61981J0115

1 . FREE MOVEMENT OF PERSONS - DEROGATIONS - GROUNDS OF PUBLIC POLICY - CONCEPT - SUFFICIENTLY SERIOUS MISCONDUCT - CRITERIA

( EEC TREATY , ART . 48 ( 3 ) AND ART . 56 ( 1 ))

2 . FREE MOVEMENT OF PERSONS - DEROGATIONS - GROUNDS OF PUBLIC POLICY - MEASURES NOT JUSTIFIED BY THE INDIVIDUAL CASE - NOT PERMISSIBLE

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 3 ( 1 ))

3 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS RELATING TO THE CONTROL OF ALIENS - PERSONS IN RESPECT OF WHOM AN EXPULSION ORDER HAS BEEN VALIDLY ADOPTED - FRESH APPLICATION FOR A RESIDENCE PERMIT - HOST STATE ' S OBLIGATION TO EXAMINE SUCH AN APPLICATION - RIGHT OF ACCESS OF THE PERSON CONCERNED TO THE TERRITORY OF THE MEMBER STATE DURING THE EXAMINATION OF THE APPLICATION - NO SUCH RIGHT

( EEC TREATY , ART . 48 ( 3 ))

4 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS RELATING TO THE CONTROL OF ALIENS - EXPULSION ORDER - STATEMENT OF GROUNDS ON WHICH IT IS BASED - EXTENT OF THE OBLIGATION

5 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS RELATING TO THE CONTROL OF ALIENS - PROCEDURE FOR REVIEW AND THE ISSUE OF AN OPINION BY THE COMPETENT AUTHORITY - COMPETENT AUTHORITY - PRESCRIBED CONDITION - ABSOLUTELY INDEPENDENT EXERCISE OF DUTIES - COURT - AUTHORITY COMPOSED OF MEMBERS OF THE JUDICIARY - CONDITIONS NOT NECESSARY

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

6 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISIONS RELATING TO THE CONTROL OF ALIENS - PROCEDURE FOR REVIEW AND THE ISSUE OF AN OPINION BY THE COMPETENT AUTHORITY - DIRECT APPLICATION BY THE PERSON CONCERNED TO THE COMPETENT AUTHORITY - COMPULSORY PROCEDURE - NON-EXISTENCE THEREOF - POWERS OF THE MEMBER STATES - LIMITS

( COUNCIL DIRECTIVE NO 64/221/EEC , ART . 9 ( 2 ))

7 . FREE MOVEMENT OF PERSONS - DEROGATIONS - DECISION RELATING TO THE CONTROL OF ALIENS - PROCEDURE FOR REVIEW AND THE ISSUE OF AN OPINION BY THE COMPETENT AUTHORITY - APPLICATION OF NATIONAL RULES OF PROCEDURE - CONDITIONS

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

1 . RELIANCE BY A NATIONAL AUTHORITY UPON THE CONCEPT OF PUBLIC POLICY PRESUPPOSES THE EXISTENCE OF A GENUINE AND SUFFICIENTLY SERIOUS THREAT AFFECTING ONE OF THE FUNDAMENTAL INTERESTS OF SOCIETY . ALTHOUGH COMMUNITY LAW DOES NOT IMPOSE UPON THE MEMBER STATES A UNIFORM SCALE OF VALUES AS REGARDS THE ASSESSMENT OF CONDUCT WHICH MAY BE CONSIDERED CONTRARY TO PUBLIC POLICY , CONDUCT MAY NOT BE CONSIDERED AS BEING OF A SUFFICIENTLY SERIOUS NATURE TO JUSTIFY RESTRICTIONS ON THE ADMISSION TO OR RESIDENCE WITHIN THE TERRITORY OF A MEMBER STATE OF A NATIONAL OF ANOTHER MEMBER STATE IN A CASE WHERE THE FORMER MEMBER STATE DOES NOT ADOPT , WITH RESPECT TO THE SAME CONDUCT ON THE PART OF ITS OWN NATIONALS , REPRESSIVE MEASURES OR OTHER GENUINE AND EFFECTIVE MEASURES INTENDED TO COMBAT SUCH CONDUCT .

2 . BY VIRTUE OF ARTICLE 3 ( 1 ) OF DIRECTIVE NO 64/221 , CIRCUMSTANCES NOT RELATED TO THE SPECIFIC CASE MAY NOT BE RELIED UPON IN RESPECT OF CITIZENS OF MEMBER STATES OF THE COMMUNITY AS JUSTIFICATION FOR MEASURES INTENDED TO SAFEGUARD PUBLIC POLICY AND PUBLIC SECURITY .

3 . ANY NATIONAL OF A MEMBER STATE WHO WISHES TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE MAY , EVEN IF A DECISION HAS BEEN TAKEN ORDERING HIS EXPULSION FROM THE TERRITORY OF THAT MEMBER STATE , RE-APPLY FOR A RESIDENCE PERMIT . SUCH AN APPLICATION , WHEN SUBMITTED AFTER A REASONABLE PERIOD HAS ELAPSED , MUST BE EXAMINED BY THE COMPETENT ADMINISTRATIVE AUTHORITY IN THE HOST STATE , WHICH MUST TAKE INTO ACCOUNT , IN PARTICULAR , THE ARGUMENTS PUT FORWARD BY THE PERSON CONCERNED PURPORTING TO ESTABLISH THAT THERE HAS BEEN A MATERIAL CHANGE IN THE CIRCUMSTANCES WHICH JUSTIFIED THE FIRST DECISION ORDERING HIS EXPULSION . HOWEVER , WHERE SUCH A DECISION HAS BEEN VALIDLY ADOPTED IN HIS CASE IN ACCORDANCE WITH COMMUNITY LAW AND CONTINUES TO BE LEGALLY EFFECTIVE SO AS TO EXCLUDE HIM FROM THE TERRITORY OF THE STATE IN QUESTION , COMMUNITY LAW CONTAINS NO PROVISION CONFERRING UPON HIM A RIGHT OF ENTRY INTO THAT TERRITORY DURING THE EXAMINATION OF HIS FURTHER APPLICATION .

4 . THE NOTIFICATION OF THE GROUNDS RELIED UPON TO JUSTIFY AN EXPULSION MEASURE OR A REFUSAL TO ISSUE A RESIDENCE PERMIT MUST BE SUFFICIENTLY DETAILED AND PRECISE TO ENABLE THE PERSON CONCERNED TO DEFEND HIS INTERESTS .

5 . AS REGARDS THE COMPOSITION OF THE COMPETENT AUTHORITY PROVIDED FOR IN ARTICLE 9 OF DIRECTIVE NO 64/221 , THE ESSENTIAL REQUIREMENT IS THAT IT SHOULD BE CLEARLY ESTABLISHED THAT THE AUTHORITY IS TO PERFORM ITS DUTIES IN ABSOLUTE INDEPENDENCE AND IS NOT TO BE DIRECTLY OR INDIRECTLY SUBJECT , IN THE EXERCISE OF ITS DUTIES , TO ANY CONTROL BY THE AUTHORITY EMPOWERED TO TAKE THE MEASURES PROVIDED FOR IN THE DIRECTIVE .

6 . ALTHOUGH ARTICLE 9 ( 2 ) OF DIRECTIVE NO 64/221 DOES NOT PREVENT THE PERSON CONCERNED FROM MAKING A DIRECT APPLICATION TO THE COMPETENT AUTHORITY IT DOES NOT REQUIRE SUCH AN APPLICATION AND IT ALLOWS THE MEMBER STATE A CHOICE IN THAT RESPECT , PROVIDED THAT THE PERSON CONCERNED IS ENTITLED TO MAKE SUCH AN APPLICATION IF HE SO REQUESTS .

7 . THE CONDITIONS ON WHICH THE PERSON CONCERNED MUST BE ENTITLED TO PUT FORWARD TO THE COMPETENT AUTHORITY HIS ARGUMENTS IN DEFENCE AND TO BE ASSISTED OR REPRESENTED IN SUCH CONDITIONS AS TO PROCEDURE AS ARE PROVIDED FOR BY DOMESTIC LEGISLATION MUST NOT BE LESS FAVOURABLE TO HIM THAN THE CONDITIONS APPLICABLE TO PROCEEDINGS BEFORE OTHER NATIONAL AUTHORITIES OF THE SAME TYPE .

IN JOINED CASES 115 AND 116/81

REFERENCES TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRESIDENT OF THE TRIBUNAL DE PREMIERE INSTANCE ( COURT OF FIRST INSTANCE ), SITTING AT LIEGE IN INTERLOCUTORY PROCEEDINGS , FOR A PRELIMINARY RULING IN THE ACTIONS PENDING BEFORE HIM BETWEEN , ON THE ONE HAND ,

REZGUIA ADOUI

AND

1 . BELGIAN STATE , IN THE PERSON OF THE MINISTER OF JUSTICE , AND

2 . CITY OF LIEGE , IN THE PERSON OF THE BOURGMESTRE ,

AND , ON THE OTHER ,

DOMINIQUE CORNUAILLE

AND

BELGIAN STATE , IN THE PERSON OF THE MINISTER OF JUSTICE ,

ON THE INTERPRETATION OF ARTICLES 7 , 48 ( 3 ), 56 ( 1 ) AND 66 OF THE TREATY AND 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 GROUND OF PUBLIC POLICY , PUBLIC SECURITY OR PUBLIC HEALTH ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-1964 , P . 117 ), AND IN PARTICULAR OF ARTICLES 3 , 6 , 8 AND 9 THEREOF

1 BY ORDERS OF 8 MAY 1981 , RECEIVED AT THE COURT REGISTRY ON 12 MAY 1981 , THE PRESIDENT OF THE TRIBUNAL DE PREMIERE INSTANCE ( COURT OF FIRST INSTANCE ), LIEGE , IN INTERLOCUTORY PROCEEDINGS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS ON THE INTERPRETATION OF ARTICLES 7 , 48 ( 3 ), 56 ( 1 ) AND 66 OF THE TREATY AND OF DIRECTIVE NO 64/221/EEC OF THE COUNCIL , 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 ), AND IN PARTICULAR ARTICLES 3 , 6 , 8 AND 9 THEREOF .

2 THE QUESTIONS WERE RAISED IN ACTIONS BROUGHT AGAINST THE BELGIAN STATE BY THE PLAINTIFFS IN THE MAIN PROCEEDINGS , WHO ARE OF FRENCH NATIONALITY , IN CONNECTION WITH THE REFUSAL BY THE ADMINISTRATIVE AUTHORITY TO ISSUE A PERMIT ENABLING THEM TO RESIDE IN BELGIAN TERRITORY , ON THE GROUND THAT THEIR CONDUCT WAS CONSIDERED TO BE CONTRARY TO PUBLIC POLICY BY VIRTUE OF THE FACT THAT THEY WERE WAITRESSES IN A BAR WHICH WAS SUSPECT FROM THE POINT OF VIEW OF MORALS .

3 THE BELGIAN LAW OF 21 AUGUST 1948 TERMINATING OFFICIAL REGULATION OF PROSTITUTION PROHIBITS SOLICITING , INCITEMENT TO DEBAUCHERY , EXPLOITATION OF PROSTITUTION , THE KEEPING OF A DISORDERLY HOUSE OR BROTHEL AND LIVING ON IMMORAL EARNINGS . IT PROVIDES THAT SUPPLEMENTARY REGULATIONS MAY BE ADOPTED BY MUNICIPAL COUNCILS , PROVIDED THAT THEIR PURPOSE IS TO UPHOLD PUBLIC MORALITY OR TO ENSURE THE KEEPING OF THE PUBLIC PEACE . THE POLICE REGULATION OF THE CITY OF LIEGE OF 25 MARCH 1957 AND SUBSEQUENT ORDERS PROVIDE THAT PERSONS ENGAGED IN PROSTITUTION MAY NOT DISPLAY THEMSELVES TO PASSERS-BY , THAT THE DOORS AND WINDOWS OF THE PREMISES WHERE THEY PURSUE THEIR ACTIVITY ARE TO BE CLOSED AND COVERED SO THAT IT IS IMPOSSIBLE TO SEE INSIDE AND THAT THOSE PERSONS MAY NOT STAND IN THE STREET NEAR SUCH PREMISES .

4 THE QUESTIONS SUBMITTED BY THE NATIONAL COURT , THE WORDING OF WHICH IS PRACTICALLY IDENTICAL IN BOTH CASES , HAVE BEEN DIVIDED BY THE COURT MAKING THE REFERENCE INTO TWO GROUPS , ENTITLED ' ' THE CONCEPT OF PUBLIC POLICY ' ' AND ' ' PROCEDURAL SAFEGUARDS ' ' . IN VIEW OF THE FACT THAT THE QUESTIONS IN THE TWO CASES ARE ALMOST IDENTICAL , IT IS APPROPRIATE TO JOIN THE CASES FOR THE PURPOSE OF THE JUDGMENT .

I - THE CONCEPT OF PUBLIC POLICY

QUESTIONS 1 TO 9 , 11 AND 12

5 QUESTIONS 1 TO 9 , 11 AND 12 ARE ESSENTIALLY CONCERNED WITH THE QUESTION WHETHER A MEMBER STATE MAY , BY VIRTUE OF THE RESERVATIONS CONTAINED IN ARTICLES 48 AND 56 OF THE EEC TREATY , EXPEL FROM ITS TERRITORY A NATIONAL OF ANOTHER MEMBER STATE OR DENY HIM ACCESS TO THAT TERRITORY BY REASON OF ACTIVITIES WHICH , WHEN ATTRIBUTABLE TO THE FORMER STATE ' S OWN NATIONALS , DO NOT GIVE RISE TO REPRESSIVE MEASURES .

6 THOSE QUESTIONS ARE MOTIVATED BY THE FACT THAT PROSTITUTION AS SUCH IS NOT PROHIBITED BY BELGIAN LEGISLATION , ALTHOUGH THE LAW DOES PROHIBIT CERTAIN INCIDENTAL ACTIVITIES , WHICH ARE PARTICULARLY HARMFUL FROM THE SOCIAL POINT OF VIEW , SUCH AS THE EXPLOITATION OF PROSTITUTION BY THIRD PARTIES AND VARIOUS FORMS OF INCITEMENT TO DEBAUCHERY .

7 THE RESERVATIONS CONTAINED IN ARTICLES 48 AND 56 OF THE EEC TREATY PERMIT MEMBER STATES TO ADOPT , WITH RESPECT TO THE NATIONALS OF OTHER MEMBER STATES AND ON THE GROUNDS SPECIFIED IN THOSE PROVISIONS , IN PARTICULAR GROUNDS JUSTIFIED BY THE REQUIREMENTS OF PUBLIC POLICY , MEASURES WHICH THEY CANNOT APPLY TO THEIR OWN NATIONALS , INASMUCH AS THEY HAVE NO AUTHORITY TO EXPEL THE LATTER FROM THE NATIONAL TERRITORY OR TO DENY THEM ACCESS THERETO . ALTHOUGH THAT DIFFERENCE OF TREATMENT , WHICH BEARS UPON THE NATURE OF THE MEASURES AVAILABLE , MUST THEREFORE BE ALLOWED , IT MUST NEVERTHELESS BE STRESSED THAT , IN A MEMBER STATE , THE AUTHORITY EMPOWERED TO ADOPT SUCH MEASURES MUST NOT BASE THE EXERCISE OF ITS POWERS ON ASSESSMENTS OF CERTAIN CONDUCT WHICH WOULD HAVE THE EFFECT OF APPLYING AN ARBITRARY DISTINCTION TO THE DETRIMENT OF NATIONALS OF OTHER MEMBER STATES .

8 IT SHOULD BE NOTED IN THAT REGARD THAT RELIANCE BY A NATIONAL AUTHORITY UPON THE CONCEPT OF PUBLIC POLICY PRESUPPOSES , AS THE COURT HELD IN ITS JUDGMENT OF 27 OCTOBER 1977 IN CASE 30/77 BOUCHEREAU ( 1977 ) ECR 1999 , THE EXISTENCE OF ' ' A GENUINE AND SUFFICIENTLY SERIOUS THREAT AFFECTING ONE OF THE FUNDAMENTAL INTERESTS OF SOCIETY ' ' . ALTHOUGH COMMUNITY LAW DOES NOT IMPOSE UPON THE MEMBER STATES A UNIFORM SCALE OF VALUES AS REGARDS THE ASSESSMENT OF CONDUCT WHICH MAY BE CONSIDERED AS CONTRARY TO PUBLIC POLICY , IT SHOULD NEVERTHELESS BE STATED THAT CONDUCT MAY NOT BE CONSIDERED AS BEING OF A SUFFICIENTLY SERIOUS NATURE TO JUSTIFY RESTRICTIONS ON THE ADMISSION TO OR RESIDENCE WITHIN THE TERRITORY OF A MEMBER STATE OF A NATIONAL OF ANOTHER MEMBER STATE IN A CASE WHERE THE FORMER MEMBER STATE DOES NOT ADOPT , WITH RESPECT TO THE SAME CONDUCT ON THE PART OF ITS OWN NATIONALS REPRESSIVE MEASURES OR OTHER GENUINE AND EFFECTIVE MEASURES INTENDED TO COMBAT SUCH CONDUCT .

9 THE ANSWER TO QUESTIONS 1 TO 9 , 11 AND 12 SHOULD THERFORE BE THAT A MEMBER STATE MAY NOT , BY VIRTUE OF THE RESERVATION RELATING TO PUBLIC POLICY CONTAINED IN ARTICLES 48 AND 56 OF THE TREATY , EXPEL A NATIONAL OF ANOTHER MEMBER STATE FROM ITS TERRITORY OR REFUSE HIM ACCESS TO ITS TERRITORY BY REASON OF CONDUCT WHICH , WHEN ATTRIBUTABLE TO THE FORMER STATE ' S OWN NATIONALS , DOES NOT GIVE RISE TO REPRESSIVE MEASURES OR OTHER GENUINE AND EFFECTIVE MEASURES INTENDED TO COMBAT SUCH CONDUCT .

THE TENTH QUESTION

10 IN THE TENTH QUESTION , THE NATIONAL COURT ASKS WHETHER THE ACTION TAKEN BY A MEMBER STATE WHICH , ' ' ANXIOUS TO REMOVE FROM ITS TERRITORY PROSTITUTES FROM A GIVEN COUNTRY BECAUSE THEY COULD PROMOTE CRIMINAL ACTIVITIES , DOES SO SYSTEMATICALLY , DECLARING THAT THEIR BUSINESS OF PROSTITUTION ENDANGERS THE REQUIREMENTS OF PUBLIC POLICY AND NOT TAKING THE TROUBLE TO CONSIDER WHETHER THE PERSONS CONCERNED MAY OR MAY NOT BE SUSPECTED OF CONTACT WITH THE ' UNDERWORLD ' ' ' , CONSTITUTES A MEASURE OF A GENERAL PREVENTIVE NATURE WITHIN THE MEANING OF ARTICLE 3 OF DIRECTIVE NO 64/221 .

11 IT SHOULD BE NOTED THAT ARTICLE 3 ( 1 ) OF THE DIRECTIVE PROVIDES 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 . IN THAT REGARD IT IS SUFFICIENT TO REFER TO THE JUDGMENT OF 26 FEBRUARY 1975 IN CASE 67/74 BONSIGNORE ( 1975 ) ECR 297 , IN WHICH THE COURT HELD THAT ' ' MEASURES ADOPTED ON GROUNDS OF PUBLIC POLICY AND FOR THE MAINTENANCE OF PUBLIC SECURITY AGAINST THE NATIONALS OF MEMBER STATES OF THE COMMUNITY CANNOT BE JUSTIFIED ON GROUNDS EXTRANEOUS TO THE INDIVIDUAL CASE , AS IS SHOWN IN PARTICULAR BY THE REQUIREMENTS SET OUT IN PARAGRAPH ( 1 ) THAT ' ONLY ' THE ' PERSONAL CONDUCT ' OF THOSE AFFECTED BY THE MEASURES IS TO BE REGARDED AS DETERMINATIVE ' ' .

THE THIRTEENTH QUESTION

12 AS REGARDS THE POSSIBILITY FOR A PERSON AGAINST WHOM A DECISION HAS BEEN TAKEN ORDERING HIS EXPULSION FROM THE TERRITORY OF A MEMBER STATE TO BE RE-ADMITTED TO THE TERRITORY OF THE STATE IN QUESTION AND APPLY THERE FOR A FRESH RESIDENCE PERMIT , IT MUST BE STRESSED THAT ANY NATIONAL OF A MEMBER STATE WHO WISHES TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE MAY RE-APPLY FOR A RESIDENCE PERMIT . SUCH AN APPLICATION , WHEN SUBMITTED AFTER A REASONABLE PERIOD HAS ELAPSED , MUST BE EXAMINED BY THE COMPETENT ADMINISTRATIVE AUTHORITY IN THE HOST STATE , WHICH MUST TAKE INTO ACCOUNT , IN PARTICULAR , THE ARGUMENTS PUT FORWARD BY THE PERSON CONCERNED PURPORTING TO ESTABLISH THAT THERE HAS BEEN A MATERIAL CHANGE IN THE CIRCUMSTANCES WHICH JUSTIFIED THE FIRST DECISION ORDERING HIS EXPULSION . HOWEVER , WHERE SUCH A DECISION HAS BEEN VALIDLY ADOPTED IN HIS CASE IN ACCORDANCE WITH COMMUNITY LAW AND CONTINUES TO BE LEGALLY EFFECTIVE SO AS TO EXCLUDE HIM FROM THE TERRITORY OF THE STATE IN QUESTION , COMMUNITY LAW CONTAINS NO PROVISION CONFERRING UPON HIM A RIGHT OF ENTRY INTO THAT TERRITORY DURING THE EXAMINATION OF HIS FURTHER APPLICATION .

THE FOURTEENTH QUESTION

13 ARTICLE 6 OF DIRECTIVE NO 64/221 PROVIDES THAT THE PERSON CONCERNED IS TO BE INFORMED OF THE GROUNDS OF PUBLIC POLICY , PUBLIC SECURITY OR PUBLIC HEALTH UPON WHICH THE DECISION TAKEN IN HIS CASE IS BASED UNLESS THIS IS CONTRARY TO THE INTERESTS OF THE SECURITY OF THE STATE . IT IS CLEAR FROM THE PURPOSE OF THE DIRECTIVE THAT THE NOTIFICATION OF THE GROUNDS MUST BE SUFFICIENTLY DETAILED AND PRECISE TO ENABLE THE PERSON CONCERNED TO DEFEND HIS INTERESTS . AS REGARDS THE LANGUAGE TO BE USED , IT APPEARS FROM THE FILE ON THE CASE THAT THE PLAINTIFFS IN THE MAIN PROCEEDINGS ARE OF FRENCH NATIONALITY AND THAT THE DECISIONS AFFECTING THEM WERE DRAWN UP IN FRENCH , SO THAT THE RELEVANCE OF THE QUESTION IS NOT CLEAR . IT IS SUFFICIENT IN ANY EVENT IF THE NOTIFICATION IS MADE IN SUCH A WAY AS TO ENABLE THE PERSON CONCERNED TO COMPREHEND THE CONTENT AND EFFECT THEREOF .

II - QUESTIONS REGARDING PROCEDURAL SAFEGUARDS

14 THESE QUESTIONS RELATE ESSENTIALLY TO THE COMPOSITION OF THE ' ' COMPETENT AUTHORITY ' ' REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221 , THE QUALIFICATIONS AND THE TERM OF OFFICE OF ITS MEMBERS , POSSIBLE CONNECTIONS BETWEEN THOSE MEMBERS AND THE AUTHORITY REMUNERATING THEM , THE MANNER IN WHICH THE MATTER IS BROUGHT BEFORE THE AUTHORITY AND THE PROCEDURE BEFORE THAT AUTHORITY .

15 THE OBJECT OF ARTICLE 9 ( 1 ) OF THE DIRECTIVE IS TO ENSURE A MINIMUM PROCEDURAL SAFEGUARD FOR PERSONS AGAINST WHOM AN EXPULSION MEASURE HAS BEEN ADOPTED . WHERE ANY APPEAL TO A COURT OF LAW AGAINST ADMINISTRATIVE MEASURES RELATES ONLY TO THE LEGAL VALIDITY OF THE DECISION , THE INTERVENTION ON THE PART OF THE COMPETENT AUTHORITY MUST MAKE IT POSSIBLE FOR AN EXAMINATION TO BE MADE OF THE FACTS AND CIRCUMSTANCES , INCLUDING THE DISCRETIONARY FACTORS ON WHICH THE MEASURE IN QUESTION WAS BASED , BEFORE THE DECISION IS DEFINITIVELY ADOPTED . THE PERSON CONCERNED MUST BE ENTITLED TO PUT FORWARD TO THE COMPETENT AUTHORITY HIS ARGUMENTS IN DEFENCE AND TO BE ASSISTED OR REPRESENTED IN SUCH CONDITIONS AS TO PROCEDURE AS ARE PROVIDED FOR BY DOMESTIC LEGISLATION . PARAGRAPH ( 2 ) OF THE SAME ARTICLE PROVIDES THAT PERSONS AGAINST WHOM DECISIONS HAVE BEEN ADOPTED REFUSING THE ISSUE OF A FIRST RESIDENCE PERMIT OR ORDERING EXPULSION BEFORE THE ISSUE OF THE PERMIT MAY REQUEST THAT SUCH DECISIONS BE CONSIDERED BY THE COMPETENT AUTHORITY .

16 THE DIRECTIVE DOES NOT SPECIFY HOW THE COMPETENT AUTHORITY REFERRED TO IN ARTICLE 9 IS APPOINTED . IT DOES NOT REQUIRE THAT AUTHORITY TO BE A COURT OR TO BE COMPOSED OF MEMBERS OF THE JUDICIARY . NOR DOES IT REQUIRE THE MEMBERS OF THE COMPETENT AUTHORITY TO BE APPOINTED FOR A SPECIFIC PERIOD . THE ESSENTIAL REQUIREMENT IS THAT IT SHOULD BE CLEARLY ESTABLISHED THAT THE AUTHORITY IS TO PERFORM ITS DUTIES IN ABSOLUTE INDEPENDENCE AND IS NOT TO BE DIRECTLY OR INDIRECTLY SUBJECT , IN THE EXERCISE OF ITS DUTIES , TO ANY CONTROL BY THE AUTHORITY EMPOWERED TO TAKE THE MEASURES PROVIDED FOR IN THE DIRECTIVE . PROVIDED THAT THAT REQUIREMENT IS SATISFIED , IT IS NOT CONTRARY TO THE PROVISIONS OF THE DIRECTIVE , OR TO ITS PUPOSE , FOR THE REMUNERATION OF THE MEMBERS OF THE AUTHORITY TO BE CHARGED TO THE BUDGET OF THE DEPARTMENT OF THE ADMINISTRATION OF WHICH THE AUTHORITY EMPOWERED TO TAKE THE DECISION IN QUESTION FORMS PART OR FOR AN OFFICIAL BELONGING TO THAT ADMINISTRATION TO SERVE AS SECRETARY TO THE COMPETENT AUTHORITY .

17 AS REGARDS THE MANNER IN WHICH THE MATTER IS BROUGHT BEFORE THE COMPETENT AUTHORITY IN THE CIRCUMSTANCES REFERRED TO IN ARTICLE 9 ( 2 ) OF THE DIRECTIVE , THE LATTER CONTAINS NO BINDING PROVISION AS REGARDS THE PROCEDURES IN THAT RESPECT . ALTHOUGH IT DOES NOT PREVENT THE PERSON CONCERNED FROM MAKING A DIRECT APPLICATION TO THE AUTHORITY , IT DOES NOT REQUIRE SUCH AN APPLICATION AND IT ALLOWS THE MEMBER STATES A CHOICE IN THAT RESPECT , PROVIDED THAT THE MATTER IS BROUGHT BEFORE THE STATE AUTHORITY ONCE THE PERSON CONCERNED HAS SO REQUESTED .

18 AS REGARDS THE FORM OF THE OPINION OF THE COMPETENT AUTHORITY , IT IS EVIDENT FROM THE OBJECTIVES OF THE SYSTEM PROVIDED FOR BY THE DIRECTIVE THAT THE OPINION MUST BE DULY NOTIFIED TO THE PERSON CONCERNED BUT THE DIRECTIVE DOES NOT REQUIRE THE OPINION TO IDENTIFY BY NAME THE MEMBERS OF THE AUTHORITY OR INDICATE THEIR PROFESSIONAL STATUS .

19 AS REGARDS THE QUESTIONS RELATING TO PROCEDURE BEFORE THE COMPETENT AUTHORITY , INCLUDING NOT ONLY THE RULES OF PROCEDURE BUT ALSO THE RULES OF EVIDENCE , IT IS SUFFICIENT TO POINT OUT , AS HAS BEEN INDICATED ABOVE , THAT ARTICLE 9 ( 1 ) OF DIRECTIVE NO 64/221 EXPRESSLY PROVIDES THAT THE PERSON CONCERNED MUST BE ENTITLED TO PUT FORWARD HIS ARGUMENTS IN DEFENCE BEFORE THAT AUTHORITY AND TO BE ASSISTED OR REPRESENTED IN SUCH CONDITIONS AS TO PROCEDURE AS ARE PROVIDED FOR BY DOMESTIC LEGISLATION . THOSE CONDITIONS MUST NOT BE LESS FAVOURABLE TO THE PERSON CONCERNED THAN THE CONDITIONS APPLICABLE TO PROCEEDINGS BEFORE OTHER NATIONAL AUTHORITIES OF THE SAME TYPE .

COSTS

20 THE COSTS INCURRED BY THE BELGIAN GOVERNMENT , THE FRENCH GOVERNMENT , THE ITALIAN GOVERNMENT , THE NETHERLANDS GOVERNMENT , THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH 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 THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRESIDENT OF THE TRIBUNAL DE PREMIERE INSTANCE , LIEGE BY ORDERS OF 8 MAY 1981 , HEREBY RULES :

1 . A MEMBER STATE MAY NOT , BY VIRTUE OF THE RESERVATION RELATING TO PUBLIC POLICY CONTAINED IN ARTICLES 48 AND 56 OF THE TREATY , EXPEL A NATIONAL OF ANOTHER MEMBER STATE FROM ITS TERRITORY OR REFUSE HIM ACCESS TO ITS TERRITORY BY REASON OF CONDUCT WHICH , WHEN ATTRIBUTABLE TO THE FORMER STATE ' S OWN NATIONALS , DOES NOT GIVE RISE TO REPRESSIVE MEASURES OR OTHER GENUINE AND EFFECTIVE MEASURES INTENDED TO COMBAT SUCH CONDUCT .

2 . CIRCUMSTANCES NOT RELATED TO THE SPECIFIC CASE MAY NOT BE RELIED UPON IN RESPECT OF CITIZENS OF THE COMMUNITY , AS JUSTIFICATION FOR MEASURES INTENDED TO SAFEGUARD PUBLIC POLICY AND PUBLIC SECURITY .

3 . ANY NATIONAL OF A MEMBER STATE WHO WISHES TO SEEK EMPLOYMENT IN ANOTHER MEMBER STATE MAY , IF A MEASURE EXPELLING HIM FROM THE TERRITORY OF THAT STATE HAS PREVIOUSLY BEEN ADOPTED , REAPPLY FOR A RESIDENCE PERMIT . WHERE SUCH AN APPLICATION IS LODGED AFTER A REASONABLE PERIOD HAS ELAPSED , IT MUST BE EXAMINED BY THE APPROPRIATE ADMINISTRATIVE AUTHORITY IN THE HOST STATE , WHICH MUST TAKE INTO ACCOUNT , IN PARTICULAR , THE ARGUMENTS PUT FORWARD BY THE PERSON CONCERNED IN ORDER TO ESTABLISH THAT THERE HAS BEEN A MATERIAL CHANGE IN THE CIRCUMSTANCES JUSTIFYING THE FIRST EXPULSION MEASURE .

4 . THE NOTIFICATION OF THE GROUNDS RELIED UPON TO JUSTIFY AN EXPULSION MEASURE OR A REFUSAL TO ISSUE A RESIDENCE PERMIT MUST BE SUFFICIENTLY DETAILED AND PRECISE TO ENABLE THE PERSON CONCERNED TO DEFEND HIS INTERESTS .

5 . COMMUNITY LAW DOES NOT REQUIRE THAT THE COMPETENT AUTHORITY REFERRED TO IN ARTICLE 9 OF DIRECTIVE NO 64/221 BE A COURT OR BE MADE UP OF MEMBERS OF THE JUDICIARY , OR THAT ITS MEMBERS BE APPOINTED FOR A SPECIFIED PERIOD . IT IS NOT CONTRARY TO COMMUNITY LAW FOR THE REMUNERATION OF THE MEMBERS OF THE AUTHORITY TO BE CHARGED TO THE BUDGET OF THE DEPARTMENT OF THE ADMINISTRATION OF WHICH THE AUTHORITY EMPOWERED TO TAKE THE DECISION IN QUESTION FORMS PART , OR FOR AN OFFICIAL BELONGING TO THAT ADMINISTRATION TO SERVE AS SECRETARY TO THE COMPETENT AUTHORITY .

6 . ALTHOUGH DIRECTIVE NO 64/221 DOES NOT PREVENT THE PERSON CONCERNED FROM MAKING A DIRECT APPLICATION TO THE COMPETENT AUTHORITY IT DOES NOT REQUIRE SUCH AN APPLICATION AND IT ALLOWS THE MEMBER STATES A CHOICE IN THAT RESPECT , PROVIDED THAT THE PERSON CONCERNED IS ENTITLED TO MAKE SUCH AN APPLICATION IF HE SO REQUESTS .

7 . THE OPINION OF THE COMPETENT AUTHORITY MUST BE DULY NOTIFIED TO THE PERSON CONCERNED .

8 . THE PERSON CONCERNED MUST BE ENTITLED TO PUT FORWARD TO THE COMPETENT AUTHORITY HIS ARGUMENTS IN DEFENCE AND TO BE ASSISTED OR REPRESENTED IN SUCH CONDITIONS AS TO PROCEDURE AS ARE PROVIDED FOR BY DOMESTIC LEGISLATION . THOSE CONDITIONS MUST NOT BE LESS FAVOURABLE TO THE PERSON CONCERNED THAN THE CONDITIONS APPLICABLE TO PROCEEDINGS BEFORE OTHER NATIONAL AUTHORITIES OF THE SAME TYPE .