Important legal notice

61989C0363

European Court reports 1991 Page I-00273

Opinion of the Advocate-General

Mr President, Members of the Court, 1. In this reference for a preliminary ruling the Tribunal de première instance (Court of First Instance), Liège, has referred to the Court four questions on the interpretation of certain provisions of the Treaty and secondary legislation concerning freedom of movement for workers and the right of establishment, in particular Articles 3(c), 7, 48 et seq., and 52 et seq. of the Treaty, Council Regulation No 1612/68 (1) and Council Directives Nos 68/360 (2) and 73/148 (3) and 64/221. (4) Those questions are closely interrelated and essentially concern the nature of the right of residence enjoyed by Community citizens pursuing an economic activity in a Member State other than that of which they are nationals. The legislative background to the dispute is only too well known, so that I shall limit myself to a brief summary of the facts underlying these proceedings, and refer for the rest to the Report for the Hearing.

4. The Court has already had occasion to rule on such matters in a number of cases. Thus a settled and exhaustive case-law enables a ready reply to be given to the questions raised by the national court, which, I repeat, essentially concern the nature of the right of residence. I would first of all point out that the Court held in its well-known judgment in Royer that "... the right of nationals of a Member State to enter the territory of another Member State and reside there for the purposes intended by the Treaty - in particular to look for or pursue an occupation or activities as employed or self-employed persons, ... - is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation". (5) Consequently, as the Court itself has held, the right of residence is acquired independently of the grant of a residence permit by the competent authority of a Member State. The grant of that permit is therefore to be regarded "not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of Community law". (6) It is therefore clear that the residence permit is exclusively declaratory of the rights of Community citizens, if certain conditions are met.

5. In the present case it is not contested that Mrs Roux is carrying on an economic activity in Belgium and, given that the right of residence, as the Court has explained on several occasions, is subject only to the condition that the person concerned carries on an economic activity falling within the scope of either Article 48, or Article 52 or Article 59 of the Treaty, it follows that Mrs Roux enjoys that right under the applicable Community rules irrespective of whether she carries on that activity as a self-employed or as an employed person. On that basis, it is further necessary to verify whether the conditions for the issue of the residence permit are met. In the case of an employed person the conditions to be satisfied by a Community citizen are twofold: he must be in possession of a passport or identity card on entry into the territory of another Member State and must produce an employer' s certificate (Article 4 of Directive 68/360). A self-employed person, in addition to being in possession of one of the abovementioned identity documents, must prove - by any appropriate means - that he is carrying on an activity as a self-employed person (Article 6 of Directive 73/148). No other condition is required and, as the Court itself has confirmed with regard to employed persons, the Member States are obliged "to issue a residence permit to any person who provides proof, by means of the appropriate documents, that he belongs to one of the categories set out in Article 1 of the Directive". (7) That also applies to self-employed persons, where the conditions set out in Article 6 of Directive 73/148 are satisfied.

7. As to the national court' s fourth question which essentially seeks to ascertain what penalties may be attached to any failure to comply with the obligations arising out of national social legislation, it should first be noted that, under the Court' s case-law, any penalties imposed on nationals of another Member State for non-compliance with national provisions and procedures, that is to say penalties which also apply to a country' s own nationals, may not be disproportionate. In particular, they may not be such as to impede freedom of movement for workers. (8) The right of residence may therefore not be denied to a Community citizen falling within the scope of the relevant rules. Still less may an expulsion order be adopted on that basis. Non-compliance with national social security rules may only be penalized under the same terms as apply to nationals in respect of the same type of offence.

(*) Original language: Italian. (1) Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475). (2) Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968(II), p. 485). (3) Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973 L 172, p. 14). (4) Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1964, p. 117). (5) Judgment in Case 48/75 Royer [1976] ECR 497, at paragraphs 31 to 33. To the same effect see judgment in Case 8/77 Sagulo [1977] ECR 1495, and the judgment in Case 157/79 R. v Pieck [1980] ECR 2171. (6) See the Royer judgment, cited above, at paragraph 33. (7) See the Royer judgment, cited above, at paragraph 37. (8) To that effect see as the most recent authority the judgment in Case 265/88 Lothar Messner [1989] ECR 4209. Translation