CELEX: 62001CJ0482
Language: en
Date: 2004-04-29
Title: Judgment of the Court (Fifth Chamber) of 29 April 2004. # 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.

Joined Cases C-482/01 and C-493/01
      Georgios Orfanopoulos and Others
      and
      Raffaele Oliveri
      v
      Land Baden-Württemberg
      (Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart)
      (Freedom of movement for 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)
      
      Summary of the Judgment
      1.        Freedom of movement for persons – Freedom to provide services – Citizenship of the European Union – Right to move and reside
            freely in the territory of the Member States – Reference for a preliminary ruling concerning the compatibility with Community
            law of national legislation requiring, in certain circumstances, the expulsion of nationals of other Member States – No information
            enabling the Court to establish the relevant Community provisions – For the national court to determine
      (Arts 18 EC, 39 EC, 43 EC, 46 EC, 49 EC, 55 EC and 234 EC; Council Directive 90/364)
      2.        Freedom of movement for persons – Derogations – Grounds of public policy – Particular sentences for specific offences – Mandatory
            expulsion of a Community national without taking account of his personal conduct – Not permissible
      (Council Directive 64/221, Art. 3) 
      3.        Freedom of movement for persons – Derogations – Grounds of public policy – Expulsion of a Community national – National legislation
            not allowing circumstances arising between the administrative decision and the review by a court of the lawfulness of that
            decision to be taken into account – Not permissible 
      (Council Directive 64/221, Art. 3) 
      4.        Freedom of movement for persons – Derogations – Grounds of public policy – Particular sentences for specific offences – Expulsion
            of a Community national on the basis of a presumption and without proper account being taken of his personal conduct or of
            the danger for the requirements of public policy – Not permissible – Expulsion of a Community national who is a present threat
            to public policy – Person concerned able to plead family circumstances – Whether permissible – Conditions – Assessment on
            a case-by-case basis in compliance with the general principles of Community law, in particular fundamental rights, such as
            the protection of family life 
      (Art. 39(3) EC; European Convention on Human Rights, Art. 8; Council Directive 64/221, Art. 3)
      5.        Freedom of movement for persons – Derogations – Decisions in the policing of foreigners – Expulsion decision – Judicial guarantees
            – National legislation providing neither a complaints procedure nor an appeal comprising also an examination of expediency
            – Not permissible 
      (Council Directive 64/221, Art. 9(1)) 
      1.        As Community law stands at present, the right of nationals of a Member State to travel to and reside in another Member State
         is not unconditional. That follows, first, from the provisions on the free movement of persons and services contained in Title
         III of Part Three of the Treaty, namely Articles 39 EC, 43 EC, 46 EC, 49 EC and 55 EC, and the secondary legislation adopted
         to give them effect and, second, from the provisions of Part Two of the Treaty, more specifically Article 18 EC, which, while
         granting citizens of the Union the right to move and reside freely within the Member States, expressly refers to the limitations
         and conditions laid down in the Treaty and by the measures adopted to give it effect. 
      
      Where, in proceedings under Article 234 EC, the Court is asked about the compatibility with Community law of a national provision
         which requires the competent authorities to expel nationals of other Member States who have received certain sentences for
         specific offences and the information available to the Court does not enable it to establish with certainty whether the national
         concerned may rely on the provisions of Article 39 EC or on other provisions of the Treaty and of secondary legislation on
         the freedom of movement for persons or the freedom to provide services, whereas it is common ground that, as a citizen of
         the Union, the person concerned enjoys, under Article 18 EC, the right to move and reside freely within the territory of the
         Member States, subject to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect,
         it is for the national court to determine the provisions of Community law, if any, other than Article 18(1) EC, on which the
         person concerned may rely.
      
      In that regard, it is, in particular, for the national court to establish whether the person concerned comes within the scope
         of Article 39 EC, either as a worker, or as a person otherwise entitled, under the provisions of the secondary legislation
         adopted to give effect to that article, to freedom of movement, or whether he may rely on other provisions of Community law,
         such as Directive 90/364 on the right of residence or Article 49 EC, which applies particularly to recipients of services.
      
      (see paras 47, 52-54, operative part 1)
      2.        Article 3 of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals
         which are justified on grounds of public policy, public security or public health, which provides that the measures in question
         must be based exclusively on the personal conduct of the individual subjected to them and that previous criminal convictions
         cannot in themselves be grounds for these measures, precludes national legislation which requires national authorities to
         expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years or
         to a custodial sentence for an intentional offence against the German Law on narcotics, where the sentence has not been suspended.
      
      (see para. 71, operative part 2)
      3.        Article 3 of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals
         which are justified on grounds of public policy, public security or public health, which provides that the measures in question
         must be based exclusively on the personal conduct of the individual subjected to them and that previous criminal convictions
         cannot in themselves be grounds for these measures, precludes a national practice whereby the national courts may not take
         into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which
         occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution
         of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. That is
         so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision
         by the competent court. 
      
      (see para. 82, operative part 3)
      4.        Articles 39 EC and 3 of Directive 64/221 on the coordination of special measures concerning the movement and residence of
         foreign nationals which are justified on grounds of public policy, public security or public health, which provides that the
         measures in question must be based exclusively on the personal conduct of the individual subjected to them and that previous
         criminal convictions cannot in themselves be grounds for these measures, preclude national legislation and practices whereby
         a national of another Member State who has received a particular sentence for specific offences is ordered to be expelled,
         in spite of family considerations being taken into account, on the basis of a presumption that that person must be expelled,
         without proper account being taken of his personal conduct or of the danger which he represents for the requirements of public
         policy.
      
      On the other hand, Article 39 EC and Directive 64/221 do not preclude the expulsion of a national of another Member State
         who has received a particular sentence for specific offences and who, on the one hand, constitutes a present threat to the
         requirements of public policy and, on the other hand, has resided for many years in the host Member State and can plead family
         circumstances against that expulsion, provided that the assessment made on a case-by-case basis by the national authorities
         of where the fair balance lies between the legitimate interests at issue is made in compliance with the general principles
         of Community law and, in particular, by taking proper account of respect for fundamental rights, such as the protection of
         family life.
      
      (see para. 100, operative part 4-5)
      5.        Article 9(1) of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign
         nationals which are justified on grounds of public policy, public security or public health, the object of which is to ensure
         a minimum procedural safeguard for persons affected by a decision ordering their expulsion from the territory, precludes a
         provision of a Member State which provides neither a complaints procedure nor an appeal, comprising also an examination of
         expediency, against a decision to expel a national of another Member State taken by an administrative authority, where no
         authority independent of that administration has been put in place.
      
      Where it is not disputed that the review of the expulsion decisions in question is by administrative courts in judicial proceedings,
         but doubt persists as to the extent of that review, it is for the national court to establish whether the courts with jurisdiction
         in such matters are able to consider the expediency of expulsion orders.
      
      (see paras 105, 107, 112, 116, operative part 6)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Fifth Chamber)29 April 2004(1)
         
         
               (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)
               
               
             In Joined Cases C-482/01 and C-493/01,
             REFERENCE to the Court under Article 234 EC by the Verwaltungsgericht Stuttgart (Germany) for a preliminary ruling in the
            proceedings pending before that court between
            
            
            
            Georgios Orfanopoulos, Natascha Orfanopoulos,Melina Orfanopoulos,Sofia Orfanopoulos
            
            and
            
            Land Baden-Württemberg (C-482/01),and between
            
            
            
            
            
            Raffaele Oliveri
            
            and
            
            Land Baden-Württemberg (C-493/01),
            
            
             on the interpretation of Article 39(3) EC and Article 9(1) of Council Directive 64/221/EEC of 25 February 1964 on the coordination
            of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy,
            public security or public health (OJ, English Special Edition, 1963-1964, p. 117) (C-482/01), and of Article 39 EC and Article
            3 of the same directive (C-493/01), 
            
            THE COURT (Fifth Chamber),,
            
             composed of: A. Rosas (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges,
            
             Advocate General: C. Stix-Hackl, Registrar: M.-F. Contet, Principal Administrator,
            
            
            after considering the written observations submitted on behalf of:
               
               –
                Mr Orfanopoulos and Others, by R. Gutmann, Rechtsanwalt, 
               
               –
                Land Baden-Württemberg, by K.-H. Neher, Leitender Regierungsdirektor,   
               
               –
                the German Government, by W.-D. Plessing and B. Muttelsee-Schön, acting as Agents,
               
               –
                the Italian Government, by I.M. Braguglia, acting as Agent, and M. Fiorilli, avvocato dello Stato,
               
               –
                the Commission of the European Communities, by C. O'Reilly, D. Martin and W. Bogensberger, acting as Agents,
               
               
            
            
            
            
            after hearing the oral observations of Mr Orfanopoulos and Others, and Mr Oliveri, represented by R. Gutmann, and of the Commission,
               represented by W. Bogensberger, at the hearing on 12 June 2003,
            
            
            after hearing the Opinion of the Advocate General at the sitting on 11 September 2003,
         gives the following
         
         
         Judgment
         1
            
          By orders of 20 November and 4 December 2001, received at the Court on 13 December 2001 (Case C-482/01) and 19 December 2001
         (Case C-493/01) respectively, the Verwaltungsgericht (Administrative Court) Stuttgart referred to the Court for a preliminary
         ruling under Article 234 EC two questions in each case on the interpretation of Article 39(3) EC and Article 9(1) of Council
         Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of
         foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition,
         1963-1964, p. 117) (C‑482/01), and of Article 39 EC and Article 3 of the same directive (C‑493/01).
         
         
         
         2
            
          Those questions were raised in the course of two actions, one between Mr Orfanopoulos, a Greek national, and his children
         and Land Baden-Württemberg (Case C-482/01) and the other between Mr Oliveri, an Italian national, and that same authority
         (Case C-493/01), regarding the decisions of expulsion from German territory taken by the Regierungspräsidium (regional administration)
         Stuttgart (hereinafter ‘the Regierungspräsidium’).
         
         
         
         3
            
          By order of 30 April 2003, the President of the Fifth Chamber of the Court ordered, pursuant to Article 43 of the Rules of
         Procedure, the joinder of the two cases for the purposes of the oral procedure and the judgment.
         
         
            
               Legal framework
            Community legislation
         
         4
            
          Article 18(1) EC provides that every citizen of the Union has the right to move and reside freely within the territory of
         the Member States, subject to the limitations and conditions laid down in the EC Treaty and by the measures adopted to give
         it effect.
         
         
         
         5
            
          Under Article 39 EC:
         ‘1.     Freedom of movement for workers shall be secured within the Community.
         …
          3.       It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
         …
         
         (b)
            to move freely within the territory of Member States for this purpose;
         
         
         (c)
            to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals
               of that State laid down by law, regulation or administrative action; 
            
         
         
         (d)
            to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be
               embodied in implementing regulations to be drawn up by the Commission.
            
         
         ...’
         
         
         
         6
            
          Article 46(1) EC relating to freedom of establishment and applying in the field of freedom to provide services under Article
         55 EC states that ‘[t]he provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability
         of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals
         on grounds of public policy, public security or public health’.
         
         
         
         7
            
          Directive 64/221 applies, as provided in Article 1 thereof, to any national of a Member State who resides in or travels to
         another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as
         a recipient of services. The provisions of that directive apply also to the spouse and to members of the family of such a
         national in so far as they come within the provisions of the regulations and directives adopted in this field in pursuance
         of the Treaty.
         
         
         
         8
            
          According to Article 2 thereof, Directive 64/221 relates to all measures concerning, particularly, issue or renewal of residence
         permits, or expulsion from their territory, taken by Member States on grounds of public policy, public security or public
         health.
         
         
         
         9
            
          Article 3 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.
         …’
         
         
         
         10
            
          Under Article 8 of that directive:
         ‘The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue
         or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned
         in respect of acts of the administration.’
         
         
         
         11
            
          Under Article 9 of Directive 64/221: 
         ‘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.’
         
         
         
         12
            
          Under the first subparagraph of Article 1(1) of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ
         1990 L 180, p. 26), Member States are to grant the right of residence to nationals of Member States who do not enjoy this
         right under other provisions of Community law and to members of their families as defined in Article 1(2) of that directive,
         provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks
         in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance of the host Member
         State during their period of residence.
         
         
         
         13
            
          The third subparagraph of Article 2(2) of that directive provides that Member States may not derogate from the provisions
         thereof save on grounds of public policy, public security or public health. In that event, Directive 64/221 is to apply.
         
         International legislation
         
         14
            
          The European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter
         ‘the ECHR’), provides, in Article 8, for a right to respect for private and family life.
         
         National legislation
         
         15
            
          Paragraph 47(1)(2) of the Ausländergesetz (German Law on aliens, BGBl. 1990 I, p. 1354), in the version of 16 February 2001
         (BGBl. 2001 I, p. 266), provides that an alien is to be expelled if he has been finally sentenced, under the Betäubungsmittelgesetz
         (Law on narcotics) or for a breach of the public peace, to a term of youth custody of at least two years or to a term of imprisonment,
         and the sentence has not been suspended.
         
         
         
         16
            
          Paragraph 47(2)(1) of the Ausländergesetz lists the cases in which an alien must, as a rule, be the subject of an expulsion
         order.
         
         
         
         17
            
          Paragraph 47(3) of the Ausländergesetz provides that, as a rule, an alien entitled to special protection against expulsion
         under Paragraph 48(1) of that law is to be the subject of an expulsion order in the cases set out in Paragraph 47(1) of that
         law.
         
         
         
         18
            
          Paragraph 48(1)(4) of the Ausländergesetz provides for special protection from expulsion for aliens who live in a family relationship
         with a German national. The first sentence of that subparagraph states that such aliens may be expelled from the territory
         only on serious grounds of public security and public policy. Under the second sentence of that subparagraph, such grounds
         exist in the cases set out in Paragraph 47(1) of that law. 
         
         
         
         19
            
          According to the German Government’s observations, the Aufenthaltsgesetz/EWG (Law on the residence of nationals of the Member
         States of the European Community, BGBl. 1980 I, p. 116), in the version of 27 December 2000 (BGBl. 2000 I, p. 2042), applies,
         as a special law, to Community nationals and to their family members. Consequently, the Ausländergesetz applies to aliens
         who are entitled to freedom of movement under Community law only to the extent that Community law and the Aufenthaltsgesetz/EWG
         do not contain derogations.
         
         
         
         20
            
          Paragraph 12(1) and (3) of the Aufenthaltsgesetz/EWG provides:
         
         ‘(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 second 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 subparagraph 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.’
            
         
         
         
         
         21
            
          Under the first sentence of Paragraph 7(1) of the Ausländer- und Asylverfahrenzuständigkeitsverordnung (Regulation on jurisdiction
         over proceedings relating to aliens and asylum), 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.
         
         The main proceedings and the questions referred for a preliminary rulingCase C-482/01
         
         22
            
          Mr Orfanopoulos, a Greek national born in 1959, lived in Greece until he was 13. In 1972, he entered Germany to join his parents.
         He has remained there ever since, except for a period of two years during which he performed his military service in Greece.
         In August 1981, he married a German national. Three children, who are the other plaintiffs in the main action, were born of
         that marriage.
         
         
         
         23
            
          During his periods of residence in Germany, Mr Orfanopoulos was in possession of fixed‑period residence permits, the most
         recent of which was valid until 12 October 1999. In November 1999, he applied for an extension of his residence permit.
         
         
         
         24
            
          Mr Orfanopoulos has no professional training qualifications. Since 1981, he has pursued various activities as an employed
         person. The periods of employment in question have been interrupted by periods of prolonged unemployment.
         
         
         
         25
            
          It is clear from the order for reference that Mr Orfanopoulos is a drug addict. He has been convicted on nine occasions of
         offences against narcotics legislation and for committing acts of violence. In 1999, he was imprisoned for six months. In
         January 2000, he was hospitalised for detoxification and has also undergone, on two occasions, an attempt at cure in a specialised
         establishment. In both cases, he was discharged from the establishment in question for disciplinary reasons. He has been serving,
         since September 2000, a sentence of imprisonment imposed by the judgments against him.
         
         
         
         26
            
          Between 1992 and 1998, Mr Orfanopoulos received several warnings as to the possible consequences of his conduct under the
         law relating to aliens. In February 2001, the Regierungspräsidium ordered his expulsion and rejected his application for extension
         of his residence permit. It informed him that he would be deported on his release from prison.
         
         
         
         27
            
          The expulsion decision was based on the number and seriousness of the offences committed by Mr Orfanopoulos and by the real
         risk of him offending in future, by reason of his dependency on drugs and alcohol. According to the Regierungspräsidium, the
         statutory conditions for mandatory expulsion under Paragraph 47(1)(2) of the Ausländergesetz were satisfied. Although Mr Orfanopoulos
         was entitled, according to that authority, to special protection from expulsion provided for by Paragraph 48(1)(4) of the
         Ausländergesetz, the second sentence of that subparagraph provides that, in general, in the cases to which Paragraph 47(1)(2)
         of that law applies, there are serious grounds of public security and public policy. The result of Paragraph 47(3) of the
         Ausländergesetz is, however, to reduce the mandatory expulsion and transform it into expulsion as a general rule.
         
         
         
         28
            
          The Regierungspräsidium considered that, taking into account the personal circumstances of Mr Orfanopoulos, it was not appropriate
         to apply the derogating provisions and that, even if it should be held that the conditions for derogating were satisfied,
         he should be expelled. He has some knowledge of the Greek language. The general interest in public security and public policy
         are more important than his individual interest in continuing to reside in Germany. His expulsion is, therefore, an appropriate
         means to attain the intended purpose.
         
         
         
         29
            
          Since they considered that the expulsion decision taken by the Regierungspräsidium was based on provisions of the Ausländergesetz
         incompatible with Community law, Mr Orfanopoulos and his three children, on 21 March 2001, brought an action against that
         decision before the referring court.
         
         
         
         30
            
          In those circumstances, the Verwaltungsgericht Stuttgart decided to stay the proceedings and to refer the following questions
         to the Court for a preliminary ruling:
         
         ‘(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 (Law on narcotics), 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 … 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?’
            
         
         
         
         
         31
            
          By letter of 10 April 2002, counsel for Mr Orfanopoulos and his children informed the Court Registry that, by order of 28
         March 2002, the Landgericht  (Regional Court) Heilbronn (Germany) had ordered Mr Orfanopoulos to be released so long as he
         does not reoffend.
         
         Case C-493/01
         
         32
            
          Mr Oliveri, an Italian national, was born in Germany in 1977. He has resided there continuously since his birth. He did not
         obtain a certificate of completion of studies. 
         
         
         
         33
            
          It is clear from the order for reference that Mr Oliveri has been a drug addict for several years. Because of that drug addiction,
         he became infected with HIV and chronic hepatitis C. He did not present himself for a detoxification cure which should have
         started in May 1999.
         
         
         
         34
            
          Mr Oliveri has committed numerous offences and has already been the subject of criminal sanctions for thefts and illegal sale
         of narcotics. In November 1999, he was imprisoned. The sentence was subsequently suspended for a period of treatment in a
         hospital. Mr Oliveri, however, interrupted that treatment and the suspension was terminated. In April 2000, he was again arrested
         and has since then been imprisoned.
         
         
         
         35
            
          In May 1999, Mr Oliveri received a warning as to the possible consequences of his conduct under the German law relating to
         aliens. In August 2000, the Regierungspräsidium ordered his expulsion and threatened to deport him to Italy without fixing
         a time-limit for his voluntary departure. The expulsion decision was based on the frequency and seriousness of the offences
         committed by Mr Oliveri, and of the real risk of reoffending in the future because of his dependency on drugs. It stated that
         the fact that he twice failed to follow a detoxification cure shows that he is neither willing nor able successfully to complete
         such treatment. Mr Oliveri meets the requirements set out in Paragraph 47(1)(2) of the Ausländergesetz under which expulsion
         is mandatory. By contrast, he does not meet the requirements which give rise to the right of special protection such as that
         provided for by Paragraph 48(1) of that law.
         
         
         
         36
            
          According to the Regierungspräsidium, Mr Oliveri lived until his arrest with his parents but his criminal conduct shows that
         his links with them were already loose. The fact that he has become infected with HIV does not mean that he is completely
         dependent on his parents’ assistance. It is appropriate to assume that he has a basic knowledge of the Italian language. Expulsion
         is not disproportionate to the objective sought.
         
         
         
         37
            
          On 25 September 2000, Mr Oliveri brought an action before the Verwaltungsgericht Stuttgart against the Regierungspräsidium’s
         decision. He claims that there is no risk of reoffending because he has gained in maturity in the interval, as a result of
         the difficult life he led in prison. He wishes to undergo a detoxification cure.
         
         
         
         38
            
          The documents before the Court show that the medical service of the Hohenasperg (Germany) prison hospital states, by letter
         of 20 June 2001, that Mr Oliveri is very seriously ill and that he is likely soon to die of his illness. It is to be feared
         that he would not receive the appropriate and necessary medical care in Italy.
         
         
         
         39
            
          In those circumstances, the Verwaltungsgericht Stuttgart decided to stay the proceedings and to refer the following questions
         to the Court for a preliminary ruling:
         
         ‘(1)
            Do Article 39 EC and Article 3 of Council 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)
            Is Article 3 of Council Directive 64/221/EEC … to be interpreted as meaning that the making of a statement of facts 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?’
            
         
         
         Preliminary observations
         
         40
            
          There are, for both cases, three preliminary observations which must be made, on the description of the national legislation
         forming the background to the questions referred for a preliminary ruling, on the applicable Community legislation and on
         the order in which these two cases should be considered.
         
         
         
         41
            
          First of all, as regards the national legislation, the German Government has disputed the description of that legislation
         by the Verwaltungsgericht Stuttgart in the two orders for reference.
         
         
         
         42
            
          In that regard, is it sufficient to point out that it is not for the Court, in the context of a reference for a preliminary
         ruling, to rule on the interpretation of national provisions or to decide whether the referring court’s interpretation thereof
         is correct (see, to that effect, Case C-58/98 Corsten [2000] ECR I-7919, paragraph 24). The Court must take account, under the division of jurisdiction between the Community courts
         and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions
         put to it are set (see Case C-475/99 Ambulanz Glöckner [2001] ECR I-8089, paragraph 10, and Case C-153/02 Neri [2003] ECR I-0000, paragraphs 34 and 35).
         
         
         
         43
            
          The questions referred must, therefore, be considered within the legislative framework as described by the Verwaltungsgericht
         Stuttgart.
         
         
         
         44
            
          Moreover, even assuming that the framework of the national legislation, as set forth by the German Government, were correct,
         the questions referred by the Verwaltungsgericht Stuttgart would remain pertinent in view of the indications in the order
         for reference relating to the administrative practice which, according to that court, is followed by the competent authorities.
         
         
         
         45
            
          It is, in any event, for the referring court, before which the dispute has been brought and which must assume responsibility
         for the subsequent judicial decision, to check the soundness of its interpretation of the relevant national legislation and
         the correctness of the statements relating to that administrative practice.
         
         
         
         46
            
          Next, as regards the Community legislation, the national court starts from the premiss that Article 18 EC, on European citizenship,
         Article 39 EC, which establishes the principle of freedom of movement for workers, and Directive 64/221 apply in the circumstances
         of both sets of main proceedings. Mr Orfanopoulos’s and Mr Oliveri’s right to freedom of movement is said to arise directly
         from Article 18 EC. They also are said to come within the scope of Directive 64/221, given that they reside in Germany intending
         to pursue an activity there as employed persons.
         
         
         
         47
            
          In that regard, it must be noted that, as Community law stands at present, the right of nationals to travel to and reside
         in another Member State is not unconditional. That follows, first, from the provisions on the free movement of persons and
         services contained in Title III of Part Three of the Treaty, namely Articles 39 EC, 43 EC, 46 EC, 49 EC and 55 EC, and the
         secondary legislation adopted to give them effect and, second, from the provisions of Part Two of the Treaty, more specifically
         Article 18 EC, which, while granting citizens of the Union the right to move and reside freely within the Member States, expressly
         refers to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect (see, to that
         effect, Case C-356/98 Kaba I [2000] ECR I-2623, paragraph 30, and Case C-466/00 Kaba II [2003] ECR I‑2219, paragraph 46).
         
         
         
         48
            
          As regards the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect, it is important
         to note particularly the provisions of Directive 90/364 and the secondary legislation on migrant workers.
         
         
         
         49
            
          So far as concerns migrant workers who are nationals of a Member State, their right of residence is subject to the condition
         that the person remains a worker or, where relevant, a person seeking employment (see, to that effect, Case C-292/89 Antonissen [1991] ECR I-745, paragraph 22), unless they derive that right from other provisions of Community law (see Kaba II, cited above, paragraph 47). 
         
         
         
         50
            
          Moreover, in respect more particularly of prisoners who were employed before their imprisonment, the fact that the person
         concerned was not available on the employment market during such imprisonment does not mean, as a general rule, that he did
         not continue to be duly registered as belonging to the labour force of the host Member State during that period, provided
         that he actually finds another job within a reasonable time after his release (see, to that effect, Case C-340/97 Nazli [2000] ECR I-957, paragraph 40).
         
         
         
         51
            
          It is clear that Mr Orfanopoulos has made use of the right to freedom of movement for workers and has pursued several activities
         as an employed person in Germany. In those circumstances, it must be held that Article 39 EC and Directive 64/221 apply in
         circumstances such as those of the main proceedings in Case C-482/01.
         
         
         
         52
            
          As for Case C-493/01, it cannot be established with certainty from the information available to the Court whether Mr Oliveri
         can rely on the provisions of Article 39 EC or on other provisions of the Treaty and of secondary legislation on the freedom
         of movement for persons or the freedom to provide services.
         
         
         
         53
            
          On the other hand, it is common ground that, as a citizen of the Union, Mr Oliveri enjoys, under Article 18 EC, the right
         to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in
         the Treaty and by the measures adopted to give it effect.
         
         
         
         54
            
          In those circumstances, it is for the national court to determine the provisions of Community law, if any, other than Article
         18(1) EC, on which a national of a Member State such as Mr Oliveri may rely in the circumstances of the proceedings which
         gave rise to Case C-493/01. In that regard, it must, in particular, establish whether the person concerned comes within the
         scope of Article 39 EC, either as a worker, or as a person otherwise entitled, under the provisions of the secondary legislation
         adopted to give effect to that article, to freedom of movement, or whether he may rely on other provisions of Community law,
         such as Directive 90/364 or Article 49 EC, which applies particularly to recipients of services.
         
         
         
         55
            
          Directive 64/221 applies in all the situations mentioned in the above paragraph. As regards more particularly Directive 90/364,
         it is important to remember the provisions of Article 2(2) of that directive.
         
         
         
         56
            
          Lastly, as regards the order in which the two cases should be considered, the national court is asking the Court, in Case
         C-493/01, about the compatibility with Community law of a national provision which requires the competent authorities to expel
         nationals of other Member States who have received certain sentences for specific offences. Several interested parties, which
         have submitted written observations in Case C-482/01, consider that that question or, in any event, a similar question also
         arises in the latter case.
         
         
         
         57
            
          In those circumstances, it is appropriate to consider, first of all, Case C-493/01 and, then, Case C-482/01.
         
         The questions referred for a preliminary rulingCase C-493/01 First question
         
         – Scope of the question
         
         
         58
            
          By its first question, the national court is asking whether Article 39(3) EC and Article 3 of Directive 64/221 preclude national
         legislation which requires the competent authorities to expel nationals of other Member States who have been finally sentenced
         to a term of youth custody of at least two years or to a custodial sentence for an intentional offence against the Law on
         narcotics, where the sentence has not been suspended.
         
         
         
         59
            
          It is clear from the file, that, by its question, the national court is referring to Paragraph 47(1) of the Ausländergesetz
         (duty to expel), which is the legal basis of the decision to expel Mr Oliveri.
         
         
         – Observations submitted to the Court
         
         
         60
            
          The Italian Government and the Commission submit that Article 39(3) EC and Directive 64/221 preclude mandatory expulsion,
         since such expulsion does not allow for the exercise of any discretion.
         
         
         
         61
            
          According to the German Government, there is no procedure, under the national law in force, for automatic or summary expulsion.
         Checking that an expulsion order is proportionate is ensured by the combined application of Paragraphs 47(1)(2) and 48(1)(4)
         of the Ausländergesetz, and of Article 12 of the Aufenthaltsgesetz/EWG.
         
         
         – Reply of the Court
         
         
         62
            
          The principle of freedom of movement for workers, enshrined in Article 39 EC, forms one of the foundations of the Community
         (see, among others, Case 139/85 Kempf [1986] ECR I-1741, paragraph 13). It is established that a measure providing for expulsion of nationals of other Member States
         is an obstacle to the exercise of that freedom. None the less, such an obstacle may be justified, under Article 39(3) of Directive
         64/221, on grounds of public policy (see, to that effect, Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 28).
         
         
         
         63
            
          Here it is necessary to consider whether the obligation to expel nationals of other Member States who have received certain
         sentences for specific offences can be justified on grounds of public policy. 
         
         
         
         64
            
          In that regard, the Court has consistently held that the principle of freedom of movement for workers must be given a broad
         interpretation (see, to that effect, Antonissen, cited above, paragraph 11, and Case C‑344/95 Commission v Belgium [1997] ECR I‑1035, paragraph 14), whereas derogations from that principle must be interpreted strictly (see, to that effect,
         Case 41/74 Van Duyn [1974] ECR 1337, paragraph 18; Case 67/74 Bonsignore [1975] ECR 297, paragraph 6; Kempf, cited above, paragraph 13; and Case C-357/98 Yiadom [2000] ECR I-9265, paragraph 24).
         
         
         
         65
            
          It must be added that a particularly restrictive interpretation of the derogations from that freedom is required by virtue
         of a person’s status as a citizen of the Union. As the Court has held, that status is destined to be the fundamental status
         of nationals of the Member States (see, in particular, Case C-184/99 Grzelczyk [2001] ECR I‑6193, paragraph 31, and Case C‑138/02 Collins [2004] ECR I-0000, paragraph 61).
         
         
         
         66
            
          Concerning measures of public policy, it is clear from Article 3 of Directive 64/221 that, in order to be justified, they
         must be based exclusively on the personal conduct of the individual concerned. It is stated in the same provision that previous
         criminal convictions cannot in themselves justify those measures. As the Court has held, particularly in Case 30/77 Bouchereau [1977] ECR 1999, paragraph 35, the concept of public policy presupposes the existence, in addition to the perturbation of
         the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements
         of public policy affecting one of the fundamental interests of society.
         
         
         
         67
            
          While it is true that a Member State may consider that the use of drugs constitutes a danger for society such as to justify
         special measures against foreign nationals who contravene its laws on drugs, the public policy exception must, however, be
         interpreted restrictively, with the result that the existence of a previous criminal conviction can justify an expulsion only
         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 (see, in particular, Case C‑348/96 Calfa [1999] ECR I-11, paragraphs 22 to 24).
         
         
         
         68
            
          The Court has therefore concluded that Community law precludes the deportation of a national of a Member State based on reasons
         of a general preventive nature, that is one which has been ordered for the purpose of deterring other aliens (see, in particular,
         Bonsignore, cited above, paragraph 7), in particular where such measure automatically follows a criminal conviction, without any account
         being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of
         public policy (see Calfa, paragraph 27, and Nazli, paragraph 59). 
         
         
         
         69
            
          The question asked by the national court refers to national legislation which requires the expulsion of nationals of other
         Member States who have received certain sentences for specific offences.
         
         
         
         70
            
          It must be held that, in such circumstances, the expulsion automatically follows a criminal conviction, without any account
         being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of
         public policy.
         
         
         
         71
            
          In the light of the foregoing, the answer to the first question must be that, provided that it is confirmed that the applicant
         in the main proceedings comes within the scope of one of the provisions of Community law referred to in paragraph 54 of this
         judgment leading to the application of Directive 64/221, which it is for the national court to determine, those provisions
         and particularly Article 3 of that directive preclude national legislation which requires national authorities to expel nationals
         of other Member States who have been finally sentenced to a term of youth custody of at least two years or to a custodial
         sentence for an intentional offence against the Law on narcotics, where the sentence has not been suspended.
         
          Second question
         
         – Scope of the question
         
         
         72
            
          By its second question, the national court is asking, in essence, whether Article 3 of Directive 64/221 precludes a national
         practice whereby the courts of a Member State cannot take into consideration, in reviewing the lawfulness of the expulsion
         of a national of another Member State, factual matters and a positive development in that person which occurred after the
         final decision of the competent authorities.
         
         
         
         73
            
          The national court states that, under the settled case-law of the Bundesverwaltungsgericht (Federal Administrative Court,
         Germany), the national courts can and must base their decisions on evidence which has become available after the final decision
         taken by the administration only where such evidence supports the decision taken by the administration. That principle means,
         in the circumstances of the main proceedings, that Mr Oliveri’s argument in the course of these proceedings could not be taken
         into consideration, namely that he was suffering from AIDS and must expect to die in the near future.
         
         
         
         74
            
          Mr Oliveri also argued before the national authorities that there was no longer any risk of reoffending because he had gained
         in maturity as a result of the difficult life he led in prison.
         
         
         – Observations submitted to the Court
         
         
         75
            
          The Italian Government and the Commission suggest that the question should be answered in the affirmative. The Commission
         relies particularly on Case C-131/79 Santillo [1980] ECR 1585 from which it is clear that the court or authority concerned must at least take into account a positive development
         in the person concerned and, thus, of the lifting of the actual threat, if a lengthy period has elapsed between the date of
         the expulsion order and that of the review of that decision by the competent court.
         
         
         
         76
            
          The German Government argues the opposite. It submits that the lawfulness of an expulsion order can be reviewed only in the
         light of the factual circumstances and legal rules applying when the final decision is taken by the administration, given
         that the latter cannot take account, in its decision, of subsequent developments. It argues, however, that certain regulations
         enable new facts or the positive development of the person concerned since the date of the administration’s final decision
         to be taken into account, such as the taking into consideration of matters likely to present an obstacle to the expulsion
         at the time of its execution.
         
         
         – Reply of the Court
         
         
         77
            
          For the purposes of deciding whether a national of another Member State may be expelled under the exception based on reasons
         of public policy, the competent national authorities must assess, on a case-by-case basis, whether the measure or the circumstances
         which gave rise to that expulsion order prove the existence of personal conduct constituting a present threat to the requirements
         of public policy (see, in particular, Calfa, cited above, paragraph 22). As the Advocate General points out in point 126 of her Opinion, no more specific information
         as to what constitutes the ‘presence’ of the threat is evident from the wording of Article 3 of Directive 64/221 or the Court’s
         case-law.
         
         
         
         78
            
          It is not disputed that, in practice, circumstances may arise between the date of the expulsion order and that of its review
         by the competent court which point to the cessation or the substantial diminution of the threat which the conduct of the person
         ordered to be expelled constitutes to the requirements of public policy.
         
         
         
         79
            
          As is clear from paragraphs 64 and 65 of this judgment, derogations from the principle of freedom of movement for workers
         must be interpreted strictly, and thus the requirement of the existence of a present threat must, as a general rule, be satisfied
         at the time of the expulsion.
         
         
         
         80
            
          While 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, the fact remains that those rules must not be such as
         to render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, to that effect,
         Case 33/76 Rewe [1976] ECR 1989, paragraph 5, and Case C-129/00 Commission v Italy [2003] ECR I-0000, paragraph 25).
         
         
         
         81
            
          A national practice such as that described in the order for reference is liable to adversely affect the right to freedom of
         movement to which nationals of the Member States are entitled and particularly their right not to be subjected to expulsion
         measures save in the extreme cases provided for by Directive 64/221. That is especially so if a lengthy period has elapsed
         between the date of the decision to expel the person concerned and that of the review of that decision by the competent court.
         
         
         
         82
            
          In the light of the foregoing, the reply to the second question must be that Article 3 of Directive 64/221 precludes a national
         practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national
         of another Member State, factual matters which occurred after the final decision of the competent authorities which may point
         to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes
         to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion
         order and that of the review of that decision by the competent court.
         
         Case C-482/01 First question
         
         – Scope of the question
         
         
         83
            
          By its first question, the national court is asking whether the restriction on the freedom of movement of a foreign Community
         national with many years’ residence in the host Member State, imposed by invoking the derogation for public policy set out
         in Article 39(3) EC, is compatible with Community law where it can be expected, in view of his personal conduct, that he will
         reoffend and where it cannot be expected of that national’s spouse and children that they live in his State of origin.
         
         
         
         84
            
          It is clear from the order for reference that Mr Orfanopoulos meets the requirements for mandatory expulsion as provided for
         by Paragraph 47(1) of the Ausländergesetz. None the less, since he lives in a family relationship with a German national,
         he is entitled to the special protection provided for by Paragraph 48(1) of that law. In those circumstances, the effect of
         Paragraph 47(3) of the Ausländergesetz is to transform the mandatory expulsion into expulsion as a general rule.
         
         
         
         85
            
          The national court does not question the compatibility, with Community law, of the legal basis of the expulsion order against
         Mr Orfanopoulos. Indeed, it makes clear that the competent administrative authority, after considering the circumstances of
         the case and particularly the danger to society represented by the person concerned, reached the conclusion that it was not
         appropriate to disregard the presumption established by Paragraph 47(1)(2) of the Ausländergesetz. The national court is asking
         rather whether, in view of Mr Orfanopoulos’s long residence in Germany, of the particular importance of the principle of the
         freedom of movement in Community law and of the protection of family life, his expulsion is compatible with the general principles
         of Community law, particularly with the principle of proportionality. Several interested parties which have submitted written
         observations none the less question the compatibility of that legal basis with Community law.
         
         
         – Observations submitted to the Court
         
         
         86
            
          Mr Orfanopoulos and his children, the Italian Government and the Commission submit that it is necessary to ascertain, at the
         outset, whether a national provision which provides for expulsion as a general rule in respect of nationals of other Member
         States who have been sentenced to certain penalties for specific offences is compatible with Community law. They submit that
         such is not the case.
         
         
         
         87
            
          The German Government points to some omissions in the description of the national legislation contained in the order for reference
         and argues that the question referred is irrelevant given that, according to the national law in force, there is no procedure
         for automatic or summary expulsion. Moreover, it points out that it is not for the Court to review, on a reference for a preliminary
         ruling, the lawfulness or the proportionality of a national measure. The Land Baden-Württemberg supports the latter position.
         
         
         
         88
            
          In relation to the question referred by the national court, Mr Orfanopoulos and his children, the Italian Government and the
         Commission submit that the derogations from the principle of freedom of movement provided for by Community law must be determined
         in compliance with the right to the protection of family life. The national legislation in question can apply the exception
         on grounds of public policy, laid down in Article 39(3) EC and specified by Directive 64/221, only if that legislation complies
         with the fundamental rights whose observance the Court guarantees. 
         
         
         
         89
            
          Those principles are not disputed by the German Government. It maintains, nevertheless, that the applicable national law has
         taken sufficient account of the requirements arising from the principle of proportionality and of the specific importance
         of the freedom of movement for persons in Community law, and of the fundamental rights relating thereto, such as respect for
         family life.
         
         
         – Reply of the Court
         
         
         90
            
          Although the question referred starts from the premiss that in the main proceedings account was taken of the personal conduct
         of the person subject to the expulsion order, it is appropriate to consider at the outset, as suggested by several interested
         parties which submitted observations, the question whether Article 39 EC and Directive 64/221 preclude national legislation
         which provides for expulsion as a general rule in respect of nationals of other Member States who have received certain sentences
         for specific offences and who are entitled to special protection on the ground that they live in a family relationship with
         a German national.
         
         
         
         91
            
          As is clear from paragraph 71 of this judgment, Article 39 EC and Article 3 of Directive 64/221 preclude national legislation
         which requires national authorities to order the expulsion of nationals of other Member States who have been sentenced to
         a term of youth custody of at least two years or to a custodial sentence for an intentional offence against the German Law
         on narcotics, where the sentence has not been suspended.
         
         
         
         92
            
          In the present case, it seems, at first sight, that in spite of family circumstances being taken into account, the system
         of expulsion described in the order for reference contains an element of automatism or, in any event, a presumption that the
         person should be expelled. As is clear from the first sentence of Paragraph 48(1) of the Ausländergesetz, persons entitled
         to special protection may be expelled from the territory only on serious grounds of public security and public policy. However,
         such grounds exist, under the second sentence of that subparagraph, in the cases set out in Paragraph 47(1) of that law.
         
         
         
         93
            
          If the system in question does indeed have such an effect, that means that the expulsion of a national of another Member State
         who has received a particular sentence for specific offences is ordered, in spite of family considerations being taken into
         account, on the basis of a presumption that that national must be expelled, without proper account being taken of his personal
         conduct or of the danger he represents for the requirements of public policy.
         
         
         
         94
            
          It follows that such a system is contrary to Article 39 EC and Article 3 of Directive 64/221.
         
         
         
         95
            
          So far as the question referred by the national court is concerned, it must be pointed out that the examination on a case-by-case
         basis by the national authorities of whether there is personal conduct constituting a present threat to the requirements of
         public policy and, if necessary, of where lies the fair balance between the legitimate interests in issue must be made in
         compliance with the general principles of Community law.
         
         
         
         96
            
          It is for the competent national authority to take into account, in its assessment of where lies the fair balance between
         the legitimate interests in issue, the particular legal position of persons subject to Community law and of the fundamental
         nature of the principle of the free movement of persons (see, to that effect, Bouchereau, cited above, paragraph 30).
         
         
         
         97
            
          Moreover, it is necessary to take into account the fundamental rights whose observance the Court ensures. Reasons of public
         interest may be invoked to justify a national measure which is likely to obstruct the exercise of the freedom of movement
         for workers only if the measure in question takes account of such rights (see, to that effect, Case C-260/89 ERT [1991] ECR I-2925, paragraph 43; Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 24; and Case C‑60/00 Carpenter [2002] ECR I-6279, paragraph 40).
         
         
         
         98
            
          It must be noted, in that context, that the importance of ensuring the protection of the family life of Community nationals
         in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty has been recognised under
         Community law. It is clear that the removal of a person from the country where close members of his family are living may
         amount to an infringement of the right to respect for family life as guaranteed by Article 8 of the ECHR, which is among the
         fundamental rights, which, according to the Court’s settled case-law, are protected in Community law (see, Carpenter, cited above, paragraph 41).
         
         
         
         99
            
          Finally, the necessity of observing the principle of proportionality must be emphasised. To assess whether the interference
         envisaged is proportionate to the legitimate aim pursued, in this instance the protection of public policy, account must be
         taken, particularly, of the nature and seriousness of the offences committed by the person concerned, the length of his residence
         in the host Member State, the period which has elapsed since the commission of the offence, the family circumstances of the
         person concerned and the seriousness of the difficulties which the spouse and any of their children risk facing in the country
         of origin of the person concerned (see, as regards Article 8 of the ECHR, Boultif v Switzerland (54273/00) [2001] ECHR 493, paragraph 48).
         
         
         
         100
            
          Having regard to the foregoing considerations, the answer to the first question and to the preliminary point raised therein
         is:
         
         
         
          
         –
            Article 39 EC and Article 3 of Directive 64/221 preclude legislation and national practices whereby a national of another
               Member State who has received a particular sentence for specific offences is ordered to be expelled, in spite of family considerations
               being taken into account, on the basis of a presumption that that person must be expelled, without proper account being taken
               of his personal conduct or of the danger which he represents for the requirements of public policy;
            
         
         
         
         
          
         –
            However, Article 39 EC and Directive 64/221 do not preclude the expulsion of a national of another Member State who has received
               a particular sentence for specific offences and who, on the one hand, constitutes a present threat to the requirements of
               public policy and, on the other hand, has resided for many years in the host Member State and can plead family circumstances
               against that expulsion, provided that the assessment made on a case-by-case basis by the national authorities of where the
               fair balance lies between the legitimate interests at issue is made in compliance with the general principles of Community
               law and, in particular, by taking proper account of respect for fundamental rights, such as the protection of family life.
            
         
         
         
          The second question
         
         – Scope of the question
         
         
         101
            
          By its second question, the national court is asking, in essence, whether Article 9(1) of Directive 64/221 precludes legislation,
         such as that in force in the Land Baden-Württemberg, which does not provide, in relation to an expulsion decision by a Regierungspräsidium,
         for objection proceedings in which an examination of the expediency of that decision is also carried out, if a special body
         which is independent of that administrative authority has not been established.
         
         
         
         102
            
          It is clear from the order for reference and from the German Government’s observations that the lawfulness and expediency
         of an administrative act adversely affecting an individual are, as a general rule, reviewed in Germany by the administration
         in a pre-litigation procedure, before an action for annulment is commenced. However, according to the first sentence of Paragraph 68(1)
         of the Verwaltungsgerichtsordnung (Code of Administrative Proceedings), a decree, even a regional decree, may derogate from
         that principle. The Land Baden-Württemberg has made use of that possibility in adopting Paragraph 6a of the Ausführungsgesetz
         zur Verwaltungsgerichtsordnung (Law implementing the Code of Administrative Procedure). By virtue of that provision, which
         took effect on 1 July 1999, a pre-litigation procedure is excluded where an administrative act has been adopted by a Regierungspräsidium.
         
         
         – Observations submitted to the Court
         
         
         103
            
          Mr Orfanopoulos and his children, the Italian Government and the Commission propose that that question be answered in the
         affirmative. It is clear from the Court’s case-law that the provisions of Directive 64/221 must enable nationals of the Member
         States to obtain an exhaustive examination of all the facts and circumstances, including the expediency of the measure envisaged,
         before the expulsion decision is definitively adopted. 
         
         
         
         104
            
          The German Government maintains that Article 9(1) of Directive 64/221 does not preclude legislation such as that in force
         in the Land Baden-Württemberg, if it is guaranteed that the administration’s decision is subject to a detailed review of the
         relevant law within time-limits. It cites, in that regard, Shingara and Radiom, cited above. Protection from expulsion is ensured in that Land under the administrative procedure and its review is guaranteed
         in the context of judicial proceedings. The review carried out by the administrative courts covers, first, the question whether
         the substantive conditions for expulsion are met in law and in fact, including the question whether the competent administration
         has exceeded its discretionary powers, and, secondly, the merits.
         
         
         – Reply of the Court
         
         
         105
            
          The object of Article 9(1) of Directive 64/221 is to ensure a minimum procedural safeguard for persons affected by a decision
         ordering their expulsion from the territory. That article, which applies in three cases, namely where there is no right of
         appeal to a court of law, where such an appeal may be only in respect of the legal validity of the decision, or where the
         appeal cannot have suspensory effect, provides for the intervention of a competent authority other than that empowered to
         take the decision. Save in cases of urgency, the administrative authority may not take its decision until an opinion has been
         obtained from the other competent authority. The person concerned must enjoy such rights of defence before the latter authority
         and of assistance or representation as the domestic law of that country provides for (see, to that effect, Joined Cases C-297/88
         and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 62, and Yiadom, cited above, paragraphs 29 to 31).
         
         
         
         106
            
          It is clear from the Court’s case-law that the intervention on the part of the ‘competent authority’ mentioned in Article
         9(1) must make it possible for an exhaustive examination to be made of all the facts and circumstances, including the expediency
         of the measure in question, before the decision is definitively adopted (Santillo, cited above, paragraph 12, and Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 15). The Court has also stated that, save in urgent cases, the administrative authority may not
         take its decision until an opinion has been obtained from the competent authority (Case 98/79 Pecastaing [1980] ECR 691, paragraph 17, and Dzodzi, cited above, paragraph 62).
         
         
         
         107
            
          In this case, it is not disputed that the review of the expulsion decisions taken by the Regierungspräsidien is undertaken,
         in the Land Baden-Württemberg, by administrative courts in judicial proceedings.
         
         
         
         108
            
          The national court starts from the premiss that neither the complaints procedure nor the judicial proceedings against expulsion
         decisions involve, in that Land, an examination of the expediency of the expulsion decision in question. However, it admits
         to a certain doubt in respect of these actions.
         
         
         
         109
            
          First of all, the Court rejects the German Government’s argument that it is sufficient, in order to comply with the provisions
         of Article 9(1) of Directive 64/221, that the administrative authority’s decision is subject to a detailed substantive review
         within time-limits.
         
         
         
         110
            
          Such an interpretation does not permit persons affected by decisions ordering their expulsion the safeguard of an exhaustive
         examination of the expediency of the measure in question and does not meet the requirements of sufficiently effective protection
         (see, to that effect, Case 222/84 Johnston [1986] ECR 1651, paragraph 17, and Case 222/86 Heylens and Others [1987] ECR 4097, paragraphs 14 and 15). It would, indeed, be likely to deprive Article 9(1) of Directive 64/221 of its practical
         effect.
         
         
         
         111
            
          On the other hand, it would be different if the administrative authority’s decision were subject to a detailed review of its
         substance as well as an exhaustive examination of the expediency of the measure in question.
         
         
         
         112
            
          In view of the doubt left by the national court as to the extent of the review carried out by the competent courts, namely
         the Verwaltungsgerichte, it is for that court to establish whether those courts are able to consider the expediency of expulsion
         orders. 
         
         
         
         113
            
          Were it to be the case that, in the circumstances of the main proceedings, the actions brought to challenge the decision of
         expulsion relate only to its legal validity, it would be necessary to establish whether the requirement is met for the intervention
         of a competent authority other than that empowered to take the decision and, as the case may be, whether such intervention
         satisfies the conditions set out in paragraph 106 of this judgment.
         
         
         
         114
            
          Directive 64/221 does not define the expression ‘independent authority’. As is clear from paragraph 19 of the judgment in
         Santillo, cited above, the directive leaves a discretion to the Member States as regards the designation of the authority. Any public
         authority independent of the administrative authority called on to adopt any of the measures provided for by that directive
         may be regarded as such an authority; it must be organised in such a way that the person concerned has the right to be represented
         and to defend himself before it.
         
         
         
         115
            
          In this case, examination of the file has not enabled it to be established that, between the adoption of the decision in question
         by the Regierungspräsidium and the judicial review carried out afterwards by the administrative courts, an independent authority
         within the meaning of Article 9(1) of Directive 64/221 intervenes. Nor has that examination led to the conclusion that, in
         circumstances such as those which gave rise to the main proceedings, there was a case of urgency.
         
         
         
         116
            
          Having regard to the foregoing considerations, the answer to the second question must be that Article 9(1) of Directive 64/221
         precludes a provision of a Member State which provides neither a complaints procedure nor an appeal, comprising also an examination
         of expediency, against a decision to expel a national of another Member State taken by an administrative authority, where
         no authority independent of that administration has been put in place. It is for the national court to establish whether courts
         such as the Verwaltungsgerichte are able to examine the expediency of expulsion orders.
         
         
         Costs
         117
            
          The costs incurred by the German and Italian Governments and by the Commission, which have submitted observations to the Court,
         are not recoverable. Since these proceedings are, for the parties to the main action, a step in the proceedings pending before
         the national court, the decision on costs is a matter for that court.
         
         
         On those grounds,
         
         
         
            
            THE COURT (Fifth Chamber),
         
         
          in answer to the questions referred to it by the Verwaltungsgericht Stuttgart, by orders of 20 November and 4 December 2001,
         hereby rules:
         
            
            
             
               1.
                  It is for the national court to determine the provisions of Community law, if any, other than Article 18(1) EC, on which a
                     national of a Member State such as Mr Oliveri may rely in the circumstances of the proceedings which gave rise to Case C-493/01.
                     In that regard, it must, in particular, establish whether the person concerned comes within the scope of Article 39 EC, either
                     as a worker, or as a person otherwise entitled, under the provisions of the secondary legislation adopted to give effect to
                     that article, to freedom of movement, or whether he may rely on other provisions of Community law, such as Council Directive
                     90/364/EEC of 28 June 1990 on the right of residence or Article 49 EC, which applies particularly to recipients of services.
                  
               
            
            
            
             
               2.
                  Article 3 of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement
                     and residence of foreign nationals which are justified on grounds of public policy, public security or public health precludes
                     national legislation which requires national authorities to expel nationals of other Member States who have been finally sentenced
                     to a term of youth custody of at least two years or to a custodial sentence for an intentional offence against the Law on
                     narcotics, where the sentence has not been suspended.
                  
               
            
            
            
             
               3.
                  Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in
                     reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the
                     final decision of the competent authorities which may point to the cessation or the substantial diminution of the present
                     threat which the conduct of the person concerned constitutes to the requirements of public policy. That is so, above all,
                     if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent
                     court.
                  
               
            
            
            
             
               4.
                  Article 39 EC and Article 3 of Directive 64/221 preclude legislation and national practices whereby a national of another
                     Member State who has received a particular sentence for specific offences is ordered to be expelled, in spite of family considerations
                     being taken into account, on the basis of a presumption that that person must be expelled, without proper account being taken
                     of his personal conduct or of the danger which he represents for the requirements of public policy. 
                  
               
            
            
            
             
               5.
                  Article 39 EC and Directive 64/221 do not preclude the expulsion of a national of another Member State who has received a
                     particular sentence for specific offences and who, on the one hand, constitutes a present threat to the requirements of public
                     policy and, on the other hand, has resided for many years in the host Member State and can plead family circumstances against
                     that expulsion, provided that the assessment made on a case-by-case basis by the national authorities of where the fair balance
                     lies between the legitimate interests at issue is made in compliance with the general principles of Community law and, in
                     particular, by taking proper account of respect for fundamental rights, such as the protection of family life.
                  
               
            
            
            
             
               6.
                  Article 9(1) of Directive 64/221 precludes a provision of a Member State which provides neither a complaints procedure nor
                     an appeal, comprising also an examination of expediency, against a decision to expel a national of another Member State taken
                     by an administrative authority, where no authority independent of that administration has been put in place. It is for the
                     national court to establish whether courts such as the Verwaltungsgerichte are able to examine the expediency of expulsion
                     orders.
                  
               
            
            
                  Rosas
               
               
                  La Pergola
               
               
                  von Bahr
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 29 April 2004.
         
         
         
         
                  R. Grass
               
               
                  V. Skouris
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
            Language of the case: German.