Opinion of the Advocate General — ECLI:EU:C:2004:653
Date: 2004-10-21
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the judgment 1. Freedom of movement for persons – Right of entry and residence for nationals of Member States – Recognition of the right of residence of a recipient of services who is a national of another Member State made subject to the production of an identity card or a passport to the exclusion of all other means of proof of identity or of nationality – Not permitted (Council Directive 73/148, Art. 4(2), subpara. 3) 2. Freedom to provide services – Freedom of movement for recipients of services – Equal treatment – Discrimination on grounds of nationality – Requirement for nationals of other Member States to provide an identity card or a passport in order to prove their nationality to the exclusion of all other means of proof – Not permitted (Arts 12 EC and 49 EC) 3. Freedom of movement for persons – Freedom to provide services – Right of entry and residence for nationals of Member States – Failure to comply with the obligation to produce an identity card or a passport – No threat to public policy – Detention order with a view to deportation – Not permitted (Art. 49 EC; Council Directive 73/148, Art. 8) 4. Freedom of movement for persons – Freedom to provide services – Right of entry and residence for nationals of Member States – Requirement to provide evidence establishing that residence is lawful – Right of host Member State to undertake deportation if no such evidence is provided (Art. 49 EC; Council Directive 73/148) 1. The third subparagraph of Article 4(2) of Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services is to be interpreted as meaning that the recognition by a Member State of the right of residence of a recipient of services who is a national of another Member State may not be made subject to his production of a valid identity card or passport, where his identity and nationality can be proven unequivocally by other means. (see para. 26, operative part 1) 2. It is contrary to Article 49 EC for nationals of a Member State who reside in another Member State as recipients of services to be required in that Member State to present a valid identity card or passport in order to prove their nationality, when that Member State does not impose a general obligation on its own nationals to provide evidence of identity, and permits them to prove their identity by any means allowed by national law. In the area of freedom to provide services, Article 49 EC is a specific expression of the principle of equal treatment provided for in Article 12 EC, which prohibits all discrimination on grounds of nationality. Community law does not prevent a Member State from carrying out checks on compliance with the obligation to be able to produce proof of identity at all times, provided that it imposes the same obligation on its own nationals as regards their identity card. (see paras 33-35, operative part 2) 3. A detention order with a view to deportation in respect of a national of another Member State who resides as the recipient of services, imposed on the basis of failure to present a valid identity card or passport even when there is no threat to public policy, constitutes an unjustified restriction on the freedom to provide services and is therefore contrary to Article 49 EC. Whilst the Member States may still impose penalties for breach of the requirement to present an identity card or passport, the penalties must, however, be comparable to those which apply to similar national infringements and be proportionate. In that regard, detention and deportation based solely on the failure of the person concerned to comply with legal formalities concerning the monitoring of aliens impair the very substance of the right of residence directly conferred by Community law and are manifestly disproportionate to the seriousness of the infringement. A detention order can only be based on an express derogating provision, such as Article 8 of Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, which allows Member States to place restrictions on the right of residence of nationals of other Member States in so far as such restrictions are justified on grounds of public policy, public security or public health. Failure to comply with legal formalities pertaining to aliens’ access, movement and residence does not, however, by itself constitute a threat to public policy or security. (see paras 38, 40-42, 44, operative part 3) 4. Without prejudice to questions pertaining to public policy, public security and public health, it is for nationals of a Member State residing in another Member State in their capacity as recipients of services to provide evidence establishing that their residence is lawful within the meaning of Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. In the absence of a valid identity card or passport, evidence of identity and nationality may, however, be provided by other means. Similarly, evidence that such nationals come within one of the categories referred to in Articles 1 and 4 of Directive 73/148 may, in accordance with Article 6 of the directive, be adduced by any appropriate means. If no such evidence is provided, the host Member State may undertake deportation, subject to the limits imposed by Community law. (see paras 53-56, operative part 4)