C-363/89
ECLI:EU:C:1990:339
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OPINION OF MR TESAURO — CASE C-363/89
OPINION OF MR ADVOCATE GENERAL TESAURO * delivered on 2 October 1990
Mr President, underlying these proceedings, and refer for Members of the Court, the rest to the Report for the Hearing.
1. In this reference for a preliminary ruling the Tribunal de première instance (Court of 2. Mrs Roux, a French national, arrived in First Instance), Liège, has referred to the Belgium where she made an application for Court four questions on the interpretation a residence permit to the municipal auth of certain provisions of the Treaty and orities of Liège, in which she stated that she secondary legislation concerning freedom of was working as a self-employed waitress. movement for workers and the right of establishment, in particular Articles 3(c), 7, 48 et seq., and 52 et seq. of the Treaty, Council Regulation No 1612/68 1 and The Office des étrangers rejected that Council Directives Nos 68/360 2 and request, stating that Mrs Roux was not 73/148 3and 64/221. 4 working as a self-employed waitress, but was working in an employed capacity for an employer; Mrs Roux had not carried on that activity in conformity with the social Those questions are closely interrelated and legislation in force in Belgium for employed essentially concern the nature of the right of persons. She was therefore ordered to leave residence enjoyed by Community citizens the country. pursuing an economic activity in a Member State other than that of which they are nationals.
Mrs Roux challenged that decision, requesting in interlocutory proceedings the The legislative background to the dispute is grant of a residence permit and the only too well known, so that I shall limit suspension of the deportation order. myself to a brief summary of the facts
* Original language: Italian. 1 — Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 3. The national court has found that the 1968(II), p. 475). competent Belgian authorities are not 2 — Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within disputing that Mrs Roux is in fact carrying the Community for workers of Member States and their on an economic activity in Belgium and, families (OJ, English Special Edition 1968(II), p. 485). 3 — Council Directive 73/148/EEC of 21 May 1973 on the considering that in Belgium there are two abolition of restrictions on movement and residence within separate types of residence permit, the Community for nationals of Member States with regard to establishment and the provision of services (OJ depending on whether the activity is carried 1973 L 172, p. 14). on as an employed person or a self- 4 — Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the employed person, has referred to the Court movement and residence of foreign nationals which are of Justice four questions which may be justified on grounds of public policy, public security or public health (OJ, English Special Edition 1964, p. 117). summarized as follows:
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(1) Is the right of residence, and thus the I would first of all point out that the Court issue of the relevant permit, subject held in its well-known judgment in Royer under the applicable Community rules that '. . . the right of nationals of a Member to compliance with national social State to enter the territory of another security provisions? In particular may a Member State and reside there for the deportation order be justified by the purposes intended by the Treaty — in fact that the individual in question is particular to look for or pursue an occu registered with the social security pation or activities as employed or self- scheme for self-employed persons rather employed persons, ... — is a right than the scheme for employed persons? conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation'. 5 Consequently, as the Court itself has held, the right of residence is acquired independently of the grant of a (2) Do the relevant articles of Directives residence permit by the competent authority 68/360 and 73/148 preclude Member of a Member State. The grant of that per States from requiring registration in the mit is therefore to be regarded 'not as social security scheme for the purpose a measure giving rise to rights but as a of obtaining a residence permit? measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of Community law'. 6
(3) Do the applicable Community rules require Member States to grant the residence permit where there is no dispute that an economic activity is being carried on, although its classifi It is therefore clear that the residence permit cation (on a self-employed or employed is exclusively declaratory of the rights of basis) is disputed? Community citizens, if certain conditions are met.
(4) Are the Member States empowered under those rules to refuse to issue a 5. In the present case it is not contested that Community citizen with a residence Mrs Roux is carrying on an economic permit on the ground that he is not activity in Belgium and, given that the right carrying on his activity in conformity of residence, as the Court has explained on with the social legislation in force? several occasions, is subject only to the condition that the person concerned carries on an economic activity falling within the scope of either Article 48, or Article 52 or Article 59 of the Treaty, it follows that Mrs 4. The Court has already had occasion to Roux enjoys that right under the applicable rule on such matters in a number of cases. Community rules irrespective of whether she Thus a settled and exhaustive case-law enables a ready reply to be given to the 5 — Judgment in Case 48/75 Royer [1976] ECR 497, at para questions raised by the national court, graphs 31 to 33 To the same effect see judgment in Case which, I repeat, essentially concern the 8/77 Sagulo [1977] ECR 1495, and the ludgment in Case 157/79 R. v Puck [1980] ECR 2171. nature of the right of residence. 6 — See the Royer judgment, cited above, at paragraph 33
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carries on that activity as a self-employed or 6. It may accordingly be stated that the as an employed person. Member States are not entitled to require other documents or to impose any other conditions than those provided for by the Community rules in question.
On that basis, it is further necessary to verify whether the conditions for the issue of the residence permit are met. In the case of an employed person the conditions to be satisfied by a Community citizen are twofold: he must be in possession of a passport or identity card on entry into the That finding enables a single reply to be territory of another Member State and must given to the national court's first three produce an employer's certificate (Article 4 questions. The fact that in the present case of Directive 68/360). A self-employed the classification of Mrs Roux's activity is person, in addition to being in possession of the subject of discussion is irrelevant for the one of the abovementioned identity purposes of the applicable Community rules. documents, must prove — by any appro The grant of the residence permit and a priate means — that he is carrying on an priori the right of residence cannot be made activity as a self-employed person (Article 6 conditional on compliance with national of Directive 73/148). provisions on social security or on any other matter or, therefore, on Mrs Roux's regis tration with the social security scheme for self-employed persons rather than with the employees' scheme. What is significant is No other condition is required and, as the that Mrs Roux falls within the scope radone Court itself has confirmed with regard to personae of the Community rules in question employed persons, the Member States are and satisfies the conditions for obtaining the obliged 'to issue a residence permit to any residence permit. person who provides proof, by means of the appropriate documents, that he belongs to one of the categories set out in Article 1 of the Directive'. 7That also applies to self- employed persons, where the conditions set out in Article 6 of Directive 73/148 are satisfied.
7. As to the national court's fourth question which essentially seeks to ascertain what penalties may be attached to any failure to In the present case, the documents comply with the obligations arising out of submitted by Mrs Roux satisfy the national social legislation, it should first be requirements for the grant of the residence noted that, under the Court's case-law, any permit in accordance with the abovemen penalties imposed on nationals of another tioned provisions, whether she carries on Member State for non-compliance with her activity as a self-employed person or as national provisions and procedures, that is an employed person. to say penalties which also apply to a country's own nationals, may not be dispro 7 — See the Royer judgment, cited above, at paragraph 37. portionate.
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In particular, they may not be such as to less may an expulsion order be adopted on impede freedom of movement for workers. that basis. Non-compliance with national The right of residence may therefore not social security rules may only be penalized be denied to a Community citizen falling under the same terms as apply to nationals within the scope of the relevant rules. Still in respect of the same type of offence.
8. In the light of the foregoing considerations I therefore propose that the Court should reply as follows to the questions raised by the Tribunal de première instance, Liège:
(1) The right of residence and the issue of the corresponding permit are not subject to compliance with national social security provisions; non-compliance with such provisions by a worker protected by Community law cannot of itself justify an expulsion order.
(2) Article 4 of Directive 68/360 and Article 6 of Directive 73/148 preclude the Member States from requiring prior registration with a social security scheme as a precondition for the grant of a residence permit.
(3) The Member States are obliged to issue a residence permit to any person showing, on the basis of the appropriate documents referred to in the jpplicable Community rules, entitlement to the right of residence, without it being necessary under Community law to classify the activity according to whether it is being pursued on a self-employed or employed basis.
(4) Failure to comply with national provisions or procedures relating to regis tration with a social security scheme does not permit Member States to refuse to grant a residence permit or in any case to impose disproportionate penalties which would impede freedom of movement for workers.
8 — To that effect see as the most recent authority the judgment in Case 265/88 Lothar Messner [1989] FCR 4209 I-285