CELEX: 62001CC0482
Language: en
Date: 2003-09-11 00:00:00
Title: Opinion of Advocate General Stix-Hackl delivered on 11 September 2003. # Georgios Orfanopoulos and Others (C-482/01) and Raffaele Oliveri (C-493/01) v Land Baden-Württemberg. # References for a preliminary ruling: Verwaltungsgericht Stuttgart - Germany. # 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 make submissions as to the expediency of the measure before an authority called upon to give an opinion. # Joined cases C-482/01 and C-493/01.

OPINION OF ADVOCATE GENERALSTIX-HACKLdelivered on 11 September 2003(1)
         Joined Cases C-482/01 and C-493/01Georgios Orfanopoulos and OthersvLand Baden-Württemberg (C-482/01)and(Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany))Raffaele OliverivLand Baden-Württemberg (C-493/01)(Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany))
            (Interpretation of Article 39 EC  –  Restriction on the freedom of movement for workers on grounds of public policy  –  Expulsion on account of criminal offences in connection with drugs and danger of recidivism  –  Duration of worker's residence  –  Interests of his wife and children  –  Interpretation of Articles 3 and 9(1) of Directive 64/221/EEC  –  No re-examination of expediency)
            
      
         Table of contents
      
      
               I –  Introduction
                  
            
         
               II –  Legal background
                  
            
         
               A – Community law
                  
            
         
               B – National law
                  
            
         
               III –  Facts and main proceedings
                  
            
         
               A – In Case C-482/01
                  
            
         
               B – In Case C-493/01
                  
            
         
               IV –  Questions submitted for a preliminary ruling
                  
            
         
               A – In Case C-482/01
                  
            
         
               B – In Case C-493/01
                  
            
         
               V –  First question submitted for a preliminary ruling in Case C-482/01
                  
            
         
               A – Main arguments of the parties
                  
            
         
               B – Appraisal
                  
            
         
               1. The limits imposed by Directive 64/221
                  
            
         
               2. Respect for private and family life under Article 8 of the Convention on Human Rights
                  
            
         
               VI –  Second question submitted for a preliminary ruling in Case C-482/01
                  
            
         
               A – Main arguments of the parties
                  
            
         
               B – Appraisal
                  
            
         
               1. The need for the opinion of an independent competent authority
                  
            
         
               2. Decision of the Verwaltungsgericht as a decision of an independent competent authority?
                  
            
         
               VII –  First question submitted for a preliminary ruling in Case C-493/01
                  
            
         
               A – Main arguments of the parties
                  
            
         
               B – Appraisal
                  
            
         
               1. Admissibility of the first question submitted for a preliminary ruling
                  
            
         
               2. Substance of the first question submitted for a preliminary ruling
                  
            
         
               VIII –  Second question submitted for a preliminary ruling in Case C-493/01
                  
            
         
               A – Main arguments of the parties
                  
            
         
               B – Assessment
                  
            
         
               IX –  Conclusion
                  
            
         
               A – In Case C-482/01
                  
            
         
               B – In Case C-493/01
                  
            
         I –  Introduction
        1.        The two references for a preliminary ruling which are the subject of this Opinion concern the power of the Member States to
      restrict the free movement of workers on grounds of public policy and in particular to expel Community nationals to another
      Member State for particular criminal offences. They relate to the interpretation of Article 39 EC and 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 
         			(2)
         		 (hereinafter: ‘Directive 64/221’).
      
      
      II –  Legal background
       A – Community law
        2.        First, the national court requests an interpretation of Article 39 EC, that is to say the central provision of primary law
      concerning the freedom of movement for workers. Its question relates in particular to the reservation regarding restrictions
      justified on grounds of public policy, public security or public health laid down in Article 39(3). Secondly, the national
      court requests an interpretation of Directive 64/221.
      
      
        3.        Article 3(1) and (2) of Directive 64/221 provides:
      ‘1.     Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the
      individual concerned.
       2.       Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.’
      
      
        4.        Article 9 of Directive 64/221 provides:
      ‘1. Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity
      of the decision, or where the appeal cannot have suspensory effect, a decision refusing renewal of a residence permit or ordering
      the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save
      in cases of urgency, until an opinion has been obtained from a competent authority of the host country before which the person
      concerned enjoys such rights of defence and of assistance or representation as the domestic law of that country provides for.
       This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering
      expulsion.
       2.       Any decision refusing the issue of a first residence permit or ordering expulsion of the person concerned before the issue
      of the permit shall, where that person so requests, be referred for consideration to the authority whose prior opinion is
      required under paragraph 1. The person concerned shall then be entitled to submit his defence in person, except where this
      would be contrary to the interests of national security.’
      
      
       B –  National law
        5.        The basic German provisions concerning entry and residence are the Gesetz zur Neuregelung des Ausländerrechts (Law reforming
      legislation on aliens; hereinafter: ‘the Ausländergesetz’) 
         			(3)
         		 and the Gesetz über Einreise und Aufenthalt von Staatsangehörigen der Mitgliedstaaten der Europäischen Wirtschaftsgemeinschaft
      (Law on the entry and residence of nationals of Member States of the European Economic Community; hereinafter: ‘the Aufenthaltsgesetz/EWG’). 
         			(4)
         		 Under Paragraph 2(2) of the Ausländergesetz, that law applies to aliens who are entitled to freedom of movement by virtue
      of Community law, save where otherwise provided by Community law and the Aufenthaltsgesetz/EWG. Accordingly, Paragraph 15
      of the Aufenthaltsgesetz/EWG provides that the Ausländergesetz and the regulations adopted on the basis thereof apply, save
      where otherwise provided by the Aufenthaltsgesetz/EWG.
      
      
        6.        Paragraph 12 of the Aufenthaltsgesetz/EWG, which governs restrictions on freedom of movement, provides (in so far as is relevant):
      ‘(1)   In so far as this Law grants freedom of movement and does not already provide for restrictive measures in the above provisions,
      refusal of leave to enter and refusal to issue or extend an EC residence permit, restrictive measures referred to in Paragraph
      3(5), the first sentence of Paragraph 12(1) and Paragraph 14 of the Ausländergesetz, and expulsion or deportation in relation
      to the persons referred to in Paragraph 1 shall be permitted only on grounds of public policy, public security or public health
      (Article 48(3) and Article 56(1) of the Treaty establishing the European Economic Community). Aliens who hold an unlimited
      EC residence permit may be expelled only on serious grounds of public security or public policy.
      ...
      (3)     The decisions or measures referred to in paragraph 1 may be adopted only where an alien gives cause for doing so on account
      of his personal conduct. This shall not apply to decisions or measures adopted to protect public health.’
      
      
        7.        The Ausländergesetz provides for three kinds of expulsion: possible expulsion (or discretionary expulsion), expulsion as a
      rule, and compulsory expulsion.
      
      
        8.        Pursuant to Paragraph 45 of the Ausländergesetz expulsion is possible when there is prejudice to the requirements of public
      security and public policy or other substantial interests of the Federal Republic of Germany.
      
      
        9.        Paragraph 47(2) of the Ausländergesetz lays down so-called ‘expulsion as a rule’, that is to say contains an exhaustive list
      of grounds on which expulsion is ordered ‘as a rule’.
      
      
        10.      Paragraph 47(1) of the Ausländergesetz provides for ‘compulsory expulsion’, that is to say it provides for mandatory expulsion
      in particular cases. This provision states:
      ‘(1)   An alien shall be expelled if he
       1.       has been finally sentenced to a term of imprisonment or youth custody of at least three years for one or more intentional
      criminal offences or has been finally sentenced to several terms of imprisonment or youth custody of a total of at least three
      years for intentional criminal offences committed within a period of five years, or has been placed in preventative detention
      by the most recent final sentence, or
       2.       has been finally sentenced to a term of youth custody of at least two years, or to a term of imprisonment, and the sentence
      has not been suspended, for an intentional criminal offence under the Betäubungsmittelgesetz (Law on narcotics), for a breach
      of the public peace under the conditions set out in the second sentence of Paragraph 125a of the Strafgesetzbuch (Criminal
      Code) or for a breach of the public peace under Paragraph 125 of the Strafgesetzbuch committed in connection with a prohibited
      public assembly or a prohibited procession.’
      
      
        11.      Paragraph 48 of the Ausländergesetz provides for special protection against expulsion for particular aliens. They include
      inter alia aliens who possess a residence entitlement (Aufenthaltsberechtigung) (first subparagraph) and aliens who live in a family relationship with a German family member (fourth subparagraph). Such
      aliens may be expelled ‘only on serious grounds of public security or public policy. Serious grounds of public security and
      public policy exist as a rule in the cases set out in Paragraph 47(1).’ Under Article 47(3), compulsory expulsion becomes
      expulsion as a rule and expulsion as a rule becomes possible expulsion.
      
      
        12.      Under No 48.1.0 of the Allgemeine Verwaltungsvorschrift zum Ausländergesetz (General administrative provision relating to
      the Law on aliens), 
         			(5)
         		 EU nationals who hold an unlimited residence permit (Aufenthaltsberechtigung) are to be treated in the same way as the persons referred to in Paragraph 48(1). The requirements set out in Paragraph 12
      of the Aufenthaltsgesetz/EWG apply to those entitled to freedom of movement.
      
      
        13.      In each individual case it is necessary to apply a proportionality test in which account must also be taken of the protection
      of marriage and the family laid down inter alia in the European Convention on Human Rights and Fundamental Freedoms (hereinafter:
      ‘the Human Rights Convention’).
      
      
        14.      Paragraph 8 of the Ausländergesetz lays down special grounds for refusal. Paragraph 8(a) deals inter alia with the time-limit
      on expulsion.
      
      
        15.      According to the information provided by the national court, in Baden-Württemberg, until 30 June 1999, a preliminary re-examination
      of the lawfulness and expediency of the administrative measure relating to an expulsion was as a rule necessary before the
      bringing of an action for annulment. However, with effect from 1 July 1999 
         			(6)
         		 there was no need for preliminary proceedings if the administrative measure had been adopted by a Regierungspräsidium (office
      of chief executive of an administrative district).
      
      
        16.      The first sentence of Paragraph 6a of the Ausführungsgesetz zur Verwaltungsgerichtsordnung (Law implementing the rules of
      procedure for administrative courts; ‘the AGVwGO’) now states as follows: 
      ‘No preliminary proceedings are required if the Regierungspräsidium has adopted or rejected the administrative measure’.
      
      
        17.      Therefore, the expediency of a decision is not reviewed in appeal proceedings where the Regierungspräsidium has jurisdiction
      ratione materiae for the adoption of an expulsion order. Under the first sentence of Paragraph 7(1) of the Ausländer- und Asylverfahrenszuständigkeitsverordnung
      (Regulation on jurisdiction over proceedings relating to aliens and asylum; the ‘AAZuVO’), Regierungspräsidien have jurisdiction
      over the expulsion of foreign offenders where they have been held in prison by order of a court or on remand for over a week.
      
      
      III –  Facts and main proceedings
       A – In Case C-482/01
        18.      Mr Georgios Orfanopoulos was born in 1959 and is a Greek national.  In 1972 he entered the territory of the Federal Republic
      of Germany to join his parents. He subsequently held limited residence permits. In 1978 Mr Orfanopoulos returned to Greece
      to carry out military service. In September/October 1980 he re-entered the territory of the Federal Republic. In 1981 Mr Orfanopoulos
      married a German national. This marriage produced three children who are also plaintiffs in the proceedings before the national
      court. Mr Orfanopoulos subsequently obtained an EC residence permit on several occasions, the most recent being valid until
      12 October 1999. On 9 November 1999 he applied for an extension of his EC residence permit. Mr Orfanopoulos has no professional
      training qualifications. Since 1981 he has pursued various activities as an employed person. Mr Orfanopoulos has several previous
      convictions imposed by a number of judgments of the Amtsgericht Stuttgart (Stuttgart Local Court).
      
      
        19.      Mr Orfanopoulos was in prison from 3 February 1999 to 5 August 1999. In the time thereafter he was found on several occasions
      on the drugs scene. From 7 January 2000 to 25 January 2000 Mr Orfanopoulos was at Stuttgart’s Bürgerhospital for detoxification
      and was then admitted to a rehabilitation centre for in-patient treatment. He was discharged from there on 15 April 2000 when
      he was found to have a concentration of alcohol in his blood. On 31 May 2000 Mr Orfanopoulos was readmitted to this rehabilitation
      centre and discharged on 29 June 2000 on disciplinary grounds because he tested positive for benzodiazepine. Since 11 September
      2000 Mr Orfanopoulos has been serving the terms of imprisonment imposed by the judgments of the Amtsgericht Stuttgart of 1994
      and 1998.
      
      
        20.      In 1992, 1997 and 1998 Mr Orfanopoulos received from the Aliens Department a warning under the law relating to aliens.
      
      
        21.      As regards the facts of the case, the national court further states that Mr Orfanopoulos has been a drug addict for over 15
      years. He was drug-free for a period of only around a year and a half up to the end of 1994. At the beginning of 2000 Mr Orfanopoulos
      underwent detoxification and then made two attempts at in-patient drug treatment. Both attempts were unsuccessful since Mr
      Orfanopoulos was, on both occasions, discharged prematurely from the rehabilitation centre on disciplinary grounds. According
      to the report drawn up by the rehabilitation centre, Mr Orfanopoulos now recognises that he is suffering from drug addiction.
      However, it is not clear that this recognition on the part of Mr Orfanopoulos could lead to him giving up drugs completely.
      On account of the previous criminal acts it is also clear that Mr Orfanopoulos tends to commit acts of violence when he consumes
      considerable quantities of alcohol. Thus far Mr Orfanopoulos has taken no steps at all to deal with this extreme alcohol dependency.
      According to the treatment report drawn up by the rehabilitation centre, Mr Orfanopoulos does not recognise in the slightest
      that he has an alcohol problem. Mr Orfanopoulos is neither willing nor able to commence treatment for his alcohol dependency.
      On account of the continuing drug and alcohol dependency there is a real danger of further criminal acts. Neither the penalties
      provided for under criminal law nor the law relating to aliens have acted as a warning to Mr Orfanopoulos. At no time during
      the entire proceedings have Mr Orfanopoulos or his daughters disputed the real danger of his re-offending.
      
      
        22.      By Decision of 28 February 2001 the Regierungspräsidium Stuttgart (Chief Executive’s Office of Stuttgart District) ordered
      the expulsion of Mr Orfanopoulos from the territory of the Federal Republic, dismissed his application for an extension of
      his EC residence permit and for the issue of a residence authorisation, and threatened him with deportation to Greece without
      limit of time. At the same time Mr Orfanopoulos was advised that he would be deported on his release from prison. On 21 March
      2001 Mr Orfanopoulos and his daughters brought an action. In March 2002 Mr Orfanopoulos’ remaining sentence was suspended.
      According to the information provided by the Landgericht (regional court) which suspended his sentence, Mr Orfanopoulos has
      shown good behaviour whilst in prison. Furthermore, he has decided to accept treatment.
      
      
        23.      The national court is uncertain whether the expulsion is compatible with Community law, that is to say Article 39(1) and (3)
      EC. It considers that the decision of the Regierungspräsidium is consistent with the case-law of the Court of Justice, but
      the proportionality of the expulsion is uncertain. This is so in view of Mr Orfanopoulos’ long-term residence in Germany.
      Furthermore, his expulsion would clearly make it more difficult for him and his wife to live together as a family. Nor could
      his wife reasonably be expected to move to Greece. Therefore, the question of compatibility with Article 8 of the Human Rights
      Convention arises. Moreover, the procedural safeguards laid down in Article 9 of Directive 64/221 may have been breached.
      
      
       B –  In Case C-493/01
        24.      Mr Raffaele Oliveri was born in Germany in 1977 and is an Italian national. He has resided continuously in Germany since he
      was born.  He has no professional qualifications.  Mr Oliveri has been a drug addict for many years. Mr Oliveri has a number
      of previous convictions.
      
      
        25.      By letter of 14 May 1999 Mr Oliveri received a warning under the law relating to aliens. As from 18 November 1999 Mr Oliveri
      was in prison serving the terms of imprisonment imposed by two judgments of 1999 and several terms of imprisonment for failure
      to pay fines. By order of 7 March 2000 the Staatsanwaltschaft Stuttgart (Stuttgart Public Prosecutor’s Office) deferred execution
      of the sentences imposed by the two judgments of 1999 with effect from 9 March 2000 for the duration of treatment at a treatment
      centre. Mr Oliveri abandoned this treatment after about one week. Thereupon the deferral of the execution of the sentences
      was revoked. On 24 April 2000 Mr Oliveri was re-arrested and has been in prison ever since.
      
      
        26.      By Decision of 29 August 2000 the Regierungspräsidium Stuttgart ordered the expulsion of Mr Oliveri from the territory of
      the Federal Republic and threatened him with deportation to Italy without setting a time-limit for his leaving the country
      voluntarily. On 25 September 2000 Mr Oliveri brought an action.
      
      
        27.      By letter of 20 June 2001 the medical service of the competent prison hospital stated that Mr Oliveri has been infected with
      HIV since December 1998. Mr Oliveri has had full-blown Aids since March 2001. Although he has been given highly effective
      anti-retroviral treatment since May 2001, this has yet to have the desired effect. It must be assumed that Mr Oliveri will
      not obtain adequate medical attention in Italy and that care for the extremely ill plaintiff, who will presumably die soon,
      is not guaranteed there.
      
      
        28.      The national court is uncertain as to the compatibility of the expulsion with Article 39(1) and (3) EC and Article 3 of Directive
      64/221. Paragraph 47(1) of the Ausländergesetz makes no provision for review of the specific case. Finally, it is uncertain
      whether the fact that, according to the settled case-law of the Bundesverwaltungsgericht (Federal Administrative Court), Mr
      Oliveri may no longer plead material circumstances relating to his state of health, which are of vital importance to the decision
      concerning expulsion, is compatible with the principle of proportionality.
      
      
      IV –  Questions submitted for a preliminary ruling
        29.      The Verwaltungsgericht Stuttgart stayed both sets of proceedings and submitted the following questions to the Court for a
      preliminary ruling:
      
      
       A – In Case C-482/01
      1.
         Is a restriction on the freedom of movement of a foreign EU national with many years’ residence in a host State, ordered on
            account of a criminal offence under the Betäubungsmittelgesetz, in conformity with European Law in terms of Article 39(3)
            EC on grounds of public policy, public security or public health, where, on account of his personal conduct, there is a justified
            expectation that he will also commit future criminal offences and where the spouse of the EU national and his children cannot
            reasonably be expected to live in his State of origin?
         
      
      
      2.
         Does Article 9(1) of Council Directive 64/221/EEC of 25 February 1964 preclude national legislation which no longer provides
            for objection proceedings in which an examination of expediency is also carried out in relation to a decision of an administrative
            authority to expel the holder of a residence permit from the national territory, if a special body which is independent of
            the administrative authority adopting the decision has not been established?
         
      
      
       B – In Case C-493/01
      1.
         Do Article 39 EC and Article 3 of Council Directive 64/221/EEC of 25 February 1964 preclude national legislation which makes
            it mandatory for 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 term of imprisonment, for an intentional criminal offence under the Betäubungsmittelgesetz
            where the sentence has not been suspended?
         
      
      
      2.
         Is Article 3 of Council Directive 64/221/EEC of 25 February 1964 to be interpreted as meaning that the submission of a report
            and a positive development in the person concerned which occurred after the final decision of the authority must also be taken
            into account by the national courts when they review the lawfulness of the expulsion of an EU national?
         
      
      
      V –  First question submitted for a preliminary ruling in Case C-482/01
       A – Main arguments of the parties
        30.      Mr Orfanopoulos considers that Community law affords extensive protection against expulsion. In that respect he refers to the legal situation
      in the other Member States. He claims that expulsion may be ordered solely on grounds of personal conduct and not on general
      preventative grounds. It is not acceptable that the person concerned has to bear the burden of proof that he represents no
      danger to society. The principle of proportionality requires that developments after the offence also be taken into consideration.
      Moreover, an expulsion must be linked to the misconduct.
      
      
        31.      Furthermore, account must be taken of the limits imposed by Article 8 of the Human Rights Convention, that is to say the basic
      right to respect for family life enshrined therein, and in that context the ability to make oneself understood linguistically
      in the State of origin should not be a criterion for expulsion. Moreover, expulsion could result in expelled EU nationals
      obtaining spent convictions later than a country’s own nationals. In addition, the term ‘public policy’ in Directive 64/221
      must be interpreted strictly.
      
      
        32.      Overall, Mr Orfanopoulos proposes that the answer to the question submitted for a preliminary ruling should be that Article
      39 EC prohibits the expulsion of an EU national who has been resident in another Member State for many years and that it is
      necessary to consider in which Member State re-socialisation is most likely to succeed.
      
      
        33.      As far as the Regierungspräsidium Stuttgart is concerned, the lawfulness of the expulsion turns solely on whether there is a genuine and sufficiently serious threat
      within the meaning of the Aufenthaltsgesetz. The specific assessment must be made in the light of the principle of proportionality.
      In that respect not every expulsion on grounds of a criminal offence always infringes Community law where the person concerned
      has resided in a Member State for many years and his family members cannot reasonably be expected to move. Finally, the Regierungspräsidium
      Stuttgart observes that an infringement of the European Convention cannot be the subject of preliminary ruling proceedings.
      
      
        34.      The German Government considers that German law properly transposes the requirements of Community law. It follows from the case-law of the Court
      of Justice that there must be a genuine and sufficiently serious threat affecting a fundamental interest of society. All the
      offences in question in this case must be classified as a threat to public policy and public security. Existing German law,
      in particular Paragraph 12 of the Aufenthaltsgesetz/EWG, takes account of the principle of proportionality and the fundamental
      right to protection of the family under Article 8 of the European Convention, Article 6 EC and the Charter of Fundamental
      Rights, since it provides for an examination of each individual case.
      
      
        35.      The Italian Government submits that the term ‘public policy’ needs an autonomous and uniform interpretation in Community law. In addition, the Italian
      Government refers to the case-law of the European Court of Human Rights (hereinafter: ‘the ECHR’) relating to Article 8 of
      the Human Rights Convention. It follows from Article 3 of Directive 64/221 that automatic expulsion is unlawful because derogations
      from the principle of freedom of movement must be interpreted strictly. Restrictions on freedom of movement may be imposed
      only on special preventative grounds and must be proportionate. The Italian Government therefore concludes that a national
      provision which provides for the automatic expulsion of a national of another Member State solely on the basis of a criminal
      conviction is incompatible with Community law.
      
      
        36.      The Commission submits that Article 39 EC and Article 3 of Directive 64/221 preclude legislation which makes it mandatory for the authorities
      to expel nationals of other Member States who have been sentenced to particular punishments for particular criminal offences
      without having to assess in each individual case the circumstances surrounding the personal conduct of the individual concerned.
      
      
        37.      As regards the proportionality of the expulsion, the Commission refers to Article 8 of the Human Rights Convention. In its
      view, even though it is justified on grounds of the personal conduct of the individual concerned expulsion is unlawful if
      the spouse and children of the EU national cannot reasonably be expected to live in his State of origin. On the basis of the
      case-law of the ECHR and the right to freedom of movement enjoyed by EU nationals the Commission concludes that expulsion
      is disproportionate.
      
      
       B – Appraisal
        38.      First, it should be noted that in the context of judicial cooperation between national courts and the Court of Justice, it
      is for national courts to establish and to evaluate the facts of the case and for the Court of Justice to provide the national
      court with such guidance on interpretation as may be necessary to enable it to decide the dispute. 
         			(7)
         		
      
        39.      The present proceedings concern a measure which restricts the freedom of an EU national and, more specifically, an expulsion.
      Therefore, they essentially concern the question of the margin of discretion enjoyed by the Member States in respect of public
      policy.
      
      
        40.      At a very basic level, the only question is whether there are advantages for the European Union in expelling an individual
      from one Member State to another. The practice of deportation basically constitutes an ‘exportation of danger’.
      
      
       1. The limits imposed by Directive 64/221
      
        41.      According to the Court’s case-law, 
         			(8)
         		 the term ‘public policy’ must, where it is used as a justification for derogating from the principle of freedom of movement,
      be interpreted strictly and autonomously in Community law and is subject to review by the Court.
      
      
        42.      It may be inferred from the Court’s case-law that there are four requirements which restrictions on the freedom of movement
      on grounds of public policy and public security must satisfy.
      
      
        43.      First, ‘prejudice to the requirements of public policy’ is required. Secondly, there must be a genuine and sufficiently serious
      threat. Thirdly, this threat must affect a fundamental interest of society. 
         			(9)
         		 Fourthly, the measure adopted by the Member State must be proportionate.
      
      
        44.      It is not disputed that the first requirement is satisfied in the present case and the third requirement can be regarded as
      satisfied in so far as the present case relates to drugs offences which as a rule affect a fundamental interest of society.
      
      
        45.      However, it is uncertain whether the second and fourth requirements are satisfied. Since the main proceedings concern a measure
      taken on grounds of public policy or of public security within the meaning of Directive 64/221, it is necessary to comply
      with its provisions. Therefore, the second requirement, relating to the threat, must be viewed in the context of Article 3
      of Directive 64/221.
      
      
        46.      The starting point must be the requirement of Article 3(1) of Directive 64/221 that measures taken on grounds of public policy
      or of public security are to ‘be based exclusively on the personal conduct of the individual concerned’. According to the
      Court’s case law, account must taken in that respect of ‘the danger which [the offender’s personal] conduct represents for
      the requirements of public policy’. 
         			(10)
         		 A present and specific threat, that is to say the existence of a particular risk, is required. Therefore, overall it may
      be inferred from the Court’s case-law 
         			(11)
         		 that assessments may not be made on the basis of general considerations. However, it is consequently also prohibited to take
      as a basis general preventative grounds, that is to say an individual may not be expelled on such grounds.
      
      
        47.      A further condition follows from Article 3(2) of Directive 64/221, that is to say that ‘[p]revious criminal convictions shall
      not in themselves constitute grounds for the taking of such measures’.
      
      
        48.      This provision is construed by the Court as meaning that the appraisal under the law relating to aliens ‘does not necessarily
      coincide with the appraisals which formed the basis of the criminal conviction. ... 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 threat to the requirements of public policy.’ 
         			(12)
         		
      
        49.      The Court has confirmed this expressly in relation to drugs offences. 
         			(13)
         		 In that respect I consider that a distinction may definitely be drawn between different drugs offences, and particular weight
      may be given to dealing in dangerous drugs such as heroin.
      
      
        50.      Therefore, it may be deduced from the case-law that the competent authorities of the Member States must base their decision
      on an assessment of the future conduct of the individual concerned. The kind and number of previous convictions must form
      a significant element in this assessment and particular regard must be had to the seriousness and frequency of the crimes
      that have been committed. Furthermore, while the danger of re-offending is of considerable importance, the remote possibility
      of new offences is not sufficient. For example, the danger of re-offending will be rather greater in the case of a drug dependency
      where there is a risk that further criminal offences will be committed in order to fund it.
      
      
        51.      The fact that a sentence has been suspended, as it has in the main proceedings, also constitutes an important factor in the
      assessment of the future threat. That suggests that the individual concerned no longer represents a real danger. Furthermore,
      any illnesses, such as HIV or Aids, must be taken into account in the assessment, so that in an extreme case they may preclude
      expulsion.
      
      
        52.      As a fourth requirement relating to the lawfulness of restrictions on freedom of movement on grounds of public policy and
      public security, the case-law of the Court requires compliance with the principle of proportionality. ‘In that respect, such
      a measure must be appropriate for securing the attainment of the objective which it pursues and must not go beyond what is
      necessary in order to attain it.’ 
         			(14)
         		
      
       2. Respect for private and family life under Article 8 of the Convention on Human Rights
      
        53.      In addition to the provisions of Directive 64/221, the national authorities also have to comply with the provisions of the
      Human Rights Convention. In the context of compliance with fundamental rights, the Court draws inspiration from the constitutional
      traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human
      rights on which the Member States have collaborated or to which they are signatories. According to the Court’s established
      case-law, 
         			(15)
         		 and as confirmed by the second paragraph of Article 6 EC, among the fundamental rights protected in the Community legal order
      are those of the Human Rights Convention.
      
      
        54.      The present case relates to respect for private and family life under Article 8 of the Human Rights Convention, to which the
      national court, Mr Orfanopoulos, the German and Italian Governments, and the Commission have also referred.
      
      
        55.      However, it is first necessary to examine the objection that an expulsion order under German law does not constitute interference
      in the scope of protection afforded by Article 8 of the Convention because there is no direct prejudice. Unlike the cases
      decided by the ECHR, which concerned an expulsion under French law, an expulsion under German law does not result in an actual
      separation of the individual concerned from his wife and/or children. For example, it is possible for an individual affected
      by an expulsion under German law to continue to reside in the Federal Republic by applying for ‘tolerance’ (Duldung). Moreover, after a certain period the individual concerned may even be granted a residence authorisation which can be extended
      and lead to a right of long-term residence. 
         			(16)
         		
      
        56.      Without embarking upon an assessment of the decisions of the ECHR based on French law relating to aliens, it suffices in this
      connection to refer to the Court’s own interpretation of the term ‘interference’ within the meaning of Article 8 of the European
      Convention. According to the Court’s judgment in Carpenter, 
         			(17)
         		 there can be such interference where there is a mere decision to make a deportation order. Even though the Court refers expressly
      only to a ‘decision to deport’, the main proceedings related to a ‘decision to make a deportation order’. Therefore, there
      can be interference even where the deportation order itself has not yet been made, let alone executed.
      
      
        57.      However, according to the case-law of the Court, and that of the ECHR, such interference will infringe Article 8 of the Human
      Rights Convention only ‘if it does not meet the requirements of paragraph 2 of that article, that is unless it is “in accordance
      with the law”, motivated by one or more of the legitimate aims under that paragraph and “necessary in a democratic society”,
      that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.’ 
         			(18)
         		
      
        58.      Therefore, it is necessary to set out in detail the criteria to be applied in connection with the proportionality test. This
      test consists in weighing up, in each particular case, the interests of the State imposing the measure terminating residence
      and the interests of the individual concerned.
      
      
        59.      However, in accordance with the division of functions between the Court of Justice and the national courts it is not for the
      Court of Justice to give final judgment on a specific case within the framework of preliminary ruling proceedings. Instead,
      ‘[i]t is for the national courts to determine whether the measures taken in this case do in fact relate to individual conduct
      which constitutes a genuine and sufficiently serious threat to public order or public security, and whether they comply with
      the principle of proportionality’. 
         			(19)
         		 The national court will therefore have to consider whether an expulsion is proportionate in the main proceedings, having
      due regard to the guidance on interpretation provided in this case.
      
      
        60.      Therefore, as regards the situation of Mr Orfanopoulos, it is necessary firstly to assess his personal situation. In this
      respect, it is necessary to establish the extent of his integration in Germany, socially, professionally and in terms of family
      relations. In this connection account must also be taken of the time he has spent in Germany, the age at which he came to
      Germany, and his command of the language of his State of origin. 
         			(20)
         		
      
        61.      In a case such as that in the main proceedings it is necessary secondly to examine whether the family members, that is to
      say the spouse and children, can reasonably be expected to live in the State of origin of the individual who is expelled.
      However, as regards this aspect of the balance of interests, the national court has already concluded that the spouse and
      children cannot reasonably be expected to do so, as is evident from the question submitted for a preliminary ruling. Therefore,
      there is no need to consider here the factors which are relevant in that respect.
      
      
        62.      Thirdly, in a case such as that in the main proceedings account must be taken of the seriousness and number of the offences
      committed by the individual concerned. In this connection it should be emphasised in general that drugs offences are very
      serious and, furthermore, also satisfy the Court’s requirement that a fundamental interest of society be affected.
      
      
        63.      As regards the sentences passed in this case, it should be noted that a term of imprisonment was imposed in six of the sentences
      concerned. However, in most cases they were very short. According to the case-law of the ECHR, not even an overall sentence
      of just under five years justifies an expulsion. Furthermore, account must also be taken, precisely in the present case, of
      the fact that the sentence was suspended.
      
      
        64.      On the other hand, repeated recidivism could militate in favour of expulsion although it will probably relate more to petty
      crime. Finally, the national court should consider where re-socialisation is most likely to be achieved.
      
      
        65.      It follows from the need to take account of all these factors that authorities of the Member States must be able to weigh
      up the interests in each individual case also in connection with expulsion that is ordered as a rule. 
         			(21)
         		 Although Community law lays down no absolute prohibition on expulsion, national law may not provide for expulsion as a mandatory
      legal consequence in cases such as those in the main proceedings.
      
      
        66.      In these preliminary ruling proceedings the question may be left open whether existing German provisions infringe Directive
      64/221, as interpreted by the Court, because an examination of conformity in the abstract is not the subject of these proceedings.
      
      
        67.      However, the German authorities are in any event required to interpret German law, including administrative rules, in conformity
      with Community law.
      
      
        68.      The answer to the first question submitted for a preliminary ruling should therefore be that Article 3 of Directive 64/221
      is to be interpreted as not precluding a restriction on the freedom of movement of a foreign EU national with many years’
      residence in a host State, ordered on account of a criminal offence under the Betäubungsmittelgesetz on grounds of public
      policy, public security or public health, in so far as that measure is proportionate in the light of Article 8 of the European
      Convention, in particular where, on account of the EU national’s personal conduct, there is a justified expectation that he
      will also commit future criminal offences and where the spouse of that EU national and his children can reasonably be expected
      to live in his State of origin.
      
      
      VI –  Second question submitted for a preliminary ruling in Case C-482/01
       A – Main arguments of the parties
        69.      Mr Orfanopoulos takes the view that the proceedings are vitiated by errors on several counts. First, a court will intervene not before but
      only after the measure has been adopted and its intervention gives rise to additional costs. Furthermore, the fact that the
      Verwaltungsgericht cannot be an independent competent authority follows also from the fact that it can intervene only when
      requested to do so. Secondly, the Verwaltungsgericht can examine the expediency of the measure to only a limited degree. Thirdly,
      an expulsion also infringes Article 10 EC because the host State thereby passes the social burden on to the State of origin.
      
      
        70.      As far as the Regierungspräsidium Stuttgart is concerned, it is sufficient that the individual concerned has the possibility of obtaining judicial review of the order
      for immediate execution of the expulsion. The Verwaltungsgericht must be regarded as an independent competent authority for
      the purposes of Article 9(1) of Directive 64/221.
      
      
        71.      The German Government considers that objection proceedings are not necessary where timely and comprehensive judicial review is carried out in proceedings
      before the Verwaltungsgericht. Moreover, the fact that the court ruling is given before the expulsion is enforced also indicates
      conformity with Community law.
      
      
        72.      The Italian Government emphasises that the minimum protection afforded by Article 9(1) of Directive 64/221 should have been ensured in the administrative
      proceedings.
      
      
        73.      The Commission submits that in Baden-Württemberg the Verwaltungsgericht may examine only the legal validity of an expulsion decision and
      consequently the requirements for the application of Article 9(1) of Directive 64/221 are satisfied. However, in Baden-Württemberg
      there is no independent competent authority which issues an opinion prior to its ruling, as required under this provision.
      Furthermore, it is uncertain whether Article 9(1) of Directive 64/221 satisfies the requirements of effective legal protection
      laid down in the case-law of the Court.
      
      
       B –  Appraisal
        74.      It is necessary to bear in mind from the outset the principle that, according to the Court’s case-law, Articles 8 and 9 of
      Directive 64/221 define the minimum procedural safeguards to which Community nationals are entitled when they rely on freedom
      of movement in relation to the situation in which they find themselves. The purpose of Article 9, which complements Article
      8, is to provide minimum procedural safeguards for persons affected by ‘one of the measures referred to in the three cases
      mentioned in Article 9(1), namely where there is no right of appeal to a court of law, or where such appeal lies only in respect
      of the legal validity of the decision, or where the appeal cannot have suspensory effect.’ 
         			(22)
         		
      
       1. The need for the opinion of an independent competent authority
      
        75.      First it is necessary to examine whether any of the three cases obtain in which Article 9(1) of Directive 64/221 applies.
      In the present case the only possible alternative is that the appeal against the expulsion order may be only in respect of
      the legal validity of the decision.
      
      
        76.      As the Court has consistently held, ‘the purpose of the intervention of the competent authority referred to in Article 9(1)
      is to enable an exhaustive examination of all the facts and circumstances, including the expediency of the proposed measure,
      to be carried out before the decision is finally taken.’ 
         			(23)
         		
      
        77.      Therefore, it is necessary to consider whether the examination to be carried out by the Verwaltungsgericht on the basis of
      an appeal seeking annulment satisfies the above requirements.
      
      
        78.      It follows from Paragraph 86(1) of the Verwaltungsgerichtsordnung (Rules of procedure for administrative courts) that the
      administrative courts are first required to establish the facts of the case of their own motion. This examination of the factual
      situation can even result in the annulment of administrative acts where the authorities have proceeded on the basis of inaccurate
      facts.
      
      
        79.      It can therefore be concluded that the administrative courts must carry out the ‘exhaustive examination of all the facts and
      circumstances’ prescribed by the case-law of the Court. However, even though national law may satisfy this requirement of
      Community law, that does not necessarily mean that the administrative courts also apply this principle in practice, in each
      individual case, in conformity with Community law. Admittedly, the present proceedings do not involve an assessment of specific
      individual cases, unlike proceedings for failure to fulfil Treaty obligations, which are aimed at pursuing specific infringements.
      
      
        80.      Secondly, the administrative courts must consider the formal and substantive legality of the expulsion order. According to
      this wording, their obligation is limited to a review of the legality of the decision.
      
      
        81.      At this juncture it would be possible to examine the intensity and depth of the review which the administrative courts conduct
      or should conduct under German law. In particular it could be examined how the review under German law must be organised in
      respect of administrative decisions dictated by the law, on the one hand, and discretionary decisions, on the other.
      
      
        82.      However, such an examination requires an interpretation of German law. According to the Court’s case-law, it may not interpret
      domestic legislation or regulations. 
         			(24)
         		
      
       2. Decision of the Verwaltungsgericht as a decision of an independent competent authority?
      
        83.      In these proceedings it has been submitted that, being a first-instance court, the Verwaltungsgericht must be regarded as
      an independent competent authority for the purposes of Article 9(1) of Directive 64/221. Connected with this is the question
      whether the decision taken by the Verwaltungsgericht in proceedings such as the main proceedings must be classified as an
      ‘opinion [of] a competent authority’ within the meaning of Article 9(1) of Directive 64/221.
      
      
        84.      In this regard it should be noted that the directive does not define the term ‘competent authority’ or the term ‘opinion’.
      The directive ‘refers to an authority which must be independent of the administration, but it gives Member States a margin
      of discretion in regard to the nature of the authority’. 
         			(25)
         		
      
        85.      This margin of discretion is naturally not unlimited. The principle of the uniform application of Community law and the principle
      of equality require ‘that the terms of a provision of Community law which makes no express reference to the law of the Member
      States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation
      throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation
      in question’. 
         			(26)
         		
      
        86.      In this regard it is necessary to take as a premiss the established case-law of the Court, according to which ‘the purpose
      of the intervention of the competent authority referred to in Article 9(1) is to enable an exhaustive examination of all the
      facts and circumstances, including the expediency of the proposed measure, to be carried out before the decision is finally
      taken.’ ‘[S]ave in cases of urgency, the administrative authority may not take its decision until an opinion has been obtained from the competent authority’. 
         			(27)
         		 The authority which takes the decision on a measure restricting freedom, such as expulsion, is thus required to await that
      decision.
      
      
        87.      In this connection it should be emphasised that it is not necessary to examine whether the Verwaltungsgericht displays all
      the features which characterise an independent competent authority for the purposes of Article 9(1) of Directive 64/221. 
         			(28)
         		 As is evident from Santillo, a court can be an independent competent authority for the purposes of Article 9(1) of Directive 64/221. However, the decisive
      feature of the UK provisions at issue in that case was the fact that the court intervenes before the administrative authority, that is to say the competent Secretary of State, has acted.
      
      
        88.      Therefore, the relevant criterion here is the fact that the opinion must be issued before the decision. By contrast, the Verwaltungsgericht intervenes, in accordance with the legal situation in Baden-Württemberg,
      after the administrative authority, that is to say the Regierungspräsidium, has acted.
      
      
        89.      The argument that the requirements of Article 9(1) of Directive 64/221 are satisfied if the opinion is issued before enforcement
      must be expressly rejected in this case. As regards the time by which the opinion must be issued, the relevant established
      case-law of the Court 
         			(29)
         		 refers to the time of the decision relating to the measure restricting freedom rather than that of the enforcement.
      
      
        90.      In summary then, the legal position in Baden-Württemberg applicable in the main proceedings following the introduction of
      Paragraph 6a of the AGVwGO does not provide for an independent competent authority within the meaning of Article 9(1) of Directive
      64/221 which issues an opinion at the time laid down in Community law in cases in which the Regierungspräsidium has jurisdiction
      to an expulsion order.
      
      
        91.      Finally, it should be noted that Article 9 of Directive 64/221 has been classified by the Court 
         			(30)
         		 as sufficiently well-defined and specific and therefore can be invoked by individuals without having to wait for an adjustment
      of federal or Land law.
      
      
        92.      The answer to the second question submitted for a preliminary ruling should therefore be that on a proper construction of
      Article 9(1) of Directive 64/221 national legislation – which does not provide for objection proceedings in which an examination
      of expediency is also carried out in relation to an administrative authority’s decision to expel the holder of a residence
      permit from the national territory in circumstances where a special body independent of the administrative authority adopting
      the decision has not been established – is not precluded provided that an appeal is possible that permits an exhaustive examination
      of all the facts and circumstances, including the expediency of the proposed measure.
      
      
      VII –  First question submitted for a preliminary ruling in Case C-493/01
       A –  Main arguments of the parties
        93.      The Regierungspräsidium Stuttgart submits that Article 39 EC and Article 3 of Directive 64/221 do not preclude the rules contained in Paragraph 45 of the Ausländergesetz
      and Paragraph 12 of the Aufenthaltsgesetz/EEC. The fact that the requirements of Paragraph 47(1) of the Ausländergesetz are
      satisfied does not make it mandatory for authorities to expel an individual. Furthermore, an examination of the specific case
      is carried out which also takes account of compatibility with the principle of proportionality. Moreover, since the orders
      in the main proceedings were based on aspects relating to individual deterrence, the first question submitted is not material.
      
      
        94.      The German and Italian Governments make the same observations on this question as they did on the first question in Case C-482/01.
      
      
        95.      The Commission considers that Directive 64/221 implements the derogation relating to public policy contained in Article 39(3) EC, and it
      points to the two central principles of Article 3 of this directive. First, measures taken on grounds of public policy or
      of public security are to be based solely on the personal conduct of the individual concerned. Secondly, previous criminal
      convictions are not in themselves to constitute grounds for the taking of such measures.
      
      
        96.      On the basis of the Court’s case-law the Commission concludes that Article 39(3) EC and Article 3 of Directive 64/221 preclude
      national legislation which makes it mandatory for 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 term of imprisonment, for an intentional criminal offence
      under the Betäubungsmittelgesetz where the sentence has not been suspended.
      
      
       B – Appraisal
       1. Admissibility of the first question submitted for a preliminary ruling
      
        97.      Since the Regierungspräsidium Stuttgart takes the view that the first question submitted is not at all material, it is necessary
      first to examine the admissibility of this question.
      
      
        98.      According to the Court’s established case-law, in the context of the cooperation between the Court of Justice and the national
      courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and
      which must rule thereon, to determine in the light of the particular case both the need for a preliminary ruling in order
      to enable it to deliver judgment and the relevance of the questions which it submits to the Court. 
         			(31)
         		
      
        99.      On the other hand, the Court’s functions do not include delivering advisory opinions on general or hypothetical questions. 
         			(32)
         		 Similarly, the Court can decline to rule on a question submitted by a national court where, for example, the problem is hypothetical,
      or where the Court does not have before it the factual or legal material necessary to give a helpful answer to the questions
      submitted to it. 
         			(33)
         		 Moreover, in order to enable the Court to give a useful interpretation of Community law, it is essential for the national
      court to explain why it considers that an answer to its questions is necessary for resolving the dispute. 
         			(34)
         		
      
        100.    In the present case it is not apparent that one of these grounds of inadmissibility obtains in respect of the question submitted
      for a preliminary ruling. Even if it were true that the orders in the main proceedings were based also on aspects relating
      to individual deterrence, that would not render the question inadmissible.
      
      
        101.    Therefore, the first question submitted for a preliminary ruling is admissible.
      
      
       2. Substance of the first question submitted for a preliminary ruling
      
        102.    The first question submitted for a preliminary ruling is worded in such a way that it makes reference exclusively and specifically
      to national legislation which makes it mandatory for authorities to expel individuals in particular cases. In this context
      it should be noted that it is evident from the decision at issue in the main proceedings that the authority itself assumes
      that Paragraph 47(1)(2) of the Ausländergesetz provides for expulsion as a mandatory legal consequence.
      
      
        103.    Furthermore, it is likewise not for the Court, in preliminary ruling proceedings, to interpret provisions of national law,
      that is to say, for example, to determine whether and in what respect the provisions concerning ‘expulsion as a rule’ give
      the authorities a margin of discretion. 
         			(35)
         		
      
        104.    Moreover, the question submitted for a preliminary ruling does not refer specifically to a particular provision of the Ausländergesetz
      and therefore there is no need to consider the problem of the disputed relationship between Paragraph 12 of the Aufenthaltsgesetz/EWG
      and Paragraph 47 of the Ausländergesetz. 
         			(36)
         		
      
        105.    Nor is it necessary in these preliminary ruling proceedings to consider the conformity of national implementing measures or
      to examine whether and to what extent an interpretation of the national legislation in conformity with Community law is possible
      and is actually practised by the administrative authorities and the courts. According to its case-law, the Court may not,
      in preliminary ruling proceedings, rule upon the compatibility of a provision of domestic law with Community law. 
         			(37)
         		
      
        106.    The question submitted concerns the following four points: an intentional criminal offence, an intentional criminal offence
      under the Betäubungsmittelgesetz, a final sentence, and non-suspension of the sentence.
      
      
        107.    It is evident from Article 3 of Directive 64/221, the provision to be interpreted in this case, that there are two limits
      on the Member State taking measures under the law relating to aliens.
      
      
        108.    First, Article 3(1) of Directive 64/221 requires that measures ‘be based exclusively on the personal conduct of the individual
      concerned’.
      
      
        109.    The German legislation appears to satisfy this criterion since its defining elements refer to the personal conduct of the
      individual concerned, inasmuch as what matters is the nature of the fault, the infringement of a particular law, the nature
      and term of the sentence and the absence of suspension.
      
      
        110.    Secondly, Article 3(2) of Directive 64/221 provides that ‘[p]revious criminal convictions shall not in themselves constitute
      grounds for the taking of such measures’.
      
      
        111.    According to the Court’s case-law, when the future conduct of the individual concerned is assessed for the purposes of the
      law relating to aliens there is a duty to consider whether there is a genuine and sufficiently serious threat to one of the
      fundamental interests of society. 
         			(38)
         		 It also follows from the Court’s case-law that ‘general considerations’ are prohibited. 
         			(39)
         		 Such general considerations exist also where national law makes expulsion mandatory in general and abstract terms. Such legal
      constructions prevent a – substantive – examination of a specific case.
      
      
        112.    In any event, the application of a general and abstract provision to a specific case is not consistent with the prohibition
      on ‘general considerations’. This is evident precisely in legislation such as that in the main proceedings 
         			(40)
         		 which lays down ‘standardised criteria’ on the basis of which a particular threat is inferred. Therefore, even if an individual
      threat assessment were carried out in such cases, no weight could be attributed to it on account of the mandatory nature of
      the expulsion and it would not have the importance conferred on it by Community law.
      
      
        113.    In this context note should be taken of the comparison which the Commission rightly makes between the legislation at issue
      and the national legislation which was the subject of the proceedings in Calfa. In that case too the authorities had to order expulsion. 
         			(41)
         		 The fact that it concerned expulsion for life is immaterial because it was the automatic nature of the national provision
      that rendered it incompatible with Community law, as is evident from the Court’s interpretation of Calfa in the case of Nazli. 
         			(42)
         		
      
        114.    The answer to the first question submitted for a preliminary ruling should therefore be that Article 39(3) EC and Article
      3 of Directive 64/221 preclude national legislation which makes it mandatory for 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 term of imprisonment, for
      an intentional criminal offence under the Betäubungsmittelgesetz where the sentence has not been suspended.
      
      
      VIII –  Second question submitted for a preliminary ruling in Case C-493/01
       A – Main arguments of the parties
        115.    In the view of the Regierungspräsidium Stuttgart, the second question submitted for a preliminary ruling in this case is irrelevant. The illness acquired after the expulsion
      constitutes an obstacle to deportation and consequently affects the legality of the enforcement of the expulsion, not the
      lawfulness of the expulsion itself. Moreover, Community law does not preclude the time of the adoption of a measure from being
      regarded as the material time. Finally, the question of a time-limit on the expulsion does not necessarily depend on the individual
      concerned already having left the country.
      
      
        116.    The German Government submits that it does not follow from Article 3 of Directive 64/221 that submission of a report and a positive development
      in the person concerned which occurred after the final decision of the authority must be taken into account when the lawfulness
      of the expulsion is reviewed. The authority is not able to take into consideration actual future developments. Therefore it
      is the time at which a decision is adopted which is decisive. Since Article 3 lays down only the substantive requirements
      relating to measures adopted under the law relating to aliens, it cannot alter the position in that regard.
      
      
        117.    Developments following the adoption of the final decision of the authority must be taken into account in the context of a
      decision on an application for a time-limit to be placed on the expulsion. That can result in the lifting of the prohibition
      on re-entry and the issuing of a new residence permit. Moreover, new facts must be taken into account in relation to enforcement
      of the expulsion.
      
      
        118.    In its observations the Italian Government does not make a separate examination of the second question submitted but makes the same submissions as in Case C-482/01.
      
      
        119.    In the view of the Commission, it follows from the case-law of the Court that the authorities must consider whether or not there is a present threat to
      the requirements of public policy. Article 3 of Directive 64/221 precludes any restriction on account being taken of the submission
      of a report or of a positive development in the person concerned which occurred between the decision of the authority concerned
      and the ruling of the national court.
      
      
       B – Assessment
        120.    By the second question the national court asks whether national courts are required to take account of certain developments
      in the person concerned which occurred after the final decision of the authority. The main proceedings are concerned essentially
      with the fact that the person concerned developed Aids after the action was brought and will presumably soon die in spite
      of treatment.
      
      
        121.    This question concerns another matter of dispute in German law, that is to say the material time to be taken into consideration
      by the national court. In that regard three positions can be distinguished as regards the interpretation of the relevant provision
      of national procedural law, that is to say Paragraph 113 of the Verwaltungsgerichtsordnung. Whilst according to the first
      position the conclusion of the administrative proceedings is decisive, according to the second position the time of the application
      for annulment is decisive. According to a third position, it is the factual and legal situation at the time of the final oral
      procedure that is decisive. The present case relates to proceedings before an administrative court which were initiated by
      an action for annulment.
      
      
        122.    Under national law the question has already arisen as to whether the solution is to be found at all in administrative law
      alone rather than in substantive law. Applied to the main proceedings, this would mean that the solution is to be sought in
      the national law relating to aliens.
      
      
        123.    However, in view of the Court’s function in preliminary ruling proceedings, it is Community law and not national law which
      should be taken as the starting point in the present case.
      
      
        124.    It is first necessary to start with Article 3 of Directive 64/221, which is expressly referred to in the question submitted.
      
      
        125.    According to the Court’s case-law, that provision must be interpreted as meaning that ‘the circumstances which gave rise [to
      that criminal conviction] are evidence of personal conduct constituting a present threat to the requirements of public policy’.
      
         			(43)
         		
      
        126.    Therefore, the decisive factor is a present threat, although an assessment of the future may indeed be necessary. However, no more specific information as to what constitutes
      the ‘present’ is evident from the wording of Article 3 of Directive 64/221 or the case-law based thereon.
      
      
        127.    Although the case of Santillo, 
         			(44)
         		 cited by the Commission, also relates to a temporal aspect, it concerns the period between the opinion of the independent
      competent authority and the expulsion order.
      
      
        128.    However, the principle underlying Santillo, namely that ‘the factors to be taken into account, particularly those concerning [a person’s] conduct, are likely to change
      in the course of time’, applies in respect of the period between the expulsion order and its review by the administrative
      court, which is the material period in this case.
      
      
        129.    German law relating to aliens, which – from the point of view of Community law – also includes the procedural law of administrative
      courts in this field, must also comply with this principle.
      
      
        130.    Where Community law does not provide for more specific rules, national procedural law does, in principle, apply. However,
      in that respect it is necessary to apply the case-law of the Court, according to which ‘it is for the domestic legal system
      of each Member State ... to lay down the detailed procedural rules governing actions for safeguarding rights which individuals
      derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic
      actions (principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the
      exercise of rights conferred by Community law (principle of effectiveness)’. 
         			(45)
         		
      
        131.    It can be inferred from this that the exercise of the rights conferred on a person affected by an expulsion order by Directive
      64/221 is rendered excessively difficult for him if he is unable to put forward new facts in pending administrative proceedings,
      including proceedings before an administrative court, but must make a specific application for a time-limit on expulsion and
      if any developments that have occurred in the meantime can be taken into account only in the decision on that application.
      
      
        132.    However, not only the assertion of rights by the person concerned is relevant under Community law. Community law also requires
      that the bodies responsible under national law, that is to say also the administrative courts, must be able to ensure the
      exercise of rights and are not hindered in this respect by provisions of procedural law.
      
      
        133.    Such a hindrance would, however, exist if administrative courts could consider new developments only upon application and
      were barred from taking them into account of their own motion.
      
      
        134.    Therefore, it follows that national procedural law, that is to say also Paragraph 8 of the Ausländergesetz or the Verwaltungsgerichtsordnung,
      must be interpreted in conformity with Community law as meaning that a time-limit on expulsion is also to be granted of a
      court’s own motion. 
         			(46)
         		
      
        135.    However, even if it is concluded that a time-limit must be granted in any event also of a court’s own motion, it must still
      be asked whether or not the requirements of Community law are thereby satisfied.
      
      
        136.    Although the taking into account of further developments in connection with a decision on a time-limit on expulsion can result
      in the lifting of the prohibition on re-entry and the issuing of a new residence permit, this possibility does not constitute
      an adequate instrument which satisfies the requirements of Community law.
      
      
        137.    Thus, the problem of taking account of further developments arises also in respect of expulsion orders themselves. Although
      an expulsion order is not an administrative measure with permanent effect, new developments could be taken into consideration
      for as long it is not enforced. Since an expulsion order is based on an expulsion prognosis, that is to say an assessment
      with no temporal limit, 
         			(47)
         		 new developments are of great practical importance precisely in relation to the expulsion.
      
      
        138.    The answer to the second question submitted for a preliminary ruling should therefore be that Article 3 of Directive 64/221
      is to be interpreted as meaning that the submission of a report and a positive development in the person concerned which occurred
      after the final decision of the authority must also be taken into account by the national courts when they review the lawfulness
      of the expulsion of an EU national.
      
       
      IX –  Conclusion
        139.    In the light of those considerations I propose that the Court should answer the national court’s questions as follows:
      
      
       A – In Case C-482/01
      (1)
         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 is to
            be interpreted as not precluding a restriction on the freedom of movement of a foreign EU national with many years’ residence
            in a host State, ordered on account of a criminal offence under the Betäubungsmittelgesetz on grounds of public policy, public
            security or public health, in so far as that measure is proportionate in the light of Article 8 of the European Convention
            on Human Rights and Fundamental Freedoms, in particular where, on account of the EU national’s personal conduct, there is
            a justified expectation that he will also commit future criminal offences and where the spouse of that EU national and his
            children can reasonably be expected to live in his State of origin.
         
      
      
      (2)
         On a proper construction of Article 9(1) of Directive 64/221/EEC national legislation – which does not provide for objection
            proceedings in which an examination of expediency is also carried out in relation to an administrative authority’s decision
            to expel the holder of a residence permit from the national territory in circumstances where a special body independent of
            the administrative authority adopting the decision has not been established – is not precluded provided that an appeal is
            possible that permits an exhaustive examination of all the facts and circumstances, including the expediency of the proposed
            measure.
         
      
      
       B – In Case C-493/01
      (1)
         Article 39 EC and Article 3 of Directive 64/221/EEC preclude national legislation which makes it mandatory for 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 term of imprisonment, for an intentional criminal offence under the Betäubungsmittelgesetz where the sentence has
            not been suspended.
         
      
      
      (2)
         Article 3 of Directive 64/221/EEC is to be interpreted as meaning that the submission of a report and a positive development
            in the person concerned which occurred after the final decision of the authority must also be taken into account by the national
            courts when they review the lawfulness of the expulsion of an EU national. 
         
      
      
       1 –
         
         Original language: German.
      
      2 –
         
         OJ, English Special Edition 1963-1964 (I), p. 117.
            
         
      
      3 –
         
         BGBl. I 1990, p. 1354, in the version of the Law of 16 February 2001, BGBl. I, p. 266.
            
         
      
      4 –
         
         The version published in the Notice of 31 January 1980, BGBl. I, p. 116, as amended by the Law of 27 December 2000, BGBl.
            I, p. 2042.
            
         
      
      5 –
         
          Bundesanzeiger No 188a of 6 October 2000.
            
         
      
      6 –
         
         Law of 10 May 1999, GBl. p 173.
            
         
      
      7 –
         
         See, in particular, Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paragraph 50, Case C-332/88 Alimenta [1990] ECR I-2077, paragraph 9, and Case 139/85 Kempf [1986] ECR 1741, paragraph 12.
            
         
      
      8 –
         
         Case 36/75 Rutili [1975] ECR 1219, paragraph 27, and Case 30/77 Bouchereau [1977] ECR 1999, paragraph 33; see also Case C-100/01 Olazabal [2002] ECR I-10981, paragraph 30 et seq.
            
         
      
      9 –
         
         Case 30/77, cited above in footnote 8, and Case C-340/97 Nazli [2000] ECR I-957, paragraph 57.
            
         
      
      10 –
         
         Case 67/74 Bonsignore [1975] ECR 297, paragraph 6, Case C-348/96 Calfa [1999] ECR I-11, paragraph 27, and Case C-340/97, cited above in footnote 9, paragraph 59.
            
         
      
      11 –
         
         Case 67/74, cited in footnote 10 above, paragraph 7, Case 36/75, cited in footnote 8 above, paragraph 29, Case 48/75 Royer [1976] ECR 497, paragraph 46, Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 11, and Case C-340/97, cited in footnote 9 above, paragraphs 59 and 63; see also Case C-100/01,
            cited in footnote 8 above, paragraph 30 et seq.
            
         
      
      12 –
         
         Case 30/77, cited in footnote 8 above, paragraphs 27 and 28.
            
         
      
      13 –
         
         Case C-340/97, cited in footnote 9 above, paragraph 58; see Case C-348/96, cited in footnote 10 above, paragraphs 22 to 24.
            
         
      
      14 –
         
         Case C-100/01, cited in footnote 8 above, paragraph 43 and Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37.
            
         
      
      15 –
         
         See Case C-274/99 P Connolly [2001] ECR I-1611, paragraph 37 et seq. and Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 41.
            
         
      
      16 –
         
         Sennekamp, ‘Ist-Ausweisung menschenrechtswidrig?’, Zeitschrift für Ausländerrecht und Ausländerpolitik 2002, p. 136 (at p. 141 et seq.).
            
         
      
      17 –
         
         Case C-60/00, cited in footnote 15 above, paragraph 41. Although this paragraph refers to a ‘decision to deport’, the main
            proceedings relate to a ‘decision to make a deportation order’.
            
         
      
      18 –
         
         Case C-60/00, cited in footnote 15 above, paragraph 42; see judgment of the ECHR in the case of Boultif v Switzerland  of 2 August 2001, Reports 2001-IX, §§ 39, 41 and 46.
            
         
      
      19 –
         
         Case C-100/01, cited in footnote 8 above, paragraph 44; see Case 30/77, cited in footnote 8 above, paragraph 30.
            
         
      
      20 –
         
         See judgments of the ECHR in Berrehab v The Netherlands of 21 June 1988, Series A, No 138, §§ 7 and 29, Mehemi v France of 26 September 1997, Reports 1997-VI, Boultif v Switzerland, cited in footnote 18 above, Sen  v The Netherlands of 21 December 2001, not yet published in the Reports, § 40, Yildiz  v Austria of 31 October 2002, not yet published in the Reports, § 43, and Jakupovic  v Austria of 6 February 2003, not yet published in the Reports, § 29.
            
         
      
      21 –
         
         See judgment of the ECHR in Beldjoudi v France of 26 March 1992, Series A, No 234,  in which it was found that there had been an infringement even though a sentence of
            eight years had been passed; on the other hand, in Amrollahi v Denmark of 11 July 2002, not yet published in the Reports, no reference was made to the length of the sentence.
            
         
      
      22 –
         
         Case C-357/98 Yiadom [2000] ECR I-9265, paragraphs 27 and 29. See Case 131/79 Santillo [1980] ECR 1585, paragraph 12, Joined Cases 115/81 and 116/81, cited in footnote 11 above, paragraph 15, Joined Cases C-297/88
            and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 62, and Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 34.
            
         
      
      23 –
         
         Joined Cases 115/81 and 116/81, cited in footnote 11 above, paragraph 15, Case 131/79, cited in footnote 22 above, paragraph
            12, and Case C-175/94 Gallagher [1995] ECR I-4253, paragraph 17.
            
         
      
      24 –
         
         Joined Cases 209/84 to 213/84 Asjes and Others [1986] ECR 1425, paragraph 12, Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, paragraph 36, and Case C-28/99 Verdonck and Others [2001] ECR I-3399, paragraph 28.
            
         
      
      25 –
         
         Case 131/79, cited in footnote 22 above, paragraph 15.
            
         
      
      26 –
         
         Case C-357/98, cited in footnote 22 above, paragraph 26; see also Case 327/82 Ekro  v Produktschap voor Vee en Vlees [1984] ECR 107, paragraph 11, and Case C-287/98 State of the Grand Duchy of Luxembourg  v Linster and Others [2000] ECR I-6917, paragraph 43.
            
         
      
      27 –
         
         Emphasis added. Case 48/75, cited in footnote 11 above, paragraph 59, Case 98/79 Pecastaing  v Belgium [1980] ECR 691, paragraph 17, Case 131/79, cited in footnote 22 above, paragraph 12, Joined Cases 115/81 and 116/81, cited
            in footnote 11 above, paragraph 15, Joined Cases C-297/88 and C-197/89, cited in footnote 22 above, paragraph 62, Case C-175/94,
            cited in footnote 23 above, paragraph 17, Joined Cases C-65/95 and C-111/95, cited in footnote 22 above, paragraph 34, and
            Case C-357/98, cited in footnote 22 above, paragraph 31.
            
         
      
      28 –
         
         See, to that effect, for example Joined Cases C-297/88 and C-197/89, cited in footnote 22 above, paragraph 65.
            
         
      
      29 –
         
         See Joined Cases C-297/88 and C-197/89, cited in footnote 22 above, paragraphs 61 and 66, in which the focus was placed on
            enforcement of the decision solely because the question submitted for a preliminary ruling specifically referred to it.
            
         
      
      30 –
         
         Case 131/79, cited in footnote 22 above, paragraph 13.
            
         
      
      31 –
         
         Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38, Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18, and Case C-153/00 der Weduwe [2002] ECR I-11319, paragraph 31.
            
         
      
      32 –
         
         Case C-415/93, cited in footnote 31 above, paragraph 60, Case C-451/99 Cura Anlagen [2002]  ECR I-3193, paragraph 26, Case C-153/00, cited in footnote 31 above, paragraph 32.
            
         
      
      33 –
         
         Case C-379/98, cited in footnote 31 above, paragraph 39, Case C-390/99, cited in footnote 31 above, paragraph 19, and Case
            C-153/00, cited in footnote 31 above, paragraph 33.
            
         
      
      34 –
         
         Joined Cases 98/85, 162/85 and 258/85 Bertini and Others [1986] 1885, paragraph 6, Case C-343/90 Lourenço Dias [1992] ECR I-4673, paragraph 19, and Case C-153/00, cited in footnote 31 above, paragraph 34.
            
         
      
      35 –
         
         For example, in German legal circles the view is taken that ‘expulsion as a rule’ constitutes a sub-case of compulsory expulsion,
            the authorities may rely on a margin of discretion only at a secondary level, a margin of discretion may be given only in
            connection with atypical events, and the demarcation between rule and exception is not subject to a margin of discretion.
            
         
      
      36 –
         
         See, on this, Harms, ‘Ausländerrecht’, in Deutsches Verwaltungsrecht unter europäischem Einfluss, 2002, paragraph 91.
            
         
      
      37 –
         
         Joined Cases 209/84 to 213/84, cited in footnote 24 above, paragraph 12, Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95,
            cited in footnote 24 above, paragraph 36, and Case C-28/99, cited in footnote 24 above, paragraph 28.
            
         
      
      38 –
         
         Case 30/77, cited in footnote 8 above, paragraph 35, and Case C-340/97, cited in footnote 9 above, paragraph 57.
            
         
      
      39 –
         
         Case 67/74, cited in footnote 10 above, paragraph 7, Case 36/75, cited in footnote 8 above, paragraph 29, Case 48/75, cited
            in footnote 11 above, paragraph 46, Joined Cases 115/81 and 116/81, cited in footnote 11 above, paragraph 11, Case C-348/96,
            cited in footnote 10 above, paragraphs 22 to 24, and Case C-340/97, cited in footnote 9 above, paragraph 63; see Case C-100/01,
            cited in footnote 8 above, paragraph 30 et seq.
            
         
      
      40 –
         
         A critical assessment of the German legal situation is given by: Beichel, ‘Das deutsche Ausweisungsrecht auf dem Prüfstand’,
            Informationsbrief Ausländerrecht 2002, p. 457 et seq.; Brinkmann, in: Barwig (Ed.), ‘Ausweisung im demokratischen Rechtsstaat’, 1996, p. 172 et seq.; Renner, ‘Ausländerrecht in Deutschland’, 1998, p. 564.
            
         
      
      41 –
         
         Case C-348/96, cited in footnote 10 above, paragraph 5 et seq.
            
         
      
      42 –
         
         Case C-340/97, cited in footnote 9 above, paragraphs 58 and 59.
            
         
      
      43 –
         
         Case 30/77, cited in footnote 8 above, paragraph 28, Case C-348/96, cited in footnote 10 above, paragraph 24, and Case C-340/97,
            cited in footnote 9 above, paragraph 58.
            
         
      
      44 –
         
         Case 131/79, cited in footnote 22 above.
            
         
      
      45 –
         
         See, to that effect, Case C-255/00 Grundig [2002] ECR I-8003, paragraph 33.
            
         
      
      46 –
         
         Renner, cited in footnote 40 above, p. 304 et seq., already comes to the same conclusion under national law.
            
         
      
      47 –
         
         Beichel, cited in note 40 above, p. 460.