cazul rutili vs.minister fir the interior 1975

7/27/2019 Cazul Rutili vs.minister Fir the Interior 1975

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JUDGMENT OF 28 . 10 . 1975 CASE 36/75

2. The concept of public policy must, inthe Community context, and where,in particular, it is used as ajustification for derogating from thefundamental principles of equality oftreatment and freedom of movementfor workers, be interpreted strictly, sothat its scope cannot be determinedunilaterally by each Member Statewithout being subject to control bythe institutions of the Community.3. Restrictions cannot be imposed on theright of a national of any MemberState to enter the territory of anotherMember State, to stay there and tomove within it unless his presence orconduct constitutes a genuine andsufficiently serious threat to publicpolicy.

4. An appraisal as to whether measuresdesigned to safeguard public policyare justified must have regard to allrules of Community law the object ofwhich is, on the one hand, to l im itthe discretionary power of MemberStates in this respect and, on theother, to ensure that the rights ofpersons subject thereunder torestrictive measures are protected.

These limitations and safeguards arise,in particular, from the duty imposedon Member States to base th emeasures adopted exclusively on thepersonal conduct of the individualsconcerned, to refrain from adoptingany measures in this respect whichservice ends unrelated to th erequirements of public policy orwhich adversely affect the exercise oftrade union rights and, finally, unlessthis is contrary to the interests of thesecurity of the State involved,immediately to inform any personagainst whom a restrictive measurehas been adopted of the grounds onwhich th e dec is ion taken is based toenable h im to make effective use oflegal remedies.

5. Measures restricting the right ofresidence which are limited to partonly of the national territory may notbe imposed by a Member State onnationals o f othe r Member States whoare subject to the provisions of theTreaty except in the cases andcircumstances in which such measuresmay be applied to nationals of theState concerned.

In Case 36/75

Reference to the Court under Article 177 of the EEC Treaty by the Tribunaladministratif, Paris, for a preliminary ruling in the action pending before thatcourt between

Roland Rutili, residing at Gennevilliers,

and

The Minister for the Interior

on the interpretation of Article 48 of the EEC Treaty1220


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THE COURT

composed of: R. Lecourt, President, H. Kutscher, President of Chamber, A. M.Donner, J. Mertens de Wilmars, P. Pescatore, M. Srensen and A. J.Mackenzie Stuart, Judges,Advocate-General: H. MayrasRegistrar: A. Van Houttegives the following:

JUDGMENT

Facts

The facts of the case, the procedure andthe observa tions submit ted under Article20 o f th e Protocol on the Statute of theCourt of Justice of the EEC may besummar ized as fol lows:

I Facts and written procedureMr Roland Rutili, of Ita lian nationality,was bom on 27 April 1940 in Loudun(Vienne), and has been resident in Francesince his birth; he is married to aFrenchwoman and was, until 1968, theholder of a privileged resident's permitand domiciled at Audun-le-Tiche (in thedepartment of Meurthe-et-Moselle),where he worked and engaged in tradeunion activities.

On 12 August 1968, the Ministry for theInterior made a deportation order againsthim.

On 10 September 1968 an order wasissued requiring him to reside in thedepartment of Puy-de-Dme.By orders of 19 November 1968 theM inister for the Interior revoked thedeportation and residence orders

affecting Mr Rutili and, on the same date,informed the Prefect of the Moselle ofhis decision to prohibit Mr Rutili fromresiding in the departments of Moselle,Meurthe-et-Moselle, Meuse and Vosges.On 17 January 1970 Mr Rutili appliedfor the grant of a residence permit for anational of a Member State of th e EEC.

On 9 July 1970 he appealed to theTribunal administratif, Paris, against theimplied decision refusing him thisdocument .

On 23 October 1970, the Prefect ofPolice, acting on instructions given bythe Minister for the Interior on 17 July,granted Mr Rutili a residence permit fora national of a Member State of the EEC,which was valid unt i l 22 October 1975but subject to a prohibition on residencein the departments of Moselle,Meurthe-et-Moselle, Meuse and Vosges.On 16 December 1970, Mr Rutilibrought proceedings before the Tribunaladministratif, Paris, fo r annulment o f thedecision limiting the territorial validity ofhis residence permit.

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During the proceedings before theTribunal administratif, it becameapparent that Mr Rutili's presence in thedepartments of Lorraine was consideredby the Minister for the Interior to be'likely to disturb public policy' and thatthere were complaints against him inrespect of certain activities, the truth ofwhich is, however, contested, which arealleged to consist, in essence, in politicalactions during the parliamentaryelections in March 1967 and the eventsof May and June 1968 and in hisparticipation in a demonstration duringthe celebrations on 14 July 1968 atAudun-le-Tiche.

By judgment of 16 December 1974, theTribunal administratif, Paris, decided tostay proceedings under Article 177 of theEEC Treaty until the Court of Justicehad given a preliminary ruling on thefollowing questions:1. Does the expression, subject to

limitations justified on grounds ofpublic policy', employed in Article 48of the Treaty establishing the EECconcern merely the legislativedecisions which each Member State ofthe EEC has dec id ed to take in orderto limit within its territory thefreedom of movement and residencefo r nationals of other Member Statesor does it also concern individualdecisions taken in application of suchlegislative decisions?

2. what is the precise meaning to beattributed to the word 'justified'?The decision of the Tribunal administratif, Paris was entered at the CourtRegistry on 9 April 1975.W ritten observations under A rtic le 20 ofth e Protocol on the Statute of the Courtof Justice of the EEC were submitted on16 June 1975 by the Commission of theEuropean Communities, on 20 June bythe Government of the French Republicand on 26 June by the Government ofthe Italian Republic.After hearing the report of theJudge-Rapporteur and the views of the

Advocate-General, the Court decided toopen the oral procedure without anypreparatory inquiry.On 2 September 1975, the Governmentof the French Republic supplied to theCourt at the request of the latter certaindetails of the substantive and proceduralconditions in which a prohibition onresidence in part of the national territorymay be issued against a French national.II Written observations sub

mitted to the Court

A The first questionThe Government of the French Republictakes the view that this question isanswered by Council D irective No64/221 of 25 February 1964 on thecoordination of special measuresconcerning the movement and residenceof foreign nationals which are justifiedon grounds of public policy, publicsecurity or public health (OJ, EnglishSpecial Edition 1963-1964, p. 117),which lays down the conditions onwhich measures based on those groundsmay be taken against individuals; inparticular, Article 3 (1 ) thereof providesas follows: 'Measures taken on grounds ofpublic policy or of public security shallbe based exclusively on the personalconduct of the individual concerned.'This is the directive expressly referred toin the third recital of the preamble toCounc il D ire ctive No 68/360 of 15October 1968 on the abol i t ion ofrestrictions on movement and residencewithin the Community for workers ofMember States and their families (OJ,English Special Edition 1968 (II) p. 485),cited in the decis ion of th e TribunalAdministratif, Paris.

The Government of the Italian Republicconsiders it desirable that regulations of ageneral and abstract nature adopted inthe Member States of the EEC shouldspecify the grounds of public policywhich, on the basis of uniform criteria

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throughout the Community, are capableof limiting the rights arising underArticle 48 of the EEC Treaty; this wouldsubstantially reduce the discretionarycharacter of an individual decision takenby the administration which appliesabstract regu la tions to a particular case.In the present state of Community law,however, limitations on the right offreedom of movement may arise fromindiv idual administrat ive measures butappraisal of the grounds of public policymust, in each particular case, be made inthe light of the Community regulationswhich have been promulgated for thevery purpose of restricting thisdiscretionary power in view of theobjectives embodied in Article 48.On the question whether an individualadministrative measure may decide toprohibit residence in certain regions of aState only, it must be stated thatalthough Article 6 (1) (a) of Directive No68/360 provides that the residencepermit of a national of a Member State ofthe EEC must be valid throughout theterritory of the State which issued it,Article 10 of th e same directive allowsMember States to derogate from itsprovisions on grounds of public policy,public security or public health. It would,therefore, appear that a decisionprohibiting residence in certain parts ofthe national territory may be justified ongrounds of public policy.However, it follows from the judgment ofthe Court of Justice of 26 February 1975in Case 67/74 (Bonsignore v Stadt Kln[1975] ECR 297; reference for apreliminary ruling by the Verwaltungsgericht Kln) that derogations from therules concerning the free movement ofpersons constitute exceptions whichmust be strictly construed; personalconduct capable of justifying suchdepartures must, accordingly, be of aparticularly serious nature. In thesecircumstances, the view may be takenthat Community law does not permitgrading of the seriousness of conductpenalized by administrative measures and

that it is doubtful whether th e immediatemeasure of a prohibition on residence incertain regions only of the nationalterritory may be applied. Moreover, thefact that the measure imposed is not oneof deportation but a partial prohibitionon residence may enable the conclusionto be drawn that the conduct which gaverise to the penalty is not of theparticularly serious nature required byCommunity regulations.The Commission of the EuropeanCommuni t ies takes th e view that ananswer in the affirmative, thoughaccompanied by certain details, shouldbe given to the question whether thereservation made concerning publicpolicy in Article 48 (3) of the EEC Treatyalso covers individual decisionsimplementing legislative decisions takenby a Member State in order to restrict thefreedom of m ovem ent and residence onits territory of the nationals of MemberStates.

(a) The wide discretion traditionallyenjoyed by the immigration authorities islimited by Directive No 64/221, theobject of which is to restrict the actionsof national authorities by means both ofprovisions covering matters of substance(Articles 2, 3 and 4) and by proceduralprovisions (Articles 5 to 9). Someprovisions of Community law concerningthe reservation on public policy, inparticular Article 48 of the Treaty andArticle 3 (1) of Directive No 64/221, aredirectly applicable in the legal systems ofthe Member States. Thus, thediscretionary powers of the nationaladministrat ive authorities are c i rcumscribed not only within the limits fixedby the rules of national law,supplemented as necessary by theincorporation into domestic law of therules which appear in the directive, butalso within the limits fixed by thedirectly applicable provisions of theCommunity directive.(b) These limits are of decisive concernprecisely when individual decisions are

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taken, as the directive requires each caseto be examined individually.(c) The expression, 'subject to limitations justified on grounds of publicpolicy', used in Article 48 (3) of the EECTreaty is, therefore, primarily concernedwith individual decisions taken againstforeigners who are nationals of a MemberState of th e EEC.

B The second questionThe Government of the French Republictakes the view that the precise meaningto be given to the word 'justified' in theexpression 'subject to limitations justifiedon grounds of public policy' in Article48 of the EEC Treaty follows from thejudgment of the Court of 4 December1974 in Case 41/74 (van Duyn v HomeOffice; a reference for a preliminaryruling from the Chancery Division of theHigh Court of Justice, [1974] ECR 1337).In its judgment, the Court ruled, interalia, that' the concept of public policy in thecontext of the Community and where, inparticular, it is used as a justification forderogating from the fundamentalprinciple of freedom of movement forworkers, must be interpreted strictly, sothat its scope cannot be determinedunilaterally by each Member Statewithout being subject to control by theinstitutions of the Community.Nevertheless, the particular circumstances justifying recourse to the conceptof public policy may vary from onecountry to another and from one periodto another, and it is therefore necessaryin this matter to allow the competentnationa l au thor it ies an area of discretionwithin the limits imposed by the Treaty';and that

'I t follows that a Member State, forreasons of public policy, can, where itdeems necessary, refuse a national ofanother Member State th e benefit of the

principle of freedom of movement forworkers in a case where such a nationalproposes to take up a particular offer ofemployment even though the MemberState does not place a similar restrictionupon its own nationals.'The Government of the Italian Republicconsiders that, particularly in view ofArticle 6 of D irective No 64/221, theterm 'justified' in the first place meansthat there must be an exhaustiveexplanation of the reasons for measureswhich, on grounds of public policy, limitthe rights secured by Article 48 of theTreaty, and that this seems manifestlynot to have been done in th e case of th edecision contested in the main action.

Nor is it possible to tell from thestatement or reasons fo r that decisionwhether, in this particular case, theprinciple laid down in Article 3 (1) ofDirective No 64/21 was observed, and inparticular whether the contested measureis concerned only with threats to publicpolicy and public security on the part ofthe person who is the subject thereof, orwhether it was adopted for the unlawfulpurpose of deterring other foreigners.Furthermore, limitations on the freedomof movement cannot be regarded asjustified under Community law if theyare imposed without guaranteeing therights of appeal for those concernedunder the terms laid down by Articles 8and 9 of Directive No 64/221.

Finally, the limitations imposed uponworkers' freedom of movement ongrounds of public policy andcountenanced, exceptionally, underArticle 48 (3) of the Treaty, may beregarded as justified if they fulfil thesubstantive and formal requirementsprescribed by Directive No 64/221which, in accordance with the case-law ofthe Court, must be interpretedrestrictively.According to the Commission of theEuropean Communities, an appraisal of

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the precise meaning to be given to theword 'justified' may be based on threeviewpoints:(a) The measure must first of all bejustified in the sense that the decision bywhich it is adopted against the personconcerned must be reasoned.

As the measure may only be based onadequate grounds and refer exclusively tothe personal conduct of the individualconcerned, these grounds must beexplained to him, especially to enablehim to make use of the legal remedieswhich, under Articles 8 and 9 ofDirective No 64/221, the Member Statesmust make available to him. UnderArticle 6 of the Directive: The personconcerned shall be informed of th egrounds of public policy, public securityor public health upon which the decisiontaken in his case is based, unless this iscontrary to the interests of the security ofthe State involved.' In the present case, itis for the Court dealing with thesubstance of th e case to assess whetherthe grounds are, in this sense, really'justified'.(b ) With regard to the meaning of theconcept of public policy which is capableof justifying measures taken against aforeigner, in view in particular ofDirective No 64/221, the case-law of theCourt and the viewpoint of the FrenchMinis ter for the Interior, the followingconsiderations must be borne in mind: The right to enter the territory ofMember States and to reside there is anindispensable element of the freemovement of persons, which is itself oneof the underlying principles of theCommunity. The exercise of this right ofentry and of residence, enshrined inArticle 48 of the EEC Treaty, is subjectto no reservations except those providedfor by way of limitation in paragraph (3)of the article, which refer to publicpolicy, public security or public health;since it is an exception, it must berestrictively interpreted.

The concept of public policy must,therefore, be resorted to only inparticularly serious cases. In th e Member States of th eCommunity, fundamental human rights,the 'public freedoms', are established andrecognized by the State. Nationalstatutory law lays down the basic rules foreach of these freedoms and prescribestheir l imits both to enable them to beexercised simultaneously and to protectsociety. These limitations form a basiccriterion for determining at what pointan activity may be regarded asconstituting 'a danger to society'. Thus,an activity which consists of thelegitimate exercise of a freedom enjoyedby the public and recognized as such bynational law can scarecely be consideredto affect adversely the public policy of aState because the person responsible forit is a foreigner. In fields involving the exercise by thepublic of its freedoms, an appraisalwhether a foreigner has acted contrary topublic policy must be made by referencenot only to the national rules of a hostState which recognizes its own citizens asbeing entitled to those freedoms, but alsoof the relevant international obligationsin to wh ic h th e State has entered.

The exercise of trade union rights bya foreigner, under the same conditions asa national, cannot be regarded as in itselfconstituting an offence against publicpolicy. The exercise of trade union rightswas recognized by Article 8 ofRegulation No 1612/68 of the Council of15 October 1968 on f reedom ofmovement fo r workers within theCommunity (OJ, English Special Edition1968 (II) p. 475) and embodied in severalinternational documents. Such recognition enables foreigners, withoutdiscrimination based on nationa l descentor origin, to make full use of collectivebargaining rights including, in particular,the right to take collective action in caseof dispute, and the right to strike. Theexercise of trade union rights is subject

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to certain limitations laid down by thelaw and which, in a democratic society,are necessary to ensure respect for therights and liberties of others and tosafeguard public order, national security,public health and morals. In thisconnexion, it must be borne in mindthat the concept of political neutrality,which applies particularly to foreigners,must be handled with care in the contextof a Community which is trying tointegrate the migrant worker more andmore closely into the host country andwhich likes to emphasize its politicalaims. The host state can no doubtimpose restrictions on the politicalactivity of foreigners; at the same time,political neutrality must on no accountbe used to prevent the normal exercise oflegitimate economic and social rightswhich are enshrined in Community law.(c) On the question whether themeasure adopted is justified in thepresent case, the following commentsmay be made: Directive No 64/221 expressly refersto refusal of entry into a territory andexpulsion from a territory as specialmeasures which may be taken against anational of a Member State; on the otherhand, it contains no provision thatprohibitions on residence in part of theterritory may be justified on grounds ofpublic policy. One might, at first, be tempted toconclude that, as the admin istra tiveauthorities are justified in adopting adeportation measure against a foreigner,they may a fortiori adopt a less drasticmeasure, and that it would be toencourage them in every case to opt fordeportation if they were prohibited fromadopting a less radical measure. Nevertheless, the right to move freelywithin a State and to choose to residethere is a basic human right; thus, Article6 (1) (a) of Directive No 68/360 providesthat a residence permit, which is astraightforward entitlement to residence

embodying, in administrative terms, theright of residence recognized by thedirective, must, in principle, be validthroughout the territory of the Statewhich issued it. It is open to questionwhether the French authorities wereentitled to limit the scope of thatCommunity provision by providing, inthe Decree of 5 January 1970, that 'aresidence permit for a national of aMember State of th e EEC shall be validthroughout French territory save in thecase of an individual decision taken bythe Minister for the Interior on groundsof public policy.' An order as to place of residence maynevertheless be made against a foreignerin certain circumstances where specialrestrictions on foreigners appear to be infact justifiable on grounds of publicpolicy. But it must be possible, in eachindividual case, to justify the applicationto a foreigner of the general rule laiddown in the Decree of 5 January 1970.In the present case, however, the measurecontested in the main action appears tobe discriminatory or unfounded. Finally, refusal of a residence permitmay have very serious consequences forthe person concerned and also for hisfamily.(d ) In conclusion, in order to be'justified' within the meaning of Article48 (3) of the EEC Treaty, a measureaffecting an individual must: in accordance with the provisions ofArticles 8 and 9 of Directive No 64/221,state the grounds on which it is based; be based on particularly seriousgrounds, especially when the activity forwhich the national of a Member State iscriticized is the result of exercising afreedom expressly recognized by theState in which he resides or afundamental right enshrined in aninternat ional document; the exercise oftrade union freedom cannot constitute anoffence against public order or public

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security within the meaning of Article 48(3) if it takes a form which is consideredlawful in the case of nationals; in view of th e restriction on fre edomof movemen t which it involves and th econsequences which it entails for theperson concerned and members of hisfamily, in each particular case becalculated to meet the specific threat topublic order posed by the personconcerned.

III Oral procedureMr Rutili, the plaintiff in the mainaction, represented by Marcel Manville,Advocate of the Paris Bar, and theCommission of the European

Communities, represented by its LegalAdviser, Jean-Claude Sch, submittedtheir oral observations at the hearing on1 October 1975.During the hearing, the plaintiff in thema in action cla im ed th at th e decisionlimiting the territorial va lid ity of hisresidence permit is, both from thestandpoint of French law and ofCommunity law, wholly w ithou t legaljustification; from the standpoint ofCommunity law, more particularly, it isan infringement of the fundamental rightof f reedom of movement and of th eprinciple of non-discrimination.The Advo ca te -Genera l d eliv ere d hisopinion on 14 October 1975.

Law

1 By a decision of 16 December 1974, received at the Court Registry on 9 April1975, the Tribunal administratif, Paris, has referred to the Court two questionsunder Article 177 of the EEC Treaty concerning the interpretation of thereservation made in respect of public policy in Article 48 of the EEC Treatyin the light of the measures taken for implementation of that article,especially Regulation No 1612/68 of the Council of 15 October 1968 andCouncil Directive No 68/360 of the same date, on freedom of movement fo rworkers (OJ English Special Edition 1968 (II) pp. 475 and 485).

2 These questions were raised in the course of proceedings brought by anItalian national residing in the French Republic against a decision to granthim a residence permit for a national of a Member State of the EEC subjectto a prohibition on residence in certain French departments.

3 The file of the Tribunal administratif and the oral procedure before the Courthave established that the plaintiff in the main action was, in 1968, the subjectfirst of all of a deportation order and then of an order directing him to residein a particular department.

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4 On 23 October 1970 this measure was replaced by a prohibition on residencein four departments including the department in which the person concernedwas habitually resident and where his family continues to reside.

5 It is also clear from the file on the case and from information supplied to theCourt that the reasons for the measures taken against the plaintiff in the mainaction were disclosed to him in general terms during the proceedings broughtbefore the Tribunal administratif on a date subsequent to the commencementof the action, namely, 16 December 1970.

6 From information given to the Tribunal administratif by the Ministry for theInterior, which, however, is contested by the plaintiff in the main action, ittranspires that his political and trade union activities during 1967 and 1968are the subject of complaint and that his presence in the departments coveredby the decision is for this reason regarded as 'likely to disturb public policy'.

7 In order to resolve the questions of Community law raised during theproceedings concerning the principles of freedom of movement and equalityof treatment fo r workers of the Member States, the Tribunal administratifreferred two questions to the Court for the purpose of ascertaining the precisemeaning of the reservation regarding public policy contained in Article 48 ofthe Treaty.

First question8 The first question asks whether the expression 'subject to limitations justified

on grounds of public policy' in Article 48 of the Treaty concerns only thelegislative decisions which each Member State has decided to take in order tol imit within its territory the freedom of movement and residence for nationalso f other Member States or whether it also concerns individual decis ions takenin application of such legislative provisions.

9 Under Article 48 (1), freedom of movement for workers is to be securedwithin the Community.

10 Under Article 48 (2), such freedom of movement is to entail the abolition ofany discrimination based on nationality as regards employment, remunerationand other conditions of work and employment.1228


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11 Under Article 48 (3), it is to entail the right for workers to move freely withinthe territory of Member States, to stay there for the purpose of employmentand to remain there when employment has ceased.

12 Subject to any special provisions in the Treaty, Article 7 thereof contains ageneral prohibition, within the field of application of the Treaty, on anydiscrimination on grounds of nationality.

13 Nevertheless, under Article 48 (3), freedom of movement for workers, inparticular their freedom to move within the territory of Member States, maybe restricted by limitations justified on grounds of public policy, publicsecurity or public health.

14 Various implementing measures have been taken for the purpose of puttingthe above-mentioned provisions into effect, in particular Regulation No1612/68 and Counci l Directive No 68/360 on freedom of movement fo rworkers.

15 The reservation concerning public policy was laid down in Council DirectiveNo 64/221 of 25 February 1964 on the coordination of special measuresconcerning the movement and residence of foreign nationals which arejustified on grounds of public policy, public security or public health (OJ,English Special Edition 1963-1964, p. 117).

16 The effect of all these provisions, without exception, is to impose duties onMember States and it is, accordingly, for the courts to give the rules ofCommunity law which may be pleaded before them precedence over theprovisions of national law if legislative measures adopted by a Member Statein order to limit within its territory freedom of movement or residence fornationals of other Member States prove to be incompatible with any of thoseduties.

17 Inasmuch as the object of the provisions of the Treaty and of secondarylegislation is to regulate the situation of individuals and to ensure theirprotection, it is also for the national courts to examine whether individualdecisions are compatible with the relevant provisions of Community law.

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18 This applies not only to the rules prohibiting discrimination and thoseconcerning freedom of movement enshrined in Articles 7 and 48 of theTreaty and in Regulation No 1612/68, but also to the provisions of DirectiveNo 64/221, which are intended both to define the scope of the reservationconcerning public policy and to ensure certain minimal procedural safeguardsfor persons who are the subject of measures restricting their freedom ofmovement or their right of residence.

19 This conclusion is based in equal measure on due respect for the rights of thenationals of Member States, which are directly conferred by the Treaty and byRegulation No 1612/68, and the express provision in Article 3 of DirectiveNo 64/221 which requires that measures taken on grounds of public policy orof public security 'shall be based exclusively on the personal conduct of theindividual concerned'.

20 It is all the more necessary to adopt this view of the matter inasmuch asnational legislation concerned with the protection of public policy andsecurity usually reserves to the national authorities discretionary powers whichmight well escape all judicial review if the courts were unable to extend theirconsideration to individual decisions taken pursuant to the reservationcontained in Article 48 (3) of the Treaty.

21 The reply to the question referred to the Court must therefore be that theexpression 'subject to limitations justified on grounds of public policy' inArticle 48 concerns not only the legislative provisions which each MemberState has adopted to limit within its territory freedom of movement andresidence fo r nationals of other Member States but concerns also individualdecisions taken in application of such legislative provisions.

Second question

22 The second question asks what is the precise meaning to be attributed to theword 'justified' in the phrase 'subject to limitations justified on grounds ofpublic policy' in Article 48 (3) of the Treaty.

23 In that provision, the words 'limitations justified' mean that only limitationswhich fulfil the requirements of the law, including those contained in1230


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Community law, are permissible with regard, in particular, to the right ofnationals of Member States to freedom of movement and residence.

24 In this context, regard must be had both to the rules of substantive law and tothe formal or procedural rules subject to which Member States exercise thepowers reserved under Article 48 (3) in respect of public policy and publicsecurity.

25 In addition, consideration must be given to the particular issues raised inrelation to Community law by the nature of the measure complained ofbefore the Tribunal Administratif in that it consists in a prohibition onresidence limited to part of the national territory.

Justification of measures adopted on grounds ofpublic policy from the pointof view of substantive law

26 By virtue of the reservation contained in Article 48 (3), Member Statescontinue to be, in principle, free to determine the requirements of publicpolicy in the light of their national needs.

27 Nevertheless, the concept of public policy must, in the Community contextand where, in particular, it is used as a justification for derogating from thefundamental principles of equality of treatment and freedom of movement forworkers, be interpreted strictly, so that its scope cannot be determinedunilaterally by each Member State without being subject to control by theinstitutions of the Community.

28 Accordingly, restrictions cannot be imposed on the right of a national of anyMember State to enter the territory of another Member State, to stay there andto move within it unless his presence or conduct constitutes a genuine andsufficiently serious threat to public policy.

29 In this connexion Article 3 of Directive No 64/221 imposes on MemberStates the duty to base their decision on the individual circumstances of anyperson under the protection of Community law and not on generalconsiderations.

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30 Moreover, Article 2 of the same directive provides that grounds of publicpolicy shall not be put to improper use by being 'invoked to service economicends'.

31 Nor, under Article 8 of Regulation No 1612/68, which ensures equality oftreatment as regards membership of trade unions and the exercise of rightsattaching thereto, may the reservation relating to public policy be invoked ongrounds arising from the exercise of those rights.

32 Taken as a whole, these limitations placed on the powers of Member States inrespect of control of aliens are a specific manifestation of the more generalprinciple, enshrined in Articles 8, 9, 10 and 11 of the Convention for theProtection of Human Rights and Fundamental Freedoms, signed in Rome on4 November 1950 and ratified by all the Member States, and in Article 2 ofProtocol No 4 of the same Convention, signed in Strasbourg on 16 September1963, which provide, in identical terms, that no restrictions in the interests ofnational security or public safety shall be placed on the rights secured by theabove-quoted articles other than such as are necessary for the protection ofthose interests 'in a democratic society.'

Measures adopted on grounds of public policy: justification from theprocedural point of view

33 According to the third recital of the preamble to Directive No 64/221, one ofthe aims which it pursues is that 'in each Member State, nationals of otherMember States should have adequate legal remedies available to them inrespect of the decisions of the administration' in respect of measures based onthe protection of public policy.

34 Under Article 8 of the same directive, the person concerned shall, in respectof any decision affecting him, have 'the same legal remedies... as areavailable to nationals of the State concerned in respect of acts of theadministration.'

35 In default of this, the person concerned must, under Article 9, at the veryleast be able to exercise his right of defence before a competent authority1232


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which must not be the same as that which adopted the measure restricting hisf reedom.

36 Furthermore, Article 6 of the directive provides that the person concernedshall be informed of the grounds upon which the decision taken in his case isbased, unless this is contrary to the interests of the security of the State.

37 It is clear from these provisions that any person enjoying the protection ofthe provisions quoted must be entitled to a double safeguard comprisingnotification to him of the grounds on which any restrictive measure has beenadopted in his case and the availability of a right of appeal.

38 It is appropriate to state also that all steps must be taken by the MemberStates to ensure that this double safeguard is in fact available to anyoneagainst whom a restrictive measure has been adopted.

39 In particular, this requirement means that the State concerned must, whennotifying an individual of a restrictive measure adopted in his case, give him aprecise and comprehensive statement of the grounds for the decision, toenable him to take effective steps to prepare his defence.

The justification for, in particular, a prohibition on residence in part of thenational territory

40 The questions put by the Tribunal administratif were raised in connexionwith a measure prohibiting residence in a limited part of the nationalterritory.

41 In reply to a question from the Court, the Government of the FrenchRepublic stated that such measures may be taken in the case of its ownnationals either, in the case of certain criminal convictions, as an additionalpenalty, or following the declaration of a state of emergency.

42 The provisions enabling certain areas of the national territory to be prohibitedto foreign nationals are, however, based on legislative instruments specificallyconcerning them.

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43 In this connexion, the Government of the French Republic draws attention toArticle 4 of Council Directive No 64/220 of 25 February 1964 on theabolition of restrictions on movement and residence within the Communityfor nationals of Member States with regard to establishment and the provisionof services (OJ, English Special Edition 1963-1964, p. 115) which reads:'Subject to any measures taken in particular cases on grounds of public policyor public security, the right of residence shall be effective throughout theterritory of the Member State concerned.'

44 It is clear that this provision is peculiar to the directive concerned and isexclusively applicable in respect of establishment and the provision ofservices and it has not been re-enacted in the directives on freedom ofmovement for workers, in particular Directive No 68/360, which is still inforce, or, again, in Council Directive No 73/148 of 21 May 1973 concerningestablishment and the provision of services (OJ L 172, p. 14), which hasmeanwhile replaced Directive No 64/220.

45 In the Commission's view, expressed during the oral proceedings, the absenceof this provision in the directives at present applicable to employed personsor to establishment and the provision of services, does not, however, meanthat Member States have absolutely no power to impose, in respect offoreigners who are nationals of other Member States, prohibitions onresidence limited to part of the territory.

46 Right of entry into the territory of Member States and the right to stay thereand to move freely within it is defined in the Treaty by reference to the wholeterritory of these States and not by reference to its internal subdivisions.

47 The reservation contained in Article 48 (3 ) concerning the protection ofpublic policy has the same scope as the rights the exercise of which may,under that paragraph, be subject to limitations.

48 It follows that prohibitions on residence under the reservation inserted to thiseffect in Article 48 (3) may be imposed only in respect of the whole of thenational territory.1234


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49 On the other hand, in the case of partial prohibitions on residence, limited tocertain areas of the territory, persons covered by Community law must, underArticle 7 of the Treaty and within the fie ld of application of that provision, betreated on a footing of equality with the nationals of the Member Stateconcerned.

50 It follows that a Member State cannot, in the case of a national of anotherMember State covered by the provisions of the Treaty, impose prohibitions onresidence which are territorially limited except in circumstances where suchprohibitions may be imposed on its own nationals.

51 The answer to the second question must, therefore, be that an appraisal as towhether measures designed to safeguard public policy are justified must haveregard to all rules of Community law the object of which is, on the one hand,to limit the discretionary power of Member States in this respect and, on theother, to ensure that the rights of persons subject thereunder to restrictivemeasures are protected.

52 These limitations and safeguards arise, in particular, from the duty imposedon Member States to base the measures adopted exclusively on the personalconduct of the individuals concerned, to refrain from adopting any measuresin this respect which service ends unrelated to the requirements of publicpolicy or which adversely affect the exercise of trade union rights and, finally,unless this is contrary to the interests of the security of the State involved,immediately to inform any person against whom a restrictive measure hasbeen adopted of the grounds on which the decision taken is based to enablehim to make effective use of legal remedies.

53 In particular, measures restricting the right of residence which are limited topart only of the national territory may not be imposed by a Member State onnationals of other Member States who are subject to the provisions of theTreaty except in the cases and circumstances in which such measures may beapplied to nationals of the State concerned.

Costs

54 The costs incurred by the Government of the French Republic, theGovernment of the Italian Republic and the Commission of the European

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Communities, which have submitted observations to the Court, are notrecoverable.

55 As these proceedings are, in so far as the parties to the main action areconcerned, a step in the action pending before the Tribunal administratif,Paris, the decision on costs is a matter for that court.

On those grounds,THE COURTin answer to the questions referred to it by the Tribunal administratif, Paris,by judgment of 16 December 1974, hereby rules:

1. The expression 'subject to limitations justified on grounds ofpublic policy', in Article 48 concerns not only the legislativeprovisions adopted by each Member State to l im it within itsterritory freedom of movement and residence fo r nationals ofother Membe r States but concerns also individual decisionstaken in application of such legislative provisions.

2. An appraisal as to whether measures designed to safeguardpublic policy are justified must have regard to all rules ofCommunity law the object of which is, on the one hand, tol im it the discretionary power of Member States in this respectand, on the other, to ensure that the rights of persons subjectthereunder to restrictive measures are protected.These limitations and safeguards arise, in particular, from theduty imposed on Member States to base the measures adoptedexclusively on the personal conduct of the individualsconcerned; to refrain from adopting any measures in thisrespect which service ends unrelated to the requirements ofpublic policy or which adversely affect the exercise of tradeunion rights and, finally, unless this is contrary to the interestsof the security of the State involved, immediately to informany person against whom a restrictive measure has beenadopted of the grounds on which the decision taken is basedto enable him to make effective use of legal remedies.In particular, measures restricting the right of residence whichare l imited to part only of the national territory may not beimposed by a Member State on nationals of other Member

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States who are subject to the provisions of the Treaty except inthe cases and circumstances in which such measures may beapplied to nationals of the State concerned.

Lecourt Kutscher Donner Mertens de W ilm ars

Pescatore Srensen Mackenzie Stuart

Delivered in open court in Luxembourg on 28 October 1975.

A . Van Hout teRegistrar

R. LecourtPresident

OP IN ION OF MR ADVOCATE-GENERAL MAYRASDEL IVERED ON 14 OCTOBER 1975 1

Mr President,Members of the Court,

Introduction

The present case takes its place in theline of precedents introduced by the tworecent judgments of this Court of 4December 1974 in Van Duyn (Case41/74 [1974] ECR 1337) and of 26February 1975 in Bonsignore (Case 67/74[1975] ECR 297).It affords the Court an opportunity todefine more clearly the outlines of theconcept of public policy contained inArticle 48 (3) of the Treaty establishingthe European Economic Community.The Tribunal administratif, Paris, hasreferred two questions for a preliminary

ruling and in considering them theCourt will need to give an interpretationof this exception to the principle offreedom of movement fo r workers withinthe Community.

The first question asks whether theexpression 'subject to limitations justifiedon grounds of public policy' concernonly the legislative decisions which eachMember State has decided to take inorder to limit, on its territory, freedom ofmovement and of residence fo r nationalso f oth er Member States.

The second, more fundamental, questionis concerned with the actual significanceof the concept of public policy; theFrench court is in fact asking whatprecise meaning is to be attributed to theword 'justified'.

1 Translated from the French.

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