C-157/79

JUDGMENT OF 3. 7. 1980 — CASE 157/79

cases where there is sufficient jus- Directive No 68/360 has only a tification, of imposing restrictions on declaratory effect and, for aliens to the exercise of a right derived directly whom Article 48 of the EEC Treaty from the Treaty. It does not there- or parallel provisions give rights, it fore justify administrative measures cannot be assimilated to a residence requiring in a general way formalities permit such as is prescribed for aliens at the frontier other than simply the in general. A Member State may not production of a valid identity card or therefore require from a person passport. enjoying the protection of Community law that he should 2. Article 3 (2) of Council Directive possess a general residence permit No 68/360 prohibiting Member instead of the document provided for States from demanding an entry by the combined provisions of Article visa or equivalent requirement for 4 of and the Annex to Directive No Community workers moving within 68/360, or impose penalties for the the Community must be interpreted as failure to obtain such a permit. meaning that the phrase 'entry visa or equivalent requirement' covers any formality for the purpose of granting leave to enter the territory of a 4. The failure on the part of a national Member State which is coupled with a of a Member State of the Com- passport or identity card check at the munity, to whom the rules on frontier, whatever may be the place or freedom of movement for workers time at which that leave is granted apply, to obtain the special residence and in whatever form it may be permit prescribed in Article 4 of granted. Directive No 68/360 may not be punished by a recommendation for 3. The issue of the special residence deportation or by measures which go document provided for in Article 4 of as far as imprisonment.

REGINA v PIECK

Special Edition 1963-1964, p. 117) 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,

T H E COURT (First Chamber)

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

Advocate General: J.-P. Warner Registrar: J. A. Pompe, Deputy Registrar

gives the following

"For that you being a person who is not Rule 51 reads: patrial' and only having a limited leave to remain in the United Kingdom knowingly remained in the United "When an EEC national is given leave to Kingdom beyond 29 January 1979, the enter, no condition is to be imposed time limited by the leave." restricting his employment or occupation in the United Kingdom. Admission should normally be for a period of six At the same time a notice was served on months, except in the case of a returning Mr Pieck in pursuance of section 6 (2) of resident or the holder of a valid the Immigration Act 1971 to the effect residence permit". that if he was convicted of the above offence the court would have power to recommend his deportation under section 3 (6) of the Immigration Act 3. The six months' leave of entry into 1971. the United Kingdom granted to Mr Pieck on 29 July 1978 expired on 21 January 1979. In March 1979 Mr Piećk 4. On 12 July 1979 Mr Pieck appeared voluntarily went to the South Wales before the Pontypridd Magistrate's Constabulary, explained that he had Court and, whilst not contesting the overstayed his leave and asked for evidence adduced by the prosecution, advice. He was advised to send his pleaded not guilty to the charge. He passport to the Home Office together relied on Article 48 (3) (b) and (c) of the with an application for a further stay. Mr EEC Treaty and the provisions of Pieck did nothing. On 3 May 1979 he Directive No 68/360 to show that the was required by a police officer to initial grant of six months' leave to enter produce his passport. He replied: " I was the United Kingdom and the require­ going to send it off but I forgot". On ment to extend it were incompatible with that date Mr Pieck was charged with an Community law. offence contrary to the Immigration Act 1971, section 24 (1) (b) (i), which reads: By order of 5 September 1979 the Magi­ strates' Court asked the Court of Justice "(24) (1): A person who is not a patrial to give a preliminary ruling on the three shall be guilty of an offence punishable following questions : on summary conviction with a fine of not more than £ 200 or with " 1 . What is the meaning of 'entry visa imprisonment for not more than six or equivalent document' in Article months ör with both, in any of the 3 (2) of Council Directive No following cases . . . 68/360/EEC of 15 October 1968?

II — S u m m a r y of the written 3. (Only applicable if the answer to observations lodged with Question 2 is affirmative) Where the C o u r t such a national is given a six months' limited leave to remain in a Member State and being employed as a worker but having failed to apply for First question a resident's permit he overstays that leave, can such a breach of law be punished in that Member State by The Government of the United Kingdom measures which include imprison- states that under Article 3 (2) of ment and/or a recommendation Directive No 68/360 "no entry visa or for deportation?" equivalent document may be demanded". In the United Kingdom's view a system involving an "entry visa or equivalent document" is a screening device to The order for reference was received at permit the receiving country, through its the Court Registry on 10 October 1979. representatives abroad, to examine the credentials, intentions and arrangements of prospective entrants in order to reach In pursuance of Article 20 of the a decision as to the intending traveller's Protocol on the Statute of the Court of acceptability before he embarks upon his Justice of the EEC written observations journey. A visa is therefore never issued were lodged by the Government of the at the point of entry. Such a practice United Kingdom, represented by Simon would defeat the very purpose of the visa Brown, Barrister, and G. Dagtoglou, system as the essential characteristic of a Treasury Solicitor's Department, acting visa is to impose a prior condition on as Agents, by Mr Pieck, represented by entry. Alan Newman, Barrister, instructed by Messrs Spicketts, Solicitors, Pontypridd, and by the Commission of the European Communities, represented by its Legal It emerges clearly from the provisions Adviser Anthony McClellan, acting as applicable that such a visa system, as Agent, assisted by Richard Plender, practised by the United Kingdom, is not Barrister. applicable to nationals of the EEC countries. The United Kingdom Govern- ment refers in particular to Rules 8 to 10 of the Statement of Immigration Rules The Director of Public Prosecutions for Control on Entry (EEC and indicated that he endorsed the obser- other Non-Commonwealth Nationals) vations of the United Kingdom (HC 81), which define the foreign Government. nationals for whom an "entry clearance"

is required ("visa nationals"), but do not be demanded" is intended to prohibit the include nationals of EEC countries. On application of conditions incompatible the contrary, Rule 52 of the same rules with the rule in Article 3 (1) that the provides as follows: relevant entrant should be allowed to enter "simply on production of a valid identity card or passport". No such inconsistency arises under the United Kingdom procedures. Nationals of EEC "An EEC national who wishes to enter countries are not required to produce the United Kingdom in order to take or anything other than a valid identity card seek employment, set up in business or or passport. work as a self-employed person is to be admitted without a work permit or other prior consent." Mr Pieck explains the historical meanings of the words "visa" and "passport". Nowadays however the word "visa" The phrase "no entry visa or equivalent connotes a stamp in a passport granting document" in Article 3 (2) of Directive the bearer leave to enter or leave the No 68/360 cannot include an country concerned upon such conditions endorsement containing the words as may be stated on the endorsement "given leave to enter the United constituting the visa. Kingdom for six months" stamped upon a passport at the time and place of entry in the United Kingdom such as the endorsement stamped upon Mr Pieck's The two rectangular stamps — which passport on 29 July 1978. Such a stamp moreover appear on the page headed by merely indicates that the entrant has duly the word "VISA" — on page 14 of Mr been given leave to enter the United Pieck's passport, constitute the formal Kingdom for six months. grant of leave to enter the United Kingdom subject to a time limitation, namely six months' leave of entry. Mr Pieck thinks that it is irrelevant that the leave is given at the frontier immediately Nor does such leave to enter consistute a prior to entry and not by application at a permission amounting to a visa. If it in consulate before the holder of the fact constituted such permission, falling passport travels to the United Kingdom. in this respect within the prohibition in On the other hand what is significant is Article 3 (2) of Directive No 68/360, that the leave is granted prior to the nationals of Member States would have passport holder's passing through an absolute right to enter the territory of immigration control. another Member State. Article 48 of the EEC Treaty and Directive No 64/221 make it clear that freedom of movement is subject to limitations. Even if the words "entry visa" are construed restrictively in such a way as to exclude the stamp on the passport, Mr Pieck takes the view that the words The above submissions are further "equivalent document" are sufficiently supported by the fact that the phrase "no wide in scope to cover it. It follows entry visa or equivalent document may clearly from the French text of Article 3

The Commission first emphasizes the limitations which Community law imposes on the powers of Member States with regard to aliens control as far as the nationals of other Member States are "In so far as national rules concerning concerned. It observes that Article 3 (2) the control of foreign nationals do not of Directive No 68/360 has as its object involve restrictions on the freedom of the elimination of a formality which may movement for persons and on the right constitute a hindrance to the freedom of conferred by the Treaty on persons movement of workers. That objective protected by Community law, to enter appears not only from the place of the and reside in the territories of the directive within the scheme of legislation Member States, the application of such implementing Article 48 of the EEC legislation, where it is based upon Treaty but also from its history and objective factors, cannot constitute 'dis- origins. The same prohibition is to be crimination on grounds of nationality' found in the precursors of Directive No prohibited under Article 7 of the Treaty" 68/360, namely Article 2 (4) of Council (paragraph 22). Directive No 64/240 of 25 March 1964 (Journal Officiel 1964, page 981) and in Article 3 (2) and (3) of the Council Directive of 16 August 1961 (Journal Officiel 1961, page 1513). The Commission draws the conclusion that whereas Community law does not prohibit the act of endorsing a passport, According to the first recital in the it prohibits endorsements on passports or preamble to the last-mentioned directive the issue of other documents to migrant its purpose was workers purporting to constitute restric- tions upon the rights conferred on such persons by the Treaty.

in a narrower sense to denote a Such a definition is broad enough to document or stamp issued to an alien encompass a grant of limited leave to before he presents himself to an enter a State. immigration officer as a prerequisite to his admission to 'a State. The word appears to have been used in this sense in a series of "visa abolition agreements" concluded between European States before the formation of the European Communities, 1 and in certain other The expression "equivalent document" international agreements. 2 in-the context of the directive, must be taken to denote those documents which, in common with visas, create or maintain restrictions upon freedom of movement for workers. It is in the nature of a visa to restrict such freedom, where it purports to constitute the authority for The Commission takes the view that the bearer to enter a State or where it even if the word "visa" had appeared limits his stay. The position is the same alone, without any reference to other with regard to any document, stamp or "equivalent documents", it might have endorsement required for similar been possible to construe it more purposes on entry into a Member State. generally so as to embrace also a written grant of leave to enter a Member State. It is related to definitions of the term "visa" referring to any entry or note in a passport, certificate or other official document, made by a competent authority to signify its authenticity or to Next in dealing with the role of national recognize any specified consequence. 3 administrative documents the Com- mission draws a parallel between the free movement of persons and that of goods. National laws imposing a system of import or export licences or any other similar procedure, even though purely as a formality, constitute a hindrance in intra-Community trade to the free 1 — For example the agrement of 5 February 1947 between movement of goods (Joined Cases 51 to the United Kingdom and Belgium (U.K.T.S.4 (1947), 54/71, International Fruit Company v Cmd. 7038), superseded by the agreement of 1 April 1960 (U.K.T.S.40 (1960), Cmd. 1091). Produktschap Groenten en Fruit, [1971] ECR 1107, paragraph 9). In the same 2 — Cf. the European agreement on the abolition of visas way the imposition of immigration for regugees, 1959, ETS N o 31; the final act and control upon workers falling within agreement of the inter-governmental conference on the adoption of a travel document for refugees 1947, Article 48 of the Treaty, involving the U.K.T.S.3 (1947), Cmd. 7033; paragraphs 8 to 10 of grant of leave to enter a Member State, the schedule to the Geneva Convention on the status of refugees, 1951, U.K.T.S.39 (1954), Cmd. 9171; Article is incompatible with the free movement 5 of the Vienna Convention on consular relations 1963, U.K.T.S.I4 (1973), Cmd. 5219. of persons. Hence, in the case of any beneficiary of the rights set out in the 3 — Cf. Sirey, Dictionnaire de la terminologie du droit EEC Treaty, Member States no longer international, 1960; Black's Law Dictionary, 1968; possess the authority to grant leave to Jowitt's Dictionary of English Law, 1968; Luke T. Lee, Consular Law and Practice, 1961. enter their territories.

As regards the delay in issuing a residence permit, it cannot be contended Second question that it must be issued at the time and point of entry. On the contrary, it is clearly implicit in Articles 4 (3), 6 (3) and 8 of Directive No 68/360 and Articles 5 (1) and (2) of Directive No 64/221 that delay is contemplated The Government of the United Kingdom between entry and the subsequent points out that an endorsement "given acquisition of a residence permit by the leave to enter the United Kingdom for entrant. In this respect a period of six six months" has the sole effect of months is not an unreasonably short indicating to the entrant that he has duly time; it is even twice as long as the been given leave to enter. It follows that period allowed by most other Member such a person has a period of six months States. within which to obtain a residence permit, to which he will have an absolute right subject to considerations of public policy, public security and public health. Finally the Government of the United Kingdom refers to the judgment of the Court in Case 8/77 (Sagtdo and Others, [1977] ECR 1495, paragraphs 11 and 12) It follows from the facts of this case that to confirm that the requirement for Mr Pieck was not misled by the practice nationals of EEC countries to obtain followed in the United Kingdom. residence permits contains no element of However, the United Kingdom Govern- discrimination on grounds of nationality. ment points out that the Statements of Immigration Rules, which are published and readily available documents, set out the true position clearly. Thus Rule 34 of the Statement of Immigration Rules for Mr Pieck observes that the right to the Control after Entry (EEC and other issue of a residence permit at the end of Non-Commonwealth Nationals) (HC the period of six months as may be seen 82) provides as follows: from Rule 34 of the Statement of

Furthermore an initial leave to remain The lack of an automatic right to a for a limited period, as well as the residence permit and the obligation to obligation to seek an extension of that seek an extension of the initial leave to leave, infringe Article 7 of the Treaty remain, in breach of which a crime is inasmuch as no such limitation applies to committed under English law, is British subjects. inconsistent with the rights conferred by the Treaty.

The Commission observes first of all that the right of nationals of a Member State As regards the limited grant of six to enter the territory of another Member months' leave Mr Pieck takes the view State and reside there is a right that it is against the principle of freedom conferred directly on any person falling of movement for persons set out in within the scope of Community law by

REGINA v PIECK

Mr Pieck takes the view that an EEC worker who has been given a limited leave to remain is entitled as of right to The Commission concludes that, upon an extension of that leave and to the the entry into a Member State of an issue of a residence permit. The right to EEC national the grant of leave to reside is conferred directly by the Treaty remain for a period limited to six months and therefore independently of the issue is inconsistent with the rights secured to of a residence permit. The mere failure such a national by Articles 7 and 48 of to complete national formalities the Treaty as well as by the provisions of concerning access, movement and Directive No 68/360. residence of aliens cannot constitute a

JUDGMENT OF 3. 7. 1980 — CASE 157/79

REGINA v PIECK

Decision

1 By order of 5 September 1979, which was received at the Court on 15 October 1979, the Pontypridd Magistrates' Court under Article 177 of the EEC Treaty asked three questions on the interpretation of Articles 7 and 48 of the Treaty and of Council Directives No 64/221 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 (Official Journal, English Special Edition 1963-1964, p. 117) and N o 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 (Official Journal, English Special Edition 1968 (II), p. 485).

2 Criminal proceedings were brought in the national court against a Netherlands national, residing in Cardiff, Wales, and pursuing an activity as an employed person, who was charged that, being a person who was not a "patriaľ (a British national having a right of abode in the United Kingdom) and having only been granted leave to enter the United Kingdom or to remain there for a limited period, knowingly remained beyond the time limited by the leave. The accused held no residence permit; when he last entered the territory of the United Kingdom, on 29 July 1978, an endorsement containing the words "given leave to enter the United Kingdom for six months" was stamped on his passort.

T h e first q u e s t i o n

3 In its first question the court asks what is the meaning of "entry visa or equivalent document" in Article 3 (2) of Council Directive N o 68/360.

8 This argument cannot be upheld. For the purpose of applying the 'directive, the object of which is to abolish restrictions on movement and residence for Community workers within the Community, the time at which clearance to enter the territory of a Member State has been given and indicated on a passport or by another document is immaterial. Furthermore the right of Community workers to enter the territory of a Member State which Community law confers may not be made subject to the issue of a clearance to this effect by the authorities of that Member State.

REGINA v PIECK

9 Admittedly the right of entry for the workers in question is not unlimited. Nevertheless the only restriction which Article 48 of the Treaty lays down concerning freedom of movement in the territory of Member States is that of limitations justified on grounds of public policy, public security or public health. This restriction must be regarded not as a condition precedent to the acquisition of the right of entry and residence but as providing the possibility, in individual cases where there is sufficient justification, of imposing restrictions on the exercise of a right derived directly from the Treaty. It does not therefore justify administrative measures requiring in a general way formalities at the frontier other than simply the production of a valid identity card or passport.

10 The answer to the first question should therefore be that Article 3 (2) of Directive No 68/360 prohibiting Member States from demanding an entry visa or equivalent requirement for Community workers moving within the Community must be interpreted as meaning that the phrase "entry visa or equivalent requirement" covers any formality for the purpose of granting leave to enter the territory of a Member State which is coupled with a passport or identity card check at the frontier, whatever may be the place or time at which that leave is granted and in whatever form it may be granted.

14 It follows that the answer to the second question has already been given by the Court in the above-mentioned judgment.

The third question

15 The third question asks whether a national of a Member State of the Community who has overstayed the leave granted in the residence permit may be punished in that Member State by measures which include imprisonment and/or a recommendation for deportation.

16 In the above-mentioned judgment of 14 July 1977 the Court has already decided that the imposition of penalties or other coercive measures is ruled out in so far as a person protected by the provisions of Community law does not 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.

17 Having regard however to the circumstances of this case as stated by the national court and in the light of the answer just given to the second question, the third question may also be understood as raising the problem whether the failure on the part of a national of a Member State of the

REGINA v PIECK

JUDGMENT OF 3. 7. 1980 — CASE 157/79

On those grounds,

T H E COURT (First Chamber)

in answer to the questions referred to it by the Pontypridd Magistrates' Court, Mid Glamorgan, Wales, by order of 5 September 1979 hereby rules:

1. Article 3 (2) of Council Directive No 68/360 of 15 October 1958 prohibiting Member States from demanding an entry visa or equivalent requirement from Community workers moving within the Community must be interpreted as meaning that the phrase "entry visa or equivalent requirement" covers any formality for the purpose of granting leave to enter the territory of a Member State which is coupled with a passport or identity card check at the frontier, whatever may be the place or time at which that leave is granted and in whatever form it may be granted.

2. (a) The issue of a special residence document provided for in Article 4 of Council Directive No 68/360 of 15 October 1968 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.

The Registrar by order H. A. Rühi A. O'Keeffe Principal Administrator President of the First Chamber

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED O N 4 JUNE 1980

My Lords, The relevant provisions of Community law are, firstly, those of the EEC Treaty, on freedom of movement for persons and in particular for workers, the terms of which are so familiar that I refrain from rehearsing them, and secondly the This case comes before the Court by way provisions of Council Regulation (EEC) of a reference for a preliminary ruling by No 1612/68 "on freedom of movement a Stipendiary Magistrate sitting in the for workers within the Community", of Pontypridd Magistrates Court, in Wales. Council Directive 68/360/EEC "on the It arises from the prosecution before that abolition of restrictions on movement court of a Dutch worker, Mr Stanislaus and residence within the Community for Pieck, for an offence under United workers of Member States and their Kingdom immigration law and it raises families", and of Council Directive questions as to the compatibility of that 64/221/EEC "on the coordination of law with Community law. special measures concerning the