C-482/01

OPINION OF MRS STIX-HACKL — JOINED CASES C-482/01 AND C-493/01

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 11 September 2003 1

Table of contents

I — Introduction I - 5263

II — Legal background I - 5263

A — Community law I - 5263

B — In Case C-493/01 I - 5271

V — First question submitted for a preliminary ruling in Case C-482/01 I - 5271

A — Main arguments of the parties I - 5271

B — Appraisal I - 5273 1. The limits imposed by Directive 64/221 I - 5274

2. Respect for private and family life under Article 8 of the Convention on

Human Rights I - 5276

ORFANOPOULOS AND OLIVERI

VII —First question submitted for a preliminary ruling in Case C-493/01 I - 5284 A — Main arguments of the parties I - 5284 B — Appraisal I - 5285 1. Admissibility of the first question submitted for a preliminary ruling I - 5285 2. Substance of the first question submitted for a preliminary ruling I - 5286 VIII — Second question submitted for a preliminary ruling in Case C-493/01 I - 5288 A — Main arguments of the parties I - 5288 B — Assessment I - 5289 IX — Conclusion I - 5293 A — In Case C-482/01 I - 5293 B — In Case C-493/01 I - 5294

I — Introduction I I— Legal background

4. Article 9 of Directive 64/221 provides: B — National law

5. The basic German provisions concerning '1. Where there is no right of appeal to a entry and residence are the Gesetz zur court of law, or where such appeal Neuregelung des Ausländerrechts (Law may be only in respect of the legal reforming legislation on aliens; hereinafter: validity of the decision, or where the 'the Ausländergesetz') 3and the Gesetz über appeal cannot have suspensory effect, Einreise und Aufenthalt von Staatsange- a decision refusing renewal of a resi- hörigen der Mitgliedstaaten der Euro- dence permit or ordering the expulsion päischen Wirtschaftsgemeinschaft (Law on of the holder of a residence permit the entry and residence of nationals of from the territory shall not be taken by Member States of the European Economic the administrative authority, save in Community; hereinafter: 'the Aufenthalts- cases of urgency, until an opinion has gesetz/EWG'). 4Under Paragraph 2(2) of been obtained from a competent authority of the host country before which the person concerned enjoys 3 — BGBl. I 1990, p. 1354, in the version of the Law of 16 such rights of defence and of assistance February 2001, BGBl. I, p. 266. or representation as the domestic law 4 — The version published in the Notice of 31 January 1980, BGBl. I, p. 116, as amended by the Law of 27 December of that country provides for. 2000, BGBl. I, p. 2042.

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the Ausländergesetz, that law applies to aliens who are entitled to freedom of movement by virtue of Community law, save where otherwise provided by Commu- nity law and the Aufenthaltsgesetz/EWG. Accordingly, Paragraph 15 of the Aufenthaltsgesetz/EWG provides that the Ausländergesetz and the regulations (3) The decisions or measures referred to adopted on the basis thereof apply, save in paragraph 1 may be adopted only where otherwise provided by the where an alien gives cause for doing so Aufenthaltsgesetz/EWG. on account of his personal conduct. This shall not apply to decisions or measures adopted to protect public health.'

10. Paragraph 47( 1 ) of the Ausländergesetz 11. Paragraph 48 of the Ausländergesetz provides for 'compulsory expulsion', that is provides for special protection against to say it provides for mandatory expulsion expulsion for particular aliens. They in particular cases. This provision states: include inter alia aliens who possess a residence entitlement (Aufenthaltsberechti- gung) (first subparagraph) and aliens who live in a family relationship with a German family member (fourth subparagraph). Such aliens may be expelled 'only on serious grounds of public security or public policy. Serious grounds of public security '(1) An alien shall be expelled if he and public policy exist as a rule in the cases set out in Paragraph 47(1).' Under Article 47(3), compulsory expulsion becomes expulsion as a rule and expulsion as a rule becomes possible expulsion.

1. has been finally sentenced to a term of imprisonment or youth custody of at least three years for one or more intentional criminal offences or has been finally sen- tenced to several terms of imprisonment or youth custody of a total of at least three years for intentional criminal offences committed within a period of five years, or has been placed in preventative detention by the most recent final sentence, or

14. Paragraph 8 of the Ausländergesetz 17. Therefore, the expediency of a decision lays down special grounds for refusal. is not reviewed in appeal proceedings where Paragraph 8(a) deals inter alia with the the Regierungspräsidium has jurisdiction time-limit on expulsion. ratione materiae for the adoption of an expulsion order. Under the first sentence of Paragraph 7(1) of the Ausländer- und Asylverfahrenszuständigkeitsverordnung (Regulation on jurisdiction over proceed- ings relating to aliens and asylum; the 'AAZuVO'), Regierungspräsidien have jur- 15. According to the information provided isdiction over the expulsion of foreign by the national court, in Baden-Württem- offenders where they have been held in berg, until 30 June 1999, a preliminary re- prison by order of a court or on remand for examination of the lawfulness and expe- over a week. diency of the administrative measure relat- ing to an expulsion was as a rule necessary before the bringing of an action for annul- ment. However, with effect from 1 July 1999 6 there was no need for preliminary proceedings if the administrative measure had been adopted by a Regierungspräsi- III— Facts and main proceedings dium (office of chief executive of an administrative district).

A — In Case C-482/01

18. Mr Georgios Orfanopoulos was born 16. The first sentence of Paragraph 6a of in 1959 and is a Greek national. In 1972 he the Ausführungsgesetz zur Verwaltungsge- entered the territory of the Federal Republic of Germany to join his parents. He subse- quently held limited residence permits. In 6 — Law of 10 May 1999, GBl. p 173. 1978 Mr Orfanopoulos returned to Greece

to carry out military service. In September/ 20. In 1992, 1997 and 1998 Mr Orfano- October 1980 he re-entered the territory of poulos received from the Aliens Depart- the Federal Republic. In 1981 Mr Orfano- ment 'a warning under the law relating to poulos married a German national. This aliens. marriage produced three children who are also plaintiffs in the proceedings before the national court. Mr Orfanopoulos subse- quently obtained an EC residence permit on several occasions, the most recent being valid until 12 October 1999. On 9 Novem- ber 1999 he applied for an extension of his EC residence permit. Mr Orfanopoulos has no professional training qualifications. Since 1981 he has pursued various activities 21. As regards the facts of the case, the as an employed person. Mr Orfanopoulos national court further states that Mr has several previous convictions imposed Orfanopoulos has been a drug addict for by a number of judgments of the Amtsge- over 15 years. He was drug-free for a richt Stuttgart (Stuttgart Local Court). period of only around a year and a half up to the end of 1994. At the beginning of 2000 Mr Orfanopoulos underwent detox- ification and then made two attempts at in- patient drug treatment. Both attempts were unsuccessful since Mr Orfanopoulos was, on both occasions, discharged prematurely from the rehabilitation centre on disciplin- ary grounds. According to the report drawn up by the rehabilitation centre, Mr Orfa- nopoulos now recognises that he is suffer- 19. Mr Orfanopoulos was in prison from 3 ing from drug addiction. However, it is not February 1999 to 5 August 1999. In the clear that this recognition on the part of Mr time thereafter he was found on several Orfanopoulos could lead to him giving up occasions on the drugs scene. From 7 drugs completely. On account of the pre- January 2000 to 25 January 2000 vious criminal acts it is also clear that Mr Mr Orfanopoulos was at Stuttgart's Bür- Orfanopoulos tends to commit acts of gerhospital for detoxification and was then violence when he consumes considerable admitted to a rehabilitation centre for in- quantities of alcohol. Thus far Mr Orfano- patient treatment. He was discharged from poulos has taken no steps at all to deal with there on 15 April 2000 when he was found this extreme alcohol dependency. Accord- to have a concentration of alcohol in his ing to the treatment report drawn up by the blood. On 31 May 2000 Mr Orfanopoulos rehabilitation centre, Mr Orfanopoulos was readmitted to this rehabilitation centre does not recognise in the slightest that he and discharged on 29 June 2000 on has an alcohol problem. Mr Orfanopoulos disciplinary grounds because he tested is neither willing nor able to commence positive for benzodiazepine. Since 11 Sep- treatment for his alcohol dependency. On tember 2000 Mr Orfanopoulos has been account of the continuing drug and alcohol serving the terms of imprisonment imposed dependency there is a real danger of further by the judgments of the Amtsgericht Stutt- criminal acts. Neither the penalties pro- gart of 1994 and 1998. vided for under criminal law nor the law

22. By Decision of 28 February 2001 the Regierungspräsidium Stuttgart (Chief Executive's Office of Stuttgart District) ordered the expulsion of Mr Orfanopoulos from the territory of the Federal Republic, B — In Case C-493/01 dismissed his application for an extension of his EC residence permit and for the issue of a residence authorisation, and threatened him with deportation to Greece without limit of time. At the same time Mr Orfanopoulos was advised that he would 24. Mr Raffaele Oliveri was born in be deported on his release from prison. On Germany in 1977 and is an Italian national. 21 March 2001 Mr Orfanopoulos and his He has resided continuously in Germany daughters brought an action. In March since he was born. He has no professional 2002 Mr Orfanopoulos' remaining sen- qualifications. Mr Oliveri has been a drug tence was suspended. According to the addict for many years. Mr Oliveri has a information provided by the Landgericht number of previous convictions. (regional court) which suspended his sen- tence, Mr Orfanopoulos has shown good behaviour whilst in prison. Furthermore, he has decided to accept treatment.

29. The Verwaltungsgericht Stuttgart stayed both sets of proceedings and sub- mitted the following questions to the Court for a preliminary ruling: 27. By letter of 20 June 2001 the medical service of the competent prison hospital stated that Mr Oliveri has been infected with HIV since December 1998. Mr Oliveri has had full-blown Aids since March 2001. Although he has been given highly effective anti-retroviral treatment since May 2001, this has yet to have the desired effect. It A —In Case C-482/01 must be assumed that Mr Oliveri will not obtain adequate medical attention in Italy and that care for the extremely ill plaintiff, who will presumably die soon, is not 1. Is a restriction on the freedom of guaranteed there. movement of a foreign EU national with many years' residence in a host State, ordered on account of a criminal offence under the Betäubungsmittelge- setz, in conformity with European Law in terms of Article 39(3) EC on 28. The national court is uncertain as to grounds of public policy, public secur- the compatibility of the expulsion with ity or public health, where, on account Article 39(1) and (3) EC and Article 3 of of his personal conduct, there is a Directive 64/221. Paragraph 47(1) of the justified expectation that he will also Ausländergesetz makes no provision for commit future criminal offences and review of the specific case. Finally, it is where the spouse of the EU national uncertain whether the fact that, according and his children cannot reasonably be to the settled case-law of the Bundesver- expected to live in his State of origin?

A — Main arguments of the parties 1. Do Article 39 EC and Article 3 of Council Directive 64/221/EEC of 25 February 1964 preclude national leg- islation which makes it mandatory for authorities to expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years, or to a term of 30. Mr Orfanopoulos considers that Com- imprisonment, for an intentional crim- munity law affords extensive protection inal offence under the Betäubungsmit- against expulsion. In that respect he refers telgesetz where the sentence has not to the legal situation in the other Member been suspended? States. He claims that expulsion may be ordered solely on grounds of personal conduct and not on general preventative grounds. It is not acceptable that the person concerned has to bear the burden of proof that he represents no danger to society. The principle of proportionality requires that 2. Is Article 3 of Council Directive developments after the offence also be 64/221/EEC of 25 February 1964 to taken into consideration. Moreover, an be interpreted as meaning that the expulsion must be linked to the misconduct.

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33. As far as the Regierungspräsidium 35. The Italian Government submits that Stuttgart is concerned, the lawfulness of the term 'public policy' needs an autono- the expulsion turns solely on whether there mous and uniform interpretation in Com- is a genuine and sufficiently serious threat munity law. In addition, the Italian Govern- within the meaning of the Aufenthaltsge- ment refers to the case-law of the European setz. The specific assessment must be made Court of Human Rights (hereinafter: 'the in the light of the principle of proportion- ECHR') relating to Article 8 of the Human ality. In that respect not every expulsion on Rights Convention. It follows from Article grounds of a criminal offence always 3 of Directive 64/221 that automatic infringes Community law where the person expulsion is unlawful because derogations concerned has resided in a Member State from the principle of freedom of movement for many years and his family members must be interpreted strictly. Restrictions on

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freedom of movement may be imposed only B — Appraisal on special preventative grounds and must be proportionate. The Italian Government therefore concludes that a national provi- sion which provides for the automatic expulsion of a national of another Member State solely on the basis of a criminal conviction is incompatible with Commu- 38. First, it should be noted that in the nity law. context of judicial cooperation between national courts and the Court of Justice, it is for national courts to establish and to evaluate the facts of the case and for the Court of Justice to provide the national court with such guidance on interpretation as may be necessary to enable it to decide the dispute. 7

37. As regards the proportionality of the expulsion, the Commission refers to Article 8 of the Human Rights Convention. In its 40. At a very basic level, the only question view, even though it is justified on grounds is whether there are advantages for the of the personal conduct of the individual European Union in expelling an individual concerned expulsion is unlawful if the from one Member State to another. The spouse and children of the EU national practice of deportation basically constitutes cannot reasonably be expected to live in his an 'exportation of danger'. State of origin. On the basis of the case-law of the ECHR and the right to freedom of movement enjoyed by EU nationals the 7 — Sec, in particular. Joined Cases C-51/96 and C-191/97 Commission concludes that expulsion is Deliège [2000] ECR I-2549, paragraph 50, Case C-332/88 Alimenta [1990] ECR I-2077, paragraph 9, and Case disproportionate. 139/85 Kempf [1986] ECR 1741, paragraph 12.

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1. The limits imposed by Directive 64/221 satisfied in so far as the present case relates to drugs offences which as a rule affect a fundamental interest of society.

41. According to the Court's case-law, 8 the term 'public policy' must, where it is used as a justification for derogating from the principle of freedom of movement, be interpreted strictly and autonomously in Community law and is subject to review by the Court. 45. However, it is uncertain whether the second and fourth requirements are satis- fied. Since the main proceedings concern a measure taken on grounds of public policy or of public security within the meaning of 42. It may be inferred from the Court's Directive 64/221, it is necessary to comply case-law that there are four requirements with its provisions. Therefore, the second which restrictions on the freedom of move- requirement, relating to the threat, must be ment on grounds of public policy and viewed in the context of Article 3 of public security must satisfy. Directive 64/221.

50. Therefore, it may be deduced from the 47. A further condition follows from Arti- case-law that the competent authorities of cle 3(2) of Directive 64/221, that is to say the Member States must base their decision that '[p]revious criminal convictions shall on an assessment of the future conduct of not in themselves constitute grounds for the the individual concerned. The kind and taking of such measures'. number of previous convictions must form a significant element in this assessment and particular regard must be had to the seriousness and frequency of the crimes that have been committed. Furthermore, while the danger of re-offending is of considerable importance, the remote possi- bility of new offences is not sufficient. For example, the danger of re-offending will be 48. This provision is construed by the rather greater in the case of a drug Court as meaning that the appraisal under dependency where there is a risk that the law relating to aliens 'does not necessa- further criminal offences will be committed rily coincide with the appraisals which in order to fund it. formed the basis of the criminal conviction. ... The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.' 12 51. The fact that a sentence has been suspended, as it has in the main proceed- ings, also constitutes an important factor in the assessment of the future threat. That 11 — Case 67/74, cited in footnote 10 above, paragraph 7, Case suggests that the individual concerned no 36/75, cited in footnote 8 above, paragraph 29, Case 48/75 Rover (19761 ECR 497, paragraph 45-49, Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 11, and Case C-340/97, cited in footnote 9 above, paragraphs 59 and 63; see also Case C-100/01, cited in footnote 8 above, paragraph 30 et seq. 13 — Case C-340/97, cited in footnote 9 above, paragraph 58; 12 — Case 30/77, cited in footnote 8 above, paragraphs 27 and see Case C-348/96, cited i n footnote 10 above, paragraphs 28. 22 to 24.

2. Respect for private and family life under Article 8 of the Convention on Human Rights 55. However, it is first necessary to exam- ine the objection that an expulsion order under German law does not constitute interference in the scope of protection afforded by Article 8 of the Convention 53. In addition to the provisions of Direc- because there is no direct prejudice. Unlike tive 64/221, the national authorities also the cases decided by the ECHR, which have to comply with the provisions of the concerned an expulsion under French law, Human Rights Convention. In the context an expulsion under German law does not of compliance with fundamental rights, the result in an actual separation of the Court draws inspiration from the constitu- individual concerned from his wife and/or tional traditions common to the Member children. For example, it is possible for an States and from the guidelines supplied by individual affected by an expulsion under international treaties for the protection of German law to continue to reside in the human rights on which the Member States Federal Republic by applying for 'tolerance'

14 — Case C-100/01, cited in footnote 8 above, paragraph 43 15 —See Case C-274/99 P Connolly [2001] ECR I-6111, and Case C-55/94 Gebhard [1995] ECRI-4165, paragraph paragraph 37 et seq. and Case C-60/00 Carpenter [2002] 37. ECR I-6279, paragraph 41.

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(Duldung). Moreover, after a certain period Human Rights Convention only 'if it does the individual concerned may even be not meet the requirements of paragraph 2 granted a residence authorisation which of that article, that is unless it is "in can be extended and lead to a right of long- accordance with the law", motivated by term residence. 16 one or more of the legitimate aims under that paragraph and "necessary in a demo- cratic society", that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pur- sued.' 18

16 — Sennekamp, 'As/ Ausweisung menschenrechtswidrig?', Zeitschrift für Ausländerrecht und Ausländerpolitik 2002, 18 — Case C-60/00, cited in footnote 15 above, paragraph 42; p. 136 (at p. 141 et seq.). see judgment of the ECHR in the case of Boultif v 17 — Case C-60/00, cited in footnote 15 above, paragraph 41. Switzerland of 2 August 2001, Reports 2001-IX, SS 39, 41 Although this paragraph refers to a 'decision to deport', the and 46. main proceedings relate to a 'decision to make a deporta- 19 — Case C-100/01, cited in footnote 8 above, paragraph 44; tion order'. see Case 30/77, cited in footnote 8 above, paragrapn 30.

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national court will therefore have to con- submitted for a preliminary ruling. There- sider whether an expulsion is proportionate fore, there is no need to consider here the in the main proceedings, having due regard factors which are relevant in that respect. to the guidance on interpretation provided in this case.

60. Therefore, as regards the situation of 62. Thirdly, in a case such as that in the Mr Orfanopoulos, it is necessary firstly to main proceedings account must be taken of assess his personal situation. In this respect, the seriousness and number of the offences it is necessary to establish the extent of his committed by the individual concerned. In integration in Germany, socially, profes- this connection it should be emphasised in sionally and in terms of family relations. In general that drugs offences are very serious this connection account must also be taken and, furthermore, also satisfy the Court's of the time he has spent in Germany, the requirement that a fundamental interest of age at which he came to Germany, and his society be affected. command of the language of his State of origin. 20

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64. On the other hand, repeated recidivism 68. The answer to the first question sub- could militate in favour of expulsion mitted for a preliminary ruling should although it will probably relate more to therefore be that Article 3 of Directive petty crime. Finally, the national court 64/221 is to be interpreted as not preclud- should consider where re-socialisation is ing a restriction on the freedom of move- most likely to be achieved. ment of a foreign EU national with many years' residence in a host State, ordered on account of a criminal offence under the Betäubungsmittelgesetz on grounds of pub- lic policy, public security or public health, in so far as that measure is proportionate in the light of Article 8 of the European Convention, in particular where, on 65. It follows from the need to take account of the EU national's personal account of all these factors that authorities conduct, there is a justified expectation that of the Member States must be able to weigh he will also commit future criminal offences up the interests in each individual case also and where the spouse of that EU national in connection with expulsion that is ordered and his children can reasonably be expected as a rule. Although Community law lays to live in his State of origin. down no absolute prohibition on expulsion, national law may not provide for expulsion as a mandatory legal consequence in cases such as those in the main proceedings.

VI — Second question submitted for a preliminary ruling in Case C-482/01

66. In these preliminary ruling proceedings the question may be left open whether existing German provisions infringe Direc- tive 64/221, as interpreted by the Court, because an examination of conformity in A — Main arguments of the parties the abstract is not the subject of these proceedings.

when requested to do so. Secondly, the 73. The Commission submits that in Verwaltungsgericht can examine the expe- Baden-Württemberg the Verwaltungsge- diency of the measure to only a limited richt may examine only the legal validity degree. Thirdly, an expulsion also infringes of an expulsion decision and consequently Article 10 EC because the host State thereby the requirements for the application of passes the social burden on to the State of Article 9(1) of Directive 64/221 are satis- origin. fied. However, in Baden-Württemberg there is no independent competent author- ity which issues an opinion prior to its ruling, as required under this provision. Furthermore, it is uncertain whether Article 9(1) of Directive 64/221 satisfies the requirements of effective legal protection laid down in the case-law of the Court. 70. As far as the Regierungspräsidium Stuttgart is concerned, it is sufficient that the individual concerned has the possibility of obtaining judicial review of the order for immediate execution of the expulsion. The Verwaltungsgericht must be regarded as an independent competent authority for the purposes of Article 9(1) of Directive 64/221.

B — Appraisal

78. It follows from Paragraph 86(1) of the Verwaltungsgerichtsordnung (Rules of pro- cedure for administrative courts) that the 1. The need for the opinion of an indepen- administrative courts are first required to dent competent authority establish the facts of the case of their own motion. This examination of the factual situation can even result in the annulment of administrative acts where the authorities have proceeded on the basis of inaccurate 75. First it is necessary to examine whether facts. any of the three cases obtain in which Article 9(1) of Directive 64/221 applies. In the present case the only possible alterna- tive is that the appeal against the expulsion order may be only in respect of the legal 79. It can therefore be concluded that the validity of the decision. administrative courts must carry out the 'exhaustive examination of all the facts and circumstances' prescribed by the case-law of the Court. However, even though national law may satisfy this requirement of Community law, that does not necessa- rily mean that the administrative courts also 76. As the Court has consistently held, 'the apply this principle in practice, in each purpose of the intervention of the compe- individual case, in conformity with Com- tent authority referred to in Article 9(1) is munity law. Admittedly, the present pro- to enable an exhaustive examination of all ceedings do not involve an assessment of the facts and circumstances, including the specific individual cases, unlike proceedings expediency of the proposed measure, to be for failure to fulfil Treaty obligations, carried out before the decision is finally which are aimed at pursuing specific taken.' 23 infringements.

85. This margin of discretion is naturally 2. Decision of the Verwaltungsgericht as a not unlimited. The principle of the uniform decision of an independent competent application of Community law and the authority? principle of equality require 'that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determin- ing its meaning and scope must normally be given an autonomous and uniform inter- pretation throughout the Community; that 83. In these proceedings it has been sub- interpretation must take into account the mitted that, being a first-instance court, the context of the provision and the purpose of Verwaltungsgericht must be regarded as an the legislation in question'. 26 independent competent authority for the

25 — Case 131/79, cited in footnote 22 above, paragraph 15. 24 —Joined Cases 209/84 to 213/84 Asjes and Others [1986] 26 — Case C-357/98, cited in footnote 22 above, paragraph 26; ECR 1425, paragraph 12, Joined Cases C-304/94, see also Case 327/82 Ekro v Produktschap voor Vee en C-330/94, C-342/94 and C-224/95 Tombesi and Others Vlees [1984] ECR 107, paragraph 11, and Case C-287/98 [1997] ECR I-3561, paragraph 36, and Case C-28/99 State of the Grand Duchy of Luxembourg v Linster and Verdonck and Others [2001] ECR I-3399, paragraph 28. Others [2000] ECR I-6917, paragraph 43.

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89. The argument that the requirements of Article 9(1) of Directive 64/221 are satisfied if the opinion is issued before enforcement must be expressly rejected in this case. As 87. In this connection it should be empha- regards the time by which the opinion must sised that it is not necessary to examine be issued, the relevant established case-law whether the Verwaltungsgericht displays all of the Court 29 refers to the time of the the features which characterise an indepen- decision relating to the measure restricting dent competent authority for the purposes freedom rather than that of the enforce- of Article 9(1) of Directive 64/221. 28 As is ment. evident from Scintillo, a court can be an independent competent authority for the purposes of Article 9(1) of Directive 64/221. However, the decisive feature of the UK provisions at issue in that case was the fact that the court intervenes before the 90. In summary then, the legal position in Baden-Württemberg applicable in the main proceedings following the introduction of 27 — Emphasis added. Case 48/75, cited in footnote 11 above, Paragraph 6a of the AGVwGO does not paragraph 59, Case 98/79 Pecmtaing v Belgium [1980] provide for an independent competent ECR 691, paragraph 17, Case 131/79, cited in footnote 22 above, paragraph 12, Joined Cases 115/81 and 116/81, cited in footnote 11 above, paragraph 15, Joined Cases C-297/88 and C-197/89, cited in footnote 22 above, paragraph 62, Case C-175/94, cited in footnote 23 above, paragraph 17, Joined Cases C-65/95 and C-111/95, cited 29 — See Joined Cases C-297/88 and C-197/89, cited in footnote in footnote 22 above, paragraph 34, and Case C-357/98, 22 above, paragraphs 61 and 66, in which the focus was cited in footnote 22 above, paragraph 31. placed on enforcement of the decision solely because the 28 — See, to that effect, for example Joined Cases C-297/88 and question submitted for a preliminary ruling specifically C-197/89, cited in footnote 22 above, paragraph 65. referred to it.

91. Finally, it should be noted that Article 93. The Regierungspräsidium Stuttgart 9 of Directive 64/221 has been classified by submits that Article 39 EC and Article 3 the Court 30 as sufficiently well-defined and of Directive 64/221 do not preclude the specific and therefore can be invoked by rules contained in Paragraph 45 of the individuals without having to wait for an Ausländergesetz and Paragraph 12 of the adjustment of federal or Land law. Aufenthaltsgesetz/EEC. The fact that the requirements of Paragraph 47(1) of the Ausländergesetz are satisfied does not make it mandatory for authorities to expel an individual. Furthermore, an examination of the specific case is carried out which also takes account of compatibility with the principle of proportionality. Moreover, since the orders in the main proceedings 92. The answer to the second question were based on aspects relating to individual submitted for a preliminary ruling should deterrence, the first question submitted is therefore be that on a proper construction not material. of Article 9(1) of Directive 64/221 national legislation — which does not provide for objection proceedings in which an exam- ination of expediency is also carried out in relation to an administrative authority's decision to expel the holder of a residence permit from the national territory in cir- 94. The German and Italian Governments cumstances where a special body indepen- make the same observations on this ques- dent of the administrative authority adopt- tion as they did on the first question in Case ing the decision has not been established — C-482/01. is not precluded provided that an appeal is possible that permits an exhaustive exam- ination of all the facts and circumstances, including the expediency of the proposed measure. 95. The Commission considers that Direc- tive 64/221 implements the derogation 30 — Case 131/79, cited in footnote 22 above, paragraph 13. relating to public policy contained in Article

96. On the basis of the Court's case-law the Commission concludes that Article 39(3) EC and Article 3 of Directive 64/221 preclude national legislation which makes it mandatory for authorities to expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years, or to a term of imprisonment, for an intentional criminal offence under the Betäubungsmittelgesetz where the sentence has not been suspended. 99. On the other hand, the Court's func- tions do not include delivering advisory opinions on general or hypothetical ques- tions. 32 Similarly, the Court can decline to rule on a question submitted by a national court where, for example, the problem is hypothetical, or where the Court does not have before it the factual or legal material B — Appraisal necessary to give a helpful answer to the questions submitted to it. 33 Moreover, in order to enable the Court to give a useful interpretation of Community law, it is essential for the national court to explain 1. Admissibility of the first question sub- mitted for a preliminary ruling 31 — Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59, Case C-379/98 Preussen Elektra |2001] ECR I-2099, paragraph 38, Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18, and Case C-153/00 tier Weduwe [2002] ECR I-11319, paragraph 31. 32 — Case C-415/93, cited in footnote 31 above, paragraph 60, 97. Since the Regierungspräsidium Stutt- Case C-451/99 Cura Anlagen [2002] ECR I-3193, para- gart takes the view that the first question graph 26, Case C-153/00, cited in footnote 31 above, paragraph 32. submitted is not at all material, it is 33 — Case C-379/98, cited in footnote 31 above, paragraph 39, necessary first to examine the admissibility Case C-390/99, cited in footnote 31 above, paragraph 19, and Case C-153/00, cited in footnote 31 above, paragraph of this question.

105. Nor is it necessary in these prelimin- 102. The first question submitted for a ary ruling proceedings to consider the preliminary ruling is worded in such a way conformity of national implementing mea- that it makes reference exclusively and sures or to examine whether and to what specifically to national legislation which extent an interpretation of the national makes it mandatory for authorities to expel individuals in particular cases. In this context it should be noted that it is evident from the decision at issue in the main 35 — For example, in German legai circles the view is taken that 'expulsion as a rule' constitutes a sub-case of compulsory expulsion, the authorities may rely on a margin of discretion only at a secondary level, a margin of discretion may be given only in connection with atypical events, and the demarcation between rule and exception is not subject 34 — Joined Cases 98/85, 162/85 and 258/85 Bertini and Others to a margin of discretion. [1986] 1885, paragraph 6, Case C-343/90 Lourenço Dias 36 — See, on this, Harms, 'Ausländerrecht', in Deutsches [1992] ECR I-4673, paragraph 19, and Case C-153/00, Verwaltungsrecht unter europäischem Einfluss, 2002, cited in footnote 31 above, paragraph 34. paragraph 92.

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legislation in conformity with Community 109. The German legislation appears to law is possible and is actually practised by satisfy this criterion since its defining the administrative authorities and the elements refer to the personal conduct of courts. According to its case-law, the Court the individual concerned, inasmuch as what may not, in preliminary ruling proceedings, matters is the nature of the fault, the rule upon the compatibility of a provision infringement of a particular law, the nature of domestic law with Community law. 37 and term of the sentence and the absence of suspension.

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datory in general and abstract terms. Such provision that rendered it incompatible legal constructions prevent a — substantive with Community law, as is evident from — examination of a specific case. the Court's interpretation of Calfa in the case of Nazli. 42

114. The answer to the first question 112. In any event, the application of a submitted for a preliminary ruling should general and abstract provision to a specific therefore be that Article 39(3) EC and case is not consistent with the prohibition Article 3 of Directive 64/221 preclude on 'general considerations'. This is evident national legislation which makes it manda- precisely in legislation such as that in the tory for authorities to expel nationals of main proceedings 40 which lays down 'stan- other Member States who have been finally dardised criteria' on the basis of which a sentenced to a term of youth custody of at particular threat is inferred. Therefore, even least two years, or to a term of imprison- if an individual threat assessment were ment, for an intentional criminal offence carried out in such cases, no weight could under the Betäubungsmittelgesetz where the be attributed to it on account of the sentence has not been suspended. mandatory nature of the expulsion and it would not have the importance conferred on it by Community law.

irrelevant. The illness acquired after the decision on an application for a time-limit expulsion constitutes an obstacle to depor- to be placed on the expulsion. That can tation and consequently affects the legality result in the lifting of the prohibition on re- of the enforcement of the expulsion, not the entry and the issuing of a new residence lawfulness of the expulsion itself. More- permit. Moreover, new facts must be taken over, Community law does not preclude the into account in relation to enforcement of time of the adoption of a measure from the expulsion. being regarded as the material time. Finally, the question of a time-limit on the expul- sion does not necessarily depend on the individual concerned already having left the country. 118. In its observations the Italian Govern- ment does not make a separate examination of the second question submitted but makes the same submissions as in Case C-482/01.

124. It is first necessary to start with Article 3 of Directive 64/221, which is 121. This question concerns another mat- expressly referred to in the question sub- ter of dispute in German law, that is to say mitted. the material time to be taken into con- sideration by the national court. In that regard three positions can be distinguished as regards the interpretation of the relevant provision of national procedural law, that is to say Paragraph 113 of the Verwaltungs- gerichtsordnung. Whilst according to the first position the conclusion of the admin- 125. According to the Court's case-law, istrative proceedings is decisive, according that provision must be interpreted as mean- to the second position the time of the ing that 'the circumstances which gave rise application for annulment is decisive. [to that criminal conviction] are evidence of According to a third position, it is the personal conduct constituting a present factual and legal situation at the time of the threat to the requirements of public pol- final oral procedure that is decisive. The icy'. 43 present case relates to proceedings before an administrative court which were initiated by an action for annulment.

126. Therefore, the decisive factor is a present threat, although an assessment of the future may indeed be necessary. How- ever, no more specific information as to what constitutes the 'present' is evident 122. Under national law the question has from the wording of Article 3 of Directive already arisen as to whether the solution is 64/221 or the case-law based thereon. to be found at all in administrative law alone rather than in substantive law. Applied to the main proceedings, this would mean that the solution is to be 43 — Case 30/77, cited in footnote 8 above, paragraph 28, Case C-348/96, cited in footnote 10 above, paragraph 24, and sought in the national law relating to aliens. Case C-340/97, cited in footnote 9 above, paragraph 58.

128. However, the principle underlying Scintillo, namely that 'the factors to be taken into account, particularly those con- cerning [a person's] conduct, are likely to change in the course of time', applies in 131. It can be inferred from this that the respect of the period between the expulsion exercise of the rights conferred on a person order and its review by the administrative affected by an expulsion order by Directive court, which is the material period in this 64/221 is rendered excessively difficult for case. him if he is unable to put forward new facts in pending administrative proceedings, including proceedings before an adminis- trative court, but must make a specific application for a time-limit on expulsion and if any developments that have occurred 129. German law relating to aliens, which in the meantime can be taken into account — from the point of view of Community only in the decision on that application. law — also includes the procedural law of administrative courts in this field, must also comply with this principle.

130. Where Community law does not 132. However, not only the assertion of provide for more specific rules, national rights by the person concerned is relevant procedural law does, in principle, apply. under Community law. Community law However, in that respect it is necessary to also requires that the bodies responsible apply the case-law of the Court, according under national law, that is to say also the to which 'it is for the domestic legal system administrative courts, must be able to of each Member State ... to lay down the ensure the exercise of rights and are not detailed procedural rules governing actions hindered in this respect by provisions of for safeguarding rights which individuals procedural law. derive from Community law, provided,

138. The answer to the second question submitted for a preliminary ruling should therefore be that Article 3 of Directive 64/221 is to be interpreted as meaning that the submission of a report and a positive development in the person concerned which occurred after the final decision of the 136. Although the taking into account of authority must also be taken into account further developments in connection with a by the national courts when they review the decision on a time-limit on expulsion can lawfulness of the expulsion of an EU result in the lifting of the prohibition on re- national.

46 — Renner, cited in footnote 40 above, p. 304 et seq., already comes to the same conclusion under national law. 47 — Beichel, cited in note 40 above, p. 460.

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IX — Conclusion

139. In the light of those considerations I propose that the Court should answer the national court's questions as follows:

OPINION OF MRS STIX-HACKL — JOINED CASES C-482/01 AND C-493/01

B — In Case C-493/01

(1) Article 39 EC and Article 3 of Directive 64/221/EEC preclude national legislation which makes it mandatory for authorities to expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years, or to a term of imprisonment, for an intentional criminal offence under the Betäubungsmittelgesetz where the sentence has not been suspended.

(2) Article 3 of Directive 64/221/EEC is to be interpreted as meaning that the submission of a report and a positive development in the person concerned which occurred after the final decision of the authority must also be taken into account by the national courts when they review the lawfulness of the expulsion of an EU national.

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