C-348/96

1. By this reference for a preliminary ruling conviction, but the possibility of ordering the Court is asked to clarify the scope of the additional penalties. The court must, in fact, principles of Community law which govern, order the permanent exclusion from Greece or more precisely limit, the power of Member of foreigners convicted of an offence under States to order the expulsion from their ter- the misuse of drugs laws, unless there are ritory of Community nationals. important reasons, particularly of a family nature, justifying the continued residence of the foreigner in the country; any foreigner expelled may, however, return to Greece after 2. The case which gave rise to the question three years, at the discretion of the Minister referred for a preliminary ruling is briefly for Justice. 2 By contrast, Greek citizens cannot described hereafter. Ms Calfa, an Italian be subjected to expulsion. They may, how- national, was caught in possession of drugs ever, be barred from residence in specific while on holiday in Greece. Criminal pro- places, but only for the more serious offence ceedings were brought against her for posses- of dealing in drugs, and not for simple pos- sion of illegal drugs for exclusively personal session for personal use. 3 In the latter case, use, and she was sentenced to three months' such a penalty is within the discretion of the imprisonment. In addition to imprisonment, court and may not in any event be imposed the court at Heraklion ordered her perma- for a period exceeding five years. nent exclusion from Greek territory. 1 In her appeal to the referring court, Ms Calfa sought to have set aside only that part of the deci- sion ordering her exclusion from Greece. The national court therefore asks whether the treatment to which foreigners are subject under national law is compatible with Com- It is stated in the order for reference that a munity law. In particular, it has referred the person convicted for illegal possession of following questions for a preliminary ruling: drugs is treated differendy under national law depending on whether he is a Greek national or a national of another Member State. To be precise, the difference in treatment does not concern the main penalty imposable upon a '(1) Is a provision of national law compatible with the provisions of Community law

referred to in the grounds of this order (as described at 1 above) of the national and, in particular, with the provisions of of another Member State be deemed com- Articles 8(1) and (2), 8a(1), 48, 52 and 59 patible with the abovementioned provi- of the EC Treaty, the provisions of the sions of Community law where, in con- relevant directives also referred to in the nection with exclusion, the court so grounds hereof, or with any other rel- ordering is left with no discretion, other evant provisions of Community law con- than that relating to the important rea- cerning freedom of movement for per- sons, in particular of a family nature, in sons and services, and with the determining whether the offender's con- Community law principle of equal treat- tinued residence in the host country ment enshrined in Article 7 of the E C might be justified, is such a measure to Treaty, where such provision of national be regarded as infringing the Commu- law requires the national court, unless nity principle of proportionality, that is there are good grounds, particularly of a to say as being disproportionate to the family nature, for not doing so, to order seriousness of the offences (described the permanent exclusion of a national of above at 1) committed by that person, another Member State of the European regard being had to the fact that under Community for reasons of public order national law those offences are tried at and public security, solely on the ground first instance and are punishable as stated that the national of another Member in the grounds of this order, or to the State, whilst lawfully staying in the host fact that the exclusion ordered by the state in order to receive tourist services, national court is permanent, subject to committed the offences of obtaining authorisation by the Minister for Justice drugs for his own exclusive use and the at his discretion for the offender to return use of drugs, and where such exclusion after a three-year period to the host entails for the offender a legal bar on his country from which he was expelled?' returning to the country — unless autho- rised after a three year period by the Minister for Justice in his discretion — in order to pursue the activities provided for by the abovementioned provisions of Community law, and where in the case of such an offence being committed by a national of the host state the same punishment of imprisonment is imposed, though not any other analogous penalty, such as a residence restriction, which is 3. It should first be noted that, all things imposed on a national of the host state considered, the two questions submitted relate only if a term of imprisonment for a to the same issue: the alleged infringement of more serious offence is imposed, such as the 'proportionality' criterion — the subject for dealing, and is purely discretionary? of the second question — also constitutes, as will be shown, one of the parameters which must be applied to measure — and this is the subject of the first question — the legality of the national provisions governing the expul- sion of Community citizens. The two ques- (2) Should exclusion by the host country tions referred for a preliminary ruling may under such a provision of national law accordingly be examined together.

5. The defence submitted by the Greek Gov- ernment cannot, in my opinion, be accepted. It is true that the abovementioned rules of Community law allow the Member States to restrict the freedom of movement and resi- dence of Community nationals on grounds of public policy; it is also true that a provision of a penal nature prohibiting the use of drugs may be said, at least in theory, to be inspired 4. That being so, the present case turns on by such considerations. However, the Court the definition of 'public policy' upon which has already had occasion to state that, while the Greek Government relies to justify the 'Member States continue to be, in principle, expulsion measure adopted in Ms Calfa's free to determine the requirements of public regard. It should be noted in fact that, pur- policy in the light of their national needs', the suant to Community law, the freedom of a scope of this concept 'cannot be determined recipient of services to travel to another unilaterally by each Member State without Member State to receive services may, as being subject to control by the institutions of Article 56 of the Treaty provides, be subject to limitations justified on grounds of public policy, public security or public health. More- 5 — Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117). Article 3(1) and (2) are particularly relevant in the case at issue and are worded as follows: '1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of 4 — See Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] the individual concerned. ECR 377, at paragraph 10, and Case 186/87 Cowan [1989] 2. Previous criminal convictions shall not in themselves con- ECR 195, at paragraph 55. stitute grounds for the taking of such measures.'

the Community'. 6 This is in fact an excep- First of all, it seems to me that the national tion to the fundamental principle of free legislation described in the order for refer- movement, and the application thereof should ence introduces discrimination, prohibited by accordingly be confined to exceptional cases the Treaty, between Greek nationals, on the where the person expelled from national ter- one hand, and the nationals of other Member ritory effectively constitutes a genuine and States, on the other. The discrimination does sufficiently serious threat affecting one of the not lie in the fact that the national legislature fundamental interests of society. 7 Further- has not provided for the possibility of expul- more, it is clear from the case-law relating to sion of its own nationals: the Court has the application of Directive 64/221/EEC 8 that already stated that they cannot be subject to in expelling any national of another Member such a measure and that, therefore, their situ- State on grounds of public policy national ation is not entirely comparable to that of authorities must take into account, specifi- other Community nationals. 12 Consequently, cally, the individual situation of the person concerned, and that previous criminal convic- this is not a prohibited discrimination in that tions do not in themselves constitute suffi- the difference in treatment introduced by the cient grounds for the taking of such mea- national legislation does not apply to equiva- sures. 9 An expulsion measure cannot therefore lent situations. In this case, however, the dis- be designed purely for 'prevention' purposes, crimination must be considered from another that is for the purpose of deterring other for- angle: the explanation given by the national eigners from committing similar offences, 10 court of the legislation at issue shows that the and must in any case pass the test of propor- possession of drugs for personal use is pena- tionality. 11 lised differently depending on whether the offender is a Greek national or a foreigner.

alty. 6 — See Case 36/75 Rutili y Ministre de l' Intérieur [1975] ECR 1219, at paragraphs 26 and 27. 7 — See Case 30/77 R v Boucbereau [1977] ECR 1999, at para- graph 35. 8 — See in particular, Article 3 of the aforesaid directive, which the Court held to have direct effect in its judgment in Case 41/74 Van Dayn v Home Office [1974] ECR 1337, at paragraphs 6

paragraph 21. Belgium [1982] ECR 1665, at paragraph 7.

7. In any case, even assuming that the national nevertheless be stated that conduct may not provisions described in the order for refer- be considered as being of a sufficiently serious ence did not amount to discrimination, they nature to justify restrictions on the admission would still be contrary to the principle of to or residence within the territory of a proportionality, as interpreted by the Court, Member State of a national of another Member precisely with reference to the lawfulness of State in a case where the former Member State exclusion measures justified on grounds of does not adopt, with respect to the same con- 'public policy'. In this respect, I need only duct on the part of its own nationals repres- quote here a passage which I consider par- sive measures or other genuine and effective ticularly relevant from the well-known judg- measures intended to combat such conduct'. ment in Adotti and Cornuaille: 13 'The reser- vations contained in Articles 48 and 56 of the EEC Treaty permit Member States to adopt, with respect to the nationals of other Member States and on the grounds specified in those provisions, in particular grounds justified by the requirements of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the national territory or to deny them access thereto. Although that difference of treatment, which bears upon the It is clear, therefore, from the case-law just nature of the measures available, must there- cited that a comparison must in any case be fore be allowed, it must nevertheless be made between the normal legal treatment of stressed that, in a Member State, the authority nationals and that of non-nationals. And this empowered to adopt such measures must not in so far as non-nationals' personal conduct base the exercise of its powers on assessments fulfils the condition of constituting a genuine of certain conduct which would have the and sufficiently serious threat, affecting one effect of applying an arbitrary distinction to of the fundamental interests of the society of the detriment of nationals of other Member the host State — a threat consequently justi- States. It should be noted in that regard that fying an expulsion measure — only if, when reliance by a national authority upon the faced with the same conduct on the part of its concept of public policy presupposes, as the own nationals, the national authorities adopt Court held in its judgment of 27 October measures which, although perhaps not iden- 1977 in Case 30/77 Bouchereau [1977] ECR tical, are effectively designed to combat such 1999, the existence of "a genuine and suffi- conduct. 14 It is easy to see that this condi- ciently serious threat affecting one of the fun- tion is not met in the present case. For the offence of simple possession, the national leg- damental interests of society". Although Com- islation does not provide — and, for the rea- munity law does not impose upon the Member sons explained above, could not provide — States a uniform scale of values as regards the for any territorial expulsion measure against assessment of conduct which may be consid- its own nationals; the fact remains, however, ered as contrary to public policy, it should

that in those cases the national legislation from the general expulsion rule. Such a provi- likewise does not provide for other measures, sion, however, is clearly contrary to Article thus showing that, in the national legal order, 3(2) of Directive 64/221, pursuant to which the possession and use of drugs is considered 'previous criminal convictions shall not in to constitute conduct justifying a reaction of themselves constitute grounds for the taking particular severity. Additional penalties against of ... measures' of exclusion from national ter- own nationals — in particular the prohibition ritory. In Bouchereau 15 the Court made it of residing in certain places — are provided clear that this provision 'must be understood for only in the case of drug dealing, that is to as requiring the national authorities to carry say for an offence considerably more serious out a specific appraisal from the point of view than mere possession of drugs for own use. of the interests inherent in protecting the For mere possession for own use, no addi- requirements of public policy, which does not tional penalty is provided for. necessarily coincide with the appraisals which formed the basis of the criminal conviction. The existence of a previous criminal convic- tion can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal I am therefore of the opinion that a measure conduct constituting a present threat to the of expulsion from national territory, such as requirements of public policy. Although, in that described by the court in the main pro- general, a finding that such a threat exists ceedings, is contrary to Community law. It implies the existence in the individual con- makes no difference whether such a measure cerned of a propensity to act in the same way is considered from the point of view of dis- in the future, it is possible that past conduct crimination or from the point of view of lack alone may constitute such a threat to the of proportionality. The practical result is in requirements of public policy'. any case the same: such a provision is incom- patible with the principles laid down by the Court in relation to measures restricting the free movement and residence of Community nationals.

In other words, the exclusion provided for under the national legislation does not entail a specific appraisal of the conduct of the offender, but appears to have deterrence pur- poses vis-à-vis other Community nationals; 9. The considerations set forth above lead me the Court has, however, already had occasion to the conclusion that the conditions for reli- to condemn such purposes in clear terms in ance upon grounds of public policy to justify other judgments. 17 an exclusion measure such as that described by the court in the main proceedings are not met. And this, I might add, regardless of whether the measure is permanent or tempo- rary in nature. Certainly, in the first case, in addition to the reservations made above with respect to the national legislation at issue, there would be others, concerning the clear lack of proportion of a measure imposing 10. Finally, one last observation on the role exclusion for life from national territory. 16 which the principle of citizenship of the Union However, I consider that the doubts as to the laid down in Article 8a of the Treaty, to which compatibility with Community law of the the national court refers in the orders for ref- provisions at issue exist irrespectively of the erence, may play in the present case. In the effects in time of the measure concerned. In Martinez Sala case, 18 I explained the impor- fact, even assuming that Ms Calfa could return tance of this new, fundamental concept. How- to Greece after three years with the authori- ever, I do not believe that it is relevant here sation of the Minister concerned, the fact because the settled case-law referred to above remains that the order to expel her was made already affords a complete reply to the ques- on account of a criminal offence which, if tions submitted by the national court. Ms committed by a Greek national, is not pun- Calfa's position is already properly protected ishable with the same severity. Under settled by her status as a recipient of services as well case-law, this constitutes discrimination pro- as by the provisions of Directive 64/221/EEC. hibited by the Treaty, or, in any event, a dis- It is therefore superfluous, in my view, to proportionate measure, in so far as it imposes have recourse to this further protection offered penalties on Community nationals that are by Community citizenship.

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