Staatssecretaris van Justitie en Veiligheid v E.P.
Date: 2019-12-12
27


Second, it is apparent from Article 3(2) of Directive 2008/115 that a third-country national who is present on the territory of a Member State without fulfilling the conditions of entry as set out in Article 5 of Regulation No 562/2006, now replaced by Article 6 of the Schengen Borders Code, or other conditions for entry, stay or residence is, therefore, staying on that territory illegally (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 59).
29


In that context, with a view to determining the scope of the concept of ‘threat to public policy’ in Article 6(1)(e) of the Schengen Borders Code, it should be noted that it is apparent from the Court’s settled case-law that a Union citizen who has exercised his or her right to free movement and certain members of that citizen’s family can be regarded as posing a threat to public policy only if their individual conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned (see, to that effect, judgments of 29 April 2004, Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, EU:C:2004:262, paragraphs 66 and 67, and of 10 July 2008, Jipa, C‑33/07, EU:C:2008:396, paragraphs 23 and 24).
30


The concept of ‘threat to public policy [ordre public]’ has subsequently been interpreted in the same way in the context of a number of directives governing the situation of third-country nationals who are not part of a Union citizen’s family (see judgments of 11 June 2015, Zh. and O., C‑554/13, EU:C:2015:377, paragraph 60; of 24 June 2015, T., C‑373/13, EU:C:2015:413, paragraph 79; and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 67).
32


Thus, the Court has held, in the context of Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L 375, p. 12), that the kindred concept of ‘threat to public security’ must be interpreted more broadly than it is in the case-law relating to persons enjoying the right of free movement and that it may cover inter alia potential threats to public security (see, to that effect, judgment of 4 April 2017, Fahimian, C‑544/15, EU:C:2017:255, paragraph 40).
33


It is thus necessary, in order to define the scope of the concept of ‘threat to public policy’, within the meaning of Article 6(1)(e) of the Schengen Borders Code, to take into account the wording of that provision, its context and the objectives pursued by the legislation of which it forms part (see, to that effect, judgments of 24 June 2015, T., C‑373/13, EU:C:2015:413, paragraph 58, and of 4 April 2017, Fahimian, C‑544/15, EU:C:2017:255, paragraph 30).
37


Therefore, the wide discretion accorded by the Court to the competent authorities of the Member States when they ascertain whether the conditions to which issue of a uniform visa is subject are complied with must logically, in the light of the complexity of such an examination (see, to that effect, judgment of 19 December 2013, Koushkaki, C‑84/12, EU:C:2013:862, paragraphs 56 to 60), be accorded to those authorities also when they determine whether a third-country national is a threat to public policy, within the meaning of Article 6(1)(e) of the Schengen Borders Code.
42


It follows that the concept of ‘threat to public policy or public security’, within the meaning of that provision, is therefore appreciably different from the concept referred to in paragraph 29 of the present judgment (see, by analogy, judgment of 31 January 2006, Commission v Spain, C‑503/03, EU:C:2006:74, paragraph 48).
47


That said, such a national practice must comply with the principle of proportionality, which is a general principle of EU law, and must therefore, in particular, not go beyond what is necessary to safeguard public policy (see, to that effect, judgments of 2 May 2019, Lavorgna, C‑309/18, EU:C:2019:350, paragraph 24; of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 68; and of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraph 51).
49


Second, in the absence of a conviction, the competent authorities can invoke a threat to public policy only if there is consistent, objective and specific evidence that provides grounds for suspecting that that third-country national has committed such an offence.