1.

The rules laid down by Chapter VI of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as not permitting an EEA State to refuse entry and residence in its territory to a third-country national spouse of an EEA national on the sole ground that the third-country national spouse has been the subject, in the past, of an exclusion order on the basis of national measures imposed in connection with past infringements at a time before he or she acquired derived free movement rights under the Directive, without first verifying that the presence of that person in the territory of the EEA State constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, within the meaning of Article 27(2) of the Directive.

2.

Article 32 of Directive 2004/38/EC has no application, directly or by analogy, where a refusal of the right of entry and residence is not founded on the existence of a genuine, present and sufficiently serious threat to public policy or public security.

3.

Compliance with Article 27 of Directive 2004/38/EC is required, in particular, where the EEA State wishes to penalise the national of a third country for entering and/or residing in its territory in breach of the national rules on immigration before becoming a family member of an EEA national. In the absence of a new assessment in compliance with the Directive, his or her presence on the territory of the EEA State is lawful as a matter of EEA law. Accordingly, such a person cannot be made subject to sanctions under national law for having breached the original exclusion decision by exercising the derived rights conferred on him or her by the Directive.