Concetta Sagulo, Gennaro Brenca and Addelmadjid Bakhouche.
Date: 1977-07-14
8 THE QUESTIONS PUT TO THE COURT MUST THEREFORE BE ANSWERED AS FOLLOWS : THE ISSUE OF THE SPECIAL RESIDENCE DOCUMENT PROVIDED FOR IN ARTICLE 4 OF COUNCIL DIRECTIVE NO 68/360 HAS ONLY A DECLARATORY EFFECT AND FOR ALIENS TO WHOM ARTICLE 48 OF THE TREATY OR PARALLEL PROVISIONS GIVE RIGHTS , IT CANNOT BE ASSIMILATED TO A RESIDENCE PERMIT SUCH AS IS PRESCRIBED FOR ALIENS IN GENERAL AND IN CONNEXION WITH THE ISSUE OF WHICH THE NATIONAL AUTHORITIES HAVE A DISCRETION . A MEMBER STATE MAY NOT REQUIRE FROM A PERSON ENJOYING THE PROTECTION OF COMMUNITY LAW THAT HE SHOULD POSSESS A GENERAL RESIDENCE PERMIT INSTEAD OF THE DOCUMENT PROVIDED FOR IN ARTICLE 4 ( 2 ) OF DIRECTIVE NO 68/360 IN CONJUNCTION WITH THE ANNEX THERETO NOR MAY IT IMPOSE PENALTIES FOR THE FAILURE TO POSSESS SUCH A PERMIT . THE FORCE OF RES JUDICATA ARISING FROM A PRIOR CONVICTION ARRIVED AT ON THE BASIS OF NATIONAL PROVISIONS NOT IN ACCORDANCE WITH THE REQUIREMENTS OF COMMUNITY LAW CANNOT JUSTIFY AN INCREASE IN THE PENALTIES TO BE IMPOSED FOR AN INFRINGEMENT OF THE PROVISIONS WHICH A MEMBER STATE HAS ADOPTED TO SECURE THE APPLICATION OF DIRECTIVE NO 68/360 IN ITS TERRITORY .
11 THE FIRST PARAGRAPH OF ARTICLE 7 OF THE EEC TREATY STATES : ' WITHIN THE SCOPE OF APPLICATION OF THIS TREATY , AND WITHOUT PREJUDICE TO ANY SPECIAL PROVISIONS CONTAINED THEREIN , ANY DISCRIMINATION ON GROUNDS OF NATIONALITY SHALL BE PROHIBITED ' . WITH REGARD TO THE QUESTION PUT BY THE COURT MAKING THE REFERENCE IT SHOULD BE POINTED OUT THAT THE GENERAL PRINCIPLE OF ARTICLE 7 CAN ONLY APPLY SUBJECT TO THE SPECIAL PROVISIONS OF THE TREATY . THESE SPECIAL PROVISIONS INCLUDE THE REGULATIONS AND DIRECTIVES , INCLUDING AMONG THESE DIRECTIVE NO 68/360 , PROVIDED FOR IN ARTICLE 49 TO BRING ABOUT , BY PROGRESSIVE STAGES , FREEDOM OF MOVEMENT . IN SO FAR AS THIS DIRECTIVE IMPOSES SPECIAL OBLIGATIONS ( SUCH AS THE POSSESSION OF A PASSPORT OR AN IDENTITY CARD ) ON THE NATIONALS OF A MEMBER STATE WHO ENTER THE TERRITORY OF ANOTHER MEMBER STATE OR RESIDE THERE , THE PERSONS AFFECTED THEREBY CANNOT BE SIMPLY PUT ON THE SAME FOOTING AS NATIONALS OF THE COUNTRY OF RESIDENCE .
12 THERE IS THEREFORE NO OBJECTION TO SUCH PERSONS BEING SUBJECT TO DIFFERENT PENAL PROVISIONS FROM THOSE APPLYING TO NATIONALS WHO INFRINGE AN OBLIGATION , POSSIBLY HAVING ITS ORIGIN IN A LAW OR REGULATION , TO OBTAIN CERTAIN IDENTITY DOCUMENTS . THIS CONCLUSION FOLLOWS ALL THE MORE FORCIBLY IN THAT SEVERAL MEMBER STATES DO NOT IMPOSE ANY SUCH OBLIGATION BY LAW ON THEIR OWN NATIONALS SO THAT IN THESE COUNTRIES THERE WOULD BE NO STANDARD OF COMPARISON . IN THE ABSENCE OF A CRITERION WHICH IN THE PRESENT CASE MIGHT BE BASED ON THE PRINCIPLE OF NATIONAL TREATMENT CONTAINED IN ARTICLE 7 OF THE TREATY IT IS NEVERTHELESS TO BE OBSERVED THAT ALTHOUGH MEMBER STATES ARE ENTITLED TO IMPOSE REASONABLE PENALTIES FOR INFRINGEMENT BY PERSONS SUBJECT TO COMMUNITY LAW OF THE OBLIGATION TO OBTAIN A VALID IDENTITY CARD OR PASSPORT , SUCH PENALTIES SHOULD BY NO MEANS BE SO SEVERE AS TO CAUSE AN OBSTACLE TO THE FREEDOM OF ENTRY AND RESIDENCE PROVIDED FOR IN THE TREATY . TO THIS EXTENT IT CANNOT BE RULED OUT THAT THE PENALTIES PRESCRIBED IN GENERAL PROVISIONS OF LAWS RELATING TO ALIENS , HAVING REGARD TO THE OBJECTIVE OF SUCH PROVISIONS , ARE NOT COMPATIBLE WITH THE REQUIREMENTS OF COMMUNITY LAW WHICH IS BASED ON THE FREEDOM OF MOVEMENT OF PERSONS AND , APART FROM CERTAIN EXCEPTIONS , ON THE GENERAL APPLICATION OF THE PRINCIPLE OF EQUAL TREATMENT WITH NATIONALS . IF A MEMBER STATE HAS NOT ADAPTED ITS LEGAL PROVISIONS TO THE REQUIREMENTS OF COMMUNITY LAW IN THIS SPHERE IT IS THE TASK FOR THE NATIONAL COURT TO USE ITS JUDICIAL DISCRETION TO IMPOSE A PUNISHMENT APPROPRIATE TO THE CHARACTER AND OBJECTIVE OF THE PROVISIONS OF COMMUNITY LAW THE OBSERVANCE OF WHICH THE PENALTY IS INTENDED TO SAFEGUARD .
13 THE ANSWER TO THE QUESTION RAISED MUST THEREFORE BE THAT IT IS FOR THE COMPETENT AUTHORITIES OF EACH MEMBER STATE TO IMPOSE PENALTIES WHERE APPROPRIATE ON A PERSON SUBJECT TO THE PROVISIONS OF COMMUNITY LAW WHO HAS FAILED TO PROVIDE HIMSELF WITH ONE OF THE DOCUMENTS OF IDENTITY REFERRED TO IN ARTICLE 3 ( 1 ) OF DIRECTIVE NO 68/360 BUT THAT THE PENALTIES IMPOSED MUST NOT BE DISPROPORTIONATE TO THE NATURE OF THE OFFENCE COMMITTED .