P.I. v Oberbürgermeisterin der Stadt Remscheid.
Date: 2012-05-22
15. At paragraph 56 of its judgment in Case C‑145/09 Tsakouridis  [2010] ECR I‑11979, the Court held that Article 28(3) of Directive 2004/38 must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is capabl e of being covered by the concept of ‘imperative grounds of public security’, which may justify a measure expelling a Union citizen who has resided in the host Member State for the preceding 10 years.
18. As regards public security, the Court has already held that this covers both a Member State’s internal and its external security ( Tsakouridis , paragraph 43 and the case‑law cited).
19. According to the Court, it follows from the wording and scheme of Article 28(3) of Directive 2004/38 that, by subjecting all expulsion measures in the cases referred to in that provision to the existence of ‘imperative grounds’ of public security, a concept which is considerably stricter than that of ‘serious grounds’ within the meaning of Article 28(2), the European Union legislature clearly intended to limit measures based on Article 28(3) to ‘exceptional circumstances’, as set out in recital 24 in the preamble to that directive ( Tsakouridis , paragraph 40).
20. The concept of ‘imperative grounds of public security’ presupposes not only the existence of a threat to public security, but also that such a threat is of a particularly high degree of seriousness, as is reflected by the use of the words ‘imperative grounds’ ( Tsakouridis , paragraph 41).
21. It should also be noted that European Union law does not impose on Member States a uniform scale of values as regards the assessment of conduct which may be considered to be contrary to public security (see, by analogy, Case C‑268/99 Jany and Others  [2001] ECR I‑8615, paragraph 60).
23. 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 (see, inter alia, Case C‑33/07 Jipa [2008] ECR I‑5157, paragraph 23; C‑430/10 Gaydarov  [2011] ECR I‑11637, paragraph 32; and Case C‑434/10 Aladzhov  [2011] ECR I‑11659, paragraph 34).
28. It is apparent from the above that it is open to the Member States to regard criminal offences such as those referred to in the second subparagraph of Article 83(1) TFEU as constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population and thus be covered by the concept of ‘imperative grounds of public security’, capable of justifying an expulsion measure under Article 28(3) of Directive 2004/38, as long as the manner in which such offences were committed discloses particularly serious characteristics, which is a matter for the referring court to determine on the basis of an individual examination of the specific case before it.
29. Should the referring court find that, according to the particular values of the legal order of the Member State in which it has jurisdiction, offences such as those committed by Mr I. pose a direct threat to the calm and physical security of the population, that should not necessarily lead to the expulsion of the person concerned.
30. Under the second subparagraph of Article 27(2) of Directive 2004/38, the issue of any expulsion measure is conditional on the requirement that the personal conduct of the individual concerned must represent a genuine, present threat affecting one of the fundamental interests of society or of the host Member State, which implies, in general, the existence in the individual concerned of a propensity to act in the same way in the future.
31. It should be added that where an expulsion measure has been adopted as a penalty or legal consequence of a custodial penalty, but is enforced more than two years after it was issued, Article 33(2) of Directive 2004/38 requires the Member State to check that the individual concerned is currently and genuinely a threat to public policy or public security and to assess whether there has been any material change in the circumstances since the expulsion order was issued.
33. In the light of the foregoing considerations, the answer to the question referred is that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that it is open to the Member States to regard criminal offences such as those referred to in the second subparagraph of Article 83(1) TFEU as constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population and thus be covered by the concept of ‘imperative grounds of public security’, capable of justifying an expulsion measure under Article 28(3), as long as the manner in which such offences were committed discloses particularly serious characteristics, which is a matter for the referring court to determine on the basis of an individual examination of the specific case before it.