Opinion of the Advocate General — ECLI:EU:C:1999:144
Date: 1999-03-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary, in view of the examination 
of the overall development of primary 
Community law and the dynamics of the 
revision of the fundamental provisions 
which should shortly take place, I consider 
it advisable, for reasons of legal logic, 
methodology and good policy in terms of 
judicial decision-making, to hold that Arti­
cle 7a does not have direct effect, especially 
as regards the complete elimination of the 
internal frontiers of the Community. 
(v) The Bagheri judgment 
74. In fact, the Court reached the same 
conclusion in its Bagheri judgment, 66 
which I have already mentioned. In that 
case the Court had been asked whether 
Article 8a of the EEC Treaty (now Arti­
cle 7a of the EC Treaty) could be inter­
preted as meaning that, in the absence of 
measures of secondary Community law 
requiring the Member States to admit 
persons who have been subject to compul­
sory insurance in another Member State to 
voluntary affiliation to their social security 
schemes, an obligation to that effect arises. 
75. Advocate General Jacobs states: 'It is 
plain however from the wording of Arti­
cle 8a that that article is not in itself 
intended to have the effect of harmonising 
provisions of the Member States relating to 
the free movement of persons. Even when 
the date 31 December 1992 specified in 
Article 8a has passed, it cannot be regarded 
as having such an effect.' 6 7 
76. In that same case the Court held that 
that article 'cannot be interpreted as mean­
ing that, in the absence of measures 
adopted by the Council by 31 December 
1992 requiring the Member States to admit 
persons who have been subject to compul­
sory insurance in another Member State to 
voluntary affiliation to their social security 
schemes, an obligation to that effect arises 
automatically by reason of the expiry of 
that deadline. 
Indeed, as the Advocate General points out 
in section 14 of his Opinion, such an 
obligation presupposes the harmonisation 
of the social security legislation of the 
Member States and no such harmonisation 
has been carried out as Community law 
stands at present.' 68 
77. I believe that the same reasoning should 
be followed in the present case, except that 
the matters for which common Community 
or national measures must be adopted 
relate to the harmonisation of national 
66 — Cited in footnote 58 above. 
67 — Paragraph 11 of his Opinion. 
68 — Paragraphs 16 and 17 of the Bagheri judgment, cited in 
footnote 58 above. 
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OPINION OF MR COSMAS — CASE C-378/97 
laws on the crossing of the Community's 
external frontiers, immigration policy, the 
granting of visas, asylum policy and the 
exchange of information on these matters. 
In conclusion, Article 7a cannot be inter­
preted as meaning that it automatically 
requires the abolition of border controls 
within the Community after 31 December 
1992. 
C — The scope and binding nature of 
Article 8a of the Treaty 
78. Article 8a, which was introduced by 
the Treaty of Maastricht, is to be found in 
the second part of the EC Treaty dealing 
with citizenship of the Union. The article 
gives every citizen of the Union the right to 
move and reside freely within the territory 
of the Member States. 
(a) The place of Article 8a within the 
regulatory system of the Treaty 
79. It is contended that Article 8a of the 
Treaty does not in itself have autonomous 
regulatory scope and that it is no more than 
a general declaration of no legal value 
which recapitulates in a non-binding man­
ner the contents of other specific provisions 
of primary and secondary Community law 
regarding the free movement of persons. 
According to this point of view, there can 
be no question of this article producing 
direct effects. 
80. I cannot concur with this point of view, 
for a number of reasons. First, it under­
estimates the constitutive task of the Com­
munity's constitutional legislature, present­
ing it as being devoid of substance. Se­
condly, it disregards the Community's evo­
lutive dynamics at a time when those 
dynamics are obvious at all stages in the 
evolution of the written rules and case-law 
on the free movement of persons. Lastly, 
my objection is based primarily on the very 
wording and spirit of the article in ques­
tion, from which I believe it is possible to 
deduce arguments in favour of the original, 
binding and fundamental nature of the 
provisions it contains. 
81. It is no accident that the authors of this 
article resorted for the first time to a 
constitutional vocabulary, using terms such 
as 'right' and 'citizen of the Union', which, 
clearly, were not to be found in the text of 
the Treaty before the revision effected by 
the Treaty of Maastricht. Until this revi­
sion, the Community legislature had sys­
tematically avoided explicitly mentioning 
rights accorded to natural or legal persons, 
I - 6238 
WIJSENBEEK 
even in cases in which the granting of such 
rights was obvious. 69 
82. More generally, before the revision 
brought about by the Treaty of Maastricht, 
the text of the Treaties establishing the 
Communities gave the impression that 
persons were not considered to possess 
rights, in other words as autonomous 
holders of rights and obligations, except 
indirectly; it is only by repercussion that 
they benefit from the favourable conse­
quences of the direct application of a rule 
of Community law and, more generally, of 
the implementation of the economic objec­
tives of the Community legal order. The 
central objective of the Community rule lay 
in principle in the development of the 
Community itself and in the promotion of 
its fundamental aspirations, even where 
persons were directly affected by the reg­
ulatory scope of the said rule, as in the case 
of Article 48 et seq. of the Treaty. 
83. The insertion into the Treaty of provi­
sions such as Article 8a on citizenship of 
the Union and the ensuing rights will 
remedy this shortcoming of Community 
law. The article in question is inspired by 
the same anthropocentric philosophy as the 
other provisions of the body of rules of 
which it forms part. One class of persons, 
the citizens of the Union, become holders of 
a specific right — in the present case the 
right to move and reside freely within the 
territory of the Member States — irrespec­
tive of whether the enjoyment of this right 
is accompanied by the promotion of other 
Community aspirations or objectives. 
84. This is where one of the most essential 
differences between Article 8a and Arti­
cle 48 et seq. is to be found. The latter 
articles have established a functional pos­
sibility for nationals of the Member States, 
which they are granted so that they exercise 
it with a view to the creation of a common 
market, the objective of which can only be 
to permit persons to pursue their economic 
activities in optimum conditions. Arti­
cle 8a, by contrast, establishes for nationals 
of the Member States (now designated 
citizens of the Union) a possibility of a 
substantive nature, namely a right, in the 
true meaning of the word, which exists 
with a view to the autonomous pursuit of a 
goal, to the benefit of the holder of that 
right and not to the benefit of the Commu­
nity and the attainment of its objectives. 
85. It follows that the new regime of 
freedom of movement introduced by Arti­
cle 8a differs from the previous regime not 
only by reason of the extent of the category 
of persons benefiting from this freedom. In 
other words, Article 8a does not simply 
enshrine in constitutional terms the acquis 
communautaire as it existed when it was 
inserted into the Treaty and complement it 
by broadening the category of persons 
69 — A significant example of this is to be found in Article 119 
of the Treaty, which requires Member States to 'ensure' the 
application of the principle that men and women should 
receive equal pay for equal work, but without formally 
stating the obvious, namely the right of any worker, 
regardless of sex, to equality of treatment as regards pay. 
I - 6239 
OPINION OF MR COSMAS — CASE C-378/97 
entitled to freedom of movement to include 
other classes of person not pursuing eco­
nomic activities. Article 8a also enshrines a 
right of a different kind, a true right of 
movement, stemming from the status as a 
citizen of the Union, which is not subsidi­
ary in relation to European unification, 
whether economic or not. 
86. Hence, as freedom of movement con­
stitutes a goal in itself and is inherent in the 
fact of being a citizen of the Union, and is 
not merely a parameter of the common 
market, it does not merely have a different 
regulatory scope: it also, and primarily, 
differs in terms of the nature of the rights it 
bestows on individuals and the breadth of 
the guarantee that Community and 
national principles must accord it. This 
finding may ineluctably lead to a revised, 
updated reading of the position under 
legislation and case-law that has become 
established under the classic understanding 
of the content and scope of the principle of 
freedom of movement or even to a ques­
tioning of received solutions, such as the 
obligation to present a passport or identity 
card when crossing the internal frontiers of 
the Community. 
87. However, before examining this parti­
cular question, which is at the centre of the 
questions submitted by the national court, 
in the light of Article 8a of the EC Treaty, I 
believe it is necessary to explain in some 
detail the direct effect which this article 
produces in the Community legal order. 
(b) The direct effect of Article 8a of the 
Treaty 
88. First the wording of the provisions at 
issue militates in favour of attributing 
direct effects to them. I would point first 
to the particular choice of constitutional 
phraseology unique to the second para­
graph of Article 8a, which empowers the 
Council to adopt provisions with a view to 
'facilitating' the exercise of the rights to 
move and reside freely. It follows that those 
rights have already been created: they exist 
and are applied directly by virtue of the 
first paragraph of Article 8a; the actions of 
the Council are of an auxiliary nature and 
not a constituent element of the exercise of 
those rights. 
89. It is also useful to refer to the conclu­
sions acknowledged by the body of Eur­
opean constitutional literature. In the legal 
order, the right of the citizen to move freely 
is linked to the fundamental right to 
personal freedom, which is at the apex of 
individual rights. The rights in this category 
have this characteristic in common: they 
produce their legal effects directly, by 
reason of being enshrined in a constitu­
tional act, and their exercise does not 
necessarily depend on the adoption of 
particular measures by the legislature or 
the administration. Their direct application 
is the result of their negative nature: their 
compulsory scope includes the obligation, 
for government, not to take measures or 
actions likely to affect the personal domain 
of individuals. Restrictions may, of course, 
be imposed on the exercise of these rights, 
but they must be justified and not harm the 
very essence of the personal right. 
I - 6240 
WIJSENBEEK 
90. These conclusions must, I believe, 
apply equally to the right to move and 
reside freely as affirmed by Article 8a for 
the citizens of the Union. This article 
appears to have been conceived in order 
to establish, in the Community legal order, 
a purely individual right in a form corre­
sponding to that of the right to move freely, 
which is enshrined at the constitutional 
level in the internal legal order of the 
Member States. On that basis, the article in 
question produces direct effects in that it 
obliges the Community authorities as well 
as the national authorities to respect the 
right of European citizens to move freely 
and requires them to avoid establishing 
obstacles which could harm the very 
essence of this right. The above considera­
tions are particularly important when it 
comes to interpreting the passage in Arti­
cle 8a which provides that the right to 
move and reside freely is to be recognised 
'subject to the limitations and conditions 
laid down in this Treaty and by the 
measures adopted to give it effect'. Can 
this reservation on its own call into ques­
tion the direct effect attributed to Arti­
cle 8a? I think not. This phrase does not 
alter the direct nature of the bestowed 
right, in that it does not eliminate the 
precise and unconditional form of the 
provisions to be interpreted. As the Com­
mission rightly points out, the Court has 
not hesitated to reach the same conclusion 
when, in the past, it has had to interpret 
provisions of the Treaty whose application 
was subject to general reservations. 70 
Moreover, it is a feature of any right 
recognised by a legal order that it cannot 
be exercised without any control whatso­
ever and to the detriment of other rights or 
legal interests and that it is subject to 
limitations and restrictions essential to the 
proper functioning of the legal system of 
which it is part. 
91. However, the introduction of the 
abovementioned reservation into the first 
paragraph of Article 8a could in another 
way limit the compulsory scope of the right 
to move and reside which this provision 
confers. It is maintained in particular 71 
that the form which the authors of the 
Treaty gave to this article, in that it 
provides that this right does not exist 
absolutely but subject to the 'conditions' 
laid down in primary and secondary Com­
munity law, has the following significance: 
although it does not strip the provision of 
its direct effect, it nevertheless limits the 
production of such effects to the frame­
work previously created by existing rules of 
Community law on the freedom of move­
ment of persons. In other words, the direct 
effect of Article 8a cannot exceed the 
limitations placed on the exercise of the 
free movement of persons, as recognised 
under Article 48 et seq. of the Treaty and in 
accordance with the relevant provisions of 
secondary law. In the present case, accept­
ing this point of view would mean recog­
nising the right of all citizens of the Union 
to move and reside freely within the 
Community, but on condition that they 
presented a passport or identity card to the 
extent that this is patently provided for by 
the rules of secondary law. 
70 — The example of Article 48 is more interesting, in that this 
article enshrines the freedom of movement of workers, 
'subject to limitations justified on grounds of public policy, 
public security or public health'. With regard to the direct 
effect of Article 48, see paragraph 27 et seq. above. 
71 — See the written observations of the Commission, para­
graph 27 et seq. 
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OPINION OF MR COSMAS — CASE C-378/97 
92. I concede that this reasoning has some 
basis in the provisions of Article 8a in 
question. It must be rejected, however, as it 
does not correspond to the spirit of those 
provisions and the observations I have 
made on the special position and funda­
mental importance of Article 8a in the 
economy of the rules of the EC Treaty, in 
the context of a Community that is general 
and not purely economic in nature. 
93. If the rights established by Article 8a 
were no more than a reiteration of those 
previously recognised in the Community 
legal order regarding the free movement of 
persons, the addition of this article to the 
text of the Treaty, and moreover in such a 
strategic position, would not be justified. I 
have already mentioned that, thanks to 
case-law and secondary legislation, the 
classes of persons enjoying freedom of 
movement had already been extended 
before the Treaty of Maastricht to comprise 
all the nationals of Member States and the 
members of their families, whether or not 
they pursue an economic activity, 'provided 
that they themselves and the members of 
their families are covered by sickness 
insurance in respect of all risks in the host 
Member State and have sufficient resources 
to avoid becoming a burden on the social 
assistance system of the host Member State 
during their period of residence'. 72 
94. If we were to follow the particularly 
reductionist view of Article 8a set out 
above and to make the application of the 
rights which that article confers totally 
dependent on the manner and the classical 
terms of application of freedom of move­
ment as they were before the revision 
brought about by the Treaty of Maastricht, 
Article 8a would lose a large part of its 
effectiveness. Its only legal effect would be 
a rather modest extension of an advanta­
geous situation dating back to the time of 
the European Economic Community to 
Community nationals who do not have 
sickness insurance and sufficient resources. 
95. Article 8a was not adopted solely to 
cater for marginal situations such as this. I 
have shown above that its basic function 
was to accord a fundamental right to the 
citizens of the Union, the nature, intensity 
and scope of which differ from the bene­
ficial effects produced by compliance with 
the classical Community principle of free­
dom of movement of persons under Arti­
cle 48 et seq. of the Treaty or rules 
established in this respect by provisions of 
secondary law. Article 8a takes Commu­
nity law beyond the concept of the princi­
ple of freedom of movement generally 
accepted hitherto. It is for this reason that 
it is not always possible to transpose the 
'acquis communautaire' regarding this 
principle into the field of application of 
Article 8 a of the Treaty. 
96. Hence, the fact that the crossing of the 
external borders depended until now on the 72 — Article 1(1) of Directive 90/364, cited above. 
I - 6242 
WIJSENBEEK 
presentation of a passport or identity card, 
in the sense that in Community law the 
presentation of such a document was a 
legitimate 'condition' for the exercise of 
freedom of movement, does not mean that 
that 'condition' automatically governs and 
in every case affects the exercise of the right 
to move and reside freely which is 
enshrined in Article 8a. For it to be possible 
to transpose this 'condition' into the con­
text of the application of Article 8a, it 
would be essential that it did not constitute 
an unjustified limitation on the specific 
right conferred by this article and that it did 
not affect the very essence of this right. In 
my view, this is the only possible interpre­
tation of the first paragraph of Arti­
cle 8a — and especially of the reservation 
it formulates by referring to the 'limitations 
and conditions' existing before it entered 
into force — which respects the 'effective­
ness' of this article and demonstrates its 
specific significance in the economy of the 
rules of the Treaty. 
(c) Article 8a of the Treaty and border 
controls within the Community 
97. We can deduce from the foregoing that 
Article 8a of the EC Treaty introduced into 
Community law a fundamental individual 
right having direct effect, which consists in 
the possibility for citizens of the Union to 
move and reside freely within the Commu­
nity. It is conceivable to impose restrictions 
or conditions on the exercise of that right 
only if the measures in question are justi­
fied and do not affect the very essence of 
that right. It is from this standpoint that 
one should assess the lawfulness first of the 
limitations and conditions already existing 
in Community law on the exercise of 
freedom of movement of persons — as we 
know it at present — and secondly of the 
limitations that will be established in future 
by the Community legislature. I would 
point out that, as the Commission rightly 
remarks in its observations, since it is a 
question of assessing the compatibility of a 
limitation or condition with Article 8a, it is 
necessary to consider that the safeguarding 
of freedom of movement and residence is 
the rule, which must be interpreted in the 
broad sense, whereas the limitations placed 
on it are exceptions, to be interpreted and 
applied strictly. 
98. On the question of the crossing of the 
internal frontiers of the Community, the 
specific difference which, in my opinion, 
distinguishes Article 8a from Community 
law on freedom of movement of persons as 
applied up to now is the following: in the 
past the conduct of systematic border 
controls and the obligation to show a 
passport or identity card were a commonly 
accepted constraint when crossing borders, 
without anyone asking whether this form­
ality was justified in all cases, but such a 
view cannot be taken for granted when it 
comes to applying Article 8a of the Treaty. 
The lawfulness of the border control 
arrangements presupposes either that the 
right to move freely enshrined in Article 8a 
is not impeded by the conduct of these 
controls and by the general obligation to 
present a travel document when crossing 
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OPINION OF MR COSMAS — CASE C-378/97 
the internal borders of the Community, or 
that the obstacle at issue is, in all cases, 
automatically justified and does not affect 
the very essence of the said right. 
99. I believe that the conditions I have just 
described do not exist as far as Article 8a is 
concerned. First, the setting of limitations 
on the crossing of the internal frontiers 
clearly constitutes an obstacle to freedom 
of movement enshrined in that article. 
Furthermore, and this observation is 
equally important, the right deriving from 
Article 8a is, by reason of this obstacle, 
more seriously affected than was the legal 
situation of nationals of the Member States 
when travelling before the introduction of 
the article in question. 
100. As far as the application of Article 48 
et seq. of the Treaty is concerned, I wish to 
point out that the ultimate objective of 
granting freedom of movement to nationals 
of the Member States was to enable them to 
come to another Member State in that this 
benefited the common market. 73 The 
objective of the common market (either 
through the provision of labour or services, 
or through the consumption of goods and 
services) is not seriously threatened by the 
single general obligation on persons mov­
ing from one country to another to present 
a passport or identity card. That is why, 
although this obligation constitutes an 
obstacle to freedom of movement, it has 
never been considered contrary to Arti­
cle 48 et seq. of the EC Treaty. 
101. By contrast, imposing exactly the 
same obstacle to the exercise of the right 
enshrined in Article 8a affects this right 
much more strongly. The freedom to cross 
borders is in itself an important constituent 
of the citizen's right to move freely, and not 
simply a means of achieving the common 
market. 74 The obstacle at issue may affect 
the holder of the right himself, in other 
words the citizen of the Union, in that it 
prevents him from benefiting from all the 
probable and favourable effects which flow 
from this right. 75 Moveover, recognition of 
the possibility of moving (in principle) 
unchecked within the geographic area cor­
responding to a legal order is inherent in 
the status of citizen covered by that legal 
order. From this point of view, the situation 
of a citizen of the Union is identical to that 
of a citizen of a Member State. Just as it is 
permissible to express doubts as to the 
constitutional legality of dividing the 
national territory into zones, citizens' 
access to which is subject to general and 
systematic controls and the presentation of 
an identity document in all circumstances, 
so too is it permissible to ask similar 
questions from the point of view of con-
73 — Even the mere fact that a person not pursuing an 
occupational activity but receiving income resides in a 
Member State other than the one of which he is a national 
is of economic interest from the point of view of 
Community law in that such a person is bound to consume 
goods and benefit from services. From this point of view, 
granting freedom of movement to almost any person, 
whether he pursues an activity or not, has an economic 
impact of relevance to the common market. 
74 — See my foregoing analysis of the difference between the 
functional right and the substantive right to freedom of 
movement. 
75 — It would not be possible to sustain this argument with 
regard to Article 48 et seq. of the Treaty. The existing 
obstacles to crossing frontiers unchecked did not affect the 
substance of the 'rights' deriving from freedom of move­
ment. 
I - 6244 
WIJSENBEEK 
temporary Community law with regard to 
the maintenance of this kind of general 
limitation on the application of Article 8a. 
102. It follows that, at least on the level of 
principles, the organisation of systematic 
controls valid for all citizens of the Union 
crossing the internal borders of the Com­
munity and the imposition of a general 
obligation to present a passport or identity 
card constitute obstacles which affect the 
substance of the right enshrined in Arti­
cle 8a of the EC Treaty and which are not 
automatically lawful or justified. 
103. This does not mean, however, that it is 
inconceivable to impose constraints of this 
kind. The direct effect of Article 8a cannot 
imply that every citizen of the Union can 
cross the borders in all circumstances with­
out presenting a passport or identity card. 
The general abolition of border controls 
within the Community does not stem from 
Article 8a, because, as we have seen, it is 
not imposed directly by Article 7a, 76 which 
deals with the disputed question as a 
whole. 
104. Ankle 8a merely lays down a specific 
obligation, requiring the public authorities 
to abstain from measures or actions which 
constitute unreasonable obstacles to the 
exercise of the right enshrined in this article 
unless those obstacles meet certain criteria 
which make it possible to consider them 
compatible with Community law. These 
criteria are, in my opinion, the same as 
those formulated by the case-law on Arti­
cle 48 et seq. of the Treaty. 77 However, it is 
not obvious that the application of these 
criteria in the context of Article 8a leads to 
results identical to those obtained when it 
was only a question of applying Article 48 
et seq. of the Treaty. As I have explained 
above, I believe that the scope of Article 8a 
and that of Article 48 et seq. of the Treaty 
are not identical. Hence, an obstacle to 
freedom of movement deemed lawful from 
the point of view of Community law under 
Article 48 et seq. of the Treaty can be 
- considered contrary to that same Commu­
nity law because it affects the right deriving 
from Article 8a. 
105. In transposing the abovementioned 
case-law 78 into the context of Article 8a, 
it should be acknowledged that any obsta-
76 — The Commission bases its reasoning largely on the 
argument that Article 8a cannot, by itself, have wider 
regulatory scope that that attributed jointly to Anieles 7a 
and 8a. This point of view is correct in principle. If direct 
effects are not attributed to Article 7a, which imposes in 
Community law the obligation to create an area without 
internal frontiers, in other words the abolition of border 
controls, this obligation cannot acquire greater intensity 
indirectly as a result of the application of Article 8a. 
However, the Commission draws wrong conclusions from 
this correct remark, in that it considers that since the status 
quo predating Article 8a, in other words the imposition of 
a general obligation to present a passport or identity card, 
was not completely called into question by Article 7a, that 
status quo continues to apply without being in the least 
affected by the addition of Article 8a to the text of the 
Treaty. 
77 — The application of the same criteria of case-law demon­
strates the relationship which exists between Anicie 8a 
and Article 48 et seq. of the Treaty. As I have shown 
above, the first of these articles clearly constitutes an 
advance on the status quo created in the context of 
Article 48 et seq. of the Treaty. That is why the faas of 
Community law predating Article 8a cannot be transposed 
autonomously and automatically into the framework of 
this article. This does not mean that these facts cannot be 
used for interpreting Article 8a. Quite the contrary: these 
facts are of value for the conceptual understanding and 
application of Anicie 8a, in that the position which this 
article occupies in the economy of the EC Treaty corre­
sponds to that occupied by Anicie 48 et seq. in the 
economy of the EEC Treaty. 
78 — See paragraphs 28 and 29 above. 
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OPINION OF MR COSMAS — CASE C-378/97 
cle whatsoever which is liable 'to hamper 
or to render less attractive' the exercise of 
the rights guaranteed by this article com­
plies with Community law if it meets the 
following conditions: it must first be non­
discriminatory, secondly it must be justified 
by overriding reasons of public interest, it 
must then be appropriate for ensuring 
attainment of the objective it pursues and 
finally it must not go beyond what is 
necessary for that purpose. It is in the light 
of these criteria that the compatibility of 
controls at the internal frontiers of the 
Community and the imposition of a general 
obligation to present a passport or identity 
card with Community law must be exam­
ined. 
106. From one point of view, the above-
mentioned general limitations on the cross­
ing of borders meet the criteria listed above 
and are to be considered to comply with 
Article 8a of the Treaty and more generally 
with Community law. This reasoning is 
based mainly on the same reasons as those 
used previously to assert that Article 7a did 
not produce direct legal effects. The 
absence of arrangements for carrying out 
controls at the external borders of the 
Community, which would make it possible 
to check fully the persons entering the 
Community, justifies the conduct of con­
trols at the internal frontiers for reasons of 
public interest, at both Community and 
national levels. More particularly, the 
imposition of a general obligation to pre­
sent a passport or identity card not only 
does not create discrimination, but appears 
appropriate for ensuring the attainment of 
the public-interest objective which it pur­
sues without entailing unreasonable con­
straints on the holders of the right to 
freedom of movement by taking forms 
disproportionate to the objective pursued. 
107. I believe nevertheless that it would be 
preferable to adopt a slightly different 
stance. I do not doubt that the absence of 
an effective system of controls at the 
external frontiers justifies, in principle, the 
maintenance of controls at the internal 
frontiers, the most appropriate form of 
which consists in the obligation to present a 
passport or identity card. However, does 
this reasoning have absolute value? In 
other words, are the imperfections and 
shortcomings of the Community legal order 
sufficient to justify the establishment of a 
general and universal obstacle, the neces­
sary, appropriate and, in the strict sense, 
proportional nature of which cannot in any 
circumstances be validly challenged by 
persons with the right to freedom of move­
ment? I do not think so. 
108. It is preferable, at the current stage of 
European unification and from the point of 
view of the systematic interpretation of 
Community law, to give the national court 
the possibility of examining on each occa­
sion, within the framework of the ad hoc 
examination of the case before it, whether a 
limitation imposed on the crossing of the 
internal borders of the Community meets 
the abovementioned criteria of case-law, 
hence whether border controls, in the 
particular circumstances in which they are 
carried out, comply with Article 8a of the 
Treaty. The absence of effective Commu-
I - 6246 
WIJSENBEEK 
nity arrangements for controlling the cross­
ing of the external borders, which would 
make it possible to abolish restrictions at 
the internal borders of the Community, 
does not necessarily mean that there are no 
similar non-Community mechanisms cre­
ated within the framework of public inter­
national law or intergovernmental coop­
eration between the Member States, the 
application of which allows the restrictions 
in question to be reduced or abolished at 
particular geographic points. 
109. The consideration made above is not 
purely hypothetical. I could cite the Schen­
gen agreements as an example of such a 
non-Community mechanism for controls at 
the external frontiers. We know that the 
interpretation of these agreements does not 
come within the jurisdiction of the Court, 
and it is not my intention to undertake an 
interpretation of these agreements. How­
ever, the problem at issue comes within the 
jurisdiction of the national court. The 
question submitted therefore consists in 
ascertaining the extent to which the 
national court may use this 'acquis extra­
communautaire' for the purposes of a more 
complete application of a fundamental 
Community rule such as Article 8a. In 
other words, it is advisable to examine 
globally, and without confining oneself to 
Community rules, the factual and legal 
framework in which a citizen of the Union 
undertakes to cross the borders of a Mem­
ber State when coming from another 
Member State, in order then to decide (if 
appropriate) that, taking account of parti­
cular factors, of law and of fact, the 
imposition of systematic border controls 
on this citizen and an obligation to present 
a passport or identity card constitutes an 
unreasonable obstacle to the right to move 
freely, an obstacle which is not justified by 
'overriding reasons of public interest' or 
which in any case represents, for the citizen 
concerned, a constraint which goes 'beyond 
what is necessary' to attain an objective 
affecting the public interest. 
110. This solution appears to offer consid­
erable advantages. 
111. First, it highlights as much as is 
possible the scope of Article 8a of the 
Treaty, widening the rights of citizens of 
the Union despite the absence of Commu­
nity arrangements for controls at the exter­
nal borders. It would be unfortunate to 
make citizens bear the consequences of 
inaction by the Community institutions or 
of the negative attitude of the Member 
States with regard to the progress of 
European unification in the field of free­
dom of movement of persons. 
112. Secondly, it succeeds in reducing (pos­
sibly) certain obstacles to the freedom of 
movement of citizens without compromis­
ing other priorities of European unification 
and without compromising the inalienable 
rights of the Member States with regard to 
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OPINION OF MR COSMAS — CASE C-378/97 
the control of the persons present in their 
territory, 79 rights which have long been 
recognised by the Court. 80 
113. Thirdly, it gives the national court 
responsibility for actively verifying compli­
ance with the freedom of movement of 
persons, particularly as regards the crossing 
of the internal borders of the Community, 
by enabling it to derive from the general 
evolution of the law the elements useful for 
the optimum application of Community 
law. 81 
114. Lastly, and this is the most important 
point, this solution accords with the direc­
tion in which, in all probability, primary 
Community law will develop, as expressed 
in certain articles of the Treaty of Amster­
dam and in the protocols annexed thereto. 
More especially, the protocol integrating 
the Schengen acquis into the framework of 
the European Union was signed precisely in 
order to incorporate into the Community 
legal order the results that had been 
achieved thanks to the Schengen agree­
ments with regard to border controls, visas, 
political asylum and the exchange of per­
sonal information. Article 2(1) of that 
protocol provides that 'from the date of 
entry into force of the Treaty of Amster­
dam, the Schengen acquis... shall immedi­
ately apply to the 13 Member States 
referred to in Article 1...'. 82 In other 
words, the Community's constitutional leg­
islature does not confine itself to attributing 
to the Community institutions, in Arti­
cle 73i et seq. of the Treaty of Amsterdam, 
powers aimed at progressively establishing 
an area of freedom, security and justice; it 
also ensures that the abovementioned con­
vergence, both within Community law and 
outside it, is exploited in order to achieve 
optimum progress in European unification. 
I believe that the solution I have outlined 
above, with regard to the possibility for the 
national court to assess, inter alia, the 
practical consequences of the application 
of the Schengen agreements in its country 
before deciding whether a national limita­
tion on the crossing of the internal frontiers 
of the Community complies with Article 8a 
or not, accords with the logic that inspired 
the Amsterdam conference when the pro­
tocol in question was signed. 
115. I still have to examine the effects of 
the proposed solution on the existing rules 
79 — I have explained earlier that the limitation or elimination 
of border controls between the Member States presup­
posed the creation of effective arrangements for controls at 
the other borders of the Member States, to which the 
Member States participating in the effort to eliminate 
internal borders will have contributed or consented. If they 
succeed in this, the Member States concerned do not risk 
being obliged to accept undesirable nationals from third 
countries and to give them asylum as a result of the 
elimination of the borders between them. Once controls at 
the exrernal borders of the Member States are carried out 
in the manner agreed joinrly and the movement and 
residence of nationals from third countries are organised in 
accordance with jointly accepted rules, there could be no 
question of a Member State being entered via intra-
Community borders by persons which this Member State 
would not itself have admitted on the basis of rules which 
would be exactly the same. 
80 — See the judgments in Cases 321/87 and C-265/88, cited in 
footnote 42 above, and the judgment in Case C-68/89, 
cited in footnote 41 above. 
81 — This 'functional' view of non-Community rules serving as 
the raw material for the optimum promotion of the rule of 
Community law should come as no surprise. Since the 
Community rule and the non-Community rule have the 
same field of application, their joint interpretation and 
application flow from the need for a global view of the 
legal process and for the good administration of justice. It 
is in fact the same objective which the Court pursues when 
it calls upon the national court to interpret its national 
provisions 'in the light of' Community law. See the 
judgments in Cases C-334/92 Wagner Miret v Fondo de 
Garantia Salarial [1993] ECR I-6911 and C-106/89 Mar-
leasing v La Comercial Internacional de Alimentación 
[1990] ECR I-4135. 
82 — The United Kingdom and Ireland are not involved; so far, 
these States have not agreed to comply with the rules of the 
Schengen agreements. 
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WIJSENBEEK 
of primary Community law which allow 
the presentation of a passport or identity 
card to be a general condition for crossing 
borders in the context of the application of 
the principle of freedom of movement for 
persons. These rules continue to be of 
practical interest, as they determine the 
maximum obstacle which may be imposed 
on citizens of the Union when crossing the 
internal borders of the Community. How­
ever, these rules no longer mean that the 
imposition of an obligation to present a 
passport or identity card is always lawful 
or that it constitutes in every case a 
permissible limitation on the personal free­
dom of European citizens. On the other 
hand, this obligation must be justified, a 
requirement which, at the level of pure 
Community law, does not appear to be put 
in doubt by the absence of a system of 
controls at the external borders; however, it 
does not preclude the possibility that the 
effective operation of non-Community con­
trol arrangements of this kind — a matter 
which it is for the national court to 
assess — renders this obligation contrary 
to Article 8 a of the Treaty. 
116. This 'updated' reading of the current 
provisions of secondary Community law 
and this manner of transposing the regula­
tory scope of these provisions should not 
come as a surprise, even if they call the 
well-established status quo into question. 
They are the logical consequence of the 
development taking place within the Com­
munity legal order and of the progress 
made towards European unification as a 
result of the Treaty of Maastricht. 
117. In any case, despite what I consider to 
be the important consequences of the 
incorporation of Article 8a into primary 
Community legislation, I do not believe 
that the case of Mr Wijsenbeek which is 
before the national court is an example of 
the crossing of the internal borders of the 
Community that should be permitted with­
out any limitation whatsoever. As I have 
said, Article 8a prohibits the imposition of 
obstacles to the exercise of freedom of 
movement unless those obstacles meet 
certain criteria that are considered accep­
table from the point of view of the Com­
munity. In my view, the application of the 
border control provided for in the Nether­
lands Aliens Order does not constitute an 
infringement of Article 8a of the Treaty, 
taking into account the law and facts 
mentioned in the order for reference, which 
are not disputed. More specifically, the 
accused attempted to cross the border, 
when coming from France, without sub­
mitting to control and without complying 
with the obligation provided for in Com­
munity law to present a passport or identity 
card. At the time of these events, the Treaty 
of Maastricht had been brought into force; 
however, as one notes still today, the 
Community arrangements for controls at 
the external borders, visas, the granting of 
asylum, etc., which would have made the 
limitations in question unjustifiable and 
disproportionate, have not been estab­
lished. Furthermore, neither the order for 
reference nor the observations submitted by 
certain parties have brought to light other 
special factors which would allow me to 
conclude that the imposition of a border 
control was unjustifiable in the present 
case. 83 In any event, the examination of the 
latter question falls within the exclusive 
jurisdiction of the national court and my 
observations are purely indicative and 
hypothetical. 
83 — At the time, the Schengen agreements, on which the 
accused relies, had not begun to produce their full effects. 
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OPINION OF MR COSMAS — CASE C-378/97 
VI — Conclusion 
118. In the light of the above, I propose that the Court reply as follows to the 
questions submitted: 
A citizen of a Member State returning to that Member State from another 
Member State enjoys the right to freedom of movement conferred by Article 8a of 
the EC Treaty. 
(1) At the current stage of European unification, Articles 7a and 8a of the EC 
Treaty cannot be interpreted as requiring the automatic, complete and general 
lifting of systematic frontier controls where a citizen of a Member State 
crosses internal Community frontiers. 
(2) Article 8a of the EC Treaty precludes any limitation liable to hamper or 
render less attractive the exercise of the right to freedom of movement laid 
down by that article. The obligation, on pain of criminal penalties, to show a 
passport or identity card when crossing internal Community frontiers 
constitutes a limitation of that kind save where such limitation applies 
without discrimination, is justified by overriding reasons of public policy, is 
appropriate for attaining the objective it pursues, and is no more coercive 
than is necessary in order to attain it. 
I - 6250