Procedimento penal entablado contra Florus Ariël Wijsenbeek.

• Jurisdiction: European Union
• Celex Number: 61997CC0378
• ECLI: ECLI:EU:C:1999:144
• Docket Number: C-378/97
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 16 March 1999

Important legal notice

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61997C0378

Opinion of Mr Advocate General Cosmas delivered on 16 March 1999. - Criminal proceedings against Florus Ariël Wijsenbeek. - Reference for a preliminary ruling: Arrondissementsrechtbank Rotterdam - Netherlands. - Freedom of movement for persons - Right of citizens of the European Union to move and reside freely - Border controls - National legislation requiring persons coming from another Member State to present a passport. - Case C-378/97.

European Court reports 1999 Page I-06207

Opinion of the Advocate-General

I - Introdution

1 In the present case the Court is requested under Article 177 of the EC Treaty to rule on questions submitted by the Arrondissementsrechtbank (District Court) te Rotterdam (Netherlands) with regard to the interpretation of Articles 7a and 8a of that Treaty. That court seeks to ascertain whether these fundamental provisions of primary Community law should be interpreted and applied as meaning that they prohibit national legislation requiring a person, even one who is a citizen of the European Union, to present a passport when crossing internal Community frontiers and imposing criminal penalties if that provision is infringed. This case is of particular interest in that it offers the Court an opportunity to interpret the content and effects in law of Articles 7a and 8a of the EC Treaty on the basis of a systematic approach and, by extension, to make a current and global examination of the question of the freedom of movement for persons as it presents itself after the successive revisions of primary Community law.

II - The facts and the questions submitted for a preliminary ruling

2 The facts in the main proceedings are simple. In criminal proceedings in the Netherlands, Mr Wijsenbeek, a Netherlands national, is accused of having refused, upon arrival at Rotterdam airport (1) on 17 December 1993 on a scheduled flight from Strasbourg, to present his passport to the national office responsible for border controls in accordance with the national legislation in this regard. It should be noted that the accused did not refuse to give his name, place and date of birth and address and that he presented a Belgian driving licence to confirm these facts; he did not, however, present an identity card or passport that would have established his nationality, as required by national legislation.

3 Mr Wijsenbeek acknowledges the facts on which the prosecution is based. However, he denies that he has committed an offence. He maintains that in his particular circumstances the carrying out of a check, as required by Article 25 of the Netherlands Aliens Order, when a frontier is crossed is contrary to Articles 7a and 8a of the EC Treaty. He relies in particular on the abovementioned provisions of Community law and his status as a citizen of the European Union and maintains that these provisions give him the right to move freely and to cross the internal frontiers of the Community without being obliged to present an identity card or passport and without being required to provide proof of nationality.

4 By judgment of 8 May 1995 the court of first instance (the Kantonrechter) (Cantonal Court) ordered Mr Wijsenbeek to pay a fine of NLG 65 or to serve one day's imprisonment for infringement of Article 25 of the Aliens Order. Mr Wijsenbeek appealed against that decision to the Arrondissementsrechtbank te Rotterdam. That court, considering that the conduct of the accused cannot attract criminal penalties if Articles 7a and 8a of the EC Treaty prohibited compulsory passport checks at the internal frontiers of the Community, decided by order of 30 October 1997 to stay proceedings and referred the following questions to the Court for a preliminary ruling:

`1. Are the second paragraph of Article 7a of the EC Treaty, which provides that the internal market is to comprise an area without internal frontiers in which the free movement of persons is ensured, and Article 8a of the EC Treaty, which confers on all citizens of the Union the right to move and reside freely within the territory of the Member States, to be interpreted as precluding national legislation of a Member State imposing an obligation, accompanied by criminal penalties for failure to comply, on persons (whether or not citizens of the European Union) to present a passport on entry into a Member State whenever that person enters the Member State through the national airport coming from another Member State?

2. Does any other provision of Community law preclude such an obligation?'

III - Law applicable

A - The national provisions

5 The Vreemdelingenbesluit (Netherlands Aliens Order) (2) provides that:

`Netherlands nationals who leave or enter the Netherlands must, on request, present and hand over to an official charged with border inspections the travel and identity papers in their possession and establish if necessary by any other means their Netherlands nationality.

This order is made pursuant to Article 3, paragraph 1, introductory subparagraph and subparagraph (b), of the Aliens Law and any infringement is punishable in accordance with Article 44, first paragraph, of that Law.'

6 Under Article 44 of the Vreemdelingenwet (Aliens Law), (3) any infringement of the Aliens Order is punishable by a criminal penalty entailing a prison sentence of a maximum of six months or a second-category fine. Article 23(3) of the Wetboek van Strafrecht (Netherlands Penal Code) provides that a second-category fine is not to exceed NLG 5 000.

B - The Community provisions

(a) The provisions of the EC Treaty

7 Article 3 of the EC Treaty provides:

`For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:

...

(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital,

(d) measures concerning the entry and movement of persons in the internal market as provided for in Article 100c,

...'.

8 Article 7a of the EC Treaty provides:

`The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992, in accordance with the provisions of this Article and of Articles 7b, 7c, 28, 57(2), 59, 70(1), 84, 99, 100a and 100b and without prejudice to the other provisions of this Treaty.

The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.'

9 Article 8a of the EC Treaty provides:

`1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

2. The Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1; save as otherwise provided in this Treaty, the Council shall act unanimously on a proposal from the Commission and after obtaining the assent of the European Parliament.'

(b) Declarations in the context of the Single Act

10 When the Final Act to the Single European Act was signed on 17 and 28 February 1986, the Conference of the Representatives of the Governments of the Member States adopted a number of declarations annexed to the Final Act. Two of these declarations are likely to be relevant to the present case.

11 The declaration on Article 8a (4) is worded as follows:

`The Conference wishes by means of the provisions in Article 8a to express its firm political will to take before 1 January 1993 the decisions necessary to complete the internal market defined in those provisions, and more particularly the decisions necessary to implement the Commission's programme described in the White Paper on the Internal Market.

Setting the date of 31 December 1992 does not create an automatic legal effect.'

12 The general declaration on Articles 13 to 19 of the Single European Act is worded as follows:

`Nothing in these provisions shall affect the right of Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries, and to combat terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques.'

13 The Conference also `noted' a number of declarations annexed to the Final Act, including the political declaration by the Governments of the Member States on the free movement of persons, which stated:

`In order to promote the free movement of persons, the Member States shall cooperate, without prejudice to the powers of the Community, in particular as regards the entry, movement and residence of nationals of third countries. They shall also cooperate in the combating of terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques.'

(c) Secondary legislation

14 Article 3(1) of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (5) and of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (6) provides:

`Member States shall allow the persons referred to in Article 1 to enter their territory simply on production of a valid identity card or passport.'

15 These directives related to workers and the members of their families and to persons exercising their right freely to provide services. The range of persons covered was widened by Council Directive 90/364/EEC of 28 June 1990 on the right of residence, (7) Council Directive 90/365/EEC of 28 June 1990 on...