C-459/99

B — National law I-6601

III — Facts and main proceedings I-6603

IV — Preliminary observations on reunification of families I-6604

V — The first question (refusal of entry at the frontier) I - 6606

A — Submissions of the parties I-6606

B ·— Assessment I - 6607

B — Assessment I-6615

1. Refusal of a residence permit I-6615

2. Expulsion from the territory I - 6616

(a) Principle of non-discrimination I - 6617

(b) Right to respect for family life and the principle of proportionality . . I-6618

1 — Original language: German.

2. Council Directive 64/221/EEC of 25 February 1964 on the coordination of 2 — OJ English Special Edition (1963-1964) p. 117.

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MRAX

(2) Previous criminal convictions shall not decision, or where the appeal cannot have in themselves constitute grounds for the suspensory effect, a decision refusing re- taking of such measures. newal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the (3) Expiry of the identity card or passport host country before which the person used by the person concerned to enter the concerned enjoys such rights of defence host country and to obtain a residence and of assistance or representation as the permit shall not justify expulsion from the domestic law of that country provides for. territory. This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering expulsion.

(4) The State which issued the identity card or passport shall allow the holder of such a document to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.'

(2) Any decision refusing the issue of a first residence permit or ordering expulsion of the person concerned before the issue of the 4. Article 8 lays down that the person permit shall, where that person so requests, concerned must have the same legal be referred for consideration to the auth- remedies in respect of the decision refusing ority whose prior opinion is required under entry, the issue or extension of a residence paragraph 1. The person concerned shall permit, or the decision ordering expulsion then be entitled to submit his defence in from the territory, as are available to person, except where this would be nationals of the State concerned in respect contrary to the interests of national secur- of acts of the administration. ity.'

(3) For the issue of a Residence Permit for a National of a Member State of the EEC, (2) No entry visa or equivalent document Member States may require only the may be demanded save from members of production of the following documents: the family who are not nationals of a Member State. Member States shall accord to such persons every facility for obtaining any necessary visas.'

— by the worker:

8. Article 4 provides: (a) the document with which he entered their territory;

'(1) Member States shall grant the right of residence in their territory to the persons (b) a confirmation of engagement from the employer or a certificate of employ- 3 — OJ, English Special Edition 1968 (II), p. 485. ment;

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MRAX

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OPINION OF MRS STIX-HACKL — CASE C-459/99

10. Council Directive 73/148/EEC of (d) the relatives in the ascending and 21 May 1973 on the abolition of restric- descending lines of such nationals and tions on movement and residence within of the spouse of such nationals, which the Community for nationals of Member relatives are dependent on them, irre- States with regard to establishment and the spective of their nationality.' provision of services 5 applies, according to Article 1 thereof, inter alios to the follow- ing persons:

11. Under Article 3(1), the Member States '(1) The Member States shall, acting as are to grant to the persons referred to in provided in this Directive, abolish restric- Article 1 the right to enter their territory tions on the movement and residence of: merely on production of a valid identity card or passport.

(a) nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-em- 12. Article 3(2) is worded in the same ployed persons, or who wish to provide manner as Article 3(2) of Directive 68/360. services in that State;

(b) nationals of Member States wishing to go to another Member State as recipi- 13. Article 4(3) provides: ents of services;

17. In implementation of Article 42 of the Law of 15 December 1980, a Royal Decree 15. Council Regulation (EC) No 2317/95 of 8 October 1981 laid down the con- of 25 September 1995 determining the ditions for recognising the right of resi- third-countries whose nationals must be in dence and the procedure for issuing a possession of visas when crossing the residence permit. external borders of the Member States6 lays down rules on the visa obligation, inter alia with regard to nationals of third-coun- tries listed in the annex. That regulation was replaced by Council Regulation (EC) 18. On 28 August 1997 the Minister of the No 574/1999 of 12 March 1999 determin- Interior and the Minister of Justice issued a ing the third-countries whose nationals circular concerning the procedure for pub- must be in possession of visas when cross-

7 —OJ 1999 L 72, p. 2. 6 — OJ 1995 L 234, p. 1. 8 — Moniteur belge of 31 December 1980.

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OPINION OF MRS STIX-HACKL — CASE C-459/99

lication of banns of marriage and the of a State party to an international Con- documents which must be produced in vention concerning the crossing of external order to obtain a visa for the purpose of borders which is binding on Belgium (Ar- contracting a marriage in the Kingdom of ticle 2 of the Law of 15 December 1980). Belgium or to obtain a visa for the purpose of reuniting a family on the basis of a marriage contracted abroad ('the Circu- lar') 9. Where a foreign national fails to produce the abovementioned entry documents, his application for residence shall in principle be declared inadmissible.' 19. Paragraph 4 of the Circular provides as follows:

(2) Under subparagraph (i) of the first I I I— Facts and main proceedings paragraph of Article 10 of the Law (application of bilateral agreements relating to the employment in Belgium of foreign workers concluded between 21. On the 28 November 1997 the Mouve- Belgium and Morocco, Turkey, Tuni- ment contre le racisme, l'antisémitisme et la sia, Algeria and Yugoslavia, approved xénophobie ASBL (Movement to combat by the Law of 13 December 1976 — racism, anti-Semitism and xenophobia) M.B., 17 June 1977): ('MRAX') brought an action before the Belgian Conseil d'Etat (Administrative Sec- tion) for annulment of paragraphs 4 and 6 of the Circular.

22. The Conseil d'Etat dismissed the appli- cation with regard to paragraph 6.

— evidence that the spouse is employed in Belgium (certificate 23. With regard to paragraph 4, MRAX from the employer, employment submitted that the provision in question contract, entry in the commercial infringes Articles 8 and 9 of Directive register,...); 64/221, Article 10 of Directive 68/360, 'Article 6 of the Maastricht Treaty' and a number of provisions of Belgian law.

— a copy of the work permit or trading licence of the spouse in 24. As the Conseil d'Etat considers that the Belgium; interpretation of the provisions of Commu- nity law relevant to the main proceedings is not obvious, it has referred the following questions to the Court of Justice for a preliminary ruling, by order of 23 Novem- ber 1999:

— evidence that the spouse in Belgium has worked there for at least three months (one month in the case of Turkish '1. Must Article 3 of Directive 68/360 of nationals).' 15 October 1968, Article 3 of Direc-

3. Do Articles 3 and 4(3) of Directive 68/360, Article 3 of Directive 73/148 and Article 3(3) of Directive 64/221 of 25 February 1964 mean that the 26. The great value attached to reunifi- Member States may neither withhold cation of families 10 is already evident from a residence permit nor expel a foreign the fact that rules on it have been laid down spouse of a Community national who has entered national territory unlaw- fully but whose visa has expired when 10 — See in that regard the communication of the Commission, application is made for the issue of that the Council and the European Parliament on Community immigration policy of 22 November 2000, COM (2000) permit? 757 final, page 10 et seq.

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in a series of international legal instru- 29. On the other hand, the Action Plan of ments, such as the International Covenant the Council and of the Commission on an on Civil and Political Rights, in the Con- 'Area of freedom, security and justice' ventions on the Rights of the Child, in the adopted following the Treaty of Amster- International Convention on the Protection dam provides for a series of specific legal of the Rights of All Migratory Workers and i n s t r u m e n t s . They include the — Members of their Families, in the European planned — directive concerning the right Convention on the Legal Status of Migrant to family reunification; at the moment, Workers, and in the European Convention however, the Council has before it only the on the Protection of Human Rights and amended proposal of the Commission for Fundamental Freedoms ('the ECHR'), and discussion. 12 in the European Social Charter.

28. In that context it should be noted that, 31. Under Community law as it currently apart from rules on non-Member State stands, there is therefore a material dif- nationals who are members of the family ference between a non-Member State of Member State nationals, Community national, whose spouse makes use of his law as it currently stands does not contain rights derived from Community law, and a any provisions on reunification of families. non-Member State national whose spouse Because of its lack of binding legal force, it has never made use of those rights. 14 is not necessary to consider the 1993 Resolution of the Council on family reu- nification. 11 12 —COM (2000)624 final. 13 — Cf. the Commission in its Proposal for a directive concerning family reunification, COM (1999) 638 final. No 7.5; Martin, Loi du 15 Décembre 1980, Revue du 11 — Council document SN 2828/1/93 WG1 1497 REV 1. See droit des étrangers 1996, 722 (725). for more details Handoll, Free Movement of Persons in the 14 —Case C-206/91 Koua Poirrez [1992] ECR I-6685, para- F.U, 1995, 367 et seq. graph 13, concerning freedom of movement for workers.

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OPINION OF MRS STIX-HACKL — CASE C-459/99

That is also the essential starting point in According to MRAX, examination of the the present proceedings. visa requirements should be carried out in Belgium and not in the country of origin of the non-Member State national.

32. Save where otherwise indicated, the following remarks concerning non- Member State nationals refer to non- Member State nationals who are married to Community citizens. 35. The Belgian Government maintains that it is for the Member States to examine whether the persons who wish to enter their territory, or who have already entered it and assert a right of residence, may rely on Community law. It is necessary to prove identity and family relationships.

36. The Austrian Government agrees with at the frontier, which is the very negation of the submissions of the Belgian Govern- those rights. Refusal of entry is therefore a ment, in so far as different treatment disproportionate measure. resulting from the visa obligation is not based on non-objective considerations and does not therefore constitute discrimi- nation. The same holds for the different treatment of persons who have complied with their obligation to obtain a visa, on the one hand, and persons who have not For a person who has a family link to a complied with this obligation, on the other. migrant worker, the visa has a merely formal character and must be issued vir- tually automatically by the Member State in which entry is sought. In no way does the visa serve to determine the position under Community law of the person concerned. The right of entry is derived under Com- In the light of the free movement of persons munity law solely through the family link. and the principle of proportionality, a Member State may provide for exceptions from the general principle that a visa is required in specific cases in which the person concerned can plead exceptional circumstances, as Article 4 of Regulation No 574/99 also provides. The assistance of consulates in the non- Member State nationals' countries of origin is merely an organisational measure and cannot restrict rights derived under Com- munity law.

37. In the Commission's view, if it is possible to refuse entry to a Member State national if he cannot prove his nationality, the same must hold for non-Member State nationals who are unable to establish their right on the basis of a family link to a Member State national. B — Assessment

1. Entry conditions — Power of the Member States to demand a visa 44. Article 3 of Directive 68/360 and of Directive 73/148 therefore maintain the visa obligation for such members of the 41. The national court's first question con- family. 17 Therein lies a further material cerns the power of the Member States to difference from nationals of the Member deny entry at the frontier to non-Member States. In return, Article 3(2) of both direc- State nationals who are married to Com- munity nationals and who have no passport or visa. 15 — In the German version; this word is missing in some language versions of Directive 68/360. That is, however, of no legal significance. 16 — Irrelevant to the English version of this Opinion. 17 — Carlier, 'La circulation des personnes dans l'Union euro- péenne', Journal des tribunaux. Droit européen, 1995, 97 (104); Hailbronner, Neuere Entwicklungen im euro- päischen Ausländerrecht, 1997, 18; Maresceau, 'La libre circulation des personnes et les ressortissants d'Etats tiers', in: Demaret (Hrsg.), Relations exterieurs de la Commun- 42. For members of the family, in particu- auté européenne et marché intérieur: aspects juridiques et lar spouses of Community nationals, the fonctionels, 1986, 106 (111 f.).

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tives requires the Member States to accord to issue a visa to members of the family. the members of the family 'every facility' Both provisions restrict the Member States' for obtaining any necessary visas. obligation to according 'every facility'.

45. Regulation No 2317/95, replaced by 48. On the other hand, it can be inferred Regulation No 574/1999, contains a list of from the fact that 'every facility' is to be third-countries, whose nationals must be in accorded that in any event the procedure possession of a visa when crossing the for issuing a visa is to be facilitated. It Community's external frontier. As these might be assumed that there is an obli- regulations do not adopt any special rules gation to accelerate the procedure in for spouses of Community nationals, it comparison with procedures concerning must be assumed that this visa obligation non-privileged non-Member State also applies to this group of persons. nationals, in particular in order to reduce the period for processing the application.

2. Power of the Member States to refuse Directive 68/360 and of Directive 73/148 entry at the frontier that the Member States have a power to refuse entry at the frontier. If a non- Member State national does not fulfil a condition, such as presentation of a valid passport or a valid visa, the Member States' obligation to grant him entry does not 51. First it should be emphasised once apply. Contrary to the Commission's view, again that, although the power and — in it is not necessary to distinguish between some cases — the obligation of the whether the non-Member State national Member States to demand a visa of non- has no valid passport or — merely — no Member State nationals, including spouses visa. Regulation No 2317/95, which was of Community citizens, is expressly regu- replaced by Regulation No 574/1999, lated in Community law, the question of shows that the visa requirement is not a refusal of entry at the frontier is not. lesser obligation. Article 5 of both regu- lations defines visa expressly as 'a decision... which is required for entry'. Community law therefore proceeds from the premise that the visa is a requirement, and even a necessary condition, for entry.

52. Refusal of entry is one of several poss- ible measures which the Member State may take in that connection. It must, however, be made clear that a power or an obligation to refuse entry does not follow automati- cally from the visa obligation for non- Member State nationals. 55. It is therefore necessary to consider the principle of non-discrimination referred to in the national court's question. It will then be necessary to examine the significance attached to the rights to respect for family 53. As an obligation to issue a visa at the life in a situation such as that in the main frontier cannot be inferred from the obli- proceedings. gation laid down in Article 3(2) of Direc- tive 68/360 and of Directive 73/148 to 'afford every facility', a prohibition on refusing entry at the frontier cannot — at least at first sight — be inferred from it.

58. It must first of all be pointed out that a mere difference in treatment does not infringe the prohibition of discrimination. Different treatment of two groups of per- sons is permissible if objectively justified. 60. A distinction made by a Member State between non-Member State nationals with- out visas and non-Member State nationals with visas is based on a distinction that is not in itself discriminatory. In connection with rules relating to aliens, in particular those relating to entry, such a criterion is 59. Although legal writers disagree as to objective. Equal treatment of both groups whether non-Member State nationals can of persons does not therefore appear to be also rely on the prohibition of discrimi- required eo ipso. nation, the special nature of the present proceedings lies in the fact that they con- cern non-Member State nationals who are 18—Joined Cases 117/76 and 16/77 Ruckdeschel 11997] ECR 1753, paragraph 7 , and Case C-309/96 Annibaldt [1997] spouses of Community nationals, thus non- ECR I-7493, paragraph 18.

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OPINION OF MRS STIX-HACKL — CASE C-459/99

66. Such interference is permissible only if it satisfies the requirements of Article 8(2) 63. The national court's first question con- ECHR. According to Article 8(2) it is cerns the case of refusal to allow entry at

23 — In that regard see generally De Schutter, Le droit au regroupement familial au croisement des ordres juridiques 19 — Joined Cases 60/84 and 61/84 Cinéthèque [1985] 2605, européens, Revue du droit des étrangers, 1996, 531 (546). paragraph 26 and Case 12/86 Demirel [1987] ECR 3719, On the negative obligation see the judgment of the ECHR paragraph 28. Ciliz v Netherlands of 11 July 2000, § 62. 20 — Case C-274/99 P Connolly v Commission [2001] ECR 24 _ Judgment of the ECHR in Marckx v Belgium, Series A, I-1611, paragraph 37. No 31, § 31. 21 — Case C-274/99 P (previous footnote), paragraph 38. 25 — De Schutter, (cited in footnote 23), 546. 22 — On interpretation of a regulation in the light of Article 8 26 — Which corresponds to Article 7 of the Charter of Funda- ECHR, see Case 249/86 Commission v Germany [1989] mental Rights of the European Union adopted in Nice on ECR 1263, paragraph 10; see also Case 222/84 Johnston 7 December 2000 (OJ 2000 C 364, p. 1). [1986] ECR 1651, paragraph 18, concerning the inter- pretation of a directive in the light of human rights and 27 _ Judgment of the ECHR Ahdulaziz, Cabales and Balkandali fundamental freedoms. v United Kingdom, Series A, No 94, § 62.

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permissible if it is 'in accordance with the Justice. That applies especially in view of law and is necessary in a democratic society the nature of the analysis to be carried in the interests of national security, public out. 29 Application of the rules of Commu- safety or the economic well-being of the nity law, like the rules for their implemen- country, for the prevention of disorder or tation in a specific case, remains the task of crime, for the protection of health or the national court. morals, or for the protection of the rights and freedoms of others'.

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OPINION OF MRS STIX-HACKL — CASE C-459/99

72. The answer to the national court's first country of origin in order to acquire a visa question is therefore that Article 3 of for his residence permit. Directive 68/360, Article 3 of Directive 73/148 and Regulation No 2317/95 are to be interpreted as meaning that the Member States may refuse entry at the frontier to non-Member State national spouses of Community nationals who are required to have a visa on entry but who attempt to enter the territory of a Member State without being in possession of a passport The Belgian Government treats non- or visa only if that is compatible with the Member State nationals who have acquired right to respect for family life, in particular a visa in their country of origin and apply with the principle of proportionality. for a residence permit differently from non-Member State nationals who apply for a residence permit without being in possession of a visa. MRAX questions whether this different treatment of the two groups is justified, because both groups are in fact not so different: in one case there are non-Member State nationals who have applied for a visa, who are in their country VI — The second question (unlawful of origin and request entry into Belgium, entry) while in the other case there are non- Member State nationals who are illegally resident in Belgium, and therefore already in Belgian territory, who have married 73. The national court's second question there and are already enjoying a family life concerns refusal of a residence permit and with their partner. expulsion from the territory in the event of the unlawful entry of the non-Member State national spouse of a Community citizen.

Finally, the Belgian Government submits B — Assessment that in view of the interests at stake, namely public order, on the one hand, and respect for private family life, on the other, removal from the national territory cannot 78. It must first be observed that a dis- be regarded as disproportionate. tinction must be drawn between the right of residence and the residence permit. While the right of residence follows as a matter of law from Article 4 of Directive 68/360 or Article 4 of Directive 73/148, the issue of a residence permit is not a measure by a Member State 'giving rise to rights'. 31 That means that it cannot be constitutive of the right of residence. 76. The Austrian Government observes that both primary and secondary law pro- vide for the termination of the right of even a national of a Member State to reside in another Member State, if the conditions for further residence are not, or are no longer, fulfilled. It can be inferred from the rel- evant provisions of Article 10 of Directive 1. Refusal of a residence permit 68/360 and of Article 8 of Directive 73/148 that expulsion of a non-Member State national who is a member of a family is a fortiori permissible. 79. It must first be emphasised that the national court's second question relates to the case where the non-Member State national has entered the territory unlaw- fully.

82. Refusal of a residence permit must be classified as a public order measure. According to Article 3(1) of Directive 64/221, measures taken on such grounds are to be based 'exclusively on the personal conduct of the individual concerned'. A 85. Nevertheless, the other provisions of general, abstract national rule, such as that Article 3 of Directive 64/221 militate in the Circular at issue in the proceedings, against such a contrario reasoning. which does not impose an obligation to Article 3(3) should probably be understood examine the individual case, i.e. that such as a lex specialis in comparison with the factors be taken into account, for example general prohibition in Article 3(1). In the in that it requires a residence permit to be absence of a special rule, penalties for refused generally in the event of unlawful unlawful entry fall under the general rule entry, is therefore impermissible. in Article 3(1) of Directive 64/221.

2. Expulsion from the territory

86. Expulsion from the territory represents a measure taken on grounds of public policy within the meaning of Article 3(1). 83. Article 3(3) of Directive 64/221 However, Article 3(1) provides that such expressly prohibits expulsion from the measures are to be based exclusively on the territory only where the identity card or personal conduct of the person concerned. passport used to enter the country has That means that a general, abstract expired. national rule, such as that in the Circular,

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is therefore impermissible where it does not 90. However, it is settled case-law that ensure an examination of the individual other penalties, such as fines or imprison­ case, i.e. the taking into account of such ment, are basically permissible in the case factors, for example by laying down gen­ of unlawful acts, including infringements of erally the penalty of expulsion from the the entry rules. That is, however, subject to territory in the event of unlawful entry. the condition that the penalty be 'propor­ tionate' 3 4 or, in other words, an 'appropri­ ate punishment for infringement'. 35

OPINION OF MRS STIX-HACKL — CASE C-459/99

(b) Right to respect for family life and the 95. When balancing private and public principle of proportionality interests in the course of assessing propor- tionality, all relevant circumstances of the particular case must be taken into account.

92. It is necessary to emphasise, in con- nection with the answer to the second question too, that the national proceedings 96. In the present case, it is necessary to are general in character and that the task of give particular weight also to the fact that the Court of Justice is to give the national the non-Member State national concerned court merely indications as to the inter- has infringed the rules relating to aliens. pretation of Community law that are necessary for it to decide the dispute. Consequently, it is necessary to restrict oneself to matters of principle, in particular with regard to interpretation in the light of the ECHR. Application of the Community rules, and of the national rules implement- 97. The answer to the second question is ing them in a particular case, remains the therefore that Article 4 of Directive 68/360 task of the national court. and Article 6 of Directive 73/148 in con- junction with Article 3 of those directives and Article 3 of Directive 64/221 are to be interpreted as meaning that the Member States may refuse to issue a residence permit to the spouse of a Community citizen who has entered their territory unlawfully and adopt a measure expelling him from the territory only if that is 93. In the present case, as I have already compatible with the right to respect for indicated, it is necessary to proceed from family life, and in particular with the the premise that a refusal to grant a principle of proportionality. residence permit for the spouse of a Com- munity citizen and his expulsion from the territory interferes with the right to respect for family life.

99. MRAX submits that the expiry of the visa cannot justify expulsion from the territory of the Member State, as is pro- vided for in Article 4 of the Circular. Article 4 of Directive 68/360 does not require that the documents under which entry was permitted must still be valid.

102. According to the Commission, the answer to this question is based on the same premises as in the case of unlawful entry. Because of the family connection 100. According to the Belgian Govern- with a Member State national, Directives ment, the answer to this question is clear 68/380 and 73/148 and the judgment in from the wording of Article 3(3) of Direc- Royer, are to be applied.36 The Commis- tive 64/221. According to it, the document sion infers from this that the expiry of a on the basis of which entry was permitted visa after entry does not in principle justify can, for the spouse of a Member State refusal of a residence permit. The absence national, be none other than the passport of this formal requirement does not alter with valid visa which is to be submitted the validity of the passport for the purposes when the residence permit is applied for. of issuing a residence permit. That is, The expiry of that document after the issue moreover, confirmed by Article 3(3) of of the residence permit on the basis of the Directive 64/221. In the Commission's production of the passport with valid visa view, the Community legislature is thereby cannot justify expulsion from the territory. emphasising the substance of that formality and not merely its form. That is not affected by the fact that this provision governs only the expiry of an identity card or passport, not that of a visa.

103. Although Article 3(3) of Directive 64/221 governs the case where the identity card or passport expires, it relates to a case which is different in two respects from the case underlying the third question. First, 107. Pursuant to those provisions, the that question concerns the case where a Member States may demand from the visa expires and not the document which applicant only the production of the docu- made entry into the territory possible. ment with which he entered their territory, Second, Article 3(3) governs the case where a confirmation proving the family relation- the documents expire after issue of the ship and — under Directive 68/360 for residence permit, whereas the third ques- particular members of the family — a tion concerns the case where the visa has document testifying that they are depend- already expired before application is made ent on the worker or live under his roof. for the residence permit.

108. Those provisions do not refer to a 104. Article 3(3) of Directive 64/221 can visa, nor therefore to the continuing valid- therefore govern only expulsion from the ity of a visa. territory, not also the issue of the residence permit.

109. A comparison between the provisions of Article 3 of Directive 68/360 and Article 3 of Directive 73/148, concerning 105. The answer to the question whether the conditions for entry, shows that a valid the Member States may demand the visa cannot be a condition. Directive production of a valid visa for the issue of 73/148 expressly refers to the requirement a residence permit is to be found instead in for a visa.

2. Expulsion from the territory

117. Breaches of national provisions con- 113. Article 3(3) of Directive 64/221 cerning the control of aliens can however, expressly prohibits expulsion from the be subject to 'appropriate sanctions necess- territory only where the identity card or passport used to enter the country and to 37 — Judgment in Case 48/75 (cited in footnote 31), paragraphs obtain a residence permit, has expired. 41 and 42.

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ary in order to ensure the efficacity of those A — Arguments of the parties provisions'. 38However, only 'appropriate punishment for infringement' may be imposed. 39

38 — Case 48/75 (cited in footnote 31), paragraph 42. 40 — Joined Cases C-65/95 and C-111/95 Shingara and Radiom 39 — Case 8/77 (cited in footnote 35), paragraph 6. [1997] ECR I-3343.

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are not applicable to persons who have 124. The Commission takes the view that entered unlawfully. Article 1(2) of Directive 64/221 also applies to non-Member State nationals who are members of the family of a national of a Member State. If the family connection exists, such persons also enjoy the remedies provided for in Article 9(2) of Directive 64/221 even if their visa has expired. 123. The Austrian Government submits, referring to the judgments of the Court of Justice in Royer and Santillo,41 that a decision concerning expulsion from the territory cannot — except in the case of substantial urgency — be implemented against a person protected by Community law until he has been able to exhaust the On the other hand, if there is no identity remedies guaranteed to him in Articles 8 card or passport, it refers to the answer and 9 of Directive 64/221. which it believes should be given to the first question. It is necessary that the status of a person as a non-Member State national spouse of a Community national be capable of being established so that the spouse can enjoy the rights guaranteed by Community law.

If the spouse of a Member State national does not fulfil the conditions for entry, Articles 8 and 9 of Directive 64/221 are not applicable.

B — Assessment

127. It should first be pointed out that Article 9(2) of Directive 64/221 applies expressly both to 'decisions refusing the issue of a first residence permit' and also to 131. It would however be wrong to infer, 'decisions ordering expulsion of the person as the Belgian Government does, from the concerned before the issue of the permit'. words 'fulfil the conditions' that only As regards the scope of application ratione persons who fulfil all conditions for entry materiae, for which Directive 64/221 lays and residence have a right of application. It down an obligation to provide for a review, would be just as incorrect to reduce the the fourth question does not therefore pose fourth question to the case of unlawful any difficulties of interpretation. entry and, consequently, to deny non- Member State nationals who had already unlawfully entered the territory a right to apply for review.

128. On the other hand, Article 9(2) of the directive does not define the persons entitled to apply for review, but refers 132. The wording itself indicates that there merely to 'the persons concerned'. should be a broad interpretation of the

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scope ratione personae of the right to apply example, the passport of a non-Member for review. Article 9(2) refers to the 'per- State national expires and the Member sons concerned', without laying down any State orders expulsion from the territory, further conditions. The case-law of the that might infringe the prohibition in Court of Justice also takes account of that Article 3(3) of Directive 64/221. If, in such in holding that Article 9(2) provides that a case, the person concerned were denied 'persons against whom decisions have been the right to review of the expulsion adopted... may request that such decisions decision, that would mean that one of the be considered... ' . 42 most serious interferences with his rights would not be reviewed.

42 — Joined Cases 115/81 and 116/81 Adoui and Canuaille v 138. For the sake of completeness I Belgium (1982) ECU 1665. paragraph 15. observe, however, that, subject to the

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considerations set out in regard to the other 142. As Directive 64/221 grants rights to questions by the national court, the lack of non-Member State nationals, this also passport or visa or the expiry of a passport applies to the requirement for judicial or visa may indeed be taken into account or review of all corresponding decisions by a punished in a procedure concerning the national authority, as guaranteed by issue of a first residence permit or expul- Articles 6 and 13 of the ECHR. 44 sion from the territory.

139. The question of the legal significance to be attributed to the absence of a passport 143. The principle of judicial review 45 or visa or the expiry of a passport or visa entails that 'the rights thus conferred can should be the subject-matter of the review be effectively relied upon'. 46 procedure. A decision on that issue should therefore be made only in the context of the merits of the application and not of its admissibility.

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MRAX

145. The answer to the fourth question is residence permit or are expelled before its therefore that Article 1 and Article 9(2) of issue, if they prove that they come within Directive 64/221 are to be interpreted as the scope of the persons referred to in meaning that non-Member State national Directive 64/221. The Member States must spouses of Community citizens who have proceed in such a way that assertion of the no passport or visa or whose passport or rights granted by Community law is not visa has expired may apply to the compet- rendered practically impossible or excess- ent authority within the meaning of ively difficult. Article 9(1) where they apply for a first

DC — Conclusion

146. I therefore propose that the Court of Justice should answer the questions as follows:

(1) The answer to the national court's first question is that Article 3 of Directive 68/360/EEC, Article 3 of Directive 73/148/EEC and Regulation EEC No 2317/95 are to be interpreted as meaning that the Member States may refuse entry at the frontier to non-Member State national spouses of

MRAX

(4) The answer to the fourth question is that Article 1 and Article 9(2) of Directive 64/221 are to be interpreted as meaning that non-Member State national spouses of Community citizens who have no passport or visa or whose passport or visa has expired may apply to the competent authority within the meaning of Article 9(1) where they apply for a first residence permit or are expelled before its issue, if they prove that they come within the scope of the persons referred to in Directive 64/221. The Member States must proceed in such a way that assertion of the rights granted by Community law is not rendered practically impossible or excessively difficult.

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