C-378/97

WIJSENBEEK

OPINION OF ADVOCATE GENERAL COSMAS delivered on 16 March 1999 *

Table of contents

I — Introdution I-6210 II — The facts and the questions submitted for a preliminary ruling I-6210 III — Law applicable I-6211 A — The national provisions I-6211 B — The Community provisions I-6212 (a) The provisions of the EC Treaty I-6212 (b) Declarations in the context of the Single Act I-6213 (c) Secondary legislation I-6214 IV — The admissibility of the questions submitted .... I-6215 V — The reply to the questions submitted I-6216 A — The progressive strengthening of the freedom of movement for persons on the basis of Article 48 et seq. of the Treaty I-6217 (a) The direct effect of the Treaty articles relating to freedom of movement for persons I-6217 (b) The beneficiaries of the right to freedom of movement for persons under Article 48 et seq. of the Treaty I - 6220 (c) Access to the territory of Member States as an element in the right to freedom of movement I-6221 B — The scope and binding nature of Article 7a of the EC Treaty I - 6223 (a) The scope of Article 7a of the EC Treaty I - 6223 (b) The direct effect of Article 7a I-6225 (i) The comparison between Article 7a and Article 48 et seq. of the Treaty I-6227 (ii) The declarations regarding Article 7a, annexed to the Final Act of the Single European Act I - 6227 (iii) The unconditional nature of the obligation for the Community to create an area without internal frontiers and the possibility of abolishing frontier controls within the Community without adopting flanking measures I-6231 (iv) The changes that would result from implementation of the Treaty of Amsterdam I-6233

2. The facts in the main proceedings are simple. In criminal proceedings in the Netherlands, Mr Wijsenbeek, a Nether- lands national, is accused of having refused, 1. In the present case the Court is requested upon arrival at Rotterdam airport 1 on under Article 177 of the EC Treaty to rule 17 December 1993 on a scheduled flight on questions submitted by the Arrondisse- from Strasbourg, to present his passport to mentsrechtbank (District Court) te Rotter- the national office responsible for border dam (Netherlands) with regard to the controls in accordance with the national interpretation of Articles 7a and 8 a of that legislation in this regard. It should be noted Treaty. That court seeks to ascertain whe- that the accused did not refuse to give his ther these fundamental provisions of pri- name, place and date of birth and address mary Community law should be inter- and that he presented a Belgian driving preted and applied as meaning that they licence to confirm these facts; he did not, prohibit national legislation requiring a however, present an identity card or pass- person, even one who is a citizen of the port that would have established his European Union, to present a passport nationality, as required by national legisla- when crossing internal Community fron- tion. tiers and imposing criminal penalties if that provision is infringed. This case is of particular interest in that it offers the Court an opportunity to interpret the content and effects in law of Articles 7a and 8a of the EC Treaty on the basis of a systematic 3. Mr Wijsenbeek acknowledges the facts approach and, by extension, to make a on which the prosecution is based. How- current and global examination of the question of the freedom of movement for persons as it presents itself after the succes- 1 — It is not irrelevant to note that this airport is used as a matter of principle exclusively for flights to and from other sive revisions of primary Community law. Member States of the Community.

'1. Are the second paragraph of Article 7a 'Netherlands nationals who leave or enter of the EC Treaty, which provides that the Netherlands must, on request, present the internal market is to comprise an area without internal frontiers in which the free movement of persons is 2 — Order of 19 September 1966, Stb. 387.

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OPINION OF MR COSMAS — CASE C-378/97

and hand over to an official charged with as provided in this Treaty and in accor- border inspections the travel and identity dance with the timetable set out therein: papers in their possession and establish if necessary by any other means their Nether- lands nationality.

This order is made pursuant to Article 3, paragraph 1, introductory subparagraph and subparagraph (b), of the Aliens Law and any infringement is punishable in accordance with Article 44, first para- (c) an internal market characterised by the graph, of that Law.' abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital,

6. Under Article 44 of the Vreemdelingen- wet (Aliens Law), 3any infringement of the Aliens Order is punishable by a criminal penalty entailing a prison sentence of a (d) measures concerning the entry and maximum of six months or a second- movement of persons in the internal category fine. Article 23(3) of the Wetboek market as provided for in Article 100c, van Strafrecht (Netherlands Penal Code) provides that a second-category fine is not to exceed NLG 5 000.

The internal market shall comprise an area Two of these declarations are likely to be without internal frontiers in which the free relevant to the present case. movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.'

11. The declaration on Article 8a 4is wor- ded as follows: 9. Article 8a of the EC Treaty provides:

'The Conference wishes by means of the '1. Every citizen of the Union shall have the provisions in Article 8 a to express its firm right to move and reside freely within the political will to take before 1 January 1993 territory of the Member States, subject to the decisions necessary to complete the the limitations and conditions laid down in internal market defined in those provisions, this Treaty and by the measures adopted to and more particularly the decisions neces- give it effect. sary to implement the Commission's pro- gramme described in the White Paper on the Internal Market.

2. The Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1; save as Setting the date of 31 December 1992 does otherwise provided in this Treaty, the not create an automatic legal effect.' Council shall act unanimously on a propo- sal from the Commission and after obtain- ing the assent of the European Parliament.'

12. The general declaration on Articles 13 to 19 of the Single European Act is worded as follows:

(b) Declarations in the context of the Single Act 'Nothing in these provisions shall affect the right of Member States to take such 10. When the Final Act to the Single measures as they consider necessary for European Act was signed on 17 and the purpose of controlling immigration 28 February 1986, the Conference of the from third countries, and to combat terror- Representatives of the Governments of the Member States adopted a number of declarations annexed to the Final Act. 4 — In reality, this is the future Article 7a of the EC Treaty.

'In order to promote the free movement of persons, the Member States shall coop- erate, without prejudice to the powers of the Community, in particular as regards the entry, movement and residence of nationals of third countries. They shall also coop- erate in the combating of terrorism, crime, 15. These directives related to workers and the traffic in drugs and illicit trading in the members of their families and to works of art and antiques.' persons exercising their right freely to provide services. The range of persons covered was widened by Council Directive 90/364/EEC of 28 June 1990 on the right of residence, 7Council Directive 90/365/ EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational (c) Secondary legislation activity 8 and Council Directive 93/96/EEC of 29 October 1993 on the right of resi- dence for students. 9All of these directives refer directly to Article 3 of Direc- tive 68/360, in other words to the obliga- tion for Member States to allow persons 14. Article 3(1) of Council Directive falling within the scope of the said direc- 68/360/EEC of 15 October 1968 on the tives to enter their territory simply on abolition of restrictions on movement and production of an identity card or passport. residence within the Community for work- ers of Member States and their families 5 and of Council Directive 73/148/EEC of 6 — OJ 1973 L 172, p. 14. 7 — OJ 1990 L 180, p. 26. 8 — OJ 1990 L 180, p. 28. 5 — OJ, English Special Edition 1968 (II), p. 485. 9 — OJ 1993 L 317, p. 59.

IV — The admissibility of the questions Mr Wijsenbeek was coming from Stras- submitted bourg, as he himself states and which no- one contests, that does not in any way nullify the value of the reply to the questions asked. On the contrary, a reply to those questions should be provided and 16. In its observations, the Irish Govern- it should be considered an established fact ment raises the question of admissibility. It that Mr Wijsenbeek was coming from maintains first that, under Article 92 of the France when he tried to cross the border Rules of Procedure of the Court, the Court without presenting a passport. clearly lacks jurisdiction to reply to the questions submitted. According to the Irish Government, the referring court was unable to establish precisely the facts on which the questions it submitted to the Court were based. More particularly, the Irish Government submits that it is impos- sible to determine with certainty whether, when he crossed the Netherlands border, 18. Next, the assertion of the Irish Govern- Mr Wijsenbeek was coming from another ment that in the present case the non- Member State of the Community or from a application of Community law was the third country. Secondly, the Irish Govern- fault of Mr Wijsenbeek himself does not ment contends that it was impossible to preclude the need to reply to the questions apply Community law, given Mr Wijsen- submitted. Without examining the content beek's refusal to reveal his nationality. and scope of the Community rules applic- Finally, the Irish Government states that, able to the case, it is not possible to since the main proceedings relate to the examine the question whether their appli- application of a Netherlands provision to a cation is rendered impossible by the atti- Netherlands national in the Netherlands, tude of the accused. they are purely internal and hence devoid of interest at the Community level. In particular, according to the Irish Govern- ment, the question of the return of nation- als of a Member State to their own country falls within the exclusive jurisdiction of the national legislature. 19. Lastly, as the Commission rightly observes, the issue in the main proceedings does not fall outside the scope of Commu- nity law. Upon his return to the Nether- lands Mr Wijsenbeek exercised the right to 17. I do not think this view should be move freely within the Community and as a adopted. First, the facts adduced by the result could invoke the relevant provisions national court are sufficient to enable this of Community law. The fact that Mr Wij- Court to give a helpful reply to the senbeek has Netherlands nationality and questions submitted. Although neither the was returning to the Netherlands is not documents in the case nor the order for sufficient to give the main proceedings a reference demonstrates clearly that purely national character.

21. The Court had taken a similar view in the Kraus judgment, 1 1when it held that Community law, and especially Articles 48 and 52 of the Treaty, applied in a case 23. The particular interest which this case involving a German national who had has attracted is reflected in the number of objected to German legislation requiring parties submitting observations to the prior authorisation for the use, on German Court. Apart from Mr Wijsenbeek, the territory, of a postgraduate academic title Netherlands Government and the Commis- he had obtained in another Member sion, the United Kingdom, Irish, Finnish State. 12 and Spanish Governments have partici- pated in the proceedings. The key question on which the Court is called upon to rule is whether recent developments in primary Community law have led to a prohibition 22. In the present case it is sufficient to on national passport controls at the inter- note that Mr Wijsenbeek used his right to nal frontiers of the Community. Up to now, the practice of carrying out border checks has been considered to be entirely consis- 10 — Judgment in Case C-370/90 The Queen v Immigration tent with Community law, at least subject Appeal Tribunal and Surinder Singh [1992] ECR I-4265. to certain conditions. Among the parties 11 — Judgment in Case C-19/92 Kraus v Land Baden-Württem- berg [1993] ECR I-1663. presenting observations, Mr Wijsenbeek is 12 — See also the judgments in Cases 115/78 Knoors v Secretary the only one to maintain that certain forms of State for Economic Affairs [1979] ECR 399 and C-61/89 Bouchoucha [1990] ECR I-3551. of border control are no longer compatible

13 — It is not necessary, in my opinion, to approach the issue from the point of view of Article 3(c) of the EC Treaty as well. Under that provision, the activities of the Community entail the creation of an internal market and the abolition of obstacles to the free movement of goods. This general intention is embodied and expressed in specific obligations incumbent upon the Community institutions, especially pursuant to Articles 7a and 48 et seq. of the EC Treaty. A — The progressive strengthening of the (With regard to the relationship between Article 3(c) and Anieles 48 and 52 of the Treaty, see in particular the freedom of movement for persons on the judgments in Cases 118/75 Watson and Beimann [1976] ECR 1185, paragraph 16, and 222/86 Unectef v Heylens basis of Article 48 et seq. of the Treaty and Others [1987] ECR 4097, paragraph 8.) Since specific provisions of primary Community law exist, it is neither necessary nor appropriate to examine Arti- cle 3(c) of the EC Treaty separately. Unlike the Spanish Government, I ptefer in any case not expressly to characterise that provision as purely 'in .the nature of a programme'. Such an assessment, which the Court made with regard to Article 2 of the Treaty in its judgments in Cases 126/86 Giménez Zaera v Institut Nacional de la (a) The direct effect of the Treaty articles Seguridad Social y Tesorería General de la Seguridad Social [1987] ECR 3697 and C-339/89 Alsthom Atlan- relating to freedom of movement for per- tique v Compagnie de Construction Mécanique Sulzer [1991] ECR I-107, is often wrongly interpreted as meaning sons that the provisions contained in the first part of the Treaty have no legal effect and do not have the binding force attached to a fully-fledged rule of law. I do not believe that such a view is entirely correa: the principies set out in Articles 2 and 3 of the Treaty are of fundamental importance for purposes of interpretation and make it 25. The cornerstone of the affirmation of possible to attribute a conceptual value to the other rules of Community law. However, they are not endowed with freedom of movement for persons is direct effect. An individual cannot base any right whatso- undoubtedly the case-law established by ever on them alone, any more than he can invoke them (directly) in support of his legal situation. the Court during the 1970s on the direct In short, Article 3(c) of the Treaty establishes the frame- work of Community activities from which other provisions effect of Articles 48, 52 and 59 of the of the Treaty specifically derive — as far as we are Treaty. This case-law is also of special concerned in the present case, Article 7a of the Treaty. If the activities of the Community with regard to the importance in the context of the present abolition of obstacles to the free movement of persons creates rights for individuals, those rights will be based on case. First, all things considered, the posi- a more specific provision, and not directlyon Article 3(c) of the Treaty. That is why an independent examination of tion which Articles 48, 52 and 59 occupied this provision does not directly affect the reply to be given to the questions submitted. in the Community — then termed the Economic Community — was similar to

that currently occupied by Article 8a of the which produces its effects directly upon the EC Treaty in a Community that has been expiry of the period set for its fulfilment. 18 detached from its purely financial basis. 14 It was therefore not possible to invoke Secondly, some of the obstacles which the against the direct application of Article 52 Community judicature had to overcome at the fact that the Council had failed to adopt that time in order to acknowledge the all or some of the measures provided for by direct effect of the provisions in question Articles 54 and 57 of the Treaty. 19 This led of the EC Treaty display similarities with the Court to rule that 'since the end of the the obstacles arising currently with regard transitional period Article 52 of the EEC to the recognition of the direct effect of Treaty is a directly applicable provision, Articles 7a and 8a of the EC Treaty. despite the absence, in a particular sphere, of the directives prescribed by Arti- cles 54(2) and 57(1) of the Treaty'.

. .'. Arti- Member States a precise obligation which cle 54 also provides that before the end of does not require the adoption of any the first stage the Community institutions further measure on the part either of the (and more specifically the Council) are Community institutions or of the Member required to adopt a number of measures States and which leaves them, in relation to towards the realisation of freedom of its implementation, no discretionary establishment. Interpreting these provisions power' 21 and therefore ruled that 'Arti- in the Keyners judgment, 15 the Court cle 48 of the EEC Treaty has a direct effect adopted the following reasoning: 'in laying in the legal orders of the Member States down that freedom of establishment shall be attained at the end of the transitional 18 — The wording in the Kraus judgment, cited in footnote 11 period, Article 52 thus imposes an obliga- above, is even clearer: 'In stating that freedom of move- tion to attain a precise result, the fulfilment ment for workers and freedom of establishment are to be secured by the end of the transitional period, Articles 48 of which had to be made easier by, but not and 52 lay down a precise obligation of result.

. . have however not f ost all interest since they preserve an important scope in the field of measures intended to make easier the effective exercise of the right of freedom of establishment'. In expressing this point of view, the Court did not intend to limit the direct effect of Article 52 of the Treaty, but was 14 — See paragraph 78 et seq. below. letting it be known clearly that the recognition of such a 15 — Judgment in Case 2/74 Reyners v Belgian State [1974] direct effect did not nullify the obligation for the Council ECR 631. to adopt the directives in question. 16 — The Reyners judgment, cited in footnote 15 above, para- 20 — Judgment in Case 41/74 Van Duyn v Home Office [1974] graph 26. ECR 1337. 17 — The Reyners judgment, cited in footnote 15 above, para- 21 — The Van Duyn judgment, cited in footnote 20 above, graph 27. paragraph 6.

22 — The operative part of the Van Duyn judgment, cited in footnote 20 above. 23 — The Van Duyn judgment, cited in footnote 20 above, paragraph 7. 24 — The link between the direct effect and the concept of equal treatment is already included in the Keyners judgment, cited in footnote 15 above; it emerges more clearly, however, from the judgments in Cases 33/74 Van Binsber- gen v Bestuur van de Bedrijfsvereniging voor de Metaal- nijverheid [1974] ECR 1299 and 36/74 Watrave and Koch v Association Union Cycliste Internationale, Koninklijke 25 — Cited in footnote 11 above. Nederlandsche Wielren Unie and Federación Española Ciclismo [1974] ECR 1405. In the Van Binsbergen judg- 26 — J u d g m e n t in Case C-55/94 Gebhard v Consiglio dell'Or- ment, the Court ruled that 'the first paragraph of dine degli Avvocati e Procuratori di Milano [1995] Article 59 and the third paragraph of Article 60 have ECR I-4165. See also the judgment in Case C-106/91 direct effect and may therefore be relied on before national Ramrath v Ministre de la Justice and l'Institut des courts, at least in so far as they seek to abolish any Réviseurs d'Entreprises [1992] ECR I - 3 3 5 1 , p a r a - discrimination against a person providing a service by graphs 29 and 30. With particular regard to the material reason of his nationality or of the fact that he resides in a scope of Article 59 of the Treaty, see the judgment in Case Member State other than that in which the service is to be C-76/90 Säger v Dennemeyer [1991] ECR I-4221, para- provided'. In the operative p a n of the Walrave and Koch graph 12. judgment, the Court ruled that 'as from the end of the 27 — Paragraph 32 in the Kraus judgment, cited in footnote 11 transitional period the first paragraph of Article 5 9 , in any above, and paragraph 37 ín the Gebhard judgment, cited event in so far as it refers to the abolition of any in footnote 26 above. discrimination based on nationality, creates individual rights which national courts must protect'. 28 — Paragraph 37 in the Gebhard judgment, cited in foot- note 26 above.

(b) The beneficiaries of the right to freedom of movement for-persons under Article 48 et seq. of the Treaty 29 — With particular regard to Article 48 of the Treaty, which does not explicitly limit freedom of movement to workers who are nationals of a Member State, the fact that this right is conditional on being a national of a Member State was recognised formally in the judgment in Case 238/83 Caisse d'Allocations Familiales de la Région Parisienne v Meade [1984] ECR 2631, paragraph 7. 30 — See Directive 68/360, cited in footnote 5 above, and Council Regulation (EEC) No 1612/68 of 15 October 30. It is necessary, in this context, to 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, Series I, 1968 emphasise the significance and importance (II), p. 475). of the extension of the scope rattorte 31 — See the judgments in Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377 and personae of freedom of movement for in Case 186/87 Cowan v Trésor Public [1989] ECR 195.

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broadly, the Court recognised the right of a cle 6 of the EC Treaty). 38 This remark is further category of persons, students, to not without interest, as it shows the limits freedom of movement. 32 33 The Council, rattorte personae of Article 48 et seq. of the for its part, widened the material scope of Treaty and the need to add a provision of freedom of movement by giving the right of more general scope which could serve as residence first to employees and self- the legal basis for fully implementing the employed persons who have ceased their principle of freedom of movement for occupational activity 34 and then to certain persons. This need has now been addressed, persons not pursuing an economic activity as I shall examine below, 39 by Article 8a of and who do not enjoy this right under other the EC Treaty. provisions of Community law, 3 5 and finally to students. 36

31. It should be noted that Directives 90/364, 90/365 and 93/96 do not have their legal basis in Article 48 et seq. of the Treaty. The first two 37 were adopted 32. I shall now proceed to examine one pursuant to Article 235 and the third element of freedom of movement for per- pursuant to the second paragraph of Arti- sons as enshrined in Article 48 et seq. of the cle 7 (now the second paragraph of Arti- Treaty; this element lies at the heart of the questions submitted in the present case. It consists of the possibility for persons enjoy- 32 — See in particular the judgments in Cases 293/83 Gravier v City of Liège [1985] ECR 593, 24/86 Blaizot v University ing the right to freedom of movement to of Liège and Others [1988] ECR 379 and C-357/89 Raulin enter the territory of a Member State. This v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027. issue is not dealt with in detail in the acts 33—The judgment in Case C-292/89 Antonissen [1991] establishing the Community but is never- ECR I-745 is also of interest. This relates to the right of entry and residence of a person seeking to pursue an theless the subject of secondary legislation. economic activity. The Court considered that in the absence of a Community provision prescribing a period As a general rule, the right of entry 'shall be during which Community nationals seeking employment exercised simply on production of a valid in a Member State may stay there, the period of six months laid down in the national legislation of the United King- dom was not in principle contrary to Community law. identity card or passport'. 40 I have already However, if after the expiry of that period the person mentioned that the directives specifying the concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State (paragraph 21). 34 — Directive 90/365, cited in footnote 8 above. 38 — See also Council Directive 75/34/EEC of 17 December 1974, which is also based on Article 235, concerning the 35 — Directive 90/364, cited in footnote 7 above. right of nationals of a Member State to remain in the 36 — Directive 93/96, cited in footnote 9 above. territory of another Member State after having pursued therein an activity in a self-employed capacity (OJ 1975 37 — The preamble of Directives 90/364 and 90/365 mentions L 14, p. 10). Article 3(c) of the EEC Treaty, the current Article 7a (numbered 8a before the Treaty of Maastricht), as well as 39 — See paragraph 78 et seq. below. Articles 48 and 52; these provisions did not, however, 40 — Article 2(1) of Directives 68/360 (cited in footnote 5 form the legal basis of the directives in question. above) and 73/148 (cited in footnote 6 above).

33. Under Community law, border controls of this type are the only permissible general condition which can be imposed by the national authorities or by domestic legisla- tion on persons entering the territory of a 35. I conclude from this, in accordance Member State. The Court has ruled against with the hitherto accepted interpretation of the application of formalities in addition to passport checks in so far as such formalities 42 — Hence, although Member States have the power to adopt lead to additional restrictions on access to measures aimed at enabling the national authorities to the territory and, by extension, to the have an exact knowledge of population movements affecting their territory and at imposing on nationals of exercise of freedom of movement. 41 other Member States an obligation to report their presence to the authorities of the State concerned, Community law nevertheless requires, first, that the period fixed for the discharge of the said obligations be reasonable and, secondly, that the penalties attaching to a failure to discharge them should not be disproportionate to the gravity of the offence (see the judgments in Watson and Belmann, cited in footnote 13 above, and Case C-265/88 Messner [1989] ECR 4209). It is also worth mentioning a judgment in which the Court held that a Member State, in that instance Belgium, could impose on Community nationals residing on its territory

question. However, this obligation cannot affect the right to enter Belgium, the exercise of which is conditional neither on compliance with the said obligation nor on the carrying out of the disputed checks; independently of this, 41 — Two judgments of the Court can be mentioned by way of the execution of the checks in question, in particular if it is example. In the first the Court considered that Community found that they are carried out 'in a systematic, arbitrary law prohibited national legislation which, when a person or unnecessarily restrictive manner' (paragraph 15 of the enjoying the protection of Ankle 48 et seq. of the Treaty judgment ín Case 321/87), constitutes a barrier to the free entered the territory, required an endorsement to be movement of persons within the Community which is stamped on the passport giving leave to enter the territory contrary to Community law. of the said State (judgement in Case 157/79 Pieck [1980] Finally, it should be noted in any event that the right of ECR 2171).

Those rights derive disposal for it before they are permitted to enter the directly from Community law (see also the judgments in territory was not compatible with Article 48 et seq. of the Cases 8/77 Sagulo and Others [1977] ECR 1495, para- Treaty (Case C-68/89 Commission v Netherlands [1991] graph 4, and C-363/89 Roux v Belgian State [1991] ECR I-2637). ECR I-273, paragraph 17).

Article 48 et seq. of the Treaty, that it Article 13 of the Single European Act, the follows from these articles that the ability Community 'shall adopt measures with the to enter the territory of Member States and aim of progressively establishing the inter- to cross the borders, subject solely to the nal market over a period expiring on presentation of a passport or identity card, 31 December 1992'. The second paragraph is inherent in the right to freedom of of that article defines the internal market as movement. In itself, the formality of pre- 'an area without internal frontiers in which sentation admittedly constitutes a restric- the free movement of goods, persons, tion on the unimpeded movement of per- services and capital is ensured in accor- sons, in its absolute form: this formality is dance with the provisions of this Treaty'. considered justified in the light of Arti- For the purposes of the reply to be given to cle 48 et seq. of the Treaty, naturally in so the national court, particular importance far as it is essential in order to certify the must be attached first to ascertaining the identity of the national of a Member State, precise scope of the provisions in question from which derives the possibility of mov- and secondly to establishing the extent to ing freely. In other words, the protection which they have direct effect. guaranteed by the provisions of primary Community law here in question is not so extensive that it is equivalent to an absolute freedom to cross borders, transcending all border controls. This last observation sums up the position adopted hitherto by the Community legislature, which also appears to be that accepted by the Court. I shall now examine whether the legislation and case-law which I have just mentioned (a) The scope of Article 7a of the EC Treaty remain relevant, and to what extent, fol- lowing the fundamental changes in primary Community law brought about by the insertion of Articles 7a and 8a into the text of the EC Treaty by the Single European Act and the Treaty of Maastricht. 37. In their observations, the Spanish and Netherlands Governments have maintained that the disputed provisions are purely in the nature of a programme. Similarly, the Irish Government and the United Kingdom Government consider that the first para- graph of Article 7a of the Treaty imposes no concrete obligation on the Community institutions and that it merely sets out a B — The scope and binding nature of political objective. They also contend that Article 7a of the EC Treaty although the second paragraph of Arti- cle 7a defines the internal market as an area without internal frontiers, it does not impose an obligation to establish that market. It simply means, in their submis- sion, that once the internal market has been 36. Under Article 7a, which was intro- created, if it is, it must be a framework in duced into primary Community law by which internal restrictions do not exist.

39. Nor do I consider it possible to accept the argument of the United Kingdom Government that, as far as the crossing of borders is concerned, Article 7a cannot in itself create a regime of greater freedom than that currently in force under Arti- cle 48 et seq. of the Treaty. 43 41. Article 7a is certainly not devoid of binding force, as the Governments of some Member States appear indirectly to main- tain, nor does it simply reiterate the requirements imposed by earlier Commu- nity legislation. 46 Article 7a creates an 40. In fact, as I shall analyse below, 44 the obligation to establish a regime of absolute creation of an area without internal fron- 45 — See in particular Article 73) of the Treaty of Amsterdam (see paragraph 68 et seq. below). 43 — It is maintained that, as Article 48 et seq. of the Treaty and 46 — It is this meaning which some of the participants in the the secondary legislation based on these articles provides proceedings before the Court appear to bestow on the last for a system of movement free of all controls within the phrase of the first paragraph of Article 7a, which places an Community, such a system cannot be based on Article 7a obligation on the Community to adopt measures with the of the EC Treaty: in such a case, it is argued, persons aim of progressively establishing the internal market benefiting from the provisions of Article 48 et seq., that is 'without prejudice to the other provisions of this Treaty'. to say nationals of Member States who are pursuing, have Setting out from this premiss, these participants contend pursued or hope to pursue an economic activity, would be that the measures which may be adopted under Article 7a in an inferior position in relation to persons able to rely on may not exceed, ratione maleriae anaratione personae, the Article 7a, in other words natural persons, whether or not scope of the more specific provisions of primary and nationals of a Member State. secondary Community legislation relating to freedom of 44 — See paragraph 59 below. movement for persons.

43. In its observations, the Irish Govern- ment notes that the attribution of a direct effect to the provision at issue would bring 42. In any case, the fact that the article in into question the existing fabric of regula- question places a requirement on the Com- tions on the exercise of freedom of move- munity institutions does not automatically ment for persons. The attribution of such mean that it creates rights for individuals. an effect would, it maintains, render inap- More especially, the introduction of a plicable important aspects of the Commu- Community obligation to create an area nity legislation described above defining without internal frontiers does not mean the particular procedures for giving effect that persons moving within the internal to requirements established by Article 48 et market can presume to cross frontiers seq. of the Treaty. More seriously, in the without controls or directly invoke the submission of the Irish Government, it provisions of Article 7a to that end. By would contradict the rule that the ability the same token, the nationals of Member of a person exercising the rights described States cannot simply invoke the Commu- in Article 48 et seq. of the Treaty to enter nity's specific obligation to adopt measures the territory of a Member State presup- with the aim of progressively establishing poses the presentation of a passport or the internal market in order automatically identity card. The Irish Government con- to derive therefrom the right to enter tends that the mere introduction of a Member States of which they are not general obligation to create an area without nationals in order to exercise the rights internal frontiers is not sufficient of itself to provided for by Article 48 et seq. of the render pointless the existing and hitherto Treaty without having to 'present' a pass- valid arrangements for applying the princi-

45. It is in accordance with the criteria laid down in established case-law of the Court 49that I shall examine whether the provisions of Article 7a have direct effect. 44. Moreover, the Irish Government's con- On the basis of that case-law, in order to tention, based on the premiss that attribut- produce a direct effect a provision must ing a direct effect to Article 7a would first impose a precise and well-defined render superfluous the introduction of obligation, secondly it must be uncondi- Article 8a in the context of the revision tional and finally its implementation must carried out by means of the Treaty of not depend on further measures to be Maastricht, must be rejected. 47 I consider adopted by the Community institutions or that that premiss must be rejected, because the Member States, in the sense that it must it underestimates the special importance of not accord them discretionary powers for Article 8a in the economy of the EC Treaty. the purposes of its application. Among the As I shall demonstrate at a later stage in parties submitting observations, Mr Wij- this Opinion, 4 8the particularity of this senbeek alone contends that Article 7a article is that it refers directly to a category meets these conditions. By contrast, the of persons whose particular status (that of Member States which have submitted citizen of the Union) it recognises and to observations as well as the Commission which it guarantees a fundamental consti- consider that the article at issue cannot tutional right of substantial scope. Whereas have direct effect. I shall examine below the Article 7a relates to the creation of an area arguments raised for and against Article 7a without frontiers, Article 8a focuses on the having direct effect, in each case from the angle of the criteria of case-law I have mentioned. 4 7 — This reasoning is based on the idea that, since it affects every individual moving within the internal market, the scope of Articie 7a is wider than that of Article 8a, which merely recognises the right of citizens of the Union to move and reside freely. Hence, if Article 7a enables all benefi- 49 — See in particular the Opinion of Advocate General Mayras ciaries of that right to disregard all obstacles such as in the Van Duyn case, cited in footnote 20 above, and the border controls, what purpose is served by the adoption of judgments in Cases 148/78 Ratti [1979] ECR 1629 and Article 8a? 8/81 Becker v Finanzamt Münster-Innenstadt [1982] 48 — See paragraph 81 et seq. below. ECR 5 3 .

(ii) The declarations regarding Article 7a, annexed to the Final Act of the Single European Act 47. For my part, I consider that the com- parative analysis I have just described, although of interest, 50 is not sufficient reason for refusing to acknowledge that 48. The Commission as well as the Irish, Article 7a has direct effect. Indeed, it can Netherlands and United Kingdom Govern- be retorted that because of its wording the ments refer to the declarations annexed to article in question more resembles Arti- the Final Act of the Single European Act in cle 52 than Article 48(1) of the Treaty. As order to contest the precise and uncondi- mentioned above, the Court has not hesi- tional nature of Article 7a of the Treaty. tated to recognise the direct effect of More particularly, the Declaration on Arti- Article 52 even though this article provides cle 8a of the EEC Treaty (now Article 7a of for the progressive abolition of restrictions

51 — See paragraph 26 above. 50 — See footnote 59 below. 52 — See footnote 15 above.

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53. I do not believe that this difference alone constitutes grounds for rejecting the solution I have advocated above. Although

55 — See footnote 30 above. 56 — Cited in footnote 5 above. 54. Moreover, I consider that once provi- 57 — Paragraph 18 of the Antonissen judgment, cited in foot- sions of primary Community law have been note 33 above. inserted into the text of the Treaty and

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58 — Advocate General Jacobs appears to have adopted the same reasoning with regard to Article 7a of the EC Treaty (at that time Article 8a of the EEC Treaty) in his Opinion in Case C-297/92 Istituto Nazionale della Previdenza Sociale v Baglieri [1993] ECR I-5211 regarding the binding nature of the deadline of 31 December 1992. Having concluded that the passing of the set date had no binding legal effects, especially as regards the free move- ment of persons, owing to the need to adopt further measures, he nevertheless observed: 'Such a conclusion 56. I would like more especially to make would moreover be consistent with the Declaration on the following observations. First, the Article 8a of the Treaty annexed to the Final Act adopting the Single European Act, which states that setting the date declaration stating that setting the date of of 31 December 1992 "does not create an automatic legal effect". While the status and effect of the declaration have 31 December 1992 does not create a legal yet to be clarified, it is clear that, to the extent that it can be taken into account in interpreting Article 8a, it is effect cannot be based on Article 7a. incompatible with the view that setting that date had the Hence, it should be considered only in so effect of transforming the scope of the social security regulations' (paragraph 12 of the Opinion). The Court did far as a literal and systematic interpretation not adopt a position on the question, abstaining from any mention of the declaration at issue. of Article 7a of the Treaty leads us to

58. I think these arguments put the finger 57. The Member States which have sub- on the fundamental imperfections in the mitted observations and the Commission provisions of Article 7a of the Treaty that maintain that Article 7a of the Treaty does prevent a direct effect from being attributed not give rise to an unconditional obligation to that article. First, the remark on the which can be implemented without the positive nature of the obligation to create adoption of flanking measures and hence an area without internal frontiers is rele- without the Community or the Member vant. The establishment of a regime of States exercising discretion. More espe- complete freedom of movement for persons cially, the Irish Government contends that and the abolition of frontier controls do not the article at issue places a positive obliga- merely entail eliminating existing restric- tion on the Community which, precisely by tions on freedom of movement.

persons. This obligation does not amount to an obligation crossing of the internal frontiers of the to adopt positive measures so that the remaining obstacles to the free movement of persons across the internal Community, the granting of political asy- frontiers of the Community — the presentation of a lum and cooperation among national and passport or identity card — cease to be tolerated or justified. It is this far more radical and different obligation Community authorities with a view to the which is established by Article 7a of the EC Treaty.

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munity, the formulation of a common been completed. The creation of such a policy on issues such as asylum, the issue system is therefore necessary, first in order of visas or the exchange of information on to prevent abuse of the right to cross the freedom of movement for persons. internal frontiers, secondly for the sake of the smooth functioning of the internal market, and finally in order to respect the sovereign right of the Member States to control their internal affairs.

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63. I think reference should also be made to the latest developments regarding the probable revision of primary Community law, particularly in the field of freedom of movement for persons and the elimination 62. From this point of view, the Spanish of obstacles to that freedom at the borders. Government is right to point out that First of all, I shall point out the importance

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65. It is not my intention, however, to make futurology one of the parameters for the interpretation of a rule of law. I simply believe it advisable that the Court should 67. In addition, most of the powers which not ignore the prospects of development in Article K of the Treaty on European Union the Community legal order. In the area of made subject to intergovernmental coop- the free movement of persons, the ongoing eration are now to be transferred to the process of European unification has already Community. In other words, the subject- led to the preparation of concrete proposals matter of what it has become customary to for regulations which very probably will be incorporated into the EC Treaty, thereby undeniably altering the meaning and scope 60 — My references to the provisions added to primary Com- of certain provisions of primary Commu- munity law by the Treaty of Amsterdam are based on the initial numbering, and hence do not accord with the nity law. consolidated version of the treaties.

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justice'. With a view to its progressive the abovementioned provisions of the establishment, it is provided that the Coun- Treaty of Amsterdam. cil is to adopt, 'within a period of five years after the entry into force of the Treaty of Amsterdam, measures aimed at ensuring the free movement of persons in accordance with Article 7a, in conjunction with directly related flanking measures with 70. First, the entry into force of the Treaty respect to external border controls, asylum of Amsterdam, if it occurs, will lead, under and immigration.

If particular attract our interest: first, mea- the provisions of the Treaty of Amsterdam are adopted, I believe it probable that one day the Community judicature sures aimed at abolishing border controls will be able to ascertain whether the 'flanking measures' within the Community, secondly measures are in place which will allow the expectations raised by Anicie 7a with regard to the establishment of an internal on the crossing of the external borders of market and an area without internal frontiers to become reality. the Member States, which are to establish 62 — I do not wish, by reason of my observations, t o participate standards and procedures to be followed by in the debate whether the said Community powers are Member States in carrying out checks on appropriate or sufficient in view of the creation of a framework of complete freedom of movement for persons persons at the external borders and rules on or whether obstacles exist, particularly because of the maintenance of parallel powers of the Member States in visas (list of third countries whose nationals the fields of asylum and immigration.

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71. This point of view is reinforced by the ensuring 'the absence of any controls on fact that both Article 73i and Article 73j persons, be they citizens of the Union or refer directly to Article 7a of the EC Treaty. nationals of third countries, when crossing From this I therefore draw the following a internal borders', 65 requirements which contrario conclusion: before the forthcom- stem from Article 73i et seq., are accom- ing institutional amendment — by which I panied by the granting to the competent mean the entry into force of the most recent Community institution of an implementa- revision of the Treaties — and in the tion period of five years (which, of course, absence of the Community powers and has not yet begun), I do not see how the procedures decided at Amsterdam, the deadline of 31 December 1992 set by complete implementation of the require- Article 7a of the EC Treaty for the estab- ments of Article 7a of the EC Treaty, lishment of the internal market could be directly and by virtue solely of the auto- interpreted as already prohibiting systema- matic application of that article, remains tic border controls at the internal borders impossible; the logical consequence is that of the Community. I have already stated it is impossible to attribute a direct effect to that it would be possible to say, in reply to the Treaty provision in question, at least as this reasoning, that it is based on a far as the elimination of controls at the hypothetical institutional amendment.

Amsterdam. 64 — Furthermore, the provisions of Articles 73i and 73j, which attribute direct effects as from the deadline the Treaty of Amsterdam intends to add to the Treaty, of 31 December 1992 to Article 7a of the show the close link between the elimination of controls at the internal borders of the Community and the adoption of EC Treaty, in its current version, until the measures on the crossing of the external borders of the Member States and the conditions under which nationals incorporation of the Treaty of Amsterdam of third countries may travel within the Community. It is into the body of applicable rules of primary therefore not immaterial that paragraph (a) of Article 73i refers to 'flanking measures' directly related to the establishment of an area without internal borders, as Community law.

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imminent revision of the Treaty has been 75. Advocate General Jacobs states: 'It is completed. plain however from the wording of Arti- cle 8a that that article is not in itself intended to have the effect of harmonising provisions of the Member States relating to the free movement of persons. Even when the date 31 December 1992 specified in Article 8a has passed, it cannot be regarded 73. In summary, in view of the examination as having such an effect.' 6 7 of the overall development of primary Community law and the dynamics of the revision of the fundamental provisions which should shortly take place, I consider it advisable, for reasons of legal logic, 76. In that same case the Court held that methodology and good policy in terms of that article 'cannot be interpreted as mean- judicial decision-making, to hold that Arti- ing that, in the absence of measures cle 7a does not have direct effect, especially adopted by the Council by 31 December as regards the complete elimination of the 1992 requiring the Member States to admit internal frontiers of the Community. persons who have been subject to compul- sory insurance in another Member State to voluntary affiliation to their social security schemes, an obligation to that effect arises automatically by reason of the expiry of that deadline.

80. I cannot concur with this point of view, for a number of reasons. First, it under- estimates the constitutive task of the Com- C — The scope and binding nature of munity's constitutional legislature, present- Article 8a of the Treaty ing it as being devoid of substance. Se- condly, it disregards the Community's evo- lutive dynamics at a time when those dynamics are obvious at all stages in the evolution of the written rules and case-law 78. Article 8a, which was introduced by on the free movement of persons. Lastly, the Treaty of Maastricht, is to be found in my objection is based primarily on the very the second part of the EC Treaty dealing wording and spirit of the article in ques- with citizenship of the Union. The article tion, from which I believe it is possible to gives every citizen of the Union the right to deduce arguments in favour of the original, move and reside freely within the territory binding and fundamental nature of the of the Member States. provisions it contains.

(a) The place of Article 8a within the regulatory system of the Treaty 81. It is no accident that the authors of this article resorted for the first time to a constitutional vocabulary, using terms such 79. It is contended that Article 8a of the as 'right' and 'citizen of the Union', which, Treaty does not in itself have autonomous clearly, were not to be found in the text of regulatory scope and that it is no more than the Treaty before the revision effected by a general declaration of no legal value the Treaty of Maastricht. Until this revi- which recapitulates in a non-binding man- sion, the Community legislature had sys- ner the contents of other specific provisions tematically avoided explicitly mentioning of primary and secondary Community law rights accorded to natural or legal persons,

83. The insertion into the Treaty of provi- sions such as Article 8a on citizenship of the Union and the ensuing rights will remedy this shortcoming of Community law. The article in question is inspired by the same anthropocentric philosophy as the 85. It follows that the new regime of other provisions of the body of rules of freedom of movement introduced by Arti- which it forms part. One class of persons, cle 8a differs from the previous regime not the citizens of the Union, become holders of only by reason of the extent of the category of persons benefiting from this freedom. In other words, Article 8a does not simply 69 — A significant example of this is to be found in Article 119 enshrine in constitutional terms the acquis of the Treaty, which requires Member States to 'ensure' the application of the principle that men and women should communautaire as it existed when it was receive equal pay for equal work, but without formally inserted into the Treaty and complement it stating the obvious, namely the right of any worker, regardless of sex, to equality of treatment as regards pay. by broadening the category of persons

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Member States. On that basis, the article in question produces direct effects in that it obliges the Community authorities as well as the national authorities to respect the right of European citizens to move freely 91. However, the introduction of the and requires them to avoid establishing abovementioned reservation into the first obstacles which could harm the very paragraph of Article 8a could in another essence of this right. The above considera- way limit the compulsory scope of the right to move and reside which this provision tions are particularly important when it

cle 8a? I think not. This phrase does not production of such effects to the frame- alter the direct nature of the bestowed work previously created by existing rules of right, in that it does not eliminate the Community law on the freedom of move- precise and unconditional form of the ment of persons. In other words, the direct provisions to be interpreted. As the Com- effect of Article 8a cannot exceed the mission rightly points out, the Court has limitations placed on the exercise of the not hesitated to reach the same conclusion free movement of persons, as recognised when, in the past, it has had to interpret under Article 48 et seq. of the Treaty and in provisions of the Treaty whose application accordance with the relevant provisions of was subject to general reservations. 70 secondary law. In the present case, accept- Moreover, it is a feature of any right ing this point of view would mean recog- recognised by a legal order that it cannot nising the right of all citizens of the Union to move and reside freely within the Community, but on condition that they presented a passport or identity card to the extent that this is patently provided for by the rules of secondary law. 70 — The example of Article 48 is more interesting, in that this article enshrines the freedom of movement of workers, 'subject to limitations justified on grounds of public policy, public security or public health'. With regard to the direct 71 — See the written observations of the Commission, para- effect of Article 48, see paragraph 27 et seq. above. graph 27 et seq.

95. Article 8a was not adopted solely to cater for marginal situations such as this. I 93. If the rights established by Article 8a have shown above that its basic function were no more than a reiteration of those was to accord a fundamental right to the previously recognised in the Community citizens of the Union, the nature, intensity legal order regarding the free movement of and scope of which differ from the bene- persons, the addition of this article to the ficial effects produced by compliance with text of the Treaty, and moreover in such a the classical Community principle of free- strategic position, would not be justified. I dom of movement of persons under Arti- have already mentioned that, thanks to cle 48 et seq. of the Treaty or rules case-law and secondary legislation, the established in this respect by provisions of classes of persons enjoying freedom of secondary law. Article 8a takes Commu- movement had already been extended nity law beyond the concept of the princi- before the Treaty of Maastricht to comprise ple of freedom of movement generally all the nationals of Member States and the accepted hitherto. It is for this reason that members of their families, whether or not it is not always possible to transpose the they pursue an economic activity, 'provided 'acquis communautaire' regarding this that they themselves and the members of principle into the field of application of their families are covered by sickness Article 8 a of the Treaty. insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence'. 72

98. On the question of the crossing of the internal frontiers of the Community, the specific difference which, in my opinion, (c) Article 8a of the Treaty and border distinguishes Article 8a from Community controls within the Community law on freedom of movement of persons as applied up to now is the following: in the past the conduct of systematic border controls and the obligation to show a passport or identity card were a commonly 97. We can deduce from the foregoing that accepted constraint when crossing borders, Article 8a of the EC Treaty introduced into without anyone asking whether this form- Community law a fundamental individual ality was justified in all cases, but such a right having direct effect, which consists in view cannot be taken for granted when it the possibility for citizens of the Union to comes to applying Article 8a of the Treaty. move and reside freely within the Commu- The lawfulness of the border control nity. It is conceivable to impose restrictions arrangements presupposes either that the or conditions on the exercise of that right right to move freely enshrined in Article 8a only if the measures in question are justi- is not impeded by the conduct of these fied and do not affect the very essence of controls and by the general obligation to that right. It is from this standpoint that present a travel document when crossing

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the internal borders of the Community, or a passport or identity card. That is why, that the obstacle at issue is, in all cases, although this obligation constitutes an automatically justified and does not affect obstacle to freedom of movement, it has the very essence of the said right. never been considered contrary to Arti- cle 48 et seq. of the EC Treaty.

73 — Even the mere fact that a person not pursuing an occupational activity but receiving income resides in a 74 — See my foregoing analysis of the difference between the Member State other than the one of which he is a national functional right and the substantive right to freedom of is of economic interest from the point of view of movement. Community law in that such a person is bound to consume 75 — It would not be possible to sustain this argument with goods and benefit from services. From this point of view, regard to Article 48 et seq. of the Treaty. The existing granting freedom of movement to almost any person, obstacles to crossing frontiers unchecked did not affect the whether he pursues an activity or not, has an economic substance of the 'rights' deriving from freedom of move- impact of relevance to the common market. ment.

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76 — The Commission bases its reasoning largely on the 77 — The application of the same criteria of case-law demon- argument that Article 8a cannot, by itself, have wider regulatory scope that that attributed jointly to Anieles 7a strates the relationship which exists between Anicie 8a and 8a. This point of view is correct in principle. If direct and Article 48 et seq. of the Treaty. As I have shown effects are not attributed to Article 7a, which imposes in above, the first of these articles clearly constitutes an Community law the obligation to create an area without advance on the status quo created in the context of internal frontiers, in other words the abolition of border Article 48 et seq. of the Treaty. That is why the faas of controls, this obligation cannot acquire greater intensity Community law predating Article 8a cannot be transposed indirectly as a result of the application of Article 8a. autonomously and automatically into the framework of However, the Commission draws wrong conclusions from this article. This does not mean that these facts cannot be this correct remark, in that it considers that since the status used for interpreting Article 8a. Quite the contrary: these quo predating Article 8a, in other words the imposition of facts are of value for the conceptual understanding and a general obligation to present a passport or identity card, application of Anicie 8a, in that the position which this was not completely called into question by Article 7a, that article occupies in the economy of the EC Treaty corre- status quo continues to apply without being in the least sponds to that occupied by Anicie 48 et seq. in the affected by the addition of Article 8a to the text of the economy of the EEC Treaty. Treaty. 78 — See paragraphs 28 and 29 above.

cle whatsoever which is liable 'to hamper sues without entailing unreasonable con- or to render less attractive' the exercise of straints on the holders of the right to the rights guaranteed by this article com- freedom of movement by taking forms plies with Community law if it meets the disproportionate to the objective pursued. following conditions: it must first be non- discriminatory, secondly it must be justified by overriding reasons of public interest, it must then be appropriate for ensuring attainment of the objective it pursues and finally it must not go beyond what is necessary for that purpose. It is in the light 107. I believe nevertheless that it would be of these criteria that the compatibility of preferable to adopt a slightly different controls at the internal frontiers of the stance. I do not doubt that the absence of Community and the imposition of a general an effective system of controls at the obligation to present a passport or identity external frontiers justifies, in principle, the card with Community law must be exam- maintenance of controls at the internal ined. frontiers, the most appropriate form of which consists in the obligation to present a passport or identity card. However, does this reasoning have absolute value? In other words, are the imperfections and shortcomings of the Community legal order sufficient to justify the establishment of a general and universal obstacle, the neces- sary, appropriate and, in the strict sense, proportional nature of which cannot in any circumstances be validly challenged by 106. From one point of view, the above- persons with the right to freedom of move- mentioned general limitations on the cross- ment? I do not think so. ing of borders meet the criteria listed above and are to be considered to comply with Article 8a of the Treaty and more generally with Community law. This reasoning is based mainly on the same reasons as those used previously to assert that Article 7a did not produce direct legal effects. The 108. It is preferable, at the current stage of absence of arrangements for carrying out European unification and from the point of controls at the external borders of the view of the systematic interpretation of Community, which would make it possible Community law, to give the national court to check fully the persons entering the the possibility of examining on each occa- Community, justifies the conduct of con- sion, within the framework of the ad hoc trols at the internal frontiers for reasons of examination of the case before it, whether a public interest, at both Community and limitation imposed on the crossing of the national levels. More particularly, the internal borders of the Community meets imposition of a general obligation to pre- the abovementioned criteria of case-law, sent a passport or identity card not only hence whether border controls, in the does not create discrimination, but appears particular circumstances in which they are appropriate for ensuring the attainment of carried out, comply with Article 8a of the the public-interest objective which it pur- Treaty. The absence of effective Commu-

109. The consideration made above is not purely hypothetical. I could cite the Schen- gen agreements as an example of such a non-Community mechanism for controls at the external frontiers. We know that the 111. First, it highlights as much as is interpretation of these agreements does not possible the scope of Article 8a of the come within the jurisdiction of the Court, Treaty, widening the rights of citizens of and it is not my intention to undertake an the Union despite the absence of Commu- interpretation of these agreements. How- nity arrangements for controls at the exter- ever, the problem at issue comes within the nal borders. It would be unfortunate to jurisdiction of the national court. The make citizens bear the consequences of question submitted therefore consists in inaction by the Community institutions or ascertaining the extent to which the of the negative attitude of the Member national court may use this 'acquis extra- States with regard to the progress of communautaire' for the purposes of a more European unification in the field of free- complete application of a fundamental dom of movement of persons. Community rule such as Article 8a. In other words, it is advisable to examine globally, and without confining oneself to Community rules, the factual and legal framework in which a citizen of the Union undertakes to cross the borders of a Mem- ber State when coming from another Member State, in order then to decide (if 112. Secondly, it succeeds in reducing (pos- appropriate) that, taking account of parti- sibly) certain obstacles to the freedom of cular factors, of law and of fact, the movement of citizens without compromis- imposition of systematic border controls ing other priorities of European unification on this citizen and an obligation to present and without compromising the inalienable a passport or identity card constitutes an rights of the Member States with regard to

the control of the persons present in their in certain articles of the Treaty of Amster- territory, 79 rights which have long been dam and in the protocols annexed thereto. recognised by the Court. 80 More especially, the protocol integrating the Schengen acquis into the framework of the European Union was signed precisely in order to incorporate into the Community legal order the results that had been 113. Thirdly, it gives the national court achieved thanks to the Schengen agree- responsibility for actively verifying compli- ments with regard to border controls, visas, ance with the freedom of movement of political asylum and the exchange of per- persons, particularly as regards the crossing sonal information. Article 2(1) of that of the internal borders of the Community, protocol provides that 'from the date of by enabling it to derive from the general entry into force of the Treaty of Amster- evolution of the law the elements useful for dam, the Schengen acquis.

If they succeed in this, the Member States concerned do not risk of the Schengen agreements in its country being obliged to accept undesirable nationals from third before deciding whether a national limita- countries and to give them asylum as a result of the elimination of the borders between them. Once controls at tion on the crossing of the internal frontiers the exrernal borders of the Member States are carried out in the manner agreed joinrly and the movement and of the Community complies with Article 8a residence of nationals from third countries are organised in or not, accords with the logic that inspired accordance with jointly accepted rules, there could be no question of a Member State being entered via intra- the Amsterdam conference when the pro- Community borders by persons which this Member State tocol in question was signed. would not itself have admitted on the basis of rules which would be exactly the same.

It is in fact the same objective which the Court pursues when the proposed solution on the existing rules it calls upon the national court to interpret its national provisions 'in the light of' Community law. See the judgments in Cases C-334/92 Wagner Miret v Fondo de Garantia Salarial [1993] ECR I-6911 and C-106/89 Mar- 82 — The United Kingdom and Ireland are not involved; so far, leasing v La Comercial Internacional de Alimentación these States have not agreed to comply with the rules of the [1990] ECR I-4135.

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117. In any case, despite what I consider to 83 — At the time, the Schengen agreements, on which the be the important consequences of the accused relies, had not begun to produce their full effects.

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VI — Conclusion

118. In the light of the above, I propose that the Court reply as follows to the questions submitted:

A citizen of a Member State returning to that Member State from another Member State enjoys the right to freedom of movement conferred by Article 8a of the EC Treaty.