29.1.2011

Official Journal of the European Union

C 30/3

(Case C-145/09) (<span class="super">1</span>)

(Freedom of movement for persons - Directive 2004/38/EC - Articles 16(4) and 28(3)(a) - Union citizen born and having resided for over 30 years in the host Member State - Absences from the host Member State - Criminal convictions - Expulsion decision - Imperative grounds of public security)

2011/C 30/04

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Land Baden-Württemberg

Defendant: Panagiotis Tsakouridis

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof Baden-Württemberg — Interpretation of Article 16(4) and 28(3)(a) 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 in OJ 2004 L 229, p. 35 and OJ 2007 L 204, p. 28) — Decision to expel a European citizen, who was born and had resided for more than thirty years in the host Member State, on account of a number of criminal convictions — Interpretation of the concept of ‘imperative grounds of public security’ and of the conditions for the loss of protection against expulsion, acquired on account of the abovementioned provision

Operative part of the judgment

Article 28(3)(a) 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 must be interpreted as meaning that, in order to determine whether a Union citizen has resided in the host Member State for the 10 years preceding the expulsion decision, which is the decisive criterion for granting enhanced protection under that provision, all the relevant factors must be taken into account in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State, reasons which may establish whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned.

Should the referring court conclude that the Union citizen concerned enjoys the protection of Article 28(3) of Directive 2004/38, that provision must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is capable of being covered by the concept of ‘imperative grounds of public security’ which may justify a measure expelling a Union citizen who has resided in the host Member State for the preceding 10 years. Should the referring court conclude that the Union citizen concerned enjoys the protection of Article 28(2) of Directive 2004/38, that provision must be interpreted as meaning that the fight against crime in connection with dealing in narcotics as part of an organised group is covered by the concept of ‘serious grounds of public policy or public security’.

(<span class="super">1</span>) OJ C 153, 4.7.2009.