Opinion of Mr Advocate General Tesauro delivered on 2 October 1990. - Danielle Roux v Belgian State. - Reference for a preliminary ruling: Tribunal de première instance de Liège - Belgium. - Right of residence for Community nationals. - Case C-363/89.



European Court reports 1991 Page I-00273



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. In this reference for a preliminary ruling the Tribunal de première instance (Court of First Instance), Liège, has referred to the Court four questions on the interpretation of certain provisions of the Treaty and secondary legislation concerning freedom of movement for workers and the right of establishment, in particular Articles 3(c), 7, 48 et seq., and 52 et seq. of the Treaty, Council Regulation No 1612/68 (1) and Council Directives Nos 68/360 (2) and 73/148 (3) and 64/221. (4)

Those questions are closely interrelated and essentially concern the nature of the right of residence enjoyed by Community citizens pursuing an economic activity in a Member State other than that of which they are nationals.

The legislative background to the dispute is only too well known, so that I shall limit myself to a brief summary of the facts underlying these proceedings, and refer for the rest to the Report for the Hearing.

2. Mrs Roux, a French national, arrived in Belgium where she made an application for a residence permit to the municipal authorities of Liège, in which she stated that she was working as a self-employed waitress.

The Office des étrangers rejected that request, stating that Mrs Roux was not working as a self-employed waitress, but was working in an employed capacity for an employer; Mrs Roux had not carried on that activity in conformity with the social legislation in force in Belgium for employed persons. She was therefore ordered to leave the country.

Mrs Roux challenged that decision, requesting in interlocutory proceedings the grant of a residence permit and the suspension of the deportation order.

3. The national court has found that the competent Belgian authorities are not disputing that Mrs Roux is in fact carrying on an economic activity in Belgium and, considering that in Belgium there are two separate types of residence permit, depending on whether the activity is carried on as an employed person or a self-employed person, has referred to the Court of Justice four questions which may be summarized as follows:

(a) Is the right of residence, and thus the issue of the relevant permit, subject under the applicable Community rules to compliance with national social security provisions? In particular may a deportation order be justified by the fact that the individual in question is registered with the social security scheme for self-employed persons rather than the scheme for employed persons?

(b) Do the relevant articles of Directives 68/360 and 73/148 preclude Member States from requiring registration in the social security scheme for the purpose of obtaining a residence permit?

(c) Do the applicable Community rules require Member States to grant the residence permit where there is no dispute that an economic activity is being carried on, although its classification (on a self-employed or employed basis) is disputed?

(d) Are the Member States empowered under those rules to refuse to issue a Community citizen with a residence permit on the ground that he is not carrying on his activity in conformity with the social legislation in force?

4. The Court has already had occasion to rule on such matters in a number of cases. Thus a settled and exhaustive case-law enables a ready reply to be given to the questions raised by the national court, which, I repeat, essentially concern the nature of the right of residence.

I would first of all point out that the Court held in its well-known judgment in Royer that "... the right of nationals of a Member State to enter the territory of another Member State and reside there for the purposes intended by the Treaty - in particular to look for or pursue an occupation or activities as employed or self-employed persons, ... - is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation". (5) Consequently, as the Court itself has held, the right of residence is acquired independently of the grant of a residence permit by the competent authority of a Member State. The grant of that permit is therefore to be regarded "not as a measure giving rise to rights but as 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". (6)

It is therefore clear that the residence permit is exclusively declaratory of the rights of Community citizens, if certain conditions are met.

5. In the present case it is not contested that Mrs Roux is carrying on an economic activity in Belgium and, given that the right of residence, as the Court has explained on several occasions, is subject only to the condition that the person concerned carries on an economic activity falling within the scope of either Article 48, or Article 52 or Article 59 of the Treaty, it follows that Mrs Roux enjoys that right under the applicable Community rules irrespective of whether she carries on that activity as a self-employed or as an employed person.

On that basis, it is further necessary to verify whether the conditions for the issue of the residence permit are met. In the case of an employed person the conditions to be satisfied by a Community citizen are twofold: he must be in possession of a passport or identity card on entry into the territory of another Member State and must produce an employer' s certificate (Article 4 of Directive 68/360). A self-employed person, in addition to being in possession of one of the abovementioned identity documents, must prove - by any appropriate means - that he is carrying on an activity as a self-employed person (Article 6 of Directive 73/148).

No other condition is required and, as the Court itself has confirmed with regard to employed persons, the Member States are obliged "to issue a residence permit to any person who provides proof, by means of the appropriate documents, that he belongs to one of the categories set out in Article 1 of the Directive". (7) That also applies to self-employed persons, where the conditions set out in Article 6 of Directive 73/148 are satisfied.

In the present case, the documents submitted by Mrs Roux satisfy the requirements for the grant of the residence permit in accordance with the abovementioned provisions, whether she carries on her activity as a self-employed person or as an employed person.

6. It may accordingly be stated that the Member States are not entitled to require other documents or to impose any other conditions than those provided for by the Community rules in question.

That finding enables a single reply to be given to the national court' s first three questions. The fact that in the present case the classification of Mrs Roux' s activity is the subject of discussion is irrelevant for the purposes of the applicable Community rules. The grant of the residence permit and a priori the right of residence cannot be made conditional on compliance with national provisions on social security or on any other matter or, therefore, on Mrs Roux' s registration with the social security scheme for self-employed persons rather than with the employees' scheme. What is significant is that Mrs Roux falls within the scope ratione personae of the Community rules in question and satisfies the conditions for obtaining the residence permit.

7. As to the national court' s fourth question which essentially seeks to ascertain what penalties may be attached to any failure to comply with the obligations arising out of national social legislation, it should first be noted that, under the Court' s case-law, any penalties imposed on nationals of another Member State for non-compliance with national provisions and procedures, that is to say penalties which also apply to a country' s own nationals, may not be disproportionate.

In particular, they may not be such as to impede freedom of movement for workers. (8) The right of residence may therefore not be denied to a Community citizen falling within the scope of the relevant rules. Still less may an expulsion order be adopted on that basis. Non-compliance with national social security rules may only be penalized under the same terms as apply to nationals in respect of the same type of offence.

8. In the light of the foregoing considerations I therefore propose that the Court should reply as follows to the questions raised by the Tribunal de première instance, Liège:

(1) The right of residence and the issue of the corresponding permit are not subject to compliance with national social security provisions; non-compliance with such provisions by a worker protected by Community law cannot of itself justify an expulsion order.

(2) Article 4 of Directive 68/360 and Article 6 of Directive 73/148 preclude the Member States from requiring prior registration with a social security scheme as a precondition for the grant of a residence permit.

(3) The Member States are obliged to issue a residence permit to any person showing, on the basis of the appropriate documents referred to in the applicable Community rules, entitlement to the right of residence, without it being necessary under Community law to classify the activity according to whether it is being pursued on a self-employed or employed basis.

(4) Failure to comply with national provisions or procedures relating to registration with a social security scheme does not permit Member States to refuse to grant a residence permit or in any case to impose disproportionate penalties which would impede freedom of movement for workers.

(*) Original language: Italian.

(1) Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475).

(2) 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 (OJ, English Special Edition 1968(II), p. 485).

(3) 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 (OJ 1973 L 172, p. 14).

(4) Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1964, p. 117).

(5) Judgment in Case 48/75 Royer [1976] ECR 497, at paragraphs 31 to 33. To the same effect see judgment in Case 8/77 Sagulo [1977] ECR 1495, and the judgment in Case 157/79 R. v Pieck [1980] ECR 2171.

(6) See the Royer judgment, cited above, at paragraph 33.

(7) See the Royer judgment, cited above, at paragraph 37.

(8) To that effect see as the most recent authority the judgment in Case 265/88 Lothar Messner [1989] ECR 4209.

Translation