C-175/78
ECLI:EU:C:1979:88
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JUDGMENT OF THE COURT OF 28 MARCH 1979 <apnote>1</apnote>
Regina v Vera Ann Saunders (preliminary ruling requested by the Crown Court at Bristol)
Case 175/78
Freedom of movement for workers — Restrictions in pursuance of penal legislation — Situations domestic to a Member State — Community law — Not applicable (EEC Treaty, Art. 48)
The application by an authority or court law by reason of acts committed within of a Member State to a worker who is a the territory of that State is a wholly national of that same State of measures domestic situation which falls outside the
which deprive or restrict the freedom of scope of the rules contained in the EEC movement of the person concerned Treaty on freedom of movement for within the territory of that State as a workers.
penal measure provided for by national
In Case 175/78
REFERENCE to the Court under Article 177 of the EEC Treaty by the Crown Court at Bristol for a preliminary ruling in the action pending before that court between
REGINA
and
VERA ANN SAUNDERS on the interpretation of Article 48 of the EEC Treaty 1 — Language of the Cast : English.
JUDGMENT OF 28. 3. 1979 — CASE 175/78
THE COURT
composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges,
Advocate General : J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The order for reference and the written before which her case was brought once observations submitted under Article 20 more wished to know before giving of the Protocol on the Statute of the judgment whether its Order of 21 Court of Justice of the EEC may be December 1977 was invalid in that it was summarized as follows: in derogation of the rights conferred by Article 48 of the Treaty on freedom of movement for workers.
I — Facts and procedure The Crown Court in fact considers first that the defendant must be considered as 1. On 21 December 1977 the Crown a worker within. the meaning of the Court at Bristol, hearing criminal Treaty and secondly that its Order of 21 proceedings brought against Vera Ann December 1977 did not fall within any Saunders, a British subject, on a charge of the limitations set out in Article 48 (3) of theft to which she had pleaded guilty, of the Treaty. merely bound her over, in accordance with its powers in this connexion under 3. By Order of 31 July 1978, received section 6 (4) of the Courts Act 1971, to at the Court on 16 August 1978, the come up for judgment if called upon to Crown Court at Bristol requested the do so, it being a condition of her Court of Justice to give a preliminary recognizance — this was, moreover, in ruling on the following question: accordance with the desire which she "Whether the Order of this court made had herself expressed — that she should in the case of Vera Ann Saunders on proceed to Northern Ireland an not return to England or Wales within three years.
2. Miss Saunders broke that under taking; the Crown Court at Bristol
REGINA v SAUNDERS
21 December 1977 may constitute a dero and will not be called upon to be gation from the right given to a worker sentenced provided that, during the under Aricle 48 of the Treaty relevant period, he behaves himself and establishing the European Economic does not contravene any condition that Community, having regard in particular may be imposed. A duty to reside in a to the right specified in Article 48 (b) of part of the national territory for a the said Treaty, and the fact that she specified time is a condition frequently appears to be an English national". laid down in the case of nationals. The Government of the United Kingdom 4. The Government of the United emphasizes however that an order of this Kingdom and the Commission of the kind is not made if the offender objects European Communities submitted to the conditions laid down. It is not written observations under Article 20 of imposed on him and if he prefers not to the Protocol on the Statute of the Court consent to it voluntarily the Court of Justice of the EEC. proceeds to deal with him in the ordinary way. 5. After hearing the report of the Judge- The Government of the United Kingdom Rapporteur and the views of the once more draws attention to the fact Advocate General, the Court decided to that the above-mentioned procedure open the oral procedure without any should be distinguished from the various preparatory enquiry. procedures referred to first by section 1 and secondly by section 22 of the Powers of Criminal Courts Act 1973. II — Observations submitted The power to bind over to come up for under Article 20 of the judgment, coupled with a residential Protocol on the Statute of condition, is considered by the the Court of Justice of the Government of the United Kingdom as EEC still capable of serving a valid and useful purpose in the administration of criminal justice, inter alia in specific cases, in A — Observations submitted by the other words in the case of alien United Kingdom offenders normally resident outside the The Government of the United Kingdom territory of the State in which they have committed a criminal offence and the emphasizes first of ail that in submitting case of first offenders from rural observations pursuant to Article 20 of the Protocol on the Statute of the Court of environments who have been seduced into crime as a result of undesirable Justice of the EEC it does not intend in urban influences. any way to interfere with the course of justice but wishes to state its point of Examining the situation referred to by view on the points of principle arising the national court in its relationship to from the reference. Community law in the light of the Proceeding to a legal analysis of the effect of the Order made on 21 December 1977 by the Crown Court at Bristol, the Government of the United Kingdom observes that the power given to the court, though stemming from the common law, is expressly preserved in section 6 (4) of the Courts Act 1971. The effect of the order is that the offender is released without sentence being passed
JUDGMENT OF 28. 3. 1979 — CASE 175/78
above-mentioned considerations, the a similar kind to that which is the subject- Government of the United Kingdom, matter of the reference for a preliminary having recalled the fact that Article 48 is ruling are compatible with Article 48 of directly applicable, asks whether the the Treaty. order involved in the reference for a pre liminary ruling must be regarded as a B — Observations submitted by the "measure" for the purposes of Directive Commission of the European No 64/221/EEC as interpreted by the Communities Court of Justice in its judgment of 27 October 1977 in Case 30/77, Regina v According to the Commission the Pierre Bouchereau [1977] ECR 1999 reference to the Court for a prelin ary when the Court considered that that ruling raises two questions, in other expression extends to sentences imposed words:
by a court of a Member State. 1. Whether and to what extent, The difference between the present case Community law is concerned with the and the Bouchereau case lies in the fact free movement of workers within the that in the case at issue which is before territory of the Member State of the Crown Court at Bristol the which the worker in question is a residential condition is the result of national; consent of Miss Sanders and the 2. If so, whether and to what extent contravention by her of her undertaking derogations are permitted by does not moreover automatically involve Community law as regards the the imposition of a penalty. nationals of the Member States
Furthermore, since sentences to a term concerned from the rules which, of imprisonment imposed by the courts according to the provisions of the of the Member States are incontestably Treaty, apply to the treatment of nationals of other Member States. compatible with the right of freedom of movement, this should apply a fortiori to After recalling that the Court of Justice, lesser restrictions on the right of movement. in its judgment in the Rutili case (quoted above) had held that residential orders It follows from these considerations that based on grounds of public policy are the rules of Community law on freedom compatible with Article 48 of the Treaty of movement for workers are not provided that in applying them no applicable to a procedure such as that discrimination is made between the which forms the subject-matter of the nationals of the Member State imposing question referred to the Court of Justice them and those of the other Member for a preliminary ruling. States, the Commission emphasizes that In the alternative, if the Court considers although Community law is primarily concerned to lessen discrimination to that the rules of Community law on freedom of movement for workers are which nationals of other Member States
applicable where a person bound over may be subject in each Member State, it to come up for judgment, the has nevertheless also been relied upon in cases in which the victim of discrimi Government of the United Kingdom nation was a national of the Member claims, in the light of the judgment given by the Court of Justice on 28 October 1975 in Case 36/75, Roland Rutili v Minister for the Interior [1975] ECR 1219, that the absence of any element of discrimination based on nationality must lead to the conclusion that procedures of
REGINA v SAUNDERS
State in question. The Commission contrary to Community law unless the quotes in this respect the judgment of 26 grounds for such restriction be linked November 1975 in Case 39/75, Robert with, or related to, events localized in Gerardus Coenen and Others v The another Member State". Sociaal-Economische Raad [1975] ECR 1547 and the Knoors case (Case 115/78) and the Auer case (Case 136/78) which III — Oral procedure are at present pending. The common factor in ail these other At the hearing on 13 February 1979 the cases is however the existence of prosecution, represented by Mr P. elements which prevent a given situation Chadd Q.C. and Mr Rupert Bursell, being treated in purely national terms. Barrister, of Lincoln's Inn, London, the On the other hand, the Commission accused, represented by Mr Paul Fallon considers that in the present case the Q.C. and Mr Simon Darwall-Smith, facts do not show any element of that Barrister, of Grey's Inn, London, the type and that consequently the situation Government of the United Kingdom, does not enter within the scope of represented by Mr L. Blom-Cooper application of Community law. Q.C. of the Middle Temple, London, Therefore the further question of and Mr Peter Gibson, Barrister, of the possible derogations does not arise. Inner Temple, London, and the In conclusion, the Commission considers Commission of the European that it is necessary to reply to the Communities, represented by its Agent, question raised by the Crown Court at J. Forman, presented oral argument and Bristol "that the imposition, in appro replied to questions put by the Judges priate circumstances, of measures by a and the Advocate General. Member State restricting the right of residence of its own nationals to part The Advocate General delivered his only of the national territory is not opinion at the hearing on 8 March 1979.
Decision
1 By order of 31 July 1978, received at the Court on 16 August 1978, the Crown Court at Bristol referred to the Court of Justice under Article 177 of the EEC Treaty a question on the interpretation of Article 48 of the Treaty and in particular of Article 48 (3) (b).
2 This question has arisen within the context of criminal proceedings concerning in particular the consequences of the infringement, by a person of British nationality who had pleaded guilty to a charge of theft at a previous stage in those proceedings, of an undertaking accepted by her to proceed to Northern Ireland and not to return to England or Wales within three years.
JUDGMENT OF 28. 3. 1979 — CASE 175/78
3 The national court, on the basis that the accused was a worker within the meaning of Article 48 of the Treaty, wishes to know whether the rules of the Treaty on freedom of movement for workers prohibit measures in the nature of those by which the accused was bound.
4 For this purpose the national court asks whether "the Order of this court made in the case of Vera Ann Saunders on 21 December 1977 may constitute a derogation from the right given to a worker under Article 48 of the Treaty establishing the European Economic Community, having regard in particular to the right specified in Article 48 (b) of the said Treaty, and the fact that she appears to be an English national".
5 This question asks in substance whether the principle of the freedom of movement for workers as laid down in Article 48 of the Treaty, in particular in so far as it entails the right for a worker, subject to limitations justified inter alia on grounds of public policy and public security, to move freely within the territory of Member States so as to accept offers of employment actually made and to stay there for the purpose of employment, may be relied upon by a national of a Member State residing in that Member State for the purpose of opposing the application of measures which restrict his freedom of movement within the territory of that Member State or his freedom to establish himself in that State in any place he chooses.
6 It therefore also concerns the question whether Article 48 of the Treaty confers rights upon a person in the same situation as Miss Saunders and, if the answer is in the affirmative, what the extent of those rights is.
7 The reply to that question depends, first, on the determination of the scope of that provision in conjunction in particular with the general principle expressed in Article 7 of the Treaty.
8 Under Article 7, any discrimination on grounds of nationality is prohibited within the scope of application of the Treaty and without prejudice to any special provisions contained therein.
REGINA v SAUNDERS
9 In application of that general principle, Article 48 aims to abolish in the legislation of the Member States provisions as regards employment, remuner ation and other conditions of work and employment — including the rights and freedoms which that freedom of movement involves pursuant to Article 48 (3) — according to which a worker who is a national of another Member State is subject to more severe treatment or is placed in an unfavourable situation in law or in fact as compared with the situation of a national in the same circumstances.
10 Although the rights conferred upon workers by Article 48 may lead the Member States to amend their legislation, where necessary, even with respect to their own nationals, this provision does not however aim to restrict the power of the Member States to lay down restrictions, within their own territory, on the freedom of movement of all persons subject to their jurisdiction in implementation of domestic criminal law.
11 The provisions of the Treaty on freedom of movement for workers cannot therefore be applied to situations which are wholly internal to a Member State, in other words, where there is no factor connecting them to any of the situations envisaged by Community law.
12 The application by an authority or court of a Member State to a worker who is a national of that same State of measures which deprive or restrict the freedom of movement of that worker within the territory of that State as a penal measure provided for by national law by reason of acts committed within the territory of that State is a wholly domestic situation which falls outside the scope of the rules contained in the Treaty on freedom of movement for workers.
Costs
13 The costs incurred by the Government of the United Kingdom and the Commission of the European Communities which submitted observations to the Court are not recoverable.
14 As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.
OPINION OF MR WARNER — CASE 175/78
On those grounds,
THE COURT
in answer to the question referred to it by the Crown Court at Bristol by order of 31 July 1978 hereby rules:
The application by an authority or court of a Member State to a worker who is a national of that same State of measures which deprive or restrict the freedom of movement of the person concerned within the territory of that State as a penal measure provided for by national law by reason of acts committed within the territory of that State is a wholly domestic situation which falls outside the scope of the rules contained in the EEC Treaty on freedom of movement for workers.
Kutscher Mertens de Wilmars Mackenzie Stuart Donner Pescatore
Sørensen O'Keeffe Bosco Touffait
Delivered in open court in Luxembourg on 28 March 1979.
A. Van Houtte H. Kutscher
Registrar President
OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 8 MARCH 1979
My Lords, the Crown Court at Bristol. It raises questions as to the impact of Community This case comes to the Court by way of law, and more particularly of Article 48 a reference for a preliminary ruling by of the EEC Treaty, on a power that the