Communication from the Commission to the Council and the European Parliament 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
Date: 1999-07-19
Institutions: European Commission
Subjects: EU national, application of EU law, free movement of persons, human rights, public order

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

Brussels,  19.07.1999 
COM(l999)372  final 

COMMUNICATION FROM THE COMMISSION 

TO THE COUNCIL AND THE EUROPEAN PARLIAMENT 
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 

(Directive 64/221/EEC) 

1. 

INTRODUCTION 

1.1.  Background 

1.2.  Why a Communication? 

2.  BASIS FOR INTERPRETATION 

2.1.  The Scope of Directive 64/221/EEC 

2.2.  Fundamental  Principles and Rights 

3.  GUIDELINES FOR APPLICATION 

3.1.  The Grounds in the light  of the Citizenship of the Union 

3.1.1.  Public Policy 

3.1.2.  Public Security 

3.1.3.  Public Health 

3.2.  Entry and Residence 

3.3.  Expulsion  and other Measures 

3.3.1.  Evaluation  of the  Threat  posed 

3.3.2.  Decision  on a Measure 

3.4.  Rights of Specific Groups 

3.4.1.  Long-term  Residents 

3.4.2.  Members of the Family 

3.5.  Means of Redress 

3.5.1.  Remedies and  Safeguards 

3.5.2.  Right of re-application 

4.  CONCLUSIONS 

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1. 

INTRODUCTION 

1.1.  Background 

Free  movement  of  persons  is  one  of  the  fundamental  rights • guaranteed  by 
Community  law.  According  to  Article  18(1) of the Treaty  establishing  the  European 
Community  every  citizen  of the Union  shall  have the  right  to  move and  reside  freely 
within the territory  of the Member  States. However,  this right  remains subject  to  the 
limitations  and  conditions  laid  down  in  the  Treaty  and  by  the  measures  adopted  to 
give it  effect.1 

In  particular,  according  to  Articles  39(3),  46(1)  and  55  of  the  EC  Treaty,  the 
Member  States  may  impose  restrictions  upon  the  right  to  free  movement  where  this 
is  justified  for  reasons  of  public  policy,  public  security  or  public  health.  Such 
measures  must  comply  with  the  terms  and  conditions  of  Council  Directive 
64/221/EEC  of  25  February  19642.  The  objective  of  the  Directive  is to  offer  to  its 
beneficiaries  specified  safeguards  and  guarantees  when  the  Member  States  resort  to 
measures  on  grounds  of  public  policy,  public  security  or  public  health,  as  these 
grounds  are derogations  from  the fundamental  freedoms  provided  for  by the  Treaty 
and  should therefore  be interpreted  strictly and  in the light  of all the provisions  of the 
Treaty.  The  proper  application  and  interpretation  of  this  Directive  is  the  subject 
matter of the present  Communication. 

1.2.  Why  a  Communication? 

Directive  64/221/EEC  dates  from  1964.  Over  the  years,  its  provisions  have  been 
extensively  interpreted  and  developed  in  a  series  of judgements  from  the  European 
Court  of Justice, culminating in the recent  case of Donatella  Calfa3.  Developments in 
European  integration,  and  particularly  the  introduction  of the  concept  of  citizenship 
of the Union  in Article  18 of the EC  Treaty,  have also changed  the  context  in which 
the Directive falls to be  interpreted. 

1  Article  18 confers  upon  Union  citizens  a  fundamental  and  personal  right,  which  may  be  exercised 
outside  the  context  of an  economic  activity.  Article  18(2)  specifies  that  the  Council  may  adopt  new 
provisions  to  facilitate  the  exercise  of  this  right.  The  Resolution  of  the  European  Parliament  on  the 
second  Commission  report  on  citizenship  of  the  Union  (C4-00291/97,  OJ  C  226,  20.7.1998,  p. 61, 
the  Report  COM  (97)  230  final,  27.5.1997)  and  the  Action  Plan  for  the  Single  Market  (CSE(98)1 
final,  4.6.1997)  endorsed  by  the  Amsterdam  European  Council,  have  already  called  for  new 
provisions to this  effect. 

2  OJ No. 56, 4.4.1964,  p. 850-857. The legal basis of the Directive  is Article 46(2) of the EC Treaty. 

3  Case  C-348/96,  in  which  the  Court  of  Justice  gave  its  judgement  on  19  January  1999.  Note:  the 
Annex  to  this  Communication  contains  a  table  of  the  most  relevant  jurisprudence  of  the  Court  of 
Justice. 

At  the  same  time,  the  Commission  has been  receiving  an  ever-increasing  number  of 
complaints  concerning  the  application  of  the  Directive.  Further,  these  suggest  that 
the  interpretation  and  implementation  of  some  of  its  basic  principles  differ  widely 
amongst the Member  States. 

The  Commission  therefore  considers  that  the  time  has  come  to  draw  attention  to 
some  of the  main  difficulties  which  arise in the  implementation  of the Directive,  and 
to  offer  guidance  as  to  how  these  may  be  resolved.  In  offering  information  and 
assistance  to  both  Member  States  and  citizens  of  the  Union,  it  is  hoped  that  this 
Communication  will also serve to reduce the number of future  infringement  cases. 

The  present  Communication  must  also  be  seen  in  the  light  of  the  Commissions 
commitment  to  ensure  correct  application  of  Community  law,  to  bring  the  Union 
closer  to  its  citizens,  in  particular  through  better  information  about  citizens'  rights 
under  the  Treaties.  In  the  same  spirit,  the  Commission  is developing  mechanisms  to 
allow  a  real  Dialogue  with  Citizens,  through  which  the  Commission  is  collecting 
feedback  on the day-to-day  application  of Community law. 

specific  problems  will  be  addressed 

in 

the  present 

following 

The 
Communication: 

Entry and residence: 

•  Undue delay in examining residence permit  applications (Article 5). 

Expulsions  and other measures: 

•  The role played by previous convictions in assessing the threat to public order or public 

security (Article 3(2)). 

•  General  prevention:  where  all  persons  belonging  to  a  certain  group  are  considered  to 
constitute  a threat  to  public order  or  public  security  without  any  individual  assessment 
(Article 3(1)). 

•  Defects  in informing  the  person  concerned  of the measure  taken  or the grounds  and/or 

the consequences of such a measure (Article 6). 

•  The  storage  of  personal  data  collected  about  the  persons  concerned  e.g.  in  the 

Schengen Information  System or in national  systems (Article 6). 

Position  of specific groups: 

•  The expulsion  of second-generation  migrants or long-term  residents. 

•  The position  of those third-country  national  family  members of Union  citizens, who  are 

beneficiaries  of Community  law (Article 1). 

•  The  position  of  third-country  nationals  who  did  not  benefit  from  the  protection  of 
Community  law  at  the  time  when  the  measure  was  taken,  but  have  later  become 
beneficiaries  either as Union citizens or as their family  members (Article 1). 

Remedies: 

•  Defects  in re-examination  of the cases. 

BASIS FOR  INTERPRETATION 

2.1.  The Scope of Directive 64/221/EEC 

Personal Scope of the Directive 

The  Court  of Justice  has  stated  that  the  right  of  nationals  of  one Member  State  to 
enter the territory  of another Member  State  and to  reside there is conferred  directly 
on any person falling within the scope of Community law.4 

The  Directive  applies  to  all  nationals  of  Member  States  who  travel  to  another 
Member  State as workers, self-employed  persons or recipients of services5. Its  scope 
has subsequently been extended  to  cover former  workers  and  self-employed  persons 
who remain in another Member  State having terminated their activity6. The Directive 
applies also  in the  European  Economic  Area  with  the  exception  of Article  4(3 )7.  It 
derives  from  Article  2(2)  of  Directives  90/364/EEC8  (general  right  of  residence), 
90/365/EEC9 
that  Directive 
64/221/EEC is applicable within the scope of those Directives. The Directive  applies 
to  the  spouse  and  other  members  of  the  family  in  the  meaning  of  its  Article  1, 
paragraph 2, whatever their nationality. 

(retired  persons)  and  93/96/EEC10 

(students) 

Case 48/75 Royer, para. 31. Whether an individual possesses the nationality of a Member State shall 
be settled solely by reference to the national legislation of the Member State concerned (see the EC 
Treaty, Declaration (No 2) on nationality of a Member State).  The same principle is applied in the 
European Convention on Nationality of 6.11.1997 of the Council of Europe (ETS. No. 166). See also 
the Court of Justice jurisprudence in  Cases C-369/90 Micheletti  (ECR[1992] 1-4239) and 292/86 
Gullung  (ECR[1988]  p.  Ill)  concerning  dual  nationality  and  freedom  of  establishment. 

See Articles 39, 43 and 49 of the EC Treaty respectively. Also Regulation (EEC) No 1612/68, OJ L 
257, 19.10.1968, p. 2, as last amended by Regulation (EEC) 2434/92, OJ L 245, 26.8.1992, p. 1, 
Directive  68/360/EEC,  OJ  L  257,  19.10.1968,  p.  13,  and  Directive  73/148/EEC,  OJ  L  172, 
28.6.1973, p. 14. In Joined cases 286/82 and 26/83 Luisi & Carbone the Court of Justice has specified 
(para. 16) which groups are to be regarded as recipients of services. 

6  Directive 72/194/EEC, OJ L 121, 26.5.1972, p. 32 and Directive 75/35/EEC, OJ L 14, 20.1.1975, p. 

14. 

7  Agreement on the European Economic Area, Annex V, Free movement of workers -  list provided for 

in Article 28, OJ L 1, 3.1.1994, p. 325. 

8  OJL 180, 13.7.1990, p. 26. 

9  OJL 180, 13.7.1990, p. 28. 

10  OJL 317, 18.12.1993, p. 59. 

Measures  within the Scope of the Directive 

that  for  the  purposes  of  the 
The  Court  has  specified  in  Case  30/77  Bovchereav" 
directive,  a  'measure'  is any action  which  affects  the  right  of persons  coming within 
the  field  of  application  of  Article  39  of the  Treaty  to  enter  and  reside  freely  in  the 
Member  States  under  the  same  conditions  as  the  nationals  of  the  host  State. 
Community  law12  also  confers  on  nationals  a  right  to  leave  the  territory  of  their 
Member  State  of origin  in order  to  enter  the  territory  of  another  Member  State  and 
for  this  purpose  the Member  State  of origin  should  issue  or  renew  the  identity  card 
or  passport  of  such  nationals.  However,  the  Member  State  may  refuse  to  do  so  or 
restrict this right  for  reasons  of public policy,  for  example  in the case of persons  due 
to  start  their  military  service  or  in  case  of  objectors  of  conscience,  while  respecting 
the principle of proportionality. 

Non-applicability  to Purely Internal Situations 

The  Directive  does  not  apply  to  situations  purely  internal  to  a Member  State.  Case 
C-297/88 Dzodzi concerned  the  situation  of a national  of a third  country  who,  solely 
on the basis  as the  spouse  of a national  of a Member  State,  claimed  a right  to  reside 
or  to  remain  in  the  territory  of  that  Member  State.  However,  the  national  of  the 
Member  State had never exercised  his right to free  movement by working  or residing 
in  another  Member  State  with  that  member  of  the  family  and  therefore  Community 
law was inapplicable. 

2.2.  Fundamental  Principles  and  Rights 

The Directive shall be interpreted  in the light of the basic principle of free  movement. 
Any  restriction  of  individual  freedom  of  movement  must  be  assessed  against  the 
background  of the fundamental  principles and rights. 

The European  Union  is based  on the respect  of liberty,  democratic principles,  respect 
for  human  rights  and  fundamental  freedoms  and  the  rule  of  law  and,  more 
particularly,  on  the  respect  of  the  fundamental  rights  enshrined  in  the  European 
Convention  for  the Protection  of Human  Rights  and  Fundamental  Freedoms  (Article 
6  of  the  Treaty  on  European  Union).  This  basis  of  the  Union  has  been  further 
reinforced  by the Treaty  of Amsterdam  with a provision  enabling suspension  of rights 
of  any  Member  State  for  having  seriously  and  persistently  infringed  these  principles 
(Article 7 of the Treaty on European  Union). 

1'  Para.  21. 

12  Directive  68/360/EEC.  OJ  L 257.  19.10.1968. p.  13. Article  2. which  is mutatis  mutandis  applicable 

to the other  right  of residence Directives. 

Moreover,  although  the Community  as such  cannot  become  a Party to the European 
Convention  for  the Protection  of Human  Rights and Fundamental Freedoms13,  all the 
Member  States  are  parties  to  the  Convention.  The  major  institutions  of  the 
Community  have declared  already in  1977 that  they  will  respect  the principles  of this 
Convention14  and the Court  of Justice has ruled  that  it will  ensure the respect  for  the 
fundamental  rights  of  the  Convention  in  its  interpretation  and  application  of 
Community law.  I5 

This  means  that  the  Member  States  take  any  measures  on  refusal  of  entry  or 
expulsion  of Community  citizens against a common background  of respect for  human 
rights  and  democratic  principles.  This implies that  any  application  of the  notions  of 
public  policy  and  public  security  by  the  Member  States  will  not  only  be  subject  to 
strict  scrutiny  so that  their  scope  cannot  be  determined  unilaterally  by each  Member 
State  without  being  subject  to  control  by  the  institutions  of  the  Community16,  but 
also that  such  Community  law  scrutiny  will be  inspired  by the basic human  rights  as 
enshrined  in  the  European  Convention  for  the  Protection  of  Human  Rights  and 
Fundamental  Freedoms17.  Moreover,  because  of this  common  background  (and  the 
possibility  of  suspension  of  a  Member  State  by  which  it  is  now  underpinned),  any 
recourse to the right of refusal  of entry or of expulsion  is unlikely to place the citizen 
of the Union concerned  in jeopardy  as to the enjoyment  of his basic rights in  another 
Member State. 

Furthermore,  the  measures  adopted  for  the  protection  of  public  policy,  public 
security  or  public  health  must  be  applied  in  accordance  with  the  principle  of 
proportionality.  As  the  consequences  of  an  expulsion  or  a  refusal  of  re-entry  are 
often  extremely  serious for  the  person  concerned  and  his family,  the Member  States 
should  ensure  that  the  measures  taken  are  in  proportion  to  the  justified  interests 
which  they  try  to  protect  by  these  measures.  Proportionality  requires  justified 
grounds for  a measure, justified  balance between  the  measure  and  the  objective,  and 
justified  balance of interests of the individual  and the State  concerned. 

13  Opinion  2/94 of the Court  of 28 March  1996,  1996 ECR,  1759, paras. 34-36. 

14 

Joint  Declaration  of  the  European  Parliament,  the  Council  and  the  Commission,  5  April  1977  (OJ 
No. C  103, 27.4.1977, p. 1). 

15  Opinion  2/94,  ibid., para. 33. 

16  Case 36/75 Rutili,  para. 27. 

17  Obviously  the  right  to family  life,  as laid  clown  in  Article  8 of the  ECHR  is of particular  importance. 
But even  the limitations  placed  on  the powers of (he Member  Slates  in  respect  of the control  of aliens 
are merely a specific  manifestation  of the  rule,  laid  down  in  the exception  to Articles  8, 9,  10 and  11, 
and  to  Article  2 of  Protocol  4 of  the  ECHR,  (hat  these  fundamental  freedoms  shall  only  be  res(ricted 
'as far  as  necessary'  for  the protection  of  national  security  or  public  safety  'in  a  democratic  society', 
see Case 36/75 Rutili,  para. 32. 

8 

The one fundamental  right  that, for  obvious reasons,  cannot  be applied  in the normal 
way  in the  case  of  refusal  of  entry  or  expulsion,  is the  prohibition  of  discrimination 
on the basis of nationality.  Pursuant  to  international  law  a State  cannot  refuse  entry 
to  or expel its own citizens.18 On the other  hand  a State  cannot  discriminate  between 
its own  nationals  and  other  citizens of the Union  where  it concerns  conduct  which is 
deemed to be a threat  to  public policy or public security.  If such conduct  on the part 
of its own nationals is not subject  to serious repressive measures, it cannot be a cause 
for  expulsion  of other citizens of the Union.  iy 

18  Case C-171/96 Roque v. Jersey  and  Case C-348/96  Donatella Calf a. 

19 

Joined  Cases  115 and  116/81 Adoui  and Conmaille,  para. 8. 

9 

GUIDELINES  FOR  APPLICATION 

3.1.  The Grounds  in the light of the Citizenship of the  Union 

3.1.1.  Public Policy 

Neither the Treaty  nor the  secondary  legislation  define  the  concepts  of public policy, 
public  security  or  public  health.  This  leaves  it  to  the  discretionary  powers  of  the 
Member  States  to  determine  the  scope  of  these  concepts  pursuant  to  national 
these 
legislation  and  jurisprudence.  Directive  64/221/EEC  does  not  concern 
concepts,  but  rather measures justified  on grounds  of public  policy,  public  security 
or public  health.  The concepts  existed  in national  legislation  and  practice before  the 
creation  of  the  European  Community  and  have  evolved  over  time.  No  precise 
definitions  of these concepts  are used  in the  national  legislation,  and  moreover,  these 
concepts at least partially overlap. 

The  scope  of the  concepts  of  public  policy,  public  security  and  public  health  should 
not  be  artificially  limited  by  trying  to  give  them  an  exact  and  exhausting  definition. 
This  would  be  extremely  difficult  and  would  not  serve  any  real  purpose.  However, 
this  does  not  mean  that  the  Member  States  have  powers,  when justifying  measures 
on  these  grounds,  to  freely  define  and  interpret  these  concepts  according  to  their 
own practices and traditions. 

A  clear  distinction  should  be  made  between  the  actual  violation  of  public  policy, 
public security or public health,  which does not  necessarily  lead the Member  State to 
take  any  measure,  and  the  examination  and  decision  by  the  Member  State  whether 
actually  to  take  a  measure.  When  deciding  whether  to  take  a  measure  or  not,  the 
Member  State  is limited  by the  whole  framework  of  Community  law,  especially  the 
fundamental  principles and  rights and the citizenship  of the Union. 

The  Member  States  have  discretionary  powers  for  interpretation,  and  the  national 
legislation  and  practices  of  the  Member  States  may  be  applied,  only  within  this 
Community  framework.  Discretionary  powers  conferred  on  the  Member  States  do 
not justify  arbitrary  use  of these  powers,  for  example  taking  measures  solely  on  the 
basis  of the  racial  or  religious  background  of  the  person.  Nevertheless,  the  national 
concepts  of public policy,  public security  and  public health  may gradually  approach 
each  other  as  European 
the  national 
interpretation  and  practices  in  applying  these  concepts  may  change  accordingly. 
National  legislation  and  practice  are  still  applicable  in the case of those  third-country 
nationals who are not beneficiaries  of Community  law as family  members20. 

integration  advances.  Consequently 

20  See  COM  (1999)  3  final,  27.1.1999,  Proposal  for  a  Council  directive  extending  the  freedom  to 
provide  cross-border  services  to  third-country  nationals  established  within  the  Community  and 
Proposal  for a directive of the European  Parliament  and of the  Council  on  the posting  of workers  who 
are  third-country  nationals  for  the  provision  of cross-border  services.  See  also  Decision  No  1/80  of 
the EEC-Turkey  Association  Council  of  19 September  1980 as  regards  the free  movement  of  Turkish 
workers. 

10 

The  new  concept  of  citizenship  of  the  Union  should  play  a  role  in  the  overall 
assessment  of  the  position  of  a  Union  citizen  in  case  national  authorities  consider 
his/her  expulsion  or  non-admission  for  reasons  of  public  order,  public  security  or 
public  health.  Article  18  of  the  EC  Treaty  should  be  accorded  its  full  weight  by 
national  authorities  when  they  contemplate  the  application  of  Directive  64/221/EEC 
to  a Union  citizen.  This  is  especially  true  for  specific  categories  of Union  citizens: 
nationals  of  other  Member  States  who  were  either  born,  or  have  lived  since 
childhood,  in the Member  State of residence and who have virtually  all their  cultural, 
social  and  family  ties to that  Member  State,  as well  as other  long-term  residents  and 
minors (see e.g.  para.  3.4.1  below).21 

Grounds  of  public  policy,  public  security  or  public  health  may  not  be  used  to  serve 
economic  ends  and  the  economic  ends  cannot  constitute  such  grounds.22  This  has 
been  expressly  prohibited  in  Directive  64/221/EEC,  Article  2(2).  On  this  point, 
Community  law  is  broader  in  scope  than  the  relevant  provisions  of  the  European 
Convention  for  the  Protection  of Human  Rights  and  Fundamental  Freedoms,  which 
permit  measures  which  are  deemed  necessary  for  the  economic  well-being  of  the 
country.  Furthermore,  lack  of  sufficient  resources  alone  does  not  justify  measures 
taken  on  grounds  of  public  policy  upon  the  entry  into  the  country  as  the  Member 
States  are  not  even  permitted  upon  the  entry  to  pose  questions  concerning  the 
purpose  and  duration  of the journey  and the financial  means at  a person's  disposal  at 
the point  of entry.23 

3.1.2.  Public Security 

The  Commission  fully  recognises  the  need  for  Member  States  to  protect  their 
security.  The  criterion  of  public  security  offers  Member  States  a rather  wide  power 
of discretion.  Nevertheless,  even  in very  sensitive  matters  the  power  of  discretion  is 
not  unlimited  and  some transparency  is necessary.  On the basis of the grounds  given 
by  the  State  concerned,  the  Community  institutions  should  be  able  to  estimate,  at  a 
minimum, whether  a person  is actually a threat  to  public security  and whether  such a 
threat  is  sufficiently  serious  to  justify  the  measure  taken  on  grounds  of  public 
security. 

21  See  the  Second  Report  from  the  Commission  on  Citizenship  of  the  Union  (COM  (97)  230  final, 

27.5.1997)  for the concept  of  citizenship of the Union. 

22  See Case 352/85 Bond van Adverleerders,  para. 34. 

23  The Court has stated  in Case 68/89 Commission v Netherlands,  para  13, that  the obligation  to answer 
questions put by frontier  officials  cannot  be a  precondition  for  the entry  of a  national  of one  Member 
State  into  the  territory  of  another.  The  judgement  confirms  that  this  prohibition  covers  questions 
concerning  the  purpose  and  duration  of  the journey  and  the  financial  means  at  a  person's  disposal. 
Furthermore,  Article  2(2)  of  the  Directive  prohibits  the  use  of  public  policy,  public  security  and 
public  health  grounds  for  economic  ends  and  is  one  of  the  explicit  limitations  on  the  discretionary 
powers of Member  States included  in the Directive. 

11 

Moreover,  the person  concerned  should be informed  of the grounds as far  as possible 
without  endangering  the  security  of  the  state.  In  cases  concerning  security  of  the 
state  the  interests  of the  individual  and  the  state  are  in  conflict.  There  are  situations 
where  the  Member  States  are  obliged  to  take  measures  to  protect  the  fundamental 
interests  of  the  society,  but  they  should  apply  the  security  of  the  state  criterion  as 
narrowly as possible.24 

3.1.3.  Public Health 

Article 4 of the Directive  imposes  limitations on the  use of the public health  grounds 
and the Annex  of the Directive contains the list of the diseases or groups of diseases, 
which  come  within  the  scope  of  public  health  criteria.25  The  Annex  specifies  that 
drug  addiction  and  mental  illnesses  might  threaten  public  policy  or  public  security, 
but not public health. 

The Directive  allows the Member  States to  refuse  a first  residence  permit  to  persons 
with  one  of  the  illnesses  or  medical  conditions  scheduled  in  the  Annex.  It  must  be 
noted  that  a refusal  to renew a residence permit  or an expulsion  of a residence  permit 
holder  is  not  permitted  on  grounds  of  public  health.  The  right  to  refuse  a  first 
residence permit gives the Member  States a possibility to  request  a person to  provide 
a  medical  certificate  if this  has  been  provided  for  by national  law  and  if the  purpose 
of  such  a  certificate  is  to  establish  that  the  person  is  not  suffering  from  one  of  the 
diseases  mentioned  in  the  Annex.  However,  the  Member  States  may  not  set  any 
general  requirement  that  before  entry  into  the  country  citizens  of  another  Member 
State  need  to  provide  proof that  they are not  suffering  from  any illness mentioned  in 
the Annex. 

The  public  health  grounds  are  somewhat  outdated  given  the  current  level  of 
integration  of  the  European  Union  and  the  development  of  new  means  to  handle 
public  health  problems.  Therefore,  restrictions  of  free  movement  can  no  longer  be 
considered  as  necessary  and  effective  means  of  solving  public  health  problems.  The 
situation has changed  radically from  what  it was in  1964, even though  the concept of 
public health  still forms  part of Community  law.26 

24  The Court of Justice has interpreted  the  'security of the state'  grounds  in Joined  cases  115 and  116/81 
Adoui  and  Cormiaille.  Para.  13 of  the judgement  states  "it  is  clear for  the purpose  of  the  directive 
that  the  notification  of  the grounds  must  he  sufficiently  detailed  and precise  to  enable  the  person 
concerned  to  defend  his  interests.'"'  and  further:  '7/  is  sufficient  in  any  event  if  the  notification  is 
made  in  such  a  way  as  to  enable  the  person  concerned  to  comprehend  the  content  and  effect 
thereof." 

25  No diseases or groups of diseases have been added to the list so  far. 

26  As the concept  of public health  still  exists in Community  law,  the free  movement  of persons  suffering 
from  HIV/AIDS  is worth  mentioning.  In the documents adopted  by the Community  institutions,  it has 
been clearly  stated  that the full  respect  office  movement  of persons and  equality  of treatment  must be 
guaranteed  for  persons  affected  by  HIV/AIDS.  The  Commission  rejects  the  use  of  any  measures, 
which could  lead  to social exclusion, discrimination  or stigmatisation  of persons with  HIV/AIDS.  See 
inter  alia  Conclusions  of  the  Council  and  of  the Representatives  of  the  Governments  of the  Member 
States,  meeting  within  the  Council  of  15  May  1987  concerning  AIDS  (OJ  C  178,  7.7.1987,  p.l), 
12 

3.2.  Entry and Residence 

Formalities 

The Court  of Justice has pointed  out that the mere failure  by a national  of a Member 
State to complete the legal formalities  concerning access,  movement  and  residence of 
aliens does not justify  a decision  ordering  expulsion.27  The Court  has also  confirmed 
this as regards the person's failure to notify  her presence and to make a declaration  of 
residence.28 

Article  3(3)  of  Directive  64/221/EEC  provides  that  expiry  of  an  identity  card  or 
passport  does  not justify  expulsion,  even  if turning  back  at  the  border  is  possible in 
the  absence  of  valid  identity  card  or  passport.  The  Commission  considers  that  no 
threat  of expulsion  should  be linked to the renewal  procedure  of the residence permit 
and that  such a threat would be considered  contrary to the  Directive. Failure to  apply 
for the extension  of the residence permit would  not justify  an expulsion  order,  even if 
an  administrative  sanction  e.g.  a  fine,  which  is  in  proportion  to  such  a  failure  and 
non-discriminatory,  would be acceptable. 

The  Court  of Justice  has  stated  that  restrictions  on  grounds  of  public  policy,  public 
security  or  public  health  must  be  regarded  not  as imposing  a condition  precedent  to 
the  acquisition  of the  right  of entry  and  residence  but  as providing  the possibility,  in 
individual  cases where  there  is sufficient  justification,  of imposing  restrictions  on  the 
exercise of a right derived  directly from  the Treaty.2y 

Article  5(2)  of  the  Directive  allows  the  host  Member  State  to  request  the  Member 
State  of  origin  to  provide  information  concerning  any  previous  police  record  of  the 
residence  permit  applicant  in  cases  where  this  is  considered  essential.  The  Article 
specifies that  such enquiries shall not be made as a matter of routine. 

Conclusions  of  the  Council  and  ihe  Represenlatives  of  Ihe  Governments  of  the  Member  States, 
meeting within  the Council  of 31 May  1988 concerning  AIDS (OJ  C  197, 27.7.1988, p.8), Resolution 
of the  Council  and  Ihe Ministers  for  Health  of Ihe Member  States,  meeting  within  the  Council  of  22 
December  1989  on  the  fight  against  AIDS  (OJ  C  10.  16.1.1990,  p.3)  and  Decision  No  647/96/EC of 
the European  Parliament  and  of the  Council  of 29 March  1996 adopting  a programme  of  Community 
action  on  the prevention  of AIDS and  certain  oilier  communicable  diseases  within  the framework  for 
action  in the field  of public health  (1996 to 2000), (OJ L 95,  16.4.1996. p.  16). 

27  Case 48/75 Rover,  para.  38. See also Case C-363/89  Roux,  para.  11 and  the Report  of the High Level 
Panel  on the free  movement  of persons, chaired  by Mrs Simone Veil, presenied to the Commission  on 
18 March  1997  and  the  follow-up  of  that  Report  (COM(98)  403  final,  1.7.1998).  The  High  Level 
Panel  expressed  special  concern  that  contrary  to  what  tends  lo  be  Ihe  case  in  the  Member  States 
concerned,  non-possession  of  a  valid  residence  permit  should  never  per  se  lead  to  a  threat  of 
expulsion. 

28  Case  118/75  Watson and Belmarm, para. 20. 

29  Case 321/87 Commission v. Belgium,  para.  10. 

13 

The  same  principles  apply  also  as  regards  the  visas  of third-country  national  family 
members.  Consequently,  no  threat  of  expulsion  should  follow  a failure  to  apply  for 
the  prolongation  of  visas.  Visa  policy  should  not  be  used  as  a  means  to  prevent 
genuine  family  members  from  enjoying 
the  rights  conferred  on  them  under 
Community law. 

Time-limit for Handling  the Application 

The  Commission  would  like  to  recall  the  importance  of  respecting  the  deadline 
contained  in  Article  5  of  the  Directive.  If  this  deadline  is  not  respected,  a  Member 
State is in violation  of one of the basic rights and guarantees offered  by the Directive. 
It  should  be  stressed  that  in  normal  cases,  once  the  applicant  has  provided  all  the 
necessary  proof as required by the  relevant  right  of residence  directive, the  residence 
permit  should be issued  without  unnecessary  delay30,  for  example in the same time as 
the  national  identity  card  or  passport  is  usually  issued.  The  six-month  deadline  is 
exceptional  and  only  relevant  in  cases  in  which  there  are  some  specific  reasons  to 
examine  whether  grounds  of  public  policy,  public  security  or  public  health  exist.  A 
stand-still  situation  caused  by any delay in issuing the residence permit  may cause the 
person  concerned  various  problems.  It  should  be  recalled  that  the  residence  permit 
has  only  declaratory  and  probative  force.31  It  constitutes  solely  proof  of the  right  of 
residence  and  is not  a pre-condition  for  other  rights  to  which  the  person  residing in 
another Member  State is entitled. 

3.3.  Expulsion  and  other  Measures 

3.3. J.  Evaluation  of the  Threat posed 

Overall Evaluation 

The  Commission  wishes  to  emphasise  (he importance  of  comprehensive  evaluation 
of  all  the  relevant  factors  when  determining  whether  a  person  is  a  genuine  and 
sufficiently  serious  threat  affecting  one  of  the  fundamental  interests  of  the  society. 
This may involve taking into consideration  inter alia the following  factors:  the  nature 
and  severity  of  the  crimes  committed,  the  time  which  has  elapsed  since  the  crimes 
were  committed  and  the  overall  situation  of the  person  concerned.32  The manner  in 
which  the  situation  of  the  person  has  evolved  has  particular  importance  in  cases 
where  the  evaluation  of  threat  is  made  long  time  after  the  acts  threatening  public 
order  were  committed,  where  there  is  a  long  lapse  of  time  between  the  original 
decision  and  its implementation  and  when the person  uses his right of  re-application. 

30  Case  C-344/95  Commission  v.  Belgium  and  especially  paras.  9-11  of  the  Opinion  of  Advocate 

General Lenz delivered  on  14 November  1996. 

31  See  Case  C-85/96  Martinez  Sato,  para.  53.  This  concept  is  based  on  Case  48/75  Royer,  para.  50, 
which  confirms  that  the  right  of  nationals  of  one  Member  State  to  enter  the  territory  of  another 
Member  and  reside  there  is conferred  directly  on  any  person  falling  within  the  scope  of  Community 
law. 

32  As  regards  personal  conduct,  see  also  Case  41/74  Van Duyn,  para.  24,  and  Joined  cases  115  and 

116/81 Adoui  and Cornuaille,  para. 8. 

14 

When  grounds  for  an  expulsion  of  a  prisoner  or  a  former  prisoner  who  is  a  national 
of another  Member  State  are  examined,  the good  behaviour  in prison  should  have  the 
same  relevance  as  in the  case  of  nationals  when  for  instance  grounds  for  their  release 
on  parole  is  examined. 

the  present  personal  circumstances  of  the  person.  The  present 

After  the  actual  evaluation  of  threat,  there  must  be  a  further  examination  as  to 
whether  the  measure  is proportional  taking  into  consideration  all the  relevant  factors 
personal 
and 
circumstances  of the  person  may  involve  the  length  of  time  the  person  has  resided  in 
the  country  and  his  social,  cultural  and  family  ties  to  that  country  as  well  as  his 
present  integration  in the  host  society.  The  fact  that  a  person  was  born  and  educated 
in  the  country  of  residence  or  has  resided  there  from  an  early  age  strengthens 
considerably  his ties to  that  country.  Furthermore,  in  such  circumstances  the  person's 
behaviour  reflects,  both  in its good  and  bad  aspects,  and  can  be  evaluated  against  the 
behaviour  of  his  peers  who  are  nationals  of  the  country  of  residence  and  are  shaped 
by  the  same  society.  The  family  ties  of  the  person  may  involve  the  situation  of 
parents  and  siblings,  but  the  existence  of  a  spouse  and  children  who  are  nationals  of 
the  country  of  residence  or  long-term  residents  is of particular  relevance.  The  overall 
evaluation  may  also  include  the  strength  of  ties,  or  the  lack  of  ties,  to  the  country  of 
origin  (relatives,  visits  and  language  skills). 

In  Case  30/77 Bouchereau 
the Court  has limited  the discretionary  powers  of  Member 
States  to justify  public  policy  measures  on  grounds  of  previous  criminal  convictions 
by  stating:  "The  existence  of  a previous  criminal  conviction  can,  therefore,  only  be 
taken  into  account  in  so  far  as  the  circumstances  which  gave  rise  to  that  conviction 
are  evidence  of  personal  conduct  constituting  a present 
requirements 
of public  policy"33.  Recourse  by  a  national  authority  to  the  concept  of  public  policy 
threat 
presupposes  in  any  event  the  existence  of  "a  genuine  and  sufficiently  serious 
to  the  requirements  of  public  policy  affecting  one  of  the  fundamental 
interests  of 
society"34.  This  question  is to  be  considered  by  national  authorities  in  each  individual 
case  in the  light  of Community  law.  35 

threat  to  the 

General  Prevention  in Specific  Circumstances 

In  certain  situations  other justified  concerns  of  the  Member  States  must  be  balanced 
with  the  guarantees  and  safeguards  offered  by  Directive  64/221/EEC.  Such  specific 
situations  are  gatherings  attended  by  large  numbers  of  people,  possibly  from 

33  Para.  28. However,  in  Bouchereau,  para.  29,  the  Court  indicated  that  it  is  possible  that  past  conduct 

alone may constitute  such  a threat  to flic  requirements of public policy  in exceptional  cases. 

34  Para. 35. 

35 

In  the  recent  Case  C-348/96  Donatella  Colfa  the  Court  specified  this  principle  by  stating  that  an 
expulsion  order  could  be  made  against  a  Community  national  if,  besides  her  having  committed  an 
offence  under  dnigs  laws,  her  personal  conduct  created  a  genuine  and  sufficiently  serious  threat 
affecting  one of the fundamental  interests of society. 

15 

different  Member  States,  for  example  large  sports  events,  rock  concerts,  political 
demonstrations  and  other  organised  protests.36 

The  Member  States  have  discretionary  powers  to  apply  public  policy  and  public 
security  measures  to  prevent  violence  and  hooliganism  at  sports  events.  However, 
the  extensive  use  of  these  grounds  may  lead  to  detentions  and  expulsions,  which  are 
not  based  on  any  individual  grounds.  The  measures  should  be  targeted  at  individuals 
-  or  sometimes  on  justified  grounds  to  a  specific  group  of  individuals  -  whose 
personal  behaviour  may  cause  a  threat  to  public  policy  or  public  security.37  The 
general  principle 
in  a  non 
discriminatory  basis  to  own  nationals  and  nationals  of another  Member  State. 

is  that  any  security  measures  should  be  applied 

The  use  of  'fast-track'  procedures  should  be  limited  and  targeted  at  persons  who 
arrive  in  the  country  for  a  short  period  of  time  in  order  to  attend  a  specific  event. 
Such  a  system  and  any  measures  involved  should  be  well  specified  by  the  Member 
States.  The  threat  caused  by  a  person  also  depends  upon  whether  a person  belonging 
to  a  specific  group  is entering  the  country  to  attend  a certain  event  involving  security 
risks  or  whether  he  is  entering  the  country  at  another  time  of  the  year  clearly  for 
other  purposes  (business,  holiday  with  the  family  etc.). 

3.3.2.  Decision  on  a  Measure 

Ordering  a  Measure 

The  Court  of  Justice  has  ruled  that  Directive  64/221 /EEC  is  intended  to  limit  the 
discretionary  power  which  national 
the  authorities 
responsible  for  the  entry  and  expulsion  of foreign  nationals38. 

laws  generally  confer  on 

In  some  countries  the  criminal  court  may  on  the  same  occasion  make  a  decision 
concerning 
the  criminal  conviction  and  an  administrative  decision  concerning 
subsequent  expulsion.  More  often  than  provided  by  law,  such  an  'automatic'  link  is 
created 
to  drug  offences.  National 
legislation  may  quite  correctly  provide  that  the  national  authorities  or  national  court 
may  make  an  expulsion  order  after  taking  into  consideration  all  the  relevant  factors, 

through  practice, 

in  particular 

in  relation 

36  The  eruption  of  violence  at. football  matches  has  led  the  Member  States  to  take  strict  measures  to 
ensure  safely  and  public  order  at  large  scale  events,  which  is  incontestably  within  their  competence. 
The  most  recent  documents  related  to  this  topic  include  inter  alia  Council  Recommendation  of  22 
April  1996 on guidelines  for  preventing  and  restraining  disorder  connected  with  football  matches, OJ 
C  131, 3.5.1996,  p.l;  Resolution  of the  European  Parliament  on  hooliganism  and  the free  movement 
of  football  supporters,  OJ  C  166,  10.6.1996,  p.  40;  Joint  Action  of  26  May  1997  adopted  by  the 
Council  on  the basis  of  Article K.3  of the Treaty  on European  Union  with  regard  to co-operation  on 
law  and  order  and  security,  OJ  L  147,  5.6.1997.  p.  1;  Council  Resolution  of  9  June  1997  on 
preventing  and  restraining  football  hooliganism  through  the exchange  of experience,  exclusion  from 
stadiums  and  media  policy,  OJ  C  193,  24.6.1997,  p.  1.  See  also  the  European  Convention  on 
Spectator  Violence  and  Misbehaviour  at  Sports  Events  and  in  particular  at  Football  Matches  of 
19.8.1985  of the Council  of Europe (ETS No.  120). 

37  The Member  States cooperate  in criminal  matters under Title  VI of the Treaty  on European  Union. 

38 

Case  41/74  Von Duyn,  para.  13. The  Court  further  stated  in  para.  15  that  the  directive  confers  on 
individuals  rights  which  are  enforceable  by  them  in  the  courts  of  a  Member  State  and  which  the 
national  courts  must  protect. 

16 

but  the  provision  is  applied  automatically  in  individual  cases  with  sole  reference  to 
the  criminal  conviction  and  without  any  individual  or  specified  reasoning.  The 
Commission  finds  this  kind  of  practice  incorrect  from 
the  point  of  view  of 
Community  law.  Article  3(1)  of  the  Directive  imposes  on  the  Member  States  an 
obligation  to examine each case individually. 

should 

the  competent  national 

Consequently,  the legislation  of the  Member  States  should  not  include  any  provision 
which  establishes a systematic and automatic link between  a criminal  conviction  and 
subsequent  expulsion.  Neither 
authorities 
automatically  take  any  such  decision.  An  'automatic'  system  means  any  national 
provision  the  wording  of which  leaves  the  national  authorities  or  the  national  court 
individual 
no  margin  for  appreciation  or  for 
circumstances.39 However,  nothing  should  prevent  the Member  States from  linking a 
criminal  conviction  with  an  examination  of  the  circumstances  in  order  to  ascertain 
whether  there  are  reasons  to  take  measures  on  grounds  of  public  order  or  public 
security.  The national  court  may order  a criminal  conviction  and  an expulsion  on the 
same  occasion  or  the  court  or  the  administrative  authorities  may  order  an  expulsion 
at a later stage either while the person is still in prison or upon  release from  prison. 

into  consideration  any 

taking 

In  Case  36/75  Ruiili  the  Court  of Justice  ruled  that  a Member  State  cannot  impose 
on nationals of other Member  States restrictions which  are territorially  limited  except 
in circumstances where such prohibitions may be imposed  on its own nationals40. 

In  certain  circumstances  the  use  of  an  urgency procedure  may  be  problematic,  for 
example if a person, who  has been convicted  of a crime, serves a prison  sentence and 
is  deported  directly  upon  release  from  prison.  Questions  arise  as  to  whether  the 
person  actually  has  effectively  had  any  possibility  to  avail  himself  of  the  safeguards 
and  guarantees  provided  by  the  Directive,  especially  in  the  case  of  long-term 
residents,  as an expulsion  may seriously  affect  their  personal  and  family  situation.  A 
real justification  for  following  an urgency  procedure  should  always exist  and  it is  for 
the  Member  State  to  prove  that  urgency.  A  systematic  reference  to  urgency  is  not 
acceptable. 

Information  about a Measure 

The  persons  concerned  should  always  be  informed  of  the  exact  nature  and  the 
consequences  of  any  measure  taken  in the  scope  of the  Directive.  The  Commission 
would  like to underline the importance  of informing  the complainants  properly  of the 
contents  of  any  documents  issued  to  them,  of  the  procedure  and  of  the  remedies 
available.  This  also  concerns  cases  where  measures  are  initiated  and  executed 
urgently,  sometimes in relation to groups of persons of  a certain  nationality. 

39  Automatism  in this  sense  has somelimes been  introduced  in  cases where  the  individual commits 
severe crimes and receives a certain minimum sentence (see Case C-348/96 Donatella Calfa). 

40  Para.  50.  In  this  case  an  Italian  national  residing  in  France  was  subjected  to  a  prohibition  on 

residence in certain parts of France. 

17 

The  Court  has  held  that  the  person  concerned  should  be  given  a  "precise  and 
comprehensive  statement  of  the  grounds for  the  decision,  to  enable  him  to  take 
effective  steps  to prepare  his  defence",4i  This  provision  applies  to  all  the  relevant 
decisions  and  it  applies  equally  in favour  of the  members  of the  family  of the  Union 
citizens, due also to decisions regarding the issuing of their visas. 

Consequences of a Measure 

The Commission  may examine any measure within  the  scope  of the Directive  as well 
as  its  administrative  consequences.  For  instance  when  a  standing  expulsion  order 
prevents  a  person  from  re-entering  the  country,  a  decision  refusing  re-entry  cannot 
be considered  a mere consequence  of the original  expulsion. 

Data  protection 

There  are  certain  concerns  about  personal  data  collected  in  relation  to  measures 
taken  on  grounds  of  public  policy,  public  security  or  public  health.  Sometimes  such 
data  are  used  for  control  upon  entry  i.e.  to  refuse  an  individual  access  to  a Member 
State.  In  certain  cases  such  data  are transferred  from  one  Member  State  to  another 
and  subsequently  used  for  control upon entry by the second Member  State. 

In this context  there are two aspects, which deserve particular  attention. 

Firstly,  in  some  cases  the  personal  data  collected  concerns  suspicion  of  a threat  to 
public  policy,  public  security  or  public  health.  The  Member  States  are  allowed  to 
collect  and  store  such  data  for  the  purpose  of  protection  of  public  policy,  public 
security  or  public  health  concerning  measures  within  the  scope  of  Directive 
64/221/EEC  provided  the  requirements  laid  down  in  Directive  95/46/EC42  are  met. 
Among  other  things  that  means  that  the  personal  data  should  be  adequate  and 
accurate, necessary  and only collected for  a specified,  explicit  and legitimate purpose. 

However,  it  does  occur  that  persons  are  refused  entry  into  a Member  State  on  the 
basis of such data.  Such personal  data can only be stored  as long as a threat  to  public 
policy,  public  security  or  public  health  exists.  If the  validity  of  a measure  within  the 
scope of Directive  64/221 /EEC  has expired  or a measure has been annulled,  personal 
data concerning  such a measure should  no longer be stored. 

By virtue of Article 6(1) b of Directive 95/46/EC  personal  data  must be collected  for 
specified,  explicit  and  legitimate  purposes  and  not  further  processed  in  any  way 
incompatible  with  that  purpose.  This  applies  also  to  the  personal  data  initially 
collected  for  the  purposes  of  controlling  public  policy,  public  security  or  public 
health. 

41  Case 36/75 Rutili,  para 39. 

42  OJL  281, 23.11.1995,  p. 31. 

This  was  already  incompatible  with  Community 

Secondly,  there  is  a  specific  problem  with  the  Schengen  Information  System  (SIS) 
when  it  maintains  on  its  list  of  persons  not  to  be  admitted  to  the  Schengen  area 
persons  who  are  or  have  become  Union  citizens,  e.g.  through  accession  or 
naturalization. 
law  before 
integration  of  the  Schengen  acquis  into  the  EU  and  the  EC  and  it  is  even  more  so 
now  that  the  integration  and  allocation  to  specific  legal  bases  in  the  EC  Treaty  has 
occurred.  Such  information  should  be removed  from  the  database  on  the basis  of a 
simple  request  from  the  person  concerned.  Moreover,  should  a  Member  State 
become  aware  of the  existence  of  such  data,  it  should  take  the  appropriate  initiative 
for  its removal.43 

The Member  States should not automatically  pass information  about  a measure taken 
in the framework  of  Directive  64/221/EEC  to  other  Member  States  nor  should  such 
information  be entered  in the common list. 

3.4.  Rights  of Specific  Groups 

3.4.1.  Long-term  Residents 

In the light of the citizenship of the Union and the principle of proportionality,  higher 
safeguards  and  guarantees  should  be  offered  to  secure  the  rights  of  long-term 
residents  rather  than  those  of  tourists,  for  example.  Long-term  residence  is  one  of 
the relevant factors  in the overall  evaluation  of the situation  of the person  concerned. 
For  instance  in a  situation  where  a tourist  and  a  long-term  resident  have  committed 
similar type of crimes in the country  of residence,  the  expulsion  of a tourist  might be 
justified  but  not  that  of  a  long-term  resident.  The  grounds  are  always  examined 
individually  in  each  case,  but  as  a  general  rule,  and  in  the  light  of  principle  of 
proportionality,  long-term  residents  should  have  better  safeguards  against  public 
policy  measures.  In  the  case  of long-term  residents,  a much  stricter  burden  of  proof 
is  required  of  the  Member  State  to justify  the  proportionality  of  the  measure.  In  a 
case where  the  expulsion  of  a tourist  coming  into  another  Member  State  to  a  sports 
event  and  committing  acts  of  hooliganism  would  be  justified,  the  expulsion  of  a 
person born in that Member  State and committing  similar acts would  not.44 

43  The  Executive  Committee  of  Schengen  has  adopted  a  Declaration  defining  the  concept  of  "alien" 
(SCH/Com-ex(96) decl 5 corr) within  the meaning of the Convention.  This  Declaration  provides  that 
persons  who  are  covered  by  Community  law  should  not  in  principle  be  placed  on  the joint  list  of 
persons  to be refused  entry.  Persons who are covered  by Community  law  may only be  included  in  the 
SIS  list  if  this  is  compatible  with  EC  law.  A Commission  statement  included  in  the  minutes  of  the 
Executive  Committee  asserts  that  inclusion  of  a  beneficiary  of  Community  law  in  the  SIS  list  will 
only  be  compatible  with  EC  law  if  the  data  concerns  a  person  who  presents  an  actual,  genuine  and 
serious threat  to public policy and  public security  in each  Schengen  State. 

44  The High  Level  Panel  on the  free  movement  of persons,  mentioned  in  footnote  27, has  recommended 
that  the  question  of  expulsion  of  Member  Slates'  citizens  should  be  examined  in  the  light  of  the 
concept  of  European  citizenship,  especially  in  the  case  of  migrants  who  have  become  culturally 
integrated  within  the  host  state,  and  in  the  light  of  Article  8 of  the  European  Convention  of  Human 
Rights, this being particularly  relevant  for  migrants'  children  born and educated  in the Host  State. 

19 

In  this  context  the  European  Convention  for  the  Protection  of  Human  Rights  and 
Fundamental  Freedoms  and  the  interpretation  given  thereto  by  the  European  Court 
of Human Rights should be recalled.  The interpretation  given by the Court to  Article 
8 of the Convention  does not definitively  exclude long-term  residents from  the  threat 
of  expulsion.45  In  certain  circumstances  the  Court  has  accepted  the  expulsion  of 
long-term  residents (see Cases El Boujaidi  and Dalia46).  Of importance  is the overall 
evaluation  of  the  personal  circumstances  (length  of  residence,  family  situation  and 
social  integration  in the host  society,  links to the country  of origin)  and  the  nature of 
the  crimes  committed.  In  the  cases  where  the  expulsion  of  long-term  residents  has 
been accepted, there has not  been any single reason  for  this, but  rather  a combination 
of several  factors  (e.g.  in the case of Mr El Boujaidi  the  seriousness  of his  offences, 
his  subsequent  conduct,  the  development  of  his  family  life  only  after  the  expulsion 
order became final, his existing links to the country  of  origin,  poor  integration  in the 
host  country  and  the  fact  that  he  had  never  applied  for  the  citizenship  in  the  host 
country). 

This  case  law  offers  valuable  guidelines  on  which  factors  are  relevant  to  a  decision 
on the lawful  expulsion  of long-term  residents  and  on  how  to  balance  these  factors. 
It should  not be applied  as such, however, to the expulsion  of Union  citizens who are 
long-term  residents,  since  it  relates  primarily  to  third-state  nationals  and  does  not 
take  into  account  the  basic  right  to  freedom  of  movement  and  establishment  of 
persons  existing  within  the Community.  Therefore  the authorities  of Member  States 
should  grant  citizens  of  the  Union  who  are  long-term  residents  in  a  Member  State 
greater  protection  against  expulsion  on  the  basis  of  the  principles  laid  down  in 
Directive  64/221 /EEC  than  is  granted  to  long  term  residents  under  the  European 
Convention  on Human Rights. 

This specific  concern  about  long-term  residents  applies  also to  minors,  whose rights, 
including the  right  to  the  protection  of family  life,  should  be protected  following  the 
same principles. 

3.4.2.  Members  of (he Family 

Member  States display  at times a tendency  to  neglect  to  ensure  in practice the  rights 
of the members of the family,  especially  of those who  are not themselves nationals of 
any Member  State. Community  law applies to the following  family  members: spouse, 
descendants  who  are under  the  age  of 21  or  are  dependants  and  dependent  relatives 
in  the  ascending  line  of  the  citizen  or  his  or  her  spouse.  This  latter  category 
(essentially parents) does not  apply in the case of students. 

45  Berrehab  v  Netherlands  (3/1987/126/177),  judgement  21.6.88,  Series  A  No  138;  Moustaquim  v 
Belgium 
judgement  18.2.91;  Series  A  no  193;  Beldjoudi  v  France 
(55/1990/246/317),  judgement  26.3.92.  Series  A  no  234;  Boujlifa  v  France  (122/1996/741/440), 
judgement  21.10.97 (Reports  1997-Vi). 

(26/1989/186/246), 

46 

El  Boujaidi  v  France  (123/1996/742/941),  judgment  26.9.97  (Reports  1997-Vi),  Dalia  v  France 
(154/1996/773/974). judgement  19.2.1998 (Reports  1998-i). 

20 

It  is equally important  to  ensure the rights of family  members  as to  ensure  the  rights 
of Union citizens themselves. Any guarantees and safeguards  offered  by the Directive 
apply  mutatis  mutandis  to  the  family  members,  as  has  been  previously  stated 
concerning  the  formalities  (especially  visas),  giving  the  grounds  for  a  measure  and 
the  non-application  of  the  Schengen  Information  System.  The jurisprudence  of  the 
European  Court  of  Human  Rights,  especially  that  concerning  Article  8  of  the 
European  Convention  for  the  Protection  of  Human  Rights  and  Fundamental 
Freedoms ensuring the protection  of private and family life, is here equally valid. 

3.5.  Means of Redress 

3.5.1.  Remedies and  Safeguards 

Article 8 

Article  8 of the  Directive  implies  that  any  person  covered  by  the  Directive  who  is 
subject  to a decision  concerning  entry or expulsion,  or to  a refusal  to issue or  renew 
a  residence  permit,  has  the. right  to  the  same  legal  remedies  as  nationals  of  the 
Member State concerned.  This does not impose on the Member  States any obligation 
to  offer  legal remedies  in cases where  legal  remedies  are  not  available  to  their  own 
nationals, but it guarantees equality of treatment.47 

Legal  remedies  may  include  suspension  of  the  measure,  although  according  to  the 
Court  of  Justice  Article  8  does  not  contain  any  specific  obligation  to  this  effect48. 
However  a  decision  ordering  expulsion  may  not  be  carried  out  -  save  in  cases  of 
urgency  -  before  the  person  is  able  to  complete  the  formalities  necessary  to  avail 
himself of the  remedy.49  This does  not  mean  that  a  person  is  necessarily  entitled  to 
remain  in  the  territory  of  the  State  concerned  throughout  the  duration  of  the 
proceedings  initiated  by  him.  In  the  light  of  the  principle  of  proportionality,  a 
measure  with  suspensory  effect  should  be  more  readily  available  to  those  already 
resident  in the country rather than to persons who  have recently  entered the  country. 
In  the  case  of  residents  immediate  implementation  of  an  expulsion  order  should  be 
exceptional and there should be particularly strong grounds for that  decision. 

47  See Joined  Cases C-65/95  and  C-l 11/95 Shingara  and Radiom. para.  20.  See  also  Cases  297/88 

Dzodzi. para. 60. and  98/79 Pecastaing, especially paras.  10 and 11. 

48  Case 98/79 Pecastaing, paras.  12 and 13, and Case C-l75/94 Gallagher. 

4y  Case 48/75 Rover,  para. 60. 

21 

Article  9 

Article  9  of  the  Directive  seeks  to  complement  the  protection  offered  to  the  person 
concerned  in  cases  where  Article  8  does  not  apply.50  Article  9  offers  the  minimum 
procedural  guarantees  to  a  person  who  has  been  issued  an  expulsion  order  or  a 
decision  refusing  renewal  of  a  residence  permit.  Article  9(1)  concerns  persons 
already  holding  a  residence  permit  and  9(2)  persons  who  have  not  yet  been  issued 
with  a  first  residence  permit.51 

The  Court  has  specified  the  applicability  of both  paragraphs  of  Article  9.  They  apply 
if  1)  there  is  no  right  of  appeal  to  a  court  of  law;  2)  such  appeal  may  be  only  in 
respect  of  the  legal  validity  of  the  decision;  3)  the  appeal  cannot  have  suspensory 
effect  and  provides  for  the  intervention  of  a  competent  authority  other  than  the 
authority  empowered  to  take  the  decision.52 

Article  9(1)  prohibits  the  national  administrative  authority  from  issuing  an  expulsion 
order  to  a  Community  national  lawfully  resident  in  the  territory  before  a  competent 
authority  has  given  its  opinion53.  Article  9(2)  provides  for  the  person  the  right  to 
request  an  opinion  in the  sense  of  Article  9(1)  and  to  submit  a  defence  in  person  (i.e. 
to  remain  until  the  final  decision  has been  taken)  save  in cases  of national  security. 

The  Court  stated  that  the  opinion  of  the  competent  authority  must  be  sufficiently 
proximate  in  time  to  the  decision  ordering  expulsion  to  ensure  that  there  are  no  new 
factors  to  be  taken  into  consideration54.  The  Court  has  underlined  the  importance  of 
assessing  the  social  danger  resulting  from  a foreigner's  presence  at  the  time  when  the 
expulsion  order  is  given,  since  the  facts  to  be  taken  into  account,  particularly  those 
concerning  the  person's  conduct,  are  likely  to  change  in the  course  of time.  55 

50  The  Court  has held  the provisions  of  Article  9 to be complementary  to those  of  Article  8.  A Member 
State  cannot  apply  the  provisions  of  Article  9 in  such  a  way  that  the  practical  effect  is  to  restrict  or 
render  ineffective  the  legal  remedies  made  available  under  Article  8 (Case  98/79  Pecastaing,  paras. 
15 and  16). 

51  The  Court  of  Justice  has  considered  the  provisions  of  Article  9  to  be  sufficiently  well  defined  and 
specific  to  enable  them  to  be  relied  upon  by  any  person  concerned  and  capable,  as  such,  of  being 
applied  by any court (Case  131/79 Santillo,  para.  13). 

52 

53 

In Joined  Cases Shingara  and Radiom  the Court  stated  that  the three  cases  mentioned  in  Article  9(1) 
apply equally as regards  Article 9(2). 

The  Court  has  also  noted  that  the  Directive  does  not  define  the  expression  'a  competent  authority' 
(Case  131/79  Santillo,  para.  15).  See  also  Joined  cases  115  and  116/81  Adoui  and  Cornuaille, 
especially para.  18. 

54  Case  131/79 Santillo,  paras.  18 and  19. 

55  Case 297/88 Dzodzi,  para.  69.  According  to  Case  98/79  Pecastaing,  para.  18,  it follows  from  Article 
9  that  as  soon  as  the opinion  in  question  has been  obtained  and  notified  to the  person  concerned  an 
expulsion  order  may be carried  out  immediately,  subject  always  to the  right  of that  person  to  stay  on 
the  territory  for  the  lime  necessary  to avail  himself  of  the  remedies  accorded  to him  under  Article  8. 
22 

3.5.2.  Right of re-application 

The  Court  has  confirmed  the  right  to re-apply  after  a reasonable  time  has  elapsed 
since the last decision  prohibiting a person from  entering the country.56 

The Commission has encountered  this problem in a number of cases where a Member 
State refuses  re-entry  or  the  reversal  of the  expulsion  order  by citing  as grounds  for 
refusal  the existence of an earlier expulsion  order, which had been issued  a number of 
years previously.  For  example  the  cases  of third-country  national  family  members  of 
Union  citizens,  who  at  the  time  of  the  previous  decision  were  not  beneficiaries  of 
Community  law,  deserve  re-examination  solely  on  the  basis  of the  change  of  status, 
which is indeed  a new factor  to be taken into consideration  in the  re-evaluation. 

Any  set  time-limit  for  the  validity  of  a  measure,  e.g.  ten  years,  may  be  problematic 
from  the  point  of  view  of  the  person's  right  to  re-apply.  Such  a  time-limit  cannot 
prevent  the  person  from  re-applying  before  its  expiry  if  the  conditions  for  re-
evaluation  exist and his situation  has already changed. 

The Court  has also pointed  out  that,  since decisions prohibiting  entry  into  a Member 
State  of  a  national  of  another  Member  State  constitute  derogations  from  the 
fundamental  principle  of  freedom  of  movement,  such  a  decision  cannot  be  of 
unlimited  duration.  57 

The Commission  considers that  the same rights are by analogy  conferred  to  all other 
categories of beneficiaries  of Community law whatever their status. 

In Joined cases  115 and  116/81 Acloui and  Cormtaille,  para.  18, the  Court  recalls that  the opinion  of 
the competent  authority  must be duly  notified  to the person  concerned. 

56 

Joined  Cases  C-65/95  and  C-l 11/95  Shingara  and  Radioni.  The  Court  has  emphasised  that  any 
national  of a  member  State  who  wishes  to  seek  employment  in  another  Member  State  may  re-apply 
for  a  residence  permit  after  the  expulsion.  This  does  not,  however,  confer  on  the  person  concerned 
any  right  to  enter  the  territory  of  the  Host  State  during  the  examination  of  his  further  application 
(Joined  cases  115 and  116/81 Adoui  and Cornuaille,  para.  12, in  which  the Court  stated  that  such  an 
application,  when  submitted  after  a  reasonable  period  has elapsed,  must be examined.  The  competent 
authority  must take  into account  the arguments  purporting  to establish  that  there has been  a  material 
change  in the  circumstances) 

57 

Joined  cases C-65/95  and  C-l  11/95 Shingara and Radioni.  para. 40. 

23 

CONCLUSIONS 

•  The  applicability  of  national  provisions  on  the  grounds  of  public  policy,  public 
security  or  public  health  is  enshrined  in  the  Treaty  establishing  the  European 
Community and guarantees to the Member  States some discretionary powers. 

The  application  of  the  national  definition  and  criteria  to  any  measure  taken  on 
grounds  of  public  policy,  public  security  or  public  health  are  nevertheless  subject 
to  the  basic  principles  and  limitations  provided  by  Community  law.  In  particular 
the  personal,  fundamental  right  to  free  movement  of  the  citizens  of  the  Union 
(Article  18  of  the  Treaty)  combined  with  the  principle  of  proportionality  should 
guide  the  national  authorities  when  they  take  any  decision  concerning  such  a 
measure. 

Any  measure  taken  on  grounds  of  public  policy,  public  security  or  public  health 
should  be strongly  motivated  by a genuine and  sufficiently  serious threat  affecting 
one  of  the  fundamental  interests  of  society  and  be  in  line  with  the  European 
Convention  for the Protection  of Human  Rights and Fundamental  Freedoms. 

Any  safeguards,  guarantees  and  remedies  conferred  by  Directive  64/221/EEC  as 
interpreted  by  the  Court  of Justice  must  be  strictly  respected,  including  the  right 
to  re-examination  and  the  right  to  be  informed  of  the  grounds  of  any  measures 
taken together  with their consequences. 

Emphasis is put  on the overall  evaluation  of personal  circumstances  (family,  social 
and  cultural  circumstances)  individually,  on a case-by-case  basis, avoiding the use 
of  grounds  of general  prevention;  previous  criminal  convictions  are  only  part  of 
this overall  evaluation  and  do  not,  alone, justify  any measure  taken  on grounds  of 
public policy or public security. 

to  securing  the  rights,  including  the 
Special  attention  should  be  attached 
protection  of family  life,  of  non-national  long-term  residents  and  minors  who  are 
Union  citizens  and  the  most  vulnerable  group  of  beneficiaries  -  third-country 
national family  members of Union citizens, irrespective of their country of origin. 

that  citizens  enjoy  under 

It  is  the  Commission's  intention  to  widely  publicise  the  contents  of  this 
Communication,  making use of the new instruments  put  in place for  the  Dialogue 
with  Citizens.  Raising  awareness  with  citizens  and  Member  States  alike  of  the 
to  better 
rights 
implementation  of these rights  and  is ultimately  expected  to  reduce the number of 
infringements.  Further  actions  to  effectively  ensure  these  rights  might  be 
necessary,  including  the  continuation  of  the  Commission's  interventions  with 
Member  States based  on the principles outlined  in the present  Communication. 

the  Treaties  will  contribute 

24 

TABLE OF CASES 

ANNEX 

Case 4/73  -  J.  Nold, Kohlen-  unci BaustoffgroBhandlung  v Commission  of the  European 
Communities, ECR  [1974] T-491 

Case 41/74 -  Yvonne van Duyn v Home Office,  ECR  [1974] 11-1337 

Case  67/74  -  Carmelo  Angelo  Bonsignore  v  Oberstadtdirektor  der  Stadt  Koln,  ECR 
[1975] 1-297 

Case 36/75 -  Roland  Rutili v Ministre de l'interieur, ECR  [1975] 11-1219 

Case 48/75 -  Jean Noel Royer, ECR  [1976]  1-497 

Case  118/75 -  Lynne Watson  and Alessandro  Belmann, ECR  [1976] II-1185 

Case 30/77 -  Regina v Pierre Bouchereau, ECR  [1977] II-1999 

Case 98/79 -  Josette Pecastaing v Belgian  State, ECR  [1980] 1-691 

Case  131/79  -  Regina  v  Secretary  of  State  for  Home  Affairs,  ex  parte  Mario  Santillo, 
ECR  [1980] 11-1585 

Case  157/79 -  Regina  v Stanislaus Pieck, ECR  [ 1980] 11-2171 

Joined  cases  115  and  116/81  -  Rezguia  Adoui  v  Belgian  State  and  City  of  Liege; 
Dominique Cornuaille v Belgian  State, ECR  [1982] 11-1665 

Joined  cases  286/82  and  26/83  Graziana  Luisi  and  Giuseppe  Carbone  v.  Ministero  del 
Tesoro,ECR[I984]  1-377 

Case  352/85  Bond  van  Adverteerders  and  others  v.  the  Netherlands  State,  ECR  [1988] 
2085 

Case  321/87  Commission  of  the  European  Communities  v.  Kingdom  of  Belgium,  ECR 
[1989] 1-997 

Joined  cases C-297/88  and C-197/89 Massam Dzodzi  v Belgian  State,ECR  [1990] 1-3763 

Case C-68/89  Commission  of the  European  Communities  v.  Kingdom  of the Netherlands, 
ECR  [1991]  1-2637 

' 

Case  C-292/89  The  Queen  v  Immigration  Appeal  Tribunal,  ex  parte  Gustaff  Desiderius 
Antonissen, ECR  [1991]  1-0745 

Case C-363/89 Danielle Roux v. Belgian  State, ECR  [1991]  1-0273 

Case C-175/94  The Queen  v Secretary  of State for  the Home  Department;  ex parte John 
Gallagher, ECR  [1995] 1-4253 

Joined  Cases  C-65/95  and  C-l 11/95  -  The  Queen  v  Secretary  of  State  for  the  Home 
Department; ex parte Mann  Singh Shingara; The Queen v Secretary of State for  the Home 
Department,  ex parte Abbas Radiom, ECR  [1997]  1-3343 

Case C-344/95  Commission  of the  European  Communities  v Kingdom  of Belgium,  ECR 
[1997]  1-1035 

Case C-85/96  Maria Martinez  Sala v Freistaat Bayern,  ECR  [1998]  1-2691 

Case C-l71/96 -  Rui  Alberto  Pereira Roque v His Excellency the Lieutenant  Governor  of 
Jersey, ECR  [1998] 1-4607 

Case  C-348/96  -  Criminal  proceedings  against  Donatella  Calfa,  ECR  [1999],  not  yet 
published 

25 

ISSN  0254-1475 

COM( 1999) 372  final 

DOCUMENTS 

EN 

06  10  07  05 

Catalogue number: CB-CO-99-377-EN-C 

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