Hristo Gaydarov v Director na Glavna direktsia "Ohranitelna politsia" pri Ministerstvo na vatreshnite raboti.
Date: 2011-11-17
24. It must first of all be noted that, as a Bulgarian national, Mr Gaydarov enjoys the status of a citizen of the Union under Article 20 TFEU and may therefore rely on the rights pertaining to that status, including against his Member State of origin, and in particular the right conferred by Article 21 TFEU to move and reside freely within the territory of the Member States (see, to that effect, inter alia, Case C‑33/07 Jipa [2008] ECR I‑5157, paragraph 17, and Case C‑434/09 McCarthy [2011] ECR I‑0000, paragraph 48).
25. It must be added, secondly, that the right of freedom of movement includes both the right for citizens of the European 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 EC Treaty would be rendered meaningless if the Member State of origin could, without valid justification, prohibit its own nationals from leaving its territory in order to enter the territory of another Member State (see Jipa , paragraph 18).
26. Moreover, Article 4(1) of Directive 2004/38 expressly provides that all Union citizens with a valid identity card or passport have the right to leave the territory of a Member State to travel to another Member State.
27. It follows that a situation such as that of Mr Gaydarov, as described in paragraphs 15 to 18 of this judgment, is covered by the right of citizens of the Union to move and reside freely in the Member States and therefore falls within the scope of Directive 2004/38.
29. Thirdly, it is important to bear in mind that the right of free movement of Union citizens is not unconditional but may be subject to the limitations and conditions imposed by the Treaty and by the measures adopted to give it effect (see, inter alia, Jipa , paragraph 21 and case-law cited).
31. According to the referring court, the national legislation transposing the directive is not applicable to nationals of the Republic of Bulgaria. However, that fact cannot have the effect of preventing a national court from giving full effect to the rules of European Union law, if necessary by refusing to apply any provision of national legislation which is contrary to European Union law and in particular to Article 27 of Directive 2004/38 (see, to that effect, inter alia, Case C‑173/09 Elchinov [2010] ECR I‑0000, paragraph 31 and case-law cited), given that the provisions of that article, which are unconditional and sufficiently precise, may be relied on by an individual vis-à-vis the Member state of which he is a national (see, by analogy, Case 41/74 van Duyn [1974] ECR 1337, paragraphs 9 to 15).
32. Lastly, it is clear from settled case‑law that, 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, the fact still remains that, in the European Union context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must 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, Jipa , paragraph 23).
33. The Court has thus stated that 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).
34. 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 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). Further, according to the same provision, previous criminal convictions cannot in themselves constitute grounds for automatically taking measures which restrict the exercise of the right of freedom of movement.
35. In that regard, while Article 71 of the SIC imposes on the contracting States the obligation to combat trafficking in narcotic drugs, it is neither the purpose nor the effect of the SIC to derogate from the rules established by the Treaty and Directive 2004/38 in relation to the freedom of movement of Union citizens. Article 134 of the SIC states moreover that its provisions are applicable only in so far as they are compatible with European Union law. That rule was reproduced in the Schengen Protocol which, in the third paragraph of its preamble, confirms that the provisions of the Schengen acquis are applicable only if and as far as they are compatible with European Union law (Case C‑503/03 Commission  v Spain [2006] ECR I‑1097, paragraph 34).
40. When making such an assessment, the referring court will have also to determine whether that restriction on the right to leave is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it. According to Article 27(2) of Directive 2004/38 and the Court’s settled case-law, a measure which restricts the right of freedom of movement may be justified only if it respects the principle of proportionality (see, to that effect, inter alia, Jipa , paragraph 29, and case‑law cited).
41. Lastly, since, according to the referring court’s presentation of the then applicable national law and in particular the case-law to the effect that the administrative authority has a discretion in respect of adopting that type of measure and there is no judicial review of the exercise of that discretion, it must be emphasised that the person to whom such a measure is applied must have an effective judicial remedy (see, inter alia, Case 222/84 Johnston  [1986] ECR 1651, paragraphs 18 and 19; Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 14; and Case C‑50/00 P Unión de Pequeños Agricultores  v Council [2002] ECR I‑6677, paragraph 39). That remedy must permit a review of the legality of the decision at issue as regards matters of both fact and law in the light of European Union law (see, to that effect, Case C‑69/10 Samba Diouf [2011] ECR I‑0000, paragraph 57). In order to ensure that such review by the courts is effective, the interested party must be able to obtain the reasons for the decision taken in relation to him, either by reading the decision itself or by requesting and obtaining notification of those grounds, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information (see, to that effect, inter alia, Heylens , paragraph 15, and Joined Cases C‑372/09 and C‑373/09 Peñarroja Fa [2011] ECR I‑0000, paragraph 63).