Ministerul Administraţiei şi Internelor - Direcţia Generală de Paşapoarte Bucureşti v Gheorghe Jipa.

• Jurisdiction: European Union
• Celex Number: 62007CC0033
• ECLI: ECLI:EU:C:2008:92
• Docket Number: C-33/07
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 14 February 2008

OPINION OF ADVOCATE GENERAL

Mazák

delivered on 14 February 2008 (1)

Case C-33/07

Ministerul Administraţiei şi Internelor – Direcţia Generală de Paşapoarte Bucureşti

v

Gheorghe Jipa

(Reference for a preliminary ruling from the Tribunalul Dâmboviţa (Romania))

(European citizenship – Article 18 EC – Articles 4 and 27 of Directive 2004/38/EC – Right of exit – Restrictions on the right to freedom of movement abroad for a period not exceeding three years)

1. In this reference for a preliminary ruling under Article 234 EC, the referring court seeks guidance on the interpretation of Article 18 EC and Article 27 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. (2)

2. The proceedings before the referring court concern a civil action brought by the Ministry of Administration and Home Affairs – Directorate General for Passports, Bucharest, (‘the Ministry’) on 11 January 2007 for an order imposing a restriction on Mr Gheorghe Jipa’s freedom of movement abroad for a period of up to three years. The order was sought following Mr Jipa’s repatriation to Romania on 26 November 2006 on foot of a Readmission Agreement concluded between, inter alia, Romania and Belgium.

I – Relevant Community law

3. Article 17 EC provides:

‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.’

4. Article 18(1) EC provides that ‘[e]very 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’.

5. Article 1(a) of Directive 2004/38 provides that that directive lays down, inter alia, the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members.

6.Article 3(1) of Directive 2004/38 provides:

‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national …’

7.Article 4(1) of Directive 2004/38 entitled ‘Right of exit’ provides:

‘1. 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.’

8.Article 27 of Directive 2004/38 entitled ‘General principles’ and which is found in Chapter VI – Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health, provides:

‘1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens … on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

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. …’

II – Relevant national law

9. Article 1 of the Agreement between the Government of Romania, of the first part, and the Governments of the Kingdom of Belgium, of the Grand Duchy of Luxembourg and the Kingdom of the Netherlands, of the other part, on the readmission of persons who are in an illegal situation (the ‘Readmission Agreement’) and which was approved by Romanian Government Decree No 825/1995 (3) provides:

‘The Government of Romania shall readmit to its territory, at the request of the Government of Belgium, the Government of Luxembourg or the Government of the Netherlands, without any formality, any person who does not satisfy or no longer satisfies the conditions for entry or residence applicable to the territory of Belgium, of Luxembourg, or of the Netherlands, where it is established or presumed that the person concerned is a Romanian citizen.’

10. Article 3 of Law 248/2005 of 20 July 2005 (as amended), on the conditions for the free movement of Romanian citizens abroad (4) provides:

‘(1) The exercise of the right of free movement abroad for Romanian citizens may be limited only temporarily in the cases and under the conditions provided for in the present Law; any such limitation shall take the form of a suspension of, or, as the case may be, a restriction on the exercise of that right ...

(3) Any restriction on the exercise of the right of free movement abroad shall consist of a temporary prohibition of travel in specified States, imposed by the competent Romanian authorities, in accordance with the conditions laid down by the present Law.’

11. Pursuant to Article 38 of Law 248/2005:

‘A restriction on the exercise of the right of free movement abroad of Romanian citizens may be imposed for a period not exceeding three years, under the following conditions and only against:

(a) a person who has been repatriated by a State under a readmission agreement concluded between Romania and that State,

(b) a person whose presence in the territory of a State would, by reason of the activities which that person carries out or might carry out, seriously harm the interests of Romania or, as the case may be, bilateral relations between Romania and that State.’

12. Article 39 of Law 248/2005 provides as follows:

‘In the situation provided for in Article 38(a), the measure shall be adopted at the request of the Directorate General for Passports, in relation to the State from which the person has been repatriated, by the court in whose territorial jurisdiction he resides or, if that person resides abroad, Tribunalul Bucureşti.’

III – The main proceedings and the order for reference

13. It would appear from the order for reference that Mr Jipa left Romania to go to Belgium on 10 September 2006. He was repatriated to Romania on account of ‘illegal residence’ on 26 November 2006 by the Belgian authorities pursuant to the Readmission Agreement.

14. On 11 January 2007, the Ministry sought an order from the referring court to restrict Mr Jipa’s freedom of movement to Belgium. The referring court notes in its order for reference that the Ministry has not clarified what is meant by the ‘illegal residence’ of Mr Jipa which led to his repatriation.

15. The referring court considers, inter alia, that the provisions of national law, in particular Articles 38 and 39 of Law 248/2005 and Government Decree No 825/1995, are contrary to Article 18 EC and Article 27 of Directive 2004/38. By decision dated 17 January 2007, the Tribunalul Dâmboviţa decided to stay the proceedings and to refer the following questions to the Court:

‘1. Must Article 18 EC … be interpreted as meaning that the legislation in force in Romania (Articles 38 and 39 of Law 248/2005 on the conditions for the free movement of Romanian citizens abroad) places obstacles in the way of the free movement of persons?

2.(a) Do Articles 38 and 39 of Law 248/2005 … which prevent a person (who is a Romanian citizen and, now, a citizen of the Union) from moving freely in another State (in this case, a Member State of the European Union), constitute an obstacle to the free movement of persons upheld by Article 18 EC?

(b) May a Member State of the European Union (in this case Romania) place a limitation on the exercise of the right of freedom of movement of citizens within the territory of another Member State?

3.(a) Does the concept of “illegal residence” used in the national provisions of Government Decree [No 825/1995] approving the Agreement between the Government of Romania, of the first part, and the Governments of the Kingdom of Belgium, of the Grand Duchy of Luxembourg and of the Kingdom of the Netherlands, of the other part, on the readmission of persons who are in an illegal situation (the provision on the basis of which the readmission of the defendant was ordered, his situation being that of “illegal residence”) fall within the grounds of “public policy” or “public security” provided for in Article 27 of Directive 2004/38/EC, so that a restriction on the freedom of movement of such a person may be imposed?

(b) If the foregoing question is answered in the affirmative, must Article 27 of Directive 2004/38/EC … be interpreted as meaning that the Member States may impose restrictions on the freedom of movement and residence of a citizen of the Union on grounds of “public policy” and “public security” automatically, without that person’s “personal conduct” being examined?’

16. In its decision dated 17 January 2007, the referring court also requested the Court to give a ruling on the questions referred under an expedited procedure.

17. By order dated 3 April 2007, the President of the Court rejected the request by the referring court for an expedited procedure.

18. The Romanian and Greek Governments and the Commission submitted written observations. No hearing was requested or held.

IV – Main...