Mouvement contre le racisme, l'antisémitisme et la xénophobie ASBL (MRAX) v Belgian State.
Date: 2002-07-25
39 As to that submission, Community legislation concerning freedom of movement for workers, freedom to provide services and freedom of establishment is not applicable to situations not presenting any link to any of the situations envisaged by Community law. Consequently, that legislation cannot be applied to the situation of persons who have never exercised those freedoms (see, in particular, Case C-206/91 Koua Poirrez [1992] ECR I-6685, paragraphs 10, 11 and 12, and Case C-60/00 Carpenter [2002] ECR I-0000, paragraph 28).
53 It is apparent in particular from the Council regulations and directives on freedom of movement for employed and self-employed persons within the Community that the Community legislature has recognised the importance of ensuring protection for the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty (Carpenter, cited above, paragraph 38).
54 Thus, Article 10 of Regulation No 1612/68, Article 1 of Directive 68/360 and Article 1 of Directive 73/148 extend in identical terms the application of Community law relating to entry into and residence in the territory of the Member States to the spouse of a Member State national who is covered by those provisions (Case 48/75 Royer [1976] ECR 497, paragraph 13).
56 Nevertheless, in accordance with Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148, when a national of a Member State moves within the Community with a view to exercising the rights conferred upon him by the Treaty and those directives, the Member States may demand an entry visa or equivalent document from members of his family who are not nationals of a Member State. The list of third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States was determined by Regulation No 2317/95, which was replaced by Regulation No 574/1999, itself since replaced by Regulation No 539/2001.
57 As Community legislation does not specify the measures which a Member State may take should a third country national married to a Member State national wish to enter Community territory without being in possession of a valid identity card or passport or, if necessary, a visa, sending him back at the border does not appear to be precluded (see in particular, to that effect, with regard to Article 3(1) of Directive 68/360 and Article 3(1) of Directive 73/148, Case C-68/89 Commission v Netherlands [1991] ECR I-2637, paragraph 11).
58 First, in the absence of a valid identity card or passport, documents which are intended to enable their holder to provide proof of his identity and nationality (see, to that effect, in particular Case C-376/89 Giagounidis [1991] ECR I-1069, paragraphs 14 and 15), the person concerned cannot as a rule properly prove his identity or, consequently, his family ties.
59 Second, while, as the Commission correctly points out, the right of a third country national married to a Member State national to enter the territory of the Member States derives under Community law from the family ties alone, the fact remains that, according to the very wording of Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148, exercise of that right may be conditional on possession of a visa. Indeed, Article 5 of Regulation No 2317/95 defines a visa as an authorisation given or a decision taken by a Member State which is required `for entry' into its territory.
60 However, Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148 state that the Member States are to accord to such persons every facility for obtaining any necessary visas. This means that, if those provisions of Directives 68/360 and 73/148 are not to be denied their full effect, a visa must be issued without delay and, as far as possible, at the place of entry into national territory.
61 In view of the importance which the Community legislature has attached to the protection of family life (see paragraph 53 of this judgment), it is in any event disproportionate and, therefore, prohibited to send back a third country national married to a national of a Member State where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.
62 The answer to the first question referred for a preliminary ruling must therefore be that, on a proper construction of Article 3 of Directive 68/360, Article 3 of Directive 73/148 and Regulation No 2317/95, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.
Question 2
Observations submitted to the Court
74 As the Court has stated on several occasions, issue of a residence permit to a national of a Member State (see, in particular, Case C-363/89 Roux [1991] ECR I-273, paragraph 12) is to be regarded not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of Community law. The same finding must be made with regard to a third country national married to a national of a Member State, whose right of residence derives directly from Article 4 of Directive 68/360 or Article 4 of Directive 73/148, irrespective of issue of a residence permit by the competent authority of a Member State.
76 Under Article 4(3) of Directive 68/360 and Article 6 of Directive 73/148, a Member State may make issue of a residence permit conditional upon production of the document with which the person concerned entered its territory (see Roux, cited above, paragraphs 14 and 15).
77 Furthermore, Community law does not prevent the Member States from prescribing, for breaches of national provisions concerning the control of aliens, any appropriate sanctions necessary in order to ensure the efficacity of those provisions (Royer, cited above, paragraph 42), provided that those sanctions are proportionate (see, in particular, Case 157/79 Pieck [1980] ECR 2171, paragraph 19).
78 On the other hand, refusal of a residence permit, and a fortiori an expulsion order, based solely on the failure of the person concerned to comply with legal formalities concerning the control of aliens would impair the very substance of the right of residence directly conferred by Community law and would be manifestly disproportionate to the gravity of the infringement (see, by analogy, in particular Royer, paragraph 40).
79 It is true that Article 10 of Directive 68/360 and Article 8 of Directive 73/148 do not prevent the Member States from derogating from those directives on grounds of public policy, public security or public health, while Article 3(1) of Directive 64/221 lays down that measures taken on grounds of public policy or of public security are to be based exclusively on the personal conduct of the individual concerned. However, failure to comply with the legal formalities concerning the entry, movement and residence of aliens cannot in itself give rise to application of the measures referred to in Article 3 of Directive 64/221 (Royer, paragraphs 47 and 48).
89 While Article 4(3) of Directive 68/360 and Article 6 of Directive 73/148 authorise the Member States to demand, for the purpose of issue of a residence permit, production of the document with which the person concerned entered their territory, they do not lay down that that document must still be valid. Accordingly, where a third country national requires a visa, issue of a residence permit to him cannot be made subject to the condition that his visa is still valid. That is all the more the case because, as the Court held in Giagounidis, cited above, at paragraphs 22 and 23, the Member States are obliged to grant the right of residence within their territory to the workers referred to in Article 1 of Directive 68/360 who can produce either a valid identity card or a valid passport, regardless of the document with which they entered their territory.
90 Consequently, a Member State cannot make issue of a residence permit under Directives 68/360 and 73/148 conditional upon production of a valid visa. Furthermore, as follows from paragraph 78 of this judgment, an order of expulsion from national territory on the sole ground that a visa has expired would constitute a sanction manifestly disproportionate to the gravity of the breach of the national provisions concerning the control of aliens.
91 The answer to the third question referred for a preliminary ruling must therefore be that, on a proper construction of Articles 3 and 4(3) of Directive 68/360, Articles 3 and 6 of Directive 73/148 and Article 3(3) of Directive 64/221, a Member State may neither refuse to issue a residence permit to a third country national who is married to a national of a Member State and entered the territory of that Member State lawfully, nor issue an order expelling him from the territory, on the sole ground that his visa expired before he applied for a residence permit.
Question 4
Observations submitted to the Court
100 The purpose of Article 9(2) of Directive 64/221 is to provide minimum procedural guarantees for persons refused a first residence permit, or whose expulsion is ordered before the issue of the permit, in any of the three cases defined in Article 9(1). Where the right of appeal against administrative measures is restricted to the legality of the decision, the purpose of the intervention of the competent authority is to enable an examination of the facts and circumstances, including factors demonstrating the appropriateness of the proposed measure, to be carried out before the decision is finally taken (see, to that effect, Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraphs 34 and 37).
101 The provisions of Article 9 of Directive 64/221, which are complementary to those relating to the system of appeals to a court of law referred to in Article 8 and are intended to mitigate the effect of deficiencies in those remedies (see, in particular, Case 98/79 Pecastaing [1980] ECR 691, paragraphs 15 and 20), call for a broad interpretation as regards the persons to whom they apply. In the field of Community law, the requirement for judicial review of any decision of a national authority reflects a general principle stemming from the constitutional traditions common to the Member States and enshrined in Articles 6 and 13 of the Convention (Case 222/86 Unectef v Heylens and Others [1987] ECR 4097, paragraph 14, Case C-97/91 Oleificio Borelli v Commission [1992] ECR I-6313, paragraph 14, and Case C-226/99 Siples [2001] ECR I-277, paragraph 17).