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	Databáze č. 17 : Databáze judikatury

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	Číslo (Kód CELEX): Number (CELEX Code):		61981J0115

	Název: Title:		JUDGMENT OF THE COURT, 18 MAY 1982. REZGUIA ADOUI V BELGIAN STATE AND CITY OF LIEGE. DOMINIQUE CORNUAILLE V BELGIAN STATE. (REFERENCES FOR A PRELIMINARY RULING FROM THE TRIBUNAL DE PREMIERE INSTANCE, LIEGE). PUBLIC POLICY - RIGHT OF RESIDENCE OR ESTABLISHMENT. JOINED CASES 115 AND 116/81.

	Publikace: Publication:		REPORTS OF CASES 1982 PAGES 1665 - 1713

	Předmět (klíčová slova): Keywords		FREE MOVEMENT OF WORKERS;

	Související předpisy: Corresponding acts:		157E048;157E056;364L0221

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		[149] Bouchereau Case 30/77 Bouchereau [1977] ECR 1999 · [096] Bonsignore Case 67/74 Bonsignore [1975] ECR 297 · [090] Van Duyn Case 41/74 Van Duyn v Home Office [1974] ECR 1337 · [710] Gallagher Case C-175/94 The Queen v Secretary of State, ex parte Gallagher [1995] ECR I-4253


	Plný text: Fulltext:		Ne

Fakta:
Miss Adoui, a French national, worked in Belgium as a waitress. She was denied a residence permit by the Belgian authorities and ordered to leave the country on the ground that her personal conduct made her residence undesirable for reasons of public policy and that she worked in a bar which was suspect from the point of view of morals and in which waitresses displayed themselves in the window and were able to be alone with their clients, such conduct being contrary to a Police Order of the City of Ličge. Similarly, Miss Cournaille, also of French nationality, was ordered to leave the country, in particular because, pursuant to the observations of the police, she was a waitress of questionable moral character who “in scant dress displays herself to clients”.
In the proceedings which both women instituted before the Belgian courts, a number of questions concerning the interpretation of Community law arose. The President of the Tribunal de Premičre Instance (Court of First Instance), Ličge, stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice the questions - as reworded and interpreted by the Court - (1) whether a Member State may, by virtue of the reservation contained in Articles 48 and 56 of the EEC Treaty, expel from its territory a national of another Member State or deny him access to that territory by reasons of activities which, when attributable to the former State’s own nationals, do not give rise to repressive measures; (2) whether a Member State may, following a policy intended to remove from its territory prostitutes because they could promote criminal activities, as a preventive measure under Article 3 of Directive 64/221/EEC Of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117).
, expel prostitutes without considering in every single case whether the person concerned may or may not be suspected of contact with the “underworld”; (3) under what circumstances a person expelled from a Member State in accordance with Community law may reapply for a residence permit; (4) whether the statement of reasons required by Article 6 of Directive 64/221 must be in the mother tongue of the person expelled and if it had to be complete, detailed and candid and whether the State may employ a standard form repeated in a large number of cases. Finally, (5) the national court asked for a clarification of a number of questions concerning the “competent authority” referred to in Article 9 of Directive 64/221 and the procedure before that authority.

Názor soudu a komentář:
With its first question, the national Court asked in essence whether the fact that in relying on the public policy reservation contained in Articles 48 and 56, a Member State could treate foreign nationals different from its own nationals. The reservations contained in Articles 48 and 56 allows the Member States to treat nationals from other Member States different from its own nationals in so far as it may, on the grounds specified in those provisions, apply to the former measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the national territory. However, a different treatment of foreign nationals is admissible only under two distinct limitations: (i) Firstly, such difference in treatment may not amount to an arbitrary distinction to the detriment of nationals from other Member States. (ii) Secondly, a different treatment of foreign nationals and a Member State’s own nationals can have an impact on the question whether the ground relied on by the Member State constitutes a reason of public policy: “[T]he concept of public policy presupposes, as the Court held in its judgement in Bouchereau ( [149]), the existence of ‘a genuine and sufficiently serious threat affecting one of the fundamental interests of society’”. Since “Community law does not impose upon the Member State a uniform scale of values as regards the assessment of conduct which may be considered as contrary to public policy”, the Member States have a level of discretion in defining - within the aforementioned framework - what constitutes public policy. However, the assessment of a conduct as being contrary to public policy may can not be considered “sufficiently serious” within the meaning of the above definition if the Member State does not adopt, with respect to the same conduct on part of its own nationals repressive measures or other genuine effective measures intended to combat such conduct (see also [090] Van Duyn).
With regard to the expulsion on preventive grounds, the Court, relying on its established case-law ( [096] Bonsignore), points out that under Article 3(1) of Directive 64/221, measures taken on grounds of public policy or of public security are to be based exclusively on personal conduct and may not be justified on grounds extraneous to the individual case.
A re-application for a residence permit after a lawful expulsion is, in principle, admissible for a national of a Member State seeking employment in the host-Member State. “Such an application, when submitted after a reasonable period has elapsed, must be examined by the competent administrative authority in the host State, which must take into account, in particular, the arguments put forward by the person concerned purporting to establish that there has been a material change in the circumstances which justified the decision ordering his expulsion.”The notification required by Article 6 of Directive 64/221 must inform the person concerned of the grounds of public policy, public security or public health on which the decision is based. As is clear from its purpose, the notification must be sufficiently detailed and precise to enable the person concerned to defend his interests. The directive does not, however, require that the notification be in the mother tongue of the person concerned, it is sufficient that it is made in such a way as to enable the person concerned to comprehend the contend and effect thereof.
With respect to the final question, the Court points out that the “object of Article 9(1) of the directive is to ensure a minimum procedural safeguard for persons against whom an expulsion measure has been adopted.” The provision, however, leaves it for the Member States to determine the competent authority. Article 9 does not require that the competent authority be a court or that its members are appointed for a specific period. “The essential requirement is that it should be clearly established that the authority is to perform its duties in absolute independence and is not to be directly or indirectly subject, in the exercise of its duties, to any control by the authority empowered to take the measures provided for in the directive.” The opinion delivered by the competent authority must be duly notified to the person concerned. The directive does not ,however, require the opinion to identify by name the members or indicate their professional status (see also [710] Gallagher). As regards the procedure before the competent authority, “Article 9(1) of Directive 64/221 expressly provides that the person concerned must be entitled to put forward his arguments in defence before that authority and to be assisted or represented in such conditions as to procedure as are provided for by domestic legislation. Those conditions must not be less favourable to the person concerned than the conditions applicable to proceedings before other national authorities of the same type.”

Shrnutí (Summary of the Judgment):
1. RELIANCE BY A NATIONAL AUTHORITY UPON THE CONCEPT OF PUBLIC POLICY PRESUPPOSES THE EXISTENCE OF A GENUINE AND SUFFICIENTLY SERIOUS THREAT AFFECTING ONE OF THE FUNDAMENTAL INTERESTS OF SOCIETY. ALTHOUGH COMMUNITY LAW DOES NOT IMPOSE UPON THE MEMBER STATES A UNIFORM SCALE OF VALUES AS REGARDS THE ASSESSMENT OF CONDUCT WHICH MAY BE CONSIDERED CONTRARY TO PUBLIC POLICY, CONDUCT MAY NOT BE CONSIDERED AS BEING OF A SUFFICIENTLY SERIOUS NATURE TO JUSTIFY RESTRICTIONS ON THE ADMISSION TO OR RESIDENCE WITHIN THE TERRITORY OF A MEMBER STATE OF A NATIONAL OF ANOTHER MEMBER STATE IN A CASE WHERE THE FORMER MEMBER STATE DOES NOT ADOPT, WITH RESPECT TO THE SAME CONDUCT ON THE PART OF ITS OWN NATIONALS, REPRESSIVE MEASURES OR OTHER GENUINE AND EFFECTIVE MEASURES INTENDED TO COMBAT SUCH CONDUCT.

2. BY VIRTUE OF ARTICLE 3 (1) OF DIRECTIVE NO 64/221, CIRCUMSTANCES NOT RELATED TO THE SPECIFIC CASE MAY NOT BE RELIED UPON IN RESPECT OF CITIZENS OF MEMBER STATES OF THE COMMUNITY AS JUSTIFICATION FOR MEASURES INTENDED TO SAFEGUARD PUBLIC POLICY AND PUBLIC SECURITY.

3. ANY NATIONAL OF A MEMBER STATE WHO WISHES TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE MAY, EVEN IF A DECISION HAS BEEN TAKEN ORDERING HIS EXPULSION FROM THE TERRITORY OF THAT MEMBER STATE, RE-APPLY FOR A RESIDENCE PERMIT. SUCH AN APPLICATION, WHEN SUBMITTED AFTER A REASONABLE PERIOD HAS ELAPSED, MUST BE EXAMINED BY THE COMPETENT ADMINISTRATIVE AUTHORITY IN THE HOST STATE, WHICH MUST TAKE INTO ACCOUNT, IN PARTICULAR, THE ARGUMENTS PUT FORWARD BY THE PERSON CONCERNED PURPORTING TO ESTABLISH THAT THERE HAS BEEN A MATERIAL CHANGE IN THE CIRCUMSTANCES WHICH JUSTIFIED THE FIRST DECISION ORDERING HIS EXPULSION. HOWEVER, WHERE SUCH A DECISION HAS BEEN VALIDLY ADOPTED IN HIS CASE IN ACCORDANCE WITH COMMUNITY LAW AND CONTINUES TO BE LEGALLY EFFECTIVE SO AS TO EXCLUDE HIM FROM THE TERRITORY OF THE STATE IN QUESTION, COMMUNITY LAW CONTAINS NO PROVISION CONFERRING UPON HIM A RIGHT OF ENTRY INTO THAT TERRITORY DURING THE EXAMINATION OF HIS FURTHER APPLICATION.

4. THE NOTIFICATION OF THE GROUNDS RELIED UPON TO JUSTIFY AN EXPULSION MEASURE OR A REFUSAL TO ISSUE A RESIDENCE PERMIT MUST BE SUFFICIENTLY DETAILED AND PRECISE TO ENABLE THE PERSON CONCERNED TO DEFEND HIS INTERESTS.

5. AS REGARDS THE COMPOSITION OF THE COMPETENT AUTHORITY PROVIDED FOR IN ARTICLE 9 OF DIRECTIVE NO 64/221, THE ESSENTIAL REQUIREMENT IS THAT IT SHOULD BE CLEARLY ESTABLISHED THAT THE AUTHORITY IS TO PERFORM ITS DUTIES IN ABSOLUTE INDEPENDENCE AND IS NOT TO BE DIRECTLY OR INDIRECTLY SUBJECT, IN THE EXERCISE OF ITS DUTIES, TO ANY CONTROL BY THE AUTHORITY EMPOWERED TO TAKE THE MEASURES PROVIDED FOR IN THE DIRECTIVE.

6. ALTHOUGH ARTICLE 9 (2) OF DIRECTIVE NO 64/221 DOES NOT PREVENT THE PERSON CONCERNED FROM MAKING A DIRECT APPLICATION TO THE COMPETENT AUTHORITY IT DOES NOT REQUIRE SUCH AN APPLICATION AND IT ALLOWS THE MEMBER STATE A CHOICE IN THAT RESPECT, PROVIDED THAT THE PERSON CONCERNED IS ENTITLED TO MAKE SUCH AN APPLICATION IF HE SO REQUESTS.

7. THE CONDITIONS ON WHICH THE PERSON CONCERNED MUST BE ENTITLED TO PUT FORWARD TO THE COMPETENT AUTHORITY HIS ARGUMENTS IN DEFENCE AND TO BE ASSISTED OR REPRESENTED IN SUCH CONDITIONS AS TO PROCEDURE AS ARE PROVIDED FOR BY DOMESTIC LEGISLATION MUST NOT BE LESS FAVOURABLE TO HIM THAN THE CONDITIONS APPLICABLE TO PROCEEDINGS BEFORE OTHER NATIONAL AUTHORITIES OF THE SAME TYPE.

Plný text judikátu (Entire text of the Judgment):