II —

There are already decisions of the Court on a number of the problems raised in these questions. Accordingly it appears to me useful to draw together the basic points of this case-law before I give my opinion on the questions referred to the Court for a preliminary ruling. In its judgment of 8 April 1976 in Case 48/75, Royer [1976] ECR 497 with regard to the right of residence of nationals of a Member State in the territory of another Member State the Court held: The right of nationals of a Member State to enter the territory of another Member State and reside there is a right conferred directly, on any person falling within the scope of Community law, by the Treaty — especially Articles 48, 52 and 59 — or, as the case may be, by the provisions adopted for its implementation, independently of any residence permit issued by the host State. With regard to the legal nature of the residence permit under Article 4 (2) of Council Directive No 68/360 of 15 October 1968 (OJ, English Special Edition 1968 (II), p. 485) the Court has decided that this does not give rise to rights but is a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of Community law (Cf. judgment in Case 48/75, Royer [1976] ECR at pp. 512 and 513, paragraphs 31 to 33). The residence permit simply provides proof of the right of residence and must be issued to everyone who provides proof that he belongs to the category of those entitled (Cf. judgment in Case 48/75, Royer [1976] ECR at p. 513, paragraphs 34 to 37, and p. 520, paragraph 2 of the operative part of the judgment). On the question how far measures for the control of aliens are permissible against the nationals of another Member State the Court has stated in the said judgment (ibid, at p. 514, paragraph 42): On the other hand Community law does not prevent the Member States from providing, for breaches of national provisions concerning the control of aliens, any appropriate sanctions — other than measures of expulsion from the territory — necessary in order to ensure the efficacy of those provisions. The Court in its judgment of 7 July 1976 in Case 118/75, Watson and Belmann [1976] ECR at p. 1198, paragraphs 17 and 18, has expressly confirmed this right of the Member States to apply measures for the control of aliens to the nationals of other Member States as well. In the same judgment (ibid, at p. 1199, paragraph 21) the Court has said with regard to penalties: As regards other penalties, such as fines and detention, whilst the national authorities are entitled to impose penalties in respect of a failure to comply with the terms of provisions requiring foreign nationals to notify their presence, which are comparable to those attaching to infringements of provisions of equal importance by nationals, they are not justified in imposing a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of persons. If we now consider the questions in the present case referred for a preliminary ruling in the light of this case-law the following position appears: 1. Question 1 agrees with the case-law of the Court in assuming the purely declaratory nature of the residence permit under Article 4 of Council Directive No 68/360, which is described in the question as ‘residence document’ (Aufenthaltsbescheinigung). This expressly stresses the special legal nature of this document, distinguishing it from the residence permit (Aufenthalts-erlaubnis) under the German Auslandergesetz, which creates rights. If a residence permit under Article 2 (1) of the Auslandergesetz expires the right of residence of the alien concerned in the Federal Republic of Germany also expires. If on the other hand the residence permit under Article 4 of Council Directive No 68/360 expires, the holder simply no longer has written proof of his right of residence which continues to exist unchanged, although he does have a right to have this proof. extended or newly made out. The residence permit for nationals of a Member State of the EEC is therefore much closer from the point of view of its legal nature to the identity card of a national than is the general residence permit under the German Auslandergesetz. For these general considerations it appears to me impossible to equate the two residence permits in administrative and criminal law. The question is directed to ascertaining, as a matter of fact, whether the criminal provisions of the first and second subparagraphs of Article 47 (1) of the German Auslandergesetz are applicable to the residence permit under Article 4 of Council Directive No 68/360. On this the Commission has rightly pointed out that the extension of the question to the first subparagraph of Article 47 (1) (entry without a residence permit) must be due to an error. Article 2 (1) of the German Gesetz fiber Einreise und Aufenthalt von Staatsangehorigen der Mitgliedstaaten der Europäischen Wirtschaftsgemeinschaft (Law on entry and residence of nationals of Member States of the European Economic Community) of 22 July 1969 permits those persons entitled to freedom of movement to enter without a residence permit. According to Article 15 of this law its provisions have precedence over the Auslandergesetz. Thus even under the national law of the Federal Republic of Germany entry without a residence permit by those entitled under Article 48 of the EEC Treaty is not punishable. With regard to the second subparagraph of Article 47 (1) of the Auslandergesetz it is not for the Court to interpret the provision of the German law as to whether by ‘residence permit’ the law is referring to a substantive right to residence or refers to a document containing only evidence of an existing right of residence. It appears however from considerations of Community law that the residence permit under Article 4 of Council Directive No 68/360 cannot come under the penal provision of the general Auslandergesetz. Under the general rule of the first paragraph of Article 7 of the EEC Treaty which as regards workers is particularly reflected in Article 48 (2) of the Treaty any discrimination and differentiation of treatment based on nationality between nationals of the Member States is prohibited. Nationals of the Member States must therefore basically be put on an equal footing with nationals of the country concerned. As I have already stated, the special residence permit for nationals of a Member State of the EEC is from the legal point of view much closer to the identity papers of a national than to the general residence permit under the German Auslandergesetz. If a national does not comply with his obligations in respect of identity cards then under German law he is liable to a fine only for a minor offence. From the point of view of its criminality the disregard of the obligation in respect of evidence of a substantively existing right of residence by a national of another Member State of the EEC cannot be treated differently. This is in line with the previous case-law of the Court. It is true, as I stated earlier, that the Court has declared the adoption and execution of provisions for the control of aliens to be permissible as regards nationals of the Member States of the EEC, but with regard to penalties it has expressly stated that they must accord with the principles of national treatment and of proportionality as regards the means employed (Cf. judgment in Case 118/75, Watson and Belmann [1976] ECR at p. 1199, paragraph 21). An interpretation of the second subparagraph of Article 47 (1) of the German Auslandergesetz to the effect that this provision is applicable also to the residence permit under Article 4 of Council Directive No 68/360 would therefore infringe the prohibition on discrimination in the first paragraph of Article 7 of the EEC Treaty. Further such an interpretation would lead to the application of penalties quite disproportionate to the criminality of disregard of the formalities with regard to control of aliens and would thus represent a direct obstacle to freedom of movement guaranteed by Community law and to that extent be contrary to the EEC Treaty. 2. With regard to Question 2 it must be observed that this proceeds from the false premise that the application of the penal provision of the second subparagraph of Article 47 (1) of the German Auslandergesetz might depend on which form of residence permit the issuing authority chose to adopt. Since the right of residence of nationals of the Member States arises directly from the Treaty or from the provisions of Community law adopted thereunder, its legal nature cannot be altered by the fact that the competent authority in error issues a general residence permit under the Auslandergesetz. Since moreover, as already recognized by the case-law, a national of a Member State entitled to a right of residence under Article 48 of the EEC Treaty has a right to the issue of the special residence permit under Article 4 (2) of Council Directive No 68/360, the issue of a general residence permit under Article 2 (1) of the German Auslandergesetz would also be contrary to Community law. 3. With regard to Question 3 I can be very brief. As I have already stated with regard to Question 1, the different treatment referred to in Question 3 clearly infringes the prohibition on discrimination set out in the first paragraph of Article 7 of the EEC Treaty. 4. The answer to Question 4 follows likewise from what I have stated in respect of the first question. As moreover the Commission has rightly observed, a prior conviction contrary to Community law can have no influence on the assessment of the same act in fresh proceedings.