Editor: last update July 5, 1996.
Court of Justice EC, 4 December 1974
TITLE
Judgment of the court of 4 December 1974.
Yvonne van duyn v home office.
Preliminary ruling requested by the chancery division of the high court of
justice.
Public policy.
Case 41-74.
DOCNUM : 674J0041
AUTHOR : Court of justice of the european communities;
FORM : Judgment
TREATY : European Economic Community;
TYPDOC : 6; Cjus; cases; 1974; j; judgment
PUBREF : Reports of cases 1974 pages 1337 - 1353
INDEX
++++
1. Workers - freedom of movement - direct effect
(eec treaty, article 48)
2. Acts of an institution - direct effect - directive
(eec treaty, article 177, article 189)
3. Workers - freedom of movement - restrictions - article 3 of directive
no 64/221 of the council - direct effect
4. Community law - fundamental principle - derogation - national public
policy - strict interpretation - discretionary power of national
authorities
5. Workers - freedom of movement - derogation - threat to national public
policy - national of another member state - personal conduct - association
with a body which is not illegal - activities of that body considered to
be socially harmful
(eec treaty, article 48; council directive no 64/221, article 3 (1))
SUMMARY
1. As the limitations to the principle of freedom of movement for workers
which member states may invoke on grounds of public policy, public
security, or public health are subject to the control of the courts, the
proviso in paragraph (3) does not prevent the provisions of article 48
from conferring on individuals rights which they may enforce in the
national courts and which the latter must protect.
2. 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 directives, 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 the 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.
3. 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
latter must protect.
4. The concept of public policy in the context of the community and where,
in particular, it is used as a justification for derogating from a
fundamental principle of community law, 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.
5. Article 48 of the eec treaty and article 3 (1) of directive no 64/221
must be interpreted as meaning that a member state, 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 bodies or organizations.
ISSUE1
In case 41/74
reference to the court under article 177 of the eec treaty by the chancery
division of the high court of justice, england, for a preliminary ruling
in the action pending before that court between
yvonne van duyn
and
home office
ISSUE2
On the interpretation of article 48 of the eec treaty and article 3 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 of 4. 4. 1964, p. 850).
COURT
The court
composed of : r. Lecourt, president c. O dalaigh and mackenzie stuart,
presidents of chambers a. M. Donner, r. Monaco, j. Mertens de wilmars, p.
Pescatore, h. Kutscher and m. Soerensen (rapporteur), judges.
Advocate-general : h. mayras,
registrar : a. Van houtte,
gives the following judgment.
GROUNDS
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.
COSTS
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.
OPPART
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.
DOC : 1974/12/04;
LODGED : 1974/06/13;
JURCIT : 157E048-p1 157e048-p2 157e048-p3 364l0221-a03p1 157e189-l2
157e177 157e189-l3
CONCERNS : I 157e048
i 364l0221-a03p1
SUB : Free movement of workers;
AUTLANG : English;
OBSERV : Commission; united kingdom;
NATIONA : United kingdom;
NATCOUR : *A9* high court of justice (england), chancery division,
judgment of 14/02/74 (order of 01/03/74) (1973 1341)
- common market law reports 1974 vol.1 p.347-366
- the all england law reports 1974 vol.3 p.178-189
- the weekly law reports 1974 vol.1 p.1107-1118
§notes§
- guy, diana; leigh, guy i.F.: european law review 1975 p.92-94
*p1* high court of justice (england), chancery division, order
of 27/11/75 (1973 d 1341)
*p2* high court of justice (england), chancery division, order
of 27/11/79 (1973 d 1341)
NOTES : Wyatt, derrick: european law review 1975 p.51-53
wyatt, derrick: european law review 1975 p.64-67
goffin, r.Ch.: journal des tribunaux 1975 p.154-155
x: le quotidien juridique 1975 n| 57 p.5-9
simmonds, k.R.: international and comparative law quarterly
1975 p.419-437
meier, gert: deutsches verwaltungsblatt 1975 p.780-781
rittstieg, helmut: europarecht 1976 p.54-58
lyon-caen, g‚rard: revue trimestrielle de droit europ‚en 1976
p.141-144
lauwaars, r.H.: s.E.W.; sociaal-economische wetgeving 1976
p.74-83
blankenheimer, susan l.: vanderbilt journal of transnational
law 1976 p.415-423
boukema, h.J.M.: legal issues of european integration 1978/2
p.83-100
speller, jules: legal issues of european integration 1980/1
p.59-78
boukema, h.J.M.: legal issues of european integration 1980/1
p.79-80
x: boletim do minist‚rio da justi‡a 1986 p.289-291
PROCEDU : Reference for a preliminary ruling;
ADVGEN : Mayras
JUDGRAP : Soerensen
DATES : Of document.......: 04/12/1974 of application....:
13/06/1974
............... END OF DOCUMENT ...............
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