Commission of the European Communities v Kingdom of the Netherlands.
Date: 2007-06-07
32. It should be recalled, first of all, that the status of citizen of the Union is destined to be the fundamental status of nationals of the Member States (Case C-184/99 Grzelczyk  [2001] ECR I-6193, paragraphs 30 and 31, and Case C-209/03 Bidar  [2005] ECR I-2119, paragraph 31). Under Article 18(1) EC, every citizen of the Union has the right to move and reside freely within the territory of the Member States. A national of a Member State who does not enjoy a right of residence in the host Member State as a result of other provisions of the Treaty or of provisions adopted to give it effect may, simply by virtue of being a citizen of the Union, enjoy a right of residence there in direct application of that article (see, to that effect, Case C-413/99 Baumbast and R  [2002] ECR I-7091, paragraph 84, and Case C-456/02 Trojani  [2004] ECR I-7573, paragraph 31).
33. That right is not however unconditional. Article 18(1) EC provides that it is conferred only subject to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect (see in particular Trojani , paragraphs 31 and 32, and Case C-406/04 De Cuyper  [2006] ECR I-6947, paragraph 36).
34. Among the limitations and conditions laid down or authorised by Community law, Directive 64/221 permits Member States to expel nationals of other Member States from their territory on grounds of public policy or public security, subject to compliance with the substantive and procedural safeguards laid down by that directive and with the general principles of Community law (see to that effect Case C-459/99 MRAX [2002] ECR I-6591, paragraphs 61 and 62, and Case C-503/03 Commission  v Spain  [2006] ECR I-1097, paragraphs 43 and 44).
35. As is apparent from the case-law, the safeguards provided by Directive 64/221 call for a broad interpretation as regards the persons to whom they apply (see to that effect MRAX , paragraph 101). Member States must take all steps to ensure that the safeguard of the provisions of the directive is available to any national of another Member State who is subject to a decision ordering expulsion (see to that effect Case C‑136/03 Dörr and Ünal  [2005] ECR I-4759, paragraph 49). To exclude from the benefit of those substantive and procedural safeguards citizens of the Union who are not lawfully resident on the territory of the host Member State would deprive those safeguards of their essential effectiveness.
41. Under Article 3(1) of Directive 64/221, measures taken on grounds of public policy or of public security are to be based exclusively on the conduct of the person concerned. Article 3(2) specifies that previous criminal convictions are not in themselves to constitute grounds for the taking of such measures. A previous criminal conviction can therefore be taken into account only in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy (see inter alia Case 30/77 Bouchereau  [1977] ECR 1999, paragraph 28; Case C-348/96 Calfa  [1999] ECR I-11, paragraph 24; Commission  v Spain , cited above, paragraph 44, and Case C-441/02 Commission  v Germany  [2006] ECR I-3449, paragraph 33).
42. The Court has always emphasised that the public policy exception constitutes a derogation from the fundamental principle of freedom of movement for persons, which must be interpreted strictly and the scope of which cannot be determined unilaterally by the Member States (Case 36/75 Rutili [1975] ECR 1219, paragraph 27; Bouchereau , paragraph 33; Calfa , paragraph 23; Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri  [2004] ECR I-5257, paragraphs 64 and 65; Commission  v Spain , cited above, paragraph 45, and Case C-441/02 Commission  v Germany , paragraph 34).
43. According to settled case-law, reliance by a national authority on the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to one of the fundamental interests of society ( Rutili , paragraph 28; Bouchereau , paragraph 35; Orfanopoulos and Oliveri , paragraph 66; Commission  v Spain , cited above, paragraph 46, and Commission  v Germany , cited above, paragraph 35).
44. According to the Court, Community law also precludes provisions of national law based on a presumption that nationals of other Member States who have received a particular sentence for specific offences must be expelled (see Orfanopoulos and Oliveri , paragraph 93).
48. Suffice it in that regard to point out that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-200/88 Commission v Greece  [1990] ECR I-4299, paragraph 13; judgment of 14 April 2005 in Case C-22/04 Commission  v Greece , not published in the ECR, paragraph 19, and Case C-433/03 Commission  v Germany  [2005] ECR I-6985, paragraph 32).