1.

The references to the provisions of Community law of which the Belgian court seeks an interpretation suggest two hypotheses whereby the position of the person concerned is governed either by the chapter of the Treaty relating to workers, especially Article 48 which was implemented by Regulation No 1612/68 of the Council and by Directive No 68/360 of the Council, or by the chapters relating to the right of establishment and the supply of services, especially Articles 52, 53, 56, 62 and 66 implemented by Directive No 73/148 of the Council.

In both cases we must first examine the basis of the right of residence in the territory of a Member State for nationals of other Member States who benefit from the right of freedom of movement for workers or the right of establishment.

Does this right arise directly from the provisions of the Treaty and, where appropriate, from the Community measures implementing the Treaty or is it only conferred by the residence permit issued by the national authorities oft the host State?

The answer to this question is clearly governed by the case-law of the Court. Since the end of the transitional period both Article 48 and Article 52 have been directly applicable as the Court has recognized in particular in the judgments of 4 December 1974 (Case 41/74, van Duyn v Home Office [1974] ECR 1337) and of 4 July 1974 (Case 2/74, Reyners v Belgium (1974) ECR 631).

They confer on individuals rights which they may plead in the national courts and which the latter must protect.

The former of these provisions expressly provides the right for workers to move freely in the territory of Member States and to reside there for the purposes of employment.

The right of establishment which opens the way for activities as self-employed persons and allows these to be exercised under the same conditions as for nationals of the Member State, postulates by implication but beyond all doubt the right to enter the territory and to reside there.

In each case the existence of these rights is confirmed in the directives adopted by the Council pursuant to Articles 49, 54 and 63 for the purpose of abolishing restrictions on entry and residence whether for employed or for self-employed persons. Article 10 of Regulation No 1612/68, Article 1 of Directive No 68/360 and Article 1 of Directive No 73/148 extend in more or less identical terms the application of Community law relating to entry and residence in the territory of Member States to the spouse of any person covered by these provisions.

These articles provide that Member States shall grant the persons referred to the right to enter their territory simply on production of a valid identity card or passport; they further grant them the right of permanent residence which is merely proved by the issue of an administrative document.

Thus Article 1 of Regulation No 1612/68 provides that any national of a Member State, irrespective of his place of residence, ‘has the right to take up an activity as an employed person, and to pursue such activity within the territory of another Member State’; Article 10 of that regulation extends the right to ‘instal themselves’ to the members of the family of the person possessing that right. Article 4 of Directive No 68/360 provides that Member States shall grant ‘the right of residence in their territory’ to the persons referred to and that this right shall be ‘proved’ by the issue of a particular residence permit. It is stated in the preamble to Directive No 73/148 that the freedom of establishment can only be fully attained if ‘a right of permanent residence is granted to the persons who are to enjoy freedom of establishment’ and that freedom to provide services necessarily entails that the persons providing and receiving services shall be guaranteed ‘a right of residence for the time during which the services are being provided’.

Therefore the right of residence which arises directly from the provisions of the Treaty is an individual right attaching to the person of the Community national whether employed or self-employed. This right is in no way subject to the issue by the national authorities of a residence permit which only serves to prove an existing right and cannot be regarded as giving rise to this right. The reservation of public policy and security contained in Article 48 (3) and Article 56 (1) is not a condition precedent to the acquisition of the right of entry and of residence but, in individual and properly justified cases, makes it possible to restrict the exercise of a right deriving directly from the Treaty.

In these circumstances, in so far as they concern Community nationals, national rules may serve no other object than to enable a check to be kept on the presence on the territory of this privileged category of aliens and to ascertain their status as nationals of another Member State when the residence permits are periodically renewed.

What is the effect, in this respect, of the Belgian law relating to supervision of aliens?

I shall first examine the provisions relating to entry and residence of aliens on Belgian territory.

The basic provision is the Law of 28 March 1952, as amended by the Laws of 30 April 1964 and of 1 April 1969.

In principle Article 2 (A) provides that no alien may enter or reside in Belgium unless he is authorized to do so by the Minister of Justice in the manner set out in the Royal Decree, or unless he satisfies certain conditions laid out in particular in international agreements.

Further, by virtue of paragraph C, no alien may establish himself in the Kingdom without obtaining a permit from the Minister of Justice.

This article thus establishes a scheme of prior authorization. However the Royal Decree of 21 December 1965, amended in 1969, contains in Chapter III special provisions for nationals of Member States of the European Community which take account of the requirements of Community law.

Under Article 33 of the Decree, for these nationals entry into Belgium is only subject to possession of an official passport or identity card issued by the authorities of the State of which they are nationals.

As regards their establishment in Belgium, Article 39 provides that the ‘establishment permit’ required by the Law of 28 March 1952 shall be issued to them as of right. Therefore issue of this document merely serves to prove the existing right of residence guaranteed to them by Community law.

It is true that Article 38 provides that a registration certificate shall cover their residence in this country for the first three months from their date of entry into Belgium provided that they entered the country lawfully. This certificate is issued by the local administration when they declare their arrival. It may only be extended on one occasion for the same period of three months.

Although it is not prescribed by the Community directives, the requirements of this document may not be regarded as being contrary to the rules contained in the Community directives. It is justified by the practical necessity to reduce the period required for issuing the establishment permit but does not impose any condition precedent to the exercise of the right of residence which is guaranteed by Community law to the national of another Member State who established himself in Belgium in order to carry out one of the activities referred to in Articles 48 or 52 of the Treaty.

The obligation imposed by Article 15 of the Royal Decree that all aliens must be entered on the population registers at the local administration of their place of residence within eight days of their entry into Belgium if they intend to reside there for a longer period, is based on the provisions of the Law of 2 June 1856 on general censuses and the population registers. In the case of Community nationals it cannot be regarded as a condition precedent to their right of residence. In addition, infringements of this law are merely minor offences. They are punished by mere ‘peines de police’ (minor penalties in summary proceedings).

In these circumstances the fact that a national of a Member State of the Community failed to comply with this obligation and that he does not possess either a registration certificate or an establishment permit do not suffice to deprive him of the individual right of residence which he holds directly under the Treaty.

Certainly Community law does not prevent Member States from imposing appropriate penalties for failure to comply with national provisions relating to the control of aliens in order to ensure the effectiveness of these provisions. However, in view of the principle of non-discrimination enshrined in Articles 7 and 48 of the Treaty these penalties must not be in excess of those applicable to nationals of the Member State in question where they do not comply with the administrative requirements prescribed for cases of change of residence. In particular so serious a measure as arrest, detention for the purposes of removal or expulsion from the national territory appears to be out of proportion with the infringement with which Royer is charged; it is not a legitimate means of constraint against a person who has merely taken advantage of the right conferred on him by the Treaty to enter the territory of a Member State and to reside there even if that person failed to comply with the formalities concerned with the control of aliens.

Although the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, cannot be regarded as a Community measure whose direct application must be ensured by the national courts, under the supervision of this Court, it should be noted that Article 5 (1) (f) serves, if it were necessary, to confirm the conclusion which I think is inescapable.

2.

Nevertheless it must further be examined whether the fact of failure to comply with a requirement of registration under national law constitutes ‘personal conduct’ which is of such a nature as to justify, on grounds of public policy, a measure such as removal from the territory.

It must be remembered in the first place that under Article 3 (1) of Directive No 64/221 which applies both to employed and to self-employed workers, such measures may be based exclusively on the personal conduct of the individual concerned. Paragraph 2 provides that ‘previous criminal convictions shall not in themselves constitute grounds for the taking of such measures’. In the judgments of the Court in the Bonsignore case (Case 67/74, Bonsignore v Oberstadtdirektor der Stadt Köln [1975] ECR 297) and the Rutili case (Case 36/75, Rutili v Minister of the Interior [1975] ECR 1219) the Court ruled that the motive of ‘general prevention’ justifying the expulsion of a national of a Member State in order to dissuade other aliens from committing crimes similar to that committed by the party concerned was not compatible with Article 3 of this directive.

A number of criminal convictions in the State of residence or in the State of origin or in another State are certainly an important factor for consideration. Article 5 (2) of the directive provides for consultation in this respect between the competent authorities, obliging the Member State consulted to give its reply within two months. However these consultations must not be made as a matter of routine. Above all the factor constituted by a prior criminal conviction must be seen in the context of all the factors to be considered before an expulsion order or refusal of admission is adopted: such a measure must serve to punish anti-social conduct and grave and existing danger to public policy. Measures taken in respect of aliens on grounds of public policy must be exclusively based on the personal conduct of the individual concerned; in other words these measures must be individual in nature.

In view of what I have already said the failure to comply with the provisions relating to the control of aliens, even taken in conjunction with prior criminal convictions, cannot constitute prejudice to public policy and public security justifying so serious a measure as expulsion if the current behaviour of the alien in the State of residence has revealed nothing discreditable.

In this same contect Article 3 (3) of the directive provides that expulsion cannot be justified by the mere fact that the national identity card which authorized entry and residence or establishment has expired. Moreover under Article 3 (4) the State which issued the identity card undertakes to re-admit the holder without any formality even if the. nationality of the holder is in dispute. This serves to confirm the ancillary or subsidiary nature of the residence permit.

As regards the role of national administrative documents in relation to the rights conferred by the Treaty, a parallel may be drawn with the licences or certificates issued by the national authorities with regard to the movement of goods.

On 13 October 1970 the Bundesfinanzhof ruled that a goods movement certificate is not a document which creates rights but is merely a declaration whereby the authorities of the exporting Member State certify the correctness of certain information supplied by the exporter calculated to justify preferential treatment. Before that, on 12 August 1968, the Hessisches Finanzgericht had ruled that the provisions relating to the goods movement certificate are of a purely formal nature and cannot influence the course of commercial transactions in the Community.

Moreover, on 6 June 1972, the Court of Justice ruled in Case 94/71 (Schlüter and Maack v Hauptzollamt Hamburg-Jonas [1972] ECR 307) that the declaration which the exporter must make, and in particular the submission of an exit certificate, all sufficient evidence of the intention of the exporter to receive the refund and satisfy the requirements of the Community rules. Although for reasons of their administrative organization Member States may require exporters to submit in addition a request worded in the form prescribed by national law, nevertheless they cannot penalize a failure to comply with this obligation by depriving them of the right to a refund.

In addition, on 1 February 1972, in Case 49/71 (Hagen v Einfuhr- und Vorratsstelle für Getreide [1972] ECR 23) the Court ruled that an offer to the intervention agency which was originally incomplete could subsequently be completed.

(a)

The right of nationals of a Member State to enter upon the territory of another Member State and to reside there derives directly from Articles 48, 52 and 59 and from the provisions of Community law adopted in implementation thereof, irrespective of any residence permit issued by the host State;

(b)

The failure by nationals of a Member State to comply with the formalities for the control of aliens does not constitute a threat to public policy and public security and cannot, therefore, by itself justify a decision of expulsion or detention;