3.

Articles 8 and 9 of Directive No 64/221 correspond to the objective that “in each Member State, nationals of other Member States should have adequate legal remedies available to them in respect of the decisions of the administration” concerning the right of residence (cf. the third recital in the preamble to the directive). In order to attain this objective it is provided in Article 8 that each Member State must from the outset recognize the right of nationals of other Member States of “the same legal remedies ... as are available to nationals of the State concerned in respect of acts of the administration” against decisions relating to their entry into the territory, refusal to issue or renew a residence permit or an expulsion order. It is clear that that article is in accordance with the notion that nationals and aliens who are nationals of other Community countries shall be treated in every way as equals but it does not oblige the Member States to introduce into their respective legal systems any remedy against administrative acts which they have not already adopted and made available to their nationals. There is accordingly even less reason to consider that they are required to give suspensory effect to existing remedies or to remedies against the decisions listed above concerning aliens. Clear confirmation of this view is furthermore provided by Article 9 (1) which establishes, as we shall see, an appropriate procedure intended to apply (inter alia) where an application to the courts does not have suspensory effect. In the light of that provision it cannot be doubted that the possibility that appeals to the courts do not have suspensory effect is permitted and is in accordance with the general scheme of the directive. The function of Article 9 might be described as to complement what is granted by Article 8. In fact, the Community legislature intended to compel the Member States to introduce minimum procedural guarantees for the protection of aliens where such provisions were absent from their respective legal systems. It is clear that the mere application of the principle of nondiscrimination was not considered capable of providing adequate protection for the interests of the nationals of the Member States in this matter. Three instances are therefore set out in which the guarantee provided by national treatment is considered insufficient: where there is no right of appeal to a court of law against the abovementioned decisions, where such appeals may be only in respect of the legal validity of the decision (excluding review of the substance) or where they cannot have suspensory effect. The last case was the focus of attention of the national court since it corresponds to the present situation under Belgian law which permits aliens (in accordance with Article 8 of the directive) to challenge expulsion orders before the Conseil d'État [Council of State] or before the ordinary courts (in connexion with a claim for damages) but does not conver suspensory effect on either of these judicial remedies. In the three cases set out in Article 9 the directive provides that the measure adversely affecting the alien must be considered by an administrative authority other than that empowered to enact the measure and provides that the person concerned is there entitled to present his defence. In the case of a refusal to renew a residence permit or an expulsion from the territory of persons who have already obtained such a permit the decision cannot be taken until the matter has been submitted for consideration as mentioned above or until the administrative authority has issued its opinion, save in cases of urgency. Refusals to issue the initial residence permit and measures ordering the expulsion of persons who have not obtained one, on the other hand, are decided on without such an opinion being automatically required but the procedure for reconsideration must be followed where it is requested by the person concerned who is then permitted to submit his defence in person (except where this would be contrary to the interests of national security). The fact that the particular form of protection prescribed by Article 9 constitutes a remedy for those cases in which the national system does not provide that appeals to the courts of law have suspensory effect indicates that it should be recognized that the consultative procedure which I have just described has suspensory effect. In other words it would be illogical for the directive to require the Member States to institute that procedure whenever the appeals to the courts already provided for in the legal system do not have suspensory effect and at the same time to permit the issue of an expulsion order (or the other orders mentioned above) without awaiting the outcome of the procedure. On this point the Court set out its views clearly in the said decision in the Royer case when it ruled (paragraph 61 of the decision) that where a legal remedy referred to in Article 8 is not available, or “where it is available but cannot have suspensory effect, the decision cannot be taken — save in cases of urgency which have been properly justified — until the party concerned has had the opportunity of appealing to the authority designated in Article 9 of Directive No 64/221 and until this authority has reached a decision”. I consider that this case-law should be upheld. With the judgment in the Royer case still in mind it is possible to attempt to reconstruct the logical basis of the relationships between Articles 8 and 9 of Directive No 64/221. An appropriate starting point is the first alternative set out in the said paragraphs 60 and 61 of the decision: the legal system of a Member State may make provision for appeals to the courts of law with suspensory effect or make no provision for appeals with such effect (or make no provision for such appeals whatsoever). In the first case the person concerned must be permitted to submit his appeal before the expulsion order becomes definitive so that it may be suspended (cf. also paragraphs 56 to 59 of the decision). In the second case, as we have seen, the person concerned must be able to avail himself of the guarantee provided in the procedure prescribed by Article 9 and the expulsion order cannot take effect until the administrative authority charged with considering (or reconsidering) the matter has given its opinion. Only if the difference between the two alternative legal situations described above is not forgotten is it possible to obtain a precise understanding of the significance of the Court's statement that the safeguard of the right of appeal against decisions ordering expulsion or similar measures “would become illusory if the Member States could, by the immediate execution of a decision ordering expulsion, deprive the person concerned of the opportunity of effectively making use of the remedies which he is guaranteed by Directive No 64/221” (paragraph 56 of the decision). Furthermore, only if the distinction between the two situations described is clear can the proper significance be recognized of paragraph 4 of the operative part of the decision in the Royer case in which the remedies provided for in Articles 8 and 9 of the directive are considered together and it is ruled that it is not possible to prevent such remedies being exhausted by executing the expulsion order without delay. We have already seen that it was precisely paragraph 4 of the operative part of the judgment in the Royer case that the Belgian court requesting a preliminary ruling adopted as the basis for its questions. Nevertheless, it is clear, if the abovementioned considerations are taken into account, that that court has misinterpreted the Royer judgment in inferring from it the principle that the legal remedies referred to in Article 8 of the directive invariably have suspensory effect. In fact it is one thing to require that the person concerned should be able to make use of legal remedies and not be prevented from doing so by the immediate execution of an expulsion order but quite another to hold that all appeals to the courts carry suspensory effect (which would entail a stay of execution of that order pending the final decision on the appeal). The Court of Justice has not given any ruling of this nature: this is established by the fact that in accordance with Directive No 64/221 it ruled in the Royer case on the hypothesis in which appeals to the courts do not have suspensory effect (paragraph 61 of the decision). I must accordingly emphasize that, in pursuance of Articles 8 and 9 of the said directive, both appeals which may be instituted before the administrative courts to obtain the annulment of the contested measure and those which can be instituted before the ordinary courts to obtain compensation for the harm arising from an improper administrative measure have the effect of suspending the contested measure only if this is so under national law. On the other hand the protective measures provided for by Article 9 (2) of the said directive, like the procedure for obtaining an opinion provided for in Article 9 (1), have the effect of suspending the expulsion order which cannot be confirmed (in the case referred to in paragraph (2)) or taken (in the case referred to in paragraph (1)) unless the appropriate administrative authority has delivered its opinion.