C-60/00

OPINION OF MRS STIX-HAOCKL. — CASE C-60/00

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 13 September 2001 1

I — Introduction United Kingdom, with whom she had been living since October 1995. Mr Carpenter has two children from his first marriage, which was dissolved in 1996. Mrs Carpen- ter now cares for the children. 1. The Immigration Appeal Tribunal asks the Court whether a national of a non- member country who is married to a citizen of the Union may rely on Article 49 EC or on Council Directive 73/148/EEC of 21 May 1973 on the abolition of restric- tions on movement and residence within the Community for nationals of Member 3. Mr Carpenter operates as sole owner an States with regard to establishment and the undertaking which sells advertisements in provision of services, in order to obtain the periodicals and offers the editors of those right of residence in the spouse's State of periodicals various services in connection origin. The present case concerns a Philip- with administration and publication of pine national who is married to a national advertisements. The undertaking is estab- of the United Kingdom. lished in the United Kingdom, as are some of its customers. A substantial part of the undertaking's business is, however, con- ducted with customers established in other Member States. In addition, Mr Carpenter attends meetings for business purposes in other Member States. The undertaking, whose success depends on the direct per- sonal input of Mr Carpenter, has four I I — Facts and main proceedings full-time employees. From 1996 to 1998 its net profit more than doubled. Mr Carpen- ter attributes this to his wife, who relieved him in caring for the children.

5. Mrs Carpenter appealed to an adjudi- cator against the Secretary of State's decision. The appeal was dismissed on 10 June 1998. She thereupon appealed to the Immigration Appeal Tribunal. The Tribunal granted permission to appeal on 30 November 1998, and referred the fol- lowing question to the Court of Justice: (ii) Directive 73/148/EEC

'In circumstances where:

to provide the non-national spouse with the right to reside with his or her spouse in his or her spouse's Member State of origin?

(a) a national of a Member State, who is established in that Member State and who provides services to persons in other Member States; and

Is the answer to the question referred different if the non-national spouse indi- rectly assists the national of a Member State in carrying on the provision of (b) has a spouse who is not a national of a services in other Member States by carrying Member State; out childcare?'

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(a) nationals of a Member State who are established or who wish to establish themselves in another Member State in 'The right of residence for persons provid- order to pursue activities as self-em- ing and receiving services shall be of equal ployed persons, or who wish to provide duration with the period during which the services in that State; services are provided.

Where such period exceeds three months, (b) nationals of Member States wishing to the Member State in the territory of which go to another Member State as recipi- the services are performed shall issue a ents of services; right of abode as proof of the right of residence.

(c) the spouse and the children under 21 years of age of such nationals, irrespec- Where the period does not exceed three tive of their nationality; months, the identity card or passport with

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which the person concerned entered the Section 3(5) of the Immigration Act 1971 territory shall be sufficient to cover his stay. states: The Member State may, however, require the person concerned to report his presence in the territory.'

OPINION OF MRS STIX-HACKL — CASE C-60/00

IV — Submissions of the parties entitled to enact rules to regulate the provision of services in its territory. This power of the Member State follows, according to Mrs Carpenter, from the Court's judgment in Alpine Investments. 2

A — Submissions of Mrs Carpenter

2. The principle of proportionality I. Basic observations

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origin to the entry and residence of his She supports this argument by reference to spouse who is a national of a non-member the judgment in Moser, 4from which it country. does not, in her view, follow that the situation of Mr and Mrs Carpenter is a wholly internal one. Their situation is completely different from that at issue in Moser. Moser concerned a national of a It also follows from that judgment, in her Member State who had never resided, opinion, that the spouse from a non- worked or provided services in another member country of a citizen of the Union Member State. In that case the Court must have the same right to enter or reside therefore held that the Treaty is not appli- in the State of origin of the citizen of the cable to such a situation. Union as to enter or reside in another Member State.

The situation of Mr Carpenter, however, is comparable rather with the facts of the 14. Mrs Carpenter further states that her Stanton case. 5 Mrs Carpenter points out spouse must have the same Community law rights in the United Kingdom as in another that in that case the Court concluded that Member State. If he took his spouse with the Treaty precludes a national provision him to another Member State, that which places at a disadvantage persons Member State would have to allow both who pursue economic activities in another spouses to enter. Member State.

dom and had provided services from there United Kingdom Government points out to other Member States, Community law that the right to enter a Member State and would preclude her deportation to the reside there derives from that directive, not Philippines. That is because the exercise from primary law. A correct interpretation of the right of freedom to provide services of Article 4(2) and (3) of Directive 73/148 by such a French national would be seri- shows, for example, that a British national ously restricted if his spouse from a non- who wishes to provide services in another member country were deported. A British Member State has the right to reside in that national such as Mr Carpenter may thus Member State for the duration of the not be in a less favourable position than a provision of services. His spouse may also French national in the United Kingdom. As reside there for the same period. Those appears from the Court's case-law, such a provisions do not, on the other hand, found provision concerning 'immigration' is dis- any right of residence for British nationals criminatory and therefore in breach of the in the United Kingdom (that right derives Treaty. from national law).

22. As regards the application of this in a situation such as Mrs Carpenter's principle from the case-law to the situation cannot therefore derive a right of entry or of Mrs Carpenter, the United Kingdom residence from Community law. A possible Government points out that Mr Carpenter remedy might be provided by the European has not exercised his right to freedom of Convention on the Protection of Human movement. Neither he nor his spouse could Rights and Fundamental Freedoms. therefore rely on the principle defined by the Court in Singh or on the case-law summarised in the Asscher judgment. 7 According to that case-law, nationals may rely on Community law as against their own Member State 'where by reason of their conduct they are, with regard to their C — Submissions of the Commission Member State of origin, in a situation which may be regarded as equivalent to that of any other person enjoying the rights and liberties guaranteed by the Treaty'. 26. According to the Commission, the situation of Mrs Carpenter must be clearly distinguished from that of a spouse, who is a national of a non-member country, of a citizen of the Union who exercises his right to freedom of movement and has thus left 23. It submits that the case-law of the his Member State of origin and moved to Court of Justice cited by Mrs Carpenter another Member State in order to become concerns different situations and cannot established or to work there. The Commis- therefore be applied to the present case. sion observes that Mr Carpenter never intended to become established in a Member State other than the United King- dom, where his undertaking has always been located and where he lives with Mrs Carpenter and his children. 24. The United Kingdom Government then observes that Mr Carpenter's right to extend his business activities to other Member States does not give him the right to indirect assistance by a national of a 27. In the Commission's view, the right of non-member country who has no right of entry and residence for the spouse from a residence in the United Kingdom. non-member country of a citizen of the Union, expressed in paragraph 23 of the Singh judgment, 8may not be extended to a situation in which the citizen of the Union with his spouse never intended to become established in another Member State and 25. In conclusion, the United Kingdom merely provides services from his State of Government submits that a person who is origin.

31. The question is moreover addressed to two possible legal bases: Article 49 EC and 29. Moreover, the immigration adjudi- Directive 73/148. cator's conclusion that the circumstance that Mrs Carpenter cares for the children indirectly assists Mr Carpenter to exercise his rights under Article 49 EC, that is, to devote himself more to his business, has nothing to do with the question whether Mr Carpenter actually has exercised his A — First part of the question referred: right of freedom of movement in such a right of residence generally of spouses who way that his spouse comes under Commu- are nationals of non-member countries nity law. The fact that Mrs Carpenter cares for the children merely constitutes a poss- ible factual complex and is based on a free decision of the two spouses. 32. The first part of the question referred must therefore be examined separately according to the two legal bases mentioned above.

V — Assessment

1. Article 49 EC: freedom to provide ser- 30. The question referred consists of two vices parts. The first part concerns the general

9 — Joined Cases 35/82 and 36/82 Morson and ¡hanjan [1982] ECR 3723. That case concerned the right of residence of mothers, nationals of non-member countries, whose 33. First of all, the subject-matter of these children were employed in the Member State whose nationality they possessed. and the main proceedings should be

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36. The question whether and to what extent the provisions of the United King- dom on residence restrict Mr Carpenter's rights deriving from Community law, and whether such restrictions are justified, need 41. According to the principle of interpre- not therefore be considered further for the tation consistent with Community law, present in this connection. firstly, the provisions of secondary law are to be interpreted in the light of primary law; in the present case that means that they must be interpreted in the light of the primary-law freedom to provide services (see below, section 2(b)). Secondly, the 37. The question to be examined here is principle of interpretation consistent with rather whether Mrs Carpenter can rely on Community law also includes the obli- Article 49 EC for her right of residence. gation to interpret national law in the light

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of the corresponding primary and second- 44. Nationals of non-member countries ary Community law. For the present case who are married to citizens of the Union that means that the United Kingdom is thus only have rights derived from those of obliged to interpret its law on foreigners, in their spouses. That includes the right of particular the Immigration Act, in the light residence at issue in the present case. of the freedom to provide services and of Directive 73/148.

2. Directive 73/148 45. First, then, as a basic condition for the national of a non-member-country to be able to derive rights from his or her spouse, it must be examined whether the spouse is exercising rights under Community law at all, in other words, whether there is a Community connection. There must not therefore be a purely internal situation, 42. Under Community law currently in because in that case the necessary point of force, that is, under Directive 73/148 which attachment for the rights of the non- is material in this case, the residence status member-country national would be absent. of a national of a non-member country who is married to a citizen of the Union depends on the legal position of the citizen of the Union.

51. It must therefore always be examined (aa) Principle: Community connection in whether the factual situation to be assessed the context of fundamental freedoms has a point of contact with a factual situation to which Community law refers.

48. Spouses of citizens of the Union who are nationals of non-member countries are afforded a right of residence by Directive 52. If the necessary Community connection 73/148 only if the citizen of the Union also is absent, that is, if a citizen of the Union is exercises his rights deriving from Commu- not exercising his Community law rights, nity law. The right of residence of nationals then he, and with him his spouse who is a of non-member countries thus presupposes national of a non-member country, are a Community connection. In the present subject to national law alone. 13 That case, a possible point of connection could applies also to the right of residence. 14 be the fundamental freedoms. 11 — Case C-97/98 Jägerskiöld [1999] ECR I-7319, paragraph 42, and Case C-134/95 USSL No 47 di Biella [1997] ECR I-195, paragraph 19. 12 — See on this point Case C-206/91 Koua Poirrez [1992] ECR I-6685, paragraph 11 and the cases cited there. 13 — Martin, 'Loi du 15 Décembre 1980', Revue du droit des étrangers, 1996, 722 (725). 49. The Court has consistently held that 14 — 'Wer zu wenig wandert, den bestraft das Leben' — Gutmann, 'Europäisches Aufenthaltsrecht für Drittstaats- the fundamental freedoms are not appli- angehörige', Anwaltsblatt 2000, 482 (484).

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53. Nationals of non-member countries 'has never exercised' 15the right of freedom who are married to citizens of the Union to provide services cannot therefore derive in their State of origin are thus, if those any rights from that spouse under Com- citizens of the Union do not exercise their munity law. rights under Community law, placed in a worse position than nationals of non- member countries who are married to citizens of the Union who exercise their rights under Community law.

15 — Case C-206/91, cited in note 12, paragraph 13, concerning a member of a worker's family. 16 — See Dollat, Libre circulation des personnes et citoyenneté européenne: enjeux et perspectives, 1998, 104 f.; Martin, cited in note 13, 725. 17 — On the elimination of disadvantages by national law, see Joined Cases C-64/96 and C-65/96 Uecker and Jacquet 56. A national of a non-member country [1997] ECR I-3171, paragraph 23. whose spouse, as a citizen of the Union, 18 — Martin, cited in note 13, 725.

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(bb) Community connection as a specific 62. According to the Court's case-law, a condition on the facts of the present case situation already has a Community con- nection even where, for instance, 'a degree of extraneity may derive in particular from the fact that an athlete participates in a competition in a Member State other than that in which he is established'. 21

59. To determine the status of Mrs Car- penter in relation to the right of residence, it is thus necessary first to determine the status of Mr Carpenter. It is apparent from the documents in the case that a Commu- nity law right possibly being exercised by Mr Carpenter may at any rate be compared Mr Carpenter is the freedom to provide to such a professional athlete at least in so services. far as he too travels to other Member States in order to provide services there.

60. In the present case Mr Carpenter 63. Besides this 'active' freedom to provide admittedly has his residence and his place services, in view of the nature of Mr of business in the United Kingdom, but his Carpenter's economic activity, 'correspon- business activity is not confined to the dence services' also come into consider- domestic market, 19 he also carries on ation. These comprise services where there economic activities outside the United is no change of place by the provider and Kingdom. recipient of the service but the services themselves are provided across a frontier. Such services too have been recognised by the Court 22 as services with a Community connection.

70. According to the Court's observations 66. The second difference between the in paragraph 23 of Singh, what matters is cases is that Mr and Mrs Singh returned that 'when a Community national... returns to the United Kingdom, Mrs Singh's State to his or her country of origin, his or her of origin, after residing in Germany for spouse must enjoy at least the same rights nearly three years. Mr and Mrs Carpenter, of entry and residence as would be granted by contrast, did not return to the United to him or her under Community law if his Kingdom, but were there and wish to or her spouse chose to enter and reside in remain there. That this too makes no another Member State'. essential difference follows, in my opinion, from the fact that in Singh the Court saw the exercise of Community rights not in the return from another Member State to the State of origin within the Union, but in Mrs Singh moving to another Member State to 71. Mr Carpenter thus exercises his Com- exercise her Community rights there, munity rights in two respects, first by namely the freedom of movement for travelling to another Member State for workers. professional reasons to carry on self-em-

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74. Finally, the question of the risk of abuse should be considered, in particular the possible risk that national rules on residence concerning the legal position of (b) Interpretation of Directive 73/148 and spouses of nationals who are nationals of national law in the light of primary law non-member countries could be evaded by the spouse who is a national being tempted to 'create' a Community connection. Thus

23 — Watson, 'Free Movement of Workers: a one way ticket?', IndustrialLaw Journal, 1993, 68 (75), draws attention to the connection between economic activity of the spouse and the right of residence of his or her spouse of non-member-country nationality, referring to the judg- 76. The material provisions of Directive ment in Singh. 73/148 on the right of residence and the

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OPINION OF MRS STIX-HACKL — CASE C-60/00

national provisions concerning the right of penter, from his spouse being granted no residence must therefore, on the basis of the right, or only a limited right, of residence. above considerations, be interpreted in the light of the freedom to provide services.

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82. The Court does not, however, have from Article 8 of the Convention not to jurisdiction to assess whether a national interfere with the right of spouses to provision of a Member State which lies cohabit. 32 Secondly, it concerns the posi- outside the scope of Community law is tive obligation of the States 33 to afford compatible with fundamental rights. 28 certain members of the family access to their territory. 34

83. For national rules which fall within the scope of Community law, on the other 86. It is obvious that a refusal of per- hand, the referring court must be given all mission to reside and a decision on deport- the information on interpretation which it ation in principle interfere with those needs to be able to assess the compatibility rights. of those national rules with fundamental rights.

87. Conversely, however, the right to 84. The present proceedings concern the respect for family life does not enjoy right to respect for family life enshrined in absolute protection. An interference with Article 8 of the European Convention on that right is permissible under Article 8(2) Human Rights. That includes as a central of the Convention if it 'is in accordance element 29 the protection of marriages. 30 In with the law and is necessary in a demo- the present case there are also the ties cratic society in the interests of national between Mrs Carpenter and her step- security, public safety or the economic children. 31 well-being of the country, for the preven- tion of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others'.

91. In such an analysis of proportionality, it must be examined in particular whether it is proportionate that Mrs Carpenter may apply for the necessary leave only from abroad. 39 In that connection, the reason- 89. The assessment of whether an inter- ableness of such a procedure for Mrs ference with fundamental rights is permis- Carpenter would have to be considered, in sible therefore depends on taking into particular the reasonableness, for example, account the circumstances of the specific of the waiting time for obtaining leave. It individual case. While it is for the Court to would also have to be examined whether, if give the national court the information on Mrs Carpenter were to stay in the Philip- interpretation which it needs in order to pines, it would be reasonable for Mr decide the particular case before it, 36 it is C a r p e n t e r — p o s s i b l y w i t h his for the national court to assess the facts in children — to live in the Philippines and question by reference to the criteria laid be economically active there. 40 down by the Court. That applies in par- ticular in view of the nature of the analysis to be carried out; 37 the application of provisions of Community law, and of the provisions transposing them, to a particular case remains the task of the national court. 38 92. The analysis of proportionality, that is, of the necessity of the interference, must consist essentially in balancing the severity of the interference, that is, the adverse effect on private interests, against the aim pursued by the provision of the law on foreigners, that is, the interests of the State.

95. In the present case the geographical distance between the Philippines and the United Kingdom and the possibility or (d) Member States' entitlement to impose impossibility of visits would also have to penalties for breach of national provisions be taken into account. concerning residence

96. Finally, whether the marriage took 98. In conclusion, the possibilities which place before or after the breach of the the Member States retain under Commu­ nity law of penalising infringements of provisions of the law on foreigners may 41 — ĽCHR, Deld/midi v France, Scries A no 234-A, § 78. 42 — ECHR, Mmistaaiiim v Belgium, Scries A no 193, § 45. be noted. The limits which Community 43 — Sec the unpublished decision of the Commission of Human law, including the fundamental rights, sets Rights of 7 December 1982 in application 9867/82 Moodey v tbc United Kingdom. 44 — It may be noted that the welfare of the children mav even play a decisive part in the balancing of interests (ECHR, 45 — Application 12122/86 l.ukka v the United Kingdom, DR Elslmk v Germany, no 25735/94, § 4S). 50, 272.

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the Member States here — once again — clear that deportation is not permissible on apply only, however, in cases where there is the ground of failure to comply with a Community connection. declaration and registration formalities. 49

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where the spouse who is not a national of a no importance in this connection to caring Member State indirectly assists the spouse for children. who is a national of a Member State to provide services in other Member States by caring for the latter's children.

105. Finally, the case-law of the Court on the rights of nationals of non-member countries who are married to citizens of the Union also does not refer expressly to the circumstance that the national of a non-member country contributes to the professional activity of the citizen of the 103. As the Commission rightly submits, Union. Thus in the Singh judgment the the circumstance that Mrs Carpenter cares Court focuses — as stated above — on for Mr Carpenter's children and thus indi- the fact that the rights derived from the rectly assists him to exercise the rights freedom of movement for workers and the deriving from the freedom to provide ser- freedom of establishment 'cannot be fully vices has nothing to do with the question effective if [a Community national] may be whether Mr Carpenter has exercised his deterred from exercising them by obstacles rights in such a way that his spouse comes raised in his or her country of origin to the within Community law. entry and residence of his or her spouse'. 50 That that principle must be taken to apply to all the fundamental freedoms has already been shown.

106. The alternative addressed in the sec- ond part of the question referred is there- 104. The relevant provisions of secondary fore of no legal significance for the answer Community law also argue against the to the question, and so need not be con- circumstance that the spouse cares for the sidered further. children of the citizen of the Union being legally relevant for the right of residence. Thus the relevant Directive 73/148 refers in Article 1(1), with respect to its scope, to a series of circumstances such as the degree of relationship, age, dependency and living together as a household. The care of children is not included in this — exhaus- tive — list. It may be concluded that the Community legislature manifestly attached 50 — Case C-370/90, cited in note 3, paragraph 23.

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