Jean Noël Royer.
Date: 1976-04-08
11 THE FACTS SUBMITTED BY THE NATIONAL COURT AND THE CHOICE OF THE PROVISIONS OF COMMUNITY LAW OF WHICH IT SEEKS INTERPRETATION ALLOWS OF DIFFERENT HYPOTHESES ACCORDING TO WHETHER THE ACCUSED FALLS WITHIN THE PROVISIONS OF COMMUNITY LAW BY VIRTUE OF AN OCCUPATION WHICH HE CARRIED OUT HIMSELF OR BY VIRTUE OF A POST WHICH HE HAD HIMSELF FOUND OR AGAIN AS THE HUSBAND OF A PERSON SUBJECT TO THE PROVISIONS OF COMMUNITY LAW BECAUSE OF HER OCCUPATION SO THAT THE ACCUSED ' S POSITION MAY BE REGULATED BY EITHER :
( A ) THE CHAPTER OF THE TREATY CONCERNING WORKERS AND , MORE ESPECIALLY , ARTICLE 48 WHICH WAS IMPLEMENTED BY REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OJ , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) AND COUNCIL DIRECTIVE NO 68/360/EEC OR
( B ) THE CHAPTERS CONCERNING THE RIGHT OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES , IN PARTICULAR ARTICLES 52 , 53 , 56 , 62 AND 66 IMPLEMENTED BY COUNCIL DIRECTIVE NO 73/148 OF 21 MAY 1973 CONCERNING THE REMOVAL OF RESTRICTIONS ON THE MOVEMENT AND RESIDENCE OF NATIONALS OF THE MEMBER STATES WITHIN THE COMMUNITY FOR ESTABLISHMENT AND PROVISION OF SERVICES ( OJ , L . 172 , P . 14 ).
12 NEVERTHELESS COMPARISON OF THESE DIFFERENT PROVISIONS SHOWS THAT THEY ARE BASED ON THE SAME PRINCIPLES BOTH IN SO FAR AS THEY CONCERN THE ENTRY INTO AND RESIDENCE IN THE TERRITORY OF MEMBER STATES OF PERSONS COVERED BY COMMUNITY LAW AND THE PROHIBITION OF ALL DISCRIMINATION BETWEEN THEM ON GROUNDS OF NATIONALITY .
13 IN PARTICULAR ARTICLE 10 OF REGULATION ( EEC ) NO 1612/68 , ARTICLE 1 OF DIRECTIVE NO 68/360 AND ARTICLE 1 OF DIRECTIVE NO 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 ANY PERSON COVERED BY THESE PROVISIONS .
31 ( A ) IT FOLLOWS FROM THE FOREGOING THAT THE RIGHT OF NATIONALS OF A MEMBER STATE TO ENTER THE TERRITORY OF ANOTHER MEMBER STATE AND RESIDE THERE FOR THE PURPOSES INTENDED BY THE TREATY - IN PARTICULAR TO LOOK FOR OR PURSUE AN OCCUPATION OR ACTIVITIES AS EMPLOYED OR SELF-EMPLOYED PERSONS , OR TO REJOIN THEIR SPOUSE OR FAMILY - IS A RIGHT CONFERRED DIRECTLY BY THE TREATY , OR , AS THE CASE MAY BE , BY THE PROVISIONS ADOPTED FOR ITS IMPLEMENTATION .
32 IT MUST THEREFORE BE CONCLUDED THAT THIS RIGHT IS ACQUIRED INDEPENDENTLY OF THE ISSUE OF A RESIDENCE PERMIT BY THE COMPETENT AUTHORITY OF A MEMBER STATE .
33 THE GRANT OF THIS PERMIT IS THEREFORE 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 .
37 THE ANSWER TO THE QUESTION PUT SHOULD THEREFORE BE THAT ARTICLE 4 OF DIRECTIVE NO 68/360 ENTAILS AN OBLIGATION FOR MEMBER STATES TO ISSUE A RESIDENCE PERMIT TO ANY PERSON WHO PROVIDES PROOF , BY MEANS OF THE APPROPRIATE DOCUMENTS , THAT HE BELONGS TO ONE OF THE CATEGORIES SET OUT IN ARTICLE 1 OF THE DIRECTIVE .
40 CONSEQUENTLY ANY DECISION ORDERING EXPULSION MADE BY THE AUTHORITIES OF A MEMBER STATE AGAINST A NATIONAL OF ANOTHER MEMBER STATE COVERED BY THE TREATY WOULD , IF IT WERE BASED SOLELY ON THAT PERSON ' S FAILURE TO COMPLY WITH THE LEGAL FORMALITIES CONCERNING THE CONTROL OF ALIENS OR ON THE LACK OF A RESIDENCE PERMIT , BE CONTRARY TO THE PROVISIONS OF THE TREATY .
47 NEVERTHELESS IT IS EVIDENT FROM THE FOREGOING THAT THE FAILURE TO COMPLY WITH THE LEGAL FORMALITIES CONCERNING THE ENTRY , MOVEMENT AND RESIDENCE OF ALIENS DOES NOT IN ITSELF CONSTITUTE A THREAT TO PUBLIC POLICY AND PUBLIC SECURITY WITHIN THE MEANING OF THE TREATY .
48 IN ITSELF SUCH CONDUCT CANNOT THEREFORE GIVE RISE TO THE APPLICATION OF THE MEASURES REFERRED TO IN ARTICLE 3 OF THE ABOVE-MENTIONED DIRECTIVE .
59 UNDER ARTICLE 9 THE PROCEDURE OF APPEAL TO A COMPETENT AUTHORITY MUST PRECEDE THE DECISION ORDERING EXPULSION IN CASES OF URGENCY .
60 CONSEQUENTLY WHERE A LEGAL REMEDY REFERRED TO IN ARTICLE 8 IS AVAILABLE THE DECISION ORDERING EXPULSION MAY NOT BE EXECUTED BEFORE THE PARTY CONCERNED IS ABLE TO AVAIL HIMSELF OF THE REMEDY .
61 WHERE NO SUCH REMEDY IS AVAILABLE , OR WHERE IT IS AVAILABLE BUT CANNOT HAVE SUSPENSORY EFFECT , THE DECISION CANNOT BE TAKEN - SAVE IN CASES OR URGENCY WHICH HAVE BEEN PROPERLY JUSTIFIED - UNTIL THE PARTY CONCERNED HAS HAD THE OPPORTUNITY OF APPEALING TO THE AUTHORITY DESIGNATED IN ARTICLE 9 OF DIRECTIVE NO 64/221 AND UNTIL THIS AUTHORITY HAS REACHED A DECISION .
73 THE MEMBER STATES ARE CONSEQUENTLY OBLIGED TO CHOOSE , WITHIN THE BOUNDS OF THE FREEDOM LEFT TO THEM BY ARTICLE 189 , THE MOST APPROPRIATE FORMS AND METHODS TO ENSURE THE EFFECTIVE FUNCTIONING OF THE DIRECTIVES , ACCOUNT BEING TAKEN OF THEIR AIMS .
75 THE FREEDOM LEFT TO THE MEMBER STATES BY ARTICLE 189 AS TO THE CHOICE OF FORMS AND METHODS OF IMPLEMENTATION OF DIRECTIVES DOES NOT AFFECT THEIR OBLIGATION TO CHOOSE THE MOST APPROPRIATE FORMS AND METHODS TO ENSURE THE EFFECTIVENESS OF THE DIRECTIVES .