Hristo Byankov v Glaven sekretar na Ministerstvo na vatreshnite raboti.
Date: 2012-10-04
30. In that regard, it should be noted at the outset that a situation like that of Mr Byankov, who is prevented from travelling from the Member State of which he is a national to another Member State, falls within the scope of the freedom to move and reside within the territory of the Member States which is conferred by the status of citizen of the Union (see, by analogy, Jipa , paragraph 17; Case C-430/10 Gaydarov [2011] ECR I-11637, paragraphs 24 to 27; and Case C-434/10 Aladzhov [2011] ECR I-11659, paragraphs 24 to 27).
31. It is clear from the Court’s case-law that that right of freedom of movement includes both the right for citizens of the Union to enter a Member State other than the one of origin and the right to leave the State of origin. As the Court has already had occasion to state, the fundamental freedoms guaranteed by the FEU Treaty would be rendered meaningless if the Member State of origin could, without due justification, prohibit its own nationals from leaving its territory in order to enter the territory of another Member State (see Jipa , paragraph 18 and case-law cited).
40. Moreover, it is apparent from the Court’s case-law that recourse to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (see, inter alia, Jipa , paragraph 23 and case-law cited, and Gaydarov , paragraph 33).
41. In that context, the derogations from the free movement of persons that are capable of being invoked by a Member State imply in particular, as is stated in Article 27(2) of Directive 2004/38, that, if measures taken on grounds of public policy or public security are to be justified, they must be based exclusively on the personal conduct of the individual concerned and that justifications that are isolated from the particulars of the case in question or that rely on considerations of general prevention cannot be accepted ( Jipa , paragraph 24, and Gaydarov , paragraph 34).
43. Furthermore, it is clear from Article 27(2) of Directive 2004/38 and from the Court’s settled case-law that a measure which restricts the right of freedom of movement may be justified only if — by being appropriate to ensure the achievement of the objective it pursues and not going beyond what is necessary to attain it — it respects the principle of proportionality (see, to that effect, inter alia, Jipa , paragraph 29, and Gaydarov , paragraph 40).
51. In the circumstances of this case, there is, however, no need to take a view on the reasoning set out on that point in the order for reference. It suffices to note only that, since the 2007 order became final without having been subject to judicial review, the judgment in Kühne & Heitz  is not directly relevant for the purposes of determining whether, in a situation such as that in issue in the main proceedings, an administrative body is under an obligation to reopen an administrative procedure with a view to annulling an administrative measure such as the 2007 order (see, by analogy, Joined Cases C-392/04 and C-422/04 i - 21 Germany and Arcor [2006] ECR I-8559, paragraphs 53 and 54).
53. Article 31 of Directive 2004/38 is intended in particular to ensure that citizens of the Union and members of their families have access to judicial and, where appropriate, administrative redress procedures to appeal against or seek review of any decision restricting their right to move and reside freely in the Member States.
57. In the context of the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. In that light, the Court may have to reformulate the questions referred to it (see, inter alia, Case C-334/95 Krüger  [1997] ECR I-4517, paragraphs 22 and 23, and Case C-243/09 Fuß [2010] ECR I-9849, paragraph 39 and case-law cited).
58. To that end, the Court may extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the legislation and the principles of EU law that require interpretation in view of the subject-matter of the dispute (see, to that effect, inter alia, Case 83/78 Redmond  [1978] ECR 2347, paragraph 26; Case C-56/01 Inizan  [2003] ECR I-12403, paragraph 34; and Fuß , paragraph 40).
62. Moreover, the relevant Bulgarian administrative bodies, which are subject to the obligation to respect the primacy of EU law (see, to that effect, inter alia, Case C-341/08 Petersen  [2010] ECR I-47, paragraph 80 and case-law cited), are no longer in a position, according to the referring court’s interpretation of the legislation at issue in the proceedings before it, to exercise their power to have Mr Byankov’s case reviewed in the light, in particular, of what has been held by the Court in Jipa , Gaydarov and Aladzhov . That power may be exercised only within a period of one month from the date on which the measure concerned was adopted.
63. However, according to the Court’s case-law, Article 21(1) TFEU confers on individuals rights which are enforceable by them and which the national courts must protect (see, to that effect, inter alia, Case C-413/99 Baumbast and R  [2002] ECR I-7091, paragraphs 84 to 86).
64. Furthermore, by virtue, in particular, of the principle of sincere cooperation enshrined in Article 4(3) TEU, all the authorities of the Member States, including the administrative and judicial bodies, must ensure the observance of the rules of EU law within the sphere of their competence (see, to that effect, Case C-91/08 Wall [2010] ECR I-2815, paragraph 69).
65. The issue in the present case is thus whether, in order to safeguard the rights which individuals derive from EU law, a national court hearing an action such as Mr Byankov’s may find, in view of Article 4(3) TEU (see, to that effect, Case C-432/05 Unibet  [2007] ECR I-2271, paragraph 38 and case-law cited), that it has to recognise the existence of an obligation on the part of the administrative authority to review and, if appropriate, annul a prohibition on leaving the territory such as that at issue before the referring court ( i - 21 Germany and Arcor , paragraphs 55 and 56).
69. It is settled case-law that, in the absence of relevant EU rules, it is, under the principle of procedural autonomy of the Member States, for the domestic legal system of each Member State to regulate the legal procedures designed to ensure the protection of the rights which individuals acquire under EU law (see Wall , paragraph 63), provided, however, that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the European Union legal order (principle of effectiveness) (see, inter alia, Case C-312/93 Peterbroeck  [1995] ECR I-4599, paragraph 12; i-21 Germany and Arcor , paragraph 57 and case-law cited; and Case C-378/10 VALE Építési  [2012] ECR, paragraph 48 and case-law cited).
70. With regard to the principle of equivalence, this requires that all the rules applicable to actions, including the prescribed time-limits, apply without distinction to actions based on infringement of EU law and those based on infringement of national law (see, inter alia, Case 63/08 Pontin  [2009] ECR I-10467, paragraph 45 and case-law cited, and Case C-591/10 Littlewoods Retail and Others  [2012] ECR, paragraph 31).
75. It is apparent from the Court’s case-law that situations in which the question arises as to whether a national procedural provision makes the exercise of rights conferred on individuals by the European Union legal order impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure as a whole and to the progress and special features of the procedure before the various national bodies (see, inter alia, Peterbroeck , paragraph 14; Case C-2/08 Fallimento Olimpiclub [2009] ECR I-7501, paragraph 27; and Case C-618/10 Banco Español de Crédito  [2012] ECR, paragraph 49).
76. In that regard, the Court has already acknowledged that finality of an administrative decision contributes to legal certainty, with the consequence that EU law does not require that an administrative body be, in principle, under an obligation to reopen an administrative decision which has become final (see, to that effect, Case C-2/06 Kempter  [2008] ECR I-411, paragraph 37).
77. The Court has none the less held, in essence, that particular circumstances may be capable, by virtue of the principle of sincere cooperation arising from Article 4(3) TEU, of requiring a national administrative body to review an administrative decision that has become final, in particular to take account of the interpretation of a relevant provision of European law which the Court has given subsequently (see Kempter , paragraph 38). It can be seen from the case-law that, in that context, the Court has taken account of the particular features of the situations and interests at issue in order to strike a balance between the requirement for legal certainty and the requirement for legality under EU law (see, to that effect, inter alia, Kühne & Heitz , paragraphs 25 and 26; i - 21 Germany and Arcor , paragraphs 53, 63 and 64; Kempter , paragraphs 46, 55 and 60; and Fallimento Olimpiclub , paragraphs 22, 26 and 31).
78. In the present case, it is necessary to consider more specifically whether, in situations such as that at issue in the main proceedings, national legislation such as that described in the order for reference may be justified in order to safeguard the principle of legal certainty, having regard to the consequences that follow from such legislation for the application of EU law and for citizens of the Union who are subject to prohibitions on leaving the territory such as the one in issue before the referring court (see, by analogy, Fallimento Olimpiclub , paragraph 28).
79. As is apparent from the answer to the third question and, in particular, from paragraphs 37, 42 and 44 of this judgment, in circumstances such as those of the main proceedings, the legislation at issue in those proceedings, which makes no provision for regular review, maintains for an unlimited period a prohibition on leaving the territory and thereby perpetuates an infringement of the right laid down in Article 21(1) TFEU to move and reside freely within the territory of the Member States. In such circumstances, a prohibition of that kind is the antithesis of the freedom conferred by Union citizenship to move and reside within the territory of the Member States (see also, by analogy, Case C-348/96 Calfa  [1999] ECR I-11, paragraph 18).
81. In view also of the importance which primary law accords to citizenship of the Union (see, inter alia, Case C-135/08 Rottmann  [2010] ECR I-1449, paragraphs 43 and 56), it must be concluded that, in circumstances such as those at issue in the main proceedings, national legislation such as that described in the order for reference, to the extent that it (i) prevents citizens of the Union from asserting the right conferred on them by Article 21 TFEU to move and reside freely against absolute territorial prohibitions that have been adopted for an unlimited period and (ii) prevents administrative bodies from acting upon a body of case-law whereby the Court has confirmed the illegality, under EU law, of such prohibitions, cannot reasonably be justified by the principle of legal certainty and must therefore be considered, in this respect, to be contrary to the principle of effectiveness and to Article 4(3) TEU (see, by analogy, Fallimento Olimpiclub , paragraphs 30 and 31).