# C_2004118EN.01001701.xml

| 30.4.2004 | EN | Official Journal of the European Union | C 118/17 |
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30.4.2004

EN

Official Journal of the European Union

C 118/17

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

of 29 April 2004

in Joined Cases C-482/01 and C-493/01 (Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Georgios Orfanopoulos and Others v Land Baden-Württemberg and between Raffaele Oliveri and Land Baden-Württemberg (1)

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

(2004/C 118/30)

Language of the case: German

In Joined Cases C-482/01 and C-493/01: REFERENCE to the Court under Article 234 EC from the Verwaltungsgericht Stuttgart (Germany), for a preliminary ruling in the proceedings pending before that court between Georgios Orfanopoulos, Natascha Orfanopoulos, Melina Orfanopoulos, Sofia Orfanopoulos and Land Baden-Württemberg, and between Raffaele Oliveri and Land Baden-Württemberg - on the interpretation of Articles 39(3) EC and 9(1) of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition, 1963-1964, p. 117) (C-482/01), and of Article 39 EC and Article 3 of that directive (C-493/01) - the Court (Fifth Chamber), composed of: A. Rosas (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges; C. Stix-Hackl, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it has ruled:

| 1) | It is for the national court to determine the provisions of Community law, other than Article 18(1) EC, on which a national of a Member State such as Mr Oliveri may, if appropriate, rely in the circumstances of the proceedings which gave rise to Case C-493/01. In that regard, it must, in particular, establish whether the person concerned comes within the scope of Article 39 EC, either as a worker, or as a person otherwise entitled, under the provisions of the secondary legislation adopted to give effect to that article, to freedom of movement, or whether he may rely on other provisions of Community law, such as Council Directive 90/364/EEC of 28 June 1990 on the right of residence, or Article 49 EC, which applies particularly to recipients of services. |
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1)

It is for the national court to determine the provisions of Community law, other than Article 18(1) EC, on which a national of a Member State such as Mr Oliveri may, if appropriate, rely in the circumstances of the proceedings which gave rise to Case C-493/01. In that regard, it must, in particular, establish whether the person concerned comes within the scope of Article 39 EC, either as a worker, or as a person otherwise entitled, under the provisions of the secondary legislation adopted to give effect to that article, to freedom of movement, or whether he may rely on other provisions of Community law, such as Council Directive 90/364/EEC of 28 June 1990 on the right of residence, or Article 49 EC, which applies particularly to recipients of services.

| 2) | Article 3 of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, precludes national legislation which requires national authorities to expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years or to a custodial sentence for an intentional offence against the Law on narcotics, where the sentence has not been suspended. |
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2)

Article 3 of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, precludes national legislation which requires national authorities to expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years or to a custodial sentence for an intentional offence against the Law on narcotics, where the sentence has not been suspended.

| 3) | Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constituted to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court. |
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3)

Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constituted to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court.

| 4) | Article 39 EC and Article 3 of Directive 64/221 preclude legislation and national practices whereby a national of another Member State who has been sentenced to a certain penalty for specific offences is ordered to be expelled, in spite of family considerations being taken into account, based on the presumption that that person must be expelled, without proper account being taken of his personal conduct or of the danger which he represents for public policy. |
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4)

Article 39 EC and Article 3 of Directive 64/221 preclude legislation and national practices whereby a national of another Member State who has been sentenced to a certain penalty for specific offences is ordered to be expelled, in spite of family considerations being taken into account, based on the presumption that that person must be expelled, without proper account being taken of his personal conduct or of the danger which he represents for public policy.

| 5) | Article 39 EC and Directive 64/221 do not preclude the expulsion of a national of another Member State who has been sentenced to a certain penalty for specific offences and who, on the one hand, constitutes a present threat to the requirements of public policy and, on the other hand, has resided for many years in the host Member State and can plead family circumstances against that expulsion, provided that the assessment made on a case by case basis by the national authorities of where the fair balance lies between the legitimate interests at issue is made in compliance with the general principles of Community law and, in particular, by taking proper account of respect for fundamental rights, such as the protection of family life. |
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5)

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

| 6) | Article 9(1) of Directive 64/221 precludes a provision of a Member State which provides neither a complaints procedure nor an appeal, comprising also an examination of expediency, against a decision to expel a national of another Member State taken by an administrative authority, where no authority independent of that administration has been put in place. It is for the national court to establish whether courts such as the Verwaltungsgerichte are able to examine the expediency of expulsion orders. |
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6)

Article 9(1) of Directive 64/221 precludes a provision of a Member State which provides neither a complaints procedure nor an appeal, comprising also an examination of expediency, against a decision to expel a national of another Member State taken by an administrative authority, where no authority independent of that administration has been put in place. It is for the national court to establish whether courts such as the Verwaltungsgerichte are able to examine the expediency of expulsion orders.

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(1)  OJ C 56 of 2.3.2002

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