K. v Staatssecretaris van Veiligheid en Justitie and H.F. v Belgische Staat.
Date: 2018-05-02
40


In accordance with the Court’s settled case-law, while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must nevertheless be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (judgment of 22 May 2012, I., C‑348/09, EU:C:2012:300, paragraph 23 and the case-law cited; see, to that effect, judgment of 13 July 2017, E, C‑193/16, EU:C:2017:542, paragraph 18 and the case-law cited).
41


Accordingly, the concept of ‘public policy’, in Articles 27 and 28 of Directive 2004/38 has been interpreted in the Court’s case-law as meaning that recourse to that concept presupposes, in any event, the existence, in addition to the social disturbance which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (judgment of 24 June 2015, H.T., C‑373/13, EU:C:2015:413, paragraph 79 and the case-law cited).
42


As regards the concept of ‘public security’, it is clear from the Court’s case-law that this concept covers both the internal and external security of a Member State (judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 43). Internal security may be affected by, inter alia, a direct threat to the peace of mind and physical security of the population of the Member State concerned (see, to that effect, judgment of 22 May 2012, I., C‑348/09, EU:C:2012:300, paragraph 28). As regards external security, that may be affected by, inter alia, the risk of a serious disturbance to the foreign relations of that Member State or to the peaceful coexistence of nations (see, to that effect, judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 44).
50


It must be borne in mind in that regard that the grounds for exclusion from refugee status laid down in Article 1F of the Geneva Convention and in Article 12(2) of Directive 2011/95 were established with the aim of excluding from that status individuals judged to be undeserving of the protection which refugee status entails and of ensuring that the granting of that status does not enable the perpetrators of certain serious crimes to escape criminal liability, and consequently exclusion from refugee status is not dependent on the existence of a present danger to the host Member State (see, to that effect, judgment of 9 November 2010, B and D, C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 104).
52


Measures justified on grounds of public policy or public security may be taken only if, following a case-by-case assessment by the competent national authorities, it is shown that the personal conduct of the individual concerned currently constitutes a genuine and sufficiently serious threat to a fundamental interest of society (judgment of 8 December 2011, Ziebell, C‑371/08, EU:C:2011:809, paragraph 82 and the case-law cited; see also, to that effect, judgment of 29 April 2004, Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, EU:C:2004:262, paragraph 77).
56


Moreover, while, in general, the finding of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, within the meaning of the second subparagraph of Article 27(2) of Directive 2004/38, implies the existence in the individual concerned of a propensity to repeat the conduct constituting such a threat in the future, it is also possible that past conduct alone may constitute such a threat to the requirements of public policy (judgment of 27 October 1977, Bouchereau, 30/77, EU:C:1977:172, paragraph 29).
58


In that regard, the time that has elapsed since the assumed commission of those acts is, indeed, a relevant factor for the purposes of assessing whether there exists a threat such as that referred to in the second subparagraph of Article 27(2) of Directive 2004/38 (see, to that effect, judgment of 11 June 2015, Zh. and O., C‑554/13, EU:C:2015:377, paragraphs 60 to 62). However, the possible exceptional gravity of the acts in question may be such as to require, even after a relatively long period of time, that the genuine, present and sufficiently serious threat affecting one of the fundamental interests of society be classified as persistent.
61


It must further be stated that, as is apparent from Article 27(2) of that directive and the Court’s settled case-law, a measure which restricts the right of freedom of movement may be justified only if it complies with the principle of proportionality, which presupposes determining whether that measure is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it (see, to that effect, judgment of 17 November 2011, Gaydarov, C‑430/10, EU:C:2011:749, paragraph 40 and the case-law cited).
62


That assessment entails that the threat that the personal conduct of the individual concerned represents to the fundamental interests of the host society, on the one hand, must be weighed against the protection of the rights which Union citizens and their family members derive from Directive 2004/38, on the other (see, to that effect, judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 50 and the case-law cited).
63


In that assessment, account must be taken of the fundamental rights whose observance the Court ensures, in particular the right to respect for private and family life as enshrined in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 52 and the case-law cited).
64


As the Advocate General stated in point 112 of his Opinion, the host Member State is, in particular, required to determine, in that context, whether it was possible to adopt other measures less prejudicial to the freedom of movement and residence of the person concerned which would have been equally effective to ensure the protection of the fundamental interests invoked (see, to that effect, judgment of 17 November 2011, Aladzhov, C‑434/10, EU:C:2011:750, paragraph 47).
71


As regards the protection provided for in Article 28(3)(a) of Directive 2004/38, it must be recalled that that directive establishes a system of protection against expulsion measures which is based on the degree of integration of the persons concerned in the host Member State, so that the greater the degree of integration of Union citizens and their family members in that Member State, the greater the safeguards those persons may rely on against expulsion (see, to that effect, judgments of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 25, and of 17 April 2018, B and Vomero, C‑316/16 and C‑424/16, paragraph 44).
72


Article 28(3)(a) of Directive 2004/38, which provides that an expulsion decision may be taken against Union citizens who have resided in the host Member State for the previous 10 years only on ‘imperative grounds of public security’, is consistent with the general scheme of that legislation and significantly enhances the protection of the persons to whom that provision is applicable against expulsion measures that might be imposed on them (see, to that effect, judgment of 23 November 2010, Tsakouridis, C‑145/09, EU:C:2010:708, paragraph 28).
73


However, as the Court has held in its judgment of 17 April 2018, B and Vomero (C‑316/16 and C‑424/16, paragraph 61), Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that it is a prerequisite of eligibility for the protection against expulsion provided for in that provision that the person concerned must have a right of permanent residence, within the meaning of Article 16 and Article 28(2) of that directive. It is apparent from Article 16(1) of Directive 2004/38 that such a right can be acquired only if the person concerned has resided legally in the host Member State for a continuous period of five years in accordance with the conditions laid down by that directive, in particular those laid down in Article 7(1) thereof (see, to that effect, judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 46), or by an EU law instrument earlier than 30 April 2006, the date of expiry of the period for the transposition of Directive 2004/38 (see, to that effect, judgment of 7 October 2010, Lassal, C‑162/09, EU:C:2010:592, paragraphs 33 to 40).
74


A period of residence which complies with the law of a Member State but does not satisfy the conditions laid down in EU law cannot be regarded as a ‘legal’ period of residence, within the meaning of Article 16(1) of Directive 2004/38, with the result that a Union citizen who has been resident for more than five years in the territory of the host Member State on the sole basis of the national law of that Member State cannot be regarded as having acquired a right of permanent residence under that provision if, during that period of residence, he did not satisfy those conditions (see, to that effect, judgment of 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraphs 47 and 51).