C-297/88
ECLI:EU:C:1990:274
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OPINION OF MR DARMON — JOINED CASES C-297/88 AND C-197/89
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 3 July 1990 *
Mr President, his family may enjoy a more favourable Members of the Court, situation under Community law in a given Member State than nationals of that State enjoy under its legislation. The expression 1. The questions submitted for a 'reverse discrimination' is commonly used to preliminary ruling by the Tribunal de describe such a situation. première instance (Court of First Instance), Brussels, and the Cour d'appel (Court of Appeal), Brussels, stem from provisions of Belgian legislation, which call for some explanation. 3. Apparently, the Belgian legislature wished to forestall such consequences by providing, in Article 40 of the Law of 15 2. Without there being any need to go back December 1980, that the spouse, ascendants over the case-law of the Court at length, it and descendants of a Belgian national are to may be recalled that the Court has held as be treated in the same way as Community follows: nationals. And it is that very aspect of the national law which seems to have prompted the questions now before the Court, which '. . . the Treaty provisions on freedom of arose in a dispute which I now propose to movement for workers and the rules outline briefly. adopted to implement them cannot be applied to cases which have no factor linking them with any of the situations governed by Community law.
4. Mrs Dzodzi, a Togolese national, arrived in Belgium in February 1987 and married Such is undoubtedly the case with workers Mr Herman, a Belgian national, on 14 who have never exercised the right to February. Five days later Mrs Dzodzi freedom of movement within the Community'. 1 applied to the local authority at Soumagnes for a residence permit. Subsequently, the couple had to leave for Togo and Mrs Dzodzi's name was removed from the local In such a case the person concerned does authority's population register on 17 March not benefit by the Community right, and 1987. In early July 1987 the couple returned consequently his ascendants and his spouse to Belgium. Mr Herman died on 28 July. are not entitled to invoke a 'derived' right On 28 August 1987, Mrs Dzodzi applied of residence or right to remain. In view of for a Belgian residence permit. An 'arrival those principles, a Community national and declaration' of three months' validity was issued to her, and she was recommended to * Original language: French. apply for a residence permit on the basis of 1 — Judgment in Joined Cases 35/82 and 36/82 Morson and Jhanjan v Netherlands [1982] ECR 3723, paragraphs 16 the ordinary law on the ground that she was and 17. 'no longer covered by the Community
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directives'. The authorities subsequently measures in time in order to protect the rejected the applications made by Mrs rights which are under threat. Dzodzi on the basis of the Law of 15 December 1980 and issued her with a number of 'arrival declarations' intended to enable her to wind up her husband's estate. 6. It is not necessary to comment at length on the first two questions put by the Tribunal de première instance. It is clear from the documents forwarded by the national court and from the observations of
5. At this point Mrs Dzodzi applied to the the parties to the main proceedings that President of the Tribunal de première there is no factor connecting the situation instance in Brussels for an order requiring under consideration by that court with the Belgian State to issue to her a residence Community law. This is the case where the permit in her capacity as the spouse of a spouse of the person concerned never national of a Member State of the European exercised the right of free movement in the Economic Community. Three questions 3 Community. Mr Herman did not avail were submitted for a preliminary ruling in himself of his right of free movement in the those proceedings. The first two questions Community, and therefore the situation is concern the right of residence and the right purely an internal one. to remain of a person in Mrs Dzodzi's
position. The third question, which is to be answered if the first two are answered in the negative because Mrs Dzodzi's husband was 7. However, the national court appears to a Belgian national, seeks to establish what have anticipated that conclusion, for, in case the position would be if the deceased had the Court should give a ruling to that effect, been a national of a Member State other it sets out an alternative question, after than Belgium. Mrs Dzodzi appealed against pointing out that under the national law the the order of the lower court, which had spouse of a Belgian national is treated as if stayed the proceedings on the admissibility he or she were a Community national.
It of the action and had reserved judgment on asks this Court whether Mrs Dzodzi would the application for a provisional residence have the right to reside and remain in permit. In the course of the appeal, the Belgium if her husband had been a national Cour d'appel, Brussels, in turn submitted of a Member State other than Belgium. two questions to this Court for a preliminary ruling. The first asks whether persons to whom Council Directive 2 64/221 / EEC applies may be debarred 8. The interpretative ruling is requested for from resorting to proceedings for interim the purposes of the application of the relief. The second question is concerned Belgian law containing the provision with the interpretation of Articie 9 of the referred to above as is clear from the very directive. The issue is, basically, whether wording of the question. However, in my interested persons must have access to a opinion it is not competent to this Court to remedy whereby they can apply, as a matter give the ruling requested of it.
Nevertheless, of urgency, for a national judicial body to I do not intend to invoke the principles laid intervene before the measure complained of down in the judgments in the cases of Foglia 4 is carried out, the aim being to secure v Novello as to the need for a genuine dispute — the existence of which, moreover, 2 — Council Directive 64/22I/EEC of 25 February 1964 on the coordination of special measures concerning ine movement 3 — See the judgment in Morson and Jhanjan, cited above and residence of foreign nationals which are justified on grounds of public policy, public security or public health 4 — Case 104/79 Foglia v Novello [1980] ECR 745 and Case (OJ. English Special Edition 1963-64. p 117) 244/80 Foglia vNovello [1981] ECR 3045
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OPINION OF MR DARMON — JOINED CASES C-297/88 AND C-197/89
is beyond doubt in this case. No more shall that is to say, uniform content in its field of I propose that the Court express a view on application. It would be a sui generis the necessity or relevance of the question, operation designed to assist the national which the national court alone is competent court in giving effect to national law alone to assess. It is, however, appropriate to and outside the field of application of recall the function of the mechanism of the Community law. preliminary ruling:
'Article 177 is essential for the preservation 11. I would stress that the unity of the of the Community character of the law Community legal order is unaffected by established by the Treaty and has the object situations outside its field of application, of ensuring that in all circumstances this regardless of the substantive content of the law is the same in all States of the provisions governing those situations. There Community'. 5 is no Community law outside its field of application: what is important therefore for its proper application is its unity within the Inherently, this aim of the preliminary scope ratione personae and ratione materiae ruling procedure, namely to ensure that which it itself determines. The fact that the Community law is uniform in its effects, concepts which it uses within the limits of its clearly applies only within the field of scope may be employed on a unilateral basis application of Community law, as it is in order to deal with a given aspect of a defined by Community law and by piece of national legislation cannot extend Community law alone. the field of application of Community law and, with it, the competence of the Court of Justice. 9. A reference made to Community law by a national law cannot extend the scope ratione materiae or ratione personae of Community law. Such a reference is 12. For the rest, I would like to touch on unilateral and independent and, in referring some of the queries which would be raised to a given substantive provision of if the role of the preliminary reference Community origin, has no effect on the mechanism were to be extended: field of application of Community law as such. It is Community law itself and Community law alone that defines the necessary connecting factor for the (i) Could courts against whose decisions provisions governing the free movement of no appeal will lie conceivably be bound persons. by an obligation to request the Court for a preliminary ruling in cases similar to the present case? 10. Where there is a reference of the sort made by Belgian law in this instance, the persons concerned are covered by national law alone. In such a case the Court's ruling (ii) Similarly, would it be possible to on interpretation would not be to ensure visualize, even in principle, an that Community law has uniform effects, application to review the validity of Community provisions to which — Case 166/73 Rheinmüblen v Einfuhr- und Vorratsstelle füh reference is made by national law on a Getreide [1974] ECR 33, paragraph 2 (my emphasis). unilateral and independent basis?
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(iii) Finally, and above all, what authority two questions, that Directive 64/221 may be would the Court's ruling have? Irres relied upon only by persons who are in a pective of the attitude which the situation which exhibits a factor linking it national court might foreseeably take with Community law. after referring a question to this Court, which would be purely circumstantial, would it be legally bound by the terms of the ruling, given that it has to give 14. The need for such an answer is effect to national law and to national especially great, since it is clear from the law alone? grounds of its order that the Cour d'appel is in doubt as to whether Belgian legislation could, without infringing Community law, These serious questions cast some light on withhold from certain aliens the right to the grave difficulties which would be seek interim relief. involved if the Court of Justice were to embark. upon ill-defined cooperation, outside the confines and precise aims of the preliminary ruling mechanism. In other 15. As I have already observed, a reference words, the Court's role would then consist made by national law to Community law in delivering opinions or giving advice of does not have the effect of extending the the kind which a legal expert is sometimes latter's field of application. But that would called upon to give to a domestic court indeed be the result if a person in a merely when it is required to apply foreign law. domestic situation, subject to national law That is not the role of this Court in the alone, could invoke Community law in context of a preliminary ruling. 6 order to have national legislation relied on against him set aside by virtue of the 13. Lastly, I propose that the Court should reference which the national legislation inform the Cour d'appel, in answer to its makes to Community provisions.
16. Accordingly , I propose that the Court should :
(1) rule, in answer to the first two questions of the Tribunal de première instance, Brussels, that where a Community national has not exercised the right of free movement within the Community , his or her spouse may not claim, under Community law, a right to enter , reside or remain in the Member State of which the aforesaid Community national is a national ;
6 — 'The truly original innovation of the Treaties of Rome was to institute, for the purpose of the application of Community law. direct links between judicial authorities in the form of a relationship which is far more than mere consultation, namely a relationship pitched on the plane of jurisdiction and powers' Pescatore. P Le droit de l'integration, 1972, A W Sijthoff-Leiden, Institut universitaire des hautes etudes internationales, Geneva (my emphasis)
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OPINION OF MR DARMON —JOINED CASES C-297/88 AND C-197/89
(2) declare that it has no jurisdiction to answer the third question put by the Tribunal de première instance, Brussels;
(3) rule, in reply to the two questions put by the Cour d'appel, Brussels, that the procedural guarantees introduced by Articles 8 and 9 of Council Directive 64/221/EEC are not binding on the Member States vis-à-vis persons who are not in a situation provided for by Community law, for instance the spouse of a Community national where the latter has not worked as either an employed person or a self-employed person in a Member State other than a State of which he is a national.
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