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Databáze č. 17 : Databáze judikatury
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Číslo (Kód CELEX):
Number (CELEX Code):		61979J0098
Název:
Title: 		JUDGMENT OF THE COURT OF 5 MARCH 1980. JOSETTE PECASTAING V BELGIAN STATE. PRELIMINARY RULING REQUESTED BY THE TRIBUNAL DE PREMIERE INSTANCE, LIEGE. RIGHT OF RESIDENCE AND PUBLIC POLICY. CASE 98-79.
Publikace:
Publication:		REPORTS OF CASES 1980 PAGES 0691
Předmět (klíčová slova):
Keywords		FREE MOVEMENT OF WORKERS;FREEDOM OF ESTABLISHMENT AND SERVICES;RIGHT OF ESTABLISHMENT;FREE MOVEMENT OF SERVICES;
Související předpisy:
Corresponding acts:		364L0221;364L0221
Odkaz na souvisejicí judikáty:
Corresponding Judgements:
    [113] Royer Case 48/75 Royer [1976] ECR 497
Plný text:
Fulltext:		Ne

Fakta:
Mrs Pecastaing, of French nationality, lawfully entered Belgium in 1977 where she applied for a residence permit as an employed person. The Belgian authorities refused to grant Mrs Pecastaing a residence permit and ordered her to leave the country on the ground that she had previously been a prostitute in France and Germany. Mrs Pecastaing immediately lodged a complaint with the “Consultative Committee for Aliens” which confirmed the refusal to grant a residence permit. Assuming that this latter decision was not open to appeal to the Conseil d’Etat, Mrs Pecastaing did not submit such appeal. However, she brought a claim for damages before the Tribunal de Premičre Instance, Ličge, against the Belgian State; at the same time she requested an interlocutory order suspending the expulsion order pending the judgement of the court on the substance of her claim.
Belgium had not enacted any specific legislation for the implementation of Article 8 of Council Directive 64/221
Of 25 February 1964 on the co-ordination 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).
Article 8 provides:
“The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration.”
Article 9(1) provides:
“Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where appeal cannot have suspensory effect, a decision refusing renewal of a residence permit or ordering that the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the host country before which the person concerned enjoys such rights of defence and of assistance or representation as the domestic law provides for.
This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering expulsion.”
. Under the applicable laws, recourse to the Conseil d’État is open against administrative acts, irrespective of the nationality of the applicant. In order to transpose Article 9 of the Directive, Belgium had, however, provided for the application with the “Consultative Committee for Aliens”. Such application had to be made within a period of eight days. If the person concerned has failed to make an application with the Consultative Committee within that time-limit, he is barred from subsequently submitting an application to the Conseil d’État. According to administrative practice, an alien affected by a police measure is not informed, at the time the decision is notified to him, of his right to complain to the Consultative Committee or of the time-limit for such a complaint of the consequences of the failure to complain to the said Committee with regard to a subsequent appeal to the courts.
The Tribunal de Premičre Instance, Ličge, stayed the proceedings and referred to the Court of Justice the questions - as reworded by the Court - (1a) whether the legal remedies made available in the Member State pursuant to Article 8 of Council Directive 64/221/EEC, include, in addition to appeals to the administrative courts for the annulment of a measure adopted under the policy on aliens, appeals to other courts and (1b) whether the submission of such appeals has suspensory effect so that the appellant is entitled to remain on the territory of the State throughout the proceedings which he has instituted; (2a) which rights must be made available to persons concerned regarding the suspension of measures of the policy on aliens in order to permit them to make effective use of the remedies to which they are entitled under Article 9 of Directive 64/221 and (2b) whether the determination of the urgency referred to in Article 9 falls within the exclusive competence of the administrative authority or whether, in cases of disputes, it may be examined by the courts.

Názor soudu a komentář:
According to the third recital of its preamble, Directive 64/221 intends to ensure that “in each Member State, nationals of other Member States should have adequate legal remedies available to them in respect of decisions of the administration” with regard to the sphere of public policy, public security and public health. Article 8 of the Directive defines the decisions referred to by the directive as “acts of the administration” and obliges the Member States to grant any person affected by such acts the same legal remedies as are available to nationals in respect of acts of the administration. The protection thus afforded is not “absolute” but “relative” in that it depends on the remedies available under the legal systems of the various Member States against acts of the administration. Consequently, the remedies referred to in Article 8 of Directive 64/221 may include the appeal to other courts than the administrative courts if, under the legal system of the Member State in question, administrative acts are subject to review before those courts.
Article 8 does not contain any specific obligation as to the suspensory effect of such remedy. The Court has, however, in its judgement in
Royer
( [113]) inferred from the provision that the decision ordering the expulsion may not be executed - save in cases of urgency - before the party concerned is able to complete the formalities necessary to avail himself of the remedy. This inference is based on the - questionable - assumption that it was necessary for the person concerned to remain in the country in order to institute the legal remedies available to him. The Court, however, does not extend the aforementioned ruling: “However, it cannot be inferred from that provision that the person concerned is entitled to remain on the territory of the State concerned throughout the proceedings initiated by him.”
With regard to the rights to be granted to the person concerned under Article 9 of Directive 64/221, the Court first points out that Article 9 complements the provision of Article 8 in that it aims at ensuring a minimum procedural safeguard for persons affected by one of the measures referred to in the cases set out in Article 9(1): “Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect.” It follows from this function of Article 9 that it cannot be applied in such a way that its practical effect is to restrict or render ineffective the legal remedies made available under Article 8 to the persons covered by the directive. Under the Court’s case-law, the appeal to the “competent authority” under Article 9 of the Treaty has a sort of suspensory effect in so far as this procedure - save in cases of urgency - must precede the decision ordering expulsion ( [113]
Royer
). “[A]s soon as the opinion in question has been obtained and notified to the person concerned an expulsion order may be executed immediately, subject always to the right of that person to stay on the territory for the time necessary to avail himself of the remedies accorded to him under Article 8 of the directive.”
The determination of the existence of “urgency” is, as becomes clear from Article 9(1), a matter for the administration.

Shrnutí (Summary of the Judgment):
1. ARTICLE 8 OF DIRECTIVE NO 64/221 IMPOSES UPON THE MEMBER STATES THE DUTY TO MAKE AVAILABLE TO ANY NATIONAL OF A MEMBER STATE OF THE COMMUNITY AFFECTED BY ANY DECISION CONCERNING ENTRY OR REFUSING THE ISSUE OR RENEWAL OF A RESIDENCE PERMIT OR ORDERING EXPULSION FROM THE TERRITORY IN QUESTION THE SAME LEGAL REMEDIES AS ARE AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION. A MEMBER STATE CANNOT, WITHOUT BEING IN BREACH OF THAT DUTY, MAKE THE RIGHT OF APPEAL FOR PERSONS COVERED BY THE DIRECTIVE CONDITIONAL ON PARTICULAR REQUIREMENTS AS TO FORM OR PROCEDURE WHICH ARE LESS FAVOURABLE THAN THOSE PERTAINING TO REMEDIES AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION.

2. ARTICLE 8 OF DIRECTIVE NO 64/221 IMPOSES UPON THE MEMBER STATES THE DUTY TO PROVIDE FOR THE PERSONS COVERED BY THE DIRECTIVE PROTECTION BY THE COURTS WHICH IS NOT LESS THAN THAT WHICH THEY MAKE AVAILABLE TO THEIR OWN NATIONALS AS REGARDS APPEALS AGAINST ACTS OF THE ADMINISTRATION, INCLUDING, IF APPROPRIATE, SUSPENSION OF THE ACTS APPEALED AGAINST. IT COVERS ALL THE REMEDIES AVAILABLE IN A MEMBER STATE IN RESPECT OF ACTS OF THE ADMINISTRATION, WITHIN THE FRAMEWORK OF THE JUDICIAL SYSTEM AND THE DIVISION OF JURISDICTION BETWEEN JUDICIAL BODIES IN THE STATE IN QUESTION. THIS MEANS INTER ALIA THAT IF, IN A MEMBER STATE, THE ADMINISTRATIVE COURTS WERE NOT EMPOWERED TO GRANT A STAY OF EXECUTION OF AN ADMINISTRATIVE DECISION BUT SUCH POWER WAS RECOGNIZED TO THE ORDINARY COURTS THAT STATE WOULD BE OBLIGED TO PERMIT PERSONS COVERED BY THE DIRECTIVE TO APPLY FOR A STAY OF EXECUTION TO SUCH COURTS ON THE SAME CONDITIONS AS NATIONALS OF THAT STATE.

3. ARTICLE 8 OF DIRECTIVE NO 64/221 IMPOSES NO SPECIFIC OBLIGATION CONCERNING ANY SUSPENSORY EFFECT OF APPLICATIONS AVAILABLE TO PERSONS COVERED BY THE DIRECTIVE. THERE CANNOT BE INFERRED FROM THAT PROVISION AN OBLIGATION FOR THE MEMBER STATES TO PERMIT AN ALIEN TO REMAIN IN THEIR TERRITORY FOR THE DURATION OF THE PROCEEDINGS, SO LONG AS HE IS ABLE NEVERTHELESS TO OBTAIN A FAIR HEARING AND TO PRESENT HIS DEFENCE IN FULL. THAT REQUIREMENT IMPLIES INTER ALIA THAT THE DECISION ORDERING EXPULSION MAY NOT BE EXECUTED - SAVE IN CASES OF URGENCY - BEFORE THE PARTY CONCERNED IS ABLE TO COMPLETE THE FORMALITIES NECESSARY TO AVAIL HIMSELF OF HIS REMEDY.

4. THE PROCEDURE OF APPEAL TO A'' COMPETENT AUTHORITY'' REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221 MUST PRECEDE THE DECISION ORDERING EXPULSION, SAVE IN CASES OF URGENCY. IN PARTICULAR IF A MEMBER STATE HAS APPLIED ARTICLE 9 IN ORDER TO COMPENSATE FOR THE FACT THAT THE APPEALS TO THE COURTS WHICH ARE AVAILABLE DO NOT CARRY SUSPENSORY EFFECT THAT PROVISION WOULD BE RENDERED NUGATORY IF, ALWAYS SAVE IN CASES OF URGENCY, EXECUTION OF THE EXPULSION ORDER CONTEMPLATED WERE NOT SUSPENDED UNTIL THAT AUTHORITY HAS GIVEN ITS DECISION. IT THEREFORE FOLLOWS FROM ARTICLE 9 THAT AS SOON AS THE OPINION IN QUESTION HAS BEEN OBTAINED AND NOTIFIED TO THE PERSON CONCERNED AN EXPULSION ORDER MAY BE EXECUTED IMMEDIATELY, SUBJECT ALWAYS TO THE RIGHT OF THAT PERSON TO STAY ON THE TERRITORY FOR THE TIME NECESSARY TO AVAIL HIMSELF OF THE REMEDIES ACCORDED TO HIM UNDER ARTICLE 8 OF THE DIRECTIVE.

5. THE FIRST SUBPARAGRAPH OF ARTICLE 9 (1) SHOWS THAT DETERMINATION OF THE EXISTENCE OF URGENCY IN CASES WHICH HAVE BEEN PROPERLY JUSTIFIED IS A MATTER FOR THE ADMINISTRATIVE AUTHORITY AND THAT EXPULSION FROM THE TERRITORY MAY THEN BE EFFECTED EVEN BEFORE THE'' COMPETENT AUTHORITY'' HAS BEEN ABLE TO GIVE ITS OPINION.

6. THE PROCEDURE CONCERNING THE CONSIDERATION OF THE DECISION AND CONCERNING THE OPINION REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221, WHICH IS INTENDED TO MITIGATE THE EFFECT OF DEFICIENCIES IN THE REMEDIES REFERRED TO IN ARTICLE 8, IS NOT INTENDED TO CONFER UPON THE COURTS ADDITIONAL POWERS CONCERNING SUSPENSION OF THE MEASURES REFERRED TO BY THE DIRECTIVE OR TO EMPOWER THEM TO REVIEW THE URGENCY OF AN EXPULSION ORDER. THE PERFORMANCE OF THESE DUTIES BY THE NATIONAL COURTS IS GOVERNED BY ARTICLE 8 OF THE DIRECTIVE. THE SCOPE OF THAT PROVISION NEVERTHELESS MAY NOT BE RESTRICTED BY MEASURES TAKEN BY A MEMBER STATE UNDER ARTICLE 9.

Plný text judikátu (Entire text of the Judgment):