Opinion of the Advocate General — ECLI:EU:C:2010:322
Date: 2010-06-08
Language of the case: German
Subject matter: Citizenship of the Union;Right of entry and residence
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Citizens of the European Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Restriction of the right of entry and right of residence on grounds of public policy or public security – Protection against expulsion – Condition (European Parliament and Council Directive 2004/38, Art. 28(3)(a)) 2. Citizens of the European Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Restriction of the right of entry and right of residence on grounds of public policy or public security – Expulsion decision – Elements to be taken into consideration – Determination by the national court (European Parliament and Council Directive 2004/38, Arts 27 and 28) 3. Citizens of the European Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Restriction of the right of entry and right of residence on grounds of public policy or public security – Protection against expulsion – Exceptions (European Parliament and Council Directive 2004/38, Art. 28(2) and (3)) 1. Article 28(3)(a) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as meaning that, in order to determine whether a Union citizen has resided in the host Member State for the ten years preceding the expulsion decision, which is the decisive criterion for granting enhanced protection under that provision, all the relevant factors must be taken into account in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State, reasons which may establish whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned. (see para. 38, operative part 1) 2. In the application of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, a balance must be struck between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned, assessed if necessary at the time when the expulsion decision is to be made, by reference in particular to the possible penalties and the sentences imposed, the degree of involvement in the criminal activity, and, if appropriate, the risk of reoffending, on the one hand, and, on the other hand, the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which is not only in his interest but also in that of the European Union in general. The sentence passed must be taken into account as one element in that complex of factors. A sentence of five years’ imprisonment cannot lead to an expulsion decision without the factors described in the preceding paragraph being taken into account, which is for the national court to verify. In that assessment, account must be taken of the fundamental rights whose observance the Court ensures, in so far as reasons of public interest may be relied on to justify a national measure which is liable to obstruct the exercise of freedom of movement for persons only if the measure in question takes account of such rights, in particular the right to respect for private and family life as set forth in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention on Human Rights. (see paras 50-52) 3. Article 28(3) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is capable of being covered by the concept of ‘imperative grounds of public security’ which may justify a measure expelling a Union citizen who has resided in the host Member State for the preceding 10 years. Article 28(2) of Directive 2004/38 must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is covered by the concept of ‘serious grounds of public policy or public security’. (see para. 56, operative part 2)