Judgment;Summary — ECLI:EU:C:2024:502
Date: 2024-06-13
Language of the case: Spanish
Court formation: Tenth Chamber
Subject matter: Citizenship of the Union;Right of establishment;Principles, objectives and tasks of the Treaties;Freedom to provide services;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-62/23 – 1 
Case C-62/23 
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: 
6 February 2023 
Referring court: 
Juzgado Contencioso-Administrativo n.º 5 de Barcelona (Spain) 
Date of the decision to refer: 
9 January 2023 
Applicant: 
Pedro Francisco 
Defendant:  
Subdelegación del Gobierno en Barcelona 
  
Subject matter of the main proceedings 
Application for a temporary residence card as a family member of a Union 
citizen – Administrative decision refusing to grant the application based on the 
existence of a previous police record – Force of police records 
Subject matter and legal basis of the request for a preliminary ruling 
Article 267 TFEU – Request for a preliminary ruling on interpretation – Directive 
2004/38/EC – Family member of a Union citizen – Article 27 – Restrictions on 
the right of entry and the right of residence on grounds of public policy and public 
security – Personal conduct representing a genuine, present and sufficiently 
serious threat – Administrative decision refusing to grant an application for a 
temporary residence card as a family member of a Union citizen because of the 
existence of a police record – Compatibility with Directive 2004/38 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-62/23 
 
2  
Questions referred for a preliminary ruling 
1. Is Article 27 of Directive 2004/38/EC to be interpreted as meaning that a 
police record may be the basis or foundation of the personal conduct of the 
individual concerned for the purposes of assessing whether a genuine threat exists 
when the purpose of a criminal trial is to prove whether that threat is genuine? 
2. If the answer to the first question is in the affirmative, in the light of 
Article 27 of the directive, must the interpretation be that the governmental 
authority is required to set out expressly and in detail the facts on which that 
record is based and any judicial proceedings which have been brought and their 
outcome in order to confirm that we are not merely dealing with initial 
presumptions? 
Provisions of European Union law relied on 
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 
2004 on the right of citizens of the Union and their family members to move and 
reside freely within the territory of the Member States amending Regulation 
(EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 
72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 
93/96/EEC, recitals 5, 13, 14 and 22 and Articles 7, 10 and 27 
Provisions of national law relied on 
Real Decreto 240/2007 sobre entrada, libre circulación y residencia en España de 
ciudadanos de los Estados miembros de la Unión Europea y de otros Estados parte 
en el Acuerdo sobre el Espacio Económico Europeo (Royal Decree No 240/2007 
on the entry, free movement and residence in Spain of citizens of Member States 
of the European Union and of other States parties to the Agreement on the 
European Economic Area) of 16 February 2007 
Article 2 
‘This Royal Decree shall also apply, in accordance with its provisions, to the 
following family members of a national of another Member State of the European 
Union or another State party to the Agreement on the European Economic Area, 
regardless of their nationality, where they are accompanying or joining that 
national: 
a) The spouse, provided that there has been no agreement or declaration of 
nullity of the marriage, divorce or legal separation. 
b) The partner with whom that national has a union analogous to marriage 
which is entered in a public register created for those purposes in a Member State 
of the European Union or in a State party to the Agreement on the European 
PEDRO FRANCISCO 
 
3 
Economic Area, which precludes the possibility of two simultaneous registers in 
that State, and provided that that entry has not been cancelled, which must be 
sufficiently established. The situations of marriage and registered partnership shall 
be regarded in all cases as incompatible with one another. 
Article 8 
‘1. Any family members of a national of a Member State of the European Union 
or of a State party to the Agreement on the European Economic Area, as specified 
in Article 2 of this Royal Decree, who are not nationals of one of those States, 
shall, where they are accompanying or joining that national, be entitled to reside 
in Spain for a period of more than three months, subject to the requirement that 
they must apply for and obtain a “residence card as a family member of a Union 
citizen”.’ 
Article 15 
‘1. Where necessary on grounds of public policy, public security or public 
health, any of the following measures may be adopted in respect of a citizen of a 
Member State of the European Union or of another State party to the Agreement 
on the European Economic Area, or in respect of that citizen’s family members: 
a) Prohibition of entry into Spain, even if the persons concerned present the 
documents provided for in Article 4 of this Royal Decree. 
b) Refusal of entry in the Central Register of Foreign Nationals or of the issue 
or renewal of the residence cards provided for in Article 4 of this Royal Decree. 
c) Order of expulsion or return from Spanish territory. 
A decision to expel a citizen of a Member State of the European Union or of 
another State party to the Agreement on the European Economic Area, or any of 
that citizen’s family members, irrespective of their nationality, who have acquired 
the right of permanent residence in Spain, may be adopted only on serious 
grounds of public policy or public security. Furthermore, before adopting such a 
decision, consideration must be given to the length of residence and social and 
cultural integration of the person concerned in Spain, that person’s age, health 
status, family and economic situation, and the significance of his links with his 
country of origin. 
… 
5. Adoption of any of the measures provided for in paragraphs 1 to 4 above 
shall meet the following criteria: 
a) It shall be adopted in accordance with the legislation governing public 
policy and public security and the regulatory provisions in force in that regard. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-62/23 
 
4  
b) It may be revoked ex officio or at the request of the person concerned if the 
grounds on which it was adopted no longer exist. 
c) It may not be adopted for economic purposes. 
d) When it is adopted on grounds of public policy or public security, it must be 
based exclusively on the personal conduct of the person against whom it is 
directed, who must, in any case, represent a genuine, present and sufficiently 
serious threat affecting one of the fundamental interests of society, and who will 
be assessed, by the competent adjudicatory body, on the basis of such reports of 
the police, prosecution or judicial authorities as are contained in the case file. 
Previous criminal convictions shall not in themselves constitute grounds for taking 
such measures.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 Since 29 June 2020, Pedro Francisco has been the registered civil partner of a 
Spanish national (the partnership is registered, inter alia, in the Catalonian 
Register of Stable Partnerships). 
2 On 21 December 2021, an application for a temporary residence card as a family 
member of a Union citizen was lodged in the name of Pedro Francisco with the 
Subdelegación del Gobierno (Provincial Office of the Government) in Barcelona. 
3 During that procedure, the Provincial Office of the Government in Barcelona 
asked the Dirección General de Policía (DGP; Directorate General of Police) to 
comment on the application. The DGP issued an unfavourable report on the grant 
of the card in question based on an arrest which took place on 3 July 2020 in 
relation to an allegation of perpetrating an offence against public health and 
participation in a criminal group. The report also stated that Pedro Francisco has 
no criminal record. The DGP did not conduct any further investigation to 
determine whether that arrest had led to the commencement of criminal 
proceedings. 
4 On 14 June 2022, the Provincial Office of the Government in Barcelona adopted a 
decision refusing to grant the application submitted by Pedro Francisco for a 
temporary residence card as a family member of a Union citizen. 
5 Pedro Francisco lodged an appeal against that decision with the referring court. 
Essential arguments of the parties in the main proceedings 
6 Other than indicating that the Provincial Office of the Government in Barcelona is 
opposed to the request for a preliminary ruling on the grounds that it is a matter 
which has already been resolved, the decision to refer does not set out the parties’ 
arguments. 
PEDRO FRANCISCO 
 
5 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7 Restrictions on the right of entry and the right of residence on grounds of public 
policy, public security or public health, pursuant to Article 27 of Directive 
2004/38, must be proportionate and be based exclusively on the conduct of the 
individual concerned. The personal conduct of the individual concerned must 
represent a genuine, present and sufficiently serious threat affecting one of the 
fundamental interests of society. Justifications that are isolated from the 
particulars of the case or that rely on considerations of general prevention may not 
be accepted. 
8 The EU and Spanish legislation refers to the personal conduct of the individual 
concerned. A police record is not conduct, meaning that it is not capable of 
representing a genuine threat since it comes within the category of a presumption. 
It is concerned with acts which are attributed to the individual concerned and the 
truth of which must be established by means of the evidence which is to be 
adduced at the trial and assessed in the judgment. A negative assessment of facts 
which have not been confirmed as true is not possible. 
9 In any event, if it is found that a police record may serve as the basis for an 
assessment, it will be necessary, in the light of Article 27 of Directive 2004/38, for 
the governmental authority to set out expressly and in detail the facts on which 
that record is based and the judicial proceedings which were brought, in addition 
to their outcome, in order to confirm that we are not merely dealing with 
presumptions. 
10 There is case-law of the Spanish courts on that subject. Judgment of the Tribunal 
Supremo (Supreme Court, Spain) No 1775/2020 of 17 December 2020 
(ECLI:ES:TS:2020:4494) laid down the following statement of the law: ‘police 
records, which, in themselves, have no implications for the corresponding 
criminal proceedings, cannot serve as a sufficient basis for refusal to grant an 
application for permanent residence on grounds of public policy. Police reports 
may serve to deem that it has been established that, contrary to the general 
presumption, the conduct of a particular third-country citizen who has family ties 
to a citizen of the Union presents a serious threat to the fundamental interests of 
society, following a proportionate assessment of all the exclusively personal 
circumstances of the individual concerned, with an additional statement of 
grounds in relation to those circumstances.’ 
11 In that judgment, the Tribunal Supremo (Supreme Court, Spain) emphasised that 
since pursuant to the second sentence of Article 27(2) of Directive 2004/38, the 
existence of prior convictions cannot, by itself, constitute a reason for the adoption 
of measures on grounds of public policy or public security, nor is it possible for a 
mere police record in itself to constitute such a reason. The Tribunal Supremo 
(Supreme Court) also pointed out that it is necessary to take into consideration 
only the individual circumstances and conduct of each applicant and that an 
additional statement of grounds is required in relation to police records in order 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-62/23 
 
6  
for these to justify that the applicant’s conduct represents a genuine, present and 
sufficiently serious threat. 
12 In that judgment, the Tribunal Supremo (Supreme Court) refers to a number of 
judgments of the Court of Justice. In those judgments, the Court held that 
‘measures justified on grounds of public policy or public security may be taken 
only if, following a case-by-case assessment by the competent national authorities, 
it is shown that the personal conduct of the individual concerned currently 
constitutes a genuine and sufficiently serious threat to a fundamental interest of 
society’, requiring ‘that the threat that the personal conduct of the individual 
concerned represents to the fundamental interests of the host society, on the one 
hand, must be weighed against the protection of the rights which Union citizens 
and their family members derive from Directive 2004/38, on the other’ (judgment 
of 2 May 2018, K. and H.F. (Right of residence and allegations of the commission 
of war crimes), C-331/16, ‘judgment in K. and H.F.’, EU:C:2018:296, 
paragraphs 52 and 62). The Court also held that ‘a measure which restricts the 
right of freedom of movement may be justified only if it complies with the 
principle of proportionality, which presupposes determining whether that measure 
is appropriate to ensure the achievement of the objective it pursues and does not 
go beyond what is necessary to attain it’ (judgment in K. and H.F., paragraph 61) 
and that ‘the public policy exception constitutes a derogation from the right of 
residence of Union citizens and their family members, which must be interpreted 
strictly and the scope of which cannot be determined unilaterally by the Member 
States’ (judgment of 13 September 2016, Rendón Marín, C-165/14, 
EU:C:2016:675, paragraph 58).