Criminal proceedings against Donatella Calfa.
Date: 1999-01-19
16 It should be remembered at the outset that the principle of freedom to provide services established in Article 59 of the Treaty, which is one of its fundamental principles, includes the freedom for the recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions, and that tourists must be regarded as recipients of services (see Case 186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 15).
17 Although in principle criminal legislation is a matter for which the Member States are responsible, the Court has consistently held that Community law sets certain limits to their power, and such legislation may not restrict the fundamental freedoms guaranteed by Community law (Cowan, paragraph 19).
18 In the present case, the penalty of expulsion for life from the territory, which is applicable to the nationals of other Member States in the event of conviction for obtaining and being in possession of drugs for their own use, clearly constitutes an obstacle to the freedom to provide services recognised in Article 59 of the Treaty, since it is the very negation of that freedom. This would also be true for the other fundamental freedoms laid down in Articles 48 and 52 of the Treaty and referred to by the national court.
20 Article 56 permits Member States to adopt, with respect to nationals of other Member States, and in particular on the grounds of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the territory or to deny them access thereto (see Case 41/74 Van Duyn v Home Office [1974] ECR 1337, paragraphs 22 and 23, Joined Cases 115/81 and 116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665, paragraph 7, and Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 28).
21 Under the Court's case-law, the concept of public policy may be relied upon in the event of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society (see Case 30/77 Bouchereau [1977] ECR 1999, paragraph 35).
22 In this respect, it must be accepted 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, in order to maintain public order.
23 However, as the Court has repeatedly stated, the public policy exception, like all derogations from a fundamental principle of the Treaty, must be interpreted restrictively.
24 In that regard, Directive 64/221, Article 1(1) of which provides that the directive is to apply to inter alia any national of a Member State who travels to another Member State as a recipient of services, sets certain limits on the right of Member States to expel foreign nationals on the grounds of public policy. Article 3 of that directive states that measures taken on grounds of public policy or of public security that have the effect of restricting the residence of a national of another Member State must be based exclusively on the personal conduct of the individual concerned. In addition, previous criminal convictions cannot in themselves constitute grounds for the taking of such measures. It follows that the existence of a previous criminal conviction can, therefore, only be taken into account 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 (Bouchereau, paragraph 28).
27 Therefore, expulsion for life 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.
28 It follows that the conditions for the application of the public policy exception provided for in Directive 64/221, as interpreted by the Court of Justice, are not fulfilled and that the public policy exception cannot be successfully relied upon to justify a restriction on the freedom to provide services, such as that imposed by the legislation at issue in the main proceedings.