C-24/97
ECLI:EU:C:1998:22
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COMMISSION v GERMANY
OPINION OF ADVOCATE GENERAL JACOBS delivered o n 22 J a n u a r y 1998
1. In these proceedings the Commission movement and residence of nationals of the seeks a declaration under Article 169 of the said States and of members of their families Treaty that the Federal Republic of Germany to whom Regulation (EEC) N o 1612/68 has failed to fulfil its obligations under applies. Articles 48, 52 and 59 of the Treaty, Article 4(1) of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families 1 and Article 4(1) of Coun- cil Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. 2
Article 4 2. Directive 68/360 provides, in so far as is relevant:
'Article 1 1. Member States shall grant the right of residence in their territory to the persons referred to in Article 1 who are able to pro- duce the documents listed in paragraph 3.
Member States shall, acting as provided in this Directive, abolish restrictions on the
* Original language: English. 1 — OJ, English Special Edition 1968 (II), p 485. 2 — OJ 1973 L 172, p. 14.
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3. Directive 73/148 provides, in so far as is As proof of the right of residence, a docu- relevant: ment entitled "Residence Permit for a National of a Member State of the European Communities" shall be issued. This docu- ment shall be valid for not less than five years from the date of issue and shall be automatically renewable. 'Article 1
1. The Member States shall, acting as pro- Breaks in residence not exceeding six con- vided in this Directive, abolish restrictions secutive months and absence on military ser- on the movement and residence of: vice shall not affect the validity of a residence permit.
(a) nationals of a Member State who are established or who wish to establish A valid residence permit may not be with- themselves in another Member State in drawn from a national referred to in Article order to pursue activities as self- 1(1)(a) solely on the grounds that he is no employed persons, or who wish to pro- longer in employment because he is tempo- vide services in that State; rarily incapable of work as a result of illness or accident.
Any national of a Member State who is not specified in the first subparagraph but who is authorised under the laws of another Mem- ber State to pursue an activity within its ter- Article 4 ritory shall be granted a right of abode for a period not less than that of the authorisation granted for the pursuit of the activity in question.
1. Each Member State shall grant the right of permanent residence to nationals of other Member States who establish themselves within its territory in order to pursue activi- ties as self-employed persons, when the However, any national referred to in sub- restrictions on these activities have been paragraph 1 and to whom the provisions of abolished pursuant to the Treaty. the preceding subparagraph apply as a result
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of a change of employment shall retain his 5. In July 1990 the Commission sent the residence permit until the date on which it Government of the Federal Republic of Ger- expires. many a letter setting out its view that the above provisions were compatible neither with the obligation of equal treatment and Articles 48, 52 and 59 of the Treaty nor with Directives 68/360 and 73/148 and giving Germany the opportunity to submit its observations on the alleged infringements.
4. The Commission notes that German law 6. The German Government replied in Janu- treats nationals of other Member States dif- ary and March 1991. It recognised that there ferently from German nationals in the sanc- was discrimination between German nation- tions imposed for infringement of the als and nationals of other Member States and requirement to be in possession of a valid indicated that it was ready to carry out the identity document. First, in the case of a for- necessary amendments when it implemented eigner negligence [Fahrlässigkeit] suffices to the directives on the right of residence of constitute an infringement 3whereas in the non-workers, 7 required by 30 June 1992 at case of a German national intent [Vorsatz] or the latest. In February 1992, the Government recklessness [Leichtfertigkeit] is necessary. 4 informed the Commission that it would sub- Secondly, in the case of a foreigner the fine mit a draft law to that effect to the Commis- laid down for infringement is subject to a sion in late February or early March before maximum of DM 5 000 5 whereas in the case sending the draft law to the legislatures. It of a German national the fine imposed is as a presumed that the law would be adopted general rule subject to a maximum of during that year. The Government has also DM 1 000. 6 indicated that the Federal Ministry of the Interior wrote in March 1991 and January 1994 inviting the ministers and senators for internal affairs in the different Länder to 3 — Paragraph 12a(2) of the Gesetz über die Einreise und ensure that infringements by nationals of Aufenthalt von Staatsangehörigen der Mitgliedstaaten der Europäischen Wirtschaftsgemeinschaft (law on entry and other Member States of the obligation to be residence of European Community nationals) of 22 July 1969 as most recently amended by the EWK- in possession of a valid identity document Ausführungsgesetz (law on the implementation of the Euro- were punished only if the act had been com- pean Economic Area) of 27 April 1993. 4 — Paragraph 5(1X1) of the Gesetz über Personalausweise (law mitted recklessly. on identity cards) of 19 December 1950 as most recently amended by the Gesetz sur Änderung des Gesetzes über Personalausweise und des Paßgesetzes (law amending the law on identity cards and the law on passports) of 30 July 1996. 7 — Council Directive 90/364/EEC of 28 June 1990 on the right 5 — Paragraph 12a(3) of the 1969 law cited in note 3. of residence, OJ 1990 L 180, p. 26; Council Directive 6 — Paragraph 5(2) of the 1950 law cited in note 4 in conjunction 90/365/EEC of 28 June 1990 on the right of residence for with Paragraph 17(1) and (4) of the Gesetz über Ordnungs- employees and self-employed persons who have ceased their widrigkeiten (law on administrative offences) of 24 May 1968 occupational activity, OJ 1990 L 180, p. 28 and Council as most recently amended by the Verbrechensbekämpfungs- Directive 90/366/EEC of 28 June 1990 on the right of resi- gesetz (law on the fight against crime) of 28 October 1994. dence for students, OJ 1990 L 180, p. 30.
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7. Since the amendment to the law had still It notes finally that the guidelines given by not been effected by the middle of 1995, the the Federal Ministry of the Interior to the Commission in July of that year issued a rea- ministers and senators for internal affairs in soned opinion in accordance with Article the Länder are not sufficient, particularly 169 of the Treaty and invited the Federal since the Ministry refers solely to the degree Republic to take the necessary measures t o of fault required and not to the different comply with that opinion within two scale of fines. months of its notification.
10. In its defence, the German Government notes that it has conceded from the outset that the principle of equality has not been 8. As at January 1997, the Commission had observed. It regrets that the impugned pro- not been informed of any formal amendment visions of the 1969 law 9have still not been of the provisions in question and it accord- amended and confirms that an amendment ingly brought proceedings under Article 169. relating to the fines will be adopted as soon as possible, and at the latest as part of the forthcoming reform of the 1969 law. 10
9. The Commission accepts that, according to the case-law of the Court of Justice, 8 11. The Commission in its reply considers Community law does not prohibit Member that it is appropriate to maintain its applica- States from imposing penalties on persons tion, given that its original letter in this case falling within its ambit who have failed to dates back to 1990 and that the necessary obtain one of the identity documents men- amendment was announced in early 1992. tioned in Directive 68/360 or Directive The German Government submitted no 73/148. Those sanctions must, however, be rejoinder. appropriate and not disproportionate to the nature of the infringement. In particular, they should not be so severe as to become an obstacle to the freedom of entry and resi- dence provided for in the Treaty. The Com- mission claims that the German rules do not 12. Since Germany does not dispute the observe the principles of proportionality and substance of the Commission's claim, merely of equal treatment or satisfy the requirement stating in its defence that the necessary mea- not to hinder the free movement of persons. sures are under way, the Commission's application is well founded. The Court has
8 — Case 118/75 Watson and Belmann [1976] ECR 1185; Case 8/77 Sagulo, Brenca and Bakhouche [1977] ECR 1495; Case 157/79 Regina v Piede [1980] ECR 2171 and Case C-265/88 9 — Cited in note 3. Criminal proceedings against Messner [1989] ECR 4209. 10 — Cited in note 3.
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consistently held that a Member State may tify its non-compliance does not afford it a not plead provisions, practices or circum- defence. An action based on Article 169 of stances in its internal legal order to justify a the Treaty requires only an objective finding failure to comply with its obligations under a of a failure to fulfil obligations and not proof Community directive. 1 1Moreover, the fact of any inertia or opposition on the part of that Germany is currently attempting to rec- the Member State concerned. 12
Conclusion
13. Accordingly I am of the o p i n i o n that the C o u r t should:
(1) declare that, b y failing t o a d o p t w i t h i n t h e prescribed p e r i o d t h e p r o v i s i o n s necessary t o i m p l e m e n t :
— Article 4(1) of C o u n c i l Directive 6 8 / 3 6 0 / E E C of 15 O c t o b e r 1968 o n t h e abolition of restrictions o n m o v e m e n t a n d residence w i t h i n t h e C o m m u - nity for w o r k e r s of M e m b e r States a n d their families;
— Article 4(1) of C o u n c i l Directive 7 3 / 1 4 8 / E E C of 21 M a y 1973 o n t h e a b o - lition of restrictions o n m o v e m e n t and residence w i t h i n the C o m m u n i t y for nationals of M e m b e r States w i t h regard t o establishment a n d the p r o v i - sion of services,
t h e Federal R e p u b l i c of G e r m a n y has failed t o fulfil its obligations u n d e r t h e Treaty;
(2) o r d e r the Federal R e p u b l i c of G e r m a n y t o p a y t h e costs of these p r o c e e d i n g s .
11 — Case 58/81 Commission v Luxembourg [1982] ECR 2175, 12 — Case 301/81 Commission v Belgium [1983] ECR 467, para- paragraph 4 of the judgment. graph 8 of the judgment.
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