Opinion of the Advocate General — ECLI:EU:C:2005:158
Date: 2005-03-10
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers;Area of freedom, security and justice;Judicial cooperation in civil matters;Closer cooperation
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary of the Judgment 1. European Union – Police and judicial cooperation in criminal matters – Protocol integrating the Schengen acquis – Convention implementing the Schengen Agreement – Application by the national authorities 2. Freedom of movement for persons – Derogations – Grounds of public policy (Council Directive 64/221, Arts 1 to 3) 1. The compliance of an administrative practice with the provisions of the Convention Implementing the Schengen Agreement may justify the conduct of the competent national authorities only in so far as the application of the relevant provisions is compatible with the Community rules governing freedom of movement for persons. (see para. 35) 2. A Member State which refuses entry into the territory of the States party to the Schengen Agreement and which refuses to issue a visa for the purpose of entry into that territory to a national of a third country who is the spouse of a Member State national, on the sole ground that he is a person for whom an alert was entered in the Schengen Information System for the purposes of refusing him entry, without first verifying whether the presence of that person constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, fails to fulfil its obligations under Articles 1 to 3 of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on ground of public policy, public security and health. The inclusion of an entry in the Schengen Information System in respect of a national of a third country who is the spouse of a Member State national does indeed constitute evidence that there is a reason to justify refusing him entry into the Schengen Area. However, such evidence must be corroborated by information enabling a Member State which consults the Schengen Information System to establish, before refusing entry into the Schengen Area, that the presence of the person concerned in that area constitutes such a threat. In the context of that verification, although the principle of genuine cooperation underpinning the Schengen acquis implies that the State consulting the Schengen Information System should give due consideration to the information provided by the State which issued the alert, it also implies that the latter should make supplementary information available to the consulting State to enable it to gauge, in the specific case, the gravity of the threat that the person for whom an alert has been issued is likely to represent. In any event, the time within which a response to a request for information is given cannot exceed what is reasonable with regard to the circumstances of the case, which may be assessed differently according to whether a visa application or the crossing of a border is involved. In the latter case, it is essential that the national authorities who, having established that a national of a third country who is the spouse of a Member State national is the subject of an alert entered in the Schengen Information System for the purposes of refusing him entry, have requested additional information from the State which issued the alert receive it from the latter rapidly. (see paras 53, 55-56, 58-59, operative part)