Joined Cases C-482/01 and C-493/01

Georgios Orfanopoulos and Others

and

Raffaele Oliveri

v

Land Baden-Württemberg

(Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart)

(Freedom of movement for persons – Public policy – Directive 64/221/EEC – Decision to expel on ground of criminal offences – Taking into account of the length of residence and personal circumstances – Fundamental rights – Protection of family life – Taking into account circumstances occurring between the final decision of the administrative authorities and the review by an administrative court of the lawfulness of that decision – The person concerned’s right to make submissions as to the expediency of the measure before an authority called upon to give an opinion)

Summary of the Judgment

1. Freedom of movement for persons – Freedom to provide services – Citizenship of the European Union – Right to move and reside freely in the territory of the Member States – Reference for a preliminary ruling concerning the compatibility with Community law of national legislation requiring, in certain circumstances, the expulsion of nationals of other Member States – No information enabling the Court to establish the relevant Community provisions – For the national court to determine

(Arts 18 EC, 39 EC, 43 EC, 46 EC, 49 EC, 55 EC and 234 EC; Council Directive 90/364)

2. Freedom of movement for persons – Derogations – Grounds of public policy – Particular sentences for specific offences – Mandatory expulsion of a Community national without taking account of his personal conduct – Not permissible

(Council Directive 64/221, Art. 3)

3. Freedom of movement for persons – Derogations – Grounds of public policy – Expulsion of a Community national – National legislation not allowing circumstances arising between the administrative decision and the review by a court of the lawfulness of that decision to be taken into account – Not permissible

(Council Directive 64/221, Art. 3)

4. Freedom of movement for persons – Derogations – Grounds of public policy – Particular sentences for specific offences – Expulsion of a Community national on the basis of a presumption and without proper account being taken of his personal conduct or of the danger for the requirements of public policy – Not permissible – Expulsion of a Community national who is a present threat to public policy – Person concerned able to plead family circumstances – Whether permissible – Conditions – Assessment on a case-by-case basis in compliance with the general principles of Community law, in particular fundamental rights, such as the protection of family life

(Art. 39(3) EC; European Convention on Human Rights, Art. 8; Council Directive 64/221, Art. 3)

5. Freedom of movement for persons – Derogations – Decisions in the policing of foreigners – Expulsion decision – Judicial guarantees – National legislation providing neither a complaints procedure nor an appeal comprising also an examination of expediency – Not permissible

(Council Directive 64/221, Art. 9(1))

1. As Community law stands at present, the right of nationals of a Member State to travel to and reside in another Member State is not unconditional. That follows, first, from the provisions on the free movement of persons and services contained in Title III of Part Three of the Treaty, namely Articles 39 EC, 43 EC, 46 EC, 49 EC and 55 EC, and the secondary legislation adopted to give them effect and, second, from the provisions of Part Two of the Treaty, more specifically Article 18 EC, which, while granting citizens of the Union the right to move and reside freely within the Member States, expressly refers to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect.

Where, in proceedings under Article 234 EC, the Court is asked about the compatibility with Community law of a national provision which requires the competent authorities to expel nationals of other Member States who have received certain sentences for specific offences and the information available to the Court does not enable it to establish with certainty whether the national concerned may rely on the provisions of Article 39 EC or on other provisions of the Treaty and of secondary legislation on the freedom of movement for persons or the freedom to provide services, whereas it is common ground that, as a citizen of the Union, the person concerned enjoys, under Article 18 EC, the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect, it is for the national court to determine the provisions of Community law, if any, other than Article 18(1) EC, on which the person concerned may rely.

In that regard, it is, in particular, for the national court to establish whether the person concerned comes within the scope of Article 39 EC, either as a worker, or as a person otherwise entitled, under the provisions of the secondary legislation adopted to give effect to that article, to freedom of movement, or whether he may rely on other provisions of Community law, such as Directive 90/364 on the right of residence or Article 49 EC, which applies particularly to recipients of services.

(see paras 47, 52-54, operative part 1)

2. Article 3 of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, which provides that the measures in question must be based exclusively on the personal conduct of the individual subjected to them and that previous criminal convictions cannot in themselves be grounds for these measures, precludes national legislation which requires national 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 custodial sentence for an intentional offence against the German Law on narcotics, where the sentence has not been suspended.

(see para. 71, operative part 2)

3. Article 3 of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, which provides that the measures in question must be based exclusively on the personal conduct of the individual subjected to them and that previous criminal convictions cannot in themselves be grounds for these measures, precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court.

(see para. 82, operative part 3)

4. Articles 39 EC and 3 of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, which provides that the measures in question must be based exclusively on the personal conduct of the individual subjected to them and that previous criminal convictions cannot in themselves be grounds for these measures, preclude national legislation and practices whereby a national of another Member State who has received a particular sentence for specific offences is ordered to be expelled, in spite of family considerations being taken into account, on the basis of a presumption that that person must be expelled, without proper account being taken of his personal conduct or of the danger which he represents for the requirements of public policy.

On the other hand, Article 39 EC and Directive 64/221 do not preclude the expulsion of a national of another Member State who has received a particular sentence for specific offences and who, on the one hand, constitutes a present threat to the requirements of public policy and, on the other hand, has resided for many years in the host Member State and can plead family circumstances against that expulsion, provided that the assessment made on a case-by-case basis by the national authorities of where the fair balance lies between the legitimate interests at issue is made in compliance with the general principles of Community law and, in particular, by taking proper account of respect for fundamental rights, such as the protection of family life.

(see para. 100, operative part 4-5)

5. Article 9(1) of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, the object of which is to ensure a minimum procedural safeguard for persons affected by a decision ordering their expulsion from the territory, precludes a provision of a Member State which provides neither a complaints procedure nor an appeal, comprising also an examination of expediency, against a decision to expel a national of another Member State taken by an administrative authority, where no authority independent of that administration has been put in place.

Where it is not disputed that the review of the expulsion decisions in question is by administrative courts in judicial proceedings, but doubt persists as to the extent of that review, it is for the national court to establish whether the courts with jurisdiction in such matters are able to consider the expediency of expulsion orders.

(see paras 105, 107, 112, 116, operative part 6)

JUDGMENT OF THE COURT (Fifth Chamber) 29 April 2004 (1)

(Freedom of movement of persons – Public policy – Directive 64/221/EEC – Decision to expel on ground of criminal offences – Taking into account of the length of residence and personal circumstances – Fundamental rights – Protection of family life – Taking into account circumstances occurring between the final decision of the administrative authorities and the review by an administrative court of the lawfulness of that decision – The person concerned's right to make submissions as to the expediency of the measure before an authority called upon to give an opinion)

In Joined Cases C-482/01 and C-493/01,

REFERENCE to the Court under Article 234 EC by the Verwaltungsgericht Stuttgart (Germany) for a preliminary ruling in the proceedings pending before that court between

and

and

on the interpretation of Article 39(3) EC and Article 9(1) of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition, 1963-1964, p. 117) (C-482/01), and of Article 39 EC and Article 3 of the same directive (C-493/01),

THE COURT (Fifth Chamber),,

composed of: A. Rosas (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges,

Advocate General: C. Stix-Hackl,

after considering the written observations submitted on behalf of:

after hearing the oral observations of Mr Orfanopoulos and Others, and Mr Oliveri, represented by R. Gutmann, and of the Commission, represented by W. Bogensberger, at the hearing on 12 June 2003,

after hearing the Opinion of the Advocate General at the sitting on 11 September 2003,

gives the following

‘1.

…

3.…

...’

‘1.

2.…’

‘The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration.’

‘1.

This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering expulsion.

2....

First question

– Scope of the question

– Observations submitted to the Court

– Reply of the Court

Second question

– Scope of the question

– Observations submitted to the Court

– Reply of the Court

First question

– Scope of the question

– Observations submitted to the Court

– Reply of the Court

The second question

– Scope of the question

– Observations submitted to the Court

– Reply of the Court

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Verwaltungsgericht Stuttgart, by orders of 20 November and 4 December 2001, hereby rules:

Rosas

La Pergola

von Bahr

Delivered in open court in Luxembourg on 29 April 2004.

R. Grass

V. Skouris

Registrar

President