Opinion of the Advocate General — ECLI:EU:C:2005:337
Date: 2005-06-02
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Germany

Summary of the Judgment 1. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission (Art. 226 EC) 2. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination in the course of the pre-litigation procedure (Art. 226 EC) 3. Freedom of movement for persons – Exceptions – Public policy grounds (Art. 39 EC; Council Directives 64/221, Art. 3, and 73/148, Art. 10) 1. In proceedings for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose. With regard in particular to a complaint concerning the implementation of a national provision, proof of a Member State’s failure to fulfil its obligations requires production of evidence different from that usually taken into account in an action for failure to fulfil obligations concerning solely the terms of a national provision. In those circumstances the failure to fulfil obligations can be established only by means of sufficiently documented and detailed proof of the alleged practice of the national administration and/or courts, for which the Member State concerned is answerable. Furthermore, although a State’s action consisting in an administrative practice contrary to the requirements of Community law can amount to a failure to fulfil obligations for the purposes of Article 226 EC, that administrative practice must be, to some degree, of a consistent and general nature. (see paras 48-50) 2. The letter of formal notice sent by the Commission to a Member State, and the reasoned opinion issued by the Commission under Article 226 EC, delimit the subject-matter of the dispute, so that it cannot thereafter be extended. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure. However, there can be no requirement that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, where the subject-matter of the proceedings has not been extended or altered but simply limited. (see paras 59-61) 3. Reliance by a national authority on the concept of public policy as a derogation from the fundamental principle of freedom of movement for persons presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to one of the fundamental interests of society. A Member State which provides that, in the case of Community nationals holding an unlimited residence permit, only ‘serious’ public policy grounds can justify expulsion fails in this respect to fulfil its obligations under Article 39 EC, Article 3 of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health and Article 10 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. Such national legislation gives rise to doubt as to whether the requirements of Community law are properly taken into consideration in the case of Community nationals holding a limited residence permit. (see paras 34, 70, 72, 126, operative part)