Opinion of the Advocate General — ECLI:EU:C:2008:92
Date: 2008-02-14
Language of the case: Romanian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary of the Judgment 1. Citizenship of the European Union – Provisions of the Treaty – Scope ratione personae (Arts 17(1) EC and 18 EC) 2. Citizenship of the European Union – Right of free movement and residence in the territory of the Member States – Directive 2004/38 (Art. 18 EC; European Parliament and Council Directive 2004/38, Art. 27) 1. A national of a Member State who has been repatriated from another Member State enjoys the status of a citizen of the Union under Article 17(1) EC and may therefore rely on the right pertaining to that status, including against his Member state of origin, and in particular the right conferred by Article 18 EC to move and reside freely within the territory of the Member States. In that regard, the right of freedom of movement includes both the right for citizens of the European Union to enter a Member State other than the one of origin and the right to leave the State of origin. The fundamental freedoms guaranteed by the EC Treaty would be rendered meaningless if the Member State of origin could, without valid justification, prohibit its own nationals from leaving its territory in order to enter the territory of another Member State. (see paras 17-18) 2. Articles 18 EC and 27 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 amending Regulation No 1612/68 and repealing Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96 do not preclude national legislation that allows the right of a national of a Member State to travel to another Member State to be restricted, in particular on the ground that he has previously been repatriated from the latter Member State on account of his ‘illegal residence’ there, provided that the personal conduct of that national constitutes a genuine, present and sufficiently serious threat to one of the fundamental interests of society and that the restrictive measure envisaged is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it. It is for the national court to establish, on the basis of the matters of fact and law justifying the request for a restriction on the right to leave the first Member State whether that is so in the case before it. A measure limiting the exercise of the right of free movement must be adopted in the light of considerations pertaining to the protection of public policy or public security in the Member State imposing the measure. Thus it cannot be based exclusively on reasons advanced by another Member State to justify a decision to remove a Community national from the territory of the latter State. That does not however rule out the possibility of such reasons being taken into account in the context of the assessment which the competent national authorities undertake for the purpose of adopting the measure restricting freedom of movement. (see paras 25, 28, 30, operative part)