OPINION OF ADVOCATE GENERAL
STIX-HACKL
delivered on 11 September 2003(1)
Joined Cases C-482/01 and C-493/01
Georgios Orfanopoulos and Others
v
Land Baden-Württemberg (C-482/01)
and
(Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany))
Raffaele Oliveri
v
Land Baden-Württemberg (C-493/01)
(Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany))
(Interpretation of Article 39 EC – Restriction on the freedom of movement for workers on grounds of public policy – Expulsion on account of criminal offences in connection with drugs and danger of recidivism – Duration of worker's residence – Interests of his wife and children – Interpretation of Articles 3 and 9(1) of Directive 64/221/EEC – No re-examination of expediency)
Table of contents I – Introduction II – Legal background A – Community law B – National law III – Facts and main proceedings A – In Case C-482/01 B – In Case C-493/01 IV – Questions submitted for a preliminary ruling A – In Case C-482/01 B – In Case C-493/01 V – First question submitted for a preliminary ruling in Case C-482/01 A – Main arguments of the parties B – Appraisal 1. The limits imposed by Directive 64/221 2. Respect for private and family life under Article 8 of the Convention on Human Rights VI – Second question submitted for a preliminary ruling in Case C-482/01 A – Main arguments of the parties B – Appraisal 1. The need for the opinion of an independent competent authority 2. Decision of the Verwaltungsgericht as a decision of an independent competent authority? VII – First question submitted for a preliminary ruling in Case C-493/01 A – Main arguments of the parties B – Appraisal 1. Admissibility of the first question submitted for a preliminary ruling 2. Substance of the first question submitted for a preliminary ruling VIII – Second question submitted for a preliminary ruling in Case C-493/01 A – Main arguments of the parties B – Assessment IX – Conclusion A – In Case C-482/01 B – In Case C-493/01
I – Introduction
1. The two references for a preliminary ruling which are the subject of this Opinion concern the power of the Member States to restrict the free movement of workers on grounds of public policy and in particular to expel Community nationals to another Member State for particular criminal offences. They relate to the interpretation of Article 39 EC and 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 (2) (hereinafter: ‘Directive 64/221’).
II – Legal background
A – Community law
2. First, the national court requests an interpretation of Article 39 EC, that is to say the central provision of primary law concerning the freedom of movement for workers. Its question relates in particular to the reservation regarding restrictions justified on grounds of public policy, public security or public health laid down in Article 39(3). Secondly, the national court requests an interpretation of Directive 64/221.
3. Article 3(1) and (2) of Directive 64/221 provides:
‘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.’
4. Article 9 of Directive 64/221 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 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 expulsion.
2. Any decision refusing the issue of a first residence permit or ordering 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.’
B – National law
5. The basic German provisions concerning entry and residence are the Gesetz zur Neuregelung des Ausländerrechts (Law reforming legislation on aliens; hereinafter: ‘the Ausländergesetz’) (3) and the Gesetz über Einreise und Aufenthalt von Staatsangehörigen der Mitgliedstaaten der Europäischen Wirtschaftsgemeinschaft (Law on the entry and residence of nationals of Member States of the European Economic Community; hereinafter: ‘the Aufenthaltsgesetz/EWG’). (4) Under Paragraph 2(2) of the Ausländergesetz, that law applies to aliens who are entitled to freedom of movement by virtue of Community law, save where otherwise provided by Community law and the Aufenthaltsgesetz/EWG. Accordingly, Paragraph 15 of the Aufenthaltsgesetz/EWG provides that the Ausländergesetz and the regulations adopted on the basis thereof apply, save where otherwise provided by the Aufenthaltsgesetz/EWG.
6. Paragraph 12 of the Aufenthaltsgesetz/EWG, which governs restrictions on freedom of movement, provides (in so far as is relevant):
‘(1) In so far as this Law grants freedom of movement and does not already provide for restrictive measures in the above provisions, refusal of leave to enter and refusal to issue or extend an EC residence permit, restrictive measures referred to in Paragraph 3(5), the first sentence of Paragraph 12(1) and Paragraph 14 of the Ausländergesetz, and expulsion or deportation in relation to the persons referred to in Paragraph 1 shall be permitted only on grounds of public policy, public security or public health (Article 48(3) and Article 56(1) of the Treaty establishing the European Economic Community). Aliens who hold an unlimited EC residence permit may be expelled only on serious grounds of public security or public policy.
...
(3) The decisions or measures referred to in paragraph 1 may be adopted only where an alien gives cause for doing so on account of his personal conduct. This shall not apply to decisions or measures adopted to protect public health.’
7. The Ausländergesetz provides for three kinds of expulsion: possible expulsion (or discretionary expulsion), expulsion as a rule, and compulsory expulsion.
8. Pursuant to Paragraph 45 of the Ausländergesetz expulsion is possible when there is prejudice to the requirements of public security and public policy or other substantial interests of the Federal Republic of Germany.
9. Paragraph 47(2) of the Ausländergesetz lays down so-called ‘expulsion as a rule’, that is to say contains an exhaustive list of grounds on which expulsion is ordered ‘as a rule’.
10. Paragraph 47(1) of the Ausländergesetz provides for ‘compulsory expulsion’, that is to say it provides for mandatory expulsion in particular cases. This provision states:
‘(1) An alien shall be expelled if he
1. has been finally sentenced to a term of imprisonment or youth custody of at least three years for one or more intentional criminal offences or has been finally sentenced to several terms of imprisonment or youth custody of a total of at least three years for intentional criminal offences committed within a period of five years, or has been placed in preventative detention by the most recent final sentence, or
2. has been finally sentenced to a term of youth custody of at least two years, or to a term of imprisonment, and the sentence has not been suspended, for an intentional criminal offence under the Betäubungsmittelgesetz (Law on narcotics), for a breach of the public peace under the conditions set out in the second sentence of Paragraph 125a of the Strafgesetzbuch (Criminal Code) or for a breach of the public peace under Paragraph 125 of the Strafgesetzbuch committed in connection with a prohibited public assembly or a prohibited procession.’
11. Paragraph 48 of the Ausländergesetz provides for special protection against expulsion for particular aliens. They include inter alia aliens who possess a residence entitlement (Aufenthaltsberechtigung) (first subparagraph) and aliens who live in a family relationship with a German family member (fourth subparagraph). Such aliens may be expelled ‘only on serious grounds of public security or public policy. Serious grounds of public security and public policy exist as a rule in the cases set out in Paragraph 47(1).’ Under Article 47(3), compulsory expulsion becomes expulsion as a rule and expulsion as a rule becomes possible expulsion.
12. Under No 48.1.0 of the Allgemeine Verwaltungsvorschrift zum Ausländergesetz (General administrative provision relating to the Law on aliens), (5) EU nationals who hold an unlimited residence permit (Aufenthaltsberechtigung) are to be treated in the same way as the persons referred to in Paragraph 48(1). The requirements set out in Paragraph 12 of the Aufenthaltsgesetz/EWG apply to those entitled to freedom of movement.
13. In each individual case it is necessary to apply a proportionality test in which account must also be taken of the protection of marriage and the family laid down inter alia in the European Convention on Human Rights and Fundamental Freedoms (hereinafter: ‘the Human Rights Convention’).
14. Paragraph 8 of the Ausländergesetz lays down special grounds for refusal. Paragraph 8(a) deals inter alia with the time-limit on expulsion.
15. According to the information provided by the national court, in Baden-Württemberg, until 30 June 1999, a preliminary re-examination of the lawfulness and expediency of the administrative measure relating to an expulsion was as a rule necessary before the bringing of an action for annulment. However, with effect from 1 July 1999 (6) there was no need for preliminary proceedings if the administrative measure had been adopted by a Regierungspräsidium (office of chief executive of an administrative district).
16. The first sentence of Paragraph 6a of the Ausführungsgesetz zur Verwaltungsgerichtsordnung (Law implementing the rules of procedure for administrative courts; ‘the AGVwGO’) now states as follows:
‘No preliminary proceedings are required if the Regierungspräsidium has adopted or rejected the administrative measure’.
17. Therefore, the expediency of a decision is not reviewed in appeal proceedings where the Regierungspräsidium has jurisdiction ratione materiae for the adoption of an expulsion order. Under the first sentence of Paragraph 7(1) of the Ausländer- und Asylverfahrenszuständigkeitsverordnung (Regulation on jurisdiction over proceedings relating to aliens and asylum; the ‘AAZuVO’), Regierungspräsidien have jurisdiction over the expulsion of foreign offenders where they have been held in prison by order of a court or on remand for over a week.
III – Facts and main proceedings
A – In Case C-482/01
18. Mr Georgios Orfanopoulos was born in 1959 and is a Greek national. In 1972 he entered the territory of the Federal Republic of Germany to join his parents. He subsequently held limited residence permits. In 1978 Mr Orfanopoulos returned to Greece to carry out military service. In September/October 1980 he re-entered the territory of the Federal Republic. In 1981 Mr Orfanopoulos married a German national. This marriage produced three children who are also plaintiffs in the proceedings before the national court. Mr Orfanopoulos subsequently obtained an EC residence permit on several occasions, the most recent being valid until 12 October 1999. On 9 November 1999 he applied for an extension of his EC residence permit. Mr Orfanopoulos has no professional training qualifications. Since 1981 he has pursued various activities as an employed person. Mr Orfanopoulos has several previous convictions imposed by a number of judgments of the Amtsgericht Stuttgart (Stuttgart Local Court).
19. Mr Orfanopoulos was in prison from 3 February 1999 to 5 August 1999. In the time thereafter he was found on several occasions on the drugs scene. From 7 January 2000 to 25 January 2000 Mr Orfanopoulos was at Stuttgart’s Bürgerhospital for detoxification and was then admitted to a rehabilitation centre for in-patient treatment. He was discharged from there on 15 April 2000 when he was found to have a concentration of alcohol in his blood. On 31 May 2000 Mr Orfanopoulos was readmitted to this rehabilitation centre and discharged on 29 June 2000 on disciplinary grounds because he tested positive for benzodiazepine. Since 11 September 2000 Mr Orfanopoulos has been serving the terms of imprisonment imposed by the judgments of the Amtsgericht Stuttgart of 1994 and 1998.
20. In 1992, 1997 and 1998 Mr Orfanopoulos received from the Aliens Department a warning under the law relating to aliens.
21. As regards the facts of the case, the national court further states that Mr Orfanopoulos has been a drug addict for over 15 years. He was drug-free for a period of only around a year and a half up to the end of 1994. At the beginning of 2000 Mr Orfanopoulos underwent detoxification and then made two attempts at in-patient drug treatment. Both attempts were unsuccessful since Mr Orfanopoulos was, on both occasions, discharged prematurely from the rehabilitation centre on disciplinary grounds. According to the report drawn up by the rehabilitation centre, Mr Orfanopoulos now recognises that he is suffering from drug addiction. However, it is not clear that this recognition on the part of Mr Orfanopoulos could lead to him giving up drugs completely. On account of the previous criminal acts it is also clear that Mr Orfanopoulos tends to commit acts of violence when he consumes considerable quantities of alcohol. Thus far Mr Orfanopoulos has taken no steps at all to deal with this extreme alcohol dependency. According to the treatment report drawn up by the rehabilitation centre, Mr Orfanopoulos does not recognise in the slightest that he has an alcohol problem. Mr Orfanopoulos is neither willing nor able to commence treatment for his alcohol dependency. On account of the continuing drug and alcohol dependency there is a real danger of further criminal acts. Neither the penalties provided for under criminal law nor the law relating to aliens have acted as a warning to Mr Orfanopoulos. At no time during the entire proceedings have Mr Orfanopoulos or his daughters disputed the real danger of his re-offending.
22. By Decision of 28 February 2001 the Regierungspräsidium Stuttgart (Chief Executive’s Office of Stuttgart District) ordered the expulsion of Mr Orfanopoulos from the territory of the Federal Republic, dismissed his application for an extension of his EC residence permit and for the issue of a residence authorisation, and threatened him with deportation to Greece without limit of time. At the same time Mr Orfanopoulos was advised that he would be deported on his release from prison. On 21 March 2001 Mr Orfanopoulos and his daughters brought an action. In March 2002 Mr Orfanopoulos’ remaining sentence was suspended. According to the information provided by the Landgericht (regional court) which suspended his sentence, Mr Orfanopoulos has shown good behaviour whilst in prison. Furthermore, he has decided to accept treatment.
23. The national court is uncertain whether the expulsion is compatible with Community law, that is to say Article 39(1) and (3) EC. It considers that the decision of the Regierungspräsidium is consistent with the case-law of the Court of Justice, but the proportionality of the expulsion is uncertain. This is so in view of Mr Orfanopoulos’ long-term residence in Germany. Furthermore, his expulsion would clearly make it more difficult for him and his wife to live together as a family. Nor could his wife reasonably be expected to move to Greece. Therefore, the question of compatibility with Article 8 of the Human Rights Convention arises. Moreover, the procedural safeguards laid down in Article 9 of Directive 64/221 may have been breached.
B – In Case C-493/01
24. Mr Raffaele Oliveri was born in Germany in 1977 and is an Italian national. He has resided continuously in Germany since he was born. He has no professional qualifications. Mr Oliveri has been a drug addict for many years. Mr Oliveri has a number of previous convictions.
25. By letter of 14 May 1999 Mr Oliveri received a warning under the law relating to aliens. As from 18 November 1999 Mr Oliveri was in prison serving the terms of imprisonment imposed by two judgments of 1999 and several terms of imprisonment for failure to pay fines. By order of 7 March 2000 the Staatsanwaltschaft Stuttgart (Stuttgart Public Prosecutor’s Office) deferred execution of the sentences imposed by the two judgments of 1999 with effect from 9 March 2000 for the duration of treatment at a treatment centre. Mr Oliveri abandoned this treatment after about one week. Thereupon the deferral of the execution of the sentences was revoked. On 24 April 2000 Mr Oliveri was re-arrested and has been in prison ever since.
26. By Decision of 29 August 2000 the Regierungspräsidium Stuttgart ordered the expulsion of Mr Oliveri from the territory of the Federal Republic and threatened him with deportation to Italy without setting a time-limit for his leaving the country voluntarily. On 25 September 2000 Mr Oliveri brought an action.
27. By letter of 20 June 2001 the medical service of the competent prison hospital stated that Mr Oliveri has been infected with HIV since December 1998. Mr Oliveri has had full-blown Aids since March 2001. Although he has been given highly effective anti-retroviral treatment since May 2001, this has yet to have the desired effect. It must be assumed that Mr Oliveri will not obtain adequate medical attention in Italy and that care for the extremely ill plaintiff, who will presumably die soon, is not guaranteed there.
28. The national court is uncertain as to the compatibility of the expulsion with Article 39(1) and (3) EC and Article 3 of Directive 64/221. Paragraph 47(1) of the Ausländergesetz makes no provision for review of the specific case. Finally, it is uncertain whether the fact that, according to the settled case-law of the Bundesverwaltungsgericht (Federal Administrative Court), Mr Oliveri may no longer plead material circumstances relating to his state of health, which are of vital importance to the decision concerning expulsion, is compatible with the principle of proportionality.
IV – Questions submitted for a preliminary ruling
29. The Verwaltungsgericht Stuttgart stayed both sets of proceedings and submitted the following questions to the Court for a preliminary ruling:
A – In Case C-482/01
1. Is a restriction on the freedom of movement of a foreign EU national with many years’ residence in a host State, ordered on account of a criminal offence under the Betäubungsmittelgesetz, in conformity with European Law in terms of Article 39(3) EC on grounds of public policy, public security or public health, where, on account of his personal conduct, there is a justified expectation that he will also commit future criminal offences and where the spouse of the EU national and his children cannot reasonably be expected to live in his State of origin?
2. Does Article 9(1) of Council Directive 64/221/EEC of 25 February 1964 preclude national legislation which no longer provides for objection proceedings in which an examination of expediency is also carried out in relation to a decision of an administrative authority to expel the holder of a residence permit from the national territory, if a special body which is independent of the administrative authority adopting the decision has not been established?
B – In Case C-493/01
1. Do Article 39 EC and Article 3 of Council Directive 64/221/EEC of 25 February 1964 preclude national legislation which makes it mandatory for authorities to expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years, or to a term of imprisonment, for an intentional criminal offence under the Betäubungsmittelgesetz where the sentence has not been suspended?
2. Is Article 3 of Council Directive 64/221/EEC of 25 February 1964 to be interpreted as meaning that the submission of a report and a positive development in the person concerned which occurred after the final decision of the authority must also be taken into account by the national courts when they review the lawfulness of the expulsion of an EU national?
V – First question submitted for a preliminary ruling in Case C-482/01
A – Main arguments of the parties
30. Mr Orfanopoulos considers that Community law affords extensive protection against expulsion. In that respect he refers to the legal situation in the other Member States. He claims that expulsion may be ordered solely on grounds of personal conduct and not on general preventative grounds. It is not acceptable that the person concerned has to bear the burden of proof that he represents no danger to society. The principle of proportionality requires that developments after the offence also be taken into consideration. Moreover, an expulsion must be linked to the misconduct.
31. Furthermore, account must be taken of the limits imposed by Article 8 of the Human Rights Convention, that is to say the basic right to respect for family life enshrined therein, and in that context the ability to make oneself understood linguistically in the State of origin should not be a criterion for expulsion. Moreover, expulsion could result in expelled EU nationals obtaining spent convictions later than a country’s own nationals. In addition, the term ‘public policy’ in Directive 64/221 must be interpreted strictly.
32. Overall, Mr Orfanopoulos proposes that the answer to the question submitted for a preliminary ruling should be that Article 39 EC prohibits the expulsion of an EU national who has been resident in another Member State for many years and that it is necessary to consider in which Member State re-socialisation is most likely to succeed.
33. As far as the Regierungspräsidium Stuttgart is concerned, the lawfulness of the expulsion turns solely on whether there is a genuine and sufficiently serious threat within the meaning of the Aufenthaltsgesetz. The specific assessment must be made in the light of the principle of proportionality. In that respect not every expulsion on grounds of a criminal offence always infringes Community law where the person concerned has resided in a Member State for many years and his family members cannot reasonably be expected to move. Finally, the Regierungspräsidium Stuttgart observes that an infringement of the European Convention cannot be the subject of preliminary ruling proceedings.
34. The German Government considers that German law properly transposes the requirements of Community law. It follows from the case-law of the Court of Justice that there must be a genuine and sufficiently serious threat affecting a fundamental interest of society. All the offences in question in this case must be classified as a threat to public policy and public security. Existing German law, in particular Paragraph 12 of the Aufenthaltsgesetz/EWG, takes account of the principle of proportionality and the fundamental right to protection of the family under Article 8 of the European Convention, Article 6 EC and the Charter of Fundamental Rights, since it provides for an examination of each individual case.
35. The Italian Government submits that the term ‘public policy’ needs an autonomous and uniform interpretation in Community law. In addition, the Italian Government refers to the case-law of the European Court of Human Rights (hereinafter: ‘the ECHR’) relating to Article 8 of the Human Rights Convention. It follows from Article 3 of Directive 64/221 that automatic expulsion is unlawful because derogations from the principle of freedom of movement must be interpreted strictly. Restrictions on freedom of movement may be imposed only on special preventative grounds and must be proportionate. The Italian Government therefore concludes that a national provision which provides for the automatic expulsion of a national of another Member State solely on the basis of a criminal conviction is incompatible with Community law.
36. The Commission submits that Article 39 EC and Article 3 of Directive 64/221 preclude legislation which makes it mandatory for the authorities to expel nationals of other Member States who have been sentenced to particular punishments for particular criminal offences without having to assess in each individual case the circumstances surrounding the personal conduct of the individual concerned.
37. As regards the proportionality of the expulsion, the Commission refers to Article 8 of the Human Rights Convention. In its view, even though it is justified on grounds of the personal conduct of the individual concerned expulsion is unlawful if the spouse and children of the EU national cannot reasonably be expected to live in his State of origin. On the basis of the case-law of the ECHR and the right to freedom of movement enjoyed by EU nationals the Commission concludes that expulsion is disproportionate.
B – Appraisal
38. First, it should be noted that in the context of judicial cooperation between national courts and the Court of Justice, it is for national courts to establish and to evaluate the facts of the case and for the Court of Justice to provide the national court with such guidance on interpretation as may be necessary to enable it to decide the dispute. (7)
39. The present proceedings concern a measure which restricts the freedom of an EU national and, more specifically, an expulsion. Therefore, they essentially concern the question of the margin of discretion enjoyed by the Member States in respect of public policy.
40. At a very basic level, the only question is whether there are advantages for the European Union in expelling an individual from one Member State to another. The practice of deportation basically constitutes an ‘exportation of danger’.
1. The limits imposed by Directive 64/221
41. According to the Court’s case-law, (8) the term ‘public policy’ must, where it is used as a justification for derogating from the principle of freedom of movement, be interpreted strictly and autonomously in Community law and is subject to review by the Court.
42. It may be inferred from the Court’s case-law that there are four requirements which restrictions on the freedom of movement on grounds of public policy and public security must satisfy.
43. First, ‘prejudice to the requirements of public policy’ is required. Secondly, there must be a genuine and sufficiently serious threat. Thirdly, this threat must affect a fundamental interest of society. (9) Fourthly, the measure adopted by the Member State must be proportionate.
44. It is not disputed that the first requirement is satisfied in the present case and the third requirement can be regarded as satisfied in so far as the present case relates to drugs offences which as a rule affect a fundamental interest of society.
45. However, it is uncertain whether the second and fourth requirements are satisfied. Since the main proceedings concern a measure taken on grounds of public policy or of public security within the meaning of Directive 64/221, it is necessary to comply with its provisions. Therefore, the second requirement, relating to the threat, must be viewed in the context of Article 3 of Directive 64/221.
46. The starting point must be the requirement of Article 3(1) of Directive 64/221 that measures taken on grounds of public policy or of public security are to ‘be based exclusively on the personal conduct of the individual concerned’. According to the Court’s case law, account must taken in that respect of ‘the danger which [the offender’s personal] conduct represents for the requirements of public policy’. (10) A present and specific threat, that is to say the existence of a particular risk, is required. Therefore, overall it may be inferred from the Court’s case-law (11) that assessments may not be made on the basis of general considerations. However, it is consequently also prohibited to take as a basis general preventative grounds, that is to say an individual may not be expelled on such grounds.
47. A further condition follows from Article 3(2) of Directive 64/221, that is to say that ‘[p]revious criminal convictions shall not in themselves constitute grounds for the taking of such measures’.
48. This provision is construed by the Court as meaning that the appraisal under the law relating to aliens ‘does not necessarily coincide with the appraisals which formed the basis of the criminal conviction. ... 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.’ (12)
49. The Court has confirmed this expressly in relation to drugs offences. (13) In that respect I consider that a distinction may definitely be drawn between different drugs offences, and particular weight may
