C-321/87

OPINION OF MR TESAURO — CASE 321/87

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 7 March 1989*

Mr President, establishment permit, if imposed when a Members of the Court, person crosses the frontier, is in breach of the Community directives concerning free movement, and specifically Directive 68/360 ' in the case of employed persons 2 and Directive 73 / 148 regarding self- 1. The infringement of which the employed workers and providers of services. Commission accuses the Kingdom of Belgium consists in the national authorities' subjecting nationals of other Member States residing in Belgian territory to certain non-systematic controls at the frontier on their return from a trip abroad, in particular Article 3 of each of the two directives has requiring them to produce not only their the same wording, as follows: passport or identity card but also a residence or establishment permit. That fact is not disputed by the Belgian Government.

'(1) Member States shall grant to the 3 2. The inspection of the document in persons referred to in Article 1 the question is provided for in Article 38 of the right to enter their territory merely on Belgian Royal Decree of 8 October 1981 production of a valid identity card or governing aliens' access to, residence and passport. establishment in and expulsion from its territory, which is worded as follows:

5. According to the Commission, however, in the cases which it criticizes, Community 8. Although in its rejoinder the Belgian nationals residing in Belgium who were Government attributes to the Commission crossing the frontier to re-enter Belgium the view that production of the residence or territory after going abroad were subjected establishment permit constitutes the to an additional burden not mentioned in substance of an additional obligation equi­ the Community directives, which merely valent to the obligation to obtain an entry require 'production of a valid identity card visa, nothing of the kind can be found in or passport' which means in particular that the submissions of the Commission, which the Member States are not entitled to limits itself to claiming that the ultimate require an entry visa or any equivalent obli­ effect of the practice adopted by the Belgian gation. authorities is to impose upon the persons concerned an additional obligation when they re-enter Belgian territory, which is contrary to the provisions of the directive according to which the right of entry is to 6. In the course of the procedure, the be exercised 'merely on production of a Belgian Government conceded in its valid identity card or passport'. rejoinder that 'inspection of the residence permit provided for in Article 38 of the Royal Decree of 8 October 1981 must be carried out on Belgian territory and not 9. Thus, and in view of the fact that it is before entry into that territory'. It observed agreed that nobody's entry into Belgium is that 'the frontier inspection normally (takes subject to production of a residence or place) upon entry into the national territory' establishment permit, the parties' reference and inferred from this, as a logical to the judgment of 3 July 1980 in Case corollary, that 'it is obvious that the auth­ 157/79 Regina v Piecka no longer appears orities responsible for that control are not pertinent — in that case the precise issue to allowed to require production of the be clarified was whether 'an endorsement residence permit'; and it undertook to give stamped on a passport at the time of arrival instructions to the officials concerned to giving leave to enter the territory' might be avoid controls in the future which run regarded as an entry visa or equivalent counter to national law. document. Here, on the other hand, the Translator's noie m ihc English version there is a slight difference of wording 4 — [1980) ECR 2171

only question that arises is the compatibility proof to be required of a right of residence or otherwise with Community law of upon entry into the territory of a Member controls like those involved in these State appears to be justified by certain proceedings, which are not mentioned in grammatical features of the formulation of paragraph (1) of Article 3 of either of the the provisions together with the abovementioned directives, and likewise all-important fact that it is impossible to cannot be regarded as equivalent to an entry attribute to the authors of the directives on visa, since entry to the territory is in no way freedom of movement the intention to conditional upon them. render the crossing of the frontiers between the various Member States more difficult by combining verification of identity with an inspection of residence and establishment permits. 10. In order to resolve this problem, it seems to me to be appropriate to take as the starting point the fact that, in each of the directives in question, the provisions concerning a person's right to enter the territory of a Member State are very 13. In principle, therefore, the only control different from those relating to the right to which is intended to operate at the time of reside in that State. and in relation to the crossing of a frontier is the checking of personal identity, which, moreover, is the only inspection expressly provided for in Article 3 of the two directives. 11. As Mr Advocate General Warner observed in his opinion in Pieck, the authors of the directives were faced with two options: they could have made the right of access conditional upon proof that the 14. The Belgian Government contends, person concerned had a right of residence, however, that the two controls are different being one of the persons mentioned in in character and that there is no reason for Article 1 of either directive, or else they regarding the fact that they are carried out could have prescribed that 'Member States simultaneously as incompatible with should allow each other's nationals to enter Community law, since the inspection of their territories simply on proof of their residence or establishment permits does not nationality and ... any question as to their involve any prohibition of access to the right to be there under the Treaty should be territory in the event of failure to produce examined after entry'. the required documents and does not involve '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 They manifestly chose the latter alternative. frontier', to use the words of paragraph 10 of the judgment in Pieck. In the absence of any link with leave to enter, there is no possibility, it is contended, of classifying a formality like the inspection of residence 12. The interpretation of the provisions at documents as one of the cases covered by issue to the effect that they do not allow the case-law of the Court.

15. By way of opposition to that formal prohibited by the abovementioned argument it might be objected that the provisions. systematic combination of the two controls might indirectly affect the right of entry, by delaying crossing of the frontier or in any event by rendering it more complicated for the persons concerned. Indeed, it would be However, neither can a Member State be illogical to take the view that, whilst prevented from carrying out in particular excluding inspections of residence cases, and not systematically, inspections of documents in order to reduce the entry residence permits at frontier crossings, formalities, even though they could have inspections which in any event would be combined the two controls, thus making it allowed immediately after entry into its possible immediately to establish at the territory; and the reasons for this, relating frontier whether or not a person had a right to the simplification of entry formalities in a of residence, the authors of the directive broad sense, are the same as those which should then have intended tacitly to tolerate persuade me that any systematic control is a systematic combination of the controls on unlawful. Sporadic and exceptional controls, the initiative of the Member States, when for example in connection with particular the sole effect of so doing would be to events, of the kind referred to by the make crossing of the frontier subject to Belgian Government's representative at the hearing, do not seem to me to be likely to greater formalities, without however affect freedom of movement and do not retaining the specific advantage which might appear to constitute an infringement of the accrue from the simultaneous carrying out directives concerned. In other words, such of the inspections of preventing the entry of controls, like those described in the persons without a residence permit. documents before the Court, which are neither systematic nor frequent, not only do not fall within the express scope of the prohibition laid down by the directives in question, but also do not run counter to 16. A systematic inspection of residence their underlying liberalizing spirit, as might permits at the frontier might also create be the case if, on the other hand, they were serious obstacles to the free movement of systematic. And in that connection it is right persons, if it is borne in mind that an and proper that the officials concerned increasing number of workers, self- should receive precise instructions of the employed persons and providers of services kind described, in accordance with the move from one Member State to another intention expressed by the Belgian and would be subject to that inspection. Government in the course of the procedure.