61979CJ0157_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 157/794
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PONTYPRIDD MAGISTRATES '
COURT, MID GLAMORGAN, WALES, FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
REGINA
AND
STANISLAUS PIECK,
Subject of the case
ON THE INTERPRETATION OF ARTICLES 7 AND 48 OF THE EEC TREATY AND OF COUNCIL DIRECTIVES NO 68/360 OF 15 OCTOBER 1968 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( II ), P . 485 ) ON THE ABOLITION OF RESTRICTIONS ON MOVEMENT AND RESIDENCE WITHIN THE COMMUNITY FOR WORKERS OF MEMBER STATES AND THEIR FAMILIES AND NO 64/221 OF 25 FEBRUARY 1964 ( OFFICIAL JOURNAL, ENGLISH
SPECIAL EDITION 1963-1964, P . 117 ) 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,
Grounds
1 BY ORDER OF 5 SEPTEMBER 1979, WHICH WAS RECEIVED AT THE COURT ON 15 OCTOBER 1979, THE PONTYPRIDD MAGISTRATES '
COURT UNDER ARTICLE 177 OF THE EEC TREATY ASKED THREE QUESTIONS ON THE INTERPRETATION OF ARTICLES 7 AND 48 OF THE TREATY AND OF COUNCIL DIRECTIVES NO 64/221 OF 25 FEBRUARY 1964 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 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1963-1964, P . 117 ) AND NO 68/360 OF 15 OCTOBER 1968 ON THE ABOLITION OF RESTRICTIONS ON MOVEMENT AND RESIDENCE WITHIN THE COMMUNITY FOR WORKERS OF MEMBER STATES AND THEIR FAMILIES ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( II ), P . 485 ).
2 CRIMINAL PROCEEDINGS WERE BROUGHT IN THE NATIONAL COURT AGAINST A NETHERLANDS NATIONAL, RESIDING IN CARDIFF, WALES, AND PURSUING AN ACTIVITY AS AN EMPLOYED PERSON, WHO WAS CHARGED THAT, BEING A PERSON WHO WAS NOT A ' ' PATRIAL ' '
( A BRITISH NATIONAL HAVING A RIGHT OF ABODE IN THE UNITED KINGDOM ) AND HAVING ONLY BEEN GRANTED LEAVE TO ENTER THE UNITED KINGDOM OR TO REMAIN THERE FOR A LIMITED PERIOD, KNOWINGLY REMAINED BEYOND THE TIME LIMITED BY THE LEAVE . THE ACCUSED HELD NO RESIDENCE PERMIT ; WHEN HE LAST ENTERED THE TERRITORY OF THE UNITED KINGDOM, ON 29 JULY 1978, AN ENDORSEMENT CONTAINING THE WORDS ' ' GIVEN LEAVE TO ENTER THE UNITED KINGDOM FOR SIX MONTHS ' '
WAS STAMPED ON HIS PASSORT .
THE FIRST QUESTION
3 IN ITS FIRST QUESTION THE COURT ASKS WHAT IS THE MEANING OF ' ' ENTRY VISA OR EQUIVALENT DOCUMENT ' '
IN ARTICLE 3 ( 2 ) OF COUNCIL DIRECTIVE NO 68/360 .
4 THE COURT HAS ALREADY STATED ON SEVERAL OCCASIONS THAT THE RIGHT OF NATIONALS OF A MEMBER STATE TO ENTER THE TERRITORY OF ANOTHER MEMBER STATE AND RESIDE THERE FOR THE PURPOSES INTENDED BY THE TREATY IS A RIGHT CONFERRED DIRECTLY BY THE TREATY OR, AS THE CASE MAY BE, BY THE PROVISIONS ADOPTED FOR ITS IMPLEMENTATION .
5 THE AIM OF DIRECTIVE NO 68/360, AS THE RECITALS IN THE PREAMBLE THERETO SHOW, IS TO ADOPT MEASURES FOR THE ABOLITION OF RESTRICTIONS WHICH STILL EXIST CONCERNING MOVEMENT AND RESIDENCE WITHIN THE COMMUNITY, WHICH CONFORM TO THE RIGHTS AND PRIVILEGES ACCORDED TO NATIONALS OF MEMBER STATES BY REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 IN FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY . TO THIS END THE DIRECTIVE LAYS DOWN THE CONDITIONS ON WHICH NATIONALS OF MEMBER STATES MAY EXERCISE THEIR RIGHT TO LEAVE THEIR STATE OF ORIGIN TO TAKE UP ACTIVITIES AS EMPLOYED PERSONS IN THE TERRITORY OF ANOTHER MEMBER STATE AND THEIR RIGHT TO ENTER THE TERRITORY OF THAT STATE AND TO RESIDE THERE .
6 IN THIS CONNEXION ARTICLE 3 ( 1 ) OF THE DIRECTIVE PROVIDES THAT MEMBER STATES SHALL ALLOW THE PERSONS TO WHOM REGULATION NO 1612/68 APPLIES TO ENTER THEIR TERRITORY ON PRODUCTION OF A VALID IDENTITY CARD OR PASSPORT . ARTICLE 3 ( 2 ) CONTAINS THE FURTHER PROVISION THAT NO ENTRY VISA OR EQUIVALENT REQUIREMENT MAY BE DEMANDED FROM THESE WORKERS .
7 IN THE COURSE OF THE PROCEDURE BEFORE THE COURT THE BRITISH GOVERNMENT MAINTAINED THAT THE PHRASE ' ' ENTRY VISA ' '
MEANS EXCLUSIVELY A DOCUMENTARY CLEARANCE ISSUED BEFORE THE TRAVELLER ARRIVES AT THE FRONTIER IN THE FORM OF AN ENDORSEMENT ON HIS PASSPORT OR OF A SEPARATE DOCUMENT . ON THE CONTRARY AN EDORSEMENT STAMPED ON A PASSPORT AT THE TIME OF ARRIVAL GIVING LEAVE TO ENTER THE TERRITORY MAY NOT BE REGARDED AS AN ENTRY VISA OR EQUIVALENT DOCUMENT .
8 THIS ARGUMENT CANNOT BE UPHELD . FOR THE PURPOSE OF APPLYING THE DIRECTIVE, THE OBJECT OF WHICH IS TO ABOLISH RESTRICTIONS ON MOVEMENT AND RESIDENCE FOR COMMUNITY WORKERS WITHIN THE COMMUNITY, THE TIME AT WHICH CLEARANCE TO ENTER THE TERRITORY OF A MEMBER STATE HAS BEEN GIVEN AND INDICATED ON A PASSPORT OR BY ANOTHER DOCUMENT IS IMMATERIAL . FURTHERMORE THE RIGHT OF COMMUNITY WORKERS TO ENTER THE TERRITORY OF A MEMBER STATE WHICH COMMUNITY LAW CONFERS MAY NOT BE MADE SUBJECT TO THE ISSUE OF A CLEARANCE TO THIS EFFECT BY THE AUTHORITIES OF THAT MEMBER STATE .
9 ADMITTEDLY THE RIGHT OF ENTRY FOR THE WORKERS IN QUESTION IS NOT UNLIMITED . NEVERTHELESS THE ONLY RESTRICTION WHICH ARTICLE 48 OF THE TREATY LAYS DOWN CONCERNING FREEDOM OF MOVEMENT IN THE TERRITORY OF MEMBER STATES IS THAT OF LIMITATIONS JUSTIFIED ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH . THIS RESTRICTION MUST BE REGARDED NOT AS A CONDITION PRECEDENT TO THE ACQUISITION OF THE RIGHT OF ENTRY AND RESIDENCE BUT AS PROVIDING THE POSSIBILITY, IN INDIVIDUAL CASES WHERE THERE IS SUFFICIENT JUSTIFICATION, OF IMPOSING RESTRICTIONS ON THE EXERCISE OF A RIGHT DERIVED DIRECTLY FROM THE TREATY . IT DOES NOT THEREFORE JUSTIFY ADMINISTRATIVE MEASURES REQUIRING IN A GENERAL WAY FORMALITIES AT THE FRONTIER OTHER THAN SIMPLY THE PRODUCTION OF A VALID IDENTITY CARD OR PASSPORT .
10 THE ANSWER TO THE FIRST QUESTION SHOULD THEREFORE BE THAT ARTICLE 3 ( 2 ) OF DIRECTIVE NO 68/360 PROHIBITING MEMBER STATES FROM DEMANDING AN ENTRY VISA OR EQUIVALENT REQUIREMENT FOR COMMUNITY WORKERS MOVING WITHIN THE COMMUNITY MUST BE INTERPRETED AS MEANING THAT THE PHRASE ' ' ENTRY VISA OR EQUIVALENT REQUIREMENT ' '
COVERS ANY FORMALITY FOR THE PURPOSE OF GRANTING LEAVE TO ENTER THE TERRITORY OF A MEMBER STATE WHICH IS COUPLED WITH A PASSPORT OR IDENTITY CARD CHECK AT THE FRONTIER, WHATEVER MAY BE THE PLACE OR TIME AT WHICH THAT LEAVE IS GRANTED AND IN WHATEVER FORM IT MAY BE GRANTED .
THE SECOND QUESTION
11 IN ITS SECOND QUESTION THE NATIONAL COURT SEEKS TO ASCERTAIN WHETHER, UPON ENTRY INTO A MEMBER STATE BY AN EEC NATIONAL, THE GRANTING BY THAT MEMBER STATE OF AN INITIAL LEAVE TO REMAIN FOR A PERIOD LIMITED TO SIX MONTHS IS COMPATIBLE WITH ARTICLES 7 AND 48 OF THE TREATY AND WITH COUNCIL DIRECTIVES NO 64/221 AND NO 68/360 .
12 ARTICLE 4 OF DIRECTIVE NO 68/360 PROVIDES THAT MEMBER STATES SHALL GRANT THE RIGHT OF RESIDENCE IN THEIR TERRITORY TO THE PERSONS REFERRED TO IN THE DIRECTIVE AND GOES ON TO SAY THAT AS ' ' PROOF ' '
OF THIS RIGHT A SPECIAL RESIDENCE PERMIT SHALL BE ISSUED . THIS PROVISION MUST INTERPRETED IN THE LIGHT OF THE RECITALS IN THE PREAMBLE TO THE DIRECTIVE, ACCORDING TO WHICH THE RULES APPLICABLE TO RESIDENCE SHOULD, AS FAR AS POSSIBLE, BRING THE POSITION OF WORKERS FROM OTHER MEMBER STATES INTO LINE WITH THAT OF NATIONALS .
13 THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 14 JULY 1977 IN CASE 8/77 SAGULO, BRENCA AND BAKHOUCHE ( 1977 ) ECR 1495 THAT THE ISSUE OF A SPECIAL RESIDENCE DOCUMENT PROVIDED FOR IN ARTICLE 4 ABOVE-MENTIONED HAS ONLY A DECLARATORY EFFECT AND THAT, FOR ALIENS TO WHOM ARTICLE 48 OF THE TREATY OR PARALLEL PROVISIONS GIVE RIGHTS, IT CANNOT BE ASSIMILATED TO A RESIDENCE PERMIT SUCH AS IS PRESCRIBED FOR ALIENS IN GENERAL, IN CONNEXION WITH THE ISSUE OF WHICH THE NATIONAL AUTHORITIES HAVE A DISCRETION . THE COURT WENT ON TO SAY THAT A MEMBER STATE MAY NOT THEREFORE REQUIRE FROM A PERSON ENJOYING THE PROTECTION OF COMMUNITY LAW THAT HE SHOULD POSSESS A GENERAL RESIDENCE PERMIT INSTEAD OF THE DOCUMENT PROVIDED FOR IN ARTICLE 4 OF DIRECTIVE
NO 68/360 .
14 IT FOLLOWS THAT THE ANSWER TO THE SECOND QUESTION HAS ALREADY BEEN GIVEN BY THE COURT IN THE ABOVE-MENTIONED JUDGMENT .
THE THIRD QUESTION
15 THE THIRD QUESTION ASKS WHETHER A NATIONAL OF A MEMBER STATE OF THE COMMUNITY WHO HAS OVERSTAYED THE LEAVE GRANTED IN THE RESIDENCE PERMIT MAY BE PUNISHED IN THAT MEMBER STATE BY MEASURES WHICH INCLUDE IMPRISONMENT AND/OR A RECOMMENDATION FOR DEPORTATION .
16 IN THE ABOVE-MENTIONED JUDGMENT OF 14 JULY 1977 THE COURT HAS ALREADY DECIDED THAT THE IMPOSITION OF PENALTIES OR OTHER COERCIVE MEASURES IS RULED OUT IN SO FAR AS A PERSON PROTECTED BY THE PROVISIONS OF COMMUNITY LAW DOES NOT COMPLY WITH NATIONAL PROVISIONS WHICH PRESCRIBE FOR SUCH A PERSON POSSESSION OF A GENERAL RESIDENCE PERMIT INSTEAD OF THE DOCUMENT PROVIDED FOR IN DIRECTIVE NO 68/360, SINCE THE NATIONAL AUTHORITIES SHOULD NOT IMPOSE PENALTIES FOR DISREGARD OF A PROVISION WHICH IS INCOMPATIBLE WITH COMMUNITY LAW .
17 HAVING REGARD HOWEVER TO THE CIRCUMSTANCES OF THIS CASE AS STATED BY THE NATIONAL COURT AND IN THE LIGHT OF THE ANSWER JUST GIVEN TO THE SECOND QUESTION, THE THIRD QUESTION MAY ALSO BE UNDERSTOOD AS RAISING THE PROBLEM WHETHER THE FAILURE ON THE PART OF A NATIONAL OF A MEMBER STATE OF THE
COMMUNITY, TO WHOM THE RULES ON FREEDOM OF MOVEMENT FOR WORKERS APPLY, TO OBTAIN THE SPECIAL RESIDENCE PERMIT PRESCRIBED IN ARTICLE 4 OF DIRECTIVE NO 68/360 MAY BE PUNISHED BY MEASURES WHICH INCLUDE IMPRISONMENT OR A RECOMMENDATION FOR DEPORTATION .
18 AMONG THE PENALTIES ATTACHING TO A FAILURE TO COMPLY WITH THE FORMALITIES REQUIRED AS PROOF OF THE RIGHT OF RESIDENCE OF A WORKER ENJOYING THE PROTECTION OF COMMUNITY LAW, DEPORTATION IS CERTAINLY INCOMPATIBLE WITH THE PROVISIONS OF THE TREATY SINCE, AS THE COURT HAS ALREADY CONFIRMED IN OTHER CASES, SUCH A MEASURE NEGATES THE VERY RIGHT CONFERRED AND GUARANTEED BY THE TREATY .
19 AS REGARDS OTHER PENALTIES SUCH AS FINES AND IMPRISONMENT, WHILST THE NATIONAL AUTHORITIES ARE ENTITLED TO IMPOSE PENALTIES IN RESPECT OF FAILURE TO COMPLY WITH THE TERMS OF PROVISIONS RELATING TO RESIDENCE PERMITS WHICH ARE COMPARABLE TO THOSE ATTACHING TO MINOR OFFENCES BY NATIONALS, THEY ARE NOT JUSTIFIED IN IMPOSING A PENALTY SO DISPROPORTIONATE TO THE GRAVITY OF THE INFRINGEMENT THAT IT BECOMES AN OBSTACLE TO THE FREE MOVEMENT OF PERSONS . THIS WOULD BE ESPECIALLY SO IF THAT PENALTY INCLUDED IMPRISONMENT .
20 IT FOLLOWS THAT THE FAILURE ON THE PART OF A NATIONAL OF A MEMBER STATE OF THE COMMUNITY, TO WHOM THE RULES ON FREEDOM OF MOVEMENT FOR WORKERS APPLY, TO OBTAIN THE SPECIAL RESIDENCE PERMIT PRESCRIBED IN ARTICLE 4 OF DIRECTIVE NO 68/360 MAY NOT BE PUNISHED BY A RECOMMENDATION FOR DEPORTATION OR BY MEASURES WHICH GO AS FAR AS IMPRISONMENT .
Decision on costs
21 THE COSTS INCURRED BY THE GOVERNMENT OF THE UNITED KINGDOM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PONTYPRIDD MAGISTRATES '
COURT, MID GLAMORGAN, WALES, BY ORDER OF 5 SEPTEMBER 1979 HEREBY RULES :
1 . ARTICLE 3 ( 2 ) OF COUNCIL DIRECTIVE NO 68/360 OF 15 OCTOBER 1958 PROHIBITING MEMBER STATES FROM DEMANDING AN ENTRY VISA OR EQUIVALENT REQUIREMENT FROM COMMUNITY WORKERS MOVING WITHIN THE COMMUNITY MUST BE INTERPRETED AS MEANING THAT THE PHRASE ' ' ENTRY VISA OR EQUIVALENT REQUIREMENT ' '
COVERS ANY FORMALITY FOR THE PURPOSE OF GRANTING LEAVE TO ENTER THE TERRITORY OF A MEMBER STATE WHICH IS COUPLED WITH A PASSPORT OR IDENTITY CARD CHECK AT THE FRONTIER, WHATEVER MAY BE THE PLACE OR TIME AT WHICH THAT LEAVE IS GRANTED AND IN WHATEVER FORM IT MAY BE GRANTED .
2.(A ) THE ISSUE OF A SPECIAL RESIDENCE DOCUMENT PROVIDED FOR IN ARTICLE 4 OF COUNCIL DIRECTIVE NO 68/360 OF 15 OCTOBER 1968 HAS ONLY A DECLARATORY EFFECT AND FOR ALIENS TO WHOM ARTICLE 48 OF THE TREATY OR PARALLEL PROVISIONS GIVE RIGHTS, IT CANNOT BE ASSIMILATED TO A RESIDENCE PERMIT SUCH AS IS PRESCRIBED FOR ALIENS IN GENERAL, IN CONNEXION WITH THE ISSUE OF WHICH THE NATIONAL AUTHORITIES HAVE A DISCRETION .
( B)A MEMBER STATE MAY NOT REQUIRE FROM A PERSON ENJOYING THE PROTECTION OF COMMUNITY LAW THAT HE SHOULD POSSESS A GENERAL RESIDENCE PERMIT INSTEAD OF THE DOCUMENT PROVIDED FOR IN ARTICLE 4 ( 2 ) OF DIRECTIVE NO 68/360 IN CONJUNCTION WITH THE ANNEX THERETO .
3.THE FAILURE ON THE PART OF A NATIONAL OF A MEMBER STATE OF THE COMMUNITY, TO WHOM THE RULES ON FREEDOM OF MOVEMENT FOR WORKERS
APPLY, TO OBTAIN THE SPECIAL RESIDENCE PERMIT PRESCRIBED IN ARTICLE 4 OF DIRECTIVE NO 68/360 MAY NOT BE PUNISHED BY A RECOMMENDATION FOR DEPORTATION OR BY MEASURES WHICH GO AS FAR AS IMPRISONMENT .