Judgment;Summary — ECLI:EU:C:2020:629
Date: 2020-09-03
Language of the case: Spanish
Court formation: Fourth Chamber
Subject matter: Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-503/19 — 1 
Case C-503/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
2 July 2019 
Referring court: 
Juzgado de lo Contencioso-Administrativo No 17 de Barcelona 
(Administrative Court No 17, Barcelona, Spain) 
Date of the decision to refer: 
7 June 2019 
Appellant: 
UQ 
Respondent: 
Subdelegación del Gobierno en Barcelona (Government Office, 
Barcelona) 
  
Subject matter of the main proceedings 
The main proceedings concern the rejection of an application by a third-country 
national for long-term resident status due to the existence of a criminal record. 
Purpose and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling is based on Article 267 TFEU. 
In essence, the purpose of the request for a preliminary ruling is to determine 
whether the interpretation by the Tribunal Supremo (Supreme Court) of national 
legislation on the granting of long-term resident status, under which the existence 
of a criminal record is sufficient grounds for refusing that status without any 
requirement to take other factors into account, is compatible with Council 
Directive 2003/109/EC of 25 November 2003 concerning the status of third-
country nationals who are long-term residents and, in particular, with Article 6(1) 
and Article 17. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-503/19 
 
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The referring court also asks whether that directive precludes a provision of 
national law that allows such status to be refused on public policy or public 
security grounds without establishing any assessment criteria, when the grounds 
for refusal in question are not laid down clearly and transparently in the national 
legislation. 
Questions referred 
‘1. Whether an interpretation by the national courts under which the existence 
of any form of criminal record is sufficient grounds for refusing long-term 
resident status is compliant with Article 6(1) and Article 17 of Directive 
2003/109. 
2. Whether, in addition to the existence of a criminal record, the national courts 
should take account of other factors, such as the severity and length of the 
sentence, the danger the applicant represents to society, the duration of the 
applicant’s prior legal residence and the links he has formed with the country, and 
make an assessment that takes all these elements into account. 
3. Whether Article 6(1) of the directive should be interpreted as precluding a 
rule of national law that allows long-term resident status under Article 4 to be 
refused on public policy or public security grounds without establishing the 
assessment criteria included in Article 6(1) and Article 17. 
4. Whether Article 6(1) and Article 17 of Directive 2003/109 should be 
interpreted as meaning that, under the case-law established by the Court of Justice 
that directives have vertical direct effect, the national court has authority to apply 
the content of Article 6(1) and Article 17 directly, and may do so in order to 
assess a criminal record, having regard to the gravity of the offence, the length of 
the sentence, and the danger represented by the applicant. 
5. Whether EU law, in particular the right to obtain long-term resident status, 
and the principles of clarity, transparency and intelligibility, should be interpreted 
as precluding an interpretation by the Spanish courts of Articles 147 to 149 of 
Royal Decree 557/2011 and Article 32 of Organic Law 4/2000 under which long-
term resident status may be refused on public policy and public security grounds, 
even though those provisions do not set out clearly and transparently that these 
shall be grounds for refusal. 
6. Whether a provision of national law and its interpretation by the courts that 
hinder access to long-term resident status and encourage temporary residence are 
compliant with the principle that Directive 2003/19 must have practical effect, and 
with Article 6(1) in particular.’ 
SUBDELEGACIÓN DEL GOBIERNO EN BARCELONA 
 
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Provisions of EU law cited 
Provisions of EU law 
Council Directive 2003/109/EC of 25 November 2003 concerning the status of 
third-country nationals who are long-term residents (‘Directive 2003/109’): 
recitals 4, 6, 8, 10, 16 and 21, Articles 4(1), 6(1) and 7(3) and Article 17. 
EU case-law 
Judgment of 26 April 2012, Commission v Netherlands, C-508/10, 
EU:C:2012:243: paragraphs 65 and 75. 
Judgment of 18 October 2012, Staatssecretaris van Justitie v Mangat Singh, 
C-502/10, EU:C:2012:636: paragraphs 44 and 45. 
Judgment of 28 April 2011, El Dridi, C-61/11, ECR p. 13015: paragraph 55. 
Provisions of national law cited 
Provisions of national law 
Ley Orgánica 4/2000 de 11 de enero sobre derechos y libertades de los extranjeros 
en España y su integración social (Organic Law 4/2000 of 11 January 2000 on the 
rights and freedoms of foreign nationals in Spain and their social integration; ‘OL 
4/2000’): Article 32(1) and (2). 
Royal Decree 557/2011 of 20 April 2011 approving the Reglamento de la Ley 
Orgánica 4/2000, sobre derechos y libertades de los extranjeros en España y su 
integración social (Regulations made under Organic Law 4/2000 on the rights and 
freedoms of foreign nationals in Spain and their social integration) as amended by 
Organic Law 2/2009 (‘RD 557/2011’): Article 149(2)(f). 
National case-law 
Judgment of the Supreme Court of 5 July 2018 (1150/2018), which held that the 
mere existence of a criminal record automatically leads to refusal of long-term 
resident status. 
Judgment of the Tribunal Constitucional (Constitutional Court) 201/2016 of 
28 November 2016, which analyses the relative weight given to various 
circumstances in cases involving expulsion for having committed an offence. 
Judgments of the Constitutional Court 33/1982, 6/1983, 19/1985, 59/1990 and 
46/2001, in which the Constitutional Court applies a restricted view of the notion 
of public policy. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-503/19 
 
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Judgment of the Tribunal Superior de Justicia del País Vasco (High Court of 
Justice, Basque Country) of 25 February 2010, which held that the existence of a 
criminal record cannot be deemed grounds for refusing authorisation for 
permanent residence if there are no other circumstances concerning the applicant 
that have public policy or public security implications. 
Brief summary of the facts and the main proceedings 
1 In a judgment dated 10 November 2014, UQ was found guilty of driving under the 
influence of alcohol on 2 November 2014. 
2 He was sentenced to 40 days’ community service, which was completed on 
18 April 2018, and banned from driving motor vehicles and motor cycles for 8 
months and 2 days, with the latter penalty having been served and completed on 
10 November 2015. His criminal conviction remains unspent. 
3 On 2 February 2018 UQ applied to the Oficina de Extranjeros de Barcelona 
(Immigration Office, Barcelona) for long-term resident status. The Immigration 
Office comes under the auspices of the Subdelegación del Gobierno (Spanish 
Government Office) Barcelona.  
4 When he submitted his application, UQ had already been legally resident for at 
least 5 years under a temporary residence permit. During that time he worked 
legally and complied with his Social Security obligations and the requirements of 
other government bodies. The referring court believes it is highly likely that his 
period of residence is longer, because in this type of case there has usually been a 
previous period of illegal residence which varies in duration. 
5 In a decision dated 27 March 2018, the authorities rejected the application due to 
the existence of a criminal record. 
6 UQ submitted an application for review of the decision; the review dismissed his 
appeal on 6 July 2018. 
7 He brought an action in administrative proceedings against that dismissal, which 
gives rise to this reference for a preliminary ruling. 
Main arguments of the parties to the main proceedings 
8 Lawyers acting for the authorities oppose UQ’s appeal and request that it be 
dismissed. 
9 Before giving judgment, the court issued an order in which it raised the possibility 
of referring the matter to the Court of Justice of the European Union for a 
preliminary ruling. The appellant agreed that a reference would be appropriate. 
Counsel for the Spanish Government opposed a reference, arguing that the matter 
was an ‘acte clair’. 
SUBDELEGACIÓN DEL GOBIERNO EN BARCELONA 
 
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Brief summary of the basis for the request for a preliminary ruling 
REGULATION UNDER SPANISH LAW 
10 The Spanish immigration system comprises a tiered set of residence situations 
which usually starts with the grant of a temporary residence permit for a 
maximum period of 5 years, after which long-term resident status may be 
obtained, which must be renewed every 5 years. 
11 Article 32 of OL 4/2000 establishes that persons who have been temporarily 
resident in Spain for a continuous period of 5 years and who satisfy the conditions 
laid down in regulations are to be entitled to long-term resident status. 
Article 149(2)(f) of RD 557/2011 stipulates that applications for long-term 
resident status must be accompanied by a criminal records certificate, which must 
not contain any convictions for offences under Spanish law.  
DISCREPANCY IN THE CASE-LAW AND THE SUPREME COURT 
JUDGMENT OF 5 JULY 2018 (1150/2018) 
12 The legislation described above has given rise to contradictory interpretations by 
the Spanish courts. In essence, four different positions have been adopted: under a 
mechanistic approach, authorisation is automatically refused where the applicant 
has a criminal record; under an evaluative approach, the applicant’s circumstances 
are examined on a case-by-case basis, with an assessment being made of the 
relevant facts and the individual’s convictions in order to determine whether, at 
the time of the authorisation, these constitute a genuine, current threat that is 
sufficiently serious and affects a fundamental interest of society; others have held 
that there is no need to examine an applicant’s criminal record, on the grounds 
that it is not a requirement for authorisation; lastly, others have looked directly to 
the provisions of Directive 2003/109/EC in order to decide disputes in this area 
and have ignored the national legislation. 
13 The Supreme Court gave a ruling on this question in judgment 1150/2018 of 
5 July 2018, ruling that the mere existence of a criminal record meant that an 
application for long-term resident status should automatically be rejected. 
14 The Supreme Court held that the fact that Article 149(2)(f) of RD 557/2011 
requires the submission of a criminal records certificate which records any 
convictions for offences under Spanish law means that it is a requirement that the 
individual should not have a criminal record. It held that it was illogical for the 
absence of a criminal record to be a condition for temporary resident status while 
there was no such requirement in order to be granted a more advantageous status. 
It also held that this interpretation was not contrary to Directive 2003/109, 
concluding that third-country nationals who wished to obtain and retain long-term 
resident status should not constitute a threat to public policy or public security, 
and that the existence of a criminal record could constitute such a threat. The 
Supreme Court noted, basing its opinion on the case-law of the Constitutional 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-503/19 
 
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Court and the wording of the provisions on the expulsion of long-term residents, 
that while in the case of expulsion there is a requirement to evaluate a series of 
circumstances, there is no express requirement for such an evaluation in the case 
of an application for long-term resident status, and it held that it was proportionate 
to impose more stringent conditions and requirements on individuals seeking to 
obtain long-term resident status than when expelling a foreign national who 
already had that status. 
COMMENTS BY THE REFERRING COURT 
15 The referring court considers that there is clearly friction between Directive 
2003/109 and the Spanish legislation, which has been highlighted in the Supreme 
Court’s interpretation of the Spanish legislation in the aforementioned judgment 
1150/2018. 
16 In its view, Directive 2003/109 seeks to establish a system of enhanced protection 
for third-country nationals who can demonstrate close links as the result of a 
continuous 5-year period of residence. Article 6 of the directive sets out the 
circumstances in which long-term resident status may be refused on grounds of 
two undefined legal concepts, namely public policy and public security, having 
regard to the severity or nature of the offence that is contrary to those legal 
concepts. In the view of the referring court, the directive does not allow Member 
States any leeway to depart from those criteria when implementing it. 
17 The first issue raised by the Spanish legislation and the interpretation placed on it 
by the Supreme Court is whether the concepts of public policy and public security 
that have been enshrined over time in the case-law of the Spanish courts are 
sufficiently constrained to enable the assessment required by Article 6 of the 
directive to be performed. 
18 The Supreme Court has repeatedly held that it is not enough simply to cite public 
policy grounds because, given that this legal concept is undefined, proof of the 
specific public policy issues involved must be provided. The Constitutional Court 
too has always adopted a restricted interpretation of the concept of public policy. 
The referring court is therefore surprised that the Supreme Court considers that the 
same concept can be treated as being so broad that it prevents authorisation from 
being granted where the applicant is guilty of any conduct classified as an offence 
under the Criminal Code. 
19 In the view of the referring court, Directive 2003/109 quite clearly establishes that 
the main criterion for obtaining long-term resident status is temporal, that is, the 
duration of residence in the State in question; and it also establishes that such 
status can be refused on public policy or public security grounds — taking into 
account the severity or nature of the offence that is contrary to public policy or 
public security and the danger posed to these concepts by the individual 
concerned; moreover, it is clear from the preamble that the concept of ‘public 
policy’ can cover a conviction for a serious offence. All of these considerations 
SUBDELEGACIÓN DEL GOBIERNO EN BARCELONA 
 
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lead to the conclusion that the directive is asking us to carry out an assessment of 
the applicant’s circumstances on a case-by-case basis and to use that assessment 
as the basis for arriving at a concrete conclusion as to whether or not the applicant 
constitutes a threat to society. That case-by-case assessment must take account of 
various elements, namely the severity or type of offence committed, the danger 
that it represents, the duration of residence and the applicant’s links with the 
country. 
20 However, if one applies the automatic criterion advocated by the Supreme Court, 
long-term resident status must be refused where the applicant has a criminal 
record; where there is no criminal record, the other factors must be examined. 
21 It must be borne in mind that the Spanish Criminal Code categorises offences and 
sentences according to their severity, classifying them as serious, less serious and 
minor. Since the reforms introduced by Organic Law 1/2015 of 30 March 2015, 
which amended Organic Law 10/1995 of 23 November 1995 on the Criminal 
Code, very minor offences have been classified as crimes that must be recorded in 
the Registro Central de Penados y Rebeldes (Central Register of Offenders and 
Defaulters). This means that the offender is recorded as having a criminal record 
for at least 6 months following completion of the sentence. 
22 The referring court considers it odd that, under the administrative procedure, the 
criminal classification is not taken into account, and that the same treatment is 
accorded to situations that are essentially different, not only in terms of the 
classification of offences described above, but also because the personal 
circumstances and length of residence in our country of the foreign nationals 
concerned may be completely different and may therefore merit different 
assessments. 
23 While it is true that the concept of ‘public policy and security’ is not a closed 
concept and that each State is therefore free to adopt a more or less extensive 
approach, as it sees fit, the Supreme Court’s interpretation of the provisions in 
Article 149(2)(f) of RD 557/2011, described above, may not be consistent with 
Article 6(1) and Article 17 of Directive 2003/109, since it does not allow for an 
assessment of the severity of the offence and of whether the individual in question 
represents a threat to public policy or public security. In the view of the referring 
court, an approach that automatically assumes that a single previous conviction 
inevitably implies the existence of such a threat to public policy or public security 
is overly formalist and too sweeping.  
24 A second issue raised by the Spanish legislation and the way in which it has been 
interpreted by the Spanish courts is as follows: under Article 13 of Directive 
2003/109 Member States may introduce more favourable terms, provided that 
these do not confer a right of residence in other Member States. But does the 
directive allow Member States to introduce less favourable conditions, which exist 
alongside long-term resident status and do not offer the benefits of that status, by 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-503/19 
 
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imposing more stringent conditions on applicants for long-term resident status 
than on applicants for temporary resident status? 
25 One of the basic tenets of Supreme Court judgment 1150/2018 was that, for the 
Supreme Court, more stringent conditions and requirements must be imposed on 
applications for long-term resident status than on the expulsion of a foreign 
national who has already acquired long-term resident status. 
26 It should be noted that an individual who has temporary authorisation to reside in 
Spain may renew his temporary residence permit and obtain a new temporary 
residence authorisation even if he has a criminal record. Under Article 31 of OL 
4/2000, the mere existence of a criminal record is not grounds for refusing to 
renew a temporary residence permit: instead, where someone has a criminal 
record, the circumstances must be assessed. 
27 The effect of the above and of the Supreme Court’s interpretation is that a 
temporary resident who can demonstrate 5 years’ continuous residence in Spain 
and who has some form of criminal record has more chance of obtaining a new 
temporary residence permit for a further 2 years than of obtaining long-term 
resident status. 
28 From this perspective, the Spanish legislation on applications for long-term 
resident status, as interpreted by the Supreme Court, poses a genuine obstacle to 
the exercise of the rights conferred by Directive 2003/109 which may jeopardise 
the objectives pursued by that directive, thus depriving it of effect, creating pools 
of non-EU nationals with temporary status and hindering their effective 
integration, thus making them more likely to become detached from European 
principles and values and depriving them of the equal rights established by 
Directive 2003/109. 
29 The Supreme Court’s interpretation of the Spanish legislation has thus turned 
long-term resident status into a sort of prize that requires applicants to 
demonstrate higher standards of good character. It ignores recitals 4 and 6 of 
Directive 2003/109, which position the directive more as a mechanism for 
safeguarding and protecting those who have put down roots in the country than as 
a threshold comprising separate special requirements. 
30 The third issue raised concerns the incorrect implementation of Directive 
2003/109 in Spanish law, since none of the provisions on obtaining long-term 
resident status (Article 32 of OL 4/2000 and the implementing regulations in RD 
557/2011) set out clearly, transparently and intelligibly the provisions that should 
apply to applicants for long-term resident status who have criminal records. 
31 Article 6(1) of Directive 2003/109 gives Member States the option of rejecting an 
application for long-term resident status on public policy grounds. The Kingdom 
of Spain did not exercise that option and did not make provision in its legislation 
for refusal on grounds of a criminal record. However, the various judgments that 
have developed this area have sought to identify in Article 149(2)(f) of RD 
SUBDELEGACIÓN DEL GOBIERNO EN BARCELONA 
 
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557/2011 a veiled reference to public policy and public security considerations as 
grounds for refusing long-term resident status. 
32 If the option to refuse long-term resident status on these grounds was not 
implemented, a Member State that has failed to implement the legislation or 
implemented it incorrectly cannot give direct effect to the option to the detriment 
of the individual, particularly in view of the fact that it was an optional power. 
Nor can that Member State invoke the principle of consistent interpretation 
without risking an interpretation contra legem, because Article 6(1) of the 
directive does not require an application to be rejected on public policy grounds: it 
simply allows for that possibility. Under the principles of sincere cooperation and 
legal certainty, both the EU legislation and the legislation implementing a 
directive must be clear, understandable and transparent. 
33 Under no circumstances can Article 149(2)(f) of RD 557/2011 be interpreted as 
meaning that the requirement not to have been convicted of any offences under 
Spanish law applies to applicants who have been resident in Spain for 5 years. The 
reasons for this are as follows. Firstly, this particular paragraph does not impose 
any such requirement: rather, it begins with the phrase ‘where applicable’, and is 
therefore setting out a catch-all provision that applies in other cases; in other 
words, it refers to applicants who have not been living in Spain for the last 5 
years. Secondly, those who apply under Article 148(1) of RD 557/2011 ― who 
have lived in Spain for the last 5 years ― are not required to provide such a 
certificate because, given that they have been living in Spain for the last 5 years, it 
is assumed that the body responsible for examining the application will have 
access to the records of the applicant’s criminal offences and will be able to obtain 
a certificate, include it in the case file and then assess it. And, thirdly, the Member 
State may impose more burdensome requirements on applicants who have not 
completed a 5-year residence period in Spain; but this does not mean it can be 
assumed, in the way the directive has been implemented, that the requirement not 
to have a criminal record in Spain can also be imposed on applicants who have 
been living in Spain for 5 years.