1. 

The Community provisions which the Court has been requested to interpret in these proceedings for a preliminary ruling are Articles 8 and 9 of Council Directive No 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. In considering those provisions regard must be had for the basic principles of a fair hearing which are to be inferred from Article 6 of the European Convention for the Protection of Human Rights since the point at issue is what procedures must be made available to nationals of Member States who have been ordered to leave the territory of a Member State other than their own in which they are residing or have requested permission to settle.

The facts of the case can be summarized as follows.

Mrs Josette Pecastaing, a French national, entered Belgium in October 1977 and took up residence in Awans. On 8 November 1977 she applied to the Belgian authorities for permission to settle in Belgium in order to work as a waitress in a bar or café. The Public Security Administration, by a document dated 3 May 1978, which was notified to the plaintiff on 16 May 1978, refused that request stating that her conduct rendered her residence in Belgium undesirable for reasons of public policy. In the statement of reasons for the measure rejecting her application it is stated inter alia regarding the conduct of Mrs Pecastaing: “In Belgium she has worked in a bar which is suspect from the point of view of morals. Since mid-January 1978 she has no longer had any means of supporting herself, the employer's certificate that has been submitted being considered to have been issued as a favour. In France and Germany: she has been reported for prostitution.”

In addition to refusing the plaintiff permission to take up residence in Belgium, the measure in question ordered her to leave the country within 15 days and added that her “failure to comply” with the order “would render her liable, subject to any legal proceedings, to arrest and imprisonment and to her transport to the frontier by the public authorities”.

On 24 May 1978, that is within eight days of being notified of the abovementioned measure, Mrs Pecastaing applied to the Ministry of Justice to have her case considered by the Consultative Committee for Aliens under Article 3 a of the Law of 28 March 1952, as amended by the Law of 1 April 1969. After a series of delays the Committee considered her case at its meeting of 14 December 1978, at which the plaintiff was present, and upheld the refusal of the administrative authority to grant her a residence permit. It stated the reasons for its opinion as follows: “Personal conduct which renders her residence harmful for reasons of public policy. She has worked in a bar which is suspect from the point of view of morals. The employer's certificate that has been submitted is considered to have been issued as a favour. In France and Germany she has been reported for prostitution in 1977.”

After that procedure the Public Security Administration notified Mrs Pecastaing, through the mayor of her place of residence, of the confirmation of its refusal to grant her the residence permit which had already been notified to her on 16 May 1978 and of a new order to leave the country within 15 days. That decision was notified to her on 23 January 1979.

By a writ dated 9 March 1979 Mrs Pecastaing instituted proceedings against the Belgian State before the Tribunal de Première Instance [court of first instance], Liège, claiming that the court should set aside the explusion order on the grounds that it was unlawful and, in particular, that it was contrary to Community law, and that the Belgian State should be ordered to pay damages for the loss suffered by the plaintiff as a result of that unlawful act. At the same time the plaintiff requested the President of the court before which the proceedings had been instituted to suspend the effect of the contested measure.

In the course of the latter proceedings the President of the Tribunal de Première Instance, Liège submitted to the Court of Justice two groups of questions based on the judgment of the Court of 8 April 1976 in Case 48/75,Royer ([1976] ECR 497), in particular, the fourth paragraph of the operative part of that judgment. The Court of Justice ruled in that case that “a decision ordering expulsion cannot be executed, save in cases of urgency which have been properly justified, against a person protected by Community law until the party concerned has been able to exhaust the remedies guaranteed by Articles 8 and 9 of Directive No 64/221”. The questions put by the Belgian court essentially raise two problems. The first concerns the suspensory effect of applications submitted by persons protected by Community law against measures ordering explusion or more precisely against the refusal to issue the initial residence permit and against the expulsion order: the national court appears to be persuaded that as the applications for the annulment or withdrawal of the administrative measures in question fall under Article 8 of the directive they invariably have suspensory effect and it accordingly asks whether this also applies in the case of different legal proceedings such as an action concerning the civil liability of a State which has adopted a measure against an alien. In this connexion the court refers both to the abovementioned passage from the decision in the Royer case and to the fundamental right of a person to a fair hearing; it puts forward the view that the latter entails not only the actual right of such a person to institute proceedings before the courts of another Member State but also his right to remain, despite the expulsion, on the territory of the State whose measure he is challenging whilst the case is pending. The second problem is submitted in relation to expulsion orders of an urgent nature: the Belgian court raises the question whether such measures may be executed despite the lodging of an application and whether the decision whether the case is urgent is exclusively a matter for the authority ordering the expulsion or, in case of dispute, for the court before which the administrative order has been challenged.

2. 

Before beginning to examine these problems it should, I think, be emphasized that the law governing the matter in dispute still remains based on Directive No 64/221 and it is not possible to regard that as having been overtaken by the subsequent case-law of the Court of Justice as appears to be suggested in the submissions of the plaintiff in the main action and by the agent of the Commission. In the said Royer case the Court of Justice indeed stated in very clear terms that “the right of nationals of a Member State to enter the territory of another Member State and reside there ... is a right conferred directly by the Treaty or, as the case may be, by the provisions adopted for its implementation” and accordingly “independently of the issue of a residence permit by the competent authority of a Member State” (paragraphs 31 and 32 of the decision). That statement today constitutes without doubt the key to a proper understanding of the legal situation of a national of a Member State who moves to another country in the Community. At the same time however it must be recognized that the system set up by Directive No 64/221 is still in force and must be applied until any new Community provisions are adopted. The role of trie courts in dealing with a situation of this nature is necessarily limited : they are required to interpret the provisions in force whilst endeavouring to adapt them to the developments in the system and the changing requirements of the community. The Court of Justice has already adopted this method in its judgment in the Royer case and there is no reason to depart from it.

3. 

Articles 8 and 9 of Directive No 64/221 correspond to the objective that “in each Member State, nationals of other Member States should have adequate legal remedies available to them in respect of the decisions of the administration” concerning the right of residence (cf. the third recital in the preamble to the directive). In order to attain this objective it is provided in Article 8 that each Member State must from the outset recognize the right of nationals of other Member States of “the same legal remedies ... as are available to nationals of the State concerned in respect of acts of the administration” against decisions relating to their entry into the territory, refusal to issue or renew a residence permit or an expulsion order.

It is clear that that article is in accordance with the notion that nationals and aliens who are nationals of other Community countries shall be treated in every way as equals but it does not oblige the Member States to introduce into their respective legal systems any remedy against administrative acts which they have not already adopted and made available to their nationals. There is accordingly even less reason to consider that they are required to give suspensory effect to existing remedies or to remedies against the decisions listed above concerning aliens. Clear confirmation of this view is furthermore provided by Article 9 (1) which establishes, as we shall see, an appropriate procedure intended to apply (inter alia) where an application to the courts does not have suspensory effect. In the light of that provision it cannot be doubted that the possibility that appeals to the courts do not have suspensory effect is permitted and is in accordance with the general scheme of the directive.

The function of Article 9 might be described as to complement what is granted by Article 8. In fact, the Community legislature intended to compel the Member States to introduce minimum procedural guarantees for the protection of aliens where such provisions were absent from their respective legal systems. It is clear that the mere application of the principle of nondiscrimination was not considered capable of providing adequate protection for the interests of the nationals of the Member States in this matter. Three instances are therefore set out in which the guarantee provided by national treatment is considered insufficient: where there is no right of appeal to a court of law against the abovementioned decisions, where such appeals may be only in respect of the legal validity of the decision (excluding review of the substance) or where they cannot have suspensory effect. The last case was the focus of attention of the national court since it corresponds to the present situation under Belgian law which permits aliens (in accordance with Article 8 of the directive) to challenge expulsion orders before the Conseil d'État [Council of State] or before the ordinary courts (in connexion with a claim for damages) but does not conver suspensory effect on either of these judicial remedies.

In the three cases set out in Article 9 the directive provides that the measure adversely affecting the alien must be considered by an administrative authority other than that empowered to enact the measure and provides that the person concerned is there entitled to present his defence.

In the case of a refusal to renew a residence permit or an expulsion from the territory of persons who have already obtained such a permit the decision cannot be taken until the matter has been submitted for consideration as mentioned above or until the administrative authority has issued its opinion, save in cases of urgency. Refusals to issue the initial residence permit and measures ordering the expulsion of persons who have not obtained one, on the other hand, are decided on without such an opinion being automatically required but the procedure for reconsideration must be followed where it is requested by the person concerned who is then permitted to submit his defence in person (except where this would be contrary to the interests of national security).

The fact that the particular form of protection prescribed by Article 9 constitutes a remedy for those cases in which the national system does not provide that appeals to the courts of law have suspensory effect indicates that it should be recognized that the consultative procedure which I have just described has suspensory effect. In other words it would be illogical for the directive to require the Member States to institute that procedure whenever the appeals to the courts already provided for in the legal system do not have suspensory effect and at the same time to permit the issue of an expulsion order (or the other orders mentioned above) without awaiting the outcome of the procedure. On this point the Court set out its views clearly in the said decision in the Royer case when it ruled (paragraph 61 of the decision) that where a legal remedy referred to in Article 8 is not available, or “where it is available but cannot have suspensory effect, the decision cannot be taken — save in cases of urgency which have been properly justified — until the party concerned has had the opportunity of appealing to the authority designated in Article 9 of Directive No 64/221 and until this authority has reached a decision”. I consider that this case-law should be upheld.

With the judgment in the Royer case still in mind it is possible to attempt to reconstruct the logical basis of the relationships between Articles 8 and 9 of Directive No 64/221. An appropriate starting point is the first alternative set out in the said paragraphs 60 and 61 of the decision: the legal system of a Member State may make provision for appeals to the courts of law with suspensory effect or make no provision for appeals with such effect (or make no provision for such appeals whatsoever). In the first case the person concerned must be permitted to submit his appeal before the expulsion order becomes definitive so that it may be suspended (cf. also paragraphs 56 to 59 of the decision). In the second case, as we have seen, the person concerned must be able to avail himself of the guarantee provided in the procedure prescribed by Article 9 and the expulsion order cannot take effect until the administrative authority charged with considering (or reconsidering) the matter has given its opinion. Only if the difference between the two alternative legal situations described above is not forgotten is it possible to obtain a precise understanding of the significance of the Court's statement that the safeguard of the right of appeal against decisions ordering expulsion or similar measures “would become illusory if the Member States could, by the immediate execution of a decision ordering expulsion, deprive the person concerned of the opportunity of effectively making use of the remedies which he is guaranteed by Directive No 64/221” (paragraph 56 of the decision).

Furthermore, only if the distinction between the two situations described is clear can the proper significance be recognized of paragraph 4 of the operative part of the decision in the Royer case in which the remedies provided for in Articles 8 and 9 of the directive are considered together and it is ruled that it is not possible to prevent such remedies being exhausted by executing the expulsion order without delay.

We have already seen that it was precisely paragraph 4 of the operative part of the judgment in the Royer case that the Belgian court requesting a preliminary ruling adopted as the basis for its questions. Nevertheless, it is clear, if the abovementioned considerations are taken into account, that that court has misinterpreted the Royer judgment in inferring from it the principle that the legal remedies referred to in Article 8 of the directive invariably have suspensory effect. In fact it is one thing to require that the person concerned should be able to make use of legal remedies and not be prevented from doing so by the immediate execution of an expulsion order but quite another to hold that all appeals to the courts carry suspensory effect (which would entail a stay of execution of that order pending the final decision on the appeal). The Court of Justice has not given any ruling of this nature: this is established by the fact that in accordance with Directive No 64/221 it ruled in the Royer case on the hypothesis in which appeals to the courts do not have suspensory effect (paragraph 61 of the decision).

I must accordingly emphasize that, in pursuance of Articles 8 and 9 of the said directive, both appeals which may be instituted before the administrative courts to obtain the annulment of the contested measure and those which can be instituted before the ordinary courts to obtain compensation for the harm arising from an improper administrative measure have the effect of suspending the contested measure only if this is so under national law. On the other hand the protective measures provided for by Article 9 (2) of the said directive, like the procedure for obtaining an opinion provided for in Article 9 (1), have the effect of suspending the expulsion order which cannot be confirmed (in the case referred to in paragraph (2)) or taken (in the case referred to in paragraph (1)) unless the appropriate administrative authority has delivered its opinion.

4. 

At this point I should like to consider in detail the salient features of the administrative procedure referred to in Article 9 (2) of Directive No 64/221 and to clarify the conditions which must be met by the Member States in complying with the provision in question if that procedure is to be considered an adequate legal remedy for the purposes of the third recital of the preamble to the directive.

I observe first of all that any national practices intended to deprive the procedure in question of suspensory effect by restricting that effect only to the cases envisaged by Article 9 (1) are undoubtedly contrary to Community law. Even if Article 9 (2) does not contain any express provision concerning suspensory effect, it appears to me that the article must be read as a whole in view of the fact that the interests referred to in Article 9 (1) and (2) are homogenous and coincide to a large extent. In any case I have already had occasion to point out that the objective of Article 9 was to make good certain defects in the national legal systems — in particular the failure to provide that appeals to administrative authorities or the courts have suspensory effect — and therefore the procedure under Article 9 (2) would not serve the purpose for which it was intended if it lacked suspensory effect.

Thus, when the person concerned requests the authority referred to in Article 9 (1) to consider his case, the expulsion order (or refusal to issue the initial residence permit) cannot be executed until he has received notification of an opinion of that authority concurring with the views of the public security agency which adopted the measure.

With regard to the position and functions of the administrative authority mentioned in Article 9 (1) where it considers the request described in paragraph (2) of that article I would observe that the latter provision does not set out clearly whether the authority in question is required to issue an opinion or a decision properly so-called. In my view, however, the relationship between the two paragraphs of Article 9 shows that it only has an advisory function. It is significant in particular that paragraph (2) uses the expression “the authority whose prior opinion is required under paragraph (1)” and refers to “consideration” without specifying any power of decision. Of even greater weight is the fact that that authority has an advisory function in the procedure laid down in paragraph (1) in relation to decisions “refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory ...”; that procedure encompasses interests of greater significance since it concerns individuals who have already in fact settled in the country from which it is intended to expel them. It accordingly seems reasonable to hold that in both cases the second authority was envisaged as having a purely advisory rôle; a different interpretation affording greater protection precisely to relatively minor interests would be illogical.

A third aspect which must be emphasized is that of the independence of the authority required to consider the matter in its advisory capacity from the authority which is empowered to take the decision. That is the interpretation which must be given to the second sentence of Article 9 (1) in which it is stated that that authority “shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering expulsion”. It appears to me in fact that the two authorities, that which powers of decision and that with advisory functions, are separated in order to ensure the impartial supervision of the decisions of the authority competent to take the measure ordering expulsion (or similar measures). It should not be forgotten that the procedure under Article 9 (2) constitutes a supplement to appeals to the courts so that from this point of view also it appears reasonable that its organizational structure should be similar to that of the judicial procedure and thereby guarantee the independence of the body required to consider the contested measures even if that review results only in the issue of an opinion. In my view for there to be a real distinction between the two authorities and accordingly for them to be independent of each other it is essential that the person or persons comprising the advisory body should have no links whatsoever with the authority required to take the decision. I consider for example that it would be incompatible with service in a body of this type to hold a position as an employee (in active service) of the administration which is required to take the ultimate decision. Neither the circumstance that the members are appointed by an authority other than that which must take the decision nor the fact that in exercising their advisory duties they are not subordinate to the administration, of which they are established officials, appears to me a sufficient guarantee of the independence of the body. Only the absence of any dependent relationship between the persons constituting the body and the administration required to take the decision can, in my view, provide a sufficient guarantee of real independence.

One final aspect of the procedure envisaged by Article 9 of the directive which should be clarified is that of the right of defence. Article 9 (2) provides that “the person concerned shall ... be entitled to submit his defence in person, except where this would be contrary to the interests of national security ...”. I consider that the submission of a defence must entail, for the person concerned, access, either in person or through his lawer, to the file on the case. That right constitutes an essential element of the defence in view of the fact that only with precise knowledge of all the factors on the basis of which the administration adopted its measure is it possible to present a precise and effective defence. The sole circumstance which may limit access to the file is the possible existence of “interests of national security” as may be inferred from the last part of Article 9 (2).

A procedure in accordance with the interpretation of Article 9 which I have just suggested seems to me appropriate to fulfil the function assigned to it under Community law within the context of the remedies made available to nationals of Member States against orders expelling them from another Member State. In this connexion it should be emphasized that that function is complementary to appeals to the courts which do not automatically have suspensory effect and serves essentially to ensure review of the expulsion order with the participation of the persons concerned as well as suspending the execution of that decision, albeit of necessity for a limited time.

5. 

I do not think that the solution which I favour can be called in question on the basis of Article 6 of the European Convention on Human Rights and the right to a fair hearing which it guarantees. In this connexion we have seen that the Belgian court has expressly referred to that right and has raised the point whether it entails the need to recognize that a national of a Member State has the right of “personal access” to the courts of any other Member State and perhaps the further right to remain in the State against which proceedings have been instituted for the duration of those proceedings.

I should like to make clear first of all that according to the decisions of the European Commission of Human Rights the right to a fair hearing, recognized by Article 6 of the Convention, relates only to criminal and civil proceedings and thus excludes administrative proceedings (cf. X, Y, V& W v United Kingdom, Application No 3325/67 of 15 December 1967, Yearbook of the European Convention on Human Rights, Vol. 10, pp. 337 & 339; Church of X v United Kingdom, Application No 3798/67 of 17 December 1968, Yearbook, Vol. 12, p. 317). The question must therefore be raised whether Article 6 is applicable to appeals to the courts submitted by individuals in order to enforce against a national administration their right of residence under the Treaty of Rome. At first sight the reply turns on whether the remedies available to the person concerned in the relevant field are of a civil or administrative nature. Nevertheless I should be inclined to reply in the affirmative on the view that the position relied on constitutes an individual right properly so-called whilst the European Commission of Human Rights appears to consider, in my view correctly, that the individual legal situations relied on before the courts can be classified as “administrative” and accordingly the procedure in accordance with the principles referred to in Article 6 does not apply to them only if such situations come within the discretionary power of appraisal of the public authority (cf. decision of the Commission on the said Application No 3798/67).

On the basis of the foregoing I consider that the most recent tendency of the European Court of Human Rights is undoubtedly to recognize the right to apply to the civil courts as an individual right not expressly envisaged by Article 6 of the Convention but ensuing from its general logical structure (the judgment of the European Court of Human Rights of 24 February 1975 in the Golder case is very significant in this respect, Series A, No 18). Nevertheless, between the right to apply to a court and the right to appear in person before it there exists a difference which must not be

overlooked. In fact in their decisions that court and the Commission of Human Rights hesitate to state that a party has a right to appear in person in civil proceedings and seem rather to tend towards the view that no general rule can be perceived and that the point must instead be settled in each case as it arises. In substance the right to appear should be recognized whenever, having regard to the circumstances of the case, the presence in person of the party is necessary for the effective conduct of his defence.

It appears to me possible that a solution of this nature which relates the personal appearance to the right of defence could also be acceptable in Community law. We have seen, however, that the Belgian court goes still further, considering that the right to a fair hearing also entails the right to remain in the country where the procedure takes place for the entire duration of the proceedings. I do not concur with that view: such a right cannot in fact be justified by making further reference to the requirements of the defence as in the case of the right to appear in person. The truth is that by means of the alleged right to remain in the State for the entire duration of the procedure it is intended to produce an effect under substantive law: namely to allow the individual to remain in the State from which it is desired to expel him in order to avoid the adverse effects of a change of residence for which, it is maintained, full compensation cannot be given if he is ultimately successful. That would amount to interposing an obstacle to the possibility of executing the expulsion order on the basis of a right which has a much wider scope and which, in the general terms in which it must be considered, does not entail the desired result.

6. 

Nor, in my view, is the result I have accepted regarding Articles 8 and 9 of Directive No 64/221 at variance with the notion that the right enjoyed by Community nationals under the Treaty to reside on the territory of any other Member State constitutes an individual right. I am in fact not persuaded by the argument set out in this connexion in the Commission's submissions to the effect that the existence of a right implies in any case the requirement that it should be protected by the courts with the corollary that an application to the courts should automatically have suspensory effect. In my view it is arbitrary to argue that absence of suspensory effect amounts to failure to provide legal protection. Even if it were admitted that it must always be possible to protect individual rights created by the Treaty directly in favour of individual persons through proceedings before a judicial authority it does not appear possible to infer from that that such protection is deficient whenever an alien served with an expulsion order is not permitted to block the execution thereof merely by instituting counterproceedings. Protection of the actual position of a person who is temporarily in another Member State is in fact ensured by a more flexible and swift procedure although it does not have the same force as an application to the courts; that procedure consists in the requirement of a review within the administration and a suspension of the expulsion order only until the completion of the advisory procedure. On the other hand the fact that the expulsion order is executed is no bar to an application to the courts and accordingly does not rule out the possibility that, as a result of such an appeal, the right of the applicant to reside in a Member State of which he is not a national may be recognized.

The more limited effect of the protection afforded by the maintenance, for the duration of the appeal procedure, of the situation existing at the time when the expulsion order is served is justified by considerations of the general interest in defence of which the State may refuse to grant the right of residence. As the Court is aware that interest comprises grounds of public- policy, public security and public health which are expressly recognized in the Treaty (the opening words of Article 48 (3)) and are intended to restrict the scope of the said right. It is entirely usual and proper that the interest of an individual to retain his own position unaltered during the appeal should give way before reasons of that nature, albeit subject to certain limits and with the provision of certain essential assurances to ensure, as we have seen, that the position of the alien is examied twice by different authorities and that the explusion order is suspended accordingly.

Furthermore the need for different degrees òf protection to safeguard the actual position of the alien is confirmed in particular by Directive No 64/221 itself, Article 9 (1) of which states that the special administrative procedure there provided for “in cases of urgency” shall not have suspensory effect. It is important to recall that the Court of Justice, in its judgment in the Royer case, expressly referred to that exception without calling in question whether it was in accordance with the Treaty (cf. paragraph 61 of the decision).

7. 

It remains to consider the second group of questions: it is necessary, therefore, to establish whether an expulsion order can be executed, in a case of urgency, even after an application has been made to a court and whether it is solely for the administrative authority to decide whether a case is urgent or whether, once an application has been submitted, the court dealing with the matter has jurisdiction over this point.

I observe first of all that, once it is accepted that under Directive No 64/221 the submission of an application to a court does not automatically have the effect of suspending the contested administrative measure, it is clear that the national authority is not prevented from executing its own order by the mere fact that an application has been lodged. In this regard the fact that execution may be urgent is of no particular relevance. With regard to the procedure prescribed by Article 9, however, execution prior to the issue of an opinion by the appropriate authority can be justified only in cases of urgency. This is stated expressly in Article 9 (1) and the same rule must be understood as applying to the case envisaged in Article 9 (2).

Accordingly the presence of urgency makes it possible for the expulsion order in both cases to be executed before delivery of the opinion of the advisory authority with power to examine (or reexamine) the order. The Court of Justice, in its judgment in the said Royer case, recognized that this is lawful and merely required that the urgency should be “properly justified”. I do not consider that there are grounds for departing from this view.

With regard to determining the body competent to assess whether a case is urgent when an application to a court is pending I consider that the same authority which is competent to issue the expulsion order should have power to assess the urgency. The decision is in fact closely related to the decision to order the expulsion and it would be very artificial to separate the two decisions on the sole ground that an application is pending. It is moreover a characteristic administrative decision and it does not appear to me reasonable to transfer it to the courts. The latter may be required to review subsequently the decision of the administrative authority where the person concerned applies to the courts in the ordinary appeal procedure.

8. 

In conclusion I suggest that the Court should give the following reply to the questions submitted to by the President of the Tribunal de Premiere Instance, Liège, by an order dated 18 June 1979: