Commission of the European Communities v Federal Republic of Germany.
Date: 2006-04-27
32. As the Court observed in Case C-503/03 Commission  v Spain  [2006] ECR I-0000, paragraph 43, the right of Member State nationals to enter and remain on the territory of another Member State is not unconditional. Among the limits laid down or authorised by Community law, Article 2 of Directive 64/221 enables Member States to prohibit nationals of other Member States from entering their territory on grounds of public policy or public security.
33. The Community legislature has nevertheless made reliance by the Member States on such grounds subject to strict limits. Article 3(1) of Directive 64/221 states that measures taken on grounds of public policy or public security are to be based exclusively on the personal conduct of the individual concerned and Article 3(2) states that previous criminal convictions do not in themselves constitute grounds for the taking of such measures. 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 (Case 30/77 Bouchereau  [1977] ECR 1999, paragraph 28; Case C-348/96 Calfa  [1999] ECR I-11, paragraph 24; and Case C-503/03 Commission  v Spain , paragraph 44).
34. The Court, for its part, has always emphasised that the public policy exception is a derogation from the fundamental principle of freedom of movement for persons, which must be interpreted strictly, and that its scope cannot be determined unilaterally by the Member States (Case 36/75 Rutili  [1975] ECR 1219, paragraph 27; Bouchereau , paragraph 33; Calfa , paragraph 23; Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri  [2004] ECR I-5257, paragraphs 64 and 65; and Case C-503/03 Commission  v Spain , paragraph 45).
35. According to settled case-law, reliance by a national authority on 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 and sufficiently serious threat to one of the fundamental interests of society ( Rutili , paragraph 28; Bouchereau , paragraph 35; Orfanopoulos and Oliveri , paragraph 66; and Case C‑503/0 3 Commission  v Spain , paragraph 46).
38. The provisions of Paragraph 47(1) and (2)(1) of the Ausländergesetz, considered in isolation, in so far as they lead to the expulsion of Community nationals following a criminal conviction, without the offender’s personal conduct or the actual danger he represents with regard to public policy being taken into account as a matter of course, do not meet the requirements of Community law (see, to that effect, with regard to Paragraph 47(1)(2) of the Ausländergesetz, Orfanopoulos and Oliveri , paragraphs 59 and 69 to 71).
40. Accordingly, the Aufenthaltsgesetz/EWG, being special legislation (a lex specialis ) vis-à-vis the Ausländergesetz (a lex generalis ), prevails over the provisions of the Ausländergesetz in situations which it specifically seeks to regulate (see, with regard to Community directives, Case C-444/00 Mayer Parry Recycling  [2003] ECR I-6163, paragraph 57).
42. Although the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts (see, in particular, Case C-129/00 Commission  v Italy  [2003] ECR I-14637, paragraphs 30 to 33), the Commission is not alleging in the present case that the legislation at issue has been the subject of different judicial constructions that may be taken into account, some leading to the application of that legislation in compliance with Community law, others leading to an application which is incompatible with it, with the result that such legislation is not sufficiently clear to ensure its application in compliance with Community law.
45. The Court has held on several occasions that the Commission may ask the Court to find that, in not having achieved, in a specific case, the result intended by a directive, a Member State has failed to fulfil its obligations (see, in particular, Joined Cases C-20/01 and C-28/01 Commission  v Germany  [2003] ECR I-3609, paragraph 30; Case C-157/03 Commission  v Spain  [2005] ECR I-2911, paragraph 44; and Case C-503/03 Commission  v Spain , paragraph 59).
47. According to the Court’s case-law, a failure to fulfil obligations may arise due to the existence of an administrative practice which infringes Community law, even if the applicable national legislation itself complies with that law, as follows from paragraphs 39 to 43 of the present judgment (see, in particular, Case C-278/03 Commission  v Italy  [2005] ECR I-3747, paragraph 13).
48. In that regard it must first be noted that, according to established case-law, in proceedings for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (see, in particular, Case C-287/03 Commission  v Belgium  [2005] ECR I-3761, paragraph 27).
49. With regard in particular to a complaint concerning the implementation of a national provision the Court has held that proof of a Member State’s failure to fulfil its obligations requires production of evidence different from that usually taken into account in an action for failure to fulfil obligations concerning solely the terms of a national provision, and that in those circumstances the failure to fulfil obligations can be established only by means of sufficiently documented and detailed proof of the alleged practice of the national administration and/or courts, for which the Member State concerned is answerable (Case C-287/03 Commission  v Belgium , paragraph 28).
50. The Court has also held that, although a State’s action consisting in an administrative practice contrary to the requirements of Community law can amount to a failure to fulfil obligations for the purposes of Article 226 EC, that administrative practice must be, to some degree, of a consistent and general nature (see Case C-387/99 Commission  v Germany  [2004] ECR I-3751, paragraph 42; Case C-494/01 Commission  v Ireland  [2005] ECR I-3331, paragraph 28; and Case C-287/03 Commission  v Belgium , paragraph 29).
59. The Court has consistently held (see, inter alia, Case C-365/97 Commission  v Italy  [1999] ECR I-7773, paragraph 23) that the letter of formal notice sent by the Commission to a Member State, and the reasoned opinion issued by the Commission, delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the EC Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations.
60. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (Case C-191/95 Commission  v Germany  [1998] ECR I-5449, paragraph 55). The reasoned opinion and the application must be based on the same grounds and pleas, with the result that the Court cannot examine a ground of complaint which was not formulated in the reasoned opinion (Case 76/86 Commission  v Germany  [1989] ECR 1021, paragraph 8), which for its part must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (see, in particular, Case C-350/02 Commission  v Netherlands  [2004] ECR I-6213, paragraph 20).
61. However, there can be no requirement that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, where the subject-matter of the proceedings has not been extended or altered but simply limited (Case C-191/95 Commission  v Germany , paragraph 56; Case C-365/97 Commission  v Italy , paragraph 25; and Case C-177/04 Commission  v France  [2006] ECR I-0000, paragraph 37).
73. According to settled case-law, the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, in particular, Case C-159/99 Commission  v Italy  [2001] ECR I-4007, paragraph 32, and Case C-415/01 Commission  v Belgium  [2003] ECR I-2081, paragraph 21).
76. In that regard, suffice it to say that the principle of legal certainty requires appropriate publicity for the national measures adopted pursuant to Community rules in such a way as to enable the persons concerned by such measures to ascertain the scope of their rights and obligations in the particular area governed by Community law (see, in particular, Case C-415/01 Commission  v Belgium , paragraph 21). This is not the case so far as the general administrative provisions are concerned, since it is common ground that they are of an internal nature and are intended for the administration in order to ensure that it adopts a consistent approach to specific issues.
93. According to the case-law of the Court, Community law precludes expulsion of a national of a Member State on grounds of a general preventive nature, that is to say, expulsion which has been ordered for the purpose of deterring other foreign nationals (see, in particular, Case 67/74 Bonsignore  [1975] ECR 297, paragraph 7, and Nazli , paragraph 59), in particular where such measure 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 (see Calfa , paragraph 27).
99. Moreover, the eleven decisions mentioned by the Commission were taken, according to the information given in the application initiating proceedings, between March 1993 ( Sassano ) and November 1997 ( Pugliese ), that is to say, over a period of almost five years. The Court cannot in any event therefore find that there has been a general and consistent practice contrary to Community law, since the Commission, which may not rely on any presumption, has not been able to provide it with the evidence needed in order to refute the German Government’s assertion that these are isolated decisions and do not point to a general and consistent practice.
107. According to the case-law of the Court, the examination on a case-by-case basis by the national authorities of whether there is personal conduct constituting a present threat to the requirements of public policy and, if necessary, of where lies the fair balance between the legitimate interests in issue must be made in compliance with the general principles of Community law ( Orfanopoulos and Oliveri , paragraph 95).
108. In that regard, it is necessary to take into account the fundamental rights whose observance the Court ensures. Reasons of public interest may be invoked to justify a national measure which is likely to obstruct the exercise of the fundamental freedoms guaranteed by the Treaty only if the measure in question takes account of such rights (see, to that effect, Case C-260/89 ERT  [1991] ECR I-2925, paragraph 43; Case C-368/95 Familiapress  [1997] ECR I-3689, paragraph 24; Carpenter , paragraph 40; and Orfanopoulos and Oliveri , paragraph 97).
109. In that context, the importance of ensuring protection of the family life of Community nationals in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty has been recognised under Community law. It is established, in particular, that the removal of a person from the country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed by Article 8 of the ECHR, which is among the fundamental rights which, according to the Court’s settled case-law, are protected in Community law (see, in particular, the ruling of the European Court of Human Rights of 2 August 2001 in Orfanopoulos and Oliveri , paragraph 98). Such interference will infringe the ECHR if it does not meet the requirements of Article 8(2), that is, unless it is ‘in accordance with the law’, motivated by one or more of the legitimate aims under that paragraph and ‘necessary in a democratic society’, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, in particular, the ruling of the European Court of Human Rights of 2 August 2001 in Boultif v Switzerland , no. 54273/00, §§ 39, 41 and 46, ECHR 2001-IX and Carpenter , paragraph 42).
121. The purpose of Article 9(1) of Directive 64/221 is to provide minimum procedural safeguards for persons whose expulsion from the territory has been ordered. That article, which applies in three situations, namely in the absence of any possibility of an appeal to a court of law, where such an appeal relates only to the legality of the decision, or where it has no suspensory effect, provides for the intervention of a competent authority other than that empowered to take the decision. Save in cases of urgency, the administrative authority may take its decision only after obtaining the opinion of the other competent authority (see, in particular, Orfanopoulos and Oliveri , paragraph 105).