Hristo Byankov v Glaven sekretar na Ministerstvo na vatreshnite raboti.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 04 October 2012

JUDGMENT OF THE COURT (Second Chamber)

4 October 2012 ( *1 )

‛Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Directive 2004/38/EC — Article 27 — Administrative prohibition on leaving the territory on account of failure to pay a debt owed to a private legal person — Principle of legal certainty with regard to administrative acts which have become final — Principles of equivalence and effectiveness’

In Case C-249/11,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Administrativen sad Sofia-grad (Bulgaria), made by decision of 9 May 2011, received at the Court on 19 May 2011, in the proceedings

Hristo Byankov

v

Glaven sekretar na Ministerstvo na vatreshnite raboti,

THE COURT (Second Chamber),

composed of J.N. Cunha Rodrigues, President of the Chamber, U. Lõhmus, A. Ó Caoimh (Rapporteur), A. Arabadjiev and C.G. Fernlund, Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— the European Commission, by C. Tufvesson and V. Savov, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 21 June 2012,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 4(3) TEU, read in conjunction with Articles 20 TFEU and 21 TFEU, of Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Articles 27(1) and 31(1) and (3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).

2 The reference has been made in proceedings between Mr Byankov and the glaven sekretar na Ministerstvo na vatreshnite raboti (Principal Secretary of the Ministry of the Interior) concerning the refusal to reopen an administrative procedure and to annul an administrative measure prohibiting Mr Byankov from leaving Bulgaria on account of his failure to pay a private debt.

Legal context

EU legislation

3 Recital 31 in the preamble to Directive 2004/38 states that the directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter.

4 Under Article 3(1) thereof, Directive 2004/38 applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them.

5 Article 4(1) of Directive 2004/38 reads as follows: ‘Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport … shall have the right to leave the territory of a Member State to travel to another Member State.’

6 Article 27 of Directive 2004/38, which is contained in Chapter VI of the directive, ‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’, provides in paragraphs 1 and 2: ‘1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.’

7 Also in Chapter VI of Directive 2004/38, Article 31, entitled ‘Procedural safeguards’, provides: ‘1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health. … 3. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate... ...’

8 Article 32(1) of Directive 2004/38, also to be found in Chapter VI, reads as follows: ‘Persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion. The Member State concerned shall reach a decision on this application within six months of its submission.’

The Bulgarian legislation

9 Article 23(2) of the Law on Bulgarian identity documents (Zakon za balgarskite litschni dokumenti, DV No 93 of 11 August 1998), in the version applicable to the case in the main proceedings (DV No 105 of 22 December 2006; ‘ZBLD’), provides that ‘[e]very Bulgarian citizen shall have the right to leave and return to the country with an identity card via the internal borders of the Republic of Bulgaria with the Member States of the European Union and in the situations provided for under international agreements’.

10 Article 23(3) continues ‘[n]o restrictions shall be placed on the right under paragraph 2 other than such as are in accordance with law and have as their objective the protection of national security, public policy, public health or the rights and freedoms of other citizens’.

11 Article 76(3) of the ZBLD provides: ‘The following persons may be prohibited from leaving the country and may be refused passports and similar documents: ... 3. persons who owe considerable debts, established by court order, to Bulgarian or foreign natural or legal persons, unless their personal assets cover the debt or they provide appropriate security.’

12 Under the supplementary provisions of the ZBLD, an amount in excess of BGN 5 000 is regarded as ‘considerable’ for the purposes of Article 76(3) of the ZBLD.

13 Article 76(3) of the ZBLD was repealed by point 3 of Paragraph 62 of the Law amending and making supplementary provision to the ZBLD (DV No 82 of 16 October 2009), which entered into force on 20 October 2009. However, the Bulgarian legislature did not provide that any coercive administrative measures imposed on the basis of Article 76(3) of the ZBLD would automatically cease to have effect.

14 Article 99 of the Code of Administrative Procedure (Administrativnoprotsesualen kodeks, ‘APK’), which is contained in Chapter 7 of the APK entitled ‘Reopening of the procedure for the adoption of administrative acts’, reads: ‘A final individual or general administrative act which has not been contested before the courts may be annulled or amended by the next-higher-ranking administrative authority or, if the administrative act was not open to challenge by way of an administrative remedy, by the authority which adopted it, where: 1. there has been a material breach of one of the conditions governing its legality; ... 7. a decision of the European Court of Human Rights has established an infringement of the [European Convention on the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950].’

15 According to the order for reference, Article 99(1) of the APK enables the administrative body to annul an administrative act that has become final where there has been a material breach of one of the conditions governing its legality. However, under Articles 100 and 102(1) of the APK, that power may be exercised only within a period of one month from the date on which the act concerned was adopted and only on the initiative of the administrative body which adopted the act, of the prosecutor concerned or of the ombudsman.

16 However, pursuant to Article 102(2) of the APK, in the situation provided for in Article 99(7) of the APK, the procedure may be reopened at the request of the addressee of an administrative measure which, not having been challenged before the courts, has become final.

17 It is apparent from the order for reference that the addressee of such a measure may also apply to have the procedure reopened in the cases referred to in Article 99(2) to (6) of the APK.

18 It also emerges from the order for reference that Article 99(2) of the APK covers, inter alia, the situation in which there is new documentary evidence.

The dispute in the main proceedings and the questions referred for a preliminary ruling

19 By order of the Regional Directorate of the Ministry of the Interior of 17...