EUR-Lex -  61979CJ0098 - EN - Judgment of the Court of 5 March 1980. - Josette Pecastaing v Belgian State. - Reference for a preliminary ruling: Tribunal de première instance de Liège - Belgium. - Right of residence and public policy. - Case 98/79.

Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords

1 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - PROTECTION PROVIDED BY THE COURTS - LEGAL REMEDIES AVAILABLE TO NATIONALS AGAINST ACTS OF THE ADMINISTRATION - LESS FAVOURABLE CONDITIONS CONCERNING FORM OR PROCEDURE FOR NATIONALS OF OTHER MEMBER STATES - NOT PERMISSIBLE

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 8 )

2 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - PROTECTION PROVIDED BY THE COURTS - LEGAL REMEDIES AVAILABLE TO NATIONALS AGAINST ACTS OF THE ADMINISTRATION - STAY OF EXECUTION OF THE ACT CONTESTED - IDENTICAL CONDITIONS AS TO ADMISSIBILITY FOR NATIONALS OF THE HOST STATE AND FOR NATIONALS OF OTHER MEMBER STATES

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 8 )

3 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - PROTECTION PROVIDED BY THE COURTS - NO SUSPENSORY EFFECT OF APPLICATIONS - PERMISSIBILITY - DUTIES OF MEMBER STATES - RIGHT TO A FAIR HEARING - REGARD FOR RIGHTS OF THE DEFENCE

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 8 )

4 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - EXPULSION - APPEAL TO THE COMPETENT AUTHORITY - PROCEDURE PRIOR TO THE EXPULSION ORDER - IMMEDIATE EXECUTION OF THE DECISION AFTER OBTAINING THE OPINION OF THE COMPETENT AUTHORITY - PERMISSIBILITY - CONDITIONS

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 9 )

5 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - EXPULSION - APPEAL TO THE COMPETENT AUTHORITY - PROCEDURE PRIOR TO THE EXPULSION ORDER - EXCEPTION - CASES OF URGENCY DULY JUSTIFIED - APPRAISAL OF URGENCY BY THE ADMINISTRATIVE AUTHORITY

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 9 )

6 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS ON POLICY REGARDING ALIENS - PROCEDURE CONCERNING EXAMINATION BY AND OPINION OF THE COMPETENT AUTHORITY - OBJECTIVE - NO EFFECT ON THE JURISDICTION OF THE NATIONAL COURTS

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 9 )

Summary

1 . ARTICLE 8 OF DIRECTIVE NO 64/221 IMPOSES UPON THE MEMBER STATES THE DUTY TO MAKE AVAILABLE TO ANY NATIONAL OF A MEMBER STATE OF THE COMMUNITY AFFECTED BY ANY DECISION CONCERNING ENTRY OR REFUSING THE ISSUE OR RENEWAL OF A RESIDENCE PERMIT OR ORDERING EXPULSION FROM THE TERRITORY IN QUESTION THE SAME LEGAL REMEDIES AS ARE AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION . A MEMBER STATE CANNOT , WITHOUT BEING IN BREACH OF THAT DUTY , MAKE THE RIGHT OF APPEAL FOR PERSONS COVERED BY THE DIRECTIVE CONDITIONAL ON PARTICULAR REQUIREMENTS AS TO FORM OR PROCEDURE WHICH ARE LESS FAVOURABLE THAN THOSE PERTAINING TO REMEDIES AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION .

2 . ARTICLE 8 OF DIRECTIVE NO 64/221 IMPOSES UPON THE MEMBER STATES THE DUTY TO PROVIDE FOR THE PERSONS COVERED BY THE DIRECTIVE PROTECTION BY THE COURTS WHICH IS NOT LESS THAN THAT WHICH THEY MAKE AVAILABLE TO THEIR OWN NATIONALS AS REGARDS APPEALS AGAINST ACTS OF THE ADMINISTRATION , INCLUDING , IF APPROPRIATE , SUSPENSION OF THE ACTS APPEALED AGAINST . IT COVERS ALL THE REMEDIES AVAILABLE IN A MEMBER STATE IN RESPECT OF ACTS OF THE ADMINISTRATION , WITHIN THE FRAMEWORK OF THE JUDICIAL SYSTEM AND THE DIVISION OF JURISDICTION BETWEEN JUDICIAL BODIES IN THE STATE IN QUESTION . THIS MEANS INTER ALIA THAT IF , IN A MEMBER STATE , THE ADMINISTRATIVE COURTS WERE NOT EMPOWERED TO GRANT A STAY OF EXECUTION OF AN ADMINISTRATIVE DECISION BUT SUCH POWER WAS RECOGNIZED TO THE ORDINARY COURTS THAT STATE WOULD BE OBLIGED TO PERMIT PERSONS COVERED BY THE DIRECTIVE TO APPLY FOR A STAY OF EXECUTION TO SUCH COURTS ON THE SAME CONDITIONS AS NATIONALS OF THAT STATE .

3 . ARTICLE 8 OF DIRECTIVE NO 64/221 IMPOSES NO SPECIFIC OBLIGATION CONCERNING ANY SUSPENSORY EFFECT OF APPLICATIONS AVAILABLE TO PERSONS COVERED BY THE DIRECTIVE . THERE CANNOT BE INFERRED FROM THAT PROVISION AN OBLIGATION FOR THE MEMBER STATES TO PERMIT AN ALIEN TO REMAIN IN THEIR TERRITORY FOR THE DURATION OF THE PROCEEDINGS , SO LONG AS HE IS ABLE NEVERTHELESS TO OBTAIN A FAIR HEARING AND TO PRESENT HIS DEFENCE IN FULL . THAT REQUIREMENT IMPLIES INTER ALIA THAT THE DECISION ORDERING EXPULSION MAY NOT BE EXECUTED - SAVE IN CASES OF URGENCY - BEFORE THE PARTY CONCERNED IS ABLE TO COMPLETE THE FORMALITIES NECESSARY TO AVAIL HIMSELF OF HIS REMEDY .

4 . THE PROCEDURE OF APPEAL TO A ' ' COMPETENT AUTHORITY ' ' REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221 MUST PRECEDE THE DECISION ORDERING EXPULSION , SAVE IN CASES OF URGENCY . IN PARTICULAR IF A MEMBER STATE HAS APPLIED ARTICLE 9 IN ORDER TO COMPENSATE FOR THE FACT THAT THE APPEALS TO THE COURTS WHICH ARE AVAILABLE DO NOT CARRY SUSPENSORY EFFECT THAT PROVISION WOULD BE RENDERED NUGATORY IF , ALWAYS SAVE IN CASES OF URGENCY , EXECUTION OF THE EXPULSION ORDER CONTEMPLATED WERE NOT SUSPENDED UNTIL THAT AUTHORITY HAS GIVEN ITS DECISION . IT THEREFORE FOLLOWS FROM ARTICLE 9 THAT AS SOON AS THE OPINION IN QUESTION HAS BEEN OBTAINED AND NOTIFIED TO THE PERSON CONCERNED AN EXPULSION ORDER MAY BE EXECUTED IMMEDIATELY , SUBJECT ALWAYS TO THE RIGHT OF THAT PERSON TO STAY ON THE TERRITORY FOR THE TIME NECESSARY TO AVAIL HIMSELF OF THE REMEDIES ACCORDED TO HIM UNDER ARTICLE 8 OF THE DIRECTIVE .

5 . THE FIRST SUBPARAGRAPH OF ARTICLE 9 ( 1 ) SHOWS THAT DETERMINATION OF THE EXISTENCE OF URGENCY IN CASES WHICH HAVE BEEN PROPERLY JUSTIFIED IS A MATTER FOR THE ADMINISTRATIVE AUTHORITY AND THAT EXPULSION FROM THE TERRITORY MAY THEN BE EFFECTED EVEN BEFORE THE ' ' COMPETENT AUTHORITY ' ' HAS BEEN ABLE TO GIVE ITS OPINION .

6 . THE PROCEDURE CONCERNING THE CONSIDERATION OF THE DECISION AND CONCERNING THE OPINION REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221 , WHICH IS INTENDED TO MITIGATE THE EFFECT OF DEFICIENCIES IN THE REMEDIES REFERRED TO IN ARTICLE 8 , IS NOT INTENDED TO CONFER UPON THE COURTS ADDITIONAL POWERS CONCERNING SUSPENSION OF THE MEASURES REFERRED TO BY THE DIRECTIVE OR TO EMPOWER THEM TO REVIEW THE URGENCY OF AN EXPULSION ORDER .

THE PERFORMANCE OF THESE DUTIES BY THE NATIONAL COURTS IS GOVERNED BY ARTICLE 8 OF THE DIRECTIVE .

THE SCOPE OF THAT PROVISION NEVERTHELESS MAY NOT BE RESTRICTED BY MEASURES TAKEN BY A MEMBER STATE UNDER ARTICLE 9 .

Parties

IN CASE 98/79

REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE PRESIDENT OF THE TRIBUNAL DE PREMIERE INSTANCE ( COURT OF FIRST INSTANCE ), LIEGE , FOR A PRELIMINARY RULING IN THE SUMMARY PROCEEDINGS PENDING BEFORE THE PRESIDENT OF THAT COURT BETWEEN

JOSETTE PECASTAING , WAITRESS AND BAR HOSTESS , RESIDENT IN LIEGE ,

AND

THE BELGIAN STATE , REPRESENTED BY THE MINISTER FOR JUSTICE ,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 8 AND 9 OF COUNCIL DIRECTIVE NO 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 ,

Grounds

1 BY AN ORDER OF 18 JUNE 1979 , WHICH WAS RECEIVED AT THE COURT ON 21 JUNE 1979 , THE PRESIDENT OF THE TRIBUNAL DE PREMIERE INSTANCE , LIEGE , IN THE COURSE OF SUMMARY PROCEEDINGS , SUBMITTED PURSUANT TO ARTICLE 177 OF THE EEC TREATY A SERIES OF QUESTIONS ON THE INTERPRETATION OF ARTICLES 8 AND 9 OF 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1963-1964 , P . 117 ) IN ORDER TO DETERMINE WHETHER AN APPLICATION SUBMITTED BY A FRENCH NATIONAL CLAIMING , IN CIVIL PROCEEDINGS , THE SUSPENSION OF AN EXPULSION ORDER ISSUED AGAINST HER BY THE BELGIAN POLICE IS ADMISSIBLE .

THE APPLICATION IN BELGIUM OF DIRECTIVE NO 64/221

2 THE INFORMATION OBTAINED IN THE COURSE OF THE PROCEEDINGS SHOWS THAT BELGIUM HAS NOT ENACTED SPECIFIC LEGISLATION FOR THE IMPLEMENTATION OF ARTICLE 8 OF THE DIRECTIVE . IN FACT IT IS NOT CONTESTED THAT APPEALS IN ADMINISTRATIVE MATTERS TO THE BELGIAN CONSEIL D ' ETAT ARE OPEN TO ANY PERSON , IRRESPECTIVE OF NATIONALITY , SO THAT THE PERSONS REFERRED TO IN ARTICLE 1 OF THE DIRECTIVE THEREBY HAVE THE RIGHT OF APPEAL TO A COURT OF LAW AGAINST POLICE MEASURES AFFECTING THEM . WITH REGARD TO THE APPLICATION OF ARTICLE 9 , IN THE LAW OF 1 APRIL 1969 ( MONITEUR BELGE , P . 6182 ) BELGIUM ADOPTED A PROVISION INTENDED TO ENABLE THE PERSONS COVERED BY THE DIRECTIVE TO APPLY TO THE CONSULTATIVE COMMITTEE SET UP BY ARTICLE 10 OF THE LAW ON THE SUPERVISION OF ALIENS OF 28 MARCH 1952 . IN ACCORDANCE WITH THE ROYAL DECREE OF 22 DECEMBER 1969 ( MONITEUR BELGE , 1970 , P . 1402 ) PERSONS WHO HAVE BEEN REFUSED A RESIDENCE PERMIT OR AGAINST WHOM AN EXPULSION ORDER HAS BEEN MADE BEFORE A PERMIT WAS ISSUED HAVE THE RIGHT TO SUBMIT A COMPLAINT TO THE SAID COMMITTEE BY ADDRESSING AN APPLICATION TO THE MINISTER OF JUSTICE WITHIN EIGHT DAYS FROM THE DATE ON WHICH THEY WERE NOTIFIED OF THE DECISION CONCERNING THEM .

3 THE INFORMATION OBTAINED IN THE COURSE OF THE PROCEEDINGS ESTABLISHES THAT , ACCORDING TO THE RELEVANT DECISIONS OF THE ADMINISTRATIVE COURTS , AN ALIEN WHO HAS FAILED TO APPLY TO THE CONSULTATIVE COMMITTEE WITHIN THE PRESCRIBED TIME-LIMIT IS BARRED FROM SUBSEQUENTLY SUBMITTING AN APPLICATION TO THE CONSEIL D ' ETAT . IN REPLY TO THE QUESTIONS RAISED BY THE COURT OF JUSTICE THE BELGIAN GOVERNMENT HAS FURTHERMORE EXPLAINED THAT , ACCORDING TO ADMINISTRATIVE PRACTICE , AN ALIEN AFFECTED BY A POLICE MEASURE IS NOT INFORMED , AT THE TIME THE DECISION IS NOTIFIED TO HIM , OF HIS RIGHT TO COMPLAIN TO THE CONSULTATIVE COMMITTEE OR OF THE TIME-LIMIT FOR SUCH A COMPLAINT OR OF THE CONSEQUENCES OF THE FAILURE TO COMPLAIN TO THE SAID COMMITTEE WITH REGARD TO A SUBSEQUENT APPEAL TO THE COURTS .

THE BACKGROUND TO THE APPLICATION

4 THE ORDER FROM THE NATIONAL COURT AND THE DOCUMENTS ON THE CASE SHOW THAT THE PLAINTIFF LAWFULLY ENTERED BELGIUM ON 8 OCTOBER 1977 AND THAT SHE WORKED AS A WAITRESS IN BARS IN THE LIEGE REGION WHICH THE POLICE CONSIDER TO BE OF DOUBTFUL MORAL CHARACTER . ON 8 NOVEMBER 1977 MRS PECASTAING , WHO HAD IN THE MEANTIME REGISTERED WITH THE ADMINISTRATION OF THE COMMUNE IN WHICH SHE RESIDED , APPLIED FOR A RESIDENCE PERMIT AS AN EMPLOYED PERSON . THE BELGIAN POLICE SOUGHT INFORMATION FROM THE FRENCH AUTHORITIES AND WERE TOLD THAT THE PLAINTIFF HAD PREVIOUSLY BEEN A PROSTITUTE IN FRANCE AND IN THE FEDERAL REPUBLIC OF GERMANY . ACTING ON THAT INFORMATION , THE ALIENS OFFICE OF THE PUBLIC SECURITY ADMINISTRATION OF THE MINISTRY OF JUSTICE ADOPTED A DECISION ON 3 MAY 1978 REFUSING TO ISSUE HER A RESIDENCE PERMIT , ORDERING HER TO LEAVE THE COUNTRY WITHIN 15 DAYS , AND STATING THAT OTHERWISE SHE WOULD BE ARRESTED AND TRANSPORTED TO THE FRONTIER BY FORCES OF PUBLIC ORDER . MRS PECASTAING WAS NOTIFIED OF THAT MEASURE ON 16 MAY 1978 . THE DECISION STATES THAT THE RESIDENCE OF THE PLAINTIFF IN BELGIUM IS ' ' UNDESIRABLE FOR REASONS OF PUBLIC POLICY ' ' . MRS PECASTAING IMMEDIATELY LODGED A COMPLAINT WITH THE CONSULTATIVE COMMITTEE FOR ALIENS . ON 14 DECEMBER 1978 THE COMMITTEE ISSUED AN OPINION UPHOLDING THE REFUSAL TO GRANT THE RESIDENCE PERMIT AND ON 12 JANUARY THE ALIENS OFFICE REPEATED ITS DECISION EMBODYING THE EXPULSION ORDER BASED ON REASONS SUBSTANTIALLY THE SAME AS THOSE IN THE PREVIOUS DECISION AND PROVIDING FOR THE SAME MEASURES TO ENFORCE THE ORDER .

5 IT IS COMMON GROUND THAT THE PLAINTIFF DID NOT SUBMIT AN APPEAL AGAINST THAT DECISION TO THE CONSEIL D ' ETAT . SHE GAVE AS THE REASON FOR HER FAILURE TO ACT THE FACT THAT THE DECISION TAKEN REGARDING HER IS NOT CONSIDERED AS A MEASURE AGAINST WHICH AN APPEAL MAY BE MADE SINCE , ACCORDING TO EXISTING CASE-LAW , AN APPEAL TO THE CONSEIL D ' ETAT LIES ONLY AGAINST AN EXPULSION ORDER ISSUED IN THE FORM OF A MINISTERIAL DECREE . SHE DID , HOWEVER , INSTITUTE PROCEEDINGS BEFORE THE TRIBUNAL DE PREMIERE INSTANCE , LIEGE , AGAINST THE BELGIAN STATE CLAIMING DAMAGES ON THE GROUNDS OF AN ALLEGED ILLEGALITY OF THE DECISION AFFECTING HER . AT THE SAME TIME SHE REQUESTED AN INTERLOCUTORY ORDER SUSPENDING THE EXPULSION ORDER PENDING THE JUDGMENT OF THE COURT ON THE SUBSTANCE OF HER CLAIM .

6 IN ORDER TO MAKE ITS DECISION ON THE MATTER THE NATIONAL COURT SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE :

INTERPRETING ARTICLES 8 AND 9 OF DIRECTIVE NO 64/221 , IN ITS JUDGMENT DELIVERED ON 8 APRIL 1976 IN CASE 48/75 , ROYER ( 1976 ) ECR 497 , THE COURT RULED IN THE FOURTH PARAGRAPH OF THE OPERATIVE PART OF THE JUDGMENT , ON THE BASIS OF PARAGRAPHS 52 TO 62 OF THE GROUNDS OF THE DECISION , THAT :

' ' A DECISION ORDERING EXPULSION CANNOT BE EXECUTED , SAVE IN CASES OF URGENCY WHICH HAVE BEEN PROPERLY JUSTIFIED , AGAINST A PERSON PROTECTED BY COMMUNITY LAW UNTIL THE PARTY CONCERNED HAS BEEN ABLE TO EXHAUST THE REMEDIES GUARANTEED BY ARTICLES 8 AND 9 OF DIRECTIVE NO 64/221 . ' '

FIRST GROUP OF QUESTIONS

A - THE REMEDIES TO WHICH THE JUDGMENT APPLIES INCLUDE THOSE PROVIDED FOR BY ARTICLE 9 ( 2 ) OF DIRECTIVE NO 64/221 , WHICH ARE LAID DOWN BY ARTICLE 1 OF THE BELGIAN LAW OF 1 APRIL 1969 , FORMING ARTICLE 3A ( AS AMENDED ) OF THE LAW OF 28 MARCH 1952 ON THE SUPERVISION OF ALIENS , NAMELY APPLICATIONS FOR THE REVIEW OF DECISIONS REFUSING THE ISSUE OF THE FIRST RESIDENCE PERMIT OR DECISIONS ORDERING EXPULSION OF THE PERSON CONCERNED BEFORE THE ISSUE OF THE PERMIT ( BELGIAN CONSEIL D ' ETAT : JUDGMENT 17.722 OF 18 JUNE 1976 AND JUDGMENT 18.609 OF 2 DECEMBER 1977 ; RECUEIL DES ARRETS DU CONSEIL D ' ETAT , 1977 , P . 1381 ).

IT APPEARS THAT THE SUSPENSORY REMEDIES ALSO INCLUDE , AS BEING GUARANTEED BY ARTICLE 8 OF THE DIRECTIVE , THE APPLICATIONS FOR ANNULMENT OF ADMINISTRATIVE MEASURES AVAILABLE UNDER NATIONAL LAW . DO THOSE SUSPENSORY REMEDIES ALSO INCLUDE AN ACTION FOR CIVIL LIABILITY IN RESPECT OF A WRONGFUL ACT BROUGHT AGAINST THE AUTHOR OF A DECISION ORDERING EXPULSION?

IN OTHER WORDS , IS THE SUSPENSORY EFFECT A RULE OF PROCEDURE LIMITED SOLELY TO THE EXERCISE OF DIRECT REMEDIES OR IS IT AN ADAPTATION , FOR THE BENEFIT OF PERSONS PROTECTED BY COMMUNITY LAW , OF THE FUNDAMENTAL RIGHT WHICH ALL PERSONS HAVE TO A FAIR CIVIL HEARING?

B - MORE GENERALLY , IN DISPUTES BETWEEN A NATIONAL OF ONE MEMBER STATE OF THE EUROPEAN COMMUNITY AND A PUBLIC AUTHORITY OF ANOTHER MEMBER STATE CONCERNING RIGHTS AND OBLIGATIONS OF A CIVIL NATURE ( WITHIN THE MEANING OF ARTICLE 6 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS ) INVOLVING THE IMPLEMENTATION OF RULES OF COMMUNITY LAW , DOES THE RIGHT TO A FAIR HEARING IMPLY THAT PERSONAL ACCESS TO THE COURTS OF THE STATE CONCERNED MUST BE EFFECTIVELY MADE AVAILABLE TO THE SAID NATIONAL?

IF THE ABOVE QUESTION IS ANSWERED IN THE AFFIRMATIVE , MAY IT BE DEDUCED FROM THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS READ TOGETHER WITH COMMUNITY LAW THAT THAT NATIONAL HAS THE RIGHT TO BE IN PERSON WITHIN THE TERRITORY OF THE STATE AGAINST WHICH HE IS BRINGING PROCEEDINGS DURING THE COURSE OF THE ACTION , IRRESPECTIVE OF ANY ADMINISTRATIVE MEASURE ORDERING HIS EXPULSION , EXCEPT IN CASES OF URGENCY WHICH HAVE BEEN PROPERLY JUSTIFIED?

SECOND GROUP OF QUESTIONS

IN A CASE OF URGENCY WHICH HAS BEEN PROPERLY JUSTIFIED , THE DECISION ORDERING EXPULSION MAY BE EXECUTED NOTWITHSTANDING ANY APPEAL .

DOES THE EXISTENCE OF THAT URGENCY FORM AN INTEGRAL PART OF THE DECISION ORDERING EXPULSION SO THAT THE ADMINISTRATIVE AUTHORITY WHICH TOOK THE DECISION IS EXCLUSIVELY COMPETENT TO ASCERTAIN WHETHER SUCH URGENCY EXISTS?

OR DOES IT , ON THE CONTRARY , APPERTAIN TO THE EXERCISE OF A JUDICIAL REMEDY , SUCH THAT , IN THE EVENT OF A DISPUTE , THE COURT BEFORE WHICH THE ACTION IS BROUGHT MAY DECIDE THE QUESTION?

7 THE QUESTIONS AS A WHOLE ARE CONCERNED TO ESTABLISH THE OBLIGATIONS IMPOSED ON THE MEMBER STATES BY ARTICLES 8 AND 9 OF DIRECTIVE NO 64/221 WITH REGARD TO THE PROTECTION TO BE AFFORDED BY THE COURTS TO A PERSON AGAINST WHOM AN EXPULSION ORDER IS MADE . SPECIFICALLY , CLARIFICATION IS REQUESTED OF THE OBLIGATIONS OF THE MEMBER STATES UNDER THE DIRECTIVE WITH REGARD TO THE SUSPENSORY EFFECT OF APPLICATIONS AGAINST SUCH A MEASURE OF THE RIGHT TO OBTAIN A SUSPENSION OF SUCH MEASURES AND THE EVALUATION OF THE CONCEPT OF ' ' URGENCY ' ' APPEARING IN ARTICLE 9 OF THE DIRECTIVE . THE NATIONAL COURT , IN SUBMITTING THOSE QUESTIONS , REFERS ON THE ONE HAND TO CERTAIN ASPECTS OF THE CASE-LAW OF THE COURT RESULTING FROM THE JUDGMENT OF 8 APRIL 1976 IN CASE 48/75 , ROYER , ( 1976 ) ECR 497 ), AND ON THE OTHER TO THE CONCEPT OF ' ' A FAIR HEARING ' ' CONTAINED IN ARTICLE 6 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS .

THE INTERPRETATION OF ARTICLE 8 OF THE DIRECTIVE

8 THE QUESTIONS SUBMITTED ON THE INTERPRETATION OF ARTICLE 8 SEEK TO ESTABLISH IN SUBSTANCE WHETHER THE LEGAL REMEDIES MADE AVAILABLE IN THE MEMBER STATE PURSUANT TO THAT ARTICLE INCLUDE , IN ADDITION TO APPEALS TO THE ADMINISTRATIVE COURTS FOR THE ANNULMENT OF A MEASURE ADOPTED UNDER THE POLICY ON ALIENS , APPEALS TO OTHER COURTS AND WHETHER THE SUBMISSION OF SUCH APPEALS HAS SUSPENSORY EFFECT SO THAT THE APPELLANT IS ENTITLED TO REMAIN ON THE TERRITORY OF THE STATE THROUGHOUT THE PROCEEDINGS WHICH HE HAS INSTITUTED .

9 ACCORDING TO ARTICLE 8 : ' ' THE PERSON CONCERNED SHALL HAVE THE SAME LEGAL REMEDIES IN RESPECT OF ANY DECISION CONCERNING ENTRY , OR REFUSING THE ISSUE OR RENEWAL OF A RESIDENCE PERMIT , OR ORDERING EXPULSION FROM THE TERRITORY , AS ARE AVAILABLE TO NATIONALS OF THE STATE CONCERNED IN RESPECT OF ACTS OF THE ADMINISTRATION . ' '

10 THAT PROVISION DEFINES THE DECISIONS REFERRED TO BY THE DIRECTIVE AS ' ' ACTS OF THE ADMINISTRATION ' ' AND IMPOSES UPON THE MEMBER STATES THE OBLIGATION TO MAKE AVAILABLE TO ANY PERSON AFFECTED BY SUCH ACTS THE SAME LEGAL REMEDIES AS ARE AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION . ACCORDINGLY A MEMBER STATE CANNOT , WITHOUT BEING IN BREACH OF THE OBLIGATION IMPOSED BY ARTICLE 8 , RENDER THE RIGHT OF APPEAL FOR PERSONS COVERED BY THE DIRECTIVE CONDITIONAL ON PARTICULAR REQUIREMENTS AS TO FORM OR PROCEDURE WHICH ARE LESS FAVOURABLE THAN THOSE PERTAINING TO REMEDIES AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION . A REMEDY MUST THUS BE AVAILABLE TO ANY PERSON COVERED BY THE DIRECTIVE AGAINST ANY DECISION WHICH MAY LEAD TO EXPULSION BEFORE THE DECISION IS EXECUTED .

11 ARTICLE 8 DOES NOT SPECIFY THE COURTS FROM WHICH SUCH REMEDIES MAY BE SOUGHT . THE RESOLUTION OF THAT POINT DEPENDS UPON THE ORGANIZATION OF THE COURTS OF EACH MEMBER STATE . IT FOLLOWS THAT IF , IN A MEMBER STATE , REMEDIES AGAINST ACTS OF THE ADMINISTRATION MAY BE SOUGHT FROM THE ORDINARY COURTS , THE PERSONS COVERED BY DIRECTIVE NO 64/221 MUST BE TREATED IN THE SAME WAY AS NATIONALS WITH REGARD TO RIGHTS OF APPEAL TO SUCH COURTS IN RESPECT OF ACTS OF THE ADMINISTRATION . THIS MEANS THAT IF , IN A MEMBER STATE , THE ADMINSTRATIVE COURTS WERE NOT EMPOWERED TO GRANT A STAY OF EXECUTION OF AN ADMINISTRATIVE DECISION BUT SUCH POWER WAS RECOGNIZED TO THE ORDINARY COURTS THAT STATE WOULD BE OBLIGED TO PERMIT PERSONS COVERED BY THE DIRECTIVE TO APPLY FOR A STAY OF EXECUTION TO SUCH COURTS ON THE SAME CONDITIONS AS NATIONALS OF THAT STATE . IT MUST NEVERTHELESS BE EMPHASIZED THAT SUCH RIGHTS DEPEND ESSENTIALLY ON THE ORGANIZATION OF THE COURTS AND THE DIVISION OF THE JURISDICTION OF JUDICIAL BODIES IN THE VARIOUS MEMBER STATES SINCE THE ONLY OBLIGATION IMPOSED UPON THE MEMBER STATES BY ARTICLE 8 IS TO GRANT TO PERSONS PROTECTED UNDER COMMUNITY LAW RIGHTS OF APPEAL WHICH ARE NOT LESS FAVOURABLE THAN THOSE AVAILABLE TO NATIONALS OF THE STATE CONCERNED AGAINST ACTS OF THE ADMINISTRATION .

12 ON THE OTHER HAND ARTICLE 8 CONTAINS NO SPECIFIC OBLIGATION CONCERNING ANY SUSPENSORY EFFECT OF APPLICATIONS AVAILABLE TO PERSONS COVERED BY THE DIRECTIVE . IF THAT PROVISION REQUIRES THAT THE PERSON CONCERNED SHOULD BE ABLE TO APPEAL AGAINST THE MEASURE AFFECTING HIM IT MUST BE INFERRED , AS THE COURT STATED IN ITS JUDGMENT IN THE ROYER CASE ( PARAGRAPH 60 OF THE DECISION ), THAT THE DECISION ORDERING EXPLUSION MAY NOT BE EXECUTED - SAVE IN CASES OF URGENCY - BEFORE THE PARTY CONCERNED IS ABLE TO COMPLETE THE FORMALITIES NECESSARY TO AVAIL HIMSELF OF THE REMEDY . HOWEVER , IT CANNOT BE INFERRED FROM THAT PROVISION THAT THE PERSON CONCERNED IS ENTITLED TO REMAIN ON THE TERRITORY OF THE STATE CONCERNED THROUGHOUT THE PROCEEDINGS INITIATED BY HIM . SUCH AN INTERPRETATION , WHICH WOULD ENABLE THE PERSON CONCERNED UNILATERALLY , BY LODGING AN APPLICATION , TO SUSPEND THE MEASURE AFFECTING HIM , IS INCOMPATIBLE WITH THE OBJECTIVE OF THE DIRECTIVE WHICH IS TO RECONCILE THE REQUIREMENTS OF PUBLIC POLICY , PUBLIC SECURITY AND PUBLIC HEALTH WITH THE GUARANTEES WHICH MUST BE PROVIDED FOR THE PERSONS AFFECTED BY SUCH MEASURES .

13 ACCORDINGLY , THE REPLY TO BE GIVEN TO THE QUESTIONS SUBMITTED MUST BE THAT ARTICLE 8 COVERS ALL THE REMEDIES AVAILABLE IN A MEMBER STATE IN RESPECT OF ACTS OF THE ADMINISTRATION WITHIN THE FRAMEWORK OF THE JUDICIAL SYSTEM AND THE DIVISION OF JURISDICTION BETWEEN JUDICIAL BODIES IN THE STATE IN QUESTION . ARTICLE 8 IMPOSES ON THE MEMBER STATES THE OBLIGATION TO PROVIDE FOR THE PERSONS COVERED BY THE DIRECTIVE PROTECTION BY THE COURTS WHICH IS NOT LESS THAN THAT WHICH THEY MAKE AVAILABLE TO THEIR OWN NATIONALS AS REGARDS APPEALS AGAINST ACTS OF THE ADMINISTRATION INCLUDING , IF APPROPRIATE , THE SUSPENSION OF THE ACTS APPEALED AGAINST . ON THE OTHER HAND THERE MAY NOT BE INFERRED FROM ARTICLE 8 AN OBLIGATION FOR THE MEMBER STATES TO PERMIT AN ALIEN TO REMAIN IN THEIR TERRITORY FOR THE DURATION OF THE PROCEEDINGS , SO LONG AS HE IS ABLE NEVERTHELESS TO OBTAIN A FAIR HEARING AND TO PRESENT HIS DEFENCE IN FULL .

THE INTERPRETATION OF ARTICLE 9 OF DIRECTIVE NO 64/221

14 WITH REGARD TO THE INTERPRETATION OF ARTICLE 9 THE COURT OF JUSTICE IS REQUESTED ON ONE HAND TO CLARIFY THE RIGHTS WHICH MUST BE MADE AVAILABLE TO PERSONS CONCERNED REGARDING SUSPENSION OF MEASURES OF THE POLICY ON ALIENS IN ORDER TO PERMIT THEM TO MAKE EFFECTIVE USE OF THE REMEDIES TO WHICH THEY ARE ENTITLED AND ON THE OTHER TO SETTLE WHETHER THE DETERMINATION OF THE URGENCY REFERRED TO IN ARTICLE 9 FALLS WITHIN THE EXCLUSIVE COMPETENCE OF THE ADMINISTRATIVE AUTHORITY OR WHETHER , IN CASES OF DISPUTE , IT MAY BE EXAMINED BY THE COURTS .

15 THE PROVISIONS OF ARTICLE 9 OF DIRECTIVE NO 64/221 ARE COMPLEMENTARY TO THOSE OF ARTICLE 8 . THEIR OBJECT IS TO ENSURE A MINIMUM PROCEDURAL SAFEGUARD FOR PERSONS AFFECTED BY ONE OF THE MEASURES REFERRED TO IN THE THREE SPECIFIC CASES SET OUT AS FOLLOWS IN ARTICLE 9 ( 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 ' ' . IN THE FIRST CASE MENTIONED A COMPLAINT TO A ' ' COMPETENT AUTHORITY ' ' WHICH IS NOT THE SAME AS THAT EMPOWERED TO TAKE THE DECISION IS INTENDED TO COMPENSATE FOR THE ABSENCE OF ANY RIGHT OF APPEAL TO THE COURTS . IN THE SECOND CASE THE INTERVENTION OF THE COMPETENT AUTHORITY IS INTENDED TO ENABLE A DETAILED EXAMINATION TO BE MADE OF THE SITUATION OF THE PERSON CONCERNED , INCLUDING THE APPROPRIATENESS OF THE MEASURE CONTEMPLATED , BEFORE THE DECISION IS FINALLY TAKEN . IN THE THIRD CASE THAT PROCEDURE IS INTENDED TO PERMIT THE PERSON CONCERNED TO REQUEST AND TO OBTAIN , IF APPROPRIATE , A STAY OF THE EXECUTION OF THE MEASURE ENVISAGED IN SUCH A WAY AS TO COMPENSATE FOR THE ABSENCE OF A RIGHT TO OBTAIN A STAY OF EXECUTION FROM THE COURTS .

16 IT FOLLOWS THAT A MEMBER STATE CANNOT APPLY THE PROVISIONS OF ARTICLE 9 OF THE DIRECTIVE IN SUCH A WAY THAT ITS PRACTICAL EFFECT IS TO RESTRICT OR RENDER INEFFECTIVE THE LEGAL REMEDIES MADE AVAILABLE UNDER ARTICLE 8 TO THE PERSONS COVERED BY THE DIRECTIVE .

17 WITH REGARD TO THE INTERPRETATION OF ARTICLE 9 CONSIDERED IN ISOLATION , IT SHOULD BE RECALLED , AS THE COURT OF JUSTICE HAD OCCASION TO POINT OUT IN ITS JUDGMENT IN THE ROYER CASE ( PARAGRAPH 59 OF THE DECISION ), THAT THE PROCEDURE OF APPEAL TO A ' ' COMPETENT AUTHORITY ' ' REFERRED TO IN THAT ARTICLE MUST PRECEDE THE DECISION ORDERING EXPLUSION , SAVE IN CASES OF URGENCY . IN PARTICULAR IF A MEMBER STATE HAS APPLIED ARTICLE 9 IN ORDER TO COMPENSATE FOR THE FACT THAT THE APPEALS TO THE COURTS WHICH ARE AVAILABLE DO NOT CARRY SUSPENSORY EFFECT THAT PROVISION WOULD BE RENDERED NUGATORY IF , ALWAYS SAVE IN CASES OF URGENCY , EXECUTION OF THE EXPULSION ORDER CONTEMPLATED WERE NOT SUSPENDED UNTIL THAT AUTHORITY HAS GIVEN ITS OPINION ( ROYER CASE , PARAGRAPH 61 OF THE DECISION ).

18 IT FOLLOWS FROM ARTICLE 9 THEREFORE THAT AS SOON AS THE OPINION IN QUESTION HAS BEEN OBTAINED AND NOTIFIED TO THE PERSON CONCERNED AN EXPULSION ORDER MAY BE EXECUTED IMMEDIATELY , SUBJECT ALWAYS TO THE RIGHT OF THAT PERSON TO STAY ON THE TERRITORY FOR THE TIME NECESSARY TO AVAIL HIMSELF OF THE REMEDIES ACCORDED TO HIM UNDER ARTICLE 8 OF THE DIRECTIVE .

19 FINALLY , WITH REGARD TO THE MATTER OF URGENCY , THE FIRST SUBPARAGRAPH OF ARTICLE 9 ( 1 ) SHOWS THAT DETERMINATION OF THE EXISTENCE OF URGENCY IN CASES WHICH HAVE BEEN PROPERLY JUSTIFIED , IS A MATTER FOR THE ADMINISTRATIVE AUTHORITY AND THAT EXPULSION FROM THE TERRITORY MAY THEN BE EFFECTED EVEN BEFORE THE ' ' COMPETENT AUTHORITY ' ' HAS BEEN ABLE TO GIVE ITS OPINION .

20 THE REPLY TO THE QUESTIONS SUBMITTED MUST THUS BE THAT THE PROCEDURE CONCERNING THE CONSIDERATION OF THE DECISION AND CONCERNING THE OPINION REFERRED TO IN ARTICLE 9 WHICH IS INTENDED TO MITIGATE THE EFFECT OF DEFICIENCIES IN THE REMEDIES REFERRED TO IN ARTICLE 8 , IS NOT INTENDED TO CONFER UPON THE COURTS ADDITIONAL POWERS CONCERNING SUSPENSION OF THE MEASURES REFERRED TO BY THE DIRECTIVE OR TO EMPOWER THEM TO REVIEW THE URGENCY OF AN EXPULSION ORDER . THE PERFORMANCE OF THOSE DUTIES BY THE NATIONAL COURTS IS GOVERNED BY ARTICLE 8 OF THE DIRECTIVE . THE SCOPE OF THAT PROVISION NEVERTHELESS MAY NOT BE RESTRICTED BY MEASURES TAKEN BY A MEMBER STATE UNDER ARTICLE 9 OF THE DIRECTIVE .

THE REQUIREMENT OF A ' ' FAIR HEARING ' ' ( ARTICLE 6 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS )

21 THE NATIONAL COURT , APPARENTLY CONSIDERING THAT THE RIGHTS AT ISSUE IN THIS CASE ARE IN THE NATURE OF ' ' CIVIL ' ' RIGHTS , FURTHER ASKS WHETHER , APART FROM THE PROVISIONS OF DIRECTIVE NO 64/221 , IT IS NECESSARY TO ENSURE COMPLIANCE IN THE COMMUNITY LEGAL SYSTEM WITH THE REQUIREMENTS OF ARTICLE 6 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS UNDER WHICH ' ' IN THE DETERMINATION OF HIS CIVIL RIGHTS AND OBLIGATIONS OR OF ANY CRIMINAL CHARGE AGAINST HIM , EVERYONE IS ENTITLED TO A FAIR AND PUBLIC HEARING WITHIN A REASONABLE TIME BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL ESTABLISHED BY LAW ' ' .

22 IT DOES NOT APPEAR NECESSARY TO CONSIDER THAT QUESTION IN THIS CASE SINCE DIRECTIVE NO 64/221 MAY BE CONSIDERED AS FULFILLING , WITH REGARD TO THE MEASURES TO WHICH IT REFERS , ACCORDING TO THE THIRD RECITAL OF THE PREAMBLE THERETO , THE REQUIREMENT OF THE ' ' FAIR HEARING ' ' SET OUT IN ARTICLE 6 OF THAT CONVENTION AT LEAST WITH REGARD TO THE ARRANGEMENTS FOR APPEALS TO THE COURTS CONTAINED IN ARTICLE 8 OF THE DIRECTIVE AS HAS BEEN STATED ABOVE . IT IS ACCORDINGLY UNNECESSARY TO GIVE A REPLY HERE TO THAT ASPECT OF THE QUESTIONS SUBMITTED BY THE NATIONAL COURT .

Decision on costs

23 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF BELGIUM , THE GOVERNMENT OF THE FRENCH REPUBLIC , THE GOVERNMENT OF THE KINGDOM OF DENMARK AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THES SUMMARY PROCEEDINGS PENDING BEFORE THE PRESIDENT OF THE TRIBUNAL DES PREMIERE INSTANCE , LIEGE , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRESIDENT OF THE TRIBUNAL DE PREMIERE INSTANCE , LIEGE , IN SUMMARY PROCEEDINGS , BY AN ORDER OF 18 JUNE 1979 , HEREBY RULES :

1 . ARTICLE 8 OF 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 COVERS ALL THE REMEDIES AVAILABLE IN A MEMBER STATE IN RESPECT OF ACTS OF THE ADMINISTRATION , WITHIN THE FRAMEWORK OF THE JUDICIAL SYSTEM AND THE DIVISION OF JURISDICTION BETWEEN JUDICIAL BODIES IN THE STATE IN QUESTION .

THAT PROVISION IMPOSES ON THE MEMBER STATES THE OBLIGATION TO PROVIDE FOR THE PERSONS COVERED BY THE DIRECTIVE PROTECTION BY THE COURTS WHICH IS NOT LESS THAN THAT WHICH THEY MAKE AVAILABLE TO THEIR OWN NATIONALS AS REGARDS APPEALS AGAINST ACTS OF THE ADMINISTRATION , INCLUDING , IF APPROPRIATE , SUSPENSION OF THE ACTS APPEALED AGAINST .

ON THE OTHER HAND THERE MAY NOT BE INFERRED FROM ARTICLE 8 OF DIRECTIVE NO 64/221 AN OBLIGATION FOR THE MEMBER STATES TO PERMIT AN ALIEN TO REMAIN IN THEIR TERRITORY FOR THE DURATION OF THE PROCEEDINGS , SO LONG AS HE IS ABLE NEVERTHELESS TO OBTAIN A FAIR HEARING AND TO PRESENT HIS DEFENCE IN FULL .

2 . THE PROCEDURE CONCERNING THE CONSIDERATION OF THE DECISION AND CONCERNING THE OPINION REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221 , WHICH IS INTENDED TO MITIGATE THE EFFECT OF DEFICIENCIES IN THE REMEDIES REFERRED TO IN ARTICLE 8 , IS NOT INTENDED TO CONFER UPON THE COURTS ADDITIONAL POWERS CONCERNING SUSPENSION OF THE MEASURES REFERRED TO BY THE DIRECTIVE OR TO EMPOWER THEM TO REVIEW THE URGENCY OF AN EXPULSION ORDER .

THE PERFORMANCE OF THESE DUTIES BY THE NATIONAL COURTS IS GOVERNED BY ARTICLE 8 OF THE DIRECTIVE .

THE SCOPE OF THAT PROVISION NEVERTHELESS MAY NOT BE RESTRICTED BY MEASURES TAKEN BY A MEMBER STATE UNDER ARTICLE 9 OF THE DIRECTIVE .

Full & Egal Universal Law Academy