C-265/88

3. In those proceedings, the Pretore has referred the following question to the Court: 'Foreigners are required to report, within three days of entering State territory, to the public security authority of the place where they are, in order to make themselves known and to make a declaration of 'May Anicle 3(c) in conjunction with residence. The same requirement applies to Article 56(1) of the EEC Treaty be inter­ foreigners when they transfer their residence preted as meaning that it is lawful for Italy from one commune in Italy to another. to impose on nationals of another Member Foreigners making only a short stay, who State of the Community an obligation to reside on Italian territory for recreational make a formal declaration of residence purposes for not more than two months within three days of entering Italian shall be required to make only the first territory, failing which they are liable to a declaration of entry'.

* Original language: French.

CRIMINAL PROCEEDINGS AGAINST MESSNER

6. Article 17 of the Consolidation Act lays services. For our purposes here, the down the relevant penalties: provisions of Community law applicable to both cases are based on identical principles.

'Infringements of the provisions of this consolidation act for which no penalty is 10. First of all, Article 8 of Council provided or for which the Penal Code does Directive 68/360/EEC of 15 October 1968 not make provision shall be punishable by a on the abolition of restrictions on movement term of imprisonment of up to three months and residence within the Community for or a fine of up to LIT 80 000'. workers of Member States and their families (Official Journal, English Special Edition, 1968 (II), p. 485) provides that: In the meantime, the maximum fine has been increased to LIT 400 000.

OPINION OF MR MISCHO — CASE C-265/88

Where such a period exceeds three months, movement for persons' (paragraphs the Member State in the territory of which 17 and 18). the services are performed shall issue a right of abode as proof of the right of residence. 13. Of course, it is understandable that the Pretore di Volterra considers the provisions at issue as incompatible with the growing Where the period does not exceed three feeling of the citizens of the Member States months, the identity card or passport with that they belong to a true community of which the person concerned entered the peoples and are no longer foreigners, in the territory shall be sufficient to cover his stay. full sense of the word, in any of the other The Member State may, however, require the 11 countries. person concerned to report his presence in the territory. 14. On the other hand, the desire of the governments of the Member States to achieve, as soon as possible, the complete 12. Since the position in Community law is abolition of controls on persons at frontiers thus perfectly clear, it is not surprising that will probably mean that some formalities in its judgment of 7 July 1976 in Case will be retained within countries in order to 118/75 Watson and Belmann [1976] ECR trace offenders of all kinds and to enable 1185, the Court stated that: national authorities to identify the persons who are temporarily carrying on economic activities in the national territory.

'(i) Community law has not excluded the power of Member States to adopt 15. However, with regard to a measure measures enabling the national auth­ such as the one at issue, the Court is not orities to have an exact knowledge of required merely to take formal note of it. As population movements affecting their it pointed out in paragraph 18 of the territory; judgment in Watson and Belmann, an infringement of the rules concerning freedom of movement for persons

17. In Watson and Belmann, the Court 20. In all the Member States, the rules are stated that more liberal. No declaration of arrival is required in Ireland or France. In the United Kingdom the rules in force at the present time require a declaration of arrival to be made within seven days, but the competent 'as regards the period within which the authorities do not apply the rules to arrival of foreign nationals must be nationals of the other Member States. In reported, the provisions of the Treaty are Denmark, a self-employed person or only infringed if the period fixed is unrea- employed person who takes up residence for sonable' (paragraph 19). less than three months need only make a declaration to the tax authorities. However, no time-limit is prescribed for that declaration. In the other Member States, a 18. However, it is certainly not easy to declaration of arrival must be made within establish what constitutes a reasonable time- eight days (Belgium, Greece, Luxembourg, limit. According to the Italian Government, the Netherlands), 10 days (Portugual) or 15 days (Spain).

'the time-limit of three days for reporting to the public security authority is not unrea­ sonable: it seems to accommodate fairly the 21. In order to assess whether or not the requirements of a foreigner who has entered three-day period allowed by Italy is the national territory and the aims of reasonable, account must also be taken of receiving information [about the movements the fact that the period starts to run once of foreigners within the national territory] the frontier has been crossed. However, it and of protection [of public order] which may easily take a traveller coming from the rule seeks to meet'. 2 northern Europe at least two days to reach a place in the southern part of the Italian peninsula.

24. Inasmuch as the obligation is intended 28. In paragraphs 20 and 21 of the to reveal the presence of foreign offenders judgment in Watson and Belmann, the Court at a certain place in the national territory, it stated that: is obviously in the interests of public order and public security that their presence should come to the attention to the auth­ orities as soon as possible. However, there 'among the penalties attaching to a failure can be no doubt that those who have to comply with the prescribed declaration something to hide take good care not to and registration formalities, deportation, in make a declaration of arrival. Therefore, as relation to persons protected by Community far as they are concerned, the time-limit of law, is certainly incompatible with the three days will remain a dead letter. provisions of the Treaty since, as the Court has already confirmed in other cases, such a measure negates the very right conferred and guaranteed by the Treaty;

25. However, the provision is also intended, more generally, to enable 'the national auth­ as regards other penalties, such as fines and orities to have an exact knowledge of popu­ detentions, whilst the national authorities lation movements affecting their territory' are entitled to impose penalties in respect of (see paragraph 17 of the judgment in a failure to comply with the terms of Watson and Belmann). In my view, since provisions requiring foreign nationals to those concerned will remain in the country notify their presence which are comparable to for up to three months, the public interest is those attaching to infringements of provisions not seriously harmed if they do not make of equal importance by nationals, they are the declaration until eight or even 10 days not justified in imposing a penalty so after their arrival. disproportionate to the gravity of the

'The failure on the part of a national of a Member State of the Community, to whom 33. In my view, that provision is a good the rules and freedom of movement for benchmark for the application of the workers apply, to obtain the special principle of 'penalties which are comparable residence permit prescribed in Article 4 of to those attaching to infringements of Directive 68/360/EEC may not be punished provisions of equal importance by nationals' by a recommendation for deportation or by laid down by the Court in its judgment in measures which go as far as imprisonment.' Watson and Beimanti. As the infringement consisting in not making a declaration of arrival is certainly not more serious than the infringement which consists in not regis­ 30. In that case the infringement was not tering with the commune when taking up a the same inasmuch as the offender had permanent residence, I am of the opinion failed to obtain a residence permit. that a national court should not impose a Obviously, when a foreigner fails to make a higher fine for failure to make a declaration declaration of arrival, as Lothar Messner of arrival than it would impose for failure to did, he commits a less serious offence. register with the commune. Therefore, imprisonment should a fortiori be ruled out in such cases.

31. With regard to the amount of the fine, 34. Moreover, a fine which may be as much the following observations may be made: as LIT 50 000 (approximately BFR 1 500) the fines imposed by the other Member could scarcely be regarded as States to punish a failure to make a declaration vary from BFR 60 to 1 500 in Belgium, from LFR 250 to 2 500 in Luxembourg, and not more than HFL 5 000 in the Netherlands and DM 5 000 in Germany. 'a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of persons' (paragraph 21 of the judgment in Watson 32. By way of comparison, the Commission and Belmann). points out in its written observations that Article 11(2) of Italian Law No 1228 of 24 5 — GURI No 8, 12 1 1955