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	Číslo (Kód CELEX): Number (CELEX Code):		61994J0175

	Název: Title:		JUDGMENT OF THE COURT (SIXTH CHAMBER) OF 30 NOVEMBER 1995. THE QUEEN V SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE JOHN GALLAGHER. REFERENCE FOR A PRELIMINARY RULING: COURT OF APPEAL (ENGLAND) - UNITED KINGDOM. FREEDOM OF MOVEMENT FOR PERSONS - DEROGATIONS - DECISIONS CONCERNING THE CONTROL OF FOREIGN NATIONALS - DECISION ORDERING EXPULSION - PRIOR OPINION OF THE COMPETENT AUTHORITY. CASE C-175/94.

	Publikace: Publication:		European Court Reports 1995 page I-4253

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Dzodzi Joined Cases C-297/88 and C-197/89 Dzodzi v Belgium [1990] ECR I-3763 · [270] Adoui Joined Cases 115 and 116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665 · Santillo Case 131/70 Regina v Secretary of State for Home Affairs, ex parte Santillo [1980] ECR 1585 · Pecastaing Case 98/79 Pecastaing v Belgium [1980] ECR 691


	Plný text: Fulltext:		Ne

Fakta:
Mr Gallagher, an Irish national, was sentenced in Ireland in 1983 to three years imprisonment for possession of two rifles for unlawful purposes. Between May 1987 and September 1989 he travelled to the United Kingdom to look for work. He did in fact work in the United Kingdom between April 1990 and September 1991. On 24 September 1991, Mr Gallagher was arrested pursuant to the Prevention of Terrorism Act 1989 (“the Act”) and subsequently served with an exclusion order drawn up under the same Act on the ground that the Secretary of State was satisfied that Mr Gallagher was “concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland”. Following his removal, Mr Gallagher raised objections against the exclusion order and requested a personal interview with a person nominated by the Secretary of State. This interview took place in the British Embassy in Dublin. During the interview, the person nominated by the Secretary of State did not reveal his identity and did not provide any information on the grounds of exclusion. The Secretary of State reconsidered the case but did not alter his decision.
Thereupon, Mr Gallagher instituted proceedings against the exclusion order, the refusal to revoke it, the nomination of the adviser with whom he had the interview and the decision not to reveal the adviser’s identity. On appeal, Mr Gallagher argued in particular that the exclusion procedure was incompatible with Article 9 of Council 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 1963-1963, p. 117).
Article 9 of the directive provides:
“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, a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in the 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 of that country provides for.
This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering the expulsion.
2. Any decision refusing the issue of a first residence permit or ordering the expulsion of the person concerned before the issue of the permit shall, where that person so requests, be referred for consideration to the authority whose prior opinion is required under paragraph 1. The person concerned shall then be entitled to submit his defence in person, except where this would be contrary to the interests of national security.”
. The Court of Appeal stayed the proceedings and referred to the Court of Justice the questions (as rephrased by the Court): (1) Whether Article 9(1) of the directive is to be interpreted as meaning that the opinion of the competent authority may be given after the decision to expel the person concerned has been taken, on the understanding that, if the person raises an objection, the administrative authority responsible for the decision is required, save in cases of urgency, to reconsider the decision in the light of that opinion; (2) whether Article 9(1) of the directive precludes the competent authority referred to in that provision from being appointed by the same administrative authority as takes the decision ordering the expulsion.

Názor soudu a komentář:
The right to freedom of movement provided for in Article 48 is, pursuant to the third paragraph of this provision, subject to limitation justified on grounds of public policy, public security or public health. Council Directive 64/221, which was adopted pursuant to Article 56(2) of the Treaty. The directive, which applies to employed persons as well as to the self-employed and to recipients of services, concretizes the provisio of Article 48(3).
While Article 9(2) of the directive concerns the case that a foreign national is being excluded before he first received a residence permit, Article 9(1) concerns the case where the person concerned had already been granted a residence permit or, under the law of the host Member State, lawfully resided there without a residence permit. The object of Article 9(1) of the directive is “to ensure minimum procedural safeguards for persons affected by a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit” ( see also
Dzodzi
). For this end, Article 9(1) envisages the intervention of “the competent authority” in order “to enable an exhaustive examination of all the facts and circumstances, including the expediency of the proposed measure to be carried out before the decision is finally taken” ( [270]
Adoui; Santillo; Pecastaing; Dzodzi
).
The Regulation of the Act in question did not, under these considerations, satisfy the requirements of Article 9(1). While the Act provided for the possibility of the intervention of the competent authority, it did not ensure that the opinion be obtained before the decision is taken. Article 9(1), however, in contrast to Article 9(2) applying to foreigners who are not in possession of a residence permit, requires that the opinion must be obtained before the decision to exclude the person concerned has been taken.
As to the details of the procedure to be observed, the Court points out that the directive does not specify how the competent authority referred to in Article 9 is appointed. “It does not require that that authority be a court or be composed of members of the judiciary. Nor does it require the members of the competent authority to be appointed for a specific period. The essential requirements are, first, that it 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 and, second that the authority follow a procedure enabling the person concerned, on the terms laid down by the directive, effectively to present his defence.” (
Dzodzi; Adoui and Cornuaille
.) With respect to the form of the opinion, the Court adds that the opinion must be duly notified to the person concerned. The directive does not, however, that the names or the professional status of the members of the authority be indicated in the opinion. Such details must only be revealed to the (national) courts which have the power and obligation to determine whether the competent authority appointed satisfies the requirements of the directive. With respect to the procedure to be observed, the regulation provided for in the Act therefore complied with the standards of the directive.

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