C-376/89

OPINION OF MR DARMON —CASE C-376/89

O P I N I O N OF MR ADVOCATE GENERAL D A R M O N delivered on 16 J a n u a r y 1991 *

In permit. The second piece of legislation this case, however, the provision must be referred to reflects the applicant's status as a viewed from a new angle. national of a Member State. In any event, the condition causing difficulty in this case, namely the requirement that national identity documents should be valid, is common to both Laws. Accordingly, the 2. The facts set out by the Bundesverwal- Bundesverwaltungsgericht, to which Mr tungsgericht may be summarized as follows: Giagounidis appealed on a point of law, has Mr Giagounidis, a Greek national, entered referred questions to the Court solely on the the Federal Republic of Germany in 1973 grant of the right of residence accorded on production of a passport. He was under Community law. The grounds set out granted a residence permit and then, from in the order for reference are based on 1981, the year when the Act relating to Paragraph 10 of the Aufenthaltsgesetz Greece's accession to the Communities EWG alone. Furthermore, the refusal to entered into force, a residence permit for a issue a residence document might just as national of a Member State of the EEC. well have occurred in connection with a Since finishing his studies he has been residence permit. working as a teacher in Germany.

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GIAGOUNIDIS

of which has been restricted by the issuing 6. It is clear that pursuant to Article 3 of State to its own territory. the Directive the Member States must admit to their territory the persons referred to in Article 1 on production of a valid identity card or passport. Thus, the German legis- lature, 5 on the basis of a combination of 4. According to its first recital, the object of Articles 3 and 4 of the Directive, laid down the Directive is the adoption of measures that for the purposes of grant of a residence which conform to the rights and privileges entitlement a valid identity card or passport accorded by Regulation (EEC) No 1612/68 is required, which prima facie would not of the Council 4to nationals of any Member seem objectionable. State who move in order to pursue activities as employed persons and to members of their families. In Article 1 the Council requires the Member States to abolish restrictions on the movement and residence of the said persons under the conditions set out in the articles that follow, which are in logical order. Article 2 provides first for the 7. In its judgment in Case 8/77 Sagulo, right to leave the territory of a Member Brenca and Bakhouche 6 the Court State. Article 3 then goes on to deal with recognized that the requirement of a valid admission into the territory of a Member national identity card or passport put those State. concerned in a position to prove their status with regard to the application of the provisions of the Treaty whilst enabling the Member States to obtain information on 5. Finally, Article 4(1) covers the grant of movements of population in their territory. the right of residence: Moreover, the Court confirmed that such a requirement applied to a person who was 'entitled under Community law to reside in the territory of the country in question'. 7

10. Article 2 of the Directive deals with the situation of nationals who leave their territory in order to take up activities as employed persons in the territory of another 13. What conclusions can be drawn from Member State. 'Such right shall be exercised those provisions? On the face of it, none of simply on production of a valid identity them is capable of resolving the precise card or passport.' It is the last part of the difficulty submitted to the Court. It is true sentence which causes a problem in the that Article 3 of Directive 68/360/EEC granting of the right of residence. It refers does not seem to permit any particular almost certainly to validity in time, but does restriction with regard to the identity that mean that it also covers validity in documents required. The Commission space} Article 2(3) states: 'The passport must rightly points out 11 that in principle the be valid at least for all Member States and identity card is 'a typical national document' for countries through which the holder must use of which abroad is made possible only pass when travelling between Member by special conventions or agreements. States. Where a passport is the only However, for entry into and residence in document on which the holder may lawfully the Member States of the Community it leave the country, its period of validity shall would acquire a Community scope because be not less than five years.' Why is there no the directive has provided for alternatives (a equivalent requirement as regards the valid identity card or a passport). It is true territory covered by an identity card? The that those provisions in the directive might answer, in my opinion, lies in the nature of not suffice as a convincing argument. We a passport, which is a true travel document, must therefore look at their context. granted at the discretion of the authorities of the State of origin. The Council apparently did not envisage restrictions on the territorial validity of identity cards. Finally, Anicie 2(4) prohibits exit visas or 14. All the provisions I have cited, which any equivalent document. are based on Article 48 of the EEC Treaty, are intended to facilitate the movement of Community workers, in particular by pro- hibiting Member States from putting up obstacles, even purely administrative obstacles, to the movement of Community 11. With regard to admission to the workers and to their residence. Even though territory of the Member States, Article 3 of the question concerns the right of residence the Directive reiterates certain requirements: in the host State, the source of the obstacle production of a valid identity card or passport and prohibition of a visa document 10 — Council Directive of 25 February 1964 on the coordi- or equivalent document. 9 nation of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health 9 — For an illustration see the judgment in Case 157/79 Pieck (OJ English Special Edition 1963-1964, p. 117). [1980] ECR 2171. 11 — Written observations, pp. 12 and 13.

19. Furthermore, the restriction applied by 16. In a line of cases the Court has held the Greek authorities is all the more serious that the right of nationals of a Member and aggravating because it applies to any State to enter the territory of another person to whom an identity card is issued Member State and reside there for the and not simply with regard to particular purposes intended by the Treaty — in categories of persons. particular to look for or pursue an occu- pation or activities as employed or self- employed persons or to join their spouse or family — is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation. 12 20. The essential thing, for the purposes of the application of the Treaty, in particular Article 48 et seq. and Regulation (EEC) No 1612/68, is it not to ensure that the person concerned does in fact have the nationality 17. To allow the Member States a discre- of a Member State and is pursuing real and tionary power in this matter would weaken genuine activities? In its judgment in the legal protection of individual rights Royer 13 the Court stated: which individuals derive from directly applicable Community provisions.

'It follows therefore that the right of 18. In addition, let us try to measure the residence must be granted by the authorities scope of such restrictions from a practical of the Member States to any person falling point of view. To attach consequences within the categories set out in Article 1 of sounding in Community law to the fact that the directive and who is able to prove, by a Member State restricts the territorial producing the documents specified in Article 4(3), that he falls within one of these 12 — Judgments in Case 48/75 Royer [19761 ECR 497 categories.' 14 paragraph 31; Joined Cases 389/87 and 390/87 Echlernacb and Moriz [1989] ECR 723, paragraph 25; Case 249/86 Commission v Federal Republic of Germany [1989] ECR 13 — Case 48/75, cited above 1263, paragraph 9 14 — Paragraph 36, my emphasis.

The emphasis is thus on the proof that the Republic to the Communities in no way person from a Member State belongs to a affects their validity: the Directive does not category of persons referred to in the require the production of Community Community provisions. If the States had to documents for the purposes of the grant of take into account other factors for the the right of residence, but solely production purpose of granting residence, it would be of valid national identity documents. With possible for them to set up obstacles, in regard to the other part of the question, it is particular by arguing that the sovereignty of immaterial that the card was issued before other Member States had to be respected. 15 its holder had begun to benefit from free movement. That card or the passport must have been in existence before the person concerned could exercise that right freely and nothing in the Community provisions obliged him to renew the document after 21. The reply to be given to the first accession. question posed by the Bundesverwaltungs- gericht should therefore be that Community law obliges the Member States to grant the right of residence in their territory to the class of persons referred to in Article 1 of Directive 68/360/EEC, even when they produce an identity card the geographical validity of which has been restricted by the 24. Secondly, the Bundesverwaltungsgericht issuing State to its own territory, provided points out that the person concerned that their nationality is not in issue. entered German territory not with an identity card but with a passport. It is true that Article 4 of the Directive requires production of the document with which he entered their territory. In its written obser- vations, the City of Reutlingen 16 claimed 22. The Bundesverwaltungsgericht asks a that that wording required him to prove his number of supplementary questions which identity with the document which enabled should not give rise to any difficulty. him to enter the territory, that is to say, his passport. However, as the Commission states, 17 the wording of the Directive does not refer to an identical document, otherwise the right of residence could be refused if the passport had been replaced 23. First, it asks whether it is relevant that because it had expired or been lost in the the identity card was issued before the meantime. Similarly, account must be taken accession of the issuing State to the of the case where, because his means are European Communities and before freedom limited, a person does not wish to renew his of movement for its nationals entered into passport, knowing that the identity card force. In view of what I have argued, the sufficed. There is all the more reason for Community subject must be in a position to recognizing the fact that identity card and prove his identity and nationality. Thus the passport are equivalent inasmuch as both fact that valid identity documents were must establish identity and nationality and issued prior to the accession of the Hellenic contain a number of details in common. 15 — The representative of the City of Reudingen spoke of 'unacceptable interference' in the sovereignty of the 16 — Observations, p. 2. Hellenic Republic, Observations, p. 4. 17 — Observations, p. 17.

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