61989CC0376_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
++++
Mr President,
Members of the Court,
1. This request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court) requires the Court to define the scope of Article 4 of Council Directive 68/360/EEC (1) of 15 October 1968 (hereinafter referred to as "the Directive") in relation to the grant by the Member States of the right of residence within their territory accorded to Community subjects. That provision has already been the subject of a number of decisions by the Court. In this case, however, the provision must be viewed from a new angle.
2. The facts set out by the Bundesverwaltungsgericht may be summarized as follows: Mr Giagounidis, a Greek national, entered the Federal Republic of Germany in 1973 on production of a passport. He was granted a residence permit and then, from 1981, the year when the Act relating to Greece' s accession to the Communities entered into force, a residence permit for a national of a Member State of the EEC. Since finishing his studies he has been working as a teacher in Germany. In November 1984, he applied for a "residence entitlement", a document affording greater security than an EEC national' s residence permit. The German authorities refused to grant his application. After a further refusal, the Verwaltungsgerichtshof (Higher Administrative Court) dismissed his action on appeal, on the ground that he had not been able to prove his identity for a certain period of time, which was a breach of the provisions of the Auslaendergesetz (Law on Aliens) (2) and the Gesetz ueber Einreise und Aufenthalt von Staatsangehoerigen der EWG (Law on Entry and Residence of Nationals of EEC Member States, hereinafter referred to as the "Aufenthaltsgesetz EWG"). (3) This reference to two pieces of legislation should not cause any surprise. The former is relied on because a "residence entitlement" is involved, which is provided for in the Auslaendergesetz, and affords greater security than the EEC national' s residence permit. The second piece of legislation referred to reflects the applicant' s status as a national of a Member State. In any event, the condition causing difficulty in this case, namely the requirement that national identity documents should be valid, is common to both Laws. Accordingly, the Bundesverwaltungsgericht, to which Mr Giagounidis appealed on a point of law, has referred questions to the Court solely on the grant of the right of residence accorded under Community law. The grounds set out in the order for reference are based on Paragraph 10 of the Aufenthaltsgesetz EWG alone. Furthermore, the refusal to issue a residence document might just as well have occurred in connection with a residence permit.
3. More precisely, the Bundesverwaltungsgericht wishes to ascertain whether Article 4 of the Directive allows or obliges a Member State to grant the right of residence on its territory to the class of persons referred to in Article 1 of the Directive on production of an identity card, the geographical validity of which has been restricted by the issuing State to its own territory.
4. According to its first recital, the object of the Directive is the adoption of measures which conform to the rights and privileges accorded by Regulation (EEC) No 1612/68 of the Council (4) to nationals of any Member State who move in order to pursue activities as employed persons and to members of their families. In Article 1 the Council requires the Member States to abolish restrictions on the movement and residence of the said persons under the conditions set out in the articles that follow, which are in logical order. Article 2 provides first for the right to leave the territory of a Member State. Article 3 then goes on to deal with admission into the territory of a Member State.
5. Finally, Article 4(1) covers the grant of the right of residence:
"Member States shall grant the right of residence in their territory to the persons referred to in Article 1 who are able to produce the documents listed in paragraph 3."
Those documents are a confirmation of engagement from the employer or a certificate of employment, the existence of which is not disputed in this case, and the document with which the Community subject entered the territory. It is the latter requirement that gives rise to difficulty here.
6. It is clear that pursuant to Article 3 of the Directive the Member States must admit to their territory the persons referred to in Article 1 on production of a valid identity card or passport. Thus, the German legislature, (5) on the basis of a combination of Articles 3 and 4 of the Directive, laid down that for the purposes of grant of a residence entitlement a valid identity card or passport is required, which prima facie would not seem objectionable.
7. In its judgment in Case 8/77 Sagulo, Brenca and Bakhouche (6) the Court recognized that the requirement of a valid national identity card or passport put those concerned in a position to prove their status with regard to the application of the provisions of the Treaty whilst enabling the Member States to obtain information on movements of population in their territory. Moreover, the Court confirmed that such a requirement applied to a person who was "entitled under Community law to reside in the territory of the country in question". (7)
8. In the present case, that requirement is not challenged in principle. (8) Rather, the Bundesverwaltungsgericht asks the Court to define its scope with regard to the right of residence, in particular where the Community national produces an identity card whose geographic validity is restricted to the territory of the issuing State.
9. The Community provisions, as clarified in the Court' s case-law, have helped to resolve a number of difficulties which could arise when documents are issued by national authorities.
10. Article 2 of the Directive deals with the situation of nationals who leave their territory in order to take up activities as employed persons in the territory of another Member State. "Such right shall be exercised simply on production of a valid identity card or passport". It is the last part of the sentence which causes a problem in the granting of the right of residence. It refers almost certainly to validity in time, but does that mean that it also covers validity in space? Article 2(3) states: "The passport must be valid at least for all Member States and for countries through which the holder must pass when travelling between Member States. Where a passport is the only document on which the holder may lawfully leave the country, its period of validity shall be not less than five years." Why is there no equivalent requirement as regards the territory covered by an identity card? The answer, in my opinion, lies in the nature of a passport, which is a true travel document, granted at the discretion of the authorities of the State of origin. The Council apparently did not envisage restrictions on the territorial validity of identity cards. Finally, Article 2(4) prohibits exit visas or any equivalent document.
11. With regard to admission to the territory of the Member States, Article 3 of the Directive reiterates certain requirements: production of a valid identity card or passport and prohibition of a visa document or equivalent document. (9)
12. Finally, a provision of Council Directive 64/221/EEC (10) should be noted. According to Article 3(4), "the State which issued the identity card or passport shall allow the holder of such document to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute".
13. What conclusions can be drawn from those provisions? On the face of it, none of them is capable of resolving the precise difficulty submitted to the Court. It is true that Article 3 of Directive 68/360/EEC does not seem to permit any particular restriction with regard to the identity documents required. The Commission rightly points out (11) that in principle the identity card is "a typical national document" use of which abroad is made possible only by special conventions or agreements. However, for entry into and residence in the Member States of the Community it would acquire a Community scope because the directive has provided for alternatives (a valid identity card or a passport). It is true that those provisions in the directive might not suffice as a convincing argument. We must therefore look at their context.
14. All the provisions I have cited, which are based on Article 48 of the EEC Treaty, are intended to facilitate the movement of Community workers, in particular by prohibiting Member States from putting up obstacles, even purely administrative obstacles, to the movement of Community workers and to their residence. Even though the question concerns the right of residence in the host State, the source of the obstacle in question arises at an earlier stage, in the State of origin. Should we not therefore accept that the host State should ignore such restrictions?
15. The granting of the right of residence to nationals of Member States who move in order to pursue activities as employed persons is in fact an obligation for and not at the discretion of the Member States, since those concerned acquire such rights from the Treaty.
16. In a line of cases the Court has held 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 - in particular to look for or pursue an occupation or activities as employed or self-employed persons or to join their spouse or family - is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation. (12)
17. To allow the Member States a discretionary power in this matter would weaken the legal protection of individual rights which individuals derive from directly applicable Community provisions.
18. In addition, let us try to measure the scope of such restrictions from a practical point of view. To attach consequences sounding in Community law to the fact that a Member State restricts the territorial validity of an identity card could compromise freedom of movement for workers who do not hold a passport. When an identity card is provided for under national law, it should be possible to use it ordinarily on national territory for various day-to-day transactions and for residence in the territories of the other Member States. To make the free movement of Community subjects conditional on their holding a passport, which is more properly a travel document and also expensive, would not be acceptable in such a case.
19. Furthermore, the restriction applied by the Greek authorities is all the more serious and aggravating because it applies to any person to whom an identity card is issued and not simply with regard to particular categories of persons.
20. The essential thing, for the purposes of the application of the Treaty, in particular Article 48 et seq. and Regulation (EEC) No 1612/68, is it not to ensure that the person concerned does in fact have the nationality of a Member State and is pursuing real and genuine activities? In its judgment in Royer (13) the Court stated:
"It follows therefore that the right of residence must be granted by the authorities of the Member States to any person falling within the categories set out in Article 1 of the directive and who is able to prove, by producing the documents specified in Article 4(3), that he falls within one of these categories." (14)
The emphasis is thus on the proof that the person from a Member State belongs to a category of persons referred to in the Community provisions. If the States had to take into account other factors for the purpose of granting residence, it would be possible for them to set up obstacles, in particular by arguing that the sovereignty of other Member States had to be respected. (15)
21. The reply to be given to the first question posed by the Bundesverwaltungsgericht should therefore be that Community law obliges the Member States to grant the right of residence in their territory to the class of persons referred to in Article 1 of Directive 68/360/EEC, even when they produce an identity card the geographical validity of which has been restricted by the issuing State to its own territory, provided that their nationality is not in issue.
22. The Bundesverwaltungsgericht asks a number of supplementary questions which should not give rise to any difficulty.
23. First, it asks whether it is relevant that the identity card was issued before the accession of the issuing State to the European Communities and before freedom of movement for its nationals entered into force. In view of what I have argued, the Community subject must be in a position to prove his identity and nationality. Thus the fact that valid identity documents were issued prior to the accession of the Hellenic Republic to the Communities in no way affects their validity: the Directive does not require the production of Community documents for the purposes of the grant of the right of residence, but solely production of valid national identity documents. With regard to the other part of the question, it is immaterial that the card was issued before its holder had begun to benefit from free movement. That card or the passport must have been in existence before the person concerned could exercise that right freely and nothing in the Community provisions obliged him to renew the document after accession.
24. Secondly, the Bundesverwaltungsgericht points out that the person concerned entered German territory not with an identity card but with a passport. It is true that Article 4 of the Directive requires production of the document with which he entered their territory. In its written observations, the City of Reutlingen (16) claimed that that wording required him to prove his identity with the document which enabled him to enter the territory, that is to say, his passport. However, as the Commission states, (17) the wording of the Directive does not refer to an identical document, otherwise the right of residence could be refused if the passport had been replaced because it had expired or been lost in the meantime. Similarly, account must be taken of the case where, because his means are limited, a person does not wish to renew his passport, knowing that the identity card sufficed. There is all the more reason for recognizing the fact that identity card and passport are equivalent inasmuch as both must establish identity and nationality and contain a number of details in common.
25. Finally, the Bundesverwaltungsgericht wishes to ascertain whether it matters that the fact that the document' s validity is restricted to the territory of the issuing State is not expressly mentioned on the identity card itself. In view of my suggested reply, I consider that such a restriction, whether apparent or not, can have no effect for the purposes of granting a right of residence to a Community worker.
26. I therefore suggest that the Court should rule:
"(1) Article 4(1) of Directive 68/360/EEC of 15 October 1968 must be interpreted as meaning that a Member State must grant the right of residence in its territory to the class of persons referred to in Article 1 of the Directive even when such persons produce an identity card the geographic validity of which is restricted to the national territory of the issuing State, provided that their identity and status as nationals of a Member State are not disputed.
(2) The fact that the identity card was issued before the accession to the Communities of the Member State which issued it and before its nationals had begun to benefit from free movement, the fact that the card does not expressly mention the restrictions on its territorial validity and, finally, the fact that upon entering the territory of the host Member State the persons concerned produced not that identity card but a passport do not affect the position that the authorities of the host Member State are obliged to grant the right of residence in such a situation."
Translation
OPINION
of Mr Advocate General
Darmon
in Case C-376/89
Panagiotis Giagounidis
v
City of Reutlingen
(Reference for a preliminary ruling
from the Bundesverwaltungsgericht)
Delivered at the sitting
of the Court of Justice
(Sixth Chamber)
on 16 January 1991
(*) Original language: French.
(1) Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ English Special Edition 1968 (II), p. 485).
(2) Bundesgesetzblatt 1965, I, p. 353.
(3) Bundesgesetzblatt 1980, I, p. 116.
(4) Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ English Special Edition (II), p. 475).
(5) Paragraph 10 of the Aufenthaltsgesetz EWG.
(6) [1977] ECR 1495, paragraph 4.
(7) Ibid., paragraph 10.
(8) See the Commission' s observations, p. 9.
(9) For an illustration see the judgment in Case 157/79 Pieck [1980] ECR 2171.
(10) Council Directive of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ English Special Edition 1963-1964, p. 117).
(11) Written observations, pp. 12 and 13.
(12) Judgments in Case 48/75 Royer [1976] ECR 497, paragraph 31; Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 25; Case 249/86 Commission v Federal Republic of Germany [1989] ECR 1263, paragraph 9.
(13) Case 48/75, cited above.
(14) Paragraph 36, my emphasis.
(15) The representative of the City of Reutlingen spoke of "unacceptable interference" in the sovereignty of the Hellenic Republic, Observations, p. 4.
(16) Observations, p. 2.
(17) Observations, p. 17.
Translation