Land Baden-Württemberg v Panagiotis Tsakouridis.
Date: 2010-11-23
22. By Questions 2 to 4, which should be considered first, the referring court asks essentially to what extent absences from the host Member State during the period referred to in Article 28(3)(a) of Directive 2004/38, that is, during the 10 years preceding the decision to expel the person concerned, prevent that person from enjoying the enhanced protection laid down in that provision.
23. According to the Court’s case-law, Directive 2004/38 aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the Treaty, and it aims in particular to strengthen that right, so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals (see Case C­‑127/08 Metock and Others  [2008] ECR I‑6241, paragraphs 59 and 82, and Case C‑162/09 Lassal  [2010] ECR I‑0000, paragraph 30).
24. According to recital 23 in the preamble to Directive 2004/38, the expulsion of Union citizens and their family members on grounds of public policy or public security can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State.
25. That is why Directive 2004/38, as follows from recital 24 in the preamble, establishes a system of protection against expulsion measures which is based on the degree of integration of those persons in the host Member State, so that the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be.
26. In this context, Article 28(1) of that directive provides generally that, before taking an expulsion decision on grounds of public policy or public security, the host Member State must take account in particular of considerations such as how long the individual concerned has resided on its territory, his or her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his or her links with the country of origin.
27. Under Article 28(2), Union citizens or their family members, irrespective of nationality, who have the right of permanent residence in the territory of the host Member State pursuant to Article 16 of the directive cannot be the subject of an expulsion decision ‘except on serious grounds of public policy or public security’.
28. In the case of Union citizens who have resided in the host Member State for the previous 10 years, Article 28(3) of Directive 2004/38 considerably strengthens their protection against expulsion by providing that such a measure may not be taken except where the decision is based on ‘imperative grounds of public security, as defined by Member States’.
29. Article 28(3)(a) of Directive 2004/38, while making the enjoyment of enhanced protection subject to the person’s presence in the Member State concerned for 10 years preceding the expulsion measure, is silent as to the circumstances which are capable of interrupting the period of 10 years’ residence for the purposes of the acquisition of the right to enhanced protection against expulsion laid down in that provision.
31. While recitals 23 and 24 in the preamble to Directive 2004/38 certainly refer to special protection for persons who are genuinely integrated into the host Member State, in particular when they were born there and have spent all their life there, the fact remains that, in view of the wording of Article 28(3) of that directive, the decisive criterion is whether the Union citizen has lived in that Member State for the 10 years preceding the expulsion decision.
32. As to the question of the extent to which absences from the host Member State during the period referred to in Article 28(3)(a) of Directive 2004/38, namely the 10 years preceding the decision to expel the person concerned, prevent him from enjoying enhanced protection, an overall assessment must be made of the person’s situation on each occasion at the precise time when the question of expulsion arises.
33. The national authorities responsible for applying Article 28(3) of Directive 2004/38 are required to take all the relevant factors into consideration in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State. It must be ascertained whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned.
34. The fact that the person in question has been the subject of a forced return to the host Member State in order to serve a term of imprisonment there and the time spent in prison may, together with the factors listed in the preceding paragraph, be taken into account as part of the overall assessment required for determining whether the integrating links previously forged with the host Member State have been broken.
36. It should be recalled that, in order to provide the national court with an answer which will be of use to it and enable it to determine the case before it, the Court may find it necessary to consider provisions of European Union law which the national court has not referred to in its questions (see, to that effect, Case C‑374/05 Gintec  [2007] ECR I‑9517, paragraph 48).
38. In the light of the foregoing, the answer to Questions 2 to 4 is that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that, in order to determine whether a Union citizen has resided in the host Member State for the 10 years preceding the expulsion decision, which is the decisive criterion for granting enhanced protection under that provision, all the relevant factors must be taken into account in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State, reasons which may establish whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned.
Question 1
40. It follows from the wording and scheme of Article 28 of Directive 2004/38, as explained in paragraphs 24 to 28 above, that by subjecting all expulsion measures in the cases referred to in Article 28(3) of that directive to the existence of ‘imperative grounds’ of public security, a concept which is considerably stricter than that of ‘serious grounds’ within the meaning of Article 28(2), the European Union legislature clearly intended to limit measures based on Article 28(3) to ‘exceptional circumstances’, as set out in recital 24 in the preamble to that directive.
41. The concept of ‘imperative grounds of public security’ presupposes not only the existence of a threat to public security, but also that such a threat is of a particularly high degree of seriousness, as is reflected by the use of the words ‘imperative reasons’.
43. As regards public security, the Court has held that this covers both a Member State’s internal and its external security (see, inter alia, Case C‑273/97 Sirdar  [1999] ECR I‑7403, paragraph 17; Case C‑285/98 Kreil  [2000] ECR I‑69, paragraph 17; Case C‑423/98 Albore  [2000] ECR I‑5965, paragraph 18; and Case C‑186/01 Dory  [2003] ECR I‑2479, paragraph 32).
44. The Court has also held that a threat to the functioning of the institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security (see, inter alia, Case 72/83 Campus Oil and Others  [1984] ECR 2727, paragraphs 34 and 35; Case C‑70/94 Werner  [1995] ECR I‑3189, paragraph 27; Albore , paragraph 22; and Case C‑398/98 Commission  v Greece  [2001] ECR I‑7915, paragraph 29).
45. It does not follow that objectives such as the fight against crime in connection with dealing in narcotics as part of an organised group are necessarily excluded from that concept.
46. Dealing in narcotics as part of an organised group is a diffuse form of crime with impressive economic and operational resources and frequently with transnational connections. In view of the devastating effects of crimes linked to drug trafficking, Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ 2004 L 335, p. 8) states in recital 1 that illicit drug trafficking poses a threat to health, safety and the quality of life of citizens of the Union, and to the legal economy, stability and security of the Member States.
47. Since drug addiction represents a serious evil for the individual and is fraught with social and economic danger to mankind (see, to that effect, inter alia, Case 221/81 Wolf  [1982] ECR 3681, paragraph 9, and Eur. Court H.R., Aoulmi v. France , no. 50278/99, § 86, ECHR 2006‑I), trafficking in narcotics as part of an organised group could reach a level of intensity that might directly threaten the calm and physical security of the population as a whole or a large part of it.
48. It should be added that Article 27(2) of Directive 2004/38 emphasises that the conduct of the person concerned must represent a genuine and present threat to a fundamental interest of society or of the Member State concerned, that previous criminal convictions cannot in themselves constitute grounds for taking public policy or public security measures, and that justifications that are isolated from the particulars of the case or that rely on considerations of general prevention cannot be accepted.
49. Consequently, an expulsion measure must be based on an individual examination of the specific case (see, inter alia, Metock and Others , paragraph 74), and can be justified on imperative grounds of public security within the meaning of Article 28(3) of Directive 2004/38 only if, having regard to the exceptional seriousness of the threat, such a measure is necessary for the protection of the interests it aims to secure, provided that that objective cannot be attained by less strict means, having regard to the length of residence of the Union citizen in the host Member State and in particular to the serious negative consequences such a measure may have for Union citizens who have become genuinely integrated into the host Member State.
50. In the application of Directive 2004/38, a balance must be struck more particularly between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned, assessed if necessary at the time when the expulsion decision is to be made (see, inter alia, Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri  [2004] ECR I‑5257, paragraphs 77 to 79), by reference in particular to the possible penalties and the sentences imposed, the degree of involvement in the criminal activity, and, if appropriate, the risk of reoffending (see, to that effect, inter alia, Case 30/77 Bouchereau  [1977] ECR 1999, paragraph 29), on the one hand, and, on the other hand, the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, w hich, as the Advocate General observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general.
52. In that assessment, account must be taken of the fundamental rights whose observance the Court ensures, in so far as reasons of public interest may be relied on to justify a national measure which is liable to obstruct the exercise of freedom of movement for persons only if the measure in question takes account of such rights (see, inter alia, Orfanopoulos and Oliveri , paragraphs 97 to 99), in particular the right to respect for private and family life as set forth in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see, inter alia, Case C‑400/10 PPU McB  [2010] ECR I‑0000, paragraph 53, and Eur. Court H.R., Maslov v. Austria  [GC], no. 1638/03, § 61 et seq., 23 June 2008).
54. In any event, since the Court has held that a Member State may, in the interests of public policy, consider that the use of drugs constitutes a danger for society such as to justify special measures against foreign nationals who contravene its laws on drugs (see Case C‑348/96 Calfa  [1999] ECR I‑11, paragraph 22, and Orfanopoulos and Oliveri , paragraph 67), it must follow that dealing in narcotics as part of an organised group is a fortiori  covered by the concept of ‘public policy’ for the purposes of Article 28(2) of Directive 2004/38.
56. In the light of the foregoing, the answer to Question 1 is that, should the referring court conclude that the Union citizen concerned enjoys the protection of Article 28(3) of Directive 2004/38, that provision must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is capable of being covered by the concept of ‘imperative grounds of public security’ which may justify a measure expelling a Union citizen who has resided in the host Member State for the preceding 10 years. Should the referring court conclude that the Union citizen concerned enjoys the protection of Article 28(2) of Directive 2004/38, that provision must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is covered by the concept of ‘serious grounds of public policy or public security’.
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