Commission of the European Communities v Kingdom of Spain.
Date: 2006-01-31
34. That rule was reproduced in the Schengen Protocol which, in the third paragraph of its preamble, confirms that the provisions of the Schengen acquis  are applicable only if and as far as they are compatible with European Union and Community law. Article 1 of the Protocol states that closer cooperation within the scope of the Schengen acquis  must be conducted within the legal and institutional framework of the European Union and with respect for the Treaties. That provision is a specific expression of the principle laid down in Article 43(1) EU, according to which closer cooperation must respect the Treaties, the institutional framework of the Union and the Community acquis .
37. The fact that such a refusal is automatic reflects the principle of cooperation between the Contracting States; this underpins the Schengen acquis  and is essential to the operation of an integrated management system intended to ensure a high and uniform level of checks and surveillance along external borders which is the corollary of the freedom to cross internal borders within the Schengen Area.
41. Recognising the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the EC Treaty (Case C-60/00 Carpenter  [2002] ECR I-6279, paragraph 38, and Case C-459/99 MRAX  [2002] ECR I-6591, paragraph 53), the Community legislature has considerably expanded, in the regulations and directives on freedom of movement for persons, the application of Community law on entry into and residence in the territory of the Member States to nationals of third countries who are the spouses of Member State nationals. Although Member States may, where a Member State national travels within the Community in order to exercise the rights which are conferred on him by the Treaty and the measures adopted for its application, require an entry visa for his spouse who is a national of a third country, the Member States must nevertheless accord to the latter every facility for obtaining the necessary visa.
43. The right of Member State nationals and their spouses to enter and remain on the territory of another Member State is not, however, unconditional. Among the limits laid down or authorised by Community law, Article 2 of Directive 64/221 enables Member States to prohibit nationals of other Member States or their spouses who are nationals of third countries from entering their territory on grounds of public policy or public security (see, with respect to spouses, MRAX , paragraphs 61 and 62).
44. The Community legislature has nevertheless made reliance by the Member States on such grounds subject to strict limits. Article 3(1) of Directive 64/221 states that measures taken on grounds of public policy or public security are to be based exclusively on the personal conduct of the individual concerned. Article 3(2) states that previous criminal convictions are not in themselves to constitute grounds for the taking of such measures. The existence of a previous criminal conviction can, therefore, only be taken into account 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 ( Bouchereau , paragraph 28, and Case C-348/96 Calfa [1999] ECR I-11, paragraph 24).
45. The Court, for its part, has always emphasised that the public policy exception is a derogation from the fundamental principle of freedom of movement for persons which must be interpreted strictly and that its scope cannot be determined unilaterally by the Member States ( Rutili , paragraph 27; Bouchereau , paragraph 33; Calfa , paragraph 23; and Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri  [2004] ECR I-5257, paragraphs 64 and 65).
46. Consequently, 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 the requirements of public policy affecting one of the fundamental interests of society ( Rutili , paragraph 28; Bouchereau , paragraph 35; and Orfanopoulos and Oliveri , paragraph 66).
47. In the case of a national of a third country who is the spouse of a Member State national a strict interpretation of the concept of public policy also serves to protect the latter’s right to respect for his or her family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (see, to that effect, Carpenter , paragraph 41, and Case C-109/01 Akrich  [2003] ECR I-9607, paragraph 58).
48. In those circumstances, it is clear that the concept of public policy within the meaning of Article 2 of Directive 64/221 does not correspond to that in Article 96 of the CISA. According to the latter, an alert in the SIS for the purposes of refusing entry may be based on a threat to public policy where the person concerned has been convicted of an offence carrying a penalty involving deprivation of liberty of at least one year (Article 96(2)(a)), or if he has been subject to a measure based on a failure to comply with national regulations on the entry or residence of aliens (Article 96(3)). Unlike the rules laid down by Directive 64/221, as interpreted by the Court, such circumstances justify in themselves an alert irrespective of any specific assessment of the threat represented by the person concerned.
53. In those circumstances, the inclusion of an entry in the SIS in respect of a national of a third country who is the spouse of a Member State national does indeed constitute evidence that there is a reason to justify refusing him entry into the Schengen Area. However, such evidence must be corroborated by information enabling a Member State which consults the SIS to establish, before refusing entry into the Schengen Area, that the presence of the person concerned in that area constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. In that regard, it should be pointed out that Article 94(i) of the CISA expressly authorises the reason for the alert to be stated.
59. In the light of all of the foregoing, the Court finds that, by refusing entry into the Schengen Area to Mr Farid and by refusing to issue a visa for the purpose of entry into that area to Mr Farid and Mr Bouchair, nationals of a third country who are the spouses of Member State nationals, on the sole ground that they were persons for whom alerts were entered in the SIS for the purposes of refusing them entry, without first verifying whether the presence of those persons constituted a genuine, present and sufficiently serious threat to one of the fundamental interests of society, the Kingdom of Spain has failed to fulfil its obligations under Articles 1 to 3 of Directive 64/221.
The second complaint
Arguments of the parties