C-68/89

3. The provisions of the opening 2. Aliens' right of entry and frontier super- subparagraph and subparagraph (c) of the vision are governed in the Netherlands by, foregoing paragraph shall not apply to the inter alia, the Vreemdelingenwet (Law on nationals of a Member State who are aliens) of 13 January 1965 and by the seeking employment.' Vreemdelingenbesluit (Aliens Order) of 19 September 1966, Article 23 of which provides : That legislation was brought to the * Original language: Italian. Commission's attention by a complaint 1 — Directive 68/360/EEC of the Council of 15 October 1968 made by a German national who, on being on the abolition of restrictions on movement and residence questioned by the border authorities as to within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (I), the purpose of his journey, first stated that p. 485). he was under no obligation to answer and 2 — Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence with then that he had only five German marks in the Community for nationals of Member States with his possession; he was, for that reason, regard to establishment and the provision of services (OJ 1973 L 172, p. 14). refused entry to Netherlands territory.

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COMMISSION v NETHERLANDS

The two directives referred to by the Commission apply, in the defendant's contention, to those people who already have a right of residence under the Treaty Moreover, Article 3(1) of Directive 68/360 and the secondary legislation; and it is and Article 3(1) of Directive 73/148 require precisely that situation that the frontier the Member States to admit to their authorities should be able to check, albeit, territory those persons to whom those of course, in a manner which is not liable, directives are applicable, merely upon pres- in fact or in law, to undermine the entation of a valid identity card or passport. Community principle of free movement of persons.

However, even if those provisions do not 6. As is apparent, the question raised is not expressly prohibit the questioning of citizens one that can be resolved solely by of a Member State, when they cross a construing specific provisions of the two frontier, on matters unconnected with their directives referred to but relates more identity documents, it seems obvious, in the generally to an assessment of the very scope Commission's view, that to put questions to of the principle of free movement of persons

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OPINION OF MR TESAURO — C A S E C-68/89

It should also be remembered that, by virtue of decisions of the Court, tourists come within the scope of the Treaty as recipients of services. 8 Furthermore, as the Court itself has emphasized on several occasions, the right 5 — Regulation (EEC) N o 1612/68 of the Council of 15 October 1968 on freedom of movement for workers of the citizens of a Member State to enter within the Community (OJ, English Special Edition 1968 the territory of another Member Sute and (II), p- 475). to reside there, for the purposes envisaged 6 — Regulation (EEC) N o 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member in the Treaty, is conferred directly by the State after having been employed in that State (OJ, English Special Edition 1970 (II), p. 402). Treaty itself or, as the case may be, by the provisions adopted for its implementation. 4 7 — Council Directive 75/34/EEC of 17 December 1974 concerning the right of nationals of a Member State to remain in the territory of another Member State after having pursued therein an activity in a self-employed 3 — Case 118/75 Watson and Btlmann [1976] ECR 1185, capacity (OJ 1974 L 14, p. 10). paragraph 16. 8 — Case 186/87 Cowan [1989] ECR 195, paragraph 15; 4 — Case 157/79 Keek [1989] ECR 2171, paragraph 4; Case Joined Cases 286/82 and 26/83 Luisi and Carboni [1984] 8/77 Sagulo [1977] ECR 1495, paragraph 4. ECR 377, paragraph 16.

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COMMISSION v NETHERLANDS

As already pointed out by Advocate General Warner in his Opinion in Pieck,10 Article 3 In those circumstances, the Netherlands of Directive 68/360 (and the same argument Government's claim that it is entitled to applies to the corresponding Article 3 of carry out frontier checks, albeit on an Directive 73/148) contains an apparent unsystematic basis, to establish whether a contradiction. It applies only to persons to citizen of another Member State falls within whom the directive applies, yet it requires the scope of the Community legislation and Member States to allow such persons to thus enjoys a right of entry is seen to be enter their territory simply on production of unsubstantiated or, if not, liable to create a valid identity card or passport, a serious obstacles to the free movement of document which is inherently unlikely to persons. Indeed, such controls would be show whether the holder is a person to pointless if the frontier authorities had to whom the directive applies. base their checks solely on the replies given

9 — Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26); Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity (OJ 1990 L 180, p. 28); Council Directive 90/366/EEC of 28 June 1990 In the face of such a provision, there are but on the right of residence for students (OJ 1990 L 180, p. 30). Those three directives were adopted on the basis of two possibilities: to conclude that it is Article 235 of the Treaty; the time-limit imposed on the Member Sutes for adoption of the necessary implementing provisions is 30 June 1992. 10 — Case 157/79, cited above.

11. Before concluding, I should like to refer, in order better to clarify my reasoning, to a particular aspect of the problem at issue in the present case, namely the power of the authorities responsible for T h e reasons which, according to Advocate frontier checks to put questions to nationals General Warner, militate in favour of the of Member States on grounds of public latter solution are essentially twofold. In the policy, public security or public health (see first place, the fact that pursuant to Anieles Article 10 of Directive 68/360 and Article 8 4 and 8 of Directive 68/360 (the same of Directive 73/148). applies to Article 4 of Directive 73/148) it is only when applying for a residence permit that the person concerned must furnish proof that he falls within the scope of the legislation; and, secondly, the consideration that the authors of the directive, aware of This issue was extensively discussed at the the great breadth of the principle of free hearing and in addition the United movement of persons, could not have Kingdom, which intervened in support of intended to make it more difficult to cross the defendant, attached particular Community frontiers by making controls importance to the fact that certain questions more burdensome. may legitimately be put in the event of its being necessary to establish whether the document produced is valid or whether the person producing it is its lawful holder.

10. That reasoning, which I share to the full, also seems to me to be supported by 12. The hypotheses put forward by the the grounds of the recent judgment in United Kingdom Government are classic Commission v Belgium, ' · in which the instances of situations in which the Court, after stressing that 'the only precon- competent authorities are not only dition which Member States may impose on empowered but are also under an obligation the right of entry into their territory for the to make the requisite inquiries, but it seems persons covered by the abovementioned to me that even in circumstances other than directives is the production of a valid those extreme cases the officials responsible for frontier checks may put questions to 11 — Case 321/87, [1989] ECR 997, paragraphs U to 15. people whose behaviour is such as to raise

suspicions or, in any event, in circumstances by grounds of public policy or public in which public security appears particularly security must be justified by the existence of threatened. particular circumstances; and in the second place that the national authorities will be under a responsibility, where they believe that they should refuse a Community citizen access to their territory, to justify the adoption of such a measure specifically in relation to the personal conduct of the person in question, 14 bearing in mind that 'in so far as it may justify certain restrictions In that connection, however, it must be on the free movement of persons subject to made clear that whilst it is true that 'the Community law, recourse by a national particular circumstances justifying recourse authority to the concept of public policy to the concept of public policy may vary presupposes, in any event, the existence, in from one country to another and from one addition to the perturbation of the social period to another and it is therefore order which any infringement of the law necessary in this matter to allow the involves, of a genuine and sufficiently competent national authorities an area of serious threat to the requirements of public discretion within the limits imposed by the policy affecting one of the fundamental Treaty and the provisions adopted for its interests of society'. 15 implementation', 12 it is also true that, as the Court also stated recently, 'the restriction which the EEC Treaty lays down concerning free movement of persons on grounds of public policy, public security or public health must be regarded not as imposing a condition precedent to the acquisition of the right of entry and residence but as providing the possibility, in individual cases where there is sufficient 13. In the light of the foregoing consider- justification, of imposing restrictions on the ations, I am of the opinion that the exercise of a right derived directly from the Netherlands legislation is not in conformity Treaty. It does not therefore justify admin- with Directives 68/360 and 73/148; istrative measures imposing in a general way however, there is no evidence to show that formalities at the frontier other than the the Kingdom of the Netherlands has speci- mere production of a valid identity card or fically infringed the provisions of the Treaty passport'. 13 to which the Commission refers in its application but which, on the other hand, it did not expressly advert to at the pre-liti- gation stage.

(3) Order the intervener to bear its own costs.

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