Case C-215/03

Salah Oulane

v

Minister voor Vreemdelingenzaken en Integratie

(Reference for a preliminary ruling from the Rechtbank te ’s-Gravenhage)

(Freedom of movement for persons – Right of entry and residence for nationals of Member States – Requirement to present an identity card or a passport – Pre-condition for recognition of right of residence – Penalty – Detention order for the purpose of deportation)

Opinion of Advocate General Léger delivered on 21 October 2004

Judgment of the Court (First Chamber), 17 February 2005

Summary of the judgment

1. Freedom of movement for persons – Right of entry and residence for nationals of Member States – Recognition of the right of residence of a recipient of services who is a national of another Member State made subject to the production of an identity card or a passport to the exclusion of all other means of proof of identity or of nationality – Not permitted

(Council Directive 73/148, Art. 4(2), subpara. 3)

2. Freedom to provide services – Freedom of movement for recipients of services – Equal treatment – Discrimination on grounds of nationality – Requirement for nationals of other Member States to provide an identity card or a passport in order to prove their nationality to the exclusion of all other means of proof – Not permitted

(Arts 12 EC and 49 EC)

3. Freedom of movement for persons – Freedom to provide services – Right of entry and residence for nationals of Member States – Failure to comply with the obligation to produce an identity card or a passport – No threat to public policy – Detention order with a view to deportation – Not permitted

(Art. 49 EC; Council Directive 73/148, Art. 8)

4. Freedom of movement for persons – Freedom to provide services – Right of entry and residence for nationals of Member States – Requirement to provide evidence establishing that residence is lawful – Right of host Member State to undertake deportation if no such evidence is provided

(Art. 49 EC; Council Directive 73/148)

1. The third subparagraph of Article 4(2) of Directive 73/148 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 is to be interpreted as meaning that the recognition by a Member State of the right of residence of a recipient of services who is a national of another Member State may not be made subject to his production of a valid identity card or passport, where his identity and nationality can be proven unequivocally by other means.

(see para. 26, operative part 1)

2. It is contrary to Article 49 EC for nationals of a Member State who reside in another Member State as recipients of services to be required in that Member State to present a valid identity card or passport in order to prove their nationality, when that Member State does not impose a general obligation on its own nationals to provide evidence of identity, and permits them to prove their identity by any means allowed by national law. In the area of freedom to provide services, Article 49 EC is a specific expression of the principle of equal treatment provided for in Article 12 EC, which prohibits all discrimination on grounds of nationality.

Community law does not prevent a Member State from carrying out checks on compliance with the obligation to be able to produce proof of identity at all times, provided that it imposes the same obligation on its own nationals as regards their identity card.

(see paras 33-35, operative part 2)

3. A detention order with a view to deportation in respect of a national of another Member State who resides as the recipient of services, imposed on the basis of failure to present a valid identity card or passport even when there is no threat to public policy, constitutes an unjustified restriction on the freedom to provide services and is therefore contrary to Article 49 EC.

Whilst the Member States may still impose penalties for breach of the requirement to present an identity card or passport, the penalties must, however, be comparable to those which apply to similar national infringements and be proportionate. In that regard, detention and deportation based solely on the failure of the person concerned to comply with legal formalities concerning the monitoring of aliens impair the very substance of the right of residence directly conferred by Community law and are manifestly disproportionate to the seriousness of the infringement.

A detention order can only be based on an express derogating provision, such as Article 8 of Directive 73/148 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, which allows Member States to place restrictions on the right of residence of nationals of other Member States in so far as such restrictions are justified on grounds of public policy, public security or public health. Failure to comply with legal formalities pertaining to aliens’ access, movement and residence does not, however, by itself constitute a threat to public policy or security.

(see paras 38, 40-42, 44, operative part 3)

4. Without prejudice to questions pertaining to public policy, public security and public health, it is for nationals of a Member State residing in another Member State in their capacity as recipients of services to provide evidence establishing that their residence is lawful within the meaning of Directive 73/148 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. In the absence of a valid identity card or passport, evidence of identity and nationality may, however, be provided by other means. Similarly, evidence that such nationals come within one of the categories referred to in Articles 1 and 4 of Directive 73/148 may, in accordance with Article 6 of the directive, be adduced by any appropriate means.

If no such evidence is provided, the host Member State may undertake deportation, subject to the limits imposed by Community law.

(see paras 53-56, operative part 4)

JUDGMENT OF THE COURT (First Chamber) 17 February 2005 (1)

(Free movement of persons – Right of entry and residence for nationals of Member States – Requirement to present an identity card or a passport – Pre-condition for recognition of right of residence – Penalty – Detention order for the purpose of deportation)

In Case C-215/03, REFERENCE for a preliminary ruling under Article 234 EC from the Rechtbank te ’s-Gravenhage (Netherlands), made by decision of 12 May 2003, received at the Court on 19 May 2003, in the proceedings

v

THE COURT (First Chamber),,

composed of P. Jann, President of the Chamber, N. Colneric, J.N. Cunha Rodrigues (Rapporteur), M. Ilešič and E. Levits, Judges,

Advocate General: P. Léger,

having regard to the written procedure and further to the hearing on

after hearing the Opinion of the Advocate General at the sitting on 21 October 2004,

gives the following

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

Where such period exceeds three months, the Member State in the territory of which the services are performed shall issue a [residence certificate] as proof of the right of residence.

Where the period does not exceed three months, the identity card or passport with which the person concerned entered the territory shall be sufficient to cover his stay. The Member State may, however, require the person concerned to report his presence in the territory.’

‘An applicant for a residence permit or [certificate] shall not be required by a Member State to produce anything other than the following, namely:

‘1. Officials charged with surveillance of the borders and monitoring of aliens may either on the basis of facts and circumstances which, assessed according to objective criteria, give rise to a reasonable assumption of illegal residence or as part of the effort to combat illegal residence following crossing of borders, stop persons for the purpose of ascertaining their identity, nationality and status with reference to the right of residence … .

2. If the identity of the person stopped cannot be established immediately, he may be taken to an appropriate place for questioning. He may be kept there for not more than six hours, not counting the time between midnight and 9 a.m. …’

‘A Community national shall not be deported unless it appears that such person does not possess a right of residence or that his right of residence has expired.’

‘An alien residing in the Netherlands who pleads rights based on the EC Treaty, but who fails to produce a valid identity card or passport shall be given an opportunity to produce that document. A reasonable period of two weeks shall be allowed for that purpose.’

‘As regards the first proceedings:

As regards the second proceedings:

On those grounds, the Court (First Chamber) rules as follows:

[Signatures]