Salah Oulane v Minister voor Vreemdelingenzaken en Integratie.
Date: 2005-02-17
16. It should be recalled, as a preliminary point, that the principle of freedom of movement of persons is one of the foundations of the Community. Accordingly, provisions enshrining that principle must be given a broad interpretation (see, inter alia, Case C-357/98 Yiadom  [2000] ECR I-9265, paragraph 24).
18. It follows that issuance of a residence permit to a national of a Member State is to be regarded not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of Community law (see, inter alia, Case C-138/02 Collins  [2004] ECR I-0000, paragraph 40).
25. If the person concerned is able to provide unequivocal proof of his nationality by means other than a valid identity card or passport, the host Member State may not refuse to recognise his right of residence on the sole ground that he has not presented one of those documents (see, to that effect, in the context of third-country nationals, Case C-459/99 MRAX  [2002] ECR I-6591, paragraph 62).
33. In the area of freedom to provide services, Article 49 EC is a specific expression of the principle of equal treatment provided for in Article 12 EC, which prohibits all discrimination on grounds of nationality (see Case C-3/88 Commission  v Italy  [1989] ECR 4035, paragraph 8, and Case C-388/01 Commission  v Italy  [2003] ECR I-721, paragraph 13).
34. Community law does not prevent a Member State from carrying out checks on compliance with the obligation to be able to produce proof of identity at all times, provided that it imposes the same obligation on its own nationals as regards their identity card (Case 321/87 Commission  v Belgium  [1989] ECR 997, paragraph 12; Case C-24/97 Commission  v Germany  [1998] ECR I-2133, paragraph 13).
37. It should be remembered at the outset that the principle of freedom to provide services laid down in Article 49 EC includes the freedom for recipients of services to go to another Member State in order to receive a service there, without being hindered by restrictions, and that tourists must be regarded as recipients of services (Case C-348/96 Calfa  [1999] ECR I-11, paragraph 16).
38. As the Court has held, the Member States may still impose penalties for breach of the requirement to present an identity card or passport, provided that the penalties are comparable to those which apply to similar national infringements and are proportionate (see, to that effect, Case C-378/97 Wijsenbeek  [1999] ECR I-6207, paragraph 44).
40. Moreover, detention and deportation based solely on the failure of the person concerned to comply with legal formalities concerning the monitoring of aliens impair the very substance of the right of residence directly conferred by Community law and are manifestly disproportionate to the seriousness of the infringement (Case 157/79 Pieck  [1980] ECR 2171, paragraphs 18 and 19; Case C-265/88 Messner  [1989] ECR 4209, paragraph 14; MRAX , paragraph 78).
41. A detention order can only be based on an express derogating provision, such as Article 8 of Directive 73/148, which allows Member States to place restrictions on the right of residence of nationals of other Member States in so far as such restrictions are justified on grounds of public policy, public security or public health (see, to that effect, Case C-388/01 Commission  v Italy , paragraph 19).
42. The questions referred are, however, based on the assumption that there was no genuine and serious threat to public policy. Failure to comply with legal formalities pertaining to aliens’ access, movement and residence does not by itself constitute a threat to public policy or security (see Royer , paragraph 47, and MRAX , paragraph 79).
47. It is for the Court to provide the national court with all the elements of interpretation of Community law which may enable it to rule on the case before it, whether or not reference is made thereto in the questions referred (see Case C-241/89 SARPP  [1990] ECR I-4695, paragraph 8, and Case C-456/02 Trojani  [2004] ECR I-0000, paragraph 38).
53. It should be borne in mind, first, that evidence of identity and nationality may be provided by other means (see paragraph 25 of this judgment) and, second, that where it is not specified which means of evidence are admissible for the person concerned to establish that he comes within one of the categories referred to in Articles 1 and 4 of Directive 73/148, it must be concluded that evidence may be adduced by any appropriate means (see, to that effect, Case C-363/89 Roux  [1991] ECR I‑273, paragraphs 15 and 16).
55. If a national of a Member State is not able to prove that the conditions for a right of residence as a recipient of services within the meaning of Directive 73/148 are fulfilled, the host Member State may undertake deportation subject to the limits imposed by Community law.