C-115/81

1. BELGIAN STATE, in the person of the Minister of Justice, and

2. CITY OF LIEGE, in the person of the Bourgmestre,

and, on the other,

DOMINIQUE CORNUAILLE and

BELGIAN STATE, in the person of the Minister of Justice,

on the interpretation of Articles 7, 48 (3), 56 (1) and 66 of the Treaty and of Council Directive No 64/221 /EEC of 25 February 1964 on the co-ordi- nation of special measures concerning the movement and residence of foreign nationals which are justified on ground of public policy, public security or public health (Official Journal, English Special Edition 1963- 1964, p. 117), and in particular of Anieles 3, 6, 8 and 9 thereof

Facts and Issues

The orders making the references, the residence undesirable for reasons of course of the procedure and the obser- public polio.· and that she worked in a vations submitted pursuant to Article 20 bar which was suspect from the point of of the Protocol on the Statute of the view of morals and in which waitresses Court of Justice of the EEC may be displaved themselves in the window and summarized as follows: were able to be alone with their clients, such conduct being contrary to the Police Order of 25 March 1957 of the City of Liege. It is not stated in the documents before the Court whether the I — Facts and w r i t t e n p r o c e d u r e order to leave the country contained a prohibition of returning to it.

Miss Adoui complied with that order on I. On 3 June 198C Miss Adoui, a 28 October but returned to Belgium one French national, submitted an application month later and notified the municipal to the competent authorities of the City administration of her return. An order to of Liege for a permit to reside in leave the country within four days was Belgium. That permit was refused to her served on her on 27 November 198C. By by a decision of the Minister of Justice, a registered leuer of 1 December 1980 which was notified on 15 October 1983 she applied to the Commission Consul- and contained an order to leave the tative des Etrangers [Consultative Com- country within 13 days on the grounds mittee for Aliens, hereinafter referred to that her personal conduct made her as "the Consultative Committee" or "the

ADOUI AND CORNUAILLE v BELGIUM

Miss Cornuaille protested and requested The measures of public policy which may disclosure of the file. Following several be taken under them depend on whether

JUDGMENT OF 18. 5. 1982 — JOINED CASES 115 AND 116/81

He may be assisted or represented by an adviser. If, without a reason considered to be valid by the Committee, the alien Article 3 bis of the Law (amendment of or his adviser fails to appear, he loses the 1969) provides that the refusal of a right to be heard by it. The Committee's residence permit to an alien who is a opinion is notified to the Minister of national of a Member State of the EEC Justice, to the Community national and as well as any decision expelling such an to his adviser within eight days.

have made. Foreign Affairs (Anicie IC bis). The members of the Committee are appointed for three years by the King. The procedure and workings of the Committee are governed by the Royal 5. During the interlocutory proceed- Decree of 22 December 1969. Matters ings. Miss Cornuaille claimed that inert- must be brought before the Committee had been an infringement to her npm u· in accordance with the above-mentioned defend herself in the only proceeding procedure. The application must set out which had to take place before ihr the reasons on which it is based. The implementation of an administrative Minister makes his observations in a measure deponing her from the l e r n t e n

In view of the need to take urgent action policy could fall within the by virtue of the fact that an immediately discretion of the Member States enforceable expulsion order was likely to subject to the limitations of be adopted with respect to her, she asked Community law. Would the Court that her right to obtain a residence specify those limitations? permit should be recognized and that the expulsion proceedings should not be proceeded with until the result of the (3) How, in the Court's view, can the criminal investigation was known or, at doctrine expounded in its judgment the very least, before proceedings in Case 41/74 Van Duyn [1974] genuinely observing the principle of audi ECR 1337 be reconciled with the alteram partem had taken place before principle of non-discrimination the Consultative Committee. contained in Article 7 of the Treaty and, moreover, embodied in Articles 48 et seq. of the Treaty? Subject to what precise conditions 6. By order of 8 May 1981 the President and limitations may discrimination of the Tribunal de Première Instance, exist in the legislation and practice sitting at Liege in interlocutory of a Member State between its own proceedings, after excluding the City of nationals and the nationals of other Liège from the proceedings in Case Member States where the free 115/81 on the ground that its role was movement of persons guaranteed by limited to that of a mere enforcement the Treatv is concerned? (Case agency of the State in matters of 115/81) administration relating to aliens, decided to stay the proceedings in both cases and to refer to the Court under Article 177 How, in the Court's view, can the of the Treaty the following questions for doctrine expounded in its judgment a preliminary ruling: in Case 41/74 Van Duyn [1974] ECR 1337 be reconciled with the principle of non-discrimination contained in Article 7 of the Treaty "A — The concept of public policy and, moreover, embodied in Articles 48 et seq. of the Treaty? Subject to what precise conditions (1) Would the Court kindly give a and limitations may discrimination definition of the concept of public exist in the legislation and practices policy such as may be relied upon of a Member State between its own bv virtue of Articles 48 and 56 of nationals and the nationals of other the Treaty? (Case 115/81) Member States where the free movement of persons guaranteed by the Treatv is concerned? (Case Would the Court kindly give a 116/81) definition of the concept of public policy as that concept is to be understood for the purposes of (4) Is it conceivable that 'personal Articles 48 and 56 of the Treatv? conduct constituting a genuine and (Case 116/81) sufficiently serious threat affecting one of the fundamental interests of societv' (Case 30/77 Regina v (2) On numerous occasions the Court Bouchereau [1977] ECR 1999) may has stated that the concept of public not be criminally punishable in the

Is it conceivable that 'personal conduct constituting a genuine and Since a measure expelling a person sufficiently serious threat affecting from the territory of a State often one of the fundamental interests of has repercussions which are society' (Case 30/77 Regina v sometimes much more serious than Bouchereau [1977] ECR 1999) may a criminal penalty, is it not not be criminally punishable in the necessary to apply by analogy Member State wishing to so define Article 7 of the European that conduct in order to expel a Convention for the Protection of national of another Member State? Human Rights and to take the view that the conduct punished must have constituted a criminal offence (5) Is it conceivable that one of the laid down by law at the time when fundamental interests of society is it was committed? Alternatively, involved if that interest is not at the what other solution would the very least embodied as such Court suggest in order to avoid an beforehand in a law, a regulation or arbitrary decision on the matter by a practice having the same effect of national administrations? (Case the State relying upon it, even if 116/81) such conduct is not criminally punishable? (Case 115/81) (7) In employing the expression 'sufficiently serious threat' the Is it conceivable that one of the Court, by using the adverb fundamental interests of society is 'sufficiently', introduces the idea of involved if that interest is not at the proportionality. Does the Court very least embodied as such mean that it is necessary to beforehand bv a law, a regulation measure, on the one hand, the or a practice having the same effect seriousness of the perturbation of the State relying upon it, even if which is threatening the require- such conduct is not criminally puni- ments of public policy and, on the shable? (Case 116/81) other hand, the seriousness, which varies from case to case, of the expulsion order? (6) Since a measure expelling a person from the territory of a State often has repercussions which are some- (8) May not the expulsion become so times much more serious than a serious in certain cases that it may criminal penalty, is it not necessary no longer be contemplated owing to apply by analogy Article 7 of the to the fact that it constitutes European Convention for the inhuman treatment: father or Protection of Human Rights and to mother of a large family, spouse or take the view that the conduct parent of a national of the expelling punished must have constituted a State, a minor, a person who for criminal offence laid down by law reasons of age or health does not at the time when it was committed? have a sufficient chance of

becoming readjusted to life in titutes from a given country because another country, a person who was they could promote criminal born and has lived for a activities does so systematically, considerable period in the territory declaring that their business of of the expelling State etc.? (Case prostitution endangers the require- 115/81) ments of public policy and not taking the trouble to consider whether the persons concerned may- May not the expulsion become so or may not be suspected of contact serious in certain cases that it may with the underworld, is that State no longer be contemplated owing not adopting a measure of a general to the fact that it constitutes preventive nature prohibited by the inhuman treatment: father or doctrine enunciated in the judg- mother of a large family, spouse or ment in Case 67/74 Bonsignore parent of a national of the expelling [1975] ECR 297 and does it indeed State, a minor, a person who for base its measure on the personal reasons of age or health does not have a sufficient chance of becom- conduct of the person concerned? ing readjusted to life in another (Case 115/81) country, a person who was born and has lived for a considerable period in the territory of the If a Member Sute which is anxious expelling State etc.? (Case 116/81) to remove from its territory pros- titutes from a given country be- cause they could promote criminal activities does so systematically, (9) To what extent are Member Sutes declaring that their business of entitled to take account of the prostitution endangers the require- private morality of the persons ments of public policy and not concerned as the ground for a uking the trouble to consider refusal or withdrawal of residence whether the persons concerned may permits if that morality is not of or may not be suspected of contact such a nature as to give rise in the with the underworld, is that State host State to perturbations which not adopting a measure of a general are specifically and objectively preventive nature prohibited by ascertainable in public? the doctrine enunciated in the judgment in Case 67/74 Bonsignore [1975] ECR 297 and does it indeed Does not the adjective 'public' base its measure on the personal exclude any consideration of the conduct of the person concerned? private life, morality and convic- (Case 116/81) tions of the individuals concerned, if those matters should not normally find expression in external conduct capable of giving rise to (11) May a Member State suddenly take perturbations which are specifically the view that the personal conduct and objectively ascertainable in of persons carrying on a particular public? trade constitute a genuine and sufficiently serious threat affecting one of the fundamental interests of society, even though the carrying (10) If a Member State which is anxious on of the trade is not prohibited in to remove from its territory pros- its territory, the trade is carried on

(12) In using in Case 67/74 Bonsignore the expressions 'presence (which) Article 6 of Directive No 64/221/ could no longer be tolerated' and EEC provides that European 'necessary solution', does the nationals must be informed of the Advocate General correctly convey grounds of public policy, public the degree of seriousness required security, or public health upon

ADOUI AND CORNUAILLE v BELGIUM

JUDGMENT OF IS. 5. 1982 — JOINED CASES 115 AND 116/81

the authority and therefore control (8) Is the authority taking the decision the speed with which the obliged to submit to the different proceedings progress? authority a file relating to the case proving that the decision with- drawing or refusing a residence permit referred for consideration by the separate authority is based on (5) The decisions of the different genuine, accurate and serious facts? authority must state the reasons on Must the proof of the facts on which they are based. Does that not which the authority bases the imply that the alien has the right to decision which it takes be absolute receive a copy thereof bearing the and uncontestable? May an alien signatures of the members or the contesting the sufficiency of the authority and stating their identities proof rely on being given the and capacities? (Case 115/81) benefit of the doubt? May anonymous information and police reports which do not state their sources be used by the authority taking the decision? (Case 115/81) The decisions of the different authority must state the reasons on which they are based. Does that not imply that the alien has the right to Is the authority taking the decision receive a copy thereof bearing the obliged to submit to the different signatures of the members of the authority a file relating to the case authority and stating their identities proving that the decision with- and capacities? (Case 116/81) drawing or refusing a residence permit referred for consideration by the separate authority is based on genuine, accurate and serious (acts Must the proof of the facts on (6) Save in properly justified cases of which the authority bases the urgency, must the alien and his decision which it takes be absolute adviser, when prevented for a valid and uncontestable? May an alien and important reason from attend- contesting the sufficiency of the ing a hearing of the different auth- proof rely on being given the ority, be entitled to obtain post- benefit of the doubt? Mav ponement of the consideration of anonymous information and police the case to another hearing? reports which do not state their sources be used by the authornv taking the decision? (Case 1 lb/x 11

(10) Can personal conduct contrary to the requirements of public policy be inferred from a report on morality? (14) Could the authority taking the decision, on the pretext of reasons of State security, include in its file a document not disclosed to the alien or his adviser in order not to (11) Are the alien and his adviser divulge the identity of a police entitled to demand disclosure of the informer? Must not a document file submitted by the authority which the alien alleges to be false taking the decision to the different be excluded from the proceedings? authority? If reasons of State security permit the authority taking the decision not to disclose certain documents, to the alien or his (15) Is it not essential that the alien or adviser may that authority his adviser should be advised of the nevertheless rely on information dates of the hearing sufficiently in contained in a document which it advance thereof in order to allow refuses to submit to the different adequate preparation for the authority? hearing, such as for example one month's notice?"

115/81 by J.-P. Soumagne of the Liège the concept of "public policy" may be Bar, and in Case 116/81 by E. E. defined by reference to its purpose; it Jeunehomme of the Liège Bar, by the permits the Sute and the municipalities Government of the French Republic, to derogate from the observance of the represented by G. Geoffroy, Member of rights of individuals when, if thev did the General Secretariat of the Interde- not do so, the existence or essence of the partmental Committee for Questions of community governed by the rule of law European Economic Co-operation in the would be threatened. Prime Minister's Office, acting as Agent, by the Government of the Italian Republic, represented by A. Squillante, Head of the Department for Diplomatic Legal Affairs, Treaties and Legislative Matters, acting as Agent, assisted by O. Fiumara, Avvocato dello Stato, by the With reference to the, case-law of the Government of the Kingdom of the Court it is possible to state as follows the Netherlands, represented by F. Italianer, limits which have been placed on the Secretary General of the Ministry of Member States' discretion to remove the Foreign Affairs, acting as Agent, by the rights of residence or establishment United Kingdom, represented by R. N. guaranteed by the Treaty by relying Ricks, of the Treasury Solicitor's upon public policy: the public policy of Department, acting as Agent, and by the Member State concerned must itself the Commission of the European be threatened; the threat must relate to Communities, represented by its Legal the future, since public policy may not be Adviser, J. Amphoux, acting as Agent, used to punish past conduct; it must arise assisted by F. Herbert of the Brussels from the personal conduct of the person Bar. concerned; public policy may not be relied upon to serve economic ends without jeopardizing the very objective of the Treaty; the threat to public policy 9. On hearing the report of the Judge- must be genuine and sufficiently serious, Rapporteur and the views of the that is to say it must affect "one of the Advocate General, the Court decided to fundamental interests of society" (cf. open the oral procedure without anv judgment in Case 30/77 Regina v preparator)' inquiry. Bouchereau [1977] ECR 1999); the concept of public policy must be interpreted strictly and restrictively ; it must be applied in a non-discriminatory manner; it may be the subject of a discretion retained by the Member States II — W r i t t e n o b s e r v a t i o n s sub- and exercised under the control of the mitted to the C o u r t institutions of the Community; it mav be applied only on condition that a series of procedural rules and requirements are observed; it is necessary that the conduct of the person concerned should A — Observations submitted In' the constitute a threat to public poliev as laid plaintiffs in the main proceedings down in the laws of the Member States:

The expression "equivalent attitude of the State" contained in Question (5) refers to the attitude of the United Kingdom in Case 41/74 Van Duyn Questions A (3), (4), (5), and (6). It is [1974] ECR 1337: its legislation did not clear from the judgment in the permit the punishment of the promoters Bouckereau case cited above that the of the sect complained of but an conduct complained of, which consti- amendment to the law had already been tutes a genuine and sufficiently serious planned which would allow the threat affecting one of the fundamental fundamental interests of the State to be interests of society must be criminally relied upon. The situation is quite punishable. Indeed, the State would be different when no-one has ever called relying on the interest pleaded in a into question the conduct concerned. discriminatory manner if that interest were not incorporated in its legislation. The requirement of prior incorporation in a criminal law is, moreover, the only- manner in which arbitrary actions by Member States prohibited by the Court in its case-law be avoided. In order to ensure that migrants seeking entry feel that there is certainty in the law and that Questions A (7) and (8). In this instance they may have confidence in the right of it is necessary to introduce an idea of residence and establishment conferred double proportionality. It is not sufficient upon them by the Treaty, it must be to consider in itself the perturbation to stated that their rights may be challenged public policy but account must also be only if they commit particularly serious taken of the personal circumstances of acts and they must be assured that they the Community national: the conse- may be charged with no conduct other quences of refusing or withdrawing than that which is punishable by a law residence or establishment permits would existing prior to such conduct. By be dramatic for an entire community permitting expulsions for conduct which which immigrated into Belgium several is not criminally punishable the door generations ago, mainly of Italian would be left open for expulsions for nationality, and would amount to cruel concealed reasons. Indeed, expulsion or inhuman treatment within the would often constitute a much more meaning of Article 3 of the European serious penalty for the persons concerned Convention on Human Rights, of Article 5 of the Universal Declaration on and their families than a criminal Human Rights and of Article 7 of the penalty. The result would be that the International Agreement on Civil and public policy exception contained in Political Rights of the United Nations Articles 48 and 56 of the Treaty would Organization. in fact have to be regarded as intro-

Question A (9). It is both the problem of campaign against crime, it is necessary the substantive nature of public policy that in each particular case a precise and the problem of the respect for examination should be undertaken and private life, freedom of conviction and that an unfavourable decision should be freedom of expression which are at issue made only where it is established that the here. A State may not consider itself to person concerned is actually connected be threatened by an attitude of an with criminal activities. individual which is not of such a nature as to give rise specifically and objectively to perturbations ascertainable in public. If it is of such a nature, however, it is the threat of perturbations which are taken into consideration and not the individuals' convictions themselves. Far more than a right to work is conferred upon the migrant worker by the Treaty S uestion A (12). The fundamental nature the principle of the free movement of persons within the Community means and by secondary law: a right to live in that there is an obligation on the the host country like other workers of Member States, when the personal that country and to enjoy the same rights conduct of a Community citizen may be as those workers. considered to be capable of threatening national public policy, to use in pref- erence in order to protect themselves all means other than the refusal or withdrawal of the residence or establishment permit; those measures may only be applied as a last resort and Questions A (10) and (11). The plaintiffs when there is a genuine necessity to do in the main proceedings wish to point so (cf. judgments in Case 36/75 Rutili out that they deny engaging in pros- [1975] ECR 1219 and in the Bouchereau titution, that no charge has, moreover, case cited above). ever been brought against them, that they wished to perform work other than that of waitresses and that the file on the case proves that they have sought other employment. Moreover, their being on view in the window presents such a small danger to public policy that many muni- Question A (13). In Belgium use is made cipalities in Belgium do not prohibit such in the case of Community citizens of conduct. Where there is such a documents entitled "Order to leave the prohibition, offences are punished merely country", sometimes signed by an official by minor penalties (peines de police). In from the Aliens Office and sometimes any event, prostitution is not prohibited merely by police officers or officials of in Belgium; only incitement to the municipality. The Belgian Law of 28 debauchery, often in the form of March 1952 on the supervision of aliens soliciting in public, is prohibited. The provides that only the Minister may Belgian authorities make no secret of the expel from the territory of the Kingdom fact that they are systematically expelling an alien who has lawfully entered that all French waitresses, perhaps because territory and that there may be no they may be "the logistic support" for delegation of that power. The Belgian the French underworld. Where residence authorities generally justify their actions or establishment permits are refused or bv claiming that it is preferable to issue withdrawn for reasons relating to the an order to leave the country rather than

As the Court has stated inter alia in the Boucbereau case cited above and in Case 131/79 Satinilo [1980] ECR 1585, the threat to public policy must be a present threat. The means that any Community citizen is entitled to a residence or establishment permit in any Member Question B (2). The plaintiffs in the main State if there can be no fear that his proceedings consider that it is necessary conduct is a present threat to public to go bevond the provisions of Articles 8 policy, even if that person has previously and 9 of Directive No 64/221, which in been imprisoned, convicted, expelled etc. their view are insufficient for the purpose It is also illegal to treat a Community of ensuring that the aims of the Treaty citizen to whom a first residence permit are achieved in his matter. If the Community legal order is based on the is refused as a person who has entered rights of residence and establishment, Belgium illegally even if he carries valid then it stands to reason that in the national identity documents. Member States rights of such importance must be protected by the courts, whose primary function is to guarantee the fundamental rights of the individual. In Belgium, apart from detention by the administrative authorities which is possible in cases of necessity for a very short period, only a court may take a decision affecting citizens' freedom of Question A (14). It is obvious that in movement. It would therefore be dis- order to inform the persons concerned of criminatory to allow the right of the grounds for the decision, it must be residence and establishment of ensured that a language is used which is

Community citizens to fall within the Commission favour the arguments of the discretion reserved to the executive Aliens Police. power. Would it, moreover, be possible to speak of genuine independence and genuine authority if the authorities called upon to take the decision and to deal with the matter on appeal did not come under different powers? Question B (4). In Belgium the Ministry of Justice, the authority which takes the decision, assumes the role of sole judge of the admissibility of actions: the alien has no right to be heard directly by the Consultative Committee. This practice Question B (3). In Belgium the three means that when a residence permit is members who sit on the Consultative refused, all the identity documents which Committee, which purports to be the the alien obtained when he lodged his authority required by Articles 8 and 9 of application, and in particular the pro- Directive No 64/221, are appointed by visional residence permit, are immedi- the Ministry of Justice, the authority ately withdrawn and he remains in which takes the decision withdrawing or possession only of an order to leave the refusing the establishment or residence country expiring on a given date. That permit. The secretarial duties of the order is renewed from month to month Committee are performed by an official until his case is submitted to the from the Ministry of Justice, and in some Committee. In the case of waitresses, cases by the ver)· person who dealt with before renewing the order to leave the the case of the person making the country for the length of the procedure, application. In certain cases only the the Ministry of Justice requires that they alien who made the application may cease work; this has a suspensor)· effect. appoint the third member of the Without an identity document it becomes Committee, but from a list drawn up by impossible for the alien to find new the Ministry of Justice. The Committee employment, except in particular is often presided over by a magistrate environments such as those of bars. The from the Public Prosecutor's Office, clear intention of the Ministry of Justice even though under the Belgian judicial in prolonging the procedure before the system there is a hierarchical relationship Committee is to discourage the alien. between him and the Minister of Justice. The alien never receives the actual decision of the Committee but only a summary drawn up by the official from the Ministrj' of Justice who acts as the secretary of the Committee. The alien is Question B (5). The answer should be in not informed of the names and capacities the affirmative. of persons sitting on the Committee and they do not appear in the text of the summary sent to him by the Committee's secretariat. There is only one Consul- tative Committee for the entire Kingdom and it sits at the offices of the Ministry Question B (6). An affirmative reply of Justice which are allocated to the should be given so long as the reason Police des Etrangers [Aliens Police]. relied upon is valid and important, a Practitioners in this field complain that matter which may be decided upon bv almost systematically the opinions of the the different authority on condition thai

Question B (7). Article 9 of Directive No 64/221 refers to "such rights of defence Question B (JO). The plaintiffs in the and of assistance or representation as the main proceedings refer to what has been domestic law of that country provides said concerning Question A (9). The for". In all proceedings in Belgium each morality of the person concerned does party has the right to submit written not constitute the ground of public statements and documents and to compel policy required by Anieles 48 and 56, if the courts to reply specifically to the there is no possibility of penurbations submissions of law and fact which it specifically and objectively ascertainable makes. The same should be true of the in public. proceedings in question, since the judicial function of the authority called upon to give its opinion is evident. Questions B (11), (12), (13) and (14). The plaintiffs in the main proceedings request the Court to state in an extremely Question B (8). The case of the plaintiff detailed manner the procedural rules to in Case 116/81 sufficiently illustrates the be observed. If they feel compelled to do importance of the question asked. It is so, it is because the files submitted prove surprising to see that without any proof sufficiently that the natural tendency of the person concerned is accused of the Belgian administration is to try to having contracted venereal disease even limit the procedural safeguards which an though it is now established that the alien may claim. Despite the intervention allegation was wholly incorrect. Clearly, of leading members of the Brussels and the Belgian State considered that it did Liège bars and the Opinions of not have to adduce evidence of the fact Advocates General Capotorti and and was content to rely upon it. Police Warner in Case 98/79 Pecastaing [1980] inquiries are frequently cursory in this ECR 691 and in the Sant'aio case cited matter and the proceedings and the above, the production of files in the decision do not differ according to proceedings before the Consultative whether the police inquiry produces a Committee continues to be refused. large or small amount of information Quite apart from the financial pre- concerning the personal conduct of the dicament in which the alien is normally person concerned, whose capacity as a placed following the refusal of a first French waitress alone is sufficient to residence permit, the mere fact that he is justify expulsion. obliged to travel to the capital of the host country in order to submit his defence may itself entail difficulties of such a nature as to jeopardize his right of defence. Question B (9). It is sufficient to recall the general rule of the presumption of innocence (Anicie 6 of the European Convention for the Protection of Human Rights, Anicie 11 of the Universal Question B (If). It seems clear that an Declaration on Human Rights and affirmative answer is required.

B — Observations submitted by the the territory (Case 115/81). In Case Belgian State 116/81 the Belgian State merely states, with regard to Question A (5), that the concept of public policy may vary from one country to another and from one Questions A (1), (2) and (3). A definition period to another (cf. Van Duyn which is too precise would be likely to judgment cited above) and that it is not fix the concept of public policy, whereas necessarily specifically defined in any it seems more important that it should be legal provision. able to evolve in order that it may adapt itself to the progress of each society. A fortiori, it would seem impossible to lay down the limits of the particular Question A (7). Where public policy is requirements of public policy which meet concerned, it is clear that no account the specific circumstances of each of should be taken of the difficulties caused the Member States. There is no by expulsion from Belgian territory, contradiction between the doctrine which vary from person to person. enunciated in the judgment in the Van Whatever view is taken concerning the Duyn case cited above and the principle scope of public policy, it is nevertheless of non-discrimination. The observations clear that within the same society it must of the Belgian State on the first two be applied to the same category of questions are in keeping with the persons without discrimination (Case doctrine enunciated in that judgment, 115/81). which defines a principle and lays down the limits of its application. It should be added that the subject-matter of the concept of public policy does not necessarily take the specific form of a Question A (8). This question is merely legal provision in the national legal of academic interest in this case. It does orders (Case 115/81). not directly concern the plaintiff in the main proceedings, a young person in good health who lives "by her charms" and does not need to concern herself with the consequences of expulsion from the territory of large families, elderly persons and minors (Case 115/81). Questions A (4), (5) and (6). These questions raise an interesting point of jurisprudence but are of no relevance to this case. The Belgian Law of 21 August 1948, repealing the national rules on Regard is of course had to the private or prostitution, provides that supplementary family interests, or both, of aliens in provisions may be adopted by the respect of whom an expulsion measure is municipal councils if their purpose is to envisaged. It is indeed true that an ensure moralitv and the public peace. By expulsion measure is only adopted in the Police Order of 24 October 1977 exceptional cases regarding certain cat- adopted by the municipal council of the egories of aliens, such as for example City of Liege the act of displaying those referred to in the question. It oneself in a window is punishable by a seems nevertheless hardly conceivable to "peine de police" (penalty for minor prohibit a Member State in general terms offence); such conduct is criminally from adopting expulsion measures, in punishable and justifies expulsion from any circumstances, with regard to aliens

It is possible to relate this question to Question A (10). The plaintiff in the main Question A (3) and the wording of it proceedings was not expelled from the might seem rather equivocal were it not territory because she had connections for the — fortunate — fact that it with the "international underworld", but embodies the concept of "personal because she worked in a bar which was conduct" to which the Court has suspect from the point of view of morals. attached paricular importance in its With regard to the fundamental problem judgments (Case 116/81). raised by this question, which goes beyond the issues raised by this case, il must be observed that personal conduct taking the form of prostitution in certain circumstances promotes criminal activities, in particular by the Question A (12). The Belgian State refers money which it raises for those who to its observations on Questions A (7), exploit prostitution (Case 115/81). (8) and (9) (Case 115/81).

JUDGMENT OF IS. 5 1982 — JOINED CASES 115 AND 116/81

Question B(l). The procedural safe- Question B13). In accordance with the guards are laid down by Article 9 of provisions of the Law of 28 March 1952, Directive No 64/221 and may be the secretarial duties of the Consultative outlined as follows: Committee were not performed by an official of the administration responsible for taking the decision but indeed by an "Different authority". independent official. Anieles 33 and 34 of the Law of 13 December 19SC provide that the chairmanship is held by two present, former or honorary magistrates The person concerned must be able to With regard to the appointment ot the assen his rights of defence: members of the "different authority", Anicie 33 of the Law provides that the members of the Committee are He must enjoy such rights of assistance appointed for a period of three years and or representation as the domestic law of that their appointment may be renewed. the country provides for: The allowances granted to the members

ADOU AND CORNUAILLE v BELGIUM

Question B (4). The authority which relied upon. For example Counsel for the takes the decision brings the matter plaintiff in the main proceedings has before the "different authority" in cases asked for and obtained an adjournment where the Law of 15 December 1980 on several occasions, the grounds relied requires the preliminary opinion of the upon being either holidays or other cases Consultative Committee. That opinion set down for hearing before other courts. may be requested only by the Minister of Any administrative court or tribunal

independent body. The authority which having granted adjournments on 13 takes the decision does not summon the September 1979, 29 Mav 1980 and 21 alien: the summonses are sent on the August 1980 (Case 116/81). initiative of the Chairman through the intermediary of the secretary of the Question B (7). The decision of the Committee, who, as has already been "different authority" must deal in detail stated, is an independent official. and to a sufficient extent with the submissions of law and fact put forward

Committee. As soon as that Law came the decision is required to submit "the into force, the plaintiff in the main file relating to the case" to the Chairman proceedings received a copy of the of the Consultative Committee at least opinion given by the Committee. eight working days before the hearing. The rapporteur of the Justice Committee Question B (6l. As is the rule before any of the Senate has emphasized that court, the Committee considers the Articles 34 and 36 of the Law mean that application for an adjournment and the security administration is obliged decides whether or not to accept it to submit a complete file, including depending on the ground relied upon. documents which it considers to be Any court or tribunal other than an confidential.

JUDGMENT OF 18. 5. 1982 — JOINED CASES 115 AND 116/81

ADOUI AND CORNUAILLE v BELGIUM

JUDGMENT OF 18. 5. 1982 — JOINED CASES 115 AND 116/81

ADOUl AND CORNĽAILLE v BELGIUM

JUDGMENT OF 16. 5. 1982 — JOINED CASES 115 AND 116/81

The French Government emphasizes that it is only if the detailed organizational rules of the "different authority" provided for by Anicie 9 of the directive Question A (2). On the other hand, the do not allow the alien to exercise his limitations may be common to the rights of defence and more generally Member States, but they are encroach upon the indispensable "limitations", that is to say limits beyond independence of that authority that the which it is forbidden to go but which do

ADOUI AND CORNUAILLE v BELGIUM

not define the concept. These limitations necessarily relate to the most serious are based on observance of specific rules conduct but are the result of a choice of of Community law in the field in legislative policy, above all in cases question and on the observance of the where, by reason of the particular nature general principles of law which safeguard of the conduct, such penalties are fundamental rights and regulate a regarded as the most effective deterrent democratic society; those principles are and, to a lesser degree, a means of also pan of Community law and require repression. inter alia that such limitations should be reasonable and proportionate. It is clear that the limitations must be restrictively interpreted.

JUDGMENT OF 18. 5. 1982 — JOINED CASES 115 AND 116/81

ADOUI AND CORNÜAILLE v BELGIUM

personally to be "informed" of the from an authority other than the one measures adopted. which adopted the contested measure.

Question B (3). It is natural that, as in Italy, the sittings of the Consultative Question B(l). A similar answer to that Committee should be under the auspices given in the Pecastaing case cited above, of the administration (of the Ministry of must be given with regard to Article 9 of the Interior) which, in general, concerns the directive, since that provision itself with problems of the kind in indicates that the safeguards must be question and that certain of its members based either on the possibility of an should,- for reasons of specific com- appeal to a court of law, which must not petence, belong to the same adminis- be limited to a review of legal validity tration. In a State whose constitution is and which must have suspensory effect, founded on the rule of law, the formal or on the opinion of a competent act of making an appointment on the authority in the host country before part of the Minister of the Interior which the person concerned enjoys rights certainly does not call in question the of defence (it may also be an independence of the body. administrative authority provided that it is different and independent from the one which adopted the measure, as the Court of Justice pointed out in the Questions B (4) and (5). It is clear that Santillo case). It does not seem possible the rules of procedure must be the to define in greater detail the "pro- national rules and that they must ensure cedural safeguards" which the Member that the opinion expressed is effective States must offer to a party who brings and genuine. It is also clear that the an appeal, since it is sufficient if the opinion, precisely because it is an appeal is to a court of law, is not limited opinion, must state the reasons on which to a mere review of legal validity and has it is based although it does not seem suspensor)· effect. The rules of procedure necessary that the "signatures of the applicable to the appeal may only be the members of the authority and . . . their national rules of procedure, which differ identities and capacities" should be from one State to another. included.

adopted within six months of submission to the authority which issues the opinion of the application. The person concerned and the person concerned must be able is authorized to remain on national to secure access to those documents. territory provisionally until the adoption of the decision issuing or withholding a residence permit. The period allowed to Questions B (12) and (13). The procedure nationals of a Member State to leave referred to in Article 9 of the directive is national territory may not be less than 15 a matter to be regulated by national law days in the event of refusal to grant a in a manner allowing the person residence permit, and not less than one concerned to defend himself adequately, month in the case of refusal to renew a incurring expenses consonant with the permit or of an order expelling the principle of proportionality, and within person concerned from national reasonable limits. territory, leaving aside cases of urgency. Likewise with the exception of cases of urgency, the decision whereby the auth- orities refuse to renew the residence Question B (14). At the very most it permit or expel from national territory a should be possible, for reasons of State person already authorized to reside there security, to conceal from the person is adopted after an opinion is obtained concerned the name of a police from the committee reponsible for such informant, whilst the importance of a matters, before which the person document alleged to be false should be a concerned may be assisted or represented matter governed by the legal provisions by a person within his confidence. At the of each State until the competent court request of the person concerned, the has given a decision as to its authenticity. committee is called upon to examine the decision refusing to grant a residence permit or expelling him from national territory even before the issue of a residence permit. In such a case, the £ — Observations submitted by the person concerned may be allowed to put Netherlands Government forward his defence personally.

bodies consider to be fundamental public concluded from this that the provisions interests which they must protect on of domestic law, which protect the their own initiative. The Court of Justice interests of society, must always carry a has subjected the power of discretion criminal penalty, since fundamental accorded to the Member States to public interests may also be protected by restrictions, one of which, a considerable a penalty under administrative or private restriction of a systematic nature relating law. Trie legal definition of interests to the definition, is derived directly from falling within the concept of public Article 2 (2) of Directive No 64/221: it policy provides the first criterion for an is not possible to rely on the exception of assessment as to whether "conduct public policy to sen-ice economic ends. constitutes a genuine and sufficiently Another restriction arising from serious threat affecting a fundamental Community law is the principle of pro- interest of society." It is also appropriate portionality, various applications of to have regard to the actual conduct which may be seen in, inter alia, the repugnant to public policy. A punishable Rutili, Sagulo (Case 8/77 [1977] ECR act, which is not serious in itself, may, by 1495) and Bouchereau cases. A last reason of the special circumstances in restriction follows from the principle of which it is committed (for example, in non-discrimination, the only exception the case of repeated offences), constitute being that, with regard to nationals of a danger to essential interesu of society other Member States, expulsion may be which cannot reasonably be tolerated. It ordered or admission refused. This would however not be correct to exception, which is logical in itself, is consider that only conduct which may nevertheless subject to a number of lead to public disturbances offends precise rules which are strictly against public policy. In private life also interpreted. interests which the State regards as public interests may be seriously jeopardized. The criterion according to which the conduct in question must manifest itself "in public" seems therefore to be inadequate.

responsible for deciding whether or not to terminate the right of residence or to they will in fact take such measure. As withhold such right for reasons which regards the question whether in this case although they certainly may be related to they should ha\re regard to particular protection of public polio,' cannot be circumstances relating to the person in directly ascribed to the behaviour of the question, this is in principle a matter person in respect of whom the measure is governed by national law. This is the adopted. The principle of non-discrimi- lesson to be drawn from the Royer nation is concerned not only with formal judgment. That power however ceases to inequalities. Inequality of specific exist once the reasons justifying it no treatment also implies selective safe- longer apply; where the Community guarding of public policy based on national in question no longer represents nationality and therefore constitutes a a direct and imminent danger to the case of prohibited discrimination. fundamental interests of society, he should again be allowed to exercise his right of free movement. It hardly seems possible to define in general terms those cases in which national authorities are obliged to admit that, in a particular specific case, valid grounds no longer exist for the imposition of restrictions F — Observations submitted by the upon that right. The fact that an United Kingdom individual must be in a position to ascertain in an appropriate manner the reasons justifying a restrictive measure relating to him moreover constitutes a principle of good administration generally accepted in the Netherlands. This might imply in certain circum- The concept of public policy. The United stances that the reasons should be Kingdom also takes the view that it is communicated to him in his mother neither necessary nor even possible to tongue unless he is fluent in the language give a definition of public policy as such. of the place where he resides. The term may be interpreted only in the circumstances of each individual case. There is no question of excluding certain factors from its scope merely because they do not constitute criminal offences (cf. the Van Duyn and Rutili cases). The procedure under Anicie 177 and the The principles of proportionality and judgments of the Court delivered to non-discrimination date, in conjunction with other safe- guards provided for by Communnv la» . offer a wholly satisfactory approach That basis enables a careful balance to be made between the needs and aims of each Member State which seeks to protect its legitimate interests (and those It is to be inferred from the Bonsignore of individuals) within its borderb. on the judgment that the restrictions on the one hand, and the needs of the right of free movement must be applied Community and nationals of Member having regard to the circumstances of States within the Community, on me each individual case. It is not permitted other.

Procedural safeguards. As to the general the concept of public policy by the question about the nature of the safe- application thereof was left to the guards to be provided by the Member Member States. This entails an important States, the answer is to be found in the consequence with regard to the Court's provisions of Directive No 64/221 and intervention within the framework of the decisions of the Court thereon. The preliminary proceedings: it may not be detailed questions raised by the court called upon to criticize a case of specific making the reference appear to be application of the concept where a public directed towards establishing the broad policy measure has been adopted by the proposition that the opinion referred to authorities of a Member State. It is in in Article 9 of the directive should be fact the responsibility of the national arrived at impartially. The courts of courts to ascertain whether individual Member States are competent to assess decisions conform to the provisions of the validity of the opinion given in a Community law (cf. Rutili judgment). particular case, specific answers to those questions not being necessary. Moreover, since procedural fairness can only be judged in the light of the circumstances of each particular case as a whole and the nature of the competent authority and procedure to be followed before it Rather than attempting to give an will vary as between Member States, it exhaustive list of the limits of would be inappropriate for the Court to Community law to which public policy lay down precise general procedural measures adopted by the national auth- rules beyond those contained in the orities are subject, the Commission directive. prefers to describe the legal foundations on which such limits are based. They may be grouped in four categories. In the first place there are limits deriving from the very nature of the measures taken on grounds of public policy in the Community context, which must be interpreted strictly (cf. Van Duyn case). Then there are limits connected with G — Observations submitted by the observance of the fundamental principles Commission of Community law and in particular the principle of non-discrimination. The Commission considers it appropriate to strike a balance between the application of the principle of non-discrimination, a pre-condition for which is of course the objective comparability of situations, and the power accorded to Member States to adopt public poliev measures limiting the The concept of public policy and its free movement of persons and applying limitations (Questions A (1) and (2)). The therefore specifically to Community Community legislature has endeavoured nationals. Measures taken in cases where not to give a common definition of Anieles 48 (3) and 56 of the Treaty are public policy but to guide the conduct of applied are however subject to the the national authorities by laying down second fundamental principle of the certain essentially negative criteria. The Community legal order, that of proporti- power not of defining in the abstract but onality. It is appropriate not onlv to rather of attributing a specific content to

ascertain whether the measure is really issued for its implementation (Sagulo necessary in order to uphold public judgment). policy, which would be to interpret the exception strictly, but also to establish that the threat is sufficiently serious to justify the measure envisaged. In other words, the assessment relates not only to the justification of the measure itself Scope of the principle of proportionality (Rutili judgment) but a comparison is (Questions A (7) and (8)). The exam- also made of the two interests involved, ination to which a public polio· measure the protection of national public policy is subject, as regards observance of this on the one hand and the free movement principle, relates in the first place to the of persons on the other, having regard to extent to which the proposed measure the fundamental character of the encroaches upon the principle of free principle of free movement, which the movement. The view was taken in the Court vigorously re-affirmed, in Watson and Belmann judgment that, particular in the cases of Rover, cited among the penalties imposed for failure above, 118/75 (Watson [1976] ECR to observe the prescribed declaration and 1185) and Sagulo, cited above. In more registration formalities, expulsion is general terms, the Court stated in the certainly incompatible, in the case of Bouchereau judgment that reliance by a persons protected by Community law, national authority on the concept of with the provisions of the Treaty, since public policy presupposes in any event such a measure constitutes the negation the existence, quite apart from the of the very right conferred and disturbance to the social order guaranteed by the Treaty. This does not represented by any infringement of the of course mean that expulsion, which law, of a genuine and sufficiently serious thus constitutes a particularly serious threat, affecting a fundamental interest penalty, may not, in a specific case, of society. Finally, there is one last according to the circumstances, also have limitation under Community law on considerable personal repercussions for recourse to national public policy the person concerned. measures: the person concerned must enjoy the protection of adequate pro- cedural safeguards enabling him to put forward his defence. This was stated in the Royer judgment and was embodied in the Rutili, Bouchereau, Pecastaing and Santillo judgments. Interpretation of the concept oj "sufficiently serious threat" (Question A (12)). Mr Advocate General Mayras, in his opinion in the Bonsignore case, merely expressed in other terms the requirement laid down by the Court that, on the one hand, the derogation is to be strictly interpreted and thai therefore Scope of the principle of non-discrimi- there must be a "genuine and sufficiently nation (Question A (3)). This principle serious threat, affecting a fundamental does not operate where the situations or interest of society" (Bouchereau judg- measures envisaged are not comparable. ment) and, on the other hand, the proposed measure must be necessary to Moreover, it only applies subject to safeguard the needs in question in a special provisions laid down in the democratic society (Rutili judgment). Treaty and the regulations and directives

Must the personal conduct justifying the applied exclusively because it is measure be the subject of a criminal considered that the individual belonging penalty? (Questions A (4), (5) and (6)). to that group constitutes, by his presence The Van Duyn, Watson and Belmann, or his activity, even in the past (cf. Sagulo and Bouchereau judgments clearly Bouchereau judgment), a genuine and illustrate that there is no necessary sufficiently serious threat affecting a connection between the classification of fundamental interest of society. There the threat to public policy posed by a is a general preventive measure if Community national as a criminal additionally or exclusively the object of offence and the requirement that that the restrictive measure was to achieve a threat should be of a sufficiently serious deterrent effect with respect to the nature. In the context of conduct which category of persons concerned. If is not criminally punishable, and having however the measure is exclusively regard to the discretion accorded to justified "either because public policy has Member States in determining the been seriously affected by the offence content of the concept of public policy, committed or because it is to be feared the necessary control by the Community that the person concerned will repeat the institutions is only possible if the anti-social acts in question" (Opinion of Member State concerned has, in one way Mr Advocate General Mayras in the or another, indicated clearly and un- Bonsignore case) it is not a measure of a equivocally its assessment of the harmful general preventive nature. nature of the conduct or activity concerned and its intention to adopt measures with respect to foreign nationals. The Commission takes the view that in such a case, at least by analogy with Article 7 of the European Convention on Human Rights, there is a general requirement that conduct may Interpretation of the concept of personal not be the subject of repressive measures conduct (Question A (11)). If the measure if such measures were previously is based on the fact that persons engaged unknown. in the "profession" of prostitution constitute in certain countries a means of supporting criminal activities, the failure to ascertain whether such connections are or have been established in the specific case of the person concerned constitutes a breach of the requirement thai personal conduct must be examined. Interpretation of the "measure of a general preventive nature" (Question A (1)). The measures adopted in the circumstances described are not measures of a general preventive nature as referred to in the Bonsignore judgment. The fact that a measure is justified by an individual's belonging to a category or group whose Mav private conduct be taken into activity is regarded as repugnant to account? (Question A (9)). It is not public policy does not make it a general possible to formulate a general principle preventive measure since, in each relevant to the assessment of a public individual case where it is applied, it is so policy measure under Community law,

relating to the "private" or "public" and disregards the principle of restrictive nature of certain conduct. If conduct interpretation of the derogation provided forming part of a person's private life is for in Article 48 (3) of the Treaty. This regarded by a national authority as does not on the other hand mean that a having repercussions outside that measure denying access to national person's private life, the Member State territory may not be repeated in response concerned may, by application of the to each fresh application, provided that principles laid down by the Court, take the national authority can prove that the view that its intervention is required each refusal falls within the limits of in order to uphold public policy. This is Community law described above. the case particularly in the field of morals: there are various types of conduct, of the sexual and other kinds, which are purely private, and which are viewed very differently as between one Member State and another and even, within a single Member State, from one period to another. Obligation to state the reasons for decisions (Question A (14)). The requirement that grounds must be stated, emphasized in the Rutili and Royer judgments, implies in particular that the State concerned, must indicate "precise and complete" grounds for the decision so as to enable the person in question to make the appropriate preparations for May an expulsion measure be definitive? his defence. Accordingly, a general (Question A (13)). A definitive decision statement of grounds not directly and expelling a person from the territory of a precisely related to the behaviour to the Member State undeniably constitutes an Community national concerned does not extremely serious measure, as the satisfy this requirement. As regards the Community national sees a right which language used, the effectiveness of the he acquires directly from the Treaty safeguard provided by the requirement permanently nullified (Watson and of a statement of grounds cannot be Belman judgment). Even· public policy guaranteed with certainly unless the measure adopted with respect to a grounds are indicated in the national Community national must be justified by language of the persons concerned or, in a genuine and sufficienti}· serious threat the case of nationals of multilingual affecting a fundamental interest of Member States, in the national language society (Bouchereau judgment). An which they speak. assessment of this kind is necessarily dependent on a number of specific circumstances which, by definition, vary from one period to another ( Van Duyn judgment!. The past conduct of the person concerned mav ļustifv inter­ vention by the authority provided that a genuine threat still exists [Bouchereau Minimum procedural safeguards (Question ludgment). Therefore. a definitive B(l)). Protection appears to be expulsion order, regardless of the insufficient in three cases: where there is conduct which gave rise to it. is in no appeal to a court of lau against the breach of the principle of proportionality decisions described in Anicie S of the

directive; where such appeals to courts of Committee is not liable to endanger its law are available but enable only the impartiality, since secretarial duties legal validity of the decision to be constitute merely an executive function reviewed, to the exclusion of any exami- and not a decision-making function. It is nation of the substance; where such true that Article 1C of the Law of 28 appeals, even where concerned with the March 1952 does not exclude the substance of the case, have no sus- possibility of the inclusion on the pensory effect (cf. Opinion of Mr Committee of a magistrate from the Advocate General Capotorti in the Public Prosecutor's Office.

The Commission espouses the view taken by Mr Advocate General Capotorti according to which, if such independence is to be effective, it is essential "that the person or persons comprising the advisory body should have no links whatsoever with the Questions on procedure be/ore the Consul- authority required to take the decision" tative Committee (Questions B (4), (i), (Pecastaing case). It is appropriate to (6), (7), (12), (13), (14) and (IS)).

JUDGMENT OF 18. 5. 1982 — JOINED CASES 115 AND 116/81

ADOUl AND CORNUAILLE v BELGIUM

outside the scope of Anicie 9 (2) of the previous criminal convictions may be directive. The Commission considers relied on must be governed by national however that the aim of that provision law. It may be seen from the Bouchereau is to provide minimum safeguards judgment that the existence of a genuine for Community nationals and that threat to public policy may be Community law may not prevent a constituted by criminally punishable Member State from affording in fact a conduct in the state of origin even in the more extensive safeguard by approaching absence of any criminal conviction. the Committee on its own initiative even Finally, a "repon on morality" drawn up with regard to measures envisaged by the local police of the district where against persons who do not yet hold a the person concerned resides, giving residence permit. Such a practice might, details regarding his conduct, etc., on the if it became widespread, encourage basis of general information, is not alone Community nationals not to comply with sufficient reliably to establish the the time-limit laid down in the Royal existence of a genuine and sufficiently Decree of 22 December 1969 and would grave threat affecting a fundamental therefore detract from their rights in so interest of society. far as they would, at a later stage, be met with the argument that their action was out of time.

Ill — Oral procedure

Decision

1 By orders of 8 May 1981, received at the Court Registry on 12 May 1981, the President of the Tribunal de Première Instance [Court of First Instance], Liège, in interlocutory proceedings, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions on the interpretation of Articles 7, 48 (3), 56 (lj and 66 of the Treaty and of Directive N o 64/221/EEC of the Council, of 25 February 1964, on the co- ordination 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 in particular Articles 3, 6, 8 and 9 thereof.

The questions were raised in actions brought against the Belgian State by the plaintiffs in the main proceedings, who are of French nationality, in connection with the refusal by the administrative authority to issue a permit enabling them to reside in Belgian territory, on the ground that their conduct was considered to be contran - to public policy by virtue of the fact that they were waitresses in a bar which was suspect from the point of view of morals.

? The Belgian Law of 21 August 1948 terminating official regulation of pros- titution prohibits soliciting, incitement to debauchery, exploitation of pros- titution, the keeping of a disorderly house or brothel and living on immoral earnings. It provides that supplementary regulations may be adopted by municipal councils, provided that their purpose is to uphold public morality or to ensure the keeping of the public peace. The police regulation of the City of Liège of 25 March 1957 and subsequent orders provide that persons engaged in prostitution may not display themselves to passers-by, that the doors and windows of the premises where they pursue their activity are to be closed and covered so that it is impossible to see inside and that those persons may not stand in the street near such premises.

6 Those questions are motivated by the fact that prostitution as such is not prohibited by Belgian legislation, although the Law does prohibit certain incidental activities, which are particularly harmful from the social point of view, such as the exploitation of prostitution by third parties and various forms of incitement to debauchery.

: The resenations contained in Anieles 48 and 56 of the EEC Treaty permit Member States to adopt, with respect to the nationals of other Member States and on the grounds specified in those provisions, in particular grounds justified by the requirements of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the national territory or to deny them access thereto. Although that difference of treatment, which bears upon the nature of the measures available, must therefore be allowed, it must nevertheless be stressed that, in a Member State, the authority empowered to adopt such measures must not base the exercise of its powers on assessments of certain conduct which would have the effect of applying an arbitrary distinction to the detriment of nationals of other Member States.

» It should be noted in that regard that reliance by a national authority upon the concept of public poliev presupposes, as the Court held in its judgment of 17 October 1977 in Case 30/77 Bouchereau [1977] ECR 1999, the existence of "a genuine and sufficiently serious threat affecting one of the fundamental

JUDGMENT OF 18. 5. 1982 — JOINED CASES 115 AND 116/81

n It should be noted that Anicie 3 (1) of the directive provides that measures taken on grounds of public policy or of public security are to be based exclusively on the personal conduct of the individual concerned. In that regard it is sufficient to refer to the judgment of 26 February 1975 in Case 67/74 Bonsignore [1975] ECR 297, in which the Court held thai "measures adopted on grounds of public policy and for the maintenance of public

ADOUI A N D CORN'UAILLE v BELGIUM

security against the nationals of Member States of the Community cannot be justified on grounds extraneous to the individual case, as is shown in particular by the requirements set out in paragraph (1) that 'only' the 'personal conduct' of those affected by the measures is to be regarded as determinative".

The thirteenth question

JUDGMENT OF !8. 5. I9S2 — JOINED CASES 115 AND 116/81

II — Questions regarding procedural safeguards

M These questions relate essentially to the composition of the "competent authority" referred to in Article 9 of Directive No 64/221. the qualifications and the term of office of its members, possible connections between those members and the authority remunerating them, the manner in which the matter is brought before the authority and the procedure before that authority.

io The directive does not spečih how the competent authority referred to in Article 9 is appointed. It does not require that authority to be a coun or to be composed of members of the judiciary. Nor does it require the members of the competent authority to be appointed for a specific period. The essential requirement is that it should be clearly established that the authority is to perform its duties in absolute independence and is not to be directly or indirectly subject, in the exercise of its duties, to any control by the authority empowered to take the measures provided for in the directive. Provided that that requirement is satisfied, it is not contran- to the provisions of the directive, or to its pupose, for the remuneration of the members of the authority to be charged to the budget of the department of the administration of which the authority empowered to take the decision in question forms pan or for an official belonging to that administration to s e n e as secretan· to the competent authority.

ADOVI AND CORNUAILLE v BELCIĽM

i7 As regards the manner in which the matter is brought before the competent authority in the circumstances referred to in Article 9 (2) of the directive, the latter contains no binding provision as regards the procedures in that respect. Although it does not prevent the person concerned from making a direct application to the authority, it does not require such an application and it allows the Member States a choice in that respect, provided that the matter is brought before the State authority once the person concerned has so requested.

THE COURT

in answer to the questions referred to it by the President of the Tribunal de Première Instance, Liège by orders of 8 May 1981, hereby rules:

1. A Member State may not, by virtue of the reservation relating to public policy contained in Articles 48 and 56 of the Treaty, expel a national of another Member State from its territory or refuse him access to its territory by reason of conduct which, when attributable to the former State's own nationals, does not give rise to repressive measures or other genuine and effective measures intended to combat such conduct.

2. Circumstances not related to the specific case may not be relied upon in respect of citizens of the Community, as justification for measures intended to safeguard public policy and public security.

3. Any national of a Member State who wishes to seek employment in another Member State may, if a measure expelling him from the territory of that State has previously been adopted, reapply for a residence permit. Where such an application is lodged after a reasonable period has elapsed, it must be examined by the appropriate administrative authority in the host State, which must take into account, in particular, the arguments put forward by the person concerned in order to establish that there has been a material change in the circumstances justifying the first expulsion measure.

4. The notification of the grounds relied upon to justify' an expulsion measure or a refusal to issue a residence permit must be sufficiently detailed and precise to enable the person concerned to defend his interests.

O'Keeffe Kooprnans Evening Chloros

Delivered in open court in Luxembourg on 18 May 1982.

P. Heim J. Menens de Vilmārs Registrar Presidem