WRITTEN QUESTION E-1426/00

by Charles Tannock (PPE-DE) to the Commission

(5 May 2000)

Subject: (Consolidated) Treaty violations

Would the Commission accept that, if a Member State deprived a national of that state or of any other European Union state of the right to enter freely into that Member State, it would constitute a prima facie violation of Articles 39 and 43 of Title III of the Consolidated Version of the Treaty Establishing the European Community dealing respectively with free movement of persons, services and capital and right of establishment?

Joint answer to Written Questions E-1425/00, E-1426/00 and E-1427/00 given by Mr Vitorino on behalf of the Commission

(6 July 2000)

The free movement of persons is one of the fundamental rights guaranteed to the Union's citizens by Community law: Article 18(1) (former Article 8a) confers on the Union's citizens a general right to free movement outside the sphere of any economic activity. Nevertheless, this Article constitutes an additional legal basis which does not replace the specific legal bases, viz. Articles 39 and 43 (former Articles 48 and 52). At present, the right of residence is governed by the provisions of ten or so directives and regulations which are listed in the second report on citizenship.(1)

The right to free movement is not absolute. It is exercised subject to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect. Thus the right to move freely can be limited by the Member States, in particular on grounds of public policy, public security or public health(2), while complying with the provisions of Directive 64/221/EEC(3).

The Commission would draw the Honourable Member's attention to its communication on the special measures concerning the movement and residence of citizens of the Union which are justified on grounds of public policy, public security or public health.(4) The communication analyses the experience gained in applying this Directive, notably in the light of the Court of Justice's case-law, and formulates recommendations for the Member States. It transpires that the ban on entering the Community is not always in itself a violation of Community law on the free movement of the Union's citizens.

In any event, any citizen who considers himself harmed by a measure taken against him by a Member State can have recourse to the competent jurisdictions, the national courts being the first guarantor of Community law. The same applies if the person in question claims to be the victim of a violation of the rights recognised by the European Convention on Human Rights. Here, the Commission would point out that it is not the guarantor of compliance with that Convention.

On several occasions, the Court of Justice has recognised that the Commission is not required to start infringement proceedings every time it feels that Community law is being violated but that it has a discretionary power precluding the right of individuals to require it to adopt a particular position(5).

(1) COM(97) 230 final.

(2) See Article 39(3), Article 46(1) and Article 55 of the EC Treaty.

(3) 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 56, 4.4.1964).

(4) COM(1999) 372 final.

(5) Case 87/89 [1990] ECR I 1981.