CELEX: C2002/233/04
Language: en
Date: 2002-09-28 00:00:00
Title: Judgment of the Court 25 July 2002 in Case C-459/99 (Reference for a preliminary ruling from the Conseil d'État): Mouvement contre le racisme, l'antisémitisme et la xénophobie ASBL (MRAX) v État belge (Third country nationals who are the spouse of a Member State national — Requirement for a visa — Right of entry for spouses not in possession of identity documents or a visa — Right of residence for spouses who have entered unlawfully — Right of residence for spouses who have entered lawfully but whose visa has expired when they apply for a residence permit — Directives 64/221/EEC, 68/360/EEC and 73/148/EEC and Regulation (EC) No 2317/95)

28.9.2002               EN                       Official Journal of the European Communities                                              C 233/3
                 JUDGMENT OF THE COURT                                            on movement and residence within the Community for workers
                                                                                  of Member States and their families, Article 3 of Council
                                                                                  Directive 73/148/EEC of 21 May 1973 on the abolition of
                            25 July 2002                                          restrictions on movement and residence within the Community
                                                                                  for nationals of Member States with regard to establishment
                                                                                  and the provision of services and Council Regulation (EC)
in Case C-459/99 (Reference for a preliminary ruling
                                                                                  No 2317/95 of 25 September 1995 determining the third
from the Conseil d’État): Mouvement contre le racisme,
l’antisémitisme et la xénophobie ASBL (MRAX) v État                               countries whose nationals must be in possession of visas when
                                                                                  crossing the external borders of the Member States, read in the
                              belge ( 1)
                                                                                  light of the principle of proportionality, a Member State may
                                                                                  not send back at the border a third country national who is
(Third country nationals who are the spouse of a Member                           married to a national of a Member State and attempts to enter
State national — Requirement for a visa — Right of entry                          its territory without being in possession of a valid identity card
for spouses not in possession of identity documents or a                          or passport or, if necessary, a visa, where he is able to prove his
visa — Right of residence for spouses who have entered                            identity and the conjugal ties and there is no evidence to
unlawfully — Right of residence for spouses who have                              establish that he represents a risk to the requirements of public
entered lawfully but whose visa has expired when they apply                       policy, public security or public health within the meaning of
for a residence permit — Directives 64/221/EEC, 68/360/                           Article 10 of Directive 68/360 and Article 8 of Directive 73/
   EEC and 73/148/EEC and Regulation (EC) No 2317/95)                             148.
                          (2002/C 233/04)
                                                                            2.    On a proper construction of Article 4 of Directive 68/360 and
                                                                                  Article 6 of Directive 73/148, a Member State is not permitted
                    (Language of the case: French)                                to refuse issue of a residence permit and to issue an expulsion
                                                                                  order against a third country national who is able to furnish
                                                                                  proof of his identity and of his marriage to a national of a
(Provisional translation; the definitive translation will be published            Member State on the sole ground that he has entered the
                   in the European Court Reports)                                 territory of the Member State concerned unlawfully.
                                                                            3.    On a proper construction of Articles 3 and 4(3) of Directive
In Case C-459/99: Reference to the Court under Article 234
                                                                                  68/360, Articles 3 and 6 of Directive 73/148 and Article 3(3)
EC by the Conseil d’État (Belgium) for a preliminary ruling in
the proceedings pending before that court between Mouve-                          of Council Directive 64/221/EEC of 25 February 1964 on the
                                                                                  coordination of special measures concerning the movement and
ment contre le racisme, l’antisémitisme et la xénophobie ASBL
(MRAX) and État belge, on the interpretation of Articles 1(2),                    residence of foreign nationals which are justified on grounds of
                                                                                  public policy, public security or public health, a Member State
3(3) and 9(2) of Council Directive 64/221/EEC of 25 February
                                                                                  may neither refuse to issue a residence permit to a third country
1964 on the coordination of special measures concerning the
movement and residence of foreign nationals which are                             national who is married to a national of a Member State and
                                                                                  entered the territory of that Member State lawfully, nor issue
justified on grounds of public policy, public security or public
                                                                                  an order expelling him from the territory, on the sole ground
health (OJ, English Special Edition 1963-1964, p. 117),
                                                                                  that his visa expired before he applied for a residence permit.
Articles 3 and 4 of Council Directive 68/360/EEC of 15 Octo-
ber 1968 on the abolition of restrictions on movement and
residence within the Community for workers of Member States
and their families (OJ, English Special Edition 1968 (II), p. 485),         4.    On a proper construction of Articles 1(2) and 9(2) of Directive
Articles 3 and 6 of Council Directive 73/148/EEC of 21 May                        64/221, a foreign national married to a national of a Member
1973 on the abolition of restrictions on movement and                             State has the right to refer to the competent authority envisaged
residence within the Community for nationals of Member                            in Article 9(1) of that directive a decision refusing to issue a
States with regard to establishment and the provision of                          first residence permit or ordering his expulsion before the issue
services (OJ 1973 L 172, p. 14) and Council Regulation (EC)                       of the permit, including where he is not in possession of an
No 2317/95 of 25 September 1995 determining the third                             identity document or where, requiring a visa, he has entered the
countries whose nationals must be in possession of visas when                     territory of a Member State without one or has remained there
crossing the external borders of the Member States (OJ 1995                       after its expiry.
L 234, p. 1), the Court, composed of: G.C. Rodríguez
Iglesias, President, N. Colneric and S. von Bahr (Presidents of
Chambers), C. Gulmann, D.A.O. Edward, J.-P. Puissochet,
M. Wathelet, R. Schintgen and J.N. Cunha Rodrigues (Rappor-
teur), Judges; C. Stix-Hackl, Advocate General; H.A. Rühl,                  (1 ) OJ C 47 of 19.2.2000.
Principal Administrator, for the Registrar, has given a judgment
on 25 July 2002, in which it has ruled:
1.    On a proper construction of Article 3 of Council Directive 68/
      360/EEC of 15 October 1968 on the abolition of restrictions