Cazul Rutili - Concluzii

7/27/2019 Cazul Rutili - Concluzii

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RUT IL I v MINISTER FOR THE INTER IOR

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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Before beginning to examine thesequestions, let me recall the facts whichgave rise to the main action.Roland Rutili, born in France of anItalian father and marr ied to aFrenchwoman who is th e mother of histhree children, has, it appears, resided onFrench territory ever since his birth, buthas nevertheless retained his nationalityof origin jure sanguinis.He and his family resided inAudun-le-Tiche in the department ofMeurthe et Moselle where he was in paidemployment He was the holder of aprivileged resident's permit.Some weeks after the events whichoccurred in France during May 1968, adeportation order was made against him.The decision was not carr ied into effect,in all likelihood because, very shortlyafterwards, it was replaced by an order toreside in a department in central France,which measure was itself revoked inNovember 1968.

The documents on th e file do notdisclose what kind of residence permitwas supplied to him after that period.At all events his situation was finallysettled on 23 October 1970 by the grantof a residence card of the type which,under the French Decree of 5 January1970, is issued to foreigners who arenationals of Member States of theCommunity. This instrument was madein application of the Communitydec is ions on th e abolit ion of restrictionson movement and residence of suchnationals and, in particular of CouncilDirective No 68/360, which is concernedwith workers and their families.

Under Article 6 of the decree, theseresidence permits 'shall be validthroughout French territory unlessotherw ise decided in an individual caseby the Minister for the Interior ongrounds of public policy'.

This exception empowers the Minister tolimit the territorial validity of the cardissued to a national of a Member State bywithholding the right of residence incertain administrative areas.

A restriction of this nature was imposedon M r Rutil i . The card issued to h improhibited him from residing in theLorraine departments of Moselle,Meurthe et Moselle, Meuse and Vosges.

Mr Rutili brought an appeal against theMinister's decision before the Tribunaladministratif, Paris, on the ground that itwas ultra vires. It was only through thestatements submitted on behalf of theMinister during the written procedurethat the plaintiff in the main actionbecame aware of the grounds for therestrictive measure taken in his case.Three facts were alleged by theAdministrat ion: Mr Rutili participated in the election

campaign for the 1967 Parliamentaryelections; he took part in subversive activity

which occurred during the events ofMay 1968;

finally, he played an active part in apolitical demonstration during thenational 14 July celebrations atAudun-le-Tiche in 1968.

Before the Tribunal administratif, theapplicant did not rely solely onsubmissions based on the illegality of thecontested decision from the viewpoint ofnational law, both as regards theprocedure followed by the administrativeauthorities, and as regards the accuracy insubstance of the facts alleged against himand their legal definition. He alsoclaimed the benefit of the personal rightsconferred upon him by the provisions ofthe Treaty of Rome and the implementing measures issued thereunderguaranteeing freedom of movement andthe right of residence for workers withinthe Community.What are these provisions?

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They have their origin in Article 48 ofthe Treaty, which sets forth the principleof freedom of movement fo r workers andis designed to ensure that it is beingapplied by the end of the transitionalperiod. That article imposes on theMember States a precise andunconditional obligation, the dischargeof which requires no implementinglegislation, either Community ornational. It is directly applicable notwithstanding the reservation contained inparagraph (3), concerning limitationsjustified on grounds of public policy.This was expressly decided in thejudgment in the Van Duyn case which,on this point, confirmed the judgment inCommission v French Republic of 4 April1974 (Case 167/73 [1973] ECR 371).

Although, in fact, every Member Statemay avail itself of the reservation relatingto public policy, the legality of itsapplication is subject to review by thecourts. In consequence, the fact that thisexception, which is limited and must bestrictly interpreted, exists, does notprevent individuals from asking thecourts to uphold the rights conferredupon them by Article 48 of the Treaty,which national courts must protect.Furthermore, the principle of freedom ofmovement has been expounded andelaborated by Council directives, some ofwhich will apply in the present case.In view of the information suppliedduring the oral procedure by therepresentative of the Commission,among those decisions the followingshould be borne in mind.

The first is Directive No 64/221 of 25February 1964 on the co-ordination ofspecial measures concerning themovement and residence of foreignnationals which are justified on groundsof public policy, public security or publichealth.

That instrument will be familiar to youbecause its interpretation claimed yourattention when you were considering theVan Duyn and Bonsignore cases. Withinits ambit come not only the employedworkers referred to in A rtic le 48 but alsoindustrialists, traders, farmers andmembers of the professions covered byArticle 52 on the right of establishment.Above all, Article 3 (1) of the Directivewill call for our attention today. Itprovides as follows: 'Measures taken ongrounds of public policy or of publicsecurity shall be based exclusively on thepersonal conduct of the individualconcerned'. This provision, which thisCourt has recognized as having directeffect, limits the discretionary powerswhich national law normally confersupon the competent authoritiesresponsible for control of aliens; itprohibits them from taking into accountany grounds other than those based onpersonal conduct.

This provision is conclusive enough initself to answer the first question referredby the Tribunal administratif, Paris.Articles 6, 8 and 9 of the same directivealso need to be considered inasmuch asthe administrative procedure whereby, ina Member State, measures restrictingfreedom of movement and residence maybe adopted affects the legality of suchmeasures in terms of Community law.In fact, Article 6 imposes on the nationalauthorities a duty to inform every personconcerned of the grounds of publicpolicy on which the decision in his caseis based, unless it is contrary to theinterests of the security of the State.Secondly, under Articles 8 and 9 of thedirective, the legal guarantees to whichthese measures must be subject constitutean essential factor in the appraisal of theuse, whether justified or not, which thenational authorities are called upon tomake of the reservation relating to publicpolicy. In fact, in order to make effectiveuse of the personal rights conferred on

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them by Article 48 of the Treaty, thoseconcerned must be enabled to makeeffective use of their means of defencebefore the administration has taken arestr ic t ive decis ion in their case.

Finally, directives have been adoptedspecifically concerning only themovement and residence of workers ofth e Member States and their familieswithin the Community. In view of thedevelopment which characterized thegradual abolition of restrictions onfreedom of movement and the right ofresidence on the territory of MemberStates, it was natural fo r the Council toproceed by progressive stages inaccordance with the provisions of Article49 of the Treaty. The first directive of 16August 1961 was accordingly replaced bythat of 25 March 1964 (No 64/240)which in turn was replaced by DirectiveNo 68/360 of 15 October 1968, whichapplied at the time when Mr Rutili wasissued with the residence permit of anational of a Member State and is,moreover, still in force. One of theprovisions of this directive has a veryspecial relevance to the answer whichmust be given to the second questionfrom the national court. I am referring toArticle 6 (1) (a), under which theresidence permit (of a national of aMember State of the Community) 'mustbe valid throughout the territory of theMember State which issued it'.

Inasmuch as that provision contains noreference to the power of the nationalauthorities to restrict th e territorialvalidity of a residence permit, should notthis be construed as prohibiting theauthorit ies in th e Member States fromlaying down a restriction of this kind? Oris not Article 48, standing alone,intended to ensure for Communityworkers freedom of movement on theterritory of all Member States on thesame conditions as fo r nationals?

These are the provisions theinterpretation of which will enable a

helpful answer to be given to the courtmaking the reference.

I First questionWith a view to ensuring that the twobasic principles laid down in Article 48are effectively realized, namely: freedom of m ovem ent fo r workers

within the Community;and

the abolition of any discriminationbased on nationality between workersof the Member States as regardsemployment, remuneration and otherconditions of work and employment,

the authors of the Treaty empowered theCouncil, by means of Article 49, to usetw o different me thod s: d ire ctiv es orregulations.The conditions regarding eligibility foremployment and the conditions of workand employment, whether as regardsremuneration, dismissal or reinstatement,and the conditions relating to enjoymentof social and tax advantages on the basisof equality with nationals, have been laiddown by means of regulations. At presentthey are contained in Regulation (EEC)No 1612/68 of the Council of 15October 1968 the provisions of whichare, under Article 189 of the Treaty,binding and directly applicable in eachof the Member States without theintervention of any kind of domesticlegislation.On the other hand, the Council hasworked by means of directives withregard to the gradual abolition ofrestrictions on th e movement andresidence of workers and also inharmonizing particular measures forforeigners based on grounds of publicpolicy.The choice of method is understandable;the object was to harmonize andco-ordinate the legislative systems of theMember States in a field where, owing to

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the existence of the reservation in respectof public policy, they retained a certaindegree of discretion which is, however,limited by Community rules.But, as we have seen, use of thisprocedure in no way precludes the directapplicability of certain provisions in thedirectives in so far as they imposeobligations on the States which aresufficiently precise, complete anduncondit ional .

Nevertheless, the national authoritiestook the view that they should adapttheir national law and they adoptedlegislative measures to apply thosedirectives.

This gave rise in France to the Decree of5 January 1970 governing the conditionsof entry and residence on Frenchterritory of nationals of Member States ofthe European Economic Communitywho avail them selves of th e freemovement of persons and services.But this does not deprive nationals,particularly workers, of the right to askthe national courts to uphold theindividual rights conferred upon them bythe provisions of Community directiveswhich have direct effect.

This situation has two consequences:

1. In cases where Member States adoptlegislative measures of general andimpersonal application which are foundto be incompatible with the obligationsimposed upon them by the directives, itis fo r the national courts, if need be afterreferring the matter for a preliminaryruling, to give those directly applicableCommunity rules precedence over theprovisions of national law.In this sense there can be no doubt thatthe expression 'subject to limitationsjustified on grounds of public policy', asclarified by the implementing provisionsadopted in the form of directives,concerns the legislative measures which

each State may have taken to limit,within its territory, freedom of movementand residence for migrant workers.2. But this expression also concerns anyindividual decision of such a nature as toinfringe the personal rights of any ofthose workers, whether by way of arefusal of entry to the territory of theMember State or deportation measure, orfinally, a restriction placed on hisfreedom of movement and on his choiceof place of residence within that territory.There is no doubt that th is so lution isthe inescapable effect of Article 3 (1) ofDirective No 64/221, which implies notonly that the national authorities mustcarry out a special examination in eachparticular case of the personal conduct ofthe worker concerned but also requiresthat the only grounds of public policyrelied upon to justify such a decisionshall be based solely on that conduct, tothe exclusion of al l other considerations,whether economic (as mentioned inArticle 2 (2) of the Directive) or, as theCourt ruled in its judgment in theBonsignore case, of a 'general' preventivenature.

The reply to the first question musttherefore be in th e affirmative.

II Second questionIn approaching the examination of thesecond question the reasoning used bythis Court in the Van Duyn case mustbe recalled in order to place the conceptof public policy in the Communitycontext.

This Court held that that concept, whichwas incorporated into Article 49 of theTreaty as a justification for derogatingfrom the fundamental principle offreedom of movement fo r workers, mustbe interpreted strictly. Its scope cannotbe determined unilaterally by eachMember State without being subject to

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control by the institutions of theCommunity.This ruling corresponds to the need foruniform application of Community lawand implies that an attempt is beingmade to define the meaning of theconcept according to that requirement.Nevertheless, to repeat the words of thejudgment in that case, 'the particularcircumstances justifying recourse to theconcept of public policy may vary fromone country to another and from oneperiod to another, and it is thereforenecessary in this matter to allow thecompetent national authorities an area ofdiscretion within the limits imposed bythe Treaty'.In other words it is a question ofreconciling two different requirements: that of the Community whichconsists in achieving freedom of

movement fo r workers; and that of Member States, which isconcerned with the main te nance ofpublic policy within their territory.

Since, in my view, it is impossible toprovide an exclusively Communitydefinition of the concept of public policywhich is still in many respects a relativematter, it seems to me more realistic toinquire precisely what limits the Treatyand the directives adopted inimplementation thereof have set on thepowers of the national authorities.Some arise from the formal andprocedural conditions under which thosepowers must be exercised.Others go to the root of the problem:once th e authoritie s of Member Stateshave permitted a worker to reside in thenational territory, may they neverthelessrestrict his right to move about freely? Ifthey wish to restrict th is freedom, arethey not obliged to observe the principleof equal treatment with nationals?

As to the safeguards which mustsurround all decisions which restrictfreedom of movement or the right ofresidence, Directive No 64/221 contains,as I have said, an important provisionwhich indirectly but clearly limits thepowers of the national authorities in thatit compels them to inform the personconcerned of the grounds of publicpolicy upon which the decision is basedunless this is contrary to the security ofthe State.

With this single reservation, all decisionsof this kind, even if they amount to nomore than a prohibition on residence inpart of the national territory, mustcontain a precise statement of thegrounds relied upon by the Administration. It would certainly not besu ff ic ien t for th e statement of reasons tobe confined to a simple general referenceto grounds of public policy. The factsalleged against the worker relating to hispersonal conduct must be clearlyspecified. It is also essential for theperson concerned to be informed ofthese facts before the decision is put intoeffect, in other words, at the latest whenit is communica ted to h im.

Moreover, although Articles 7, 8 and 9 ofthe directive refer only to the refusal toissue or renew a residence permit or todecisions ordering expulsion from theterritory, in other words deportation, itappears to me, on the assumption at leastthat a measure containing a territoriallimitation on the right of residence couldbe lawfully taken against a worker, thatthe requirement regarding notification ofthe facts on which th e measure is basedis nevertheless necessary in order toenable the person concerned to preparean effective defence.

This requirement is justified, both wherethe opinion of a consultative body whichis independent of the authoritycompetent to take the decision isnecessary in the circumstances laid downin Article 9 of the directive, before theadoption of a decision restricting the

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right of entry or of residence and, afortiori if an appeal to a court of lawwhich is available to Community workersjust as to nationals is lodged by theindividual concerned.

The Administrat ion cannot leave th eplaintif f in ignorance of the grounds forthe decision taken in his case anddisclose them only during theproceedings before the court.The object of these various provisions,the direct effect of which is in my viewscarcely open to doubt, is to provideconsiderable safeguards for Communityworkers.

But we must examine the provisions ingreater depth to inquire whether, in thelight of the objectives of Article 48 of theTreaty, Member States may, on groundsof public policy, validly deny aCommunity national the right ofresidence in part of their territory.As the Commission's representativeexplained, the Council considered thatthe right of residence must extend to thewhole of the territory of each of thoseStates. A survey of the directives issued inturn establishes that Article 4 of th eDirective of 25 February 1964 (No64/220/EEC), which was the firstenactment concerning movement andresidence of self-employed persons inconnexion with establishment and theprovision of services, alone empoweredthe national authorities to derogate, bymeans of individual decisions, from theprinciple that the residence permit isvalid for the whole of the territory of theMember State which issued it Thisprovision was not re-enacted in DecisionNo 73/148 which replaced the originaldirective.

It does not appear in either of the twoDirectives, No 64/240 and No 68/360,the second of which is still in force, onthe abolition of re striction s on themovement and residence of workers.

Finally the directive on the co-ordinationof special measures which are justified ongrounds of public policy for foreignnationals refers only to refusals to issueor renew residence permits and todeportation.Should one conclude from reading theseenactments in conjunction, that norestriction affecting territorial validitymay any longer be placed on residencepermits issued to Community nationals?I should be reluctant to give anaffirmative answer because of the factthat each of these enactments contains ageneral statement of principle wherebyMember States may derogate from theprovisions of the directives only ongrounds of public policy, public securityor public health, a principle which maybe taken to cover any restriction,whatever its scope or character, providedthat it is lawfully based on the concept ofpublic policy.Moreover, s ince the national authoritiesare entitled to rely upon the reservationrelating to public policy to refuse certainCommunity workers entry to theirterritory or to deport those who havebeen permitted to reside there, but whosepersonal conduct justifies their expulsion,would it not, therefore, be unreasonableto deprive Member States of the right totake, in the case of those workers, lessdrastic measures which do no more thanprohibit residence in part of theirterritory?I shall not, accordingly, rely on theargument based on the successivewording of the directives, but on theconsiderations, which are far moreimportant, which I feel able to deducefrom th e scheme of Article 48 and th eobjectives of the principle of freedom ofmovement.

It seems to me in fact that, once a workerhas been permitted to enter the territoryof a Member State, his right of residenceis inseparably linked with that of being

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employed there and that the exercise ofthat right necessarily includes the rightto establish his residence in any place inthe territory of the host State under thesame condit ions as its nationals.

The principle of equality of treatment,which is the basic principle underlyingRegulation No 1612/68 as regards botheligibility for employment andconditions of work and employment, isin my view applicable to the right ofresidence.

Although the possibility remains thatwhen, by his personal conduct, aCommunity worker has created or isliable to create a sufficiently seriousdisturbance of the peace, he can asultima ratio be deported and while it istrue that the rule against discriminationbased on nationality does not, in thatcontext, apply, since because of a generalprinciple of international law, the Statescannot deprive their own nationals of theright to live in their territory, this doesnot apply to a prohibition on residence.I recognize of course that in theconstruct ion of Article 48 th e condit ionrelating to public policy inserted at thebeginning of paragraph (3) of that articleas a justification for derogating both fromthe right of workers to 'accept offers ofemployment actually made' and from theright to move freely within the territory

of Member States and to stay there forthe purpose of employment. But, underArticle 48 (2) the exercise of these rights,which are indivisible, precludes anydiscrimination based on nationality.From this I conclude that a measureprohibiting residence in part of theterritory may only be taken in anyMember State against a worker who is anational of another Member State incircumstances in which such a decisionmay be taken against a national.In answer to questions put by the Court,the French Government stated thatunder Article 44 of th e Penal Code aprohibition on residence is an additionalpenalty which may be imposed only bythe court which passes sentence. Apartfrom the very exceptional case of a stateof emergency, for which provision ismade under the Law of 3 April 1955,such a measure cannot be adopted by theadministrative authority.The rule of equality of treatment withn atio na ls sh ou ld th erefore lead to theacknowledgement that Communityworkers who are permitted to reside inFrench territory may only be the subjectof a prohibition on residence in certainplaces or departments as an additionalpenalty under criminal law or when astate of emergency prevails.

In my opinion you should rule that:1. the expression 'limitations justified on grounds of public policy' used in

Article 48 (3 ) of the Treaty establishing the European EconomicCommunity concerns both individual decisions restricting freedom ofmovement and of residence fo r workers who are nationals of MemberStates and legislative provisions adopted in this field by the nationalauthorities;

2. a decision the object of which is to prohibit such a worker from residing inpart of the territory of the host State may, in view of the objectives of

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Article 48 of the Treaty and, above all, of the principle that there must beno discrimination based on nationality, be justified only if adopted underconditions relating to substance and procedure which could justifyadoption of a measure prohibiting residence against a national of thatState.

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