Opinion of the Advocate General — ECLI:EU:C:2001:446
Date: 2001-09-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

SUMMARY — CASE C-459/99 
Summary of the Judgment 
1. Freedom of movement for persons — Right of entry and residence for nationals of 
Member States — Right of entry for members of their family — Spouse who is a third 
country national and is not in possession of identity documents or a visa but able to 
prove his identity and the conjugal ties — No grounds of public policy, public security 
or public health — Sending back at the border — Not permissible 
(Council Regulation No 2317/95; Council Directives 68/360, Arts 3 and 10, and 
73/148, Arts 3 and 8) 
2. Freedom of movement for persons — Right of entry and residence for nationals of 
Member States — Right of residence for members of their family — Spouse who is a 
third country national able to prove his identity and the conjugal ties who has entered 
the territory of a Member State unlawfully — Refusal of a residence permit and issue 
of an expulsion order based on that ground alone — Not permissible — Adoption of 
measures of public policy or public security referred to in Directive 64/221 •— Not 
permissible 
(Council Directives 64/221, Art. 3, 68/360, Arts 4 and 10, and 73/148, Arts 4, 6 and 8) 
3. Freedom of movement for persons — Right of entry and residence for nationals of 
Member States — Right of entry and residence for members of their family — Spouse 
who is a third country national and has entered the territory of a Member State 
lawfully — Refusal of a residence permit and issue of an expulsion order on the sole 
ground that a visa has expired — Not permissible 
(Council Directives 64/221, Art. 3(3), 68/360, Arts 3 and 4(3), and 73/148, Arts 3 and 
6) 
4. Freedom of movement for persons — Derogations — Decisions concerning the 
control of aliens — Decision refusing to issue a first residence permit — Decision 
ordering expulsion before any residence permit has been issued — Examination and 
opinion procedure before the competent authority — Scope — Decisions adopted 
against a foreign national married to a national of a Member State and not in 
possession of identity documents or a visa — Included 
(Council Directive 64/221, Arts 1(2) and 9) 
1. On a proper construction of Article 3 
of Directive 68/360, Article 3 of Direc­
t ive 7 3 / 1 4 8 and R e g u l a t i o n 
No 2317/95, read in the light of the 
principle of proportionality, a Member 
State may not send back at the border a 
third country national who is married 
to a national of a Member State and 
attempts to enter its territory without 
being in possession of a valid identity 
card or passport or, if necessary, a visa, 
where he is able to prove his identity 
and the conjugal ties and there is no 
evidence to establish that he represents 
a risk to the requirements of public 
policy, public security or public health 
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MRAX 
within the meaning of Article 10 of 
Directive 68/360 and Article 8 of 
Directive 73/148. 
In view of the importance which the 
Community legislature has attached to 
the protection of family life, it is in any 
event disproportionate and, therefore, 
prohibited to send back a third country 
national in such a case. 
(see paras 61-62, 
operative part 1) 
2. On a proper construction of Article 4 
of Directive 68/360 and Article 6 of 
Directive 73/148, a Member State is 
not permitted to refuse issue of a 
residence permit and to issue an expul­
sion order against a third country 
national who is able to furnish proof 
of his identity and of his marriage to a 
national of a Member State on the sole 
ground that he has entered the territory 
of the Member State concerned unlaw­
fully. 
While Community law does not pre­
vent the Member States from prescrib­
ing, for breaches of national provisions 
concerning the control of aliens, any 
appropriate sanctions necessary in 
order to ensure the efficacity of those 
provisions provided that those sanc­
tions are proportionate, refusal of a 
residence permit, and an expulsion 
order, based solely on the failure of 
the person concerned to comply with 
legal formalities concerning the control 
of aliens would impair the very sub­
stance of the right of residence and 
would be manifestly disproportionate 
to the gravity of the infringement. Nor 
can such failure in itself give rise to 
application of the measures of public 
policy and public security referred to in 
Article 3 of Directive 64/221. 
(see paras 77-80, 
operative part 2) 
3. On a proper construction of Articles 3 
and 4(3) of Directive 68/360, Articles 3 
and 6 of Directive 73/148 and 
Article 3(3) of Directive 64/221, a 
Member State may neither refuse to 
issue a residence permit to a third 
country national who is married to a 
national of a Member State and 
entered the territory of that Member 
State lawfully, nor issue an order 
expelling him from the territory, on 
the sole ground that his visa expired 
before he applied for a residence per­
mit. 
While Article 4(3) of Directive 68/360 
and Article 6 of Directive 73/148 auth­
orise the Member States to demand, for 
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SUMMARY — CASE C-459/99 
the purpose of issue of a residence 
permit, production of the document 
with which the person concerned 
entered their territory, they do not lay 
down that that document must still be 
valid. Furthermore, an order of expul­
sion from national territory on the sole 
ground that a visa has expired would 
constitute a sanction manifestly dispro­
portionate to the gravity of the breach 
of the national provisions concerning 
the control of aliens. 
(see paras 89-91, 
operative part 3) 
4. On a proper cons t ruc t ion of 
Articles 1(2) and 9(2) of Directive 
64/221, a foreign national married to 
a national of a Member State has the 
right to refer to the competent auth­
ority envisaged in Article 9(1) a 
decision refusing to issue a first resi­
dence permit or ordering his expulsion 
before the issue of the permit, including 
where he is not in possession of an 
identity document or where, requiring 
a visa, he has entered the territory of a 
Member State without one or has 
remained there after its expiry. 
The provisions of Article 9 of the 
directive call for a broad interpretation 
as regards the persons to whom they 
apply, since the requirement for judi­
cial review of any decision of a national 
authority reflects a general principle 
stemming from the constitutional tradi­
tions common to the Member States 
and enshrined in Articles 6 and 13 of 
the European Convention for Human 
Rights. 
Moreover, the minimum procedural 
guarantees laid down in Article 9 of 
the directive would be rendered largely 
ineffective if entitlement to them were 
excluded in the absence of an identity 
document or visa or where one of those 
documents has expired. 
(see paras 101, 103-104, 
operative part 4) 
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