Ministerul Administraţiei şi Internelor - Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa.
Date: 2008-07-10
17. It must first of all be noted that, as a Romanian national, Mr Jipa enjoys the status of a citizen of the Union under Article 17(1) EC and may therefore rely on the rights pertaining to that status, including against his Member State of origin, and in particular the right conferred by Article 18 EC to move and reside freely within the territory of the Member States (see, for example, to that effect Case C‑184/99 Grzelczyk  [2001] ECR I‑6193, paragraphs 31 to 33; Case C‑192/05 Tas-Hagen and Tas  [2006] ECR I‑10451, paragraph 19; and Joined Cases C‑11/06 and C‑12/06 Morgan and Bucher  [2007] ECR I‑9161, paragraphs 22 and 23).
18. Next, it should be made clear that, as the Advocate General has pointed out in point 35 of his Opinion, the right of freedom of movement includes both the right for citizens of the European Union to enter a Member State other than the one of origin and the right to leave the State of origin. As the Court has already had occasion to state, the fundamental freedoms guaranteed by the EC Treaty would be rendered meaningless if the Member State of origin could, without valid justification, prohibit its own nationals from leaving its territory in order to enter the territory of another Member State (see by analogy, in respect of freedom of establishment and free movement of workers, Case 81/87 Daily Mail and General Trust  [1988] ECR 5483, paragraph 16; Case C‑379/92 Peralta  [1994] ECR I‑3453, paragraph 31; and Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 97).
21. Finally, it is important to bear in mind that the right of free movement of Union citizens 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, for example, to that effect Case C‑356/98 Kaba  [2000] ECR I‑2623, paragraph 30; Case C‑466/00 Kaba  [2003] ECR I‑2219, paragraph 46; and Case C‑398/06 Commission v Netherlands  [2008] ECR I‑0000, paragraph 27).
22. As far as the main proceedings are concerned, those limitations and conditions derive in particular from Article 27(1) of Directive 2004/38, which provides that Member States may restrict the freedom of movement of Union citizens and their family members on grounds inter alia of public policy or public security.
23. In that respect, the Court has always pointed out that, while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, the fact still remains that, in the Community context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the Community institutions (see, to that effect, Case 36/75 Rutili  [1975] ECR 1219, paragraphs 26 and 27; Case 30/77 Bouchereau  [1977] ECR 1999, paragraphs 33 and 34; Case C‑54/99 Église de scientologie  [2000] ECR I‑1335, paragraph 17; and Case C‑36/02 Omega  [2004] ECR I‑9609, paragraphs 30 and 31). The Court’s case-law has accordingly made it clear that 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, present and sufficiently serious threat to one of the fundamental interests of society (see, for example, Rutili , paragraph 28; Bouchereau , paragraph 35; and Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri  [2004] ECR I‑5257, paragraph 66).
24. Such restrictions on the derogations from the abovementioned fundamental principle that are capable of being invoked by a Member State imply in particular, as is apparent from Article 27(2) of Directive 2004/38, that, in order to be justified, measures taken on grounds of public policy or public security must be based exclusively on the personal conduct of the individual concerned, and justifications that are isolated from the particulars of the case in question or that rely on considerations of general prevention cannot be accepted.
25. It should be added that a measure limiting the exercise of the right of free movement must, as has been rightly pointed out by the Romanian Government and the Commission as well as by the Advocate General in point 43 of his Opinion, be adopted in the light of considerations pertaining to the protection of public policy or public security in the Member State imposing the measure. Thus it cannot be based exclusively on reasons advanced by another Member State to justify a decision to remove a Community national from the territory of the latter State, as in the main proceedings. That does not however rule out the possibility of such reasons being taken into account in the context of the assessment which the competent national authorities undertake for the purpose of adopting the measure restricting freedom of movement (see, by analogy, Case C‑503/03 Commission v Spain  [2006] ECR I‑1097, paragraph 53).
28. It is nevertheless for the national court to make the necessary findings in this respect, on the basis of the matters of fact and of law justifying, in the main proceedings, the request of the Minister for a restriction on Mr Jipa’s right to leave Romania.
29. When making such an assessment, the national court will have also to determine whether that restriction on the right to leave is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it. According to Article 27(2) of Directive 2004/38 and the Court’s settled case-law, a measure which restricts the right of freedom of movement may be justified only if it respects the principle of proportionality (see, for example, to that effect Joined Cases C‑259/91, C‑331/91 and C‑332/91 Alluè and Others [1993] ECR I‑4309, paragraph 15; Case C‑413/99 Baumbast and R  [2002] ECR I‑7091, paragraph 91; and Case C‑100/01 Oteiza Olazabal  [2002] ECR I‑10981, paragraph 43).