1 BY ORDER OF THE VICE-CHANCELLOR OF 1 MARCH
1974, LODGED AT THE COURT ON 13 JUNE, THE CHANCERY DIVISION OF THE HIGH
COURT OF JUSTICE OF ENGLAND, REFERRED TO THE COURT, UNDER ARTICLE 177 OF
THE EEC TREATY, THREE QUESTIONS RELATING TO THE INTERPRETATION OF CERTAIN
PROVISIONS OF COMMUNITY LAW CONCERNING FREEDOM OF MOVEMENT FOR WORKERS .
2 THESE QUESTIONS ARISE OUT OF AN ACTION BROUGHT AGAINST THE HOME
OFFICE BY A WOMAN OF DUTCH NATIONALITY WHO WAS REFUSED LEAVE TO ENTER THE
UNITED KINGDOM TO TAKE UP EMPLOYMENT AS A SECRETARY WITH THE " CHURCH OF
SCIENTOLOGY ".
3 LEAVE TO ENTER WAS REFUSED IN ACCORDANCE WITH THE
POLICY OF THE GOVERNMENT OF THE UNITED KINGDOM IN RELATION TO THE SAID
ORGANIZATION, THE ACTIVITIES OF WHICH IT CONSIDERS TO BE SOCIALLY HARMFUL
.
FIRST QUESTION
4 BY THE FIRST QUESTION, THE COURT IS ASKED TO
SAY WHETHER ARTICLE 48 OF THE EEC TREATY IS DIRECTLY APPLICABLE SO AS TO
CONFER ON INDIVIDUALS RIGHTS ENFORCEABLE BY THEM IN THE COURTS OF A MEMBER
STATE .
5 IT IS PROVIDED, IN ARTICLE 48 ( 1 ) AND ( 2 ), THAT FREEDOM
OF MOVEMENT FOR WORKERS SHALL BE SECURED BY THE END OF THE TRANSITIONAL
PERIOD AND THAT SUCH FREEDOM SHALL ENTAIL " THE ABOLITION OF ANY
DISCRIMINATION BASED ON NATIONALITY BETWEEN WORKERS OF MEMBER STATES AS
REGARDS EMPLOYMENT, REMUNERATION AND OTHER CONDITIONS OF WORK AND
EMPLOYMENT " .
6 THESE PROVISIONS IMPOSE ON MEMBER STATES A PRECISE
OBLIGATION WHICH DOES NOT REQUIRE THE ADOPTION OF ANY FURTHER MEASURE ON
THE PART EITHER OF THE COMMUNITY INSTITUTIONS OR OF THE MEMBER STATES AND
WHICH LEAVES THEM, IN RELATION TO ITS IMPLEMENTATION, NO DISCRETIONARY
POWER .
7 PARAGRAPH 3, WHICH DEFINES THE RIGHTS IMPLIED BY THE
PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS, SUBJECTS THEM TO LIMITATIONS
JUSTIFIED ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH .
THE APPLICATION OF THESE LIMITATIONS IS, HOWEVER, SUBJECT TO JUDICIAL
CONTROL, SO THAT A MEMBER STATE' S RIGHT TO INVOKE THE LIMITATIONS DOES
NOT PREVENT THE PROVISIONS OF ARTICLE 48, WHICH ENSHRINE THE PRINCIPLE OF
FREEDOM OF MOVEMENT FOR WORKERS, FROM CONFERRING ON INDIVIDUALS RIGHTS
WHICH ARE ENFORCEABLE BY THEM AND WHICH THE NATIONAL COURTS MUST PROTECT .
8 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE IN THE AFFIRMATIVE
.
SECOND QUESTION
9 THE SECOND QUESTION ASKS THE COURT TO SAY
WHETHER COUNCIL DIRECTIVE NO 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 IS DIRECTLY APPLICABLE SO AS TO CONFER ON
INDIVIDUALS RIGHTS ENFORCEABLE BY THEM IN THE COURTS OF A MEMBER STATE .
10 IT EMERGES FROM THE ORDER MAKING THE REFERENCE THAT THE ONLY
PROVISION OF THE DIRECTIVE WHICH IS RELEVANT IS THAT CONTAINED IN ARTICLE
3 ( 1 ) WHICH PROVIDES THAT " MEASURES TAKEN ON GROUNDS OF PUBLIC POLICY
OR PUBLIC SECURITY SHALL BE BASED EXCLUSIVELY ON THE PERSONAL CONDUCT OF
THE INDIVIDUAL CONCERNED " .
11 THE UNITED KINGDOM OBSERVES THAT,
SINCE ARTICLE 189 OF THE TREATY DISTINGUISHES BETWEEN THE EFFECTS ASCRIBED
TO REGULATIONS, DIRECTIVES AND DECISIONS, IT MUST THEREFORE BE PRESUMED
THAT THE COUNCIL, IN ISSUING A DIRECTIVE RATHER THAN MAKING A REGULATION,
MUST HAVE INTENDED THAT THE DIRECTIVE SHOULD HAVE AN EFFECT OTHER THAN
THAT OF A REGULATION AND ACCORDINGLY THAT THE FORMER SHOULD NOT BE
DIRECTLY APPLICABLE .
12 IF, HOWEVER, BY VIRTUE OF THE PROVISIONS OF
ARTICLE 189 REGULATIONS ARE DIRECTLY APPLICABLE AND, CONSEQUENTLY, MAY BY
THEIR VERY NATURE HAVE DIRECT EFFECTS, IT DOES NOT FOLLOW FROM THIS THAT
OTHER CATEGORIES OF ACTS MENTIONED IN THAT ARTICLE CAN NEVER HAVE SIMILAR
EFFECTS . IT WOULD BE INCOMPATIBLE WITH THE BINDING EFFECT ATTRIBUTED TO A
DIRECTIVE BY ARTICLE 189 TO EXCLUDE, IN PRINCIPLE, THE POSSIBILITY THAT
THE OBLIGATION WHICH IT IMPOSES MAY BE INVOKED BY THOSE CONCERNED . IN
PARTICULAR, WHERE THE COMMUNITY AUTHORITIES HAVE, BY DIRECTIVE, IMPOSED ON
MEMBER STATES THE OBLIGATION TO PURSUE A PARTICULAR COURSE OF CONDUCT, THE
USEFUL EFFECT OF SUCH AN ACT WOULD BE WEAKENED IF INDIVIDUALS WERE
PREVENTED FROM RELYING ON IT BEFORE THEIR NATIONAL COURTS AND IF THE
LATTER WERE PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT OF
COMMUNITY LAW . ARTICLE 177, WHICH EMPOWERS NATIONAL COURTS TO REFER TO
THE COURT QUESTIONS CONCERNING THE VALIDITY AND INTERPRETATION OF ALL ACTS
OF THE COMMUNITY INSTITUTIONS, WITHOUT DISTINCTION, IMPLIES FURTHERMORE
THAT THESE ACTS MAY BE INVOKED BY INDIVIDUALS IN THE NATIONAL COURTS . IT
IS NECESSARY TO EXAMINE, IN EVERY CASE, WHETHER THE NATURE, GENERAL SCHEME
AND WORDING OF THE PROVISION IN QUESTION ARE CAPABLE OF HAVING DIRECT
EFFECTS ON THE RELATIONS BETWEEN MEMBER STATES AND INDIVIDUALS .
13 BY
PROVIDING THAT MEASURES TAKEN ON GROUNDS OF PUBLIC POLICY SHALL BE BASED
EXCLUSIVELY ON THE PERSONAL CONDUCT OF THE INDIVIDUAL CONCERNED, ARTICLE 3
( 1 ) OF DIRECTIVE NO 64/221 IS INTENDED TO LIMIT THE DISCRETIONARY POWER
WHICH NATIONAL LAWS GENERALLY CONFER ON THE AUTHORITIES RESPONSIBLE FOR
THE ENTRY AND EXPULSION OF FOREIGN NATIONALS . FIRST, THE PROVISION LAYS
DOWN AN OBLIGATION WHICH IS NOT SUBJECT TO ANY EXCEPTION OR CONDITION AND
WHICH, BY ITS VERY NATURE, DOES NOT REQUIRE THE INTERVENTION OF ANY ACT ON
THE PART EITHER OF THE INSTITUTIONS OF THE COMMUNITY OR OF MEMBER STATES .
SECONDLY, BECAUSE MEMBER STATES ARE THEREBY OBLIGED, IN IMPLEMENTING A
CLAUSE WHICH DEROGATES FROM ONE OF THE FUNDAMENTAL PRINCIPLES OF THE
TREATY IN FAVOUR OF INDIVIDUALS, NOT TO TAKE ACCOUNT OF FACTORS EXTRANEOUS
TO PERSONAL CONDUCT, LEGAL CERTAINTY FOR THE PERSONS CONCERNED REQUIRES
THAT THEY SHOULD BE ABLE TO RELY ON THIS OBLIGATION EVEN THOUGH IT HAS
BEEN LAID DOWN IN A LEGISLATIVE ACT WHICH HAS NO AUTOMATIC DIRECT EFFECT
IN ITS ENTIRETY .
14 IF THE MEANING AND EXACT SCOPE OF THE PROVISION
RAISE QUESTIONS OF INTERPRETATION, THESE QUESTIONS CAN BE RESOLVED BY THE
COURTS, TAKING INTO ACCOUNT ALSO THE PROCEDURE UNDER ARTICLE 177 OF THE
TREATY .
15 ACCORDINGLY, IN REPLY TO THE SECOND QUESTION, ARTICLE 3 (
1 ) OF COUNCIL DIRECTIVE NO 64/221 OF 25 FEBRUARY 1964 CONFERS ON
INDIVIDUALS RIGHTS WHICH ARE ENFORCEABLE BY THEM IN THE COURTS OF A MEMBER
STATE AND WHICH THE NATIONAL COURTS MUST PROTECT .
THIRD QUESTION
16 BY THE THIRD QUESTION THE COURT IS ASKED TO RULE WHETHER ARTICLE 48
OF THE TREATY AND ARTICLE 3 OF DIRECTIVE NO 64/221 MUST BE INTERPRETED AS
MEANING THAT
" A MEMBER STATE, IN THE PERFORMANCE OF ITS DUTY TO BASE
A MEASURE TAKEN ON GROUNDS OF PUBLIC POLICY EXCLUSIVELY ON THE PERSONAL
CONDUCT OF THE INDIVIDUAL CONCERNED IS ENTITLED TO TAKE INTO ACCOUNT AS
MATTERS OF PERSONAL CONDUCT :
( A ) THE FACT THAT THE INDIVIDUAL IS OR
HAS BEEN ASSOCIATED WITH SOME BODY OR ORGANIZATION THE ACTIVITIES OF WHICH
THE MEMBER STATE CONSIDERS CONTRARY TO THE PUBLIC GOOD BUT WHICH ARE NOT
UNLAWFUL IN THAT STATE;
( B ) THE FACT THAT THE INDIVIDUAL INTENDS TO
TAKE EMPLOYMENT IN THE MEMBER STATE WITH SUCH A BODY OR ORGANIZATION IT
BEING THE CASE THAT NO RESTRICTIONS ARE PLACED UPON NATIONALS OF THE
MEMBER STATE WHO WISH TO TAKE SIMILAR EMPLOYMENT WITH SUCH A BODY OR
ORGANIZATION . "
17 IT IS NECESSARY, FIRST, TO CONSIDER WHETHER
ASSOCIATION WITH A BODY OR AN ORGANIZATION CAN IN ITSELF CONSTITUTE
PERSONAL CONDUCT WITHIN THE MEANING OF ARTICLE 3 OF DIRECTIVE NO 64/221 .
ALTHOUGH A PERSON' S PAST ASSOCIATION CANNOT IN GENERAL, JUSTIFY A
DECISION REFUSING HIM THE RIGHT TO MOVE FREELY WITHIN THE COMMUNITY, IT IS
NEVERTHELESS THE CASE THAT PRESENT ASSOCIATION, WHICH REFLECTS
PARTICIPATION IN THE ACTIVITIES OF THE BODY OR OF THE ORGANIZATION AS WELL
AS IDENTIFICATION WITH ITS AIMS AND ITS DESIGNS, MAY BE CONSIDERED A
VOLUNTARY ACT OF THE PERSON CONCERNED AND, CONSEQUENTLY, AS PART OF HIS
PERSONAL CONDUCT WITHIN THE MEANING OF THE PROVISION CITED .
18 THIS
THIRD QUESTION FURTHER RAISES THE PROBLEM OF WHAT IMPORTANCE MUST BE
ATTRIBUTED TO THE FACT THAT THE ACTIVITIES OF THE ORGANIZATION IN
QUESTION, WHICH ARE CONSIDERED BY THE MEMBER STATE AS CONTRARY TO THE
PUBLIC GOOD ARE NOT HOWEVER PROHIBITED BY NATIONAL LAW . IT SHOULD BE
EMPHASIZED THAT THE CONCEPT OF PUBLIC POLICY IN THE CONTEXT OF THE
COMMUNITY AND WHERE, IN PARTICULAR, IT IS USED AS A JUSTIFICATION FOR
DEROGATING FROM THE FUNDAMENTAL PRINCIPLE OF FREEDOM OF MOVEMENT FOR
WORKERS, MUST BE INTERPRETED STRICTLY, SO THAT ITS SCOPE CANNOT BE
DETERMINED UNILATERALLY BY EACH MEMBER STATE WITHOUT BEING SUBJECT TO
CONTROL BY THE INSTITUTIONS OF THE COMMUNITY . NEVERTHELESS, THE
PARTICULAR CIRCUMSTANCES JUSTIFYING RECOURSE TO THE CONCEPT OF PUBLIC
POLICY MAY VARY FROM ONE COUNTRY TO ANOTHER AND FROM ONE PERIOD TO
ANOTHER, AND IT IS THEREFORE NECESSARY IN THIS MATTER TO ALLOW THE
COMPETENT NATIONAL AUTHORITIES AN AREA OF DISCRETION WITHIN THE LIMITS
IMPOSED BY THE TREATY .
19 IT FOLLOWS FROM THE ABOVE THAT WHERE THE
COMPETENT AUTHORITIES OF A MEMBER STATE HAVE CLEARLY DEFINED THEIR
STANDPOINT AS REGARDS THE ACTIVITIES OF A PARTICULAR ORGANIZATION AND
WHERE, CONSIDERING IT TO BE SOCIALLY HARMFUL, THEY HAVE TAKEN
ADMINISTRATIVE MEASURES TO COUNTERACT THESE ACTIVITIES, THE MEMBER STATE
CANNOT BE REQUIRED, BEFORE IT CAN RELY ON THE CONCEPT OF PUBLIC POLICY, TO
MAKE SUCH ACTIVITIES UNLAWFUL, IF RECOURSE TO SUCH A MEASURE IS NOT
THOUGHT APPROPRIATE IN THE CIRCUMSTANCES .
20 THE QUESTION RAISES
FINALLY THE PROBLEM OF WHETHER A MEMBER STATE IS ENTITLED, ON GROUNDS OF
PUBLIC POLICY, TO PREVENT A NATIONAL OF ANOTHER MEMBER STATE FROM TAKING
GAINFUL EMPLOYMENT WITHIN ITS TERRITORY WITH A BODY OR ORGANIZATION, IT
BEING THE CASE THAT NO SIMILAR RESTRICTION IS PLACED UPON ITS OWN
NATIONALS .
21 IN THIS CONNEXION, THE TREATY, WHILE ENSHRINING THE
PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS WITHOUT ANY DISCRIMINATION ON
GROUNDS OF NATIONALITY, ADMITS, IN ARTICLE 48 ( 3 ), LIMITATIONS JUSTIFIED
ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH TO THE
RIGHTS DERIVING FROM THIS PRINCIPLE . UNDER THE TERMS OF THE PROVISION
CITED ABOVE, THE RIGHT TO ACCEPT OFFERS OF EMPLOYMENT ACTUALLY MADE, THE
RIGHT TO MOVE FREELY WITHIN THE TERRITORY OF MEMBER STATES FOR THIS
PURPOSE, AND THE RIGHT TO STAY IN A MEMBER STATE FOR THE PURPOSE OF
EMPLOYMENT ARE, AMONG OTHERS ALL SUBJECT TO SUCH LIMITATIONS .
CONSEQUENTLY, THE EFFECT OF SUCH LIMITATIONS, WHEN THEY APPLY, IS THAT
LEAVE TO ENTER THE TERRITORY OF A MEMBER STATE AND THE RIGHT TO RESIDE
THERE MAY BE REFUSED TO A NATIONAL OF ANOTHER MEMBER STATE .
22
FURTHERMORE, IT IS A PRINCIPLE OF INTERNATIONAL LAW, WHICH THE EEC TREATY
CANNOT BE ASSUMED TO DISREGARD IN THE RELATIONS BETWEEN MEMBER STATES,
THAT A STATE IS PRECLUDED FROM REFUSING ITS OWN NATIONALS THE RIGHT OF
ENTRY OR RESIDENCE .
23 IT FOLLOWS THAT A MEMBER STATE, FOR REASONS OF
PUBLIC POLICY, CAN, WHERE IT DEEMS, NECESSARY, REFUSE A NATIONAL OF
ANOTHER MEMBER STATE THE BENEFIT OF THE PRINCIPLE OF FREEDOM OF MOVEMENT
FOR WORKERS IN A CASE WHERE SUCH A NATIONAL PROPOSES TO TAKE UP A
PARTICULAR OFFER OF EMPLOYMENT EVEN THOUGH THE MEMBER STATE DOES NOT PLACE
A SIMILAR RESTRICTION UPON ITS OWN NATIONALS .
24 ACCORDINGLY, THE
REPLY TO THE THIRD QUESTION MUST BE THAT ARTICLE 48 OF THE EEC TREATY AND
ARTICLE 3 ( 1 ) OF DIRECTIVE NO 64/221 ARE TO BE INTERPRETED AS MEANING
THAT A MEMBER STATE, IN IMPOSING RESTRICTIONS JUSTIFIED ON GROUNDS OF
PUBLIC POLICY, IS ENTITLED TO TAKE INTO ACCOUNT, AS A MATTER OF PERSONAL
CONDUCT OF THE INDIVIDUAL CONCERNED, THE FACT THAT THE INDIVIDUAL IS
ASSOCIATED WITH SOME BODY OR ORGANIZATION THE ACTIVITIES OF WHICH THE
MEMBER STATE CONSIDERS SOCIALLY HARMFUL BUT WHICH ARE NOT UNLAWFUL IN THAT
STATE, DESPITE THE FACT THAT NO RESTRICTION IS PLACED UPON NATIONALS OF
THE SAID MEMBER STATE WHO WISH TO TAKE SIMILAR EMPLOYMENT WITH THESE SAME
BODIES OR ORGANIZATIONS .
25 THE COSTS INCURRED BY THE UNITED KINGDOM
AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED
OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS
ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN
THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT
COURT .
ON THOSE GROUNDS,
THE COURT
IN ANSWER
TO THE QUESTIONS REFERRED TO IT BY THE HIGH COURT OF JUSTICE, BY ORDER OF
THAT COURT, DATED 1 MARCH 1974, HEREBY RULES :
1 . ARTICLE 48 OF THE
EEC TREATY HAS A DIRECT EFFECT IN THE LEGAL ORDERS OF THE MEMBER STATES
AND CONFERS ON INDIVIDUALS RIGHTS WHICH THE NATIONAL COURTS MUST PROTECT .
2 . ARTICLE 3 ( 1 ) OF COUNCIL DIRECTIVE NO 64/221 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 CONFERS ON INDIVIDUALS RIGHTS
WHICH ARE ENFORCEABLE BY THEM IN THE NATIONAL COURTS OF A MEMBER STATE AND
WHICH THE NATIONAL COURTS MUST PROTECT .
3 . ARTICLE 48 OF THE EEC
TREATY AND ARTICLE 3 ( 1 ) OF DIRECTIVE NO 64/221 MUST BE INTERPRETED AS
MEANING THAT A MEMBER STATE, IN IMPOSING RESTRICTIONS JUSTIFIED ON GROUNDS
OF PUBLIC POLICY, IS ENTITLED TO TAKE INTO ACCOUNT AS A MATTER OF PERSONAL
CONDUCT OF THE INDIVIDUAL CONCERNED, THE FACT THAT THE INDIVIDUAL IS
ASSOCIATED WITH SOME BODY OR ORGANIZATION THE ACTIVITIES OF WHICH THE
MEMBER STATE CONSIDERS SOCIALLY HARMFUL BUT WHICH ARE NOT UNLAWFUL IN THAT
STATE, DESPITE THE FACT THAT NO RESTRICTION IS PLACED UPON NATIONALS OF
THE SAID MEMBER STATE WHO WISH TO TAKE SIMILAR EMPLOYMENT WITH THE SAME
BODY OR ORGANIZATION .
