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.