E v Subdelegación del Gobierno en Álava.
Date: 2017-07-13
16


First of all, it must be pointed out that the right of Union citizens and their family members to reside in the European Union 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, judgment of 10 July 2008, Jipa, C‑33/07, EU:C:2008:396, paragraph 21, and of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 55).
17


In that regard, the limitations on the right of residence derive in particular from Article 27(1) of Directive 2004/38, which provides that Member States may restrict the right of residence of Union citizens and their family members, irrespective of nationality, on grounds, in particular, of public policy or public security (see judgments of 10 July 2008, Jipa, C‑33/07, EU:C:2008:396, paragraph 22, and of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 57).
18


It is settled case-law that the public policy exception constitutes a derogation from the right of residence of Union citizens and their family members, which must be interpreted strictly and the scope of which cannot be determined unilaterally by the Member States (see, to that effect, judgments of 4 December 1974, van Duyn, 41/74, EU:C:1974:133, paragraph 18; of 27 October 1977, Bouchereau, 30/77, EU:C:1977:172, paragraph 33; of 29 April 2004, Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, EU:C:2004:262, paragraph 65; and of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 58).
19


As is apparent from the first subparagraph of Article 27(2) of Directive 2004/38, in order to be justified, measures restricting the right of residence of a Union citizen or a member of his family, including measures taken on grounds of public policy, must comply with the principle of proportionality and be based exclusively on the personal conduct of the individual concerned (judgment of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 59).
20


In that regard, it must be noted that, in accordance with Article 83(1) TFEU, the sexual exploitation of children is one of the areas of particularly serious crime with a cross-border dimension in which the European Union legislature may intervene. Therefore, it is open to the Member States to regard criminal offences such as those referred to in the second subparagraph of Article 83(1) TFEU as constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population and thus is capable of being covered by the concept of ‘imperative grounds of public security’, capable of justifying an expulsion order under Article 28(3) of Directive 2004/38, as long as the manner in which such offences were committed discloses particularly serious characteristics, which is a matter for the referring court to determine on the basis of an individual examination of the specific case before it (see, to that effect, judgment of 22 May 2012, I, C‑348/09, EU:C:2012:300, paragraph 33).
21


However, should the referring court find that, according to the particular values of the legal order of the Member State in which it has jurisdiction, offences such as those committed by E pose such a threat, that should not necessarily lead to the expulsion of the person concerned (see, by analogy, judgment of 22 May 2012, I, C‑348/09, EU:C:2012:300, paragraph 29).
23


Moreover, under the second subparagraph of Article 27(2) of that directive, the issue of any expulsion measure is conditional on the requirement that such conduct must represent a genuine, present threat affecting one of the fundamental interests of society or of the host Member State, which implies, in general, the existence in the individual concerned of a propensity to act in the same way in the future (judgment of 22 May 2012, I, C‑348/09, EU:C:2012:300, paragraph 30).