C-98/79

PECASTAING v BELGIUM

applied Article 9 in order to and that expulsion from the territory compensate for the fact that the may then be effected even before the appeals to the courts which are "competent authority" has been able available do not carry suspensory to give its opinion. effect that provision would be rendered nugatory if, always save in 6. The procedure concerning the cases of' urgency, execution of the consideration of the decision and expulsion order contemplated were concerning the opinion referred to in not suspended until that authority has Article 9 of Directive No 64/221, given its decision. It therefore follows which is intended to mitigate the from Article 9 that as soon as the effect of deficiencies in the remedies opinion in question has been obtained referred to in Article 8, is not and notified to the person concerned intended to confer upon the courts an expulsion order may be executed additional powers concerning immediately, subject always to the suspension of tne measures referred to right of that person to stay on the by the directive or to empower them territory for the time necessary to to review the urgency of an expulsion avail himself of the remedies accorded order. to him under Article 8 of the directive. The performance of these duties by the national courts is governed by 5. The first subparagraph of Article 9 (1) Article 8 of the directive. shows that determination of the The scope of that provision existence of urgency in cases which nevertheless may not be restricted by have been properly justified is a measures taken by a Member State matter for the administrative authority under Article 9.

JUDGMENT OF 5. 3. 1980 — CASE 98/79

concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health,

THE COURT

composed of: H . Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges,

Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

Royal Decree or he satisfies certain Article 3a of the Law of 1969 conditions laid down by international agreements or by regulations adopted thereunder, by Law or Royal Decree." "Refusal to issue a residence permit to a national of another Member State of the EEC and any decision expelling such an The reason given by the decision for alien from the territory before such a refusing to authorize residence was: permit is issued shall, at the request of the person concerned, be examined by the Consultative Committee . . ." "Personal conduct which renders her residence undesirable for reasons of public policy. In Belgium she has worked Mrs Pecastaing appeared before the in a bar which is suspect from the point Consultative Committee for Aliens on 14 of view of morals. Since mid-January December 1978. On the same day the Committee issued its opinion that the 1978 she has no longer had any means of refusal of the residence permit was supporting herself, the employer's certi- justified. The opinion is based on the ficate that has been submitted being following reason: considered to have been issued as a favour. In France and Germany she has been reported for prostitution." "Personal conduct which renders her residence harmful for reasons of public policy. She has worked in a bar which is The decision contained an order that she suspect from the point of view of morals. was to leave Belgian territory within 15 The employer's certificate that has been days of notification. submitted is considered to have been issued as a favour. In France and Germany she has been reported for pros- The decision was notified to her on 16 titution in 1977." May 1978 by a representative of the Mayor of Ans, near Liège, where Mrs Pecastaing had established her residence By a letter of 12 January 1979 the Aliens as from 24 February 1978. Office of the Public Security Adminis- tration asked the Mayor of Ans to inform Mrs Pecastaing of the decision to On 24 May 1978 pursuant to Article 3a uphold the refusal of the residence of the Law of 28 March 1952, as permit; the letter also called upon the amended by the Law of 1 April 1969, Mayor to withdraw the order to leave Mrs Pecastaing requested the opinion of the country which was in Mrs Pecas- the Consultative Committee for Aliens taing's possession and to replace it with provided for by Article 10 of the Law of "a new and final order to leave the 28 March 1952. Those provisions are country within fifteen days". worded as follows:

proceedings before the President of that "A decision ordering expulsion cannot court. 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 In the proceedings before the Tribunal remedies guaranteed by Articles 8 and 9 de Première Instance Mrs Pecastaing of Directive No 64/221." seeks the withdrawal of the decision refusing to authorize residence with an order to leave the country on the grounds that it is unlawful and contrary First group o/questions to Community law and claims that the Belgian State should be ordered to pay damages. A — The remedies to which the judgment applies include those provided for by Article 9 (2) of Directive No 64/221, which are laid down by Article 1 In the summary proceedings before the of the Belgian Law of 1 April 1969, President of the Tribunal de Première forming Article 3a (as amended) of the Instance, Liège, Mrs Pecastaing submits Law of 28 March 1952 on the that formal notice should be given that supervision of aliens, namely applications she contests the legality of the decision for the review of decisions refusing the in question and that the Belgian State issue of the first residence permit or should be prohibited from enforcing the decisions ordering expulsion of the order to leave the country until there has person concerned before the issue of the been a final ruling on the legality of the permit (Belgian Conseil d'État: judgment measure. 17, 722 of 18 June 1976 and judgment 18,609 of 2 December 1977; Recueil des Arrêts du Conseil d'État, 1977, p. 1381).

B — More generally, in disputes In pursuance of Article 20 of the between a national of one Member State Protocol on the Statute of the Court of of the European Community and a Justice of the EEC written observations public authority of another Member were submitted on 2 August 1979 by the State concerning rights and obligations plaintiff in the main action, Mrs of a civil nature (within the meaning of Pecastaing, represented by Jacques Article 6 of the Convention for the Levaux of the Liège Bar, on 8 August by Protection of Human Rights) involving the Commission of the European the implementation of rules of Communities, represented by its Community law, does the right to a fair Principal Legal Adviser, Paul Leleux, hearing imply that personal access to the acting as Agent, on 10 September by the courts of the State concerned must be effectively made available to the said Government of the Kingdom of Belgium, national? represented by Dominique Drion of the Liège Bar, on 11 September by the Government of the French Republic, If the above question is answered in the represented by Marc Dandelot, Secretary affirmative, may it be deduced from the General of the Comité Interministériel Convention for the Protection of Human pour les Questions de Coopération Rights read together with Community Economique Européenne [Intermi- law that that national has the right to be nisterial Committee for Questions in person within the territory of the State Concerning European Economic Co- against which he is bringing proceedings operation], acting as Agent, and on 14 during the course of the action, September by the Government of the irrespective of any administrative measure ordering his expulsion, except in Kingdom of Denmark, represented by cases of urgency which have been Per Lachmann, Adviser at the Ministry properly justified? for Foreign Affairs, acting as Agent.

(a) The application of the exception on grounds of public policy with regard to the right of establishment is subject to six criteria: it must be based on the personal conduct of the person concerned; the concept of public policy must be (c) The questions raised in the present interpreted strictly and its scope cannot case may be summarized as follows: be determined unilaterally by each Member State; the conduct contrary to public policy must be particularly serious; it must entail conduct contrary to substantive and objective public policy Having regard to the operative part of which contrasts with a concept of moral the judgment of the Court of 8 April public policy; the conduct contrary to 1976 (Case 48/75 Royer [1976] 1 ECR public policy must take place in the 497) it appears to have been established territory of the country refusing the right that an appeal to a court of law has sus- of establishment; the exception on pensory effect. Does the action for grounds of public policy should relate to damages brought by the plaintiff in the problems arising in the future. Having main action constitute an appeal to a regard to those requirements the decision court of law within the meaning of of the Belgian State to refuse the plaintiff Articles 8 and 9 of Council Directive No in the main proceedings a residence 64/221 / E E C of 25 February 1964 on the permit is clearly without good reason co-ordination of special measures and is unlawful. concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (Official Journal, English Special Edition 1963- 1964, p. 117)? An appeal may not have (b) Belgian law makes three remedies suspensory effect; who is the judge of available to an EEC national who is the urgency? notified of a decision refusing a residence permit: he may apply, within eight days of notification, to the Consultative Committee for Aliens which has the power only to give an opinion to the Ministry for Justice; he can appeal to The action brought by the plaintiff in the the Conseil d'État [Council of State], main proceedings for a ruling that the administrative division, after first decision in question is illegal and must be

The principle exists that no restriction on fundamental human liberties can be The question does arise on the other made without being subject to the hand for appeals to the Conseil d'État supervision of the courts. As human and to the courts of law. Such rights and fundamental freedoms are at proceedings do have suspensory effect; issue the principle that measures of the this is shown by various considerations. administration are self-executing ["privi- lège du préalable"] is subject to the principle of control by the courts. The right of establishment cannot be Recognition that an appeal has sus- restricted without the courts exercising pensory effect corresponds to the supervision. decided cases of the Court of Justice, in particular the Royer case (supra) and the Rutili case (judgment of 28 October 1975, Case 36/75 Rutili v Minister for As the rule of Community law is the Interior [197'5] 2 ECR 1219). addressed to the Member States they cannot have a choice between observing the law and paying damages by way of reparation for breach thereof. The State The defects of the application to the should be obliged to observe the rule of Consultative Committee for Aliens make law. it necessary for other appeals to proper courts which do have suspensory effect to be provided. The plaintiff in the main action has an uncontestable right of action; Article 6 of the European Convention for the The Consultative Committee can only Protection of Human Rights and give an opinion; if only that application Fundamental Freedoms enshrines her right to a fair hearing. were regarded as having suspensory effect the logical inference would be that a national of a Member State of the EEC has no means of obliging another State The right of action would be devoid of to recognize his right of establishment. all substance if the decision ordering By virtue of its composition the Con- expulsion could be executed before a sultative Committee for Aliens is both a ruling has been given on the legality of

the decision. With regard to the right of appeal to the Conseil d'État; that period residence it is particularly clear that is so short that, in practice, it is very when an expulsion order in executed the frequently impossible to refer the matter action before the courts is merely of to the Committee and consequently, in theoretical interest as the breach of law most cases, to the Conseil d'État. It is is in practice irreparable. Article 6 of the therefore essential that the appeal to the European Convention for the Protection courts should be regarded as a proper of Human Rights and Fundamental appeal having suspensory effect. Freedoms should be interpreted as giving individuals a personal right of access to the courts. An alien who appeals to the courts against a decision ordering expulsion must be able to be present in person at the hearing of his case which (e) Certainly in some cases special necessarily entails giving him right of urgent reasons justifying the expulsion of access to the territory in which the an alien cannot be held up by a proceedings are being held. Expulsion procedure with suspensory effect. That before the end of the proceedings would possibility should, however, be irremediably compromise that right. interpreted strictly without being open to abuse. Supervision of the exercise thereof is necessary; the administration cannot be the sole judge of the urgency of an expulsion. According to the decided cases of the Court exercise of the right of establish- ment is conceivable only together with the protection provided by the national courts. The answer should therefore be given to the second question that whereas a Member State retains the right, in cases of urgency which have been properly justified, to expel a national of the EEC, notwithstanding an appeal, the Member Commonsense arguments should suffice State is nevertheless obliged to ensure to show that the right of establishment that the alien is able to contest the cannot exist unless it is possible to have urgent nature in an appeal to the courts that right recognized and established and even if it is in the context of a special to oblige the Member State to observe it. accelerated procedure such as for The need for a genuine appeal to the example summary proceedings. courts with suspensory effect is self- evident.

the Law of 28 March 1952 on the opinion; the procedure for an opinion supervision of aliens, as amended on a however is expressly provided for by the number of occasions, and specifies the directive. The Consultative Committee remedies available to aliens in Belgium for Aliens is an authority which is not against expulsion orders. the same as the one which takes the decision; the fact that its members are appointed by the Minister for Justice cannot be regarded as compromising A — The question of suspensory effect their independence. The alien may appear in person or be represented. The ministerial decision of rejection must, following the proceedings before the (a) The fact is not denied that, save in Consultative Committee for Aliens, form cases of urgency which have been the subject of another ministerial properly justified, remedies provided decision and the Belgian legislature has pursuant to Article 9 of Directive No therefore set up a genuine appeal 64/221 /EEC have suspensory effect. The procedure within the meaning of the suspensory effect is clear from the directive. The observations of the wording of that provision which requires Minister for Justice and the note the Member States to organize a reporting to the Consultative Committee procedure before an authority which is and the Committee's opinion are not the same as that empowered to take communicated to the alien. the decision refusing renewal of the residence permit or ordering expulsion. Such a procedure must be set up where The appeal provided for by Article 3a of there is no right of appeal to a court of the Law of 28 March 1952 is therefore in law or where such appeal may be only in accordance with Directive N o 6 4 / 2 2 1 / respect of the legal validity of the EEC. decision or where it cannot have sus- pensory effect. The Belgian legislature adapted its national legislation to comply with the directive; it therefore set up a (c) Other remedies, apart from the special procedure. It is laid down by application to the Consultative Article 3a of the Law of March 1952 on Committee for Aliens and the remedies the supervision of aliens as amended by provided for under Article 8 of Directive the Law of 1 April 1969. No 64/221/EEC, do not have sus- pensory effect.

It would be unreasonable to hold that (e) It is clear that neither Article 9 of any remedy whatsoever has suspensory Directive No 64/221/EEC nor the effect: a decision could be deprived of Court of Justice in the decision in the effect for an uncertain period. Royer case intended that any procedure whatsoever should have a suspensory effect. Only a specific administrative procedure set up in each State of the Community where there is no right of (d) In Belgium the courts of law have appeal to a court of law or where such jurisdiction, in the context of appeal may be only in respect of the proceedings concerning an administrative legal validity of the decision, or where decision, only to rule on the legality of the appeal cannot have suspensory effect the decision and to award damages but is essentially to have suspensory effect. not to annul or order the withdrawal of The proceedings currently pending the decision. It would be unacceptable to before the Tribunal de Premiere suspend a measure or a decision during Instance, Liège, relate without question such proceedings. It would a fortiori not to the legal validity of the decision; it is be acceptable in the present instance quite clear that they do not have sus- where the measure adopted concerning pensory effect as only proceedings set up the plaintiff in the main proceedings has or existing on the basis of Articles 8 and in no way removed her right of action 9 of the directive are to have such effect. provided for in Article 6 of the European Convention for the Protection of Human Rights and she has by no means lost her right to a fair hearing. The Belgian State has obviously given the plaintiff the two-fold guarantee referred to by the Court of Justice in the Rutili case: on the one hand she has In its judgment of 21 February 1975 in been informed of the reasons for the the Golder case the European Court of restrictive measure and, on the other, Human Rights held that "the right of procedure for review has been made access to the courts is not absolute. As available, first by the Consultative this is a right which the Convention sets Committee for Aliens and subsequently forth without, in the narrower sense of by the Conseil d'État. the term, defining, there is room, apart from the bounds delimiting the very content of any right, for limitations permitted by implication." Thus it has been accepted that the right to appear in person in a civil action is not, as such, (f) It must be held that the initiation of guaranteed by Article 6 or by any other proceedings for civil liability in respect of provision of the Convention; in any a wrongful act against the author of a event the plaintiff in the main action decision ordering expulsion does not could appear in person before the constitute an appeal having suspensory Belgian courts in the course of a lawful effect.

The question of urgency arises when the The Government of the Kingdom of decision refusing establishment or Denmark considers, with regard to the ordering expulsion is executed; in any last paragraph of Question B of the first event it arises only if an appeal is lodged group of questions raised in the order by the alien and that appeal has sus- from the national court, and after first pensory effect. recalling the law applicable in Denmark to remedies against a decision ordering expulsion, that the inference must not be drawn from Articles 8 and 9 of Directive No 64/221/EEC that an alien has the If the appeal does not have suspensory right to reside in the country as long as effect the authority which adopted the the proceedings involving him are decision has the power to execute it; in pending if the legal system in that State that case if the urgency does not provides that an application at an earlier constitute a formal and integral part of stage of the proceedings has suspensory the decision ordering expulsion it is effect. The provision that the 'national nevertheless a matter within the exclusive may reside in the country throughout the jurisdiction of the administrative auth- whole of the proceedings before the ority. courts of law is unnecessary insofar as exercise of a citizen's rights can be guaranteed in a manner which is less interventionist. The answer should be given to the question asked that If the appeal has suspensory effect the Community law does not confer sus- authority which took the decision must pensory effect on an appeal to a court of have a discretionary power which may be law against an administrative decision. influenced by the alien's own conduct. In the first instance the urgency is a matter for the authority which adopted the decision where the person concerned The Government of the French Republic clearly continues to move in the circles takes the view that Articles 8 and 9 which gave rise to the contested decision. of Directive No 64/221/EEC were intended to refer only to appeals against administrative measures refusing a residence permit to the exclusion of all other proceedings, and, in particular, The way must not be opened, by means proceedings calling into question the civil of proceedings to examine the question liability of the authority which adopted of urgency, for any alien who has been the contested measure. That conclusion informed of a decision ordering follows from the wording of Article 8 expulsion to thwart or cause to be itself and from the third recital in the suspended the effects of the decision for Preamble to the Directive. The directive the duration of the proceedings; the therefore refers only to actions before effect of that would be that, contrary to the courts in which it is claimed that a the aims of Directive No 64/221/EEC, measure is ultra vires or in which the any proceedings brought before any courts have full jurisdiction (Article 8 of

(b) A reply to the question asked in terms which would imply the presence, (a) Two possibilities must be in the territory of the State, of the distinguished with regard to the right to person concerned for the whole duration remain provisionally in the territory of a of the proceedings would have the effect Member State: of giving the appeal suspensory effect which is contrary both to the directive and the decided cases of the Court of Justice. The decision in the Royer case Article 8 of the Directive, which refers to which gives complete guarantees for the the national law of the Member States as protection of the rights of citizens wh.i'e amended to comply with Article 10 of enabling the Member States to carry out the Directive, gives the individual the effective supervision in the interests of right of appeal to a court of law. In this public security should be confirmed. If case the person concerned should have that is not done all measures ordering the time necessary to lodge an appeal expulsion will be paralysed by long against the administrative measure drawn-out proceedings and this will in affecting him; the minimum period of effect have the result of depriving the fifteen days referred to in Article 7 of the Member States of their right of Directive, which can be shortened only expulsion. in cases of urgency, appears to be sufficient to that end. The Commission observes that the wording of the questions referred to the Court covers aspects of national law, Community law and international law Article 9 of the Directive constitutes an which can be separated only with absolute minimum which affords difficulty insofar as the national judge is guarantees to nationals of the seeking the meaning of Articles 8 and 9 Community in cases where there is no of Directive No 64/221/EEC on the right of appeal to a court of law within basis, on the one hand, of the distinction the meaning of Article 8 or where such in Belgian law between administrative appeal does not have suspensory effect. appeals and actions relating to civil rights In such a case if there is a decision and on the other, of the concept of a fair ordering expulsion it should be hearing. As far as Community law is suspended until the person concerned concerned the questions could be has been able to appear before the worded as follows: authority referred to in the second subparagraph of Article 9 (1) and has been able to submit his defence in person except where that would be contrary to (a) As the right of residence in a country the interests of national security (Article in order to engage in economic

(c) Is urgency which has been properly justified, which in the Roye r case was held to authorize the provisional execution of a decision ordering expulsion notwithstanding any appeal, subject to the examination by the court having jurisdiction to (b) In this respect in Article 9 (2) of the ensure that the right of residence is Directive the case is distinguished of the observed or is it solely a matter for refusal to issue a first residence permit in the administrative authority which order to mitigate the effects of the took the decision? absence of any right of appeal to a court

JUDGMENT OF 5. 3. 1980 — CASE 98/79

of law having suspensory effect. That decision ordering the expulsion of a precaution is justified precisely by the national of another Member State to be generally expeditious nature, without challenged, not only is Article 8 of the real guarantees, of decisions ordering the Directive applicable to that remedy but expulsion of foreign nationals who have necessarily, also the rule set out in the not yet obtained a residence permit. judgment in the Royer case excluding the execution of the measure until the remedy has been exhausted.

PECASTAING v BELGIUM

and specified by the Court in the Royer Ill — Oral procedure case. The execution of any measure ordering expulsion has serious, often irremediable, consequences for the party concerned, even if it is subsequently Mrs Pecastaing, the plaintiff in the main annulled. If the supervisory jurisdiction action, represented by Luc Misson, of conferred on the relevant courts did not the Liège Bar, the Government of the extend to the alleged urgency and the Kingdom of Belgium, represented by justification therefore the effectiveness of Dominique Drion, assisted by J. C. the supervision would be considerably Godfroid, specialist Legal Adviser at the reduced. Aliens Office of the Ministry of Justice, and the Commission, represented by (b) The answer to the second group of its Legal Adviser, Jean-Claude Séché, questions should therefore be that cases delivered their oral observations and of urgency alleged by the administrative replied to questions raised by the Court authority in order to execute a measure at the hearing on 10 January 1980. ordering expulsion immediately, notwithstanding any appeal, is, in the same way as the measure itself, subject to The Advocate General delivered his the supervision and appraisal of the court opinion at the sitting on 31 January hearing the application. 1980.

Decision

1 By an o r d e r of 18 J u n e 1979, which was received at the C o u r t o n 21 J u n e 1979, the President of the Tribunal de Première Instance, Liège, in the course of s u m m a r y proceedings, submitted p u r s u a n t to Article 177 of the E E C T r e a t y a series of questions on the interpretation of Articles 8 and 9 of Council Directive N o 6 4 / 2 2 1 of 25 February 1964 o n the co-ordination of special measures concerning the m o v e m e n t and residence of foreign nationals which are justified on g r o u n d s of public policy, public security or public health (Official J o u r n a l , English Special Edition, 1963-1964, p. 117) in order to determine w h e t h e r an application submitted by a French national claiming, in civil proceedings, the suspension of an expulsion o r d e r issued against her by the Belgian police is admissible.

The background to the application

4 The order from the national court and the documents on the case show that the plaintiff lawfully entered Belgium on 8 October 1977 and that she worked as a waitress in bars in the Liège region which the police consider to be of doubtful moral character. On 8 November 1977 Mrs Pecastaing, who had in the meantime registered with the administration of the commune in which she resided, applied for a residence permit as an employed person.

PECASTAING v BELGIUM

6 In order to make its decision on the matter the national court submitted the following questions to the Court of Justice:

Interpreting Articles 8 and 9 of Directive No 64/221, in its judgment delivered on 8 April 1976 in Case 48/75, Royer [1976] ECR 497, the Court ruled in the fourth paragraph of the operative part of the judgment, on the basis of paragraphs 52 to 62 of the grounds of the decision, that:

"A decision ordering expulsion cannot be executed, save in cases of urgency which have been properly justified, against a person protected by Community

JUDGMENT OF 5. 3. 1980 — CASE 98/79

law until the party concerned has been able to exhaust the remedies guaranteed by Articles 8 and 9 of Directive N o 64/221."

First group of questions

If the above question is answered in the affirmative, may it be deduced from the Convention for the Protection of Human Rights read together with

PECASTAING v BELGIUM

Community law that that national has the right to be in person within the territory of the State against which he is bringing proceedings during the course of the action, irrespective of any administrative measure ordering his expulsion, except in cases of urgency which have been properly justified?

Second group of questions

In a case of urgency which has been properly justified, the decision ordering expulsion may be executed notwithstanding any appeal.

Does the existence of that urgency form an integral part of the decision ordering expulsion so that the administrative authority which took the decision is exclusively competent to ascertain whether such urgency exists?

9 According to Article 8: "The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration."

10 That provision defines the decisions referred to by the directive as "acts of the administration" and imposes upon the Member States the obligation to make available to any person affected by such acts the same legal remedies as are available to nationals in respect of acts of the administration. Accordingly a Member State cannot, without being in breach of the obligation imposed by Article 8, render the right of appeal for persons covered by the directive conditional on particular requirements as to form or procedure which are less favourable than those pertaining to remedies available to nationals in respect of acts of the administration. A remedy must thus be available to any person covered by the directive against any decision which may lead to expulsion before the decision is executed.

n Article 8 does not specify the courts from which such remedies may be sought. The resolution of that point depends upon the organization of the courts of each Member State. It follows that if, in a Member State, remedies against acts of the administration may be sought from the ordinary courts, the persons covered by Directive No 64/221 must be treated in the same way as nationals with regard to rights of appeal to such courts in respect of acts of the administration. This means that if, in a Member State, the adminstrative courts were not empowered to grant a stay of execution of an administrative decision but such power was recognized to the ordinary courts that State would be obliged to permit persons covered by the directive to

12 On the other hand Article 8 contains no specific obligation concerning any suspensory effect of applications available to persons covered by the directive. If that provision requires that the person concerned should be able to appeal against the measure affecting him it must be inferred, as the Court stated in its judgment in the Royer case (paragraph 60 of the decision), that the decision ordering explusion may not be executed — save in cases of urgency — before the party concerned is able to complete the formalities necessary to avail himself of the remedy. However, it cannot be inferred from that provision that the person concerned is entitled to remain on the territory of the State concerned throughout the proceedings initiated by him. Such an interpretation, which would enable the person concerned unilat- erally, by lodging an application, to suspend the measure affecting him, is incompatible with the objective of the directive which is to reconcile the requirements of public policy, public security and public health with the guarantees which must be provided for the persons affected by such measures.

i3 Accordingly, the reply to be given to the questions submitted must be that Article 8 covers all the remedies available in a Member State in respect of acts of the administration within the framework of the judicial system and the division of jurisdiction between judicial bodies in the State in question. Article 8 imposes on the Member States the obligation to provide for the persons covered by the directive protection by the courts which is not less than that which they make available to their own nationals as regards appeals against acts of the administration including, if appropriate, the suspension of the acts appealed against. On the other hand there may not be inferred from Article 8 an obligation for the Member States to permit an alien to remain in

is The provisions of Article 9 of Directive N o 64/221 are complementary to those of Article 8. Their object is to ensure a minimum procedural safeguard for persons affected by one of the measures referred to in the three specific cases set out as follows in Article 9 (1): "Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect". In the first case mentioned a complaint to a "competent authority" which is not the same as that empowered to take the decision is intended to compensate for the absence of any right of appeal to the courts. In the second case the intervention of the competent authority is intended to enable a detailed examination to be made of the situation of the person concerned, including the appropriateness of the measure contemplated, before the decision is finally taken. In the third case that procedure is intended to permit the person concerned to request and to obtain, if appropriate, a stay of the execution of the measure envisaged in such a way as to compensate for the absence of a right to obtain a stay of execution from the courts.

i6 It follows that a Member State cannot apply the provisions of Article 9 of the directive in such a way that its practical effect is to restrict or render ineffective the legal remedies made available under Article 8 to the persons covered by the directive.

PECASTAING v BELGIUM

i7 With regard to the interpretation of Article 9 considered in isolation, it should be recalled, as the Court of Justice had occasion to point out in its judgment in the Royer case (paragraph 59 of the decision), that the procedure of appeal to a "competent authority" referred to in that article must precede the decision ordering explusion, save in cases of urgemcy. In particular if a Member State has applied Article 9 in order to compensate for the fact that the appeals to the courts which are available do not carry sus- pensory effect that provision would be rendered nugatory if, always save in cases of urgency, execution of the expulsion order contemplated were not suspended until that authority has given its opinion {Royer case, paragraph 61 of the decision).

22 It does not appear necessary to consider that question in this case since Directive N o 64/221 may be considered as fulfilling, with regard to the measures to which it refers, according to the third recital of the preamble thereto, the requirement of the "fair hearing" set out in Article 6 of that Convention at least with regard to the arrangements for appeals to the courts contained in Article 8 of the directive as has been stated above. It is accordingly unnecessary to give a reply here to that aspect of the questions submitted by the national court.

Costs

23 The costs incurred by the Government of the Kingdom of Belgium, the Government of the French Republic, the Government of the Kingdom of Denmark and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in thes summary proceedings pending before the President of the Tribunal des Première Instance, Liège, the decision on costs is a matter for that court.

PECASTAING v BELGIUM

On those grounds,

OPINION OF MR CAPOTORTI — CASE 98/79

The performance of these duties by the national courts is governed by Article 8 of the directive. The scope of that provision nevertheless may not be restricted by measures taken by a Member State under Article 9 of the directive.

Kutscher O'Keeffe Touffait Mertens deWilmars Pescatore

Mackenzie Stuart Bosco Koopmans Due

Delivered in open court in Luxembourg on 5 March 1980.

A. Van Houtte H. Kutscher Registrar President