Rui Alberto Pereira Roque contra His Excellency the Lieutenant Governor of Jersey.

• Jurisdiction: European Union
• Celex Number: 61996CC0171
• ECLI: ECLI:EU:C:1997:425
• Docket Number: C-171/96
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 23 September 1997

Important legal notice

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61996C0171

Opinion of Mr Advocate General La Pergola delivered on 23 September 1997. - Rui Alberto Pereira Roque v His Excellency the Lieutenant Governor of Jersey. - Reference for a preliminary ruling: Royal Court of Jersey. - Freedom of movement for persons - 1972 Act of Accession - Protocol No 3 on the Channel Islands and the Isle of Man - Jersey. - Case C-171/96.

European Court reports 1998 Page I-04607

Opinion of the Advocate-General

I - The questions referred and their legislative background

1 The Royal Court of Jersey (the `Royal Court') has referred to the Court of Justice in these proceedings - which are the first in which a court of that island has used the cooperation mechanism established by Article 177 of the Treaty - the following questions for a preliminary ruling:

`(1) On the premiss that British citizens are not liable to immigration control in, or to be deported from, Jersey, does Article 4 of Protocol No 3 to the Act of Accession of the United Kingdom to the European Communities have the effect that nationals of another Member State are equally not liable to be deported from Jersey?

(2) If the answer to the first question is "No", does the said Article 4 prohibit the competent authorities in Jersey from deporting a national of another Member State save where such deportation is justified on grounds of public policy, public security or public health?

(3) If the answer to the second question is "Yes", does the said Article 4 prohibit the competent authorities of Jersey from deporting a national of another Member State from Jersey where the considerations of public policy applied by those authorities would not in practice lead to the deportation of that person from the United Kingdom?'

2 In order to gain a proper understanding of those questions, let alone answer them, it is necessary first to consider both the constitutional law links which the Bailiwick of Jersey has with the United Kingdom of Great Britain and Northern Ireland and also the status of Jersey in international law, both before and after the accession of the United Kingdom to the European Communities in 1973. (1)

3 The Bailiwick of Jersey comprises, in addition to the island of the same name, the islets of Les Minquiers and Les Ecréhos. Like the other British islands, (2) it is neither a part nor a colony of the United Kingdom. (3) Instead it is a dependency of the British Crown, (4) whose constitutional relationship (or modus vivendi) with the United Kingdom has developed in a form which cannot be fitted into a rigid framework, (5) based as it is on an unusual and delicate balance between monarchical rights and the responsibilities of the island authorities for self-government. (6) Jersey enjoys a large measure of legislative, administrative and judicial autonomy in relation to the United Kingdom. (7)

4 Furthermore, Jersey and the other British islands do not have international personality (understood as the power to act independently) and thus constitute, for international law purposes, mere territorial subdivisions of the United Kingdom. (8) Whilst that conclusion appears at first sight to be incompatible with the above observations on the relations between Jersey and the United Kingdom in terms of internal constitutional law, the contradiction is merely apparent. The unusual constitutional position reserved for the British islands may be regarded merely as a form of self-government laid down by the domestic constitution of the United Kingdom in relation to a part of its own national territory. (9)

As stated earlier, (10) the conduct of and responsibility for the international relations of the British islands belong to the Crown, which acts through the Government of the United Kingdom.

Under public international law, treaties - together with all the acts whereby each State expresses its intention to become party to them: signature, ratification, accession - are presumed to apply not only to national territory, but to all territories for whose international relations each contracting State is responsible, save where that presumption is superseded by an express or implied limitation in the territorial scope of the agreement (such as could result, for example, from a clause conferring on the parties the power to apply the agreement to certain dependent territories). (11)

However, before concluding international agreements which apply to the British islands - particularly when such application requires the adoption of new legislation in areas normally within the purview of the islands' legislative organs - the British Government does not fail, in practice, to consult the island authorities. (12)

5 In particular, and so far as is relevant for the purposes of this Opinion, the central authorities did, for example, consult the local authorities after the United Kingdom's application for accession to the European Communities, which was formally submitted in 1967. The question whether Jersey and the other British islands should join and become part of the Communities, or remain outside (whilst the United Kingdom joined the Communities in any event) raised a series of problems, especially on account of the smallness of the islands, their proximity to the Continent and their close economic links with the United Kingdom (and, to a lesser extent, France). It was a question, in particular, of determining what impact the United Kingdom's accession would have, in the event that the British islands did, or did not, contemporaneously join: (i) upon the special protection enjoyed by the islands' horticultural and agricultural industries, (ii) upon their traditional fiscal and customs privileges, (iii) upon measures for promoting financial activities on the islands, centred on strict banking secrecy and low rates of taxation, and (iv) upon local tourist businesses of a seasonal character, particularly in relation to immigration control and social security. (13)

6 Under Article 227(4) of the EC Treaty (`the Treaty'), `the provisions of this Treaty shall apply to the European territories for whose external relations a Member State is responsible'.

As a result of that provision, the accession of the United Kingdom to the European Communities would normally necessarily have implied the full applicability of the Treaty in the British islands as well, including Jersey. (14)

7 However, by Article 26(3) of the Act concerning the Conditions of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the European Communities and the Adjustments to the Treaties (`the Act of Accession'), (15) a new Article 227(5) was added, which ambiguously states: `Notwithstanding the preceding paragraphs: (...) (c) this Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.'

8 The special arrangements for the British islands, referred to in Article 227(5) of the Treaty, are those laid down by Protocol No 3 to the Act of Accession on the Channel Islands and the Isle of Man (`the Protocol'). The Protocol is attached to the Act of Accession and forms an integral part thereof (Article 158 of the Act of Accession).

As is well known, the solution to the problems referred to above (see point 5) which prevailed in the negotiations for the entry of the United Kingdom to the Communities was to grant generous derogations from application of the Treaty in full. As a result, the provisions of the Treaty not specifically mentioned in the Protocol are inapplicable to the British islands. (16)

9 The Protocol provides that the Channel Islands and the Isle of Man are included in the Community customs union, but excluded from the scope of the common agricultural policy. (17) Article 1 of the Protocol states that the Community rules on customs matters and quantitative restrictions are applicable to the British islands `under the same conditions as they apply to the United Kingdom'. (18)

In the case of agricultural products which are the subject of a special trade regime, Article 1 provides that (i) levies and other import measures in relation to third countries laid down in Community rules and applicable by the United Kingdom and (ii) Community rules `necessary to allow free movement and observance of normal conditions of competition in trade in these products' are to be applicable in the British islands.

10 On the sensitive issue of freedom of movement for persons, Article 2 of the Protocol provides that `the rights enjoyed by Channel Islanders or Manxmen in the United Kingdom shall not be affected by the Act of Accession. However, such persons shall not benefit from Community provisions relating to the free movement of persons and services'.

That provision is to be read in conjunction with Article 6 of the Protocol, which provides that `in this Protocol, Channel Islander or Manxman shall mean any British citizen (19) who holds that citizenship by virtue of the fact that he, a parent or grandparent was born, adopted, naturalised or registered in the island in question; but such a person shall not for this purpose be regarded as a Channel Islander or Manxman if he, a parent or a grandparent was born, adopted, naturalised or registered in the United Kingdom. Nor shall he be so regarded if he has at any time been ordinarily resident in the United Kingdom for five years.' (20)

11 Finally, by a brief provision in Article 4, the Protocol lays down a general principle of non-discrimination: `The authorities [of the British islands] shall apply the same treatment to all natural and legal persons of the Community.'

12 In addition to the legislative context of...