Opinion of Mr Advocate General Tesauro delivered on 7 March 1989. - Commission of the European Communities v Kingdom of Belgium. - Free movement of persons - Frontier controls - Residence or establishment permit. - Case 321/87.



European Court reports 1989 Page 00997



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 The infringement of which the Commission accuses the Kingdom of Belgium consists in the national authorities' subjecting nationals of other Member States residing in Belgian territory to certain non-systematic controls at the frontier on their return from a trip abroad, in particular requiring them to produce not only their passport or identity card but also a residence or establishment permit . That fact is not disputed by the Belgian Government .

2 The inspection of the document in question is provided for in Article 38 of the Belgian Royal Decree of 8 October 1981 governing aliens' access to, residence and establishment in and expulsion from its territory, which is worded as follows :

"Any alien of more than 15 years of age must at all times carry his residence or establishment permit or any other residence document and produce the same on request by any agent of the public authorities ."

3 The parties agree that the inspection in question is compatible with Community law when carried out within Belgian territory . The Commission maintains, however, that the requirement to produce a residence or establishment permit, if imposed when a person crosses the frontier, is in breach of the Community directives concerning free movement, and specifically Directive 68/360 ( 1 ) in the case of employed persons and Directive 73/148 ( 2 ) regarding self-employed workers and providers of services .

Article 3 of each of the two directives has the same wording, as follows :

"( 1 ) Member States shall grant to the persons referred to in Article 1 ( 3 ) the right to enter their territory merely on production of a valid identity card or passport .

( 2 ) No entry visa or equivalent requirement may be demanded save in respect of members of the family who do not have the nationality of a Member State . Member States shall afford to such persons every facility for obtaining any necessary visas ." (**)

4 The parties also agree that the obligation to produce on request a residence or establishment permit does not constitute a precondition for access to Belgian territory .

5 According to the Commission, however, in the cases which it criticizes, Community nationals residing in Belgium who were crossing the frontier to re-enter Belgium territory after going abroad were subjected to an additional burden not mentioned in the Community directives, which merely require "production of a valid identity card or passport" which means in particular that the Member States are not entitled to require an entry visa or any equivalent obligation .

6 In the course of the procedure, the Belgian Government conceded in its rejoinder that "inspection of the residence permit provided for in Article 38 of the Royal Decree of 8 October 1981 must be carried out on Belgian territory and not before entry into that territory ". It observed that "the frontier inspection normally ( takes place ) upon entry into the national territory" and inferred from this, as a logical corollary, that "it is obvious that the authorities responsible for that control are not allowed to require production of the residence permit"; and it undertook to give instructions to the officials concerned to avoid controls in the future which run counter to national law .

7 Although those statements by the Belgian Government resolve the problem of the inspections in practical terms, they do not deal with the point of Community law on which the Commission' s action is based . In the context of that action, it is therefore necessary to determine whether the additional obligation to produce a residence or establishment permit on crossing a frontier, although not affecting the actual crossing, is in breach of the abovementioned articles of Directives 68/360 and 73/148 .

8 Although in its rejoinder the Belgian Government attributes to the Commission the view that production of the residence or establishment permit constitutes the substance of an additional obligation equivalent to the obligation to obtain an entry visa, nothing of the kind can be found in the submissions of the Commission, which limits itself to claiming that the ultimate effect of the practice adopted by the Belgian authorities is to impose upon the persons concerned an additional obligation when they re-enter Belgian territory, which is contrary to the provisions of the directive according to which the right of entry is to be exercised "merely on production of a valid identity card or passport ".

9 Thus, and in view of the fact that it is agreed that nobody' s entry into Belgium is subject to production of a residence or establishment permit, the parties' reference to the judgment of 3 July 1980 in Case 157/79 Regina v Pieck, ( 4 ) no longer appears pertinent - in that case the precise issue to be clarified was whether "an endorsement stamped on a passport at the time of arrival giving leave to enter the territory" might be regarded as an entry visa or equivalent document . Here, on the other hand, the only question that arises is the compatibility or otherwise with Community law of controls like those involved in these proceedings, which are not mentioned in paragraph ( 1 ) of Article 3 of either of the abovementioned directives, and likewise cannot be regarded as equivalent to an entry visa, since entry to the territory is in no way conditional upon them .

10 In order to resolve this problem, it seems to me to be appropriate to take as the starting point the fact that, in each of the directives in question, the provisions concerning a person' s right to enter the territory of a Member State are very different from those relating to the right to reside in that State .

11 As Mr Advocate General Warner observed in his opinion in Pieck, the authors of the directives were faced with two options : they could have made the right of access conditional upon proof that the person concerned had a right of residence, being one of the persons mentioned in Article 1 of either directive, or else they could have prescribed that "Member States should allow each other' s nationals to enter their territories simply on proof of their nationality and ... any question as to their right to be there under the Treaty should be examined after entry ".

They manifestly chose the latter alternative .

12 The interpretation of the provisions at issue to the effect that they do not allow proof to be required of a right of residence upon entry into the territory of a Member State appears to be justified by certain grammatical features of the formulation of the provisions together with the all-important fact that it is impossible to attribute to the authors of the directives on freedom of movement the intention to render the crossing of the frontiers between the various Member States more difficult by combining verification of identity with an inspection of residence and establishment permits .

13 In principle, therefore, the only control which is intended to operate at the time of and in relation to the crossing of a frontier is the checking of personal identity, which, moreover, is the only inspection expressly provided for in Article 3 of the two directives .

14 The Belgian Government contends, however, that the two controls are different in character and that there is no reason for regarding the fact that they are carried out simultaneously as incompatible with Community law, since the inspection of residence or establishment permits does not involve any prohibition of access to the territory in the event of failure to produce the required documents and does not involve "any formality for the purpose of granting leave to enter the territory of a Member State which is coupled with a passport or identity card check at the frontier", to use the words of paragraph 10 of the judgment in Pieck . In the absence of any link with leave to enter, there is no possibility, it is contended, of classifying a formality like the inspection of residence documents as one of the cases covered by the case-law of the Court .

15 By way of opposition to that formal argument it might be objected that the systematic combination of the two controls might indirectly affect the right of entry, by delaying crossing of the frontier or in any event by rendering it more complicated for the persons concerned . Indeed, it would be illogical to take the view that, whilst excluding inspections of residence documents in order to reduce the entry formalities, even though they could have combined the two controls, thus making it possible immediately to establish at the frontier whether or not a person had a right of residence, the authors of the directive should then have intended tacitly to tolerate a systematic combination of the controls on the initiative of the Member States, when the sole effect of so doing would be to make crossing of the frontier subject to greater formalities, without however retaining the specific advantage which might accrue from the simultaneous carrying out of the inspections of preventing the entry of persons without a residence permit .

16 A systematic inspection of residence permits at the frontier might also create serious obstacles to the free movement of persons, if it is borne in mind that an increasing number of workers, self-employed persons and providers of services move from one Member State to another and would be subject to that inspection .

17 In the light of the foregoing, I consider that Article 3 of Directive 68/360 and Article 3 of Directive 73/148, and more specifically the spirit of those provisions, do not allow systematic inspections of residence or establishment permits at frontier crossings, even if such controls cannot be regarded as equivalent to the requirement of an entry visa and are not therefore expressly prohibited by the abovementioned provisions .

However, neither can a Member State be prevented from carrying out in particular cases, and not systematically, inspections of residence permits at frontier crossings, inspections which in any event would be allowed immediately after entry into its territory; and the reasons for this, relating to the simplification of entry formalities in a broad sense, are the same as those which persuade me that any systematic control is unlawful . Sporadic and exceptional controls, for example in connection with particular events, of the kind referred to by the Belgian Government' s representative at the hearing, do not seem to me to be likely to affect freedom of movement and do not appear to constitute an infringement of the directives concerned . In other words, such controls, like those described in the documents before the Court, which are neither systematic nor frequent, not only do not fall within the express scope of the prohibition laid down by the directives in question, but also do not run counter to their underlying liberalizing spirit, as might be the case if, on the other hand, they were systematic . And in that connection it is right and proper that the officials concerned should receive precise instructions of the kind described, in accordance with the intention expressed by the Belgian Government in the course of the procedure .

18 In my opinion, therefore, the Kingdom of Belgium, by carrying out upon entry into its territory of nationals of other Member States who lawfully reside there sporadic inspections of a personal nature concerning the possession by such persons of a residence or establishment permit, has not infringed Article 3 of Directive 68/360 or Article 3 of Directive 73/148 .

I therefore propose that :

( i)the application be dismissed;

( ii ) the Commission be ordered to pay the costs .

(*) Original language : Italian .

( 1 ) Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families ( Official Journal, English Special Edition 1968 ( II ), p . 485 ).

( 2 ) Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services ( Official Journal 1973, L 172, p . 14 ).

( 3 ) The persons referred to in Article 1 are, in the case of Directive 68/360, nationals of the Member States and members of their families, to whom Regulation No 1612/68 applies, and in the case of Directive 73/148, self-employed persons and persons wishing to provide services, the recipients of services and members of the families of such persons .

(*) * Translator' s note : in the English version there is a slight difference of wording .

( 4 ) (( 1980 )) ECR 2171 .