1 BY ORDER DATED 13 JANUARY 1977 , RECEIVED AT THE COURT REGISTRY ON 18 JANUARY 1977 THE AMTSGERICHT REUTLINGEN REFERRED TO THE COURT FOUR QUESTIONS ON THE INTERPRETATION OF ARTICLES 7 AND 48 OF THE EEC TREATY AND ARTICLE 4 OF COUNCIL DIRECTIVE NO 68/360/EEC OF 15 OCTOBER 1968 ON THE ABOLITION OF RESTRICTIONS ON MOVEMENT AND RESIDENCE WITHIN THE COMMUNITY FOR WORKERS OF MEMBER STATES AND THEIR FAMILIES ( OJ , ENGLISH SPECIAL EDITION 1968 ( II ), P . 485 ).
2 THESE QUESTIONS HAVE ARISEN IN THE CONTEXT OF CRIMINAL PROCEEDINGS AGAINST TWO ITALIAN NATIONALS AND A FRENCH NATIONAL ACCUSED OF CONTRAVENING THE GERMAN AUSLANDERGESETZ OF 28 APRIL 1965 ( BUNDESGESETZBLATT 1965 , PART I , P . 353 ). IT APPEARS FROM THE FILE THAT THE TWO ITALIAN NATIONALS WERE FINED BY THE COURT FOR HAVING RESIDED IN THE FEDERAL REPUBLIC OF GERMANY WITHOUT A VALID PASSPORT OR IDENTITY CARD AND IN CONSEQUENCE WITHOUT A VALID RESIDENCE PERMIT . THE FRENCH NATIONAL WAS IN POSSESSION OF A VALID PASSPORT BUT HAD REFUSED TO COMPLY WITH THE FORMALITIES REQUIRED BY THE GERMAN AUTHORITIES TO OBTAIN A RESIDENCE PERMIT AND HAD BEEN REMANDED IN CUSTODY FOR A SHORT TIME ; HE IS ACCUSED OF NOT HAVING REGULARIZED HIS POSITION IN ACCORDANCE WITH THE RELEVANT PROVISIONS .
3 THE FIRST , SECOND AND FOURTH QUESTIONS INQUIRE ESSENTIALLY WHETHER THE MEMBER STATES MAY APPLY THEIR GENERAL PROVISIONS ON THE ENTRY AND RESIDENCE OF ALIENS AND , WHERE APPROPRIATE , THE PENAL PROVISIONS PROVIDED IN THE CASE OF NON-COMPLIANCE WITH THESE PROVISIONS TO PERSONS ENJOYING THE PROTECTION OF COMMUNITY LAW . MORE PARTICULARLY THE COURT IS ASKED : - CAN THE SPECIAL RESIDENCE DOCUMENT WHICH HAS DECLARATORY EFFECT AND IS REFERRED TO IN ARTICLE 4 OF COUNCIL DIRECTIVE 68/360 ISSUED AS PROOF OF A RIGHT OF RESIDENCE FOR ALIENS ENTITLED THERETO BY VIRTUE OF ARTICLE 48 ET SEQ . OF THE EEC TREATY BE TREATED AS BEING ON ALL FOURS FOR THE PURPOSES OF ADMINISTRATIVE AND CRIMINAL LAW WITH THE RESIDENCE PERMIT ISSUED UNDER THE GERMAN AUSLANDERGESETZ WITH THE RESULT THAT SUCH ALIENS WHO DO NOT HOLD THE DOCUMENT AUTHORIZING RESIDENCE UNDER THE FIRST OR SECOND SUBPARAGRAPH OF ARTICLE 47 ( 1 ) OF THE AUSLANDERGESETZ OR WHO HOLD SUCH A DOCUMENT WHICH HAS CEASED TO BE VALID CAN BE SENTENCED UNDER ARTICLE 5 OF THE AUSLANDERGESETZ FOR RESIDENCE OR ENTRY WITHOUT A VALID RESIDENCE PERMIT , OR DOES SUCH A SENTENCE CONTRAVENE THE EEC TREATY? - IS THE EEC TREATY CONTRAVENED IF AN ALIEN DIRECTLY ENTITLED UNDER ARTICLE 48 OF THE EEC TREATY AND THE ABOVEMENTIONED COUNCIL DIRECTIVE IS ISSUED ONLY WITH A RESIDENCE PERMIT UNDER ARTICLE 5 OF THE AUSLANDERGESETZ WITH THE POSSIBLE ADVERSE EFFECTS OF ARTICLE 47 OF THAT LAW? - IS THE EEC TREATY CONTRAVENED IF AN ALIEN TO WHOM ARTICLE 48 OF THE EEC TREATY APPLIES WHO IN THE PREVIOUS YEAR HAD BEEN FINED FOR AN OFFENCE AGAINST THE AUSLANDERGESETZ COMMITTED INTENTIONALLY BECAUSE HE HAD RESIDED IN THE TERRITORY OF THE FEDERAL REPUBLIC WITHOUT A RESIDENCE PERMIT IS SENTENCED TO IMPRISONMENT FOR A SIMILAR OFFENCE AFTER THE JUDGMENT FOR THE PREVIOUS OFFENCE HAS BECOME ABSOLUTE?
4 THE RIGHTS OF NATIONALS OF A MEMBER STATE TO ENTER THE TERRITORY OF ANOTHER MEMBER STATE AND TO RESIDE THERE FOR THE PURPOSES MENTIONED IN THE TREATY FOLLOWS , AS THE COURT MAKING THE REFERENCE RIGHTLY STATES , DIRECTLY FROM THE TREATY OR , AS THE CASE MAY BE , FROM THE PROVISIONS ADOPTED FOR ITS IMPLEMENTATION . NEVERTHELESS COMMUNITY LAW HAS NOT DEPRIVED MEMBER STATES OF THE POWER TO ADOPT MEASURES TO ENABLE THE NATIONAL AUTHORITIES TO HAVE PRECISE INFORMATION OF MOVEMENTS OF POPULATION IN ITS TERRITORY . TO ENABLE THE MEMBER STATES TO OBTAIN SUCH DATA AND AT THE SAME TIME TO PUT THOSE CONCERNED IN A POSITION TO PROVE THEIR LEGAL POSITION WITH REGARD TO THE APPLICATION OF THE PROVISIONS OF THE TREATY TWO FORMALITIES ARE PROVIDED FOR IN ARTICLES 2 AND 4 OF DIRECTIVE NO 68/360 : THE PERSONS IN QUESTION MUST HAVE A VALID IDENTITY CARD OR PASSPORT AND BE ABLE TO PROVE THEIR RIGHT OF RESIDENCE BY A DOCUMENT ENTITLED ' RESIDENCE PERMIT FOR A NATIONAL OF A MEMBER STATE OF THE EEC ' WHICH MUST INCLUDE THE STATEMENT SET OUT IN THE ANNEX TO THE DIRECTIVE . UNDER THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY IT IS FOR THE MEMBER STATES TO CHOOSE THE FORM AND METHODS TO IMPLEMENT THE PROVISIONS OF THE DIRECTIVE IN THEIR TERRITORY EITHER BY THE ADOPTION OF A SPECIAL LAW OR REGULATIONS OR BY THE APPLICATION OF APPROPRIATE PROVISIONS OF THEIR GENERAL REGULATIONS ON ALIENS . THE MEMBER STATES ARE ALSO COMPETENT TO LAY DOWN PENALTIES OR TO APPLY THE PENALTIES PROVIDED FOR IN THEIR GENERAL REGULATIONS IN ORDER TO SECURE OBSERVANCE IN THEIR TERRITORY OF THE FORMALITIES PROVIDED FOR IN DIRECTIVE NO 68/360 .
5 IF A MEMBER STATE EXECUTES THE DIRECTIVE ON THE BASIS OF ITS GENERAL REGULATIONS ON THE LEGAL STATUS OF ALIENS , IT MUST NATURALLY NOT ADOPT ADMINISTRATIVE OR JUDICIAL MEASURES WHICH WOULD HAVE THE EFFECT OF LIMITING THE FULL EXERCISE OF THE RIGHTS WHICH THE COMMUNITY LAW GUARANTEES TO THE NATIONALS OF OTHER MEMBER STATES . IN PARTICULAR IT WOULD BE INCOMPATIBLE WITH COMMUNITY LAW FOR A GENERAL RESIDENCE PERMIT TO BE REQUIRED OR ISSUED HAVING A DIFFERENT SCOPE FROM THE PROOF OF THE RIGHT OF RESIDENCE BY THE ISSUE OF THE SPECIAL ' RESIDENCE PERMIT ' PROVIDED FOR IN ARTICLE 4 ( 2 ) OF DIRECTIVE NO 68/360 .
6 THE IMPOSITION OF PENALTIES OR OTHER COERCIVE MEASURES IS THEREFORE RULED OUT IN SO FAR AS A PERSON PROTECTED BY THE PROVISIONS OF COMMUNITY LAW DOES NOT COMPLY WITH NATIONAL PROVISIONS WHICH PRESCRIBE FOR SUCH A PERSON POSSESSION OF A GENERAL RESIDENCE PERMIT INSTEAD OF THE DOCUMENT PROVIDED FOR IN DIRECTIVE NO 68/360 , SINCE THE NATIONAL AUTHORITIES SHOULD NOT IMPOSE PENALTIES FOR DISREGARD OF A PROVISION WHICH IS INCOMPATIBLE WITH COMMUNITY LAW . ON THE OTHER HAND COMMUNITY LAW DOES NOT PRECLUDE THE APPROPRIATE PUNISHMENT FOR INFRINGEMENT BY THE PERSON CONCERNED OF NATIONAL PROVISIONS ADOPTED IN CONFORMITY WITH DIRECTIVE NO 68/360 .
7 THE SAME APPLIES TO THE QUESTION WHETHER THE REPEATED DISREGARD OF PROVISIONS WHICH A MEMBER STATE HAS ADOPTED IN EXECUTION OF DIRECTIVE NO 68/360 CAN WHERE APPROPRIATE JUSTIFY INCREASING THE PENALTIES IMPOSED . COMMUNITY LAW DOES NOT PREVENT SUCH AN INCREASE IN PENALTIES WHICH IS CONSISTENT WITH GENERAL PRINCIPLES OF PENAL LAW . HOWEVER THIS DOES NOT AFFECT THE OBLIGATION OF THE COURT TO ASCERTAIN WHETHER THE CONDITIONS FOR SUCH AN INCREASE IN PENALTIES ARE FULFILLED WHERE THERE HAS BEEN A PRIOR CONVICTION ON THE BASIS OF LEGAL PROVISIONS THE APPLICATION OF WHICH WAS NOT JUSTIFIED UNDER COMMUNITY LAW . EVEN IF THE FORCE OF RES JUDICATA DOES NOT ALLOW SUCH A PRIOR CONVICTION TO BE COMPLETELY NULLIFIED ITS EFFECT CANNOT BE EXTENDED IN SUCH A WAY THAT IT IS REGARDED AS AN AGGRAVATING CIRCUMSTANCE IN CONNEXION WITH A SUBSEQUENT CONVICTION WHICH IS JUSTIFIED UNDER COMMUNITY LAW .
8 THE QUESTIONS PUT TO THE COURT MUST THEREFORE BE ANSWERED AS FOLLOWS : THE ISSUE OF THE SPECIAL RESIDENCE DOCUMENT PROVIDED FOR IN ARTICLE 4 OF COUNCIL DIRECTIVE NO 68/360 HAS ONLY A DECLARATORY EFFECT AND FOR ALIENS TO WHOM ARTICLE 48 OF THE TREATY OR PARALLEL PROVISIONS GIVE RIGHTS , IT CANNOT BE ASSIMILATED TO A RESIDENCE PERMIT SUCH AS IS PRESCRIBED FOR ALIENS IN GENERAL AND IN CONNEXION WITH THE ISSUE OF WHICH THE NATIONAL AUTHORITIES HAVE A DISCRETION . A MEMBER STATE MAY NOT REQUIRE FROM A PERSON ENJOYING THE PROTECTION OF COMMUNITY LAW THAT HE SHOULD POSSESS A GENERAL RESIDENCE PERMIT INSTEAD OF THE DOCUMENT PROVIDED FOR IN ARTICLE 4 ( 2 ) OF DIRECTIVE NO 68/360 IN CONJUNCTION WITH THE ANNEX THERETO NOR MAY IT IMPOSE PENALTIES FOR THE FAILURE TO POSSESS SUCH A PERMIT . THE FORCE OF RES JUDICATA ARISING FROM A PRIOR CONVICTION ARRIVED AT ON THE BASIS OF NATIONAL PROVISIONS NOT IN ACCORDANCE WITH THE REQUIREMENTS OF COMMUNITY LAW CANNOT JUSTIFY AN INCREASE IN THE PENALTIES TO BE IMPOSED FOR AN INFRINGEMENT OF THE PROVISIONS WHICH A MEMBER STATE HAS ADOPTED TO SECURE THE APPLICATION OF DIRECTIVE NO 68/360 IN ITS TERRITORY .
9 THE THIRD QUESTION IS AS FOLLOWS : IS THERE AN INFRINGEMENT OF THE PROHIBITION ON DISCRIMINATION LAID DOWN IN ARTICLE 7 OF THE EEC TREATY OR THE LETTER AND SPIRIT OF THE TREATY ( ARTICLE 5 ) IF AN ALIEN , WHO UNDER ARTICLE 48 OF THE EEC TREATY OR UNDER ONE OF THE PROVISIONS MADE IN IMPLEMENTATION THEREOF IS OR ORIGINALLY WAS ENTITLED TO RESIDE IN OR TO ENTER THE FEDERAL REPUBLIC OF GERMANY FOR THE PURPOSES SET OUT THEREIN AND WHOSE NATIONAL PASSPORT OR DOCUMENT IN LIEU THEREOF REQUIRED UNDER ARTICLE 3 OF THE AUSLANDERGESETZ AND ARTICLE 10 OF THE AUFENTHALTSGESETZ/EWG ( LAW ON ENTRY AND RESIDENCE OF NATIONALS OF THE MEMBER STATES OF THE EEC ) HAS CEASED TO BE VALID , CAN BE SENTENCED WITHIN THE AMBIT OF THE GERMAN AUSLANDERGESETZ UNDER THE FIRST OR SECOND SUBPARAGRAPH OF ARTICLE 47 ( 1 ) THEREOF TO IMPRISONMENT FOR UP TO ONE YEAR OR FINED UP TO 360 TIMES HIS NET DAILY INCOME FOR AN OFFENCE , WHILST A GERMAN NATIONAL WHOSE IDENTITY CARD REQUIRED UNDER THE COMPARABLE FEDERAL OR REGIONAL LAWS GOVERNING IDENTITY CARDS HAS CEASED TO BE VALID CAN ONLY BE FINED FOR A MINOR OFFENCE ( ARTICLE 47 OF THE GESETZ UBER ORDNUNGSWIDRIGKEITEN ( LAW ON MINOR OFFENCES )) - ALTHOUGH PROCEEDINGS ARE NOT AS A RULE TAKEN - UP TO DM 500 WHERE THE OFFENCE IS COMMITTED NEGLIGENTLY OR UP TO DM 1 000 WHERE IT IS COMMITTED INTENTIONALLY?
10 THIS QUESTION CONCERNS IN PARTICULAR THE CASE WHERE A PERSON WHO IS ENTITLED UNDER COMMUNITY LAW TO RESIDE IN THE TERRITORY OF THE COUNTRY IN QUESTION NEGLECTS TO OBTAIN A VALID IDENTITY CARD . SINCE THIS REQUIREMENT IS EXPRESSLY CONTAINED IN DIRECTIVE NO 68/360 THE POWER OF MEMBER STATES TO PUNISH INFRINGEMENTS OF THIS DUTY CANNOT IN PRINCIPLE BE CONTESTED . THE COURT MAKING THE REFERENCE NEVERTHELESS ASKS IN THIS CONNEXION WHETHER IT IS COMPATIBLE WITH COMMUNITY LAW AND IN PARTICULAR WITH THE PROHIBITION ON DISCRIMINATION IN ARTICLE 7 OF THE TREATY TO MAKE A PERSON WHO IS SUBJECT TO COMMUNITY LAW LIABLE TO THE RELATIVELY HEAVY PENALTIES WHICH THE GENERAL LAW ON ALIENS PROVIDES FOR SUCH AN INFRINGEMENT WHEREAS A NATIONAL ON INFRINGING SIMILAR LEGAL PROVISIONS IS LIABLE ONLY TO THE CONSIDERABLY LIGHTER PENALTIES WHICH APPLY TO MINOR OFFENCES .
11 THE FIRST PARAGRAPH OF ARTICLE 7 OF THE EEC TREATY STATES : ' WITHIN THE SCOPE OF APPLICATION OF THIS TREATY , AND WITHOUT PREJUDICE TO ANY SPECIAL PROVISIONS CONTAINED THEREIN , ANY DISCRIMINATION ON GROUNDS OF NATIONALITY SHALL BE PROHIBITED ' . WITH REGARD TO THE QUESTION PUT BY THE COURT MAKING THE REFERENCE IT SHOULD BE POINTED OUT THAT THE GENERAL PRINCIPLE OF ARTICLE 7 CAN ONLY APPLY SUBJECT TO THE SPECIAL PROVISIONS OF THE TREATY . THESE SPECIAL PROVISIONS INCLUDE THE REGULATIONS AND DIRECTIVES , INCLUDING AMONG THESE DIRECTIVE NO 68/360 , PROVIDED FOR IN ARTICLE 49 TO BRING ABOUT , BY PROGRESSIVE STAGES , FREEDOM OF MOVEMENT . IN SO FAR AS THIS DIRECTIVE IMPOSES SPECIAL OBLIGATIONS ( SUCH AS THE POSSESSION OF A PASSPORT OR AN IDENTITY CARD ) ON THE NATIONALS OF A MEMBER STATE WHO ENTER THE TERRITORY OF ANOTHER MEMBER STATE OR RESIDE THERE , THE PERSONS AFFECTED THEREBY CANNOT BE SIMPLY PUT ON THE SAME FOOTING AS NATIONALS OF THE COUNTRY OF RESIDENCE .
12 THERE IS THEREFORE NO OBJECTION TO SUCH PERSONS BEING SUBJECT TO DIFFERENT PENAL PROVISIONS FROM THOSE APPLYING TO NATIONALS WHO INFRINGE AN OBLIGATION , POSSIBLY HAVING ITS ORIGIN IN A LAW OR REGULATION , TO OBTAIN CERTAIN IDENTITY DOCUMENTS . THIS CONCLUSION FOLLOWS ALL THE MORE FORCIBLY IN THAT SEVERAL MEMBER STATES DO NOT IMPOSE ANY SUCH OBLIGATION BY LAW ON THEIR OWN NATIONALS SO THAT IN THESE COUNTRIES THERE WOULD BE NO STANDARD OF COMPARISON . IN THE ABSENCE OF A CRITERION WHICH IN THE PRESENT CASE MIGHT BE BASED ON THE PRINCIPLE OF NATIONAL TREATMENT CONTAINED IN ARTICLE 7 OF THE TREATY IT IS NEVERTHELESS TO BE OBSERVED THAT ALTHOUGH MEMBER STATES ARE ENTITLED TO IMPOSE REASONABLE PENALTIES FOR INFRINGEMENT BY PERSONS SUBJECT TO COMMUNITY LAW OF THE OBLIGATION TO OBTAIN A VALID IDENTITY CARD OR PASSPORT , SUCH PENALTIES SHOULD BY NO MEANS BE SO SEVERE AS TO CAUSE AN OBSTACLE TO THE FREEDOM OF ENTRY AND RESIDENCE PROVIDED FOR IN THE TREATY . TO THIS EXTENT IT CANNOT BE RULED OUT THAT THE PENALTIES PRESCRIBED IN GENERAL PROVISIONS OF LAWS RELATING TO ALIENS , HAVING REGARD TO THE OBJECTIVE OF SUCH PROVISIONS , ARE NOT COMPATIBLE WITH THE REQUIREMENTS OF COMMUNITY LAW WHICH IS BASED ON THE FREEDOM OF MOVEMENT OF PERSONS AND , APART FROM CERTAIN EXCEPTIONS , ON THE GENERAL APPLICATION OF THE PRINCIPLE OF EQUAL TREATMENT WITH NATIONALS . IF A MEMBER STATE HAS NOT ADAPTED ITS LEGAL PROVISIONS TO THE REQUIREMENTS OF COMMUNITY LAW IN THIS SPHERE IT IS THE TASK FOR THE NATIONAL COURT TO USE ITS JUDICIAL DISCRETION TO IMPOSE A PUNISHMENT APPROPRIATE TO THE CHARACTER AND OBJECTIVE OF THE PROVISIONS OF COMMUNITY LAW THE OBSERVANCE OF WHICH THE PENALTY IS INTENDED TO SAFEGUARD .
13 THE ANSWER TO THE QUESTION RAISED MUST THEREFORE BE THAT IT IS FOR THE COMPETENT AUTHORITIES OF EACH MEMBER STATE TO IMPOSE PENALTIES WHERE APPROPRIATE ON A PERSON SUBJECT TO THE PROVISIONS OF COMMUNITY LAW WHO HAS FAILED TO PROVIDE HIMSELF WITH ONE OF THE DOCUMENTS OF IDENTITY REFERRED TO IN ARTICLE 3 ( 1 ) OF DIRECTIVE NO 68/360 BUT THAT THE PENALTIES IMPOSED MUST NOT BE DISPROPORTIONATE TO THE NATURE OF THE OFFENCE COMMITTED .