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Document 61988CJ0297

Summary of the Judgment

Judgment of the Court of 18 October 1990.
Massam Dzodzi v Belgian State.
References for a preliminary ruling: Tribunal de première instance de Bruxelles and Cour d'appel de Bruxelles - Belgium.
Preliminary rulings - Jurisdiction of the Court - Reference in national legislation to provisions of Community law - Right of residence - Right to remain - Directive 64/221/EEC.
Joined cases C-297/88 and C-197/89.




1 . Freedom of movement for persons - Workers - Provisions of Community law - Inapplicable in a purely internal situation of a Member State

( Regulation No 1612/68 of the Council; Regulation No 1251/70 of the Commission; Council Directives 64/221 and 68/360 )

2 . Preliminary questions - Jurisdiction of the Court - Limits - Fictitious dispute or request for an interpretation of provisions of Community law which are inapplicable in the main proceedings - Interpretation sought because a provision of Community law is applicable owing to a reference made to it by national law - Jurisdiction to give that interpretation but not to draw the inferences of that reference

( EEC Treaty, Art . 177 )

3 . Freedom of movement for persons - Derogations - Decisions on the control of aliens - Judicial safeguards - Legal remedies available to nationals of the State in question for challenging acts of the administration - Formal or procedural requirements less favourable to the nationals of other Member States - Not allowed - Suspension of execution of the contested act - Same conditions as to admissibility for nationals of other Member States as for nationals of the State in question

( Council Directive 64/221, Art . 8 )

4 . Freedom of movement for persons - Derogations - Decisions on the control of aliens - Decision ordering expulsion or refusing the issue of a residence permit - Whether Member States are under an obligation to provide a procedure for appeals to a court of law empowered to adopt interim protective measures - No obligation

( Council Directive 64/221, Art . 9 )


1 . The provisions of Community law governing the free movement of workers do not apply to purely internal situations of a Member State, such as the situation of a national of a non-member country who, solely in the capacity as the spouse of a national of a Member State, claims a right to reside or to remain in the territory of that Member State .

2 . In accordance with the division of judicial tasks between the national courts and the Court of Justice pursuant to Article 177 of the Treaty, the Court gives its preliminary ruling without, in principle, having to look into the circumstances in which the national courts were prompted to submit the questions and envisage applying the provision of Community law which they have asked the Court to interpret .

The matter would be different only if it were apparent either that the procedure provided for in Article 177 had been diverted from its true purpose and sought in fact to lead the Court to give a ruling without there being any genuine dispute, or that the provision of Community law referred to the Court for interpretation was incapable of applying .

Where Community law is made applicable by national provisions, it is for the national court alone to assess the precise scope of that reference to Community law . If it takes the view that the content of a provision of Community law is applicable, by virtue of that reference, to the purely internal situation underlying the dispute brought before it, the national court is entitled to request the Court for a preliminary ruling on the terms laid down by the provisions of Article 177 as a whole, as they have been interpreted in the case-law of the Court of Justice .

Nevertheless, the jurisdiction of the Court is confined to considering provisions of Community law only . In its reply to the national court, the Court of Justice cannot take account of the general scheme of the provisions of domestic law which, while referring to Community law, define the extent of that reference . Consideration of the limits which the national legislature may have placed on the application of Community law to purely internal situations, to which it is applicable only through the operation of the national legislation, is a matter for domestic law and hence falls within the exclusive jurisdiction of the courts of the Member State .

3 . Article 8 of Directive 64/221 imposes upon the Member States the obligation to make available to any national of a Member State affected by a measure concerning entry, a refusal to issue or renew a residence permit, or an expulsion order, 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 obligation, organize, for persons covered by the directive, legal remedies governed by special procedures affording lesser safeguards than those pertaining to remedies available to nationals in respect of acts of the administration .

It follows that if, in a Member State, the administrative courts are not empowered to grant a stay of execution of an administrative decision or interim protective measures with regard to the execution of such a decision, but such power is vested in the ordinary courts, that State is obliged to permit persons covered by the directive to apply to those courts on the same terms as nationals .

4 . Article 9 of Directive 64/221 does not require the Member States to make available to persons covered by the directive a right of appeal, prior to the execution of a decision refusing a residence permit or ordering expulsion from the territory, to a court empowered, under an urgency procedure, to adopt interim protective measures in connection with rights of residence .