Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

13 June 2024 (*)

(Reference for a preliminary ruling – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Article 27 – Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health – Conduct representing a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society – Refusal to issue a temporary residence card of a family member of a Union citizen due to a police record – Unfavourable police report due to arrest)

In Case C‑62/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Contencioso-Administrativo no 5 de Barcelona (Administrative Court No 5, Barcelona, Spain), made by decision of 9 January 2023, received at the Court on 6 February 2023, in the proceedings

Pedro Francisco

v

Subdelegación del Gobierno en Barcelona,

THE COURT (Tenth Chamber),

composed of Z. Csehi, President of the Chamber, E. Regan (Rapporteur), President of the Fifth Chamber, and D. Gratsias, Judge,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        the Spanish Government, by A. Pérez-Zurita Gutiérrez, acting as Agent,

–        the European Commission, by J. Baquero Cruz and E. Montaguti, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 27(1) and (2) 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77 and corrigendum OJ 2004 L 229, p. 35).

2        The request has been made in proceedings between Mr Pedro Francisco and the Subdelegación del Gobierno en Barcelona (Provincial Office of the Government, Barcelona, Spain) (‘the competent authority’) concerning the rejection of his application for a temporary residence card of a family member of a Union citizen.

 Legal context

 European Union law

3        Article 2 of Directive 2004/38 provides:

‘For the purposes of this Directive:

…

2.      “family member” means:

…

(b)      the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

…’

4        Article 10(1) of that directive provides:

‘The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.’

5        Article 27(1) and (2) of that directive provides:

‘1.      Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

2.      Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.’

6        Article 30 of that directive provides, in paragraphs 1 and 2:

‘1.      The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.

2.      The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.’

 Spanish law

7        Article 2 of Real Decreto 240/2007, sobre entrada, libre circulación y residencia en España de ciudadanos de los Estados miembros de la Unión europea y de otros Estados parte en el Acuerdo sobre el Espacio Económico Europeo (Royal Decree 240/2007 on the entry, free movement and residence in Spain of citizens of Member States of the European Union and of other States parties to the Agreement on the European Economic Area) of 16 February 2007 (BOE No 51 of 28 February 2007, p. 8558), in the version applicable to the dispute in the main proceedings (‘Royal Decree 240/2007’), provides:

‘This Royal Decree shall also apply, in accordance with its provisions, to the following family members of a national of another Member State of the European Union or another State party to the Agreement on the European Economic Area [of 2 May 1992 (OJ 1994 L 1, p. 3)], regardless of their nationality, where they are accompanying or joining that national:

…

(b)      The partner with whom that national has a relationship analogous to marriage which is registered in a public register set up for that purpose in a Member State of the European Union or in a State party to the Agreement on the European Economic Area – which precludes two simultaneous registrations in that State – and provided that that registration has not been cancelled, which must be established to the requisite legal standard. Marriage and registration as a partnership shall be regarded in all cases as incompatible with one another.

…’

8        Article 2 bis of Royal Decree 240/2007 states:

‘…

3.      The application for a card of a family member of a Union citizen must be accompanied by the following documents:

…

(d)      In the case of a partnership, proof of the existence of a stable relationship with the national of a Member State of the European Union or other States party to the Agreement on the European Economic Area and of the length of time spent living together.

4.      The authorities shall assess the applicant’s personal situation on a case-by-case basis and make a reasoned decision, taking into account the following criteria:

(a)      With regard to family members, the authorities shall assess the degree of financial or physical dependence, the degree of kinship with the national of a Member State of the European Union or another State party to the Agreement on the European Economic Area and, where applicable, the severity of the illness or disability which requires that national to care personally for his or her family member or the previous length of time spent living together. In any event, living together shall be considered to be established when a continuous period of 24 months of time spent living together in the country of origin is reliably demonstrated.

(b)      In the case of de facto partners, those who can prove the existence of a lasting relationship are regarded as stable partners. In any event, such a relationship is deemed to be established by proof of a period of living together as a couple of at least one continuous year, unless the partners have children together, in which case proof of living together in a stable relationship duly demonstrated is sufficient.

5.      Any decision by the authorities shall be reasoned.’

9        Article 8(1) of that royal decree provides:

‘Any family members of a national of a Member State of the European Union or of a State party to the Agreement on the European Economic Area, as specified in Article 2 of this Royal Decree, who are not nationals of one of those States, shall, where they are accompanying or joining that national, be entitled to reside in Spain for a period of more than three months, subject to the requirement that they must apply for and obtain a “residence card of a family member of a Union citizen”.’

10      Article 15(1) and (5) of that royal decree is worded as follows:

‘1.      Where necessary on grounds of public policy, public security or public health, any of the following measures may be adopted in respect of a citizen of a Member State of the European Union or of another State party to the Agreement on the European Economic Area, or in respect of that citizen’s family members:

(a)      Prohibition on entry into Spain, even if the persons concerned present the documents provided for in Article 4 of this Royal Decree.

(b)      Refusal to register the person concerned in the Central Register of Foreign Nationals or to issue or renew the residence cards provided for in Article 4 of this Royal Decree.

(c)      Order of expulsion or return from Spanish territory.

A decision to expel a citizen of a Member State of the European Union or of another State party to the Agreement on the European Economic Area, or any of that citizen’s family members, irrespective of their nationality, who have acquired the right of permanent residence in Spain, may be adopted only on serious grounds of public policy or public security. Furthermore, before adopting such a decision, consideration must be given to the length of residence and social and cultural integration of the person concerned in Spain, that person’s age, health status, family and economic situation, and the extent of his or her links with his or her country of origin.

…

5.      Adoption of any of the measures provided for in paragraphs 1 to 4 above shall meet the following criteria:

(a)      The measure shall be adopted in accordance with the legislation governing public policy and public security and the regulatory provisions in force in that regard.

(b)      It may be revoked ex officio or at the request of the person concerned if the grounds on which it was adopted no longer exist.

(c)      It may not be adopted to serve economic ends.

(d)      When such measures are adopted on grounds of public policy or public security, they must be based exclusively on the personal conduct of the person against whom they are directed, which must, in any event, represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society which will be assessed by the competent adjudicatory body in the light of the reports of the police, prosecution or judicial authorities contained in the case file. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

11      Mr Pedro Francisco, a national of a third country, is the partner of a Spanish national. Their partnership is registered in the Register of Stable Partnerships of Catalonia (Spain). On 21 December 2021, he lodged an application for a temporary residence card of a family member of a Union citizen with the competent authority.

12      In the course of the examination of that application, the competent authority contacted the Dirección General de Policía (Directorate-General of Police, Spain), which issued an unfavourable report due to the arrest of Mr Pedro Francisco, on 3 July 2020, for the alleged commission of a public health offence and participation in criminal organisations and groups, without the police having carried out any investigation to determine whether that arrest had led to criminal proceedings. That report states that Mr Pedro Francisco has no criminal record.

13      After his application for a temporary residence card of a family member of a Union citizen was rejected on 14 June 2022 by a decision of the competent authority, Mr Pedro Francisco brought an administrative appeal against that decision before the Juzgado de lo Contencioso-Administrativo no 5 de Barcelona (Administrative Court No 5, Barcelona, Spain), which is the referring court.

14      That court expresses doubts as to the relevance of Mr Pedro Francisco’s police record, namely the arrest referred to in paragraph 12 of this judgment, in the context of the examination of that application. Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health, pursuant to Article 27 of Directive 2004/38, must be proportionate and must be based exclusively on the conduct of the individual concerned, which must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

15      The referring court notes that a police record only concerns facts allegedly attributed to the person concerned, the truth of which must be established by means of the evidence which is adduced at the trial and assessed in the judgment. It follows that it is not possible to make a negative assessment of facts, which have not been confirmed to be true, and, consequently, to conclude that those facts constitute a genuine threat.

16      Furthermore, that court considers that, if it is found that a police record may serve as the basis for making such an assessment, it will be necessary, in the light of Article 27 of Directive 2004/38, for the competent authority to set out expressly and in detail the facts on which that record is based and the judicial proceedings to which they may have given rise, in order to confirm that those facts are not mere presumptions.

17      In those circumstances, the Juzgado de lo Contencioso-Administrativo no 5 de Barcelona (Administrative Court No 5, Barcelona) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is Article 27 of Directive [2004/38] to be interpreted as meaning that a police record may be the basis or foundation of the personal conduct of the individual concerned for the purposes of assessing whether a genuine threat exists when the purpose of a criminal trial is to prove whether that threat is genuine?

(2)      If the answer to the first question is in the affirmative, in the light of Article 27 of the directive, must the interpretation be that the governmental authority is required to set out expressly and in detail the facts on which that record is based and any judicial proceedings which have been brought and their outcome in order to confirm that we are not merely dealing with initial presumptions?’

 Consideration of the questions referred

18      By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 27(1) and (2) of Directive 2004/38 must be interpreted as precluding a competent national authority from taking into account a previous arrest of the person concerned in order to assess whether that person’s conduct constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, where applicable, on the condition that the facts on which that arrest is based, and the possible legal consequences thereof, are taken into consideration, expressly and in detail.

19      As a preliminary point, it should be noted that the dispute in the main proceedings results from the refusal of the competent authority to grant the applicant in the main proceedings a temporary residence card of a family member of a Union citizen, although Article 10(1) of that directive provides, in particular, that the right of residence of family members of a Union citizen who are not nationals of a Member State is to be evidenced by the issuing of a document called ‘residence card of a family member of a Union citizen’.

20      That applicant is the partner of a Spanish national and their partnership is registered in the Register of Stable Partnerships of Catalonia, with the result that that applicant must be considered to be a ‘family member of a Union citizen’, for the purposes of Article 2(2)(b) of that directive.

21      Furthermore, as maintained by the European Commission, it is not apparent from the information available to the Court that the Spanish national, whose partner he is, exercised her freedom of movement within the European Union, with the result that the applicant in the main proceedings cannot, in principle, derive a right of residence either from Directive 2004/38 or from Article 21 TFEU (see, to that effect, judgment of 27 February 2020, Subdelegación del Gobierno en Ciudad Real (Spouse of a Union citizen), C‑836/18, EU:C:2020:119, paragraph 29).

22      However, in accordance with Article 267 TFEU, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and acts of the EU institutions. In the context of cooperation between the Court of Justice and the national courts, established in Article 267, it is for the national courts alone to assess, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give judgment and the relevance of the questions which they put to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, obliged to give a ruling (judgment of 26 October 2023, Lineas – Concessões de Transportes and Others, C‑207/22, C‑267/22 and C‑290/22, EU:C:2023:810, paragraph 48 and the case-law cited).

23      Applying that case-law, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations where the facts in the main proceedings fell outside the scope of EU law, but where the provisions of EU law had been rendered applicable by national law, which, in dealing with situations outside the scope of EU law, followed the same approach as that provided for by the latter (judgment of 26 October 2023, Lineas – Concessões de Transportes and Others, C‑207/22, C‑267/22 and C‑290/22, EU:C:2023:810, paragraph 49 and the case-law cited).

24      In such situations, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, the provisions taken from EU law should be interpreted uniformly (judgment of 12 December 2019, G.S. and V.G. (Threat to public policy), C‑381/18 and C‑382/18, EU:C:2019:1072, paragraph 42 and the case-law cited).

25      In that regard, the referring court specified that Article 15(5)(d) of Royal Decree 240/2007 – which sets the boundaries of the concept of ‘public order’, a concept already established in Article 27 of the Directive 2004/38 – is interpreted by the Tribunal Supremo (Supreme Court, Spain) in the light of the Court’s case-law. As the Court has already had the opportunity to observe, that royal decree, which aims to transpose that directive into the Spanish legal order, applies not only to applications for family reunification submitted by a third-country national who is a family member of a Union citizen who has exercised the freedom of movement, which fall within the scope of that directive, but also, by virtue of the settled case-law of the Tribunal Supremo (Supreme Court), to applications for family reunification submitted by a third-country national who is a family member of a Spanish national who has never exercised the freedom of movement (see, to that effect, judgment of 27 February 2020, Subdelegación del Gobierno en Ciudad Real (Spouse of a Union citizen), C‑836/18, EU:C:2020:119, paragraph 30).

26      In the present case, it is apparent from the information available to the Court that, in the main proceedings, both the application for a temporary residence card of a member of the family of a Union citizen and the refusal by the competent authority were based on the provisions of Royal Decree 240/2007.

27      With the benefit of those preliminary clarifications, it is important to recall that the right of Union citizens and their family members to reside in the European Union is not unconditional but may be subject to the limitations and conditions imposed by the Treaty and by the measures adopted to give it effect (judgment of 13 July 2017, E, C‑193/16, EU:C:2017:542, paragraph 16 and the case-law cited).

28      In that regard, the restrictions on that right derive in particular from Article 27(1) of Directive 2004/38, a provision which states that Member States may take measures restricting the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, in particular on grounds of public policy or public security, however those grounds may not be invoked to serve economic ends (see, to that effect, judgment of 13 July 2017, E, C‑193/16, EU:C:2017:542, paragraph 17 and the case-law cited).

29      According to settled case-law, while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must nevertheless be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (judgment of 2 May 2018, K. and H. F. (Right of residence and alleged war crimes), C‑331/16 and C‑366/16, EU:C:2018:296, paragraph 40 and the case-law cited).

30      Pursuant to the first subparagraph of Article 27(2) of Directive 2004/38, measures taken on grounds of public policy or public security must comply with the principle of proportionality and must be based exclusively on the personal conduct of the individual concerned.

31      Furthermore, the second subparagraph of that Article 27(2) makes the adoption of such measures subject to the condition that the conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

32      It follows that measures justified on grounds of public policy or public security may be taken pursuant to Article 27(1) of Directive 2004/38, only if, under paragraph 2 of that article, following a case-by-case assessment by the competent national authorities, it is shown that the personal conduct of that individual currently constitutes a genuine and sufficiently serious threat to a fundamental interest of society (see, to that effect, judgment of 2 May 2018, K. and H. F. (Right of residence and alleged war crimes), C‑331/16 and C‑366/16, EU:C:2018:296, paragraph 52 and the case-law cited).

33      In this context, it should be noted that the Court held that, for the purposes of adopting measures taken on grounds of public order or public security, for the purposes of Article 27(2) of Directive 2004/38, offences or acts alleged against the individual concerned and which have not given rise to a criminal conviction – such as the arrest of the applicant in the main proceedings for the alleged commission of offences – may constitute relevant factors, provided that they are taken into account in accordance with a case-by-case assessment meeting the requirements laid down in that provision (see, to that effect, judgment of 2 May 2018, K. and H. F. (Right of residence and alleged war crimes), C‑331/16 and C‑366/16, EU:C:2018:296, paragraph 53).

34      In that regard, it should be stated that, under the second sentence of the first subparagraph of Article 27(2) of that directive, previous criminal convictions may not in themselves constitute grounds for taking such measures. The same applies a fortiori to factors such as the arrest at issue in the main proceedings. While an arrest may be taken into consideration by the competent national authority, the mere existence of that arrest cannot therefore automatically justify the adoption of those measures.

35      In the absence of a final conviction, or even criminal proceedings, that arrest only reflects the existence of suspicions weighing on the person concerned, with the result that an examination taking into account all the relevant factors characterising his or her situation is all the more necessary (see, to that effect, judgment of 2 May 2018, K. and H. F. (Right of residence and alleged war crimes), C‑331/16 and C‑366/16, EU:C:2018:296, paragraphs 54 and 55).

36      Furthermore, the conduct of a person who has been arrested may be found to represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society only in the presence of consistent, objective and precise factors which allow for the reliability of the suspicions weighing on that person as a result of that arrest to be substantiated.

37      Thus, in the overall assessment of the personal conduct of the individual concerned, in order to determine whether that conduct constitutes such a threat, it is necessary to take into consideration the factors on which that arrest is based, in particular the nature and gravity of the offences or acts that that individual is alleged to have committed, the degree of his or her individual involvement in them, and the possible existence of grounds for excluding his or her criminal liability. That overall assessment must also take account of the time that has elapsed since the alleged commission of those offences or acts and the subsequent conduct of that individual (see, to that effect, judgment of 2 May 2018, K. and H. F. (Right of residence and alleged war crimes), C‑331/16 and C‑366/16, EU:C:2018:296, paragraph 66).

38      It follows that the competent national authority may take into account a previous arrest of the individual concerned, provided that it carries out its own overall assessment of the personal conduct of that individual in accordance with Article 27(2) of Directive 2004/38. That authority must, on that basis, first and at the very least, take into consideration, expressly and in detail, the facts on which that arrest is based and, secondly, take into account any possible legal proceedings which have been initiated, or the absence of such proceedings, as well as, where applicable, their consequences.

39      Such an interpretation is moreover supported by Article 30 of that directive, paragraph 1 of which states that any decision taken under Article 27(1) thereof is to be notified in writing to the persons concerned in such a way that they are able to comprehend its content and the implications for them, while paragraph 2 of Article 30 specifies that the persons concerned must be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security, a circumstance which, having regard to the information available to the Court, does not appear to be relevant in the main proceedings.

40      Furthermore, it must be borne in mind that, in the context of its assessment, the competent national authority must also take into account the fact that, as is apparent from Article 27(2) of that directive and the Court’s settled case-law, a measure which restricts the right of freedom of movement and residence of Union citizens and their family members may be justified only if it complies with the principle of proportionality, which presupposes determining whether that measure is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it. Such an assessment entails that the threat that the personal conduct of the individual concerned represents to the fundamental interests of the host society, on the one hand, must be weighed against the protection of the rights which Union citizens and their family members derive from Directive 2004/38, on the other. In that assessment, account must be taken of the fundamental rights whose observance the Court ensures, in particular the right to respect for private and family life as enshrined in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (see, to that effect, judgment of 2 May 2018, K. and H. F. (Right of residence and alleged war crimes), C‑331/16 and C‑366/16, EU:C:2018:296, paragraphs 61 to 63 and the case-law cited).

41      Having regard to the foregoing considerations, the answer to the questions referred is that Article 27(1) and (2) of Directive 2004/38 must be interpreted as meaning that it does not preclude a competent national authority from taking into account a previous arrest of the person concerned in order to assess whether that person’s conduct constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, provided that, in the overall assessment of that conduct, the facts on which that arrest is based, and the possible legal consequences thereof, are taken into consideration, expressly and in detail.

 Costs

42      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Article 27(1) and (2) 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

must be interpreted as meaning that it does not preclude a competent national authority from taking into account a previous arrest of the person concerned in order to assess whether that person’s conduct constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, provided that, in the overall assessment of that conduct, the facts on which that arrest is based, and the possible legal consequences thereof, are taken into consideration, expressly and in detail.

[Signatures]

*      Language of the case: Spanish.