (67/74) and Rutili cases, as well as from the and in the opinion of the Advocate opinion of the Advocate-General in the

General in the Royer case (48/75 [1976] Bonsignore case, that the concept of

ECR 526) on the fact that measures public policy in Articles 48 and 56 of the 'restricted'

taken in respect of aliens on grounds of EEC Treaty is a concept

JUDGMENT OF 27. 10. 1977 - CASE 30/77

which excludes those areas of public notification to the Secretary of State that foreign policy in which the exercise of discretion a particular national who is by Member States is excluded by specific capable of being deported has been provisions of Community law, convicted of an offence punishable with

should that words examined and that any subsequent in Article 48 (3) of the EEC Treaty are to decision which restricts the freedom of be interpreted in the narrower sense in movement of the person concerned is which is incorporated the concept that only taken on the basis of the personal the personal conduct of the individual 'threat' conduct resulting in the conviction. The concerned constitutes a of a argument that such personal conduct is serious breach of public peace, order or only relevant in so far as it reveals a safety. tendency to act in the future in a manner contrary to public policy or public B — Observations of the Metropolitan security would result in preventing a Police Member State from deporting a worker who is a national of another Member The Solicitor for the Metropolitan Police State and who has been convicted of the points out that although, in England and most heinous breach of public policy or Wales, prosecutions are brought in public security as long as it has not been the name of the Sovereign as the re­

shown that the individual concerned may presentative of the the insti­ public, commit a future breach of public policy tution and conduct of such prosecutions or public security. That argument is a is usually undertaken by the police. Thus, fortiori unacceptable in the light of the in the present case, the proceedings are fact that a person who has not previously brought by the Commissioner of the been convicted of a criminal offence but Metropolitan Police. whose personal conduct nevertheless

infringes public policy or public security The first question may be deported without, in such a case,

public security or to the criminal law but On this point the Government of the

may give it a meaning approximate to United Kingdom further states as

the concept of public good. follows: — As the Secretary of State has full C — Observations of the Government of discretion in making the final the United Kingdom decision, a mere judicial recommen­

dation for deportation does not

The first question terminate the right to remain in the

United Kingdom. The first question raises two points: — In deciding the matter the Secretary (a) Whether a judicial decision can con­ of State must take account of the 'measure'

Directive No 64/221/EEC and, in far-reaching inquiries than the courts. particular, from the first recital thereto — The Secretary of State is also in a that the concept of 'measures ... taken position to make inquiries through States'

by Member (Article 2 (1)) refers to diplomatic channels from the country provisions laid down by law, regulation of nationality of the person con­

or administrative action. There is nothing cerned.

in the directive which suggests that the

actions of the judiciary of a Member State The Government of the United are also included, in particular since the Kingdom also emphasizes that a judicial failure of a court of a Member State to recommendation is not a necessary give full effect to Article 3 (1) and (2) prerequisite for the making of a

would render that State liable to deportation order, since the Secretary of proceedings for failure to fulfil an State has power to make such an order obligation under Article 169 of the EEC on his own initiative if he deems Treaty; this would call in question the deportation to be conducive to the public

for the purposes of Article 3 (1) and (2) of Directive No 64/221/EEC. That does not The Government of the United signify, however, that a national court Kingdom observes that in its judgment may ignore the provisions of Article 3 (1) in the Bonsignore case (Case 67/74) the and (2). In the light of the above-

Court of Justice stated that 'a deportation mentioned judgments in the Van Duyn order may only be made for breaches of and Bonsignore cases there can be no the peace and public order which might doubt that the provisions of those articles be by the individual affected'

committed are directly applicable and confer rights and points out that: on nationals of Member States which — In the United Kingdom breaches of national courts must protect. the peace are exclusively criminal offences, whereas it is clear from the The second question Van Duyn case that conduct may be contrary to public policy without The Government of the United Kingdom submits that the reference to being a crime; — There may be circumstances in 'previous criminal convictions ... in which the threats to public or themselves'

in Article 3 policy (2) means that a Member State cannot deport a national of public security are not committed by the person concerned but are caused another Member State merely on the

ground that a criminal conviction exists or occasioned by his presence in the State. against him. As regards the concept of

'personal in Article 3 conduct'

his personal conduct. The nature and the constitutes a genuine and sufficient

gravity of the offence, the circumstances threat to public policy'. The reference to in which it was committed and how 'previous criminal convictions ... in

recently it has been committed, may be a themselves'

in Article 3 (1) connotes that guide to the future behaviour of the a deportation order cannot be justified individual and, in particular, to the merely on the ground that a criminal

likelihood of his committing further conviction exists against the individual offences. Although it is true that the concerned but that it emerges from the Court has stated in its judgments in the concept of 'personal conduct in Article 3 Royer and Watson cases (judgments of 8 (1) that a deportation order is only

REGINA v BOUCHEREAU

The Government of the United A recommendation for deportation is a Kingdom refers to the judgment in the formal judicial step without which, in the Van Duyn case (41/74 [1974] 2 ECR present case, the executive would have no

1351) and submits that in relation to power to deport the defendant It is matters such as drugs 'the particular 'measure'. therefore quite clearly a circumstances ... might ... vary from one country to another', with the result The second question that what constitutes a serious offence in one Member State may be regarded only Previous criminal convictions are solely as a minor offence in another. In that relevant in so far as they manifest a respect the Member States have an area present or future propensity to act in a of discretion when invoking the concept

of public policy. manner contrary to public policy or public security. The criminal activity of an individual is one aspect of his It further appears from the Van Duyn personal conduct within the meaning of case that the concept of 'public policy'

Article 3 (1) of Directive No must be understood in the wide sense as 64/221/EEC, but if the fact of a criminal including measures adopted to counter­

conviction, without any likelihood of act activities which are merely socially present future propensity to act again or harmful without amounting to an actual in a harmful manner, were sufficient to breach of public peace, order or security. justify deportation the effect would be to use public policy for the punishment of The Government of the United criminals rather than for the protection

threatened breach of public peace, order observations at the hearing on 5 July or security. That emerges from the 1977. case-law of the Court on the strict

interpretation which must be given to The Advocate General delivered his restrictions on the principle of the free opinion at the hearing on 28 September movement of persons. 1977.

Decision

i By order of 20 November 1976, received at the Court on 2 March 1977, the Magistrates'

Marlborough Street Court, London, referred to the Court of

Justice three questions concerning the interpretation of Article 48 of the

Magistrates'

♦ The Marlborough Street Court was minded to make a

recommendation for deportation to the Secretary of State pursuant to its powers under section 6 (1) of the Immigration Act 1971 and the appropriate

notice was served on the defendant, who maintained, however, that Article 48 of the EEC Treaty and the provisions of Directive No 64/221/EEC prevented such a recommendation from being made in that instance.

REGINA v BOUCHEREAU

s As the national court considered that the action raised questions concerning the interpretation of Community law it referred the matter to the Court of Justice under Article 177 of the Treaty.

deportation of a national of another Member State, such recommendation not

being binding on that authority, must, when it does so, take into account the limitations resulting from the Treaty and from Directive No 64/221/EEC on the exercise of the powers which, in that area, are reserved to the Member States.

8 According to the observations submitted by the Government of the United Kingdom in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, the question referred to the Court raises two 'measure'

separate problems: whether a judicial decision can constitute a for the purposes of the directive and, if the answer is in the affirmative, whether a 'recommendation'

mere by a national court can constitute a measure for the purposes of that same directive.

(a) As regards the first point

conduct of the individual concerned and previous criminal convictions shall

not in themselves constitute grounds for the taking of such measures.

11 Although the Government of the United Kingdom declares that it accepts

unreservedly that paragraphs (1) and (2) of Article 3 are directly applicable and confer rights on nationals of Member States to which the national courts must have regard, with the result that it is not open to a court of a Member State to ignore those provisions on any matter coming before the court to which they

are relevant, it submits that a judicial decision of a national court cannot 'measure'

constitute a within the meaning of the said Article 3.

14 The different language versions of a Community text must be given a

uniform interpretation and hence in the case of divergence between the

versions the provision in question must be interpreted by reference to the

purpose and general scheme of the rules of which it forms a part.

15 By coordinating national rules on the control of aliens, to the extent to which they concern the nationals of other Member States, Directive No 64/221/EEC seeks to protect such nationals from any exercise of the powers resulting from the exception relating to limitations justified on grounds of public policy, public security or public health, which might go beyond the requirements

justifying an exception to the basic principle of free movement of persons.

national of another Member State.

is When making such a recommendation, therefore, such a court must ensure that the directive is correctly applied and must take account of the limits

which it imposes on the action of the authorities in the Member States.

19 That finding is, moreover, in line with the point of view of the Government of the United Kingdom which 'is not suggesting that it would be open to a

court of a Member State to ignore the provisions of Article 3 (1) and (2) on coming before but on relevant'

any matter the court to which the articles are

64/221/EEC, and that only the subsequent decision of the Secretary of State can amount to such a measure.

'measure'

21 For the purposes of the directive, a is any action which affects the right of persons coming within the field of application of Article 48 to enter

and reside freely in the Member States under the same conditions as the

nationals of the host State.

22 Within the context of the procedure laid down by section 3 (6) of the

24 Such a recommendation therefore affects the right of free movement and

constitutes a measure within the meaning of Article 3 of the directive.

The second question

The 'whether (2) of Directive 25 second question asks the wording of Article 3 No 64/221/EEC, namely that previous criminal convictions shall not 'in themselves'

constitute grounds for the taking of measures based on public

policy or public security means that previous criminal convictions are solely relevant in so far as they manifest a present or future propensity to act in a manner contrary to public policy or public security; alternatively, the

public policy or public or, on the other

for the prosecution sought to argue, although 'the court cannot make a

recommendation for deportation on grounds of public policy based on the

fact alone of a previous it 'is entitled to take into account the conviction'

past

conduct of the defendant which resulted in the previous conviction'.

are evidence of personal conduct constituting a present threat to the

requirements of public policy.

29 Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the

future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.

so It is for the authorities and, where appropriate, for the national courts, to

consider that question in each individual case in the light of the particular

referred to in Article 48.

33 In its judgment of 4 December 1974 (Case 41/74, Van Duyn v Home Office,

[1974] ECR 1337, at p. 1350) the Court emphasized that the concept of public policy in the context of the Community and where, in particular, it is used as a justification for derogating from the fundamental principle of freedom of

movement for workers, must be interpreted strictly, so that its scope cannot

be determined unilaterally by each Member State without being subject to control by the institutions of the Community.

34 Nevertheless, it is stated in the same judgment that the particular

policy affecting one of the fundamental interests of society.

Costs

36 The costs incurred by the Government of the United Kingdom and the

Commission of the European Communities, which have submitted

observations to the Court, are not recoverable.

37 As these proceedings are, in so far as the parties to the main action are

(1) Any action affecting the right of persons coming within the field of application of Article 48 of the Treaty to enter and reside freely in the Member States under the same conditions 'measure' as the nationals of the host State constitutes a for the purposes of Article 3 (1) and (2) of Directive No 64/221/EEC. That concept includes the action of a court

which is required by the law to recommend in certain cases the deportation of a national of another Member State, where such recommendation constitutes a necessary prerequisite for a decision to make a deportation order.

REGINA v BOUCHER­ EAU

(2) Article 3 (2) of Directive No 64/221/EEC, according to which

previous criminal convictions do not in themselves constitute

grounds for the imposition of the restrictions on free

the law involves, of a genuine and sufficiently serious threat

affecting one of the fundamental interests of society.

Kutscher Sørensen Bosco Donner Mertens de Wilmars

Pescatore Mackenzie Stuart O'Keeffe Touffait

Delivered in open court in Luxembourg on 27 October 1977.

A. Van Houtte H. Kutscher