61974C0067
OPINION OF MR ADVOCATE-GENERAL MAYRAS
DELIVERED ON 19 FEBRUARY 1975 (
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Mr President,
Members of the Court,
In the context of the present request for a preliminary ruling you will be led to interpret Council Directive No 221 of 25 February 1964 which, as you are aware, deals with the coordination, within the Member States of the Community, of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.
In your judgment of 4 December last in Case 41/74 (van Duyn v Home Office) you ruled that the provisions of Article 3 (1) of this Community measure, according to which ‘Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned’, confer ‘on individuals rights which are enforceable by them in the national courts of a Member State and which the national courts must protect’.
In this way you acknowledged the direct applicability of this rule within the meaning which your case-law gives to this phrase.
You also decided that an assessment of personal conduct is a necessary condition for any measure taken by the national authorities to restrict the freedom of movement and employment of migrant workers. Thus, refusal of entry or deportation, although they are security measures which a State may employ in accordance with its national law, are not justified in relation to Community law unless they are based on a separate consideration of the conduct of the individual concerned.
You are at present dealing with two questions which the Verwaltungsgericht Köln has referred for a preliminary ruling on the interpretation of the same Article 3 of Directive No 64/221.
In the first of these questions the Verwaltungsgericht asks whether these provisions prevent the competent authorities in a Member State — in this instance the Federal Republic of Germany — ordering the deportation of a migrant worker who is a national of another Member State ‘for the purpose of deterring other foreign nationals from committing such criminal offences as those with which the person deported was charged or similar offences or other infringements of public security or public policy’ of the host country.
In other words, the problem is whether the directive prohibits the deportation of a Community worker where the decision to deport is taken on grounds of a ‘general preventive nature’.
This is a question of principle, settlement of which will help to define the content and extent of the ‘limitations justified on grounds of public policy’ envisaged at Article 48 of the Treaty, establishing the European Economic Community, concerning the free movement of employed persons, which are mentioned in similar terms in Article 56 of the Treaty, dealing with freedom of establishment.
The second question referred by the German court is directly related to the facts which gave rise to the main action.
The court asks you whether Article 3 (1) and (2) of the directive must be interpreted to mean that the deportation of a national of a Member State from the territory of another State is possible only when there are clear indications that the alien, who has been convicted of an offence against the criminal law of the host country, will commit further offences or will in some other way disregard public security or public policy of that country.
Before beginning my consideration of these questions, I must restate the facts which gave rise to the case and describe in brief the proceedings which took place before the authorities of the Federal Republic, both administrative and judicial.
Mr Carmelo Bonsignore, an Italian national born in Sicily in 1950, arrived in Germany in October 1968. He was employed at the Ford works in Cologne as a chemical worker. In May 1971 he unlawfully purchased from an unknown person a 6.35 calibre automatic Beretta pistol and cartridges. He did not possess a firearms permit.
Several days later, on 30 May, during a family meal at his sister's home he produced the pistol which he had just obtained, wishing to show how it was fired. He removed the magazine and found that a cartridge remained in the breech. He attempted to remove it but was unsuccessful. Being unfamiliar with the handling of firearms he unintentionally pulled the trigger and his young brother, Angelo, who had recently arrived in Germany, was fatally injured in the head by the bullet.
After the police inquiry had been held, the Amtsgericht (court of first instance) of Cologne, sitting as a Schoffengericht (that is, with the assistance of lay judges) sentenced Mr Bonsignore to a fine for an offence against the Firearms Law.
The Schoffengericht considered, however, that no punishment should be imposed on the accused for having caused death by negligence, on the grounds that, being young and inexperienced, he was very deeply affected by the death of his brother, which his carelssness had brought about. The court also regarded as being in his favour the fact that he had in no way attempted to deny his liability, and his' undertaking never again to touch a gun.
However, on 18 September 1972 — 16 months after this dramatic event — the Oberstadtdirektor of Cologne decided to deport the individual concerned from the territory of the Federal Republic. He ordered this measure to be implemented within one month. As his extra-judicial appeal was dismissed, Mr Bonsignore appealed to the Verwaltungsgericht Koln against the implementation of this decision. The Fourth Senate of that court ordered a stay of execution of the decision despite the arguments put forward by the administrative authorities, who maintained that the unlawful acquistition and possession of firearms ‘shows sufficiently that the plaintiff is not prepared to obey the German system of law and order’. The authorities added that ‘it is intolerable that foreigners enjoying the hospitality of this country should be allowed, by the unlawful acquisition or possession of firearms, to become a constant danger to the (national) population’.
They also added — and this is the fundamental consideration on which the municipal authorities relied in their defence — that ‘since offences by aliens involving the use of arms had risen to a substantial degree during recent years, a further increase in these crimes of violence must be countered by the immediate expulsion of aliens who had come to the notice of the authorities for offences against the firearms legislation’. This view was, moreover, in accordance with instructions given by the German government.
The Verwaltungsgericht did not accept this point of view. It declared that the plaintiff could be deported only if his personal conduct justified such a measure and that a criminal conviction alone is not determinative. Thus, deportation was only lawful if it could be supposed, on the basis of his conduct, that the alien in question would in future constitute a threat to public security or public policy in Germany, that is, if there was a risk of repetition of the offence. As the Verwaltungsgericht considered that in this instance no such risk existed the deportation order must be regarded as being ‘clearly vitiated by an error’.
However, on 26 April 1973 the Regierungspräsident (Chief District Administrative Officer) of Cologne confirmed the deportation decision originally taken by the municipal authority. He maintained that the protection of public security and public policy in Germany must prevail over the personal interest of the plaintiff in residing in that country and considered that a ‘risk of repetition of the offence’ existed in this case. Although the view of the Regierungsprasident is thus based on the presumed or, in his opinion, foreseeable personal conduct of the Italian worker in question, the principle of ‘general prevention’ nevertheless underlies his arguments.
Mr Bonsignore sought the annulment of this measure and claimed before the Verwaltungsgericht that the competent authorities should be ordered to authorize his continued residence in the territory of the Federal Republic of Germany.
These were the proceedings during which the Verwaltungsgericht submitted to you the preliminary questions to which I referred at the beginning of my opinion.
Legal Discussion
In order to begin my consideration of these questions, I consider it necessary to refer to the Court's important judgment in the van Duyn case.
In that decision you confirmed, first, that Article 48 of the Treaty is directly applicable, while maintaining that, as regards the principle of free movement and the right of residence of migrant workers, the third paragraph of this article subjects them to limitations justified on grounds of public policy and, in particular, public security. However, this limitation, which constitutes an exception to the rights conferred by Article 48 on EEC nationals, must be strictly construed in the light of Council Directive No 64/221/EEC.
Subsequently, the Court ruled that the provisions contained in Article 3 (1) of that directive according to which ‘Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned’, also have direct effect, on the ground that, where the Community authorities have, by directive, ‘imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law’.
In addition, the Court specified that Article 3 (1) of the directive ‘lays down an obligation which is not subject to any exception or condition and which, by its very nature, does not require the intervention of any act on the part either of the institutions of the Community or of Member States’.
The obligation thus imposed on the Member States clearly limits the extent of the power which they have retained to take decisions to safeguard national public order which are likely to affect the right of Community nationals, guaranteed by Article 48 of the Treaty, to enter the territory of such States or to reside there, since Article 3 (1) of the directive lays down that only considerations based on the personal conduct of those individuals may justify such measures.
Having made this point, let me quote from Article 3 (2) of the directive, which provides that: ‘Previous criminal convictions shall not in themselves constitute grounds for the taking of…’ measures of public policy or public security adopted in relation to Community workers.
An express reference is in fact made to this paragraph in the order for reference from the Verwaltungsgericht Koln.
In my opinion there is no doubt that, like paragraph (1), this provision is directly applicable and, therefore, creates individual rights.
A decision to deport a national of a Member State would undoubtedly be contrary to directly applicable Community law if it were based solely on the existence of a conviction by a criminal court in the host State.
This result follows necessarily from the consideration that if, in principle, an infringement of the criminal law in itself constitutes an attack on the public policy of the State, the application of criminal sanctions by the competent courts is sufficient to ensure the protection of such public policy, both as regards the nationals of that State and those of other Member States.
Deportation, which may clearly affect only aliens and not nationals is, of course, a security measure, but its effects at the social and human level are evidently infinitely more serious than those of a fine, or even of a short period of imprisonment.
The authors of the directive thus wished that, independently of any conviction, the national authorities should be able to order deportation only to the extent to which the personal conduct of the Community national who had committed an offence constituted or was likely to constitute in the future such a threat to national public policy that the presence of the individual concerned in the territory of the host country could no longer be tolerated.
Apart from minor infringements, offences which are the result of negligence, and even certain violent crimes committed in a particular psychological context, are not in general likely to constitute such a serious threat to public policy and public security that the deportation of the offender appears to be the necessary solution.
Moreover, the file sent by the German court shows that Mr Bonsignore was only convicted for illegal possession of a firearm. On the other hand, no punishment was imposed on the count of causing death by negligence. According to the very terms of Article 3 (2) of the directive the conviction obtained was not in itself sufficient at law to provide grounds for deportation.
The local authorities — both the Oberstadtdirektor and the Regierungspräsident — were unable to attempt to justify the measure taken on this ground. They have therefore argued that the illegal possession or carrying of a firearm — and the death by negligence which resulted therefrom — cannot be separated from the personal conduct of the individual concerned. That even if such a person cannot be regarded as a potential recidivist, the very nature of the offence of unlawfully possessing a firearm, which conceals a potential danger for public policy, was sufficient to justify the deportation order.
Furthermore, it appears that this point of view is in accordance with instructions given by the Federal authorities, according to which certain offences, such as, in particular, possession of a firearm, or at another level the sale of narcotics, are among those which must, in principle, result in the deportation of aliens who are responsible for them.
It is a fact that in the industrialized countries which provide employment for large numbers of foreign workers, statistics kept by the legal authorities and the police show that certain forms of criminal behaviour are peculiar to the immigrant population. There are various explanations for this phenomenon: the foreign workers' relative failure to adapt to a society which is generally very different from that which they knew in their country of origin; living and housing conditions which are often difficult; failure to integrate; the feeling that in practice they remain outside society in the host country. Sociologists would term this a feeling of alienation.
It may also be thought that, in the developed industrial States and in particular in the large urban centres which are a consequence of industrialization, certain offences, even relatively minor ones such as, for example, possession of a firearm, justify preventive measures, just as the protection of public health requires the organized prevention of certain contagious diseases.
However, although in the field of protection of health it is easy to draw up a list of illnesses subject to obligatory declaration and prevention, it is equally necessary that offences which are considered to involve, mutatis mutandis, a risk of ‘contagion’ should form the subject of an exhaustive list drawn up by the Community anthorities, so that the principles of free movement and of the right to employment and residence of migrant workers may be applied in a uniform manner in each of the Member States.
We have seen that this is not the system employed by the Council directive. The latter is founded on a different concept, based on an examination of the personal conduct of the parties concerned in each case.
The first question referred by the German court asks whether or not the objective of general prevention, that is, of deterring other possible offenders, is compatible with a correct interpretation of that directive.
It is easy to understand why the Verwaltungsgericht Koln requested your interpretation on this fundamental question.
It is because the case-law of the German courts is divergent, even at variance with itself, over the respective principles of special prevention and general prevention.
Furthermore, the question arises in different terms according to whether the aliens whose deportation is ordered are nationals of third States and, therefore, covered by the ‘Ausländergesetz’, an ordinary legislative enactment concerning the administration of aliens, or, on the other hand, Community nationals who are, as such, subject to a specific system which is laid down in the ‘Aufenthaltsgesetz’, a law enacted for the implementation of Directive No 64/221.
As regards the former category, we may suppose that subject to reciprocal agreements the German authorities hold a largely discretionary power which must, however, be exercized in accordance with the law and in particular with respect for the principle of proportionality subject to review by the courts.
Furthermore, it appears that at first the Bundesverwaltungsgericht, the supreme federal court in administrative matters, had accepted an idea based solely on the concept of special prevention (Judgment of 11 June 1968), even as regards the ordinary legislation dealing with the administration of aliens.
Certain authors, such as Kloesel and Christ, have criticized this solution, maintaining that the ground of general prevention had to be accepted under Article 10, No 2 of that Law.
However, the case-law of the Bundesverwaltungsgericht has developed. A more recent judgment of 15 January 1970, which referred to two earlier decisions, expressly accepted the ground of general prevention and dismissed an appeal brought by a Turkish national against his deportation which was ordered for drunken driving ‘in order to deter other aliens from behaving in the same way’.
The lower administrative courts have adopted similar solutions.
However, the problem arises in quite different terms where a deportation order concerns a national of a Member State.
The purpose of the Aufenthaltsgesetz is to embody the provisions of the Council directive into internal law. It does so somewhat freely, in that it adds to the concept of a threat to public policy, public security and public health, that of a ‘threat to the primary interests of Germany’. An administrative memorandum which can no doubt only be by way of a recommendation to the courts is none the less revealing as it accepts that, as regards Community nationals, the grounds for deportation are the same as for other aliens. This instruction specifies that the need to consider personal conduct merely signifies that, without relying solely on the existence of a criminal conviction, the nature of the offence, the conditions under which it was committed and the risk of possible repetition must be taken into account.
On the basis of this law certain courts have taken care to base their decisions on considerations founded solely on the concept of personal conduct and special prevention:
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Oberverwaltungsgericht Berlin, Judgment of 15 May 1968 (I.A./398 No. OVG I B 31.67);
or on the particular seriousness of the offence and the risk of repetition:
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Judgment of the same court of the same date (I.A./399 No. OVG I B 41.67).
In addition, the Oberverwaltungsgericht Berlin clearly expressed its view in a Judgment of 2 October 1968 (I.A./400, No. OVG I B 93.67) in which it granted an appeal by an Italian national convicted of selling drugs. The court emphasized the purely fortuitous nature of the offence, which excluded any grounds of a special preventive nature, and specified that ‘as measures of public security must be based solely on the personal conduct of the individual concerned, the administration's claim that it based the measure on considerations of a general preventive nature must be disregarded’.
Similarly, in an order of 29 September 1972 (Neue Juristische Wochenschrift, 1973 Part I, p. 439), the Verwaltungsgericht Kassel considered, in the case of an Italian woman who murdered her brother-in-law who had acted towards her in an immoral manner, that the Aufenthaltsgesetz authorizes deportation only for reasons of special prevention.
The same fundamental issues were raised by the Oberverwaltungsgericht Miinster in a Judgment of 20 December 1972 (Die öffentliche Verwaltung, 1972, p. 415), rejecting the ground of general or collective prevention and accepting the legality of the deportation of a Belgian national convicted of several thefts only on grounds of a special preventive nature, in order to prevent such offences occurring again.
On the other hand, other courts have not restricted themselves to a consideration of the personal conduct of the offender, but have expressly referred to the concept of general prevention. Thus, in a judgment given as early as 13 December 1965 in the case of an Italian convicted of theft, the Verwaltungsgerichtshof Baden-Württemberg referred to grounds of general prevention. It is true that this decision was given before the entry into force of the Aufenthaltsgesetz.
However, in a more recent Judgment of 3 May 1973 (Die offentliche Verwaltung, 1973, p. 732), the Bundesverwaltungsgericht itself considered that the provisions of Council Directive No 64/221 concerning an examination of the personal conduct of Community nationals who are the subject of deportation orders are ambiguous and must not necessarily be understood in such a way as to restrict the powers of the national authorities. Thus, in the opinion of this court, the directive did not result in the abolition of the objective of general prevention. Although in this case — which concerned an unpremeditated crime of violence committed by an Italian national — the German administrative court accepted an appeal on a point of law, this was only because it considered that insufficient grounds had been given for the judgment in question, as regards considerations both of a general preventive nature and, where relevant, of a special preventive nature.
However, the statements of principle made by the Bundesverwaltungsgericht remain on record.
My Lords, it is to be regretted that since the Bundesverwaltungsgericht was clearly in doubt as to the interpretation of Article 3 (1) of the directive, to the extent of showing some hesitation over the meaning and scope of this Community provision, it did not decide to refer to the Court the preliminary question which was subsequently referred by the Verwaltungsgericht Koln for the clear purpose of obtaining guidance for the future development of the national case-law or, at least, to give the latter an unquestionable basis in Community law.
I have no hesitation in suggesting that you should reply that the concept of personal conduct prevents a deportation order from being made against a Community worker for reasons of a general preventive nature.
First, the freedom of movement of workers acknowledged by Article 48 of the Treaty implies the right to reside and to be employed in the host State. These are individual rights which are essential to the realization of the Common Market which, far from being limited to unhindered trade in goods, necessarily involves individual mobility and guaranteed access to the territory of each Member State for the purpose of employment there. Moreover, these considerations also apply to questions of freedom of establishment.
These rights are fundamental to the system established by the Treaty. Their exercise cannot be limited arbitrarily or even at the discretion of Member States. The latter have, of course, retained their powers in questions concerning public security and I had occasion to say in relation to the van Duyn case that the requirements of national public policy vary from one State to another, as they also vary in time, on the basis of sociological conditions.
Therefore it is undeniable that the national authorities must be accepted to have a certain discretion in this area but, as the Court has said, this discretion must remain within the limits laid down by the Treaty and, let me add, by the directive adopted in implementation of Article 48. To use the very terms of your Judgment of 4 December 1974 (Case 41/74 — van Duyn v Home Office
), ‘the concept of public policy in the context of the Community and where, in particular, it is used as a justification for derogating from [a fundamental principle of Community law], must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without being subject to control by the institutions of the Community’.
In this respect, there is no doubt that by requiring an examination of the individual conduct of each Community national who is the subject of a decision based upon the protection of public policy and, in particular, of public security, Article 3 (1) of the directive intended to limit the power of the national authorities and to remove any possibility of their taking security measures of a collective nature in respect of such nationals.
I consider that it is necessary to go still further and to give full effect to the directive by acknowledging that the concept of personal counduct and the desire to act for reasons of a general preventive nature are incompatible and irreconcilable.
To deport a worker who is a national of a Member State is to deny his right to reside and be employed in the territory of the host State. It is an extremely serious measure having grave consequences which can only be justified on grounds relating to personal conduct alone, as evidenced by the offence committed. Arguing a contrario, the directive therefore obliges the Member States not to take account of factors extraneous to this personal conduct.
In my opinion, therefore, it is not permissible for a Community worker, even when convicted of a criminal offence, to be made into a ‘scapegoat’ in order to deter other aliens from acting in the same way. In fact, the directive requires that the offence against national public policy, in as much as it is the consequence of personal conduct, be such that deportation is necessary either because public policy has been seriously affected by the offence committed, or because it is to be feared that the person concerned will repeat the antisocial acts in question.
I am, for my part, rather sceptical as to the real deterrent effect of a deportation which is ordered ‘to make an example’ of the individual concerned. While I accept that knowledge of such a measure spreads widely among foreign workers, it is not clear that it is sufficiently effective as an example to encourage the immigrant community to refrain from committing offences.
In point of fact, one cannot avoid the impression that the deportation of a foreign worker, even a national of the Common Market, satisfies the feeling of hostility, sometimes verging on xenophobia, which the commission of an offence by an alien generally causes or revives in the indigenous population.
Be that as it may, I consider that the deterrent objective can only be achieved if the deportation is not only ordered, but carried out within a very short period.
It must be remembered in this instance that although the facts which gave rise to the offence occurred at the end of May 1971, and although the worker concerned was convicted for illegal possession of a firearm in the following October, the Oberstadtdirektor of Cologne waited until 15 September 1972 before ordering his deportation, that is, more than 15 months after the offence had occurred and almost one year after the criminal conviction.
As far as we know, during this period the applicant continued his employment in Germany.
This shows to what extent the effectiveness of the deterrent was reduced in this instance.
Let me add that by accepting the applicant's application to stay the deportation order, the Fourth Senate of the Verwaltungsgericht Koln has unquestionably rejected the argument put forward by the local authorities and has shown that no serious justification for the deportation was to be found in the Community directive.
It is, of course, for that court, which is dealing with the substance of the case, to place it in its true legal context in accordance with your preliminary ruling, that is, to consider whether and to what extent the personal conduct of Mr Bonsignore constitutes an attack on the public security of the Federal Republic such as to form grounds for his deportation. It is not for me to enter into such a discussion.
However, these considerations lead me to consider the second question submitted for a preliminary ruling.
I will be quite brief on this point, more especially as the explanations which I have just given already show that the concept of personal conduct must be examined not only in the light of the offences committed, but also in view of the ‘potential criminality’ of the offender, to use the language of the criminologists.
In other words, I consider that the deportation of a national of a Member State of the Community is subject to a finding by the national administrative and legal authorities of cogent evidence on which to base their opinion that there is a serious risk that the individual concerned will commit further offences or, more generally, represent, through his conduct, both past and forseeable, a danger to the public security and public policy of the host State.
In each case assessment falls, in the last analysis, within the jurisdiction of the national courts.
That is to say, Members of the Court, that in my opinion an affirmative answer should be given to the second question submitted.
Thus, the purpose and intended effect of the application of Article 48 of the Treaty and of Council Directive No 64/221 is substantially to reduce the discretionary power of the States to take measures in respect of the privileged class of aliens constituted by workers who are nationals of Common Market countries, for the purpose of restricting their right of residence and which are justified on grounds of public policy, by requiring that the individual position of such workers should be given a thorough examination which is subject to review by the courts.
However, the text of the directive is only a first step towards the harmonization or, let me rather say, the coordination of the implementation of measures based upon public policy.
A more efficient solution, and one which would lead to better protection for those workers referred to in Article 48 would clearly consist not in transferring to the Community institutions the security powers which the States wished to retain and of which there is no question of depriving them, but in strengthening the directive and rendering it more specific, in such a way that the grounds for deportation would have to be based on Community criteria which would be uniformly applicable.
In my opinion, this is the path which will one day have to be taken, since the application of such criteria to individual cases must remain within the powers of the national authorities.
At least we will then have abandoned once and for all the old concept of deportation, which is a security measure available at the dircretion of the administrative authorities and which gives them the power to expel ‘undesirable’ aliens from their territory, and was in practice, until quite recently, not subject to an effective review by the courts.
I am therefore of the opinion that your reply should be as follows:
1.
The provisions of Article 3 (1) and (2) of Council Directive No 64/221/EEC, which are directly applicable and, as such, confer on nationals of the Member States of the Community individual rights which the national courts must protect, must be interpreted to mean that the deportation of such a national who has been convicted of a criminal offence cannot be based exclusively on considerations of general prevention, for the purpose of deterring other aliens from committing such or similar criminal offences or other infringements of national public security or public policy;
2.
In accordance with the relevant provisions of that directive, such deportation may be ordered only after consideration of the personal conduct of the offender and in cases where, if necessary subject to review by the national courts, this consideration shows the existence of a sufficiendy serious and foreseeable threat to public security and public policy, in particular in view of any risk of repetition.
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