Judgment of the Court 25 July 2002 in Case C-459/99 (Reference for a preliminary ruling from the Conseil d'État): Mouvement contre le racisme, l'antisémitisme et la xénophobie ASBL (MRAX) v État belge (Third country nationals who are the spouse of a Member State national — Requirement for a visa — Right of entry for spouses not in possession of identity documents or a visa — Right of residence for spouses who have entered unlawfully — Right of residence for spouses who have entered lawfully but whose visa has expired when they apply for a residence permit — Directives 64/221/EEC, 68/360/EEC and 73/148/EEC and Regulation (EC) No 2317/95)
Date: 2002-09-28
Institutions: Court of Justice
Subjects: EU national, EU visa policy, admission of aliens, border control, free movement of persons, interpretation of the law

28.9.2002

EN

Official Journal of the European Communities

C 233/3

JUDGMENT OF THE COURT

25 July 2002

in Case C-459/99 (Reference for a preliminary ruling
from the Conseil d’État): Mouvement contre le racisme,
l’antisémitisme et la xénophobie ASBL (MRAX) v État
belge (1)

(Third country nationals who are the spouse of a Member
State national — Requirement for a visa — Right of entry
for spouses not in possession of identity documents or a
visa — Right of residence for spouses who have entered
unlawfully — Right of residence for spouses who have
entered lawfully but whose visa has expired when they apply
for a residence permit — Directives 64/221/EEC, 68/360/
EEC and 73/148/EEC and Regulation (EC) No 2317/95)

on movement and residence within the Community for workers
of Member States and their families, Article 3 of 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 and Council Regulation (EC)
No 2317/95 of 25 September 1995 determining the third
countries whose nationals must be in possession of visas when
crossing the external borders of the Member States, read in the
light of the principle of proportionality, a Member State may
not send back at the border a third country national who is
married to a national of a Member State and attempts to enter
its territory without being in possession of a valid identity card
or passport or, if necessary, a visa, where he is able to prove his
identity and the conjugal ties and there is no evidence to
establish that he represents a risk to the requirements of public
policy, public security or public health within the meaning of
Article 10 of Directive 68/360 and Article 8 of Directive 73/
148.

(2002/C 233/04)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-459/99: Reference to the Court under Article 234
EC by the Conseil d’État (Belgium) for a preliminary ruling in
the proceedings pending before that court between Mouve-
ment contre le racisme, l’antisémitisme et la xénophobie ASBL
(MRAX) and État belge, on the interpretation of Articles 1(2),
3(3) and 9(2) of Council Directive 64/221/EEC of 25 February
1964 on the coordination of special measures concerning the
foreign nationals which are
movement and residence of
justified on grounds of public policy, public security or public
health (OJ, English Special Edition 1963-1964, p. 117),
Articles 3 and 4 of Council Directive 68/360/EEC of 15 Octo-
ber 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),
Articles 3 and 6 of 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) and Council Regulation (EC)
No 2317/95 of 25 September 1995 determining the third
countries whose nationals must be in possession of visas when
crossing the external borders of the Member States (OJ 1995
L 234, p. 1),
the Court, composed of: G.C. Rodríguez
Iglesias, President, N. Colneric and S. von Bahr (Presidents of
Chambers), C. Gulmann, D.A.O. Edward,
J.-P. Puissochet,
M. Wathelet, R. Schintgen and J.N. Cunha Rodrigues (Rappor-
teur), Judges; C. Stix-Hackl, Advocate General; H.A. Rühl,
Principal Administrator, for the Registrar, has given a judgment
on 25 July 2002, in which it has ruled:

1. On a proper construction of Article 3 of Council Directive 68/
360/EEC of 15 October 1968 on the abolition of restrictions

2. On a proper construction of Article 4 of Directive 68/360 and
Article 6 of Directive 73/148, a Member State is not permitted
to refuse issue of a residence permit and to issue an expulsion
order against a third country national who is able to furnish
proof of his identity and of his marriage to a national of a
Member State on the sole ground that he has entered the
territory of the Member State concerned unlawfully.

3. On a proper construction of Articles 3 and 4(3) of Directive
68/360, Articles 3 and 6 of Directive 73/148 and Article 3(3)
of 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, a Member State
may neither refuse to issue a residence permit to a third country
national who is married to a national of a Member State and
entered the territory of that Member State lawfully, nor issue
an order expelling him from the territory, on the sole ground
that his visa expired before he applied for a residence permit.

4. On a proper construction of Articles 1(2) and 9(2) of Directive
64/221, a foreign national married to a national of a Member
State has the right to refer to the competent authority envisaged
in Article 9(1) of that directive a decision refusing to issue a
first residence permit or ordering his expulsion before the issue
of the permit, including where he is not in possession of an
identity document or where, requiring a visa, he has entered the
territory of a Member State without one or has remained there
after its expiry.

(1) OJ C 47 of 19.2.2000.