Keywords

Summary



Keywords

1 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - PROTECTION PROVIDED BY THE COURTS - LEGAL REMEDIES AVAILABLE TO NATIONALS AGAINST ACTS OF THE ADMINISTRATION - LESS FAVOURABLE CONDITIONS CONCERNING FORM OR PROCEDURE FOR NATIONALS OF OTHER MEMBER STATES - NOT PERMISSIBLE

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 8 )

2 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - PROTECTION PROVIDED BY THE COURTS - LEGAL REMEDIES AVAILABLE TO NATIONALS AGAINST ACTS OF THE ADMINISTRATION - STAY OF EXECUTION OF THE ACT CONTESTED - IDENTICAL CONDITIONS AS TO ADMISSIBILITY FOR NATIONALS OF THE HOST STATE AND FOR NATIONALS OF OTHER MEMBER STATES

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 8 )

3 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - PROTECTION PROVIDED BY THE COURTS - NO SUSPENSORY EFFECT OF APPLICATIONS - PERMISSIBILITY - DUTIES OF MEMBER STATES - RIGHT TO A FAIR HEARING - REGARD FOR RIGHTS OF THE DEFENCE

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 8 )

4 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - EXPULSION - APPEAL TO THE COMPETENT AUTHORITY - PROCEDURE PRIOR TO THE EXPULSION ORDER - IMMEDIATE EXECUTION OF THE DECISION AFTER OBTAINING THE OPINION OF THE COMPETENT AUTHORITY - PERMISSIBILITY - CONDITIONS

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 9 )

5 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - EXPULSION - APPEAL TO THE COMPETENT AUTHORITY - PROCEDURE PRIOR TO THE EXPULSION ORDER - EXCEPTION - CASES OF URGENCY DULY JUSTIFIED - APPRAISAL OF URGENCY BY THE ADMINISTRATIVE AUTHORITY

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 9 )

6 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - PROCEDURE CONCERNING EXAMINATION BY AND OPINION OF THE COMPETENT AUTHORITY - OBJECTIVE - NO EFFECT ON THE JURISDICTION OF THE NATIONAL COURTS

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 9 )

Summary

1 . ARTICLE 8 OF DIRECTIVE NO 64/221 IMPOSES UPON THE MEMBER STATES THE DUTY TO MAKE AVAILABLE TO ANY NATIONAL OF A MEMBER STATE OF THE COMMUNITY AFFECTED BY ANY DECISION CONCERNING ENTRY OR REFUSING THE ISSUE OR RENEWAL OF A RESIDENCE PERMIT OR ORDERING EXPULSION FROM THE TERRITORY IN QUESTION THE SAME LEGAL REMEDIES AS ARE AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION . A MEMBER STATE CANNOT , WITHOUT BEING IN BREACH OF THAT DUTY , MAKE THE RIGHT OF APPEAL FOR PERSONS COVERED BY THE DIRECTIVE CONDITIONAL ON PARTICULAR REQUIREMENTS AS TO FORM OR PROCEDURE WHICH ARE LESS FAVOURABLE THAN THOSE PERTAINING TO REMEDIES AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION .

2 . ARTICLE 8 OF DIRECTIVE NO 64/221 IMPOSES UPON THE MEMBER STATES THE DUTY TO PROVIDE FOR THE PERSONS COVERED BY THE DIRECTIVE PROTECTION BY THE COURTS WHICH IS NOT LESS THAN THAT WHICH THEY MAKE AVAILABLE TO THEIR OWN NATIONALS AS REGARDS APPEALS AGAINST ACTS OF THE ADMINISTRATION , INCLUDING , IF APPROPRIATE , SUSPENSION OF THE ACTS APPEALED AGAINST . IT COVERS ALL THE REMEDIES AVAILABLE IN A MEMBER STATE IN RESPECT OF ACTS OF THE ADMINISTRATION , WITHIN THE FRAMEWORK OF THE JUDICIAL SYSTEM AND THE DIVISION OF JURISDICTION BETWEEN JUDICIAL BODIES IN THE STATE IN QUESTION . THIS MEANS INTER ALIA THAT IF , IN A MEMBER STATE , THE ADMINISTRATIVE COURTS WERE NOT EMPOWERED TO GRANT A STAY OF EXECUTION OF AN ADMINISTRATIVE DECISION BUT SUCH POWER WAS RECOGNIZED TO THE ORDINARY COURTS THAT STATE WOULD BE OBLIGED TO PERMIT PERSONS COVERED BY THE DIRECTIVE TO APPLY FOR A STAY OF EXECUTION TO SUCH COURTS ON THE SAME CONDITIONS AS NATIONALS OF THAT STATE .

3 . ARTICLE 8 OF DIRECTIVE NO 64/221 IMPOSES NO SPECIFIC OBLIGATION CONCERNING ANY SUSPENSORY EFFECT OF APPLICATIONS AVAILABLE TO PERSONS COVERED BY THE DIRECTIVE . THERE CANNOT BE INFERRED FROM THAT PROVISION AN OBLIGATION FOR THE MEMBER STATES TO PERMIT AN ALIEN TO REMAIN IN THEIR TERRITORY FOR THE DURATION OF THE PROCEEDINGS , SO LONG AS HE IS ABLE NEVERTHELESS TO OBTAIN A FAIR HEARING AND TO PRESENT HIS DEFENCE IN FULL . THAT REQUIREMENT IMPLIES INTER ALIA THAT THE DECISION ORDERING EXPULSION MAY NOT BE EXECUTED - SAVE IN CASES OF URGENCY - BEFORE THE PARTY CONCERNED IS ABLE TO COMPLETE THE FORMALITIES NECESSARY TO AVAIL HIMSELF OF HIS REMEDY .

4 . THE PROCEDURE OF APPEAL TO A ' ' COMPETENT AUTHORITY ' ' REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221 MUST PRECEDE THE DECISION ORDERING EXPULSION , SAVE IN CASES OF URGENCY . IN PARTICULAR IF A MEMBER STATE HAS APPLIED ARTICLE 9 IN ORDER TO COMPENSATE FOR THE FACT THAT THE APPEALS TO THE COURTS WHICH ARE AVAILABLE DO NOT CARRY SUSPENSORY EFFECT THAT PROVISION WOULD BE RENDERED NUGATORY IF , ALWAYS SAVE IN CASES OF URGENCY , EXECUTION OF THE EXPULSION ORDER CONTEMPLATED WERE NOT SUSPENDED UNTIL THAT AUTHORITY HAS GIVEN ITS DECISION . IT THEREFORE FOLLOWS FROM ARTICLE 9 THAT AS SOON AS THE OPINION IN QUESTION HAS BEEN OBTAINED AND NOTIFIED TO THE PERSON CONCERNED AN EXPULSION ORDER MAY BE EXECUTED IMMEDIATELY , SUBJECT ALWAYS TO THE RIGHT OF THAT PERSON TO STAY ON THE TERRITORY FOR THE TIME NECESSARY TO AVAIL HIMSELF OF THE REMEDIES ACCORDED TO HIM UNDER ARTICLE 8 OF THE DIRECTIVE .

5 . THE FIRST SUBPARAGRAPH OF ARTICLE 9 ( 1 ) SHOWS THAT DETERMINATION OF THE EXISTENCE OF URGENCY IN CASES WHICH HAVE BEEN PROPERLY JUSTIFIED IS A MATTER FOR THE ADMINISTRATIVE AUTHORITY AND THAT EXPULSION FROM THE TERRITORY MAY THEN BE EFFECTED EVEN BEFORE THE ' ' COMPETENT AUTHORITY ' ' HAS BEEN ABLE TO GIVE ITS OPINION .

6 . THE PROCEDURE CONCERNING THE CONSIDERATION OF THE DECISION AND CONCERNING THE OPINION REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221 , WHICH IS INTENDED TO MITIGATE THE EFFECT OF DEFICIENCIES IN THE REMEDIES REFERRED TO IN ARTICLE 8 , IS NOT INTENDED TO CONFER UPON THE COURTS ADDITIONAL POWERS CONCERNING SUSPENSION OF THE MEASURES REFERRED TO BY THE DIRECTIVE OR TO EMPOWER THEM TO REVIEW THE URGENCY OF AN EXPULSION ORDER .

THE PERFORMANCE OF THESE DUTIES BY THE NATIONAL COURTS IS GOVERNED BY ARTICLE 8 OF THE DIRECTIVE .

THE SCOPE OF THAT PROVISION NEVERTHELESS MAY NOT BE RESTRICTED BY MEASURES TAKEN BY A MEMBER STATE UNDER ARTICLE 9 .