Avis juridique important

Judgment of the Court of 11 July 2002. - Mary Carpenter v Secretary of State for the Home Department. - Reference for a preliminary ruling: Immigration Appeal Tribunal - United Kingdom. - Freedom to provide services - Article 49 EC - Directive 73/148/EEC - National of a Member State established in that State and providing services to persons established in other Member States - Right of residence in that State of a spouse who is a national of a third country. - Case C-60/00. European Court reports 2002 Page I-06279

Summary Parties Grounds Decision on costs Operative part

1. Freedom to provide services - Treaty provisions - Not applicable in situations purely internal to a Member State

(Art. 49 EC)

2. Freedom to provide services - Treaty provisions - Scope - Services provided to persons established in other Member States - Included - Possibility for the provider to rely on the Treaty provisions as against the Member State of establishment

(Art. 49 EC)

3. Freedom to provide services - Restrictions justified by reasons of public interest - Permissibility conditional on respect for fundamental rights - Observance ensured by the Community judicature - European Convention on Human Rights taken into consideration - Right to respect for family life - Decision to deport a person from a country where close members of his family are living

(Art. 49 EC; European Convention on Human Rights, Art. 8)

4. Freedom to provide services - Restrictions - National of a Member State established in that State providing services in other Member States - Spouse who is a national of a third country refused right to reside - Measure constituting an infringement of the right to respect for family life guaranteed by the European Convention on Human Rights - Not permissible - Criterion

(Art. 49 EC; European Convention on Human Rights, Art. 8)

$$1. The provisions of the Treaty relating to the freedom to provide services, and the rules adopted for their implementation, are not applicable to situations which do not present any link to any of the situations envisaged by Community law.

( see para. 28 )

2. The right freely to provide services guaranteed by Article 49 EC may be relied on by a provider as against the State in which he is established if the services are provided for persons established in another Member State.

( see para. 30 )

3. A Member State may invoke reasons of public interest to justify a national measure which is likely to obstruct the exercise of the freedom to provide services only if that measure is compatible with the fundamental rights whose observance the Court ensures. In that regard, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed by Article 8 of the European Convention on Human Rights, which is among the fundamental rights which are protected in Community law. Such an infringement will infringe the Convention if such a decision does not meet the requirements of paragraph 2 of that article, that is unless it is in accordance with the law, motivated by one or more of the legitimate aims under that paragraph and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.

( see paras 40-42 )

4. Article 49 EC, read in the light of the fundamental right to respect for family life, is to be interpreted as precluding a refusal by the Member State of origin of a provider of services established in that Member State who provides services to recipients established in other Member States, of the right to reside in its territory to that provider's spouse, who is a national of a third country, if such a decision, which constitutes an infringement of the right to respect for family life, is not proportionate to the objective pursued.

( see paras 45-46, operative part )

In Case C-60/00,

REFERENCE to the Court under Article 234 EC by the Immigration Appeal Tribunal (United Kingdom) for a preliminary ruling in the proceedings pending before that court between

Mary Carpenter

and

Secretary of State for the Home Department,

on the interpretation of Article 49 EC and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973 L 172, p. 14),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, N. Colneric and S. von Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward, J.-P. Puissochet, M. Wathelet, R. Schintgen and J.N. Cunha Rodrigues (Rapporteur), Judges,

Advocate General: C. Stix-Hackl,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Mrs Carpenter, by J. Walsh, Barrister, instructed by J. Wyman, Solicitor,

- the United Kingdom Government, by G. Amodeo, acting as Agent, and by D. Wyatt QC,

- the Commission of the European Communities, by N. Yerrell, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Mrs Carpenter, represented by J. Walsh, of the United Kingdom Government, represented by R. Magrill, acting as Agent, and by D. Wyatt QC, and of the Commission, represented by N. Yerrell and H. Michard, acting as Agent, at the hearing on 29 May 2001,

after hearing the Opinion of the Advocate General at the sitting on 13 September 2001,

gives the following

Judgment

1 By order of 16 December 1999, received at the Court on 21 February 2000, the Immigration Appeal Tribunal referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Article 49 EC and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973 L 172, p. 14, hereinafter the Directive).

2 The question was raised in proceedings between Mrs Carpenter, a national of the Philippines, and the Secretary of State for the Home Department (hereinafter the Secretary of State) concerning her right to reside in the United Kingdom.

Legislative framework

Community legislation

3 The first paragraph of Article 49 EC provides:

Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.

4 The first recital of the preamble to the Directive states as follows:

Whereas freedom of movement of persons as provided for in the Treaty and the General Programmes for the abolition of restrictions on freedom of establishment and on freedom to provide services entails the abolition of restrictions on movement and residence within the Community for nationals of Member States wishing to establish themselves or to provide services within the territory of another Member State.

5 Article 1(1) of the Directive provides:

The Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of:

(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-employed persons, or who wish to provide services in that State;

(b) nationals of Member States wishing to go to another Member State as recipients of services;

(c) the spouse and the children under 21 years of age of such nationals, irrespective of their nationality;

(d) the relatives in the ascending and descending lines of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality.

6 The first subparagraph of Article 4(2) of the Directive provides:

The right of residence for persons providing and receiving services shall be of equal duration with the period during which the services are provided.

United Kingdom legislation

7 In terms of the Immigration Act 1971 and the 1994 United Kingdom Immigration Rules (House of Commons Paper 395, hereinafter the Immigration Rules), a person who is not a British citizen may not, as a general rule, enter or remain in the United Kingdom unless he has obtained permission to do so. Such permission is called respectively leave to enter and leave to remain.

A person shall not under the [Immigration Act 1971] require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.

9 Paragraph 281 of the Immigration Rules lists the requirements for leave to enter the United Kingdom as the spouse of a person present and settled in the United Kingdom. Paragraph 281(vi) states that the applicant must hold a valid United Kingdom entry clearance for entry as a spouse. However, a person present in the United Kingdom with leave to enter or remain in another capacity may switch into the spouse category if he or she satisfies the requirements of paragraph 284 of the Immigration Rules.

10 Paragraph 284 of the Immigration Rules lays down the requirements for an extension of stay in the United Kingdom as the spouse of a person present and settled in the United Kingdom. Paragraph 284(i) provides that the applicant must have limited leave to remain in the United Kingdom (this would include leave to enter) and Paragraph 284(iv) states that the applicant must not have remained in breach of the immigration laws.

11 Section 3(5)(a) of the Immigration Act 1971 lays down the general rules relating to deportation from the United Kingdom. It provides:

A person who is not a British Citizen shall be liable to deportation from the United Kingdom -

(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave ....

The dispute in the main proceedings

14 It appears from the order for reference that Mr Carpenter runs a business selling advertising space in medical and scientific journals and offering various administrative and publishing services to the editors of those journals. The business is established in the UK, where the publishers of the journals for which he sells advertising space are based. A significant proportion of the business is conducted with advertisers established in other Member States of the European Community. Mr Carpenter travels to other Member States for the purpose of his business.

15 On 15 July 1996 Mrs Carpenter applied to the Secretary of State for leave to remain in the UK as the spouse of a national of that Member State. Her application was refused by a decision of the Secretary of State of 21 July 1997.

17 Mrs Carpenter appealed against the decision to make a deportation order to an Immigration Adjudicator (United Kingdom), arguing that the Secretary of State was not entitled to deport her because she was entitled to a right to remain in the United Kingdom under Community law. She maintained that since her husband's business required him to travel around in other Member States, providing and receiving services, he could do so more easily as she was looking after his children from his first marriage, so that her deportation would restrict her husband's right to provide and receive services.

18 The Immigration Adjudicator was satisfied that Mrs Carpenter's marriage was genuine and that she played an important part in the upbringing of her stepchildren. He also accepted that she could be indirectly responsible for the increased success of her husband's business and that her husband was a provider of services for the purposes of Community law. According to the Immigration Adjudicator, Mr Carpenter has the right to travel to other Member States to provide services and to be accompanied for that purpose by his spouse. However, while he is resident in the United Kingdom, he cannot be considered to be exercising any freedom of movement within the meaning of Community law. The Immigration Adjudicator therefore dismissed Mrs Carpenter's appeal by decision of 10 June 1998.

19 On Mrs Carpenter's appeal to the Immigration Appeal Tribunal, it considered that the issue of Community law raised by the proceedings before it was whether it was contrary to Community law and, in particular, Article 49 EC and/or the Directive, for the Secretary of State to refuse to grant a right of residence to, and to decide to deport Mrs Carpenter where, first, Mr Carpenter was exercising his freedom to provide services in other Member States, and second, the childcare and homemaking performed by Mrs Carpenter might indirectly assist and facilitate Mr Carpenter's exercise of his rights under Article 49 EC, by providing him with economic assistance which permitted him to spend greater time on his business.

20 Since it considered that the case turned on the interpretation of Community law, the Immigration Appeal Tribunal decided to stay proceedings and refer the following question to the Court of Justice for a preliminary ruling:

In circumstances where:

(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

(b) has a spouse who is not a national of a Member State;

can the non-national spouse rely on

(i) Article 49 EC and/or

(ii) Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services,

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?

Is the answer to the question referred different if the non-national spouse indirectly assists the national of a Member State in carrying on the provision of services in other Member States by carrying out childcare?

The question referred

Observations submitted to the Court

22 According to the United Kingdom Government the provisions of the Directive mean, for example, that a UK national wishing to provide services in another Member State is entitled to reside in that State for the period during which the services are provided, and that his or her spouse would be entitled to reside there for the same period. Those provisions do not, however, give any right of residence in the United Kingdom to UK nationals, who have such a right in any event under United Kingdom law, or to their spouses. The Court has confirmed that interpretation in its judgment in Case C-370/90 Singh [1992] ECR I-4265, paragraphs 17 and 18.

23 The United Kingdom Government points out that, in its judgment in Case C-107/94 Asscher [1996] ECR I-3089, the Court considered the question whether a national of a Member State pursuing an activity as a self-employed person in another Member State, in which he resides, may rely on Article 52 of the EC Treaty (now, after amendment, Article 43 EC) against his Member State of origin, on whose territory he pursues another activity as a self-employed person. The Court held, at paragraph 32 of that judgment, that, although the provisions of the Treaty relating to freedom of establishment cannot be applied to situations which are purely internal to a Member State, the scope of Article 52 of the Treaty nevertheless cannot be interpreted in such a way as to exclude a given Member State's own nationals from the benefit of Community law where by reason of their conduct they are, with regard to their 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.

24 However, since Mr Carpenter has not exercised his right to freedom of movement, his spouse cannot rely on Singh or Asscher, cited above. Therefore, a person in Mrs Carpenter's position is not entitled to derive from Community law any right to enter or remain in the United Kingdom.

25 According to the Commission, the situation of Mrs Carpenter must be clearly distinguished from that of a spouse of a national of a Member State who has exercised his right to freedom of movement and has left his Member State of origin and moved to another Member State in order to become established or to work there.

26 In that case the spouse, whatever his or her nationality, would undoubtedly be covered by Community law, and would be entitled to establish himself or herself, with the Community national in the host Member State, since otherwise that national might be deterred from exercising his or her right to freedom of movement. Also, as the Court held at paragraph 23 of its judgment in Singh, cited above, when that Community national returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law, if his or her spouse chose to enter and reside in another Member State.

27 On the other hand, the principle expressed in paragraph 23 of the judgment in Singh, cited above, cannot be applied to a situation such as that in issue in the main proceedings, in which a national of a Member State has never sought to establish himself with his spouse in another Member State but merely provides services from his State of origin. The Commission submits that such a situation is rather to be classified as an internal situation within the meaning of the judgment in Joined Cases 35/82 and 36/82 Morson and Jhanjan [1982] ECR 3723, so that Mrs Carpenter's right to remain in the United Kingdom, if it exists, depends exclusively on United Kingdom law.

Findings of the Court

29 As is apparent from paragraph 14 of this judgment, a significant proportion of Mr Carpenter's business consists of providing services, for remuneration, to advertisers established in other Member States. Such services come within the meaning of services in Article 49 EC both in so far as the provider travels for that purpose to the Member State of the recipient and in so far as he provides cross-border services without leaving the Member State in which he is established (see, in respect of cold-calling, Case C-384/93 Alpine Investments [1995] ECR I-1141, paragraphs 15 and 20 to 22).

30 Mr Carpenter is therefore availing himself of the right freely to provide services guaranteed by Article 49 EC. Moreover, as the Court has frequently held, that right may be relied on by a provider as against the State in which he is established if the services are provided for persons established in another Member State (see, among others, Alpine Investments, cited above, paragraph 30).

31 With regard to the right of establishment and the freedom to provide services, the Directive aims to abolish restrictions on the movement and residence of nationals of Member States within the Community.

32 It follows both from the objective of the Directive and the wording of Article 1(1)(a) and (b) thereof, that it applies to cases where nationals of Member States leave their Member State of origin and move to another Member State in order to establish themselves there, or to provide services in that State, or to receive services there.

33 That interpretation is borne out, in particular, by Article 2(1) of the Directive, whereby Member States shall grant the persons referred to in Article 1 the right to leave their territory; Article 3(1), whereby Member States shall grant to the persons referred to in Article 1 the right to enter their territory merely on production of a valid identity card or passport; Article 4(1), whereby [e]ach Member State shall grant the right of permanent residence to nationals of other Member States who establish themselves within its territory; and Article 4(2) of the Directive, whereby, [t]he right of residence for persons providing and receiving services shall be of equal duration with the period during which the services are provided.

34 It is true that Article 1(1)(c) of the Directive extends to the spouses of the Member States' nationals referred to in subparagraphs (a) and (b) of that article the right to enter and reside in another Member State, irrespective of their nationality. But, in so far as the Directive aims to facilitate the exercise by Member States' nationals of freedom of establishment and freedom to provide services, the rights were accorded to their spouses so that they can accompany them when they exercise, in the circumstances provided for by the Directive, the rights which they derive from the Treaty by moving to or residing in a Member State other than their Member State of origin.

35 Therefore, it follows from both its objectives and its content that the Directive governs the conditions under which a national of a Member State, and the other persons covered by Article 1(1)(c) and (d), may leave that national's Member State of origin and enter and reside in another Member State, for one of the purposes set out in Article 1(1)(a) and (b), for a period specified in Article 4(1) or (2).

37 As has been held in paragraphs 29 and 30 of this judgment, Mr Carpenter is exercising the right freely to provide services guaranteed by Article 49 EC. The services provided by Mr Carpenter make up a significant proportion of his business, which is carried on both within his Member State of origin for the benefit of persons established in other Member States, and within those States.

43 A decision to deport Mrs Carpenter, taken in circumstances such as those in the main proceedings, does not strike a fair balance between the competing interests, that is, on the one hand, the right of Mr Carpenter to respect for his family life, and, on the other hand, the maintenance of public order and public safety.

45 In those circumstances, the decision to deport Mrs Carpenter constitutes an infringement which is not proportionate to the objective pursued.

Costs

47 The costs incurred by the United Kingdom Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the Immigration Appeal Tribunal by order of 16 December 1999, hereby rules:

Article 49 EC, read in the light of the fundamental right to respect for family life, is to be interpreted as precluding, in circumstances such as those in the main proceedings, a refusal, by the Member State of origin of a provider of services established in that Member State who provides services to recipients established in other Member States, of the right to reside in its territory to that provider's spouse, who is a national of a third country.