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Court of Justice of the European Communities (including Court of First Instance Decisions) |
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Netherlands (Free movement of persons) [2007] EUECJ C-50/06 (07 June 2007) URL: http://www.bailii.org/eu/cases/EUECJ/2007/C5006.html Cite as: ECLI:EU:C:2007:325, [2007] EUECJ C-50/06, [2007] ECR I-9705, EU:C:2007:325, [2007] EUECJ C-50/6 |
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(Failure of a Member State to fulfil obligations Citizenship of the Union Freedom of movement for nationals of the Member States Directive 64/221/EEC Public policy National legislation concerning expulsion Criminal conviction Expulsion)
In Case C-50/06,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 31 January 2006,
Commission of the European Communities, represented by M. Condou-Durande and R. Troosters, acting as Agents, with an address for service in Luxembourg,
applicant,
Kingdom of the Netherlands, represented by H.G. Sevenster and M. de Grave, acting as Agents,
defendant,
composed of A. Rosas (Rapporteur), President of the Chamber, J. Klučka, J.N. Cunha Rodrigues, P. Lindh and A. Arabadjiev, Judges,
Advocate General: E. Sharpston,
Registrar: R. Grass,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Legal context
Community law
-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.'
National legislation
'In this law and in the provisions which are based upon it, the following definitions apply:
...
(e) Community nationals:
1. nationals of the Member States of the European Union who, under the Treaty establishing the European Community, are entitled to enter and reside on the territory of another Member State;
2. members of the families of the persons referred to in subparagraph 1 who are nationals of a third State and who, on the basis of a decision taken in application of the Treaty establishing the European Community, are entitled to enter and reside on the territory of a Member State;
...
(m) Foreign national:
any person who does not hold Netherlands nationality and who by law is not entitled to be treated as a Netherlands national.'
-1. A foreign national may be declared undesirable by our minister:
(a) if he is not lawfully resident in the Netherlands and if he has repeatedly committed acts punishable under this law;
(b) if he has been convicted by a judgment which has become final for offences in respect of which he is liable to a sentence of imprisonment of three years or more or if he is the subject of a measure of the kind provided for in Article 37a of the Wetboek van Strafrecht (Netherlands Criminal Code);
(c) if he represents a danger to the requirements of public policy or national security and if he is not lawfully resident in the Netherlands for the purposes of paragraphs (a) to (e) of Article 8 or paragraph (l) thereof;
(d) pursuant to a treaty; or
(e) in the interests of the international relations of the Netherlands.
...
3. By derogation from Article 8, a foreign national who has been declared undesirable cannot be lawfully resident [in the Netherlands].'
'In respect of a decision on an objection or on an administrative appeal, our minister will seek the opinion of the Advisory Board for matters concerning foreign nationals ..., if the contested decision refuses a Community national entry to the Netherlands or if it is declared that a Community national is not lawfully resident in the country for the purposes of Article 8(e) of the law or if such lawful residence is terminated on grounds relating to a threat to the requirements of public policy, public security or public health within the meaning of Directive 64/221 ...'
-1. A Community national shall not be expelled for as long as it is not clear that the person concerned does not enjoy a right of residence or that his right of residence has lapsed.
2. A foreign national who is a national of one of the contracting States to the Treaty establishing the European Community or to the Agreement on the European Economic Area, or a member of his family, and who does not enjoy a right of residence as a Community national, or whose right of residence has lapsed, shall be expelled only after a period of at least four weeks has been granted to him to leave for a country, other than the Netherlands, into which he is guaranteed entry.
3. The expulsion of the foreign national referred to in paragraph 2 may not be carried out before a decision has been taken on any objection lodged within the prescribed period to a decision for the purposes of paragraph 2.
4. It is possible to derogate from paragraphs 2 and 3 in urgent cases.'
Pre-litigation procedure
The action
Admissibility
Substance
Costs
On those grounds, the Court (Third Chamber) hereby:
1. Declares that, by not applying to citizens of the Union 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, but by applying to them general legislation relating to foreign nationals which makes it possible to establish a systematic and automatic connection between a criminal conviction and a measure ordering expulsion, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;
2. Orders the Kingdom of the Netherlands to pay the costs.
[Signatures]
* Language of the case: Dutch.