61978J0175

FREEDOM OF MOVEMENT FOR WORKERS - RESTRICTIONS IN PURSUANCE OF PENAL LEGISLATION - SITUATIONS DOMESTIC TO A MEMBER STATE - COMMUNITY LAW - NOT APPLICABLE

( EEC TREATY , ART . 48 )

THE APPLICATION BY AN AUTHORITY OR COURT OF A MEMBER STATE TO A WORKER WHO IS A NATIONAL OF THAT SAME STATE OF MEASURES WHICH DEPRIVE OR RESTRICT THE FREEDOM OF MOVEMENT OF THE PERSON CONCERNED WITHIN THE TERRITORY OF THAT STATE AS A PENAL MEASURE PROVIDED FOR BY NATIONAL LAW BY REASON OF ACTS COMMITTED WITHIN THE TERRITORY OF THAT STATE IS A WHOLLY DOMESTIC SITUATION WHICH FALLS OUTSIDE THE SCOPE OF THE RULES CONTAINED IN THE EEC TREATY ON FREEDOM OF MOVEMENT FOR WORKERS .

IN CASE 175/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CROWN COURT AT BRISTOL FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

REGINA

AND

VERA ANN SAUNDERS ON THE INTERPRETATION OF ARTICLE 48 OF THE EEC TREATY

1BY ORDER OF 31 JULY 1978 , RECEIVED AT THE COURT ON 16 AUGUST 1978 , THE CROWN COURT AT BRISTOL REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 48 OF THE TREATY AND IN PARTICULAR OF ARTICLE 48 ( 3 ) ( B ).

2THIS QUESTION HAS ARISEN WITHIN THE CONTEXT OF CRIMINAL PROCEEDINGS CONCERNING IN PARTICULAR THE CONSEQUENCES OF THE INFRINGEMENT , BY A PERSON OF BRITISH NATIONALITY WHO HAD PLEADED GUILTY TO A CHARGE OF THEFT AT A PREVIOUS STAGE IN THOSE PROCEEDINGS , OF AN UNDERTAKING ACCEPTED BY HER TO PROCEED TO NORTHERN IRELAND AND NOT TO RETURN TO ENGLAND OR WALES WITHIN THREE YEARS .

3THE NATIONAL COURT , ON THE BASIS THAT THE ACCUSED WAS A WORKER WITHIN THE MEANING OF ARTICLE 48 OF THE TREATY , WISHES TO KNOW WHETHER THE RULES OF THE TREATY ON FREEDOM OF MOVEMENT FOR WORKERS PROHIBIT MEASURES IN THE NATURE OF THOSE BY WHICH THE ACCUSED WAS BOUND .

4FOR THIS PURPOSE THE NATIONAL COURT ASKS WHETHER ' ' THE ORDER OF THIS COURT MADE IN THE CASE OF VERA ANN SAUNDERS ON 21 DECEMBER 1977 MAY CONSTITUTE A DEROGATION FROM THE RIGHT GIVEN TO A WORKER UNDER ARTICLE 48 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY , HAVING REGARD IN PARTICULAR TO THE RIGHT SPECIFIED IN ARTICLE 48 ( B ) OF THE SAID TREATY , AND THE FACT THAT SHE APPEARS TO BE AN ENGLISH NATIONAL ' ' .

5THIS QUESTION ASKS IN SUBSTANCE WHETHER THE PRINCIPLE OF THE FREEDOM OF MOVEMENT FOR WORKERS AS LAID DOWN IN ARTICLE 48 OF THE TREATY , IN PARTICULAR IN SO FAR AS IT ENTAILS THE RIGHT FOR A WORKER , SUBJECT TO LIMITATIONS JUSTIFIED INTER ALIA ON GROUNDS OF PUBLIC POLICY AND PUBLIC SECURITY , TO MOVE FREELY WITHIN THE TERRITORY OF MEMBER STATES SO AS TO ACCEPT OFFERS OF EMPLOYMENT ACTUALLY MADE AND TO STAY THERE FOR THE PURPOSE OF EMPLOYMENT , MAY BE RELIED UPON BY A NATIONAL OF A MEMBER STATE RESIDING IN THAT MEMBER STATE FOR THE PURPOSE OF OPPOSING THE APPLICATION OF MEASURES WHICH RESTRICT HIS FREEDOM OF MOVEMENT WITHIN THE TERRITORY OF THAT MEMBER STATE OR HIS FREEDOM TO ESTABLISH HIMSELF IN THAT STATE IN ANY PLACE HE CHOOSES .

6IT THEREFORE ALSO CONCERNS THE QUESTION WHETHER ARTICLE 48 OF THE TREATY CONFERS RIGHTS UPON A PERSON IN THE SAME SITUATION AS MISS SAUNDERS AND , IF THE ANSWER IS IN THE AFFIRMATIVE , WHAT THE EXTENT OF THOSE RIGHTS IS .

7THE REPLY TO THAT QUESTION DEPENDS , FIRST , ON THE DETERMINATION OF THE SCOPE OF THAT PROVISION IN CONJUNCTION IN PARTICULAR WITH THE GENERAL PRINCIPLE EXPRESSED IN ARTICLE 7 OF THE TREATY .

8UNDER ARTICLE 7 , ANY DISCRIMINATION ON GROUNDS OF NATIONALITY IS PROHIBITED WITHIN THE SCOPE OF APPLICATION OF THE TREATY AND WITHOUT PREJUDICE TO ANY SPECIAL PROVISIONS CONTAINED THEREIN .

9IN APPLICATION OF THAT GENERAL PRINCIPLE , ARTICLE 48 AIMS TO ABOLISH IN THE LEGISLATION OF THE MEMBER STATES PROVISIONS AS REGARDS EMPLOYMENT , REMUNERATION AND OTHER CONDITIONS OF WORK AND EMPLOYMENT - INCLUDING THE RIGHTS AND FREEDOMS WHICH THAT FREEDOM OF MOVEMENT INVOLVES PURSUANT TO ARTICLE 48 ( 3 ) - ACCORDING TO WHICH A WORKER WHO IS A NATIONAL OF ANOTHER MEMBER STATE IS SUBJECT TO MORE SEVERE TREATMENT OR IS PLACED IN AN UNFAVOURABLE SITUATION IN LAW OR IN FACT AS COMPARED WITH THE SITUATION OF A NATIONAL IN THE SAME CIRCUMSTANCES .

10ALTHOUGH THE RIGHTS CONFERRED UPON WORKERS BY ARTICLE 48 MAY LEAD THE MEMBER STATES TO AMEND THEIR LEGISLATION , WHERE NECESSARY , EVEN WITH RESPECT TO THEIR OWN NATIONALS , THIS PROVISION DOES NOT HOWEVER AIM TO RESTRICT THE POWER OF THE MEMBER STATES TO LAY DOWN RESTRICTIONS , WITHIN THEIR OWN TERRITORY , ON THE FREEDOM OF MOVEMENT OF ALL PERSONS SUBJECT TO THEIR JURISDICTION IN IMPLEMENTATION OF DOMESTIC CRIMINAL LAW .

11THE PROVISIONS OF THE TREATY ON FREEDOM OF MOVEMENT FOR WORKERS CANNOT THEREFORE BE APPLIED TO SITUATIONS WHICH ARE WHOLLY INTERNAL TO A MEMBER STATE , IN OTHER WORDS , WHERE THERE IS NO FACTOR CONNECTING THEM TO ANY OF THE SITUATIONS ENVISAGED BY COMMUNITY LAW .

12THE APPLICATION BY AN AUTHORITY OR COURT OF A MEMBER STATE TO A WORKER WHO IS A NATIONAL OF THAT SAME STATE OF MEASURES WHICH DEPRIVE OR RESTRICT THE FREEDOM OF MOVEMENT OF THAT WORKER WITHIN THE TERRITORY OF THAT STATE AS A PENAL MEASURE PROVIDED FOR BY NATIONAL LAW BY REASON OF ACTS COMMITTED WITHIN THE TERRITORY OF THAT STATE IS A WHOLLY DOMESTIC SITUATION WHICH FALLS OUTSIDE THE SCOPE OF THE RULES CONTAINED IN THE TREATY ON FREEDOM OF MOVEMENT FOR WORKERS .

COSTS

13THE COSTS INCURRED BY THE GOVERNMENT OF THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

14AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE CROWN COURT AT BRISTOL BY ORDER OF 31 JULY 1978 HEREBY RULES :

THE APPLICATION BY AN AUTHORITY OR COURT OF A MEMBER STATE TO A WORKER WHO IS A NATIONAL OF THAT SAME STATE OF MEASURES WHICH DEPRIVE OR RESTRICT THE FREEDOM OF MOVEMENT OF THE PERSON CONCERNED WITHIN THE TERRITORY OF THAT STATE AS A PENAL MEASURE PROVIDED FOR BY NATIONAL LAW BY REASON OF ACTS COMMITTED WITHIN THE TERRITORY OF THAT STATE IS A WHOLLY DOMESTIC SITUATION WHICH FALLS OUTSIDE THE SCOPE OF THE RULES CONTAINED IN THE EEC TREATY ON FREEDOM OF MOVEMENT FOR WORKERS .