61981C0115
OPINION OF MR ADVOCATE GENERAL CAPOTORTI
DELIVERED ON 16 FEBRUARY 1982 (
1
)
Mr President,
Members of the Court,
1.
The two references for preliminary rulings to which this opinion refers again raise the question of the limits within which Member States may, in the light of Community law, adopt individual measures deporting or expelling nationals of other Member States who enjoy the benefit of the freedom of movement for workers or of the right of establishment.
The factual aspect common to the two cases is the refusal on the pan of the Belgian authorities to allow a French national to remain on their territory. Having entered Belgium, one of the French nationals concerned — Mrs Adoui — made an application on 3 June 198C to the Administration of the municipality of Liege for a residence permit. However, her application was rejected, by decision of 15 October 198C. on the following grounds: “Personal conduct ... which makes her presence undesirable for reasons of public policy; she works in a bar, which is suspect from the point of view of morals, in which the waitresses display themselves in the window and are able to be alone with their clients”. Mrs Adoui was therefore ordered to leave the country within 15 days.
Having initially complied with the order, Mrs Adoui returned to Belgium the next month and informed the municipal authorities of her presence. On 27 November she was again enjoined to leave the country within four days; she reacted by appealing to the Commission Consultative des Etrangers [Consultative Committee for Aliens]. The Administration of the municipality of Liège refused to submit the file to the Committee, considering that the appeal had been lodged out of time, and renewed its deportation order. At that point, Mrs Adoui, by an interlocutory application lodged on 27 January 1981, summoned the Belgian State and the aforementioned Administration before the Liège court, seeking an order that the defendants should grant her permission to reside in Belgium for a period of five years and should refrain from adopting any measure intended to oblige her to leave Belgium, at least until a decision had been given regarding the permit for which she had applied.
The other French national — Mrs Cornuaille — had also submitted an application tor permission to establish her residence in Belgium as from 13 June 1978 but had received no reply. In fact the Office des Etrangers [Aliens Office], having been informed by the police that the applicant wav. a waitress of doubtful morals, applied to the Consultative Committee tor Aliens tor the opinion which is required before an expulsion order may be adopted, in accordance with the policy followed at that time with regard to persons involved in prostitution. After a number of procedural issues giving rise to a considerable delay in the examination of the file had been disposed of, the Committee finally issued an opinion in favour of expulsion on 11 September 198C.
Mrs Cornuaille then lodged an interlocutory application summoning the Belgian State before the Liège court, seeking acknowledgement of her right to obtain a residence permit and an order that the expulsion proceedings should be stayed pending the outcome of a criminal investigation then in progress or in any case until there had been proceedings before the Consultative Committee for Aliens in which the principle of audi alterem partem was observed.
In both the abovementioned actions the Liege court, by two separate orders of 8 May 1981, referred to the Court of Justice at the request of the plaintiffs an exceptionally large number of questions for preliminary rulings under Article 177 of the EEC Treaty. The questions, which are identical in the two actions, fall into two groups: those in the first group (14) seek clarification of the concept of public policy referred to in Anieles 48 and 56 of the Treaty, whilst those in the second group (15) seek clarifications regarding the procedural safeguards available to aliens in domestic administrative proceedings bv virtue of the provisions of Council Directive No 64/221/EEC of 25 Februar 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).
I should like to point out that there are valid grounds for entertaining doubts as to the relevance of some of the questions to any decision in the main proceedings. Moreover, in many cases the manner in which they are formulated seems to suggest a particular answer. Unfortunately, the national court saw fit to adopt practically the whole of the detailed questionnaire submitted to it by counsel for the plaintiffs and it has been transmitted in toto to the Court, as is evident from the order making the reference. A more careful selection of the really relevant questions and direct acceptance of responsibility for their wording would have been more in harmony with the purpose of the cooperation between national courts and the Community court provided for in Article 177.
2.
The first question seeks a definition of public policy “for the purposes of Anieles 48 and 56 of the Treaty”. It should be noted at the outset that the situation of the two plaintiffs in the main proceedings, in view of the fact that they are waitresses and, therefore, employees, falls within the scope of Article 48 and it is accordingly to that provision alone that the Court should direct its attention. However, the function of the reservation regarding public policy provided for in the two abovementioned articles is identical and its application and limitations must therefore be governed bv identical criteria. I would point out in that respect that Article 48 (3), before specifying the rights inherent in the freedom of movement for workers, makes a reservation regarding “limitations justified on grounds of public policy. public security or public health” (emphasis added). On the other hand, Article 56 (1), referring to all the provisions relating to the right of establishment and the measures adopted in pursuance thereof, states that they “shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health” (emphasis added).
A number of questions also refer expressly or by implication to the abovementioned Council Directive No 64/221 of 25 February 1964. It is true that the recitals in the preamble to that directive mention in particular Article 56 (2), which appears in the chapter on the right of establishment, but the directive without any doubt also applies to employed workers enjoying freedom of movement. This fact appears both from the wording of the preamble and from Article 1, which provides: “The provisions of this directive shall apply to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or selfemployed person, or as a recipient of services” (emphasis added).
3.
It seems to me that it would be helpful to examine the first question together with the second and the third. In fact the Belgian court, having asked for a definition of public policy, would like to obtain clarification of the limitations placed by Community law on the discretion of Member States with regard thereto and also the conditions on which a Member State may discriminate between its own nationals and those of other Member States as regards freedom of movement. All these problems are closely and necessarily connected.
The first point to be emphasized is that Community law does not define or purport to give an independent definition of public policy, just as it does not give its own definition of public security or public health. In the Community Treaties and in the secondary law there are numerous expressions derived from the laws of the Member States, whose interpretation involves reference to the principles, rules and concepts peculiar to those States. The expression “public policy” falls within that category. It is hardly necessary to point out that within the national legal systems themselves there are areas of uncertainty and inconsistency in that respect, particularly since the concept of public policy is used in various contexts (for example, in administrative law, criminal law, conflict of laws and of jurisdiction, etc.). It is pointless therefore to ask this Court, whose function is to interpret Community law, for a definition of public policy.
Anieles 48 and 56 permit only two inferences, and they are important: (a) the authors of the Treaty regarded public policy as justification for certain limitations imposed by States on the free movement of persons, and more particularly as the basis for special restrictive treatment for foreign nationals (see the wording of Article 56 (1)); (b) in order to avoid the risk of differences of approach by the Member States provision was made for coordination, by means of directives, of the provisions laid down by law, regulation or administrative action which provides special treatment for foreign nationals. That coordination did not take the form of an attempt to unify the concepts of public policy but of the determination of certain limitations and procedural rules, as may be seen from Directive No 64/221).
The Court has given a number of decisions on these problems. The judgment of 4 December 1974 in Case 41/73 Van Duyn [1974] ECR 1337 recognized inter alia that “the concept of public policy may vary from one country to another and from one period to another”, and added “it is therefore necessary in this matter to allow the competent national authorities an area of discretion within the limits imposed by the Treaty” (paragraph 18 of the decision). The judgment of 28 October 1975 in Case 36/75 Rutili [1975] ECR 1219 acknowledges for its part that “by virtue of the reservation contained in Article 48 (3), Member States continue to be, in principle, free to determine the requirements of public policy in the light of their national needs” (paragraph 26 of the decision), whilst confirming that that concept, since it is in the nature of a derogation, is to be construed restrictively, “so that its scope cannot be determined unilaterally by each Member Siate without being subject to control by the institutions of the Community” (paragraph 27). Finally, the judgment of 27 October 1977 in Case 30/77 Bouchereau [1977] ECR 1999, pursuing further the search for the roots of public policy, affirmed that “in so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority to the concept of public policy 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 the requirements of public policy affecting one of the fundamental interests of society”, (paragraph 3 of the operative part of the judgment). Frankly, I do not believe that further development of these concepts is necessary or desirable.
The Liège court seeks clarification regarding the limitations imposed by Community law on the freedom of Member States to evaluate the concept of public policy. The Court has already to a considerable extent given an answer in the Rutili judgment cited above, when it held inter alia (in paragraph 2 of the operative part of the judgment): “These limitations and safeguards arise, in particular, from the duty imposed on Member States to base the measures adopted exclusively on the personal conduct of the individuals concerned, to refrain from adopting any measures in this respect which service ends unrelated to the requirements of public policy or which adversely affect the exercise of trade union rights and, finally, unless this is contrary to the interests of the security of the State involved, immediately to inform any person against whom a restrictive measure has been adopted of the grounds on which the decision taken is based to enable him to make effective use of legal remedies”. Of course, that decision reflects, in synthesis, the Community rules introduced by Directive No 64/221, and also the principle of protection of trade union rights confirmed by Article 8 of Regulation No 1612 of the Council of 15 October 1968. The Rutili judgment also referred appropriately (in paragraph 32 of the decision) to “the more general principle, enshrined in Articles 8, 9, 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and ratified by all the Member States, and in Article 2 of Protocol No 4 of the same Convention, signed in Strasbourg on 16 September 1963, which provide, in identical terms, that no restrictions in the interests of national security or public safety shall be placed on the rights secured by the above-quoted anieles other than such as are necessary for the protection of those interests ‘in a democratic society’”. I am of the opinion that that principle, which is accepted by all the Member States as panies to the European Convention on Human Rights, may be relied upon as a principle of Community law.
Finally, with regard to the doubt raised in the third question — that the approach in the Van Duyn judgment may conflict with the rule of nondiscrimination embodied in Article 7 and in Article 48 of the Treaty — it is manifestly without substance. It is clear that recourse to the public policy clause, with regard to the free movement of persons, involves special treatment for foreign nationals: that is expressly recognized in Article 56 (1) and the situation is identical for workers who are employees and for those who are not. Moreover, since no State mav deny its own nationals entry upon and residence in its own territory (by vinue of a wellknown principle of international law), a Member State may not refuse to grant the benefit of freedom of movement to nationals of another Member State on grounds of public policy without thereby being obliged to impose a similar prohibition on its own nationals. The Court made this clear in the Van Duyn judgment cited above (paragraphs 22 and 23 of the decision). Essentially the fact must be borne in mind that public poliev allows derogations from the principle of nondiscrimination as well as from that of equality of treatment: the Treatv is very clear in that respect.
4.
The Belgian court's fourth question asks in substance if conduct not criminally punishable may constitute “a genuine and sufficiently serious threat affecting one of the fundamental interests of society”, as referred to in the Bouchereau judgment cited above, whilst the fifth question seeks to establish whether at least a law, regulation or practice having the same effect on the part of the State is required to enable an interest of society to be classified as “fundamental” in nature. The problem raised in the eleventh question is of the same kind, namely whether the exercise of a trade, which is not prohibited but on the contran- is protected against exploitation and moreover is lawfully taxable, may constitute a serious threat to a fundamental interest of socru.
In the Van Duyn judgment cited above it was made clear that, even where an activity is not prohibited bv law, grounds of public policy may be reiied upon with regard to antisocial activities with regard to which the authorities of a Member State' have manifested their disapproval and adopted measures to prevent their being carried on. In other words, conduct may be declared contrary to public policy even if it is not classifiable as an offence or as being in some other way unlawful. In its written observations the Government of the Italian Republic rightly emphasized the preventive function which measures adopted on grounds of public policy may have. It should however be remembered that the measures must be intended to prevent the danger arising from the personal conduct of an individual and must not be based on considerations of a general preventive nature (see the judgment of this Court of 26 Februarv 1975 in Case 67/74 Bonsignore [1975] ECR 297). Conversely, the fact that an individual has been adjudged guilty of a particular offence is not sufficient to justify the application to him of a measure taken on grounds of public policy, a fact which is made clear by Article 3 (2) of Directive No 64/221 and is confirmed by the Bonsignore judgment.
The applicants in the two main actions seek to emphasize the difference between this case and the one to which the Van Duyn judgment referred. They observe that although the religious sect to which Mrs Van Duyn belonged did not attract the rigour of the criminal law the British Government had nevertheless adopted measures to restrict its activities, which had even been the subject of a parliamentary debate. The unequivocal attitude adopted by the British authorities regarding the antisocial character which they attributed to the activities in which Mrs Van Duyn allegedly engaged in the United Kingdom is contrasted with the attitude adopted in this case by the Belgian State, which had never given any indication that it regarded the activity attributed to the plaintiffs as conduct contrary to its fundamental interests. Similarly, the Netherlands Government, on the basis of the premise that the concept of public policy extends to interests which are regarded by the national authorities as deserving of protection, maintains that in order to justify the application of the clause in question those interests must be identified by legislative provisions enabling everybody to be aware of them. Only in that way is it in fact possible to satisfy the requirement of legal certainty.
It seems to me that if it is admitted, as has been admitted by the Court, that a measure ordering expulsion on grounds of public policy by reason of conduct which is not prohibited by local law is lawful, the principle of legal certainty may not be relied upon in order to demand a kind of legislative catalogue of instances of conduct contrary to public policy. Such a requirement would conflict with the premise on which the Netherlands Government's view is based. What appears necessary and sufficient is that the public interest, on the basis of which the State intends applying restrictive public policy measures, should be referred to in some way, even if indirectly, in the domestic legal order. I believe that such an interpretation may be applied to the requirement acknowledged by the aforementioned Van Duyn judgment that the competent authorities should have manifested their disapproval of certain activities, indicating that they regarded them as antisocial.
As regards the facts of the present cases, I will confine myself to noting that the restrictive approach of the Belgian administrative authorities regarding the phenomenon of prostitution and of the conduct of those who engage in it appears to be reflected in the internal legislation of that State, since, without prohibiting or imposing penalties for prostitution, Belgian legislation contains prohibitions (for example the prohibition of soliciting, the prohibition of prostitutes' displaying themselves in windows, the prohibition of the setting up of brothels) from which it is easy to deduce that the legislature considered that to restrict the spread of that phenomenon was in the public interest. But it is of course for the court of trial to consider whether the conditions to which the said Van Duyn judgment refers have been satisfied in the present cases.
5.
In the sixth question, the Liège court, having stated that on occasion deportation is of a more serious punitive nature than a criminal penalty, asks whether Article 7 of the European Convention for the Protection of Human Rights should be applied by analogy and whether therefore, as a prerequisite for the application of restrictive measures, the conduct punished must constitute a criminal offence provided for by the law of the State at the time it took place. Alternatively, it asks what other solution the Court would suggest in order to avoid arbitrary action in this area by national administrations.
As is known, Article 7 (1) of the European Convention for the Protection of Human Rights upholds the principle nullum crimen sine lege. Since restrictive public policy measures against aliens do not constitute criminal penalties but are :ssentially of a preventive nature, it is inappropriate to seek to apply that provision by analogy. As the Italian Government has pointed out, the particular seriousness which an expulsion order or an order preventing entry may have for the person concerned is of importance only where the question to be considered is whether the State authorities have observed the criteria of reasonableness and proportionality. By those criteria, and thus having regard in each case to all the factors which characterize the personal conduct of the person concerned and also to his family situation and to any links which he may have established with the country he has entered, the risk that the discretion allowed to national administration will give rise to arbitrary action is avoided.
The latter consideration necessitates an affirmative answer to the seventh question, which concerns proportionality. The court of trial wishes to know whether it is necessary io measure on the one hand the seriousness of the perturbation to which public policy is exposed and on the other hand the specific seriousness of the deponaiion measure. The criteria of reasonableness and proportionalitv are certainly also applicable in the field of Community law and thus they limit the Member States' power to apply the public policy clause. The matters of fact to which 1 have referred above must be verified in each individual case, in so far as they serve to establish whether each deportation or expulsion measure is compatible with the principle of proportionality.
The eighth question advances the view that in some cases deportation is tantamount to inhumane treatment and must therefore be deemed to be prohibited. In his oral submissions counsel for the plaintiffs mentioned in that connexion the fundamental principle, which is to be found in any catalogue of human rights, whereby cruel, inhuman or degrading treatment or punishment are absolutely prohibited (see Article 3 of the European Convention for the Protection of Human Rights which appropriately refers in the first place to torture). It seems to me that that principle has nothing to do with measures restricting freedom of entry into and residence in a particular State. Even if, on occasion, measures of that kind may have serious consequences regarding the circumstances of the person to whom they are addressed, it would be an abuse of language to say that those consequences are as serious as those of treatment, such as torture, which is not only injurious to the physical integrity and human dignity of the victims but, as far as those who engage in it are concerned, is also an inexcusable disgrace.
6.
The ninth question seeks to establish to what extent Member States are entitled to take account of the private life of the persons concerned in deciding to refuse or withdraw residence permits. The answer appears to me to be clear. The private life of individuals is, as a matter of principle, not to be interfered with bv the State authorities; but that does not mean that the morality of individuals cannot assume importance when it is reflected in their external conduct and thus has repercussions on the environment in which they live. It is therefore by taking people's conduct into account that the authorities will determine whether or not a threat to public policy exists.
In the tenth question the court of trial asks whether the fact that a Member State, with the intention of removing from its territory prostitutes from a particular country on the grounds that they may provide support for criminal activity, removes them systematically, declaring that the profession of prostitution constitutes a danger to public policy, without verifying whether the persons concerned may be suspected of contacts with the underworld, constitutes a measure of a general preventive nature contrary to the principle enunciated in the abovementioned Bonsignore judgment.
We know that even in a Member State where prostitution is not prohibited the internal authorities may deport or expel on public policy grounds aliens (of either sex) who have entered the country to carry on that activity, provided that it is clear from the legislation in force that it is in the public interest to limit the spread of that social phenomenon. Naturally, the restrictive measure must be motivated by reference to conduct on the part of the individual; that in my opinion is enough to satisfy the requirement laid down in Article 3 (1) of Directive No 64/221. In other words, even if the conduct is common to a whole category of persons, what is important is to ascertain that conduct in a specific case is actually classifiable as a type of activity which disturbs the social order.
It is by virtue of that principle that the adoption of deportation or expulsion measures against all prostitutes of a particular country, because they are suspected of more easily involving themselves in cooperation with the underworld of that country, must be regarded as prohibited. In such cases, in fact, the reason for the decision restricting free movement lies not in the exercise of the trade of prostitute but is based on the allegation that the prostitutes are in contact with criminal elements and are facilitating their activities. A measure taken on grounds of public policy cannot legitimately be based on suspicion of a whole group of individuals. On the contrary, the competent authority must be in a position to establish that the person to be deponed or expelled has personally provided support for the underworld. It may be added that restrictive measures adopted with respect only to the foreign nationals of a particular country, on grounds connected with their nationally, are certainly contrary to the general principle of nondiscrimination.
7.
The twelfth question, as worded, seeks to establish whether the Advocate General in the Bonsignore case, by using the expressions “presence [which] could no longer be tolerated” and “necessary solution” correctly reflected the degree of seriousness required to justify deportation from the territory of one Member State of a national of another Member State. Evidently the court of trial insists in its aim of establishing what degree of seriousness of conduct is necessary before a public policy measure of the type referred to may be adopted. I would merely refer to the observations which I have already made regarding the discretion vested in the domestic authorities concerning the assessment of situations which are contran- to public policy and regarding the nature of the limitations placed by Community law on that discretion.
8.
In the thirteenth question the Court is asked to specif) under what circumstances a person who has had a residence permit withheld or withdrawn on grounds of public policy may subsequently reenter the territory of the State in question and again apply for a residence permit; and whether a decision may be adopted whereby a foreign national is expelled permanently.
It appears to me that in this area there are no rules of Community law from which a specific answer may be deduced. In the light of the fact that the abovementioned clause contained in Article 48 (3) of the Treaty constitutes a derogation which must consequently be strictly construed, all that may be said is that, as a matter of principle, it appears unlawful to adopt a deportation decision which is definitive and irrevocable, so as to exclude any possibility ot reexamining at a later date the personal position ot the individual who has been the subject of a measure restricting his freedom of movement. On the other hand, there is no doubt that a State may continue to with old a residence permit from a person against whom a measure of that kind has been adopted, until the grounds which had justified the adoption of the first measure have ceased to exist (or if, although those grounds have ceased to exist, other equally valid reasons continue to exist). Finally, from the procedural point of view it may be stated that a further refusal presupposes that the applicant's position has been examined, at least if he has put forward fresh grounds in support of a favourable decision.
9.
The fourteenth question — which might have been better included in Group B with the other questions of a procedural nature — refers to Article 6 of Directive No 64/221, that is to say, to the rule which obliges Member States to inform the person concerned of the grounds on which the measure concerning him (a measure of public policy, public security or public health] is based. The Belgian court asks whether that notification must be made in the mother tongue of the person concerned, whether it must be “complete, detailed and candid” and whether it mav be limited to a general statement of grounds repeated in a large number of cases.
Vith regard to the first point. 1 would observe that the restrictive measures in question in this case were notified in French to the two French nationals who were living in the French-speaking pan of Belgium. The question here is therefore one which is manifestly irrelevant to the decision in the case pending before the court making the reference and which this Court might refuse to consider. Nevertheless, I would prefer to express my view on this point as well. In its observations, the Commission stated that it considered that — in order to avoid disparity of treatment as between nationals of the various Member States — the grounds on which a public policy measure of the kind under discussion must in fact be notified to the person concerned in his mother tongue. Article 5 (2) of the European Convention for the Protection of Human Rights, with reference to notification of the grounds on which measures restricting personal freedom are based; does no more than require that they should be drawn up in a language which the person concerned understands. Also, in its judgment of IS February 1975 in Case 66/74 Farrauto [1975] ECR 157 this Court had occasion to state its view regarding the notification of a decision adopted by a social security fund with respect to a migrant worker (decision rejecting an application) and stated inter alia that “the national courts of the Member States must nevertheless take care that legal certaintv is not prejudiced bv a failure arising from the inability ot the worker to understand the language in which a decision is notified to him” (paragraph b of the decision). It seems to me that that criterion can also be relied on in the present case and that theretore. in the absence ot anv specific Commumtv provision, the national authorities need not regard themsekcs as under an obligation in everv cast- to draw up the decision restricting the freedom ol movement of a national ot another Member State in the latters mother tongue.
As regards the requirement that the grounds must be correctly stated, I do not see that there can be any doubts. Article 6 of Council Directive No 64/221 clearly has as its objective to ensure that a foreign national against whom the measure is directed may defend himself. It cannot therefore be considered as permitting an administrative authority to give information which is not “candid” (and in any case an administrative measure based on incorrect statements can usually be challenged under the laws of the Member States). With regard to the remaining points, it is sufficient to mention that the statements of grounds must be sufficiently detailed in content to place the person concerned in a position to be able to defend himself.
Finally, my opinion, which differs from that of the Commission, is that the use of a standard form of words in numerous cases is permissible where the cases concerned display substantially identical aspects. However, the principle that the decision must correspond to the personal situation of the person to whom it is addressed must be respected.
10.
All the questions submitted in part B relate, as I have stated, to the procedural safeguards to which, under Community law, individuals against whom it is intended to apply measures restricting freedom of movement are entitled.
In Question No 1. the court of trial asks the Court of Justice to “indicate, define and enumerate the procedural safeguards which Member States must provide for an alien seeking the legal remedy referred to in Article 9 of Directive No 64/221”.
Article 9 (1) governs the procedure for the adoption of two types of measure concerning an alien already resident in the territory: decisions refusing renewal of a residence permit and decisions ordering the expulsion of the holder of such a permit from the territory. Furthermore, the provision is intended to compensate for specific deficiencies in the system of appeals to courts of law. It applies “where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision or where the appeal cannot have suspensory effect”. Article 9 (2) relates to two kinds of measures affecting an alien who has not yet obtained a residence permit: decisions refusing the issue of such a permit and decisions ordering expulsion of the person'concerned before the issue thereof. The procedure introduced by the first of the two abovementioned types of measure imposes upon the administrative authority (exept in cases of urgency) the obligation to obtain the opinion of a “competent authority” in the same country which must not be the authority responsible for the adoption of the restrictive measures. It must be an authority of the host country “before which the person concerned enjoys such rights of defence and of assistance or representation as the domestic law of that country provides for”. On the other hand, the other class of measures (refusal to issue a first residence permit and expulsion from the territory before issue thereof) may be adopted without any consultation by the administration of the authority which is not to be the same as that empowered to take the decision; but the person concerned is entitled to ask that the measures adopted against him be referred for consideration to that authrity and is then entitled to submit his defence in person (“except where this would be contrary to the interests of national security”).
Article 9 was the subject of interpretation by this Court in its judgment of 5 March 1980 in Case 98/79 Pecastaing ([1980] ECR 691) in which it was stated inter alia, as the Belgian court points out in the question now under consideration, that that provision is “to ensure a minimum procedural safeguard for persons affected by one of the measures” (emphasis added) contemplated in the directive in the circumstances referred to in Article 9 (1). But it is pointless to ask the Court now to “indicate, define and enumerate” the procedural safeguards to be provided for aliens in accordance with Article 9. Those safeguards, which I have summarized above, are to be found in the consultative procedure which must precede the measures referred to in Article 9 (1) and which may also be put into operation, at the request of the person concerned, with regard to the measures referred to in Article 9 (2). A number of particular problems of interpretation connected with that procedure are raised by the Belgian court in the questions following the first one. Question No 1 in effect has no intrinsic value.
11.
Question No 2 relates to the interpretation of the words “authority shall not be the same” used in the second subparagraph of Article 9 (1) to describe the authority whose opinion may be sought bv the person concerned in the event of a refusal to issue a first residence permit or a decision ordering expulsion from the territory before the issue of such a permit. The Liege court wishes to know whether thai authority must be impartial and “totally independent of the authority taking the decision”, whether there is sufficient independence in a case where members are appointed by the authority empowered to adopt the decision and whether it would be desirable for Member States to bring the remedies provided for in Article 9 of the directive within the jurisdiction of the courts. Question No 3 concerns the same matter but is even more detailed. It asks whether an official of the administration responsible for taking the decision may be a member or the secretary of the authority instructed to give its opinion, whether a government official belonging to another administration may sit as a member, whether the period for which the members of the authority in question are to remain in office must be specified and, finally, whether it is normal for those members to be paid by the authority which takes the decision.
In its judgment of 22 May 1980 in Case 131/79 Santillo [1980] 1585, the Court had occasion to state, in paragraph 19 of the decision, that “the directive leaves a margin of discretion to Member States for defining the ‘competent authority’. Any public authority independent of the administrative authority called upon to adopt one of the measures referred to by the directive which is so constituted that the person concerned enjoys the right of representation and of defence before it, may be considered as such an authority.”
Indeed I doubt whether it is possible or appropriate to go into further detail regarding the relations between the authority empowered to take the decision and the authority responsible for giving its opinion for the purposes of Article 9 of the abovementioned directive. There can be no doubt that, by virtue of the principle of independence to which the Court drew attention, the members of the consultative body must not have any connections with the authority empowered to take the decision which render them subordinate to it; and it may be reasonable to take the view that the mere fact that a member of that body belongs to the same administrative unit as the officials of the authority empowered to take the decision is incompatible with the principle of independence. On the other hand, that does not mean that other government officials, belonging to other administrations, may not be called upon to serve on the consultative body without its independence being compromised, and it is certainly not necessary for the members of that body to be judges or even that the consultative function provided for in Article 9 should be entrusted to judicial bodies. Finally, with regard to the procedures for appointing members of the consultative authority, their term of office and their remuneration, I believe that those are matters which fall within the discretion of each Member State, subject to the condition that the effective independence of the body and of its members must not be jeopardized.
12.
In Question No 4 the court of trial asks whether the person to whom the public policy measure is addressed, and noi merely the authority empowered to take the decision, should have the opportunity to approach the consultative authority directly.
We have seen that in the cases provided tor in Article 9 (I) (refusal to renew a residence permit or expulsion of the holder of such a permit) the authority empowered to adopt the measure is obliged to obtain the opinion of an authority which is “not the same” as the one empowered to take the decision. That implies direct contact between the two bodies and leaves no room for anyinitiative on the part of the person concerned, who must merely be informed that the consultative phase has commenced so that he can make arrangements for his defence and have himself assisted or represented. However, in the circumstances to which Article 9 (2) refers (refusal to issue a first residence permit and expulsion before the issue thereof) each case is examined by the consultative authority “where [the person concerned] so requests”. That does not however mean that the request may be submitted directly to the consultative authority. It should be noted that the context of the provision clearly indicates the purpose of that request, namely to ensure that the measure (which, it must be assumed, has been adopted but is not yet enforceable) is referred for consideration to the consultative authority. It stands to reason, therefore, that the person concerned should address himself to the authority which adopted the measure in order to request direct contact between the two bodies, on the same basis as that provided for in Article 9 (1). In fact, the request on the pan of the person concerned places the authorm empowered to take the decision under ar. obligation to obtain the opinion ot the other authority (and therefore, as soon as the request is made, the position ot the two bodies with respect to each other is the same as in the circumstances provided for in Article 9(1). It is eas to conclude therefore that the bodv whah adopted the measure has no power to make any ruling as to the admissibiht\ot the request. It must in all cases pass it on to the consultative body.
13.
It is now appropriate to deal with Questions 8, 9 and 10 which have a common factor, namely that they all concern the manner in which the authority empowered to take the decision must prove, when the consultative authority is carrying out its review, the facts on which the public policymeasure is based.
Question 8, which is very detailed, raises the problems of the degree of precision and the completeness of the proof, the use of anonymous complaints and police reports which do not state their sources and the extent to which the alien is to be allowed the benefit of the doubt. Question 9 asks whether the facts which constitute criminal offences have to be proved by production of evidence of a criminal conviction. The doubt expressed in Question 10 is whether a repon on a person's morality can be sufficient to prove conduct contrary to public policy.
Community legislation does not in fact contain any provisions regarding the methods to which the authority empowered to take the decision may have recourse in order to prove to the consultative authority the existence of the facts alleged against the alien. However, there is no doubt that the burden of proof falls upon the authority empowered to take the decision and it may also be affirmed that the rule of evidence applicable to proceedings concerned with complaints regarding administrative measures in each Member State will also apply to the proceedings under discussion here (in fact, the procedure provided for in Article 9 (2) is in substance equivalent to administrative appeal proceedings and with regard to the procedure provided for in Article 9 (1) it is prescribed that the person concerned must be placed in a situation where he can avail himself of such rights of defence as are provided for by the the local procedure, which can only be the procedure applicable to proceedings concerning complaints in regard to administrative matters). It would be contran- to the principle of nondiscrimination to apply to such procedures rules of evidence which granted the alien safeguards inferior to those allowed by the national administration.
With regard to the situation where the conduct constituting the grounds for the public policy measure is also criminally punishable, Question 9 appears to suggest that it is necessary to await the outcome of the criminal proceedings — in the form of the conviction of the accused — before adopting the measure restricting freedom of movement. But the answer must definitely be negative. I have already had occasion to draw attention to the distinction to be drawn between the classification of a person's conduct from the point of view of criminal law and the classification of that conduct which may be used as a basis for a public policy measure. This Coun. in its judgment of 17 October 1977 in Case 30/77 Bouchereau, cited above, inferred inter alia from Article 3 (2) of Directive No 64/221 that “the national authorities [are required] to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy which does not necessarily coincide with the appraisals which formed the basis of me criminal conviction” (where a person has already been convicted). It would be pointless to require the administrative authority to wait for the alien to be convicted before deciding to expel him or to refuse to grant him a residence permit because of circumstances capable of giving rise to criminal proceedings.
Finally, with regard to the weight which a report on a person's morality may carry, as proof of conduct contrary to public policy, it seems to me clear that everything will depend on the matters considered in the report. I have said earlier that private morality may give rise to a measure restricting a person's freedom of movement in so far as is reflected by conduct incompatible with public policy. Accordingly, if a report on morality contains specific information regarding the public conduct of a person, that report may have evidential value in the proceedings provided for in Article 9 of Directive No 64/221.
14.
I shall now deal with Questions 11, 12, 13 and 14 which relate to disclosure to the alien and his defence counsel of the file passed to the consultative body bv the authority empowered to take the decision. The Liege court wishes to know, essentially, whether the person concerned is entitled to such disclosure, whether disclosure entails the right to receive a copy of the file (or even to have the original without travelling to the capital city of the State), how long before the hearing disclosure must take place, whether disclosure must be total, whether the authority empowered to take the decision may refuse to make available certain documents and finally, whether a document alleged by the alien to be false must be excluded from the proceedings.
I should also like to point out that Community law as now in force contains no detailed rules on this matter. Notwithstanding this, there is no doubt that Directive No 64/221 is intended to ensure that an alien has an ample and effective opportunity to defend himself. In its judgment of 22 May 1980 in Santillo cited above, this Court emphasized inter alia that “the requirement contained in Article 9 (1) that any decision ordering expulsion must be preceded by the opinion of a ‘competent authority’ and that the person concerned must be able to enjoy such rights of defence and of assistance or representation as the domestic law of that country provides for, can only constitute a real safeguard if all the factors to be taken into consideration by the administration are put before the competent authority” (paragraph 14 of the decision). The statement contained in that passage regarding the procedure provided for in Article 9 (1) likewise applies to any proceedings which may be commenced at the request of the person concerned in accordance with the provisions of Article 9 (2). The rule requiring a hearing of the person concerned demands in particular that he must have access, either directly or through his defence counsel, to the file transmitted by the authority empowered to take the decision. 1 think therefore that it is possible to speak of a subjective right in favour of the alien to disclosure of the file (unless such disclosure conflicts with the requirements of State secuntv). In other respects, the procedure provided for by local law regarding complaints against administrative measures and the safeguards provided by that law for nationals will be applicable.
The position of the alien concerned during the phase involving the consultative authority is also the subject of Questions 6, 7 and 15. The final part of Question 7 seeks to establish whether the alien must be allowed to lodge a written statement of his submissions and a file. Question 15 concerns the period within which the alien or his counsel must be informed of the date of the hearing. In Question 6 the court of trial inquires as to the alien's right to have the oral proceeding deferred when he or his counsel is prevented from attending the hearing on the appointed day for valid and serious reasons (save in a properly justified case of urgency.
In my opinion, the specific solutions for these problems are a matter for the law of the State in which the proceedings take place, but subject always to the reservation that the alien must be assured of an ample and effective opportunity to defend himself in proceedings involving both him and the authority empowered to take the decision, and provided that the procedural rules to be applied are those appropriate to complaints against administrative measures, on the same conditions as those available to a national.
15.
Two matters remain to be examined regarding the consultative authority's deliberations. The first pan of Question 7 seeks to determine whether that “decision” must take into account all the matters of law and fact raised by the alien, in detail and to a sufficient extent. In Question 5 the Liège court, having stated that the “decision” itself must state the reasons on which it is based, asks whether that fact implies that the alien is entitled to receive a copy of the decision bearing the signature of the members of the consultative authority and an indication of their “identities and capacities”.
The opinion which the consultative authority is called upon to give must indeed state the reasons on which it is based. This Court recognized that fact in the judgment of 22 May 1980 in Santillo, cited above, stating inter alia that “both the administration and the person concerned should be in a position to take cognizance of the reasons which led the ‘competent authority’ to give its opinion” (paragraph 19 of the decision, penultimate subparagraph). In my view, that means that the alien is entitled to obtain a copy of the opinion in question and that the composition of the body must be shown in the document so as to enable the person concerned to verify whether it was properly constituted. The statement of reasons will then show that the matters of fact and of law raised by the alien have to a greater or lesser extent been taken into consideration by the consultative body, which means that the reasons on which the opinion is based must be properly stated. What matters is that the opinion should be sufficiently reasoned, but there is no ground for claiming that the logical progression of the statement of reasons should correspond point by point to the arguments advanced by the person concerned.
16.
In view of the foregoing considerations, I suggest that the Court should answer the questions submitted by the Liège court by two orders of 8 May 1981 in the case of Adoni v The Belgian State and the City of Liège and in the case of Cornuaille v The Belgian State, by stating as follows:
1.
The limits which Community law imposes on the power of each Member State to refuse to issue a residence permit to nationals of other Member States or to expel them from their own territory on grounds of public policy derive both from the specific legislation issued by the Community institutions regarding the movement of persons (in particular Council Directive No 64/221 of 25 February 1964), and from the general principle common to the laws of the Member States according to which restrictions imposed on grounds of public policy and public security may not exceed what is necessary for compliance with such requirements in a democratic society. The discretion of the competent State authorities must moreover be qualified by respect for the criteria of reasonableness and proportionality which must be applied with regard to the personal and family situation of the person to whom the restrictive measure is addressed.
2.
The fact that the conduct of an alien is not criminally punishable and is not otherwise prohibited by the law of a Member State does not mean that the authorities of that State may not order deportation or expulsion of the alien in question on grounds of public policy. In such circumstances, the antisocial nature of the type of conduct in question, as evaluated by the relevant domestic law, may be inferred from legislative provisions which, whilst based on a principle of tolerance, clearly show the legislature's intention to limit the spread of such conduct.
3.
The fear that prostitutes from a particular country may more easily than others constitute a means of supporting criminal activity cannot of itself justify the systematic adoption of deportation or expulsion measures against such persons on grounds of public policy and measures of that kind must in all cases be based on the actual conduct of the individual.
4.
For the purposes of the application of measures limiting the right to move freely within the Community, private morality may be taken into consideration only in so far as it is reflected by conduct which constitutes a treat to public policy.
5.
Article 7 of the European Convention for the Protection of Human Rights — which concerns criminally punishable acts — is not applicable by analogy to conduct which gives rise to measures ordering the expulsion of an alien or the withholding of a residence permit on grounds of public policy.
6.
An alien who is denied a residence permit or renewal of such a permit is entitled to resubmit his application and to rely upon anv supervening circumstances which may be such as to justify reversal of the earlier refusal or the adoption of a fresh decision favourable to him.
7.
Notification to the person concerned of the grounds of public poliev on which the decision restricting his freedom of movement is based (in accordance with Article 6 of Council Directive No 64/221 of 25 February 1964) is to be drawn up in a language which he is able to understand. The statement of the reasons on which the restrictive measure is based must correspond to the specific situation of the person to whom it is addressed and must be sufficiently detailed to enable him to defend himself.
8.
The consultative body provided for in Article 9 of Directive No 64/221 must be effectively independent of the authority empowered to adopt the restrictive measure with which the opinion is concerned. This requirement of independence means in particular that officials belonging to the administrative body empowered to take the decision may not be members of the consultative body.
9.
Article 9 of Directive No 64/221 does not confer on the person concerned the right to appeal directly to the authority responsible for issuing an opinion; but the authority empowered to take the decision is obliged to seek such an opinion both in the cases referred to in Article 9 (1) and when it receives a request from the individual in accordance with Article 9 (2).
10.
In the proceedings provided for in Article 9 of Directive No 64/221 there must not be applied to the alien rules less favourable than those applicable to nationals in proceedings concerning complaints in regard to restrictive measures adopted by administrations with respect to nationals. In any case, the alien must'have an effective opportunity to defend himself and the principle of audi alterem partem must be guaranteed.
11.
It is incumbent upon the authority empowered to take the decision to prove to the consultative body the truth of the facts alleged against the alien on which the public measure affecting him is based.
12.
Where the alien's conduct, which is used as the reason for the public policy measure, is also criminally punishable, the administrative authority may adopt that measure without having to wait until the facts are established and punished by a criminal conviction.
13.
A report on a person's morality may be used as evidence in the proceedings provided for in Article 9 of Directive No 64/221 only in so far as it reveals external conduct of a nature such as to justify the public policy measure.
14.
An alien in respect of whom a measure restricting freedom of movement is adopted is entitled to have access to the file concerning him which is passed to the consultative body by the authority empowered to take the decision.
15.
The opinion given by the consultative body in the proceedings provided for in Article 9 of Directive No 64/221 must state the reasons on which it is based. An alien is entitled to obtain a copy of that opinion, which should also indicate the composition of the consultative body.
(
1
)	Translated from the Italian.