Opinion of Mr Advocate General La Pergola delivered on 17 February 1998. - Criminal proceedings against Donatella Calfa. - Reference for a preliminary ruling: Areios Pagos - Greece. - Public policy - Tourist from another Member State - Conviction for drug use - Exclusion for life from a Member State's territory. - Case C-348/96.



European Court reports 1999 Page I-00011



Opinion of the Advocate-General

1 By this reference for a preliminary ruling the Court is asked to clarify the scope of the principles of Community law which govern, or more precisely limit, the power of Member States to order the expulsion from their territory of Community nationals.

2 The case which gave rise to the question referred for a preliminary ruling is briefly described hereafter. Ms Calfa, an Italian national, was caught in possession of drugs while on holiday in Greece. Criminal proceedings were brought against her for possession of illegal drugs for exclusively personal use, and she was sentenced to three months' imprisonment. In addition to imprisonment, the court at Heraklion ordered her permanent exclusion from Greek territory. (1) In her appeal to the referring court, Ms Calfa sought to have set aside only that part of the decision ordering her exclusion from Greece.

It is stated in the order for reference that a person convicted for illegal possession of drugs is treated differently under national law depending on whether he is a Greek national or a national of another Member State. To be precise, the difference in treatment does not concern the main penalty imposable upon a conviction, but the possibility of ordering additional penalties. The court must, in fact, order the permanent exclusion from Greece of foreigners convicted of an offence under the misuse of drugs laws, unless there are important reasons, particularly of a family nature, justifying the continued residence of the foreigner in the country; any foreigner expelled may, however, return to Greece after three years, at the discretion of the Minister for Justice. (2) By contrast, Greek citizens cannot be subjected to expulsion. They may, however, be barred from residence in specific places, but only for the more serious offence of dealing in drugs, and not for simple possession for personal use. (3) In the latter case, such a penalty is within the discretion of the court and may not in any event be imposed for a period exceeding five years.

The national court therefore asks whether the treatment to which foreigners are subject under national law is compatible with Community law. In particular, it has referred the following questions for a preliminary ruling:

`(1) Is a provision of national law compatible with the provisions of Community law referred to in the grounds of this order and, in particular, with the provisions of Articles 8(1) and (2), 8a(1), 48, 52 and 59 of the EC Treaty, the provisions of the relevant directives also referred to in the grounds hereof, or with any other relevant provisions of Community law concerning freedom of movement for persons and services, and with the Community law principle of equal treatment enshrined in Article 7 of the EC Treaty, where such provision of national law requires the national court, unless there are good grounds, particularly of a family nature, for not doing so, to order the permanent exclusion of a national of another Member State of the European Community for reasons of public order and public security, solely on the ground that the national of another Member State, whilst lawfully staying in the host state in order to receive tourist services, committed the offences of obtaining drugs for his own exclusive use and the use of drugs, and where such exclusion entails for the offender a legal bar on his returning to the country - unless authorised after a three year period by the Minister for Justice in his discretion - in order to pursue the activities provided for by the abovementioned provisions of Community law, and where in the case of such an offence being committed by a national of the host state the same punishment of imprisonment is imposed, though not any other analogous penalty, such as a residence restriction, which is imposed on a national of the host state only if a term of imprisonment for a more serious offence is imposed, such as for dealing, and is purely discretionary?

(2) Should exclusion by the host country under such a provision of national law (as described at 1 above) of the national of another Member State be deemed compatible with the abovementioned provisions of Community law where, in connection with exclusion, the court so ordering is left with no discretion, other than that relating to the important reasons, in particular of a family nature, in determining whether the offender's continued residence in the host country might be justified, is such a measure to be regarded as infringing the Community principle of proportionality, that is to say as being disproportionate to the seriousness of the offences (described above at 1) committed by that person, regard being had to the fact that under national law those offences are tried at first instance and are punishable as stated in the grounds of this order, or to the fact that the exclusion ordered by the national court is permanent, subject to authorisation by the Minister for Justice at his discretion for the offender to return after a three-year period to the host country from which he was expelled?'

3 It should first be noted that, all things considered, the two questions submitted relate to the same issue: the alleged infringement of the `proportionality' criterion - the subject of the second question - also constitutes, as will be shown, one of the parameters which must be applied to measure - and this is the subject of the first question - the legality of the national provisions governing the expulsion of Community citizens. The two questions referred for a preliminary ruling may accordingly be examined together.

I would also observe that Ms Calfa's case is covered by the protection guaranteed by Article 59 of the Treaty and does not, as the referring court erroneously indicates in the order for reference, fall under Articles 48 and 52 thereof. This is because Ms Calfa is not gainfully employed in Greece, nor would it appear that she has sought to avail herself of the freedom of establishment safeguarded by Article 52. In view of her status as tourist, she is rather to be considered as a recipient of services; therefore, according to the Court's settled case-law, (4) she is entitled to rely upon the protection afforded by Article 59 with respect to entry into and residence on Greek territory.

4 That being so, the present case turns on the definition of `public policy' upon which the Greek Government relies to justify the expulsion measure adopted in Ms Calfa's regard. It should be noted in fact that, pursuant to Community law, the freedom of a recipient of services to travel to another Member State to receive services may, as Article 56 of the Treaty provides, be subject to limitations justified on grounds of public policy, public security or public health. Moreover, Directive 64/221/EEC (5) provides that the freedom of movement or of residence of any national of a Member State may be restricted on grounds of public policy or public security.

It is precisely upon these provisions that the Greek Government has relied in arguing that the national legislation at issue is designed to combat the serious problem of drug dealing and abuse and is therefore justified on the grounds of the public-policy objectives which it pursues.

5 The defence submitted by the Greek Government cannot, in my opinion, be accepted. It is true that the abovementioned rules of Community law allow the Member States to restrict the freedom of movement and residence of Community nationals on grounds of public policy; it is also true that a provision of a penal nature prohibiting the use of drugs may be said, at least in theory, to be inspired by such considerations. However, the Court has already had occasion to state that, while `Member States continue to be, in principle, free to determine the requirements of public policy in the light of their national needs', the scope of this concept `cannot be determined unilaterally by each Member State without being subject to control by the institutions of the Community'. (6) This is in fact an exception to the fundamental principle of free movement, and the application thereof should accordingly be confined to exceptional cases where the person expelled from national territory effectively constitutes a genuine and sufficiently serious threat affecting one of the fundamental interests of society. (7) Furthermore, it is clear from the case-law relating to the application of Directive 64/221/EEC (8) that in expelling any national of another Member State on grounds of public policy national authorities must take into account, specifically, the individual situation of the person concerned, and that previous criminal convictions do not in themselves constitute sufficient grounds for the taking of such measures. (9) An expulsion measure cannot therefore be designed purely for `prevention' purposes, that is for the purpose of deterring other foreigners from committing similar offences, (10) and must in any case pass the test of proportionality. (11)

6 The body of principles established by the Court in relation to the concept of `public policy' is decisive in considering the case in point.

First of all, it seems to me that the national legislation described in the order for reference introduces discrimination, prohibited by the Treaty, between Greek nationals, on the one hand, and the nationals of other Member States, on the other. The discrimination does not lie in the fact that the national legislature has not provided for the possibility of expulsion of its own nationals: the Court has already stated that they cannot be subject to such a measure and that, therefore, their situation is not entirely comparable to that of other Community nationals. (12) Consequently, this is not a prohibited discrimination in that the difference in treatment introduced by the national legislation does not apply to equivalent situations. In this case, however, the discrimination must be considered from another angle: the explanation given by the national court of the legislation at issue shows that the possession of drugs for personal use is penalised differently depending on whether the offender is a Greek national or a foreigner. In the first case, a penalty of imprisonment is provided for; in the second case, by contrast, in addition to imprisonment, there is necessarily the further penalty of exclusion from the national territory. While it is true that such a measure may not be applied to the State's own nationals, the fact none the less remains that no additional penalty whatsoever is applied to nationals convicted of possession of drugs. In other words, discrimination is evident in the fact that, when convicted of the same criminal offence, nationals only have the main penalty applied to them, while foreigners are subject to an additional penalty.

7 In any case, even assuming that the national provisions described in the order for reference did not amount to discrimination, they would still be contrary to the principle of proportionality, as interpreted by the Court, precisely with reference to the lawfulness of exclusion measures justified on grounds of `public policy'. In this respect, I need only quote here a passage which I consider particularly relevant from the well-known judgment in Adoui and Cornuaille: (13) `The reservations contained in Articles 48 and 56 of the EEC Treaty permit Member States to adopt, with respect to the nationals of other Member States and on the grounds specified in those provisions, in particular grounds justified by the requirements of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the national territory or to deny them access thereto. Although that difference of treatment, which bears upon the nature of the measures available, must therefore be allowed, it must nevertheless be stressed that, in a Member State, the authority empowered to adopt such measures must not base the exercise of its powers on assessments of certain conduct which would have the effect of applying an arbitrary distinction to the detriment of nationals of other Member States. It should be noted in that regard that reliance by a national authority upon the concept of public policy presupposes, as the Court held in its judgment of 27 October 1977 in Case 30/77 Bouchereau [1977] ECR 1999, the existence of "a genuine and sufficiently serious threat affecting one of the fundamental interests of society". Although Community law does not impose upon the Member States a uniform scale of values as regards the assessment of conduct which may be considered as contrary to public policy, it should nevertheless be stated that conduct may not be considered as being of a sufficiently serious nature to justify restrictions on the admission to or residence within the territory of a Member State of a national of another Member State in a case where the former Member State does not adopt, with respect to the same conduct on the part of its own nationals repressive measures or other genuine and effective measures intended to combat such conduct'.

It is clear, therefore, from the case-law just cited that a comparison must in any case be made between the normal legal treatment of nationals and that of non-nationals. And this in so far as non-nationals' personal conduct fulfils the condition of constituting a genuine and sufficiently serious threat, affecting one of the fundamental interests of the society of the host State - a threat consequently justifying an expulsion measure - only if, when faced with the same conduct on the part of its own nationals, the national authorities adopt measures which, although perhaps not identical, are effectively designed to combat such conduct. (14) It is easy to see that this condition is not met in the present case. For the offence of simple possession, the national legislation does not provide - and, for the reasons explained above, could not provide - for any territorial expulsion measure against its own nationals; the fact remains, however, that in those cases the national legislation likewise does not provide for other measures, thus showing that, in the national legal order, the possession and use of drugs is considered to constitute conduct justifying a reaction of particular severity. Additional penalties against own nationals - in particular the prohibition of residing in certain places - are provided for only in the case of drug dealing, that is to say for an offence considerably more serious than mere possession of drugs for own use. For mere possession for own use, no additional penalty is provided for.

I am therefore of the opinion that a measure of expulsion from national territory, such as that described by the court in the main proceedings, is contrary to Community law. It makes no difference whether such a measure is considered from the point of view of discrimination or from the point of view of lack of proportionality. The practical result is in any case the same: such a provision is incompatible with the principles laid down by the Court in relation to measures restricting the free movement and residence of Community nationals.

8 I would add that the national legislation summarised in the order for reference might be incompatible with the Court's case-law in other respects. I refer, in particular, to the fact that, under the legislation, expulsion ensues virtually automatically after a conviction. In effect, the legislation in question provides that the court should order the exclusion of the Community foreigner unless there are serious reasons, in particular of a family nature, justifying another solution. Such family reasons therefore introduce a power of derogation from the general expulsion rule. Such a provision, however, is clearly contrary to Article 3(2) of Directive 64/221, pursuant to which `previous criminal convictions shall not in themselves constitute grounds for the taking of ... measures' of exclusion from national territory. In Bouchereau (15) the Court made it clear that this provision `must be understood as requiring the national authorities 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 the criminal conviction. The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy. Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy'.

These requirements do not, on the other hand, seem to me to be satisfied in the case of the national legislation described in the order for reference. That legislation, in fact, provides for the expulsion of the foreigner to ensue from conviction as if it were a `natural effect' thereof, mitigated only by the possibility of invoking reasons of a family nature. Nevertheless, under the case-law cited above, `recourse ... 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'; this threat, however, cannot in itself be deduced merely from the existence of a previous conviction.

9 The considerations set forth above lead me to the conclusion that the conditions for reliance upon grounds of public policy to justify an exclusion measure such as that described by the court in the main proceedings are not met. And this, I might add, regardless of whether the measure is permanent or temporary in nature. Certainly, in the first case, in addition to the reservations made above with respect to the national legislation at issue, there would be others, concerning the clear lack of proportion of a measure imposing exclusion for life from national territory. (16) However, I consider that the doubts as to the compatibility with Community law of the provisions at issue exist irrespectively of the effects in time of the measure concerned. In fact, even assuming that Ms Calfa could return to Greece after three years with the authorisation of the Minister concerned, the fact remains that the order to expel her was made on account of a criminal offence which, if committed by a Greek national, is not punishable with the same severity. Under settled case-law, this constitutes discrimination prohibited by the Treaty, or, in any event, a disproportionate measure, in so far as it imposes penalties on Community nationals that are neither adapted nor proportionate to the seriousness of the offence committed, as appraised by the national legislature.

In other words, the exclusion provided for under the national legislation does not entail a specific appraisal of the conduct of the offender, but appears to have deterrence purposes vis-à-vis other Community nationals; the Court has, however, already had occasion to condemn such purposes in clear terms in other judgments. (17)

10 Finally, one last observation on the role which the principle of citizenship of the Union laid down in Article 8a of the Treaty, to which the national court refers in the orders for reference, may play in the present case. In the Martinez Sala case, (18) I explained the importance of this new, fundamental concept. However, I do not believe that it is relevant here because the settled case-law referred to above already affords a complete reply to the questions submitted by the national court. Ms Calfa's position is already properly protected by her status as a recipient of services as well as by the provisions of Directive 64/221/EEC. It is therefore superfluous, in my view, to have recourse to this further protection offered by Community citizenship.

Conclusion

11 In view of the foregoing, I propose that the Court reply in the following terms to the questions referred for a preliminary ruling by the Arios Pagos (Supreme Court):

Articles 59 and 56 of the EC Treaty, as well as Article 3 of Directive 64/221/EEC, must be interpreted as precluding a provision of domestic law which requires the courts to order the permanent exclusion of a national of another Member State on grounds of public policy or public security, for the sole reason that the national has, while staying in the host State as a tourist, committed the offence of possession of drugs for personal use, whereas a national of the host State who commits the same offence is not subject to a penalty of comparable severity.

(1) - The order for reference states that the exclusion order was adopted on the basis of Article 17(2) of Law No 1729/1987 pursuant to which `the court may order the permanent exclusion from the country of foreigners, whether or not they have reached the age of majority, who are convicted of an offence under that law, save for important reasons, particularly of a family nature which justify the continued residence of the foreigner in the country ...'.

(2) - Under Article 74 of the Penal Code, foreigners who have been subject to an exclusion order may return to the country only after a period of three years following exclusion and provided that the Minister for Justice authorises their return.

(3) - In this respect, the referring court makes reference to Article 17(1) of Law No 1729/1987, which provides that this additional penalty can only be applied to Greek nationals who have been sentenced to five or more years of imprisonment.

(4) - See Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, at paragraph 10, and Case 186/87 Cowan [1989] ECR 195, at paragraph 55.

(5) - Council Directive 64/221/EEC 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). Article 3(1) and (2) are particularly relevant in the case at issue and are worded as follows:

`1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.

2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.'

(6) - See Case 36/75 Rutili v Ministre de l'Intérieur [1975] ECR 1219, at paragraphs 26 and 27.

(7) - See Case 30/77 R v Bouchereau [1977] ECR 1999, at paragraph 35.

(8) - See in particular, Article 3 of the aforesaid directive, which the Court held to have direct effect in its judgment in Case 41/74 Van Duyn v Home Office [1974] ECR 1337, at paragraphs 6 and 7.

(9) - See Bouchereau, cited above, at paragraph 28.

(10) - See Case 67/74 Bonsignore v Stadt Köln [1975] ECR 297, at paragraph 7.

(11) - See Case 118/75 Watson and Belmann [1976] ECR 1185, at paragraph 21.

(12) - See Van Duyn, cited above, at paragraphs 22 and 23; and Joined Cases 115/81 and 116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665, at paragraph 7.

(13) - Cited above, paragraphs 7 and 8 (my italics).

(14) - See, in this regard, my Opinion delivered on 23 September 1997 in Case C-171/96 Pereira Roque, still pending, in which I observed that it is precisely through the respect of proportionality that equal treatment is assured (paragraph 49).

(15) - Cited above, paragraphs 27, 28 and 29.

(16) - See, in this regard, Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343.

(17) - See the judgment in Bonsignore, cited above, paragraph 7.

(18) - Case C-85/96 (pending).