Opinion of the Advocate General — ECLI:EU:C:2012:380
Date: 2012-06-21
Language of the case: Bulgarian
Subject matter: Citizenship of the Union;Right of entry and residence
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary — Judgment of the Court (Second Chamber), 4 October 2012 1. Citizenship of the Union — Right to move and reside freely within the territory of the Member States — Directive 2004/38 — Right to leave and to enter — Scope (Arts 20 TFEU and 21 TFEU; European Parliament and Council Directive 2004/38, Art. 4(1)) 2. Citizenship of the Union — Right to move and reside freely within the territory of the Member States — Directive 2004/38 — Restriction on the right to enter and reside on grounds of public policy or public security — National legislation under which the freedom of movement within the Union of a national of a Member State may be restricted because he owes a debt under private law — Unlawful (European Parliament and Council Directive 2004/38, Art. 27) 3. Citizenship of the Union — Right to move and reside freely within the territory of the Member State — Directive 2004/38 — Restriction on the right to enter and reside on grounds of public policy, public security of public health — Procedural safeguards — Scope (European Parliament and Council Directive 2004/38, Art. 31) 4. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant aspects of EU law — Reformulation of the questions (Art. 267 TFEU) 5. Citizenship of the Union — Right to move and reside freely within the territory of the Member States — Directive 2004/38 — Restriction on the right to enter and reside on grounds of public policy, public security or public health — Temporal effects of a prohibition on leaving the territory — Right to have such a measure reviewed — Scope (European Parliament and Council Directive 2004/38, Art. 32) 6. Citizenship of the Union — Right to move and reside freely within the territory of the Member States — Duty of sincere cooperation — Principe of effectiveness — Prohibition on leaving the territory which has not been challenged before the courts and has become final — National legislation strictly limiting the reopening of the administrative procedure which led to adoption of a decision clearly contrary to EU law — Unlawful (Art. 4(3) TEU; Art. 21 TFEU) 1. See the text of the decision. (see paras 30-32) 2. European Union law must be interpreted as precluding the application of a national provision which provides for the imposition of a restriction on the freedom of movement, within the European Union, of a national of a Member State, solely on the ground that he owes a legal person governed by private law a debt which exceeds a statutory threshold and is unsecured. Even if the view could reasonably be taken that some notion of safeguarding the requirements of public policy underlies the objective pursued by the national legislation of protecting creditors, it cannot be ruled out that a prohibition on leaving the territory, which is adopted on the basis of that legislation, pursues an exclusively economic objective. However, Article 27(1) 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 expressly excludes the possibility of a Member State invoking grounds of public policy to serve economic ends. As regards, furthermore, the proportionality of such legislation, there exists within European Union law a body of legal rules that are capable of protecting creditors’ rights without necessarily restricting the debtor’s freedom of movement. Accordingly, it cannot be concluded that, on account of the exclusion under Article 27(1) of Directive 2004/38 of exceptions invoked to serve economic ends, the European Union legal order does not afford a level of protection of the property rights of others — in this case creditors — which is at least equivalent to that established under the European Convention on the Protection of Human Rights. (see paras 39, 45, 46, 48, operative part 1) 3. See the text of the decision. (see paras 53-56) 4. See the text of the decision. (see paras 57, 58) 5. See the text of the decision. (see paras 67, 68) 6. European Union law must be interpreted as precluding legislation of a Member State under which an administrative procedure that has resulted in the adoption of a prohibition on leaving the territory, which has become final and has not been contested before the courts, may be reopened — in the event of the prohibition being clearly contrary to European Union law — only in circumstances exhaustively listed in that legislation, despite the fact that such a prohibition continues to produce legal effects with regard to its addressee. Such legislation, which makes no provision for regular review, maintains for an unlimited period a prohibition on leaving the territory and thereby perpetuates an infringement of the right laid down in Article 21(1) TFEU to move and reside freely within the territory of the Member States. In such circumstances, a prohibition of that kind is the antithesis of the freedom conferred by Union citizenship to move and reside within the territory of the Member States. Furthermore, by means of Article 32(1) 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, the European Union legislature has placed an obligation on the Member States to ensure that it is possible for measures which prohibit a person from entering or leaving their territories to be reviewed, even where those measures have been validly adopted under European Union law and even where they have become final. There is all the more reason why that should be the case in relation to prohibitions on leaving the territory which have not been validly adopted under European Union law and are the antithesis of the freedom laid down in Article 21(1) TFEU. In such a situation, the principle of legal certainty does not entail an absolute requirement that an act imposing such a prohibition should continue to produce legal effects for an unlimited period. In view also of the importance which primary law accords to citizenship of the Union, national legislation which (i) prevents citizens of the Union from asserting the right conferred on them by Article 21 TFEU to move and reside freely against absolute territorial prohibitions adopted for an unlimited period and (ii) prevents administrative bodies from acting upon a body of case-law whereby the Court has confirmed the illegality, under European Union law, of such prohibitions, cannot reasonably be justified by the principle of legal certainty and must therefore be considered, in this respect, to be contrary to the principle of effectiveness and to Article 4(3) TEU. (see paras 79-82, operative part 2)