Georgios Orfanopoulos and Others (C-482/01) and Raffaele Oliveri (C-493/01) v Land Baden-Württemberg.
Date: 2004-04-29
42. In that regard, is it sufficient to point out that it is not for the Court, in the context of a reference for a preliminary ruling, to rule on the interpretation of national provisions or to decide whether the referring court’s interpretation thereof is correct (see, to that effect, Case C-58/98 Corsten  [2000] ECR I-7919, paragraph 24). The Court must take account, under the division of jurisdiction between the Community courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see Case C-475/99 Ambulanz Glöckner [2001] ECR I-8089, paragraph 10, and Case C-153/02 Neri [2003] ECR I-0000, paragraphs 34 and 35).
47. In that regard, it must be noted that, as Community law stands at present, the right of nationals to travel to and reside in another Member State is not unconditional. That follows, first, from the provisions on the free movement of persons and services contained in Title III of Part Three of the Treaty, namely Articles 39 EC, 43 EC, 46 EC, 49 EC and 55 EC, and the secondary legislation adopted to give them effect and, second, from the provisions of Part Two of the Treaty, more specifically Article 18 EC, which, while granting citizens of the Union the right to move and reside freely within the Member States, expressly refers to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect (see, to that effect, Case C-356/98 Kaba I  [2000] ECR I-2623, paragraph 30, and Case C-466/00 Kaba II  [2003] ECR I‑2219, paragraph 46).
49. So far as concerns migrant workers who are nationals of a Member State, their right of residence is subject to the condition that the person remains a worker or, where relevant, a person seeking employment (see, to that effect, Case C-292/89 Antonissen  [1991] ECR I-745, paragraph 22), unless they derive that right from other provisions of Community law (see Kaba II , cited above, paragraph 47).
50. Moreover, in respect more particularly of prisoners who were employed before their imprisonment, the fact that the person concerned was not available on the employment market during such imprisonment does not mean, as a general rule, that he did not continue to be duly registered as belonging to the labour force of the host Member State during that period, provided that he actually finds another job within a reasonable time after his release (see, to that effect, Case C-340/97 Nazli [2000] ECR I-957, paragraph 40).
59. It is clear from the file, that, by its question, the national court is referring to Paragraph 47(1) of the Ausländergesetz (duty to expel), which is the legal basis of the decision to expel Mr Oliveri.
– Observations submitted to the Court
62. The principle of freedom of movement for workers, enshrined in Article 39 EC, forms one of the foundations of the Community (see, among others, Case 139/85 Kempf  [1986] ECR I-1741, paragraph 13). It is established that a measure providing for expulsion of nationals of other Member States is an obstacle to the exercise of that freedom. None the less, such an obstacle may be justified, under Article 39(3) of Directive 64/221, on grounds of public policy (see, to that effect, Joined Cases C-65/95 and C-111/95 Shingara and Radiom  [1997] ECR I-3343, paragraph 28).
64. In that regard, the Court has consistently held that the principle of freedom of movement for workers must be given a broad interpretation (see, to that effect, Antonissen , cited above, paragraph 11, and Case C‑344/95 Commission  v Belgium  [1997] ECR I‑1035, paragraph 14), whereas derogations from that principle must be interpreted strictly (see, to that effect, Case 41/74 Van Duyn  [1974] ECR 1337, paragraph 18; Case 67/74 Bonsignore  [1975] ECR 297, paragraph 6; Kempf , cited above, paragraph 13; and Case C-357/98 Yiadom  [2000] ECR I-9265, paragraph 24).
65. It must be added that a particularly restrictive interpretation of the derogations from that freedom is required by virtue of a person’s status as a citizen of the Union. As the Court has held, that status is destined to be the fundamental status of nationals of the Member States (see, in particular, Case C-184/99 Grzelczyk [2001] ECR I‑6193, paragraph 31, and Case C‑138/02 Collins [2004] ECR I-0000, paragraph 61).
66. Concerning measures of public policy, it is clear from Article 3 of Directive 64/221 that, in order to be justified, they must be based exclusively on the personal conduct of the individual concerned. It is stated in the same provision that previous criminal convictions cannot in themselves justify those measures. As the Court has held, particularly in Case 30/77 Bouchereau  [1977] ECR 1999, paragraph 35, the concept of public policy presupposes 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.
67. While it is true that a Member State may 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, the public policy exception must, however, be interpreted restrictively, with the result that the existence of a previous criminal conviction can justify an expulsion 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, in particular, Case C‑348/96 Calfa [1999] ECR I-11, paragraphs 22 to 24).
68. The Court has therefore concluded that Community law precludes the deportation of a national of a Member State based on reasons of a general preventive nature, that is one which has been ordered for the purpose of deterring other aliens (see, in particular, Bonsignore , cited above, paragraph 7), in particular where such measure automatically follows a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of public policy (see Calfa , paragraph 27, and Nazli , paragraph 59).
69. The question asked by the national court refers to national legislation which requires the expulsion of nationals of other Member States who have received certain sentences for specific offences.
77. For the purposes of deciding whether a national of another Member State may be expelled under the exception based on reasons of public policy, the competent national authorities must assess, on a case-by-case basis, whether the measure or the circumstances which gave rise to that expulsion order prove the existence of personal conduct constituting a present threat to the requirements of public policy (see, in particular, Calfa , cited above, paragraph 22). As the Advocate General points out in point 126 of her Opinion, no more specific information as to what constitutes the ‘presence’ of the threat is evident from the wording of Article 3 of Directive 64/221 or the Court’s case-law.
78. It is not disputed that, in practice, circumstances may arise between the date of the expulsion order and that of its review by the competent court which point to the cessation or the substantial diminution of the threat which the conduct of the person ordered to be expelled constitutes to the requirements of public policy.
79. As is clear from paragraphs 64 and 65 of this judgment, derogations from the principle of freedom of movement for workers must be interpreted strictly, and thus the requirement of the existence of a present threat must, as a general rule, be satisfied at the time of the expulsion.
80. While it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, the fact remains that those rules must not be such as to render virtually impossible or excessively difficult the exercise of rights conferred by Community law (see, to that effect, Case 33/76 Rewe  [1976] ECR 1989, paragraph 5, and Case C-129/00 Commission  v Italy  [2003] ECR I-0000, paragraph 25).
82. In the light of the foregoing, the reply to the second question must be that Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court.
Case C-482/01
First question
– Scope of the question
93. If the system in question does indeed have such an effect, that means that the expulsion of a national of another Member State who has received a particular sentence for specific offences is ordered, in spite of family considerations being taken into account, on the basis of a presumption that that national must be expelled, without proper account being taken of his personal conduct or of the danger he represents for the requirements of public policy.
95. So far as the question referred by the national court is concerned, it must be pointed out that the examination on a case-by-case basis by the national authorities of whether there is personal conduct constituting a present threat to the requirements of public policy and, if necessary, of where lies the fair balance between the legitimate interests in issue must be made in compliance with the general principles of Community law.
96. It is for the competent national authority to take into account, in its assessment of where lies the fair balance between the legitimate interests in issue, the particular legal position of persons subject to Community law and of the fundamental nature of the principle of the free movement of persons (see, to that effect, Bouchereau , cited above, paragraph 30).
97. Moreover, it is necessary to take into account the fundamental rights whose observance the Court ensures. Reasons of public interest may be invoked to justify a national measure which is likely to obstruct the exercise of the freedom of movement for workers only if the measure in question takes account of such rights (see, to that effect, Case C-260/89 ERT  [1991] ECR I-2925, paragraph 43; Case C-368/95 Familiapress  [1997] ECR I-3689, paragraph 24; and Case C‑60/00 Carpenter [2002] ECR I-6279, paragraph 40).
98. It must be noted, in that context, that the importance of ensuring the protection of the family life of Community nationals in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty has been recognised under Community law. It is clear that the removal of a person from the country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed by Article 8 of the ECHR, which is among the fundamental rights, which, according to the Court’s settled case-law, are protected in Community law (see, Carpenter , cited above, paragraph 41).
99. Finally, the necessity of observing the principle of proportionality must be emphasised. To assess whether the interference envisaged is proportionate to the legitimate aim pursued, in this instance the protection of public policy, account must be taken, particularly, of the nature and seriousness of the offences committed by the person concerned, the length of his residence in the host Member State, the period which has elapsed since the commission of the offence, the family circumstances of the person concerned and the seriousness of the difficulties which the spouse and any of their children risk facing in the country of origin of the person concerned (see, as regards Article 8 of the ECHR, Boultif  v Switzerland  (54273/00) [2001] ECHR 493, paragraph 48).
105. The object of Article 9(1) of Directive 64/221 is to ensure a minimum procedural safeguard for persons affected by a decision ordering their expulsion from the territory. That article, which applies in three cases, namely where there is no right of appeal to a court of law, where such an appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, provides for the intervention of a competent authority other than that empowered to take the decision. Save in cases of urgency, the administrative authority may not take its decision until an opinion has been obtained from the other competent authority. The person concerned must enjoy such rights of defence before the latter authority and of assistance or representation as the domestic law of that country provides for (see, to that effect, Joined Cases C-297/88 and C-197/89 Dzodzi  [1990] ECR I-3763, paragraph 62, and Yiadom , cited above, paragraphs 29 to 31).
106. It is clear from the Court’s case-law that the intervention on the part of the ‘competent authority’ mentioned in Article 9(1) must make it possible for an exhaustive examination to be made of all the facts and circumstances, including the expediency of the measure in question, before the decision is definitively adopted ( Santillo , cited above, paragraph 12, and Joined Cases 115/81 and 116/81 Adoui and Cornuaille  [1982] ECR 1665, paragraph 15). The Court has also stated that, save in urgent cases, the administrative authority may not take its decision until an opinion has been obtained from the competent authority (Case 98/79 Pecastaing  [1980] ECR 691, paragraph 17, and Dzodzi , cited above, paragraph 62).
110. Such an interpretation does not permit persons affected by decisions ordering their expulsion the safeguard of an exhaustive examination of the expediency of the measure in question and does not meet the requirements of sufficiently effective protection (see, to that effect, Case 222/84 Johnston  [1986] ECR 1651, paragraph 17, and Case 222/86 Heylens and Others  [1987] ECR 4097, paragraphs 14 and 15). It would, indeed, be likely to deprive Article 9(1) of Directive 64/221 of its practical effect.
114. Directive 64/221 does not define the expression ‘independent authority’. As is clear from paragraph 19 of the judgment in Santillo , cited above, the directive leaves a discretion to the Member States as regards the designation of the authority. Any public authority independent of the administrative authority called on to adopt any of the measures provided for by that directive may be regarded as such an authority; it must be organised in such a way that the person concerned has the right to be represented and to defend himself before it.