Judgment of the Court of 2 July 2024 in Case E-6/23 criminal proceedings against MH (Directive 2004/38/EC – Derived rights for third-country nationals – Right of entry – National legislation restricting rights of entry and residence because of an exclusion order prior to becoming a family member of an EEA national – Article 32 of Directive 2004/38/EC – Article 36 of Directive 2004/38/EC)
Date: 2024-07-02
Institutions: EFTA Court
Subjects: European Economic Area, Norway, family, foreign national, free movement of persons, freedom of movement, married person, public order, removal, residence permit








C_202406674EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/6674


31.10.2024







            JUDGMENT OF THE COURT
         
of 2 July 2024
         
in Case E-6/23
criminal proceedings against MH


(Directive 2004/38/EC – Derived rights for third-country nationals – Right of entry – National legislation restricting rights of entry and residence because of an exclusion order prior to becoming a family member of an EEA national – Article 32 of Directive 2004/38/EC – Article 36 of Directive 2004/38/EC)


(C/2024/6674)

In Case E-6/23, criminal proceedings against MH – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Supreme Court of Norway (Norges Høyesterett), concerning the interpretation of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, the Court, composed of Páll Hreinsson, President (Judge-Rapporteur), Bernd Hammermann and Michael Reiertsen, Judges, gave judgment on 2 July 2024, the operative part of which is as follows:






1.


The rules laid down by Chapter VI of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as not permitting an EEA State to refuse entry and residence in its territory to a third-country national spouse of an EEA national on the sole ground that the third-country national spouse has been the subject, in the past, of an exclusion order on the basis of national measures imposed in connection with past infringements at a time before he or she acquired derived free movement rights under the Directive, without first verifying that the presence of that person in the territory of the EEA State constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, within the meaning of Article 27(2) of the Directive.










2.


Article 32 of Directive 2004/38/EC has no application, directly or by analogy, where a refusal of the right of entry and residence is not founded on the existence of a genuine, present and sufficiently serious threat to public policy or public security.










3.


Compliance with Article 27 of Directive 2004/38/EC is required, in particular, where the EEA State wishes to penalise the national of a third country for entering and/or residing in its territory in breach of the national rules on immigration before becoming a family member of an EEA national. In the absence of a new assessment in compliance with the Directive, his or her presence on the territory of the EEA State is lawful as a matter of EEA law. Accordingly, such a person cannot be made subject to sanctions under national law for having breached the original exclusion decision by exercising the derived rights conferred on him or her by the Directive.






ELI: http://data.europa.eu/eli/C/2024/6674/oj
ISSN 1977-091X (electronic edition)