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JUDGMENT OF THE COURT
19 January 1999 (1)
(Public policy — Tourist from another Member State — Conviction for drug use —
Exclusion for life from a Member State's territory)
In Case C-348/96,
REFERENCE to the Court under Article 177 of the EC Treaty by the Arios Pagos
(Greece) for a preliminary ruling in the criminal proceedings before that court
against
Donatella Calfa
on the interpretation of Articles 7, 8(1) and (2), 8a(1), 48, 52 and 59 of the EC
Treaty and relevant Community directives relating to freedom of movement for
persons and freedom to provide services,
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn and P. Jann
(Presidents of Chambers), C. Gulmann, J.L. Murray, D.A.O. Edward,
H. Ragnemalm (Rapporteur), L. Sevón, M. Wathelet, R. Schintgen and
K.M. Ioannou, Judges,
Advocate General: A. La Pergola,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
— Ms Calfa, by Dimosthenis Skandalis, of the Athens Bar,
— the French Government, by Catherine de Salins, Head of Subdirectorate in
the Legal Directorate of the Ministry of Foreign Affairs, and
Claude Chavance, Secretary of Foreign Affairs in the same directorate,
acting as Agents,
— the Netherlands Government, by Adriaan Bos, Legal Adviser, Ministry of
Foreign Affairs, acting as Agent,
— the United Kingdom Government, by Stephanie Ridley, of the Treasury
Solicitor's Department, acting as Agent, assisted by Stephen Richards and
Mark Shaw, Barristers,
— the Commission of the European Communities, by Maria Patakia, of its
Legal Service, acting as Agent,
having regard to the Report for the Hearing,
after hearing the oral observations of the Greek Government, represented by
Ioanna Galani-Maragkoudaki, Special Deputy Legal Adviser to the Special
Department for Community Legal Matters of the Ministry of Foreign Affairs, and
Stamatina Vodina, Special Academic Assistant in the same Department, acting as
Agents; of the French Government, represented by Claude Chavance; of the
Netherlands Government, represented by Marc Fierstra, Deputy Legal Adviser to
the Ministry of Foreign Affairs, acting as Agent; of the United Kingdom
Government, represented by Philip Sales, Barrister; and of the Commission,
represented by Maria Patakia, at the hearing on 13 January 1998,
after hearing the Opinion of the Advocate General at the sitting on 17 February
1998,
gives the following
Judgment
1. By judgment of 27 September 1996, received at the Court on 21 October 1996, the
Arios Pagos (Supreme Court of Cassation) referred to the Court for a preliminary
ruling under Article 177 of the EC Treaty two questions on the interpretation of
Articles 7, 8(1) and (2), 8a(1), 48, 52 and 59 of the EC Treaty and relevant
Community directives relating to freedom of movement for persons and freedom
to provide services, in order to assess the compatibility with those provisions of a
national law providing for the expulsion for life from the national territory of
nationals from other Member States found guilty on that territory of certain
offences under the law on drugs.
2. Those questions have been raised in criminal proceedings brought against Ms Calfa,
who has been found guilty of an offence under the law on drugs and sentenced to
three months' imprisonment and, by way of an additional penalty, expelled for life
from Greek territory.
The Community legislation
3. Article 1(1) of Council Directive 64/221/EEC 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) provides:
'The provisions of this Directive shall apply to any national of a Member State who
resides in or travels to another Member State of the Community, either in order
to pursue an activity as an employed or self-employed person, or as a recipient of
services.‘
4. Article 3 of the same directive states:
'1. Measures taken on grounds of public policy or of public security shall be based
exclusively on the personal conduct of the individual concerned.
2. Previous criminal convictions shall not in themselves constitute grounds for the
taking of such measures.
...‘.
The national legislation
5. Under Article 12(1) of Law No 1729/1987 on drugs, as amended by Article 14 of
Law No 2161/1993, it is an offence punishable by imprisonment for a person to
obtain or to possess, in any way whatever, for personal use, drugs in quantities
which are shown to be intended exclusively to serve personal needs, or for a person
to make use of them. It is an offence punishable by the same penalty to cultivate
cannabis in quantities such as to indicate that they are intended solely for personal
use.
6. Article 17(1) of Law No 1729/1987, entitled 'Restrictions on residence‘, provides
that where a person is sentenced to at least five years' imprisonment for an offence
under that Law, the court may, if it considers that the residence of the convicted
person in certain places would be injurious, either to him or to the social
environment, make an order prohibiting the person from residing in those places
for a period of between one and five years.
7. Under Article 17(2) of the same Law, foreign nationals, whether or not of the age
of majority, who are convicted of an offence under that Law, are to be expelled for
life unless compelling reasons, in particular family reasons, justify their continued
residence in the country, in which case the provisions of paragraph 1 of that article
apply to them. The enforcement and suspension of expulsion orders are governed
by Article 74 of the Greek Penal Code.
8. Under Article 74 of that code, foreign nationals who have been expelled may
return to the country only after a period of three years following their expulsion
and provided that the Minister of Justice has authorised their return.
9. It results from the aforementioned provisions, read in conjunction, that where a
foreign national is convicted of a breach of the law on drugs, and in the absence
of compelling reasons, in particular family reasons, justifying his continued
residence in the country, the court which passed sentence is under an obligation to
order his expulsion for life, so that he will be able to return to the country only
after a period of three years and provided that the Minister of Justice in his
discretion gives his approval.
10. Greek nationals, who cannot be subject to an expulsion order, may, on the other
hand, be ordered not to reside in certain parts of the territory, in cases where they
have been sentenced, under Law No 1729/1987, to imprisonment of five years or
more, in particular in cases of drug dealing. However, that prohibition is
discretionary and may not be imposed for a period exceeding five years.
The facts of the main proceedings
11. Ms Calfa, an Italian national, was charged with possession and use of prohibited
drugs while staying as a tourist in Crete. The Plimeliodikio (Criminal Court of First
Instance) at Heraklion found her guilty of an offence under the law on drugs,
sentenced her to three months' imprisonment and ordered her to be expelled for
life from Greek territory.
12. On 25 September 1995, Ms Calfa appealed to the Arios Pagos against the decision
of the Plimeliodikio at Heraklion, exclusively on the point that the Heraklion court
had ordered her to be expelled for life from Greece. She claimed inter alia that the
provisions relating to European citizenship, more particularly Articles 8 and 8a of
the Treaty, and the provisions relating to freedom to provide services in Article 59
of the Treaty did not allow a Member State to adopt a measure expelling a
national of another Member State for life if a comparable measure could not be
taken against a Greek citizen.
The questions referred for a preliminary ruling
13. Considering that the case before it raised a question of the compatibility of the
relevant provisions of national legislation with Community law, the Arios Pagos
decided to suspend proceedings and to refer the following two questions to the
Court for a preliminary ruling:
'(1) Is a provision of national law compatible with the provisions of Community
law referred to in the grounds of the order for reference and, in particular,
with the provisions of Articles 8(1) and (2), 8a(1), 48, 52 and 59 of the EC
Treaty, the provisions of the relevant directives also referred to in the
grounds thereof, or with other relevant provisions of Community law
concerning freedom of movement for persons and services, and with the
Community law principle of equal treatment enshrined in Article 7 of the
EC Treaty, where such provision of national law requires the national court,
unless there are compelling reasons, in particular family reasons, for not
doing so, to order the expulsion for life of a national of another Member
State for reasons of public policy and public security, solely on the ground
that that national of the other Member State, whilst lawfully staying in the
host state in order to receive tourist services, committed the offences of
obtaining drugs for his own personal use and the use of drugs, and where
such expulsion entails for the offender a legal bar on his returning to the
country — unless authorised after a three-year period by the Minister for
Justice in his discretion — in order to pursue the activities provided for by
the abovementioned provisions of Community law, and where in the case
of such offences being committed by a national of the host state the same
punishment of imprisonment is imposed, though not any other analogous
penalty, such as a residence restriction, which is imposed on a national of
the host state only if a term of imprisonment for a more serious offence is
imposed, such as for drug dealing, and is purely discretionary?
(2) Should expulsion by the host country under such a provision of national law
(as described at 1 above) of the national of another Member State be
deemed compatible with the abovementioned provisions of Community law
where, in connection with expulsion, the court so ordering is left with no
discretion, other than that relating to the compelling reasons, in particular
family reasons, in determining whether the offender's continued residence
in the host country might be justified, is such a measure to be regarded as
infringing the Community principle of proportionality, that is to say as being
disproportionate to the seriousness of the offences (described above at 1)
committed by that person, regard being had to the fact that under national
law they are tried as minor offences and are punishable as stated in the
grounds of the order for reference, or to the fact that the expulsion ordered
by the national court is for life, subject to authorisation by the Minister for
Justice in his discretion for the offender to return after a three-year period
to the host country from which he was expelled?‘
14. The national court is asking essentially whether Articles 8(1) and (2), 8a(1), 48, 52
and 59 of the Treaty and Directive 64/221 preclude legislation which, with certain
exceptions, in particular where there are family reasons, requires a Member State's
courts to order the expulsion for life from its territory of nationals of other
Member States found guilty on that territory of the offences of obtaining and being
in possession of drugs for their own personal use.
15. It is appropriate, first, to examine this question in the light of the Community rules
relating to the freedom to provide services.
16. It should be remembered at the outset that the principle of freedom to provide
services established in Article 59 of the Treaty, which is one of its fundamental
principles, includes the freedom for the recipients of services to go to another
Member State in order to receive a service there, without being obstructed by
restrictions, and that tourists must be regarded as recipients of services (see Case
186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 15).
17. Although in principle criminal legislation is a matter for which the Member States
are responsible, the Court has consistently held that Community law sets certain
limits to their power, and such legislation may not restrict the fundamental
freedoms guaranteed by Community law (Cowan, paragraph 19).
18. In the present case, the penalty of expulsion for life from the territory, which is
applicable to the nationals of other Member States in the event of conviction for
obtaining and being in possession of drugs for their own use, clearly constitutes an
obstacle to the freedom to provide services recognised in Article 59 of the Treaty,
since it is the very negation of that freedom. This would also be true for the other
fundamental freedoms laid down in Articles 48 and 52 of the Treaty and referred
to by the national court.
19. It is none the less necessary to consider whether such a penalty could be justified
by the public policy exception provided for in inter alia Article 56 of the Treaty,
which is relied upon by the Member State in question.
20. Article 56 permits Member States to adopt, with respect to nationals of other
Member States, and in particular on the grounds of public policy, measures which
they cannot apply to their own nationals, inasmuch as they have no authority to
expel the latter from the territory or to deny them access thereto (see Case 41/74Van Duyn v Home Office [1974] ECR 1337, paragraphs 22 and 23, Joined Cases
115/81 and 116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665, paragraph 7,
and Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343,
paragraph 28).
21. Under the Court's case-law, the concept of public policy may be relied upon in the
event of a genuine and sufficiently serious threat to the requirements of public
policy affecting one of the fundamental interests of society (see Case 30/77
Bouchereau [1977] ECR 1999, paragraph 35).
22. In this respect, it must be accepted that a Member State may consider that the use
of drugs constitutes a danger for society such as to justify special measures against
foreign nationals who contravene its laws on drugs, in order to maintain public
order.
23. However, as the Court has repeatedly stated, the public policy exception, like all
derogations from a fundamental principle of the Treaty, must be interpreted
restrictively.
24. In that regard, Directive 64/221, Article 1(1) of which provides that the directive
is to apply to inter alia any national of a Member State who travels to another
Member State as a recipient of services, sets certain limits on the right of Member
States to expel foreign nationals on the grounds of public policy. Article 3 of that
directive states that measures taken on grounds of public policy or of public
security that have the effect of restricting the residence of a national of another
Member State must be based exclusively on the personal conduct of the individual
concerned. In addition, previous criminal convictions cannot in themselves
constitute grounds for the taking of such measures. It follows that the existence of
a previous criminal conviction can, therefore, only be taken into account in so far
as the circumstances which gave rise to that conviction are evidence of personal
conduct constituting a present threat to the requirements of public policy
(Bouchereau, paragraph 28).
25. It follows that an expulsion order could be made against a Community national
such as Ms Calfa only if, besides her having committed an offence under drugs
laws, her personal conduct created a genuine and sufficiently serious threat
affecting one of the fundamental interests of society.
26. In the present case, the legislation at issue in the main proceedings requires
nationals of other Member States found guilty, on the national territory in which
that legislation applies, of an offence under the drugs laws, to be expelled for life
from that territory, unless compelling reasons, in particular family reasons, justify
their continued residence in the country. The penalty can be revoked only by a
decision taken at the discretion of the Minister for Justice after a period of three
years.
27. Therefore, expulsion for life automatically follows a criminal conviction, without any
account being taken of the personal conduct of the offender or of the danger which
that person represents for the requirements of public policy.
28. It follows that the conditions for the application of the public policy exception
provided for in Directive 64/221, as interpreted by the Court of Justice, are not
fulfilled and that the public policy exception cannot be successfully relied upon to
justify a restriction on the freedom to provide services, such as that imposed by the
legislation at issue in the main proceedings.
29. In view of the foregoing considerations, the answer to be given to the national
court's questions must be that Articles 48, 52 and 59 of the Treaty and Article 3 of
Directive 64/221 preclude legislation which, with certain exceptions, in particular
where there are family reasons, requires a Member State's courts to order
expulsion for life from its territory of nationals of other Member States found guilty
on that territory of the offences of obtaining and being in possession of drugs for
their own personal use.
30. In those circumstances, it is no longer necessary for the Court to consider the
question of the compatibility of legislation such as that applicable in the main
proceedings with Articles 8 and 8a of the Treaty.
Costs
31. The costs incurred by the Greek, French, Netherlands and United Kingdom
Governments and by the Commission, which have submitted observations to the
Court, are not recoverable. Since these proceedings are, for the parties to the main
proceedings, a step in the action pending before the national court, the decision on
costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Arios Pagos by judgment of 27
September 1996, hereby rules:
Articles 48, 52 and 59 of the EC Treaty and Article 3 of Council Directive
64/221/EEC 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 preclude legislation
which, with certain exceptions, in particular where there are family reasons,
requires a Member State's courts to order expulsion for life from its territory of
nationals of other Member States found guilty on that territory of the offences of
obtaining and being in possession of drugs for their own personal use.
|
Rodríguez IglesiasKapteyn
Jann
Gulmann Murray
Edward Ragnemalm
Sevón
Wathelet Schintgen
Ioannou
|
Delivered in open court in Luxembourg on 19 January 1999.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
1: Language of the case: Greek.
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