22 May 2012 (*1)

‛Freedom of movement for persons — Directive 2004/38/EC — Article 28(3)(a) — Expulsion decision — Criminal conviction — Imperative grounds of public security’

In Case C-348/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Germany), made by decision of 20 August 2009, received at the Court on 31 August 2009, in the proceedings

Oberbürgermeisterin der Stadt Remscheid,

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues (Rapporteur), K. Lenaerts, J.-C. Bonichot, U. Lõhmus, Presidents of Chambers, A. Rosas, E. Levits, A. Ó Caoimh, L. Bay Larsen, T. von Danwitz, A. Arabadjiev and C. Toader, Judges,

Advocate General: Y. Bot,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 10 January 2012,

after considering the observations submitted on behalf of:

—Mr I., by G. L. Pagliaro and A. Caramazza, Rechtsanwälte,

—the German Government, by T. Henze and J. Möller, acting as Agents,

—the Belgian Government, by L. Van den Broeck, acting as Agent,

—the Danish Government, by C. Vang, acting as Agent,

—the Estonian Government, by M. Linntam, acting as Agent,

—the Irish Government, by D. O’Hagan and J. Kenny, acting as Agents, and D. Conlan Smyth, Barrister,

—the Italian Government, by G. Palmieri, acting as Agent, and S. Varone, avvocato dello Stato,

—the Netherlands Government, by C. Wissels and M. Noort, acting as Agents,

—the Polish Government, by M. Szpunar, acting as Agent,

—the European Commission, by D. Maidani and S. Grünheid, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 6 March 2012,

gives the following

This reference for a preliminary ruling concerns the interpretation of 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 (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34).

The reference has been made in proceedings between Mr. I., an Italian national, and the Oberbürgermeisterin der Stadt Remscheid (Germany), concerning the latter’s decision determining the loss of Mr I.’s right of entry and residence in Germany and ordering him to leave Germany, failing which he would be deported to Italy.

Legal context

European Union law

Recitals 23 and 24 in the preamble to Directive 2004/38 are worded as follows:

(23)‘(23)

Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the [EC] Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.’

Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child of 20 November 1989.’

Article 27(1) and (2) of Directive 2004/38 provide as follows:

‘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. These grounds shall not be invoked to serve economic ends.

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.’

Article 28 of Directive 2004/38 provides as follows:

‘1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

have resided in the host Member State for the previous 10 years; or

are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.’

Article 33 of Directive 2004/38 is worded as follows:

‘1. Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27, 28 and 29.

Directive 2011/93/EU

The purpose of Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ 2011 L 335, p. 1) is to establish minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, child pornography and solicitation of children for sexual purposes. It also introduces provisions to strengthen the prevention of those crimes and the protection of the victims thereof.

National legislation

Paragraph 6 of the Law on general freedom of movement of citizens of the Union (Gesetz über die allgemeine Freizügigkeit von Unionsbürgern) of 30 July 2004 (BGBl. 2004 I, p. 1950), as amended by the Law amending the Federal Police Law and other laws (Gesetz zur Änderung des Bundespolizeigesetzes und anderer Gesetze) of 26 February 2008 (BGBl. 2008 I, p. 215), provides as follows: