Judgment of the Court (Fifth Chamber) of 29 April 2004 in Joined Cases C-482/01 and C-493/01 (Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Georgios Orfanopoulos and Others v Land Baden-Württemberg and between Raffaele Oliveri and Land Baden-Württemberg (Freedom of movement of persons — Public policy — Directive 64/221/EEC — Decision to expel on ground of criminal offences — Taking into account of the length of residence and personal circumstances — Fundamental rights — Protection of family life — Taking into account circumstances occurring between the final decision of the administrative authorities and the review, by an administrative court, of the lawfulness of that decision — The person concerned's right to submit considerations of expediency before an authority called upon to give an opinion)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: EU national, criminal law, free movement of persons, interpretation of the law, removal, residence permit

30.4.2004

EN

Official Journal of the European Union

C 118/17

JUDGMENT OF THE COURT

90/364/EEC of 28 June 1990 on the right of residence, or
Article 49 EC, which applies particularly to recipients of services.

(Fifth Chamber)

of 29 April 2004

in Joined Cases C-482/01 and C-493/01 (Reference for a
preliminary ruling from the Verwaltungsgericht Stuttgart):
Georgios Orfanopoulos and Others v Land Baden-Würt-
temberg and between Raffaele Oliveri and Land Baden-
Württemberg (1)

(Freedom of movement of persons — Public policy — Direc-
tive 64/221/EEC — Decision to expel on ground of criminal
offences — Taking into account of the length of residence
and personal circumstances — Fundamental rights — Protec-
tion of family life — Taking into account circumstances
occurring between the final decision of the administrative
authorities and the review, by an administrative court, of the
lawfulness of that decision — The person concerned's right
to submit considerations of expediency before an authority
called upon to give an opinion)

(2004/C 118/30)

(Language of the case: German)

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

In Joined Cases C-482/01 and C-493/01: REFERENCE to the
Court under Article 234 EC from the Verwaltungsgericht Stutt-
gart (Germany), for a preliminary ruling in the proceedings
pending before that court between Georgios Orfanopoulos,
Natascha Orfanopoulos, Melina Orfanopoulos, Sofia Orfano-
poulos and Land Baden-Württemberg, and between Raffaele
Oliveri and Land Baden-Württemberg - on the interpretation of
Articles 39(3) EC and 9(1) of Council Directive 64/221/EEC of
25 February 1964 on the co-ordination 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, 1963-1964, p.
117) (C-482/01), and of Article 39 EC and Article 3 of that
directive (C-493/01) - the Court (Fifth Chamber), composed of:
A. Rosas (Rapporteur), acting for the President of the Fifth
Chamber, A. La Pergola and S. von Bahr, Judges; C. Stix-Hackl,
Advocate General; M.-F. Contet, Principal Administrator, for
in
the Registrar, has given a judgment on 29 April 2004,
which it has ruled:

1) It is for the national court to determine the provisions of Com-
munity law, other than Article 18(1) EC, on which a national of
a Member State such as Mr Oliveri may, if appropriate, rely in
the circumstances of the proceedings which gave rise to Case C-
493/01. In that regard, it must, in particular, establish whether
the person concerned comes within the scope of Article 39 EC,
either as a worker, or as a person otherwise entitled, under the
provisions of the secondary legislation adopted to give effect to
that article, to freedom of movement, or whether he may rely on
other provisions of Community law, such as Council Directive

2) Article 3 of Council Directive 64/221/EEC of 25 February 1964
on the co-ordination of special measures concerning the movement
and residence of foreign nationals which are justified on grounds
of public policy, public security or public health, precludes national
legislation which requires national authorities to expel nationals of
other Member States who have been finally sentenced to a term of
youth custody of at least two years or to a custodial sentence for
an intentional offence against the Law on narcotics, where the
sentence has not been suspended.

3) Article 3 of Directive 64/221 precludes a national practice
whereby the national courts may not take into consideration, in
reviewing the lawfulness of the expulsion of a national of another
Member State, factual matters which occurred after the final deci-
sion of the competent authorities which may point to the cessation
threat which the
or the substantial diminution of
conduct of the person concerned constituted to the requirements of
public policy. That is so, above all, if a lengthy period has elapsed
between the date of the expulsion order and that of the review of
that decision by the competent court.

the present

4) Article 39 EC and Article 3 of Directive 64/221 preclude legisla-
tion and national practices whereby a national of another Member
State who has been sentenced to a certain penalty for specific
offences is ordered to be expelled, in spite of family considerations
being taken into account, based on the presumption that that
person must be expelled, without proper account being taken of
his personal conduct or of the danger which he represents for
public policy.

5) Article 39 EC and Directive 64/221 do not preclude the expul-
sion of a national of another Member State who has been
sentenced to a certain penalty for specific offences and who, on the
one hand, constitutes a present threat to the requirements of public
policy and, on the other hand, has resided for many years in the
host Member State and can plead family circumstances against
that expulsion, provided that the assessment made on a case by
case basis by the national authorities of where the fair balance lies
between the legitimate interests at issue is made in compliance
with the general principles of Community law and, in particular,
by taking proper account of respect for fundamental rights, such
as the protection of family life.

6) Article 9(1) of Directive 64/221 precludes a provision of a
Member State which provides neither a complaints procedure nor
an appeal, comprising also an examination of expediency, against
a decision to expel a national of another Member State taken by
an administrative authority, where no authority independent of
that administration has been put in place. It is for the national
court to establish whether courts such as the Verwaltungsgerichte
are able to examine the expediency of expulsion orders.

(1) OJ C 56 of 2.3.2002