Ministre de l'Intérieur v Aitor Oteiza Olazabal.
Date: 2002-11-26
12 On 23 April 1988, Mr Oteiza Olazabal was stopped and questioned in French territory in connection with proceedings initiated after the kidnapping of an industrialist in Bilbao (Spain), responsibility for which was claimed by ETA.  On 8 July 1991, he was sentenced by the Tribunal de grande instance (Regional Court) of Paris (France), ruling under its criminal jurisdiction, to 18 months' imprisonment, of which eight months were suspended, and to a four-year ban on residence for conspiracy to disturb public order (ordre public) by intimidation or terror.
25 It is therefore not necessary to interpret Article 6 of the Treaty.  That provision, which lays down the general principle of the prohibition of discrimination on grounds of nationality, applies independently only to situations governed by Community law in respect of which the Treaty lays down no specific prohibition of discrimination (see in particular Case C-131/96 Mora Romero [1997] ECR I-3659, paragraph 10).
26 Similarly, it should be noted that Article 8a of the Treaty, which sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 48 of the Treaty in relation to the free movement of workers.  Since the facts with which the main proceedings are concerned fall within the scope of the latter provision, it is not necessary to rule on the interpretation of Article 8a of the Treaty (see, in relation to freedom of establishment, the judgment in Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929, paragraph 22).
35 The defendant in the main proceedings, by contrast, has been sentenced in France to 18 months' imprisonment and a four-year ban on residence for conspiracy to disturb public order by intimidation or terror.  The documents before the Court show that the administrative police measures taken against him, the legality of which forms the subject-matter of the main proceedings, were motivated by the fact that he formed part of an armed and organised group whose activity constitutes a threat to public order in French territory. Prevention of such activity may, moreover, be regarded as falling within the maintenance of public security.
39 It should be remembered that the reservation provided for in Article 48(3) of the Treaty opens the possibility to Member States, faced with a genuine and sufficiently serious threat affecting a fundamental interest of society, to place restrictions on the free movement of workers (see, to that effect, Case 30/77 Bouchereau [1977] ECR 1999, paragraph 35, and Case C-363/89 Roux [1991] ECR I-273, paragraph 30).
40 The Court has held many times that the reservations contained in Article 48 of the Treaty and Article 56 of the EC Treaty (now, after amendment, Article 46 EC) permit 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 [1974] ECR 1337, paragraphs 22 and 23, Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 7, Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 28, and Case C-348/96 Calfa [1999] ECR I-11, paragraph 20).
42 It should, however, be remembered that a Member State cannot, by virtue of the public policy reservation contained in Articles 48 and 56 of the Treaty, adopt measures against a national of another Member State by reason of conduct which, when engaged in by nationals of the first Member State, does not give rise to punitive measures or other genuine and effective measures intended to combat that conduct (see, to that effect, Adoui and Cornuaille, paragraph 9).
43 It must also be remembered that a measure restricting one of the fundamental freedoms guaranteed by the Treaty may be justified only if it complies with the principle of proportionality.  In that respect, such a measure must be appropriate for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it (Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37).
44 It is for the national courts to determine whether the measures taken in this case do in fact relate to individual conduct which constitutes a genuine and sufficiently serious threat to public order or public security, and whether they comply with the principle of proportionality.