Judgment of the Court of 27 April 1989. - Commission of the European Communities v Kingdom of Belgium. - Free movement of persons - Frontier controls - Residence or establishment permit. - Case 321/87.
European Court reports 1989 Page 00997
Free movement of persons - Right of entry and residence of nationals of Member States - Obligation to carry residence or establishment permit at all times - Check at the time of entry into the territory of a Member State - Permissibility - Conditions
( Council Directives 68/360, Art . 3, and 73/148, Art . 3 )
Community law does not prevent a Member State from checking, within its territory, compliance with the obligation imposed on persons enjoying a right of residence under Community law to carry their residence or establishment permit at all times, where an identical obligation is imposed on its own nationals as regards their identity card .
The carrying out of such controls at the time of entry into the territory of a Member State is not prohibited by the wording of Directives 68/360 and 73/148, according to which the only precondition which Member States may impose on the right of entry into their territory for the persons covered by those directives is the production of a valid identity card or passport, if those controls are not a condition of entry into the territory of the Member State in question . However, such controls may, depending on the circumstances, constitute a barrier to the free movement of persons within the Community . That would be the case in particular if it were found that the controls were carried out in a systematic, arbitrary or unnecessarily restrictive manner .
In Case 321/87
Commission of the European Communities, represented by its Legal Advisers Antonio Caeiro and Etienne Lasnet, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,
Kingdom of Belgium, represented by the Minister for Foreign Relations ( Agent : Robert Hoebaer, Director of Administration in the Ministry of Foreign Affairs, Foreign Trade and Cooperation with Developing Countries ), with an address for service in Luxembourg at the Belgian Embassy,
APPLICATION for a declaration that, by requiring checks, on the entry into Belgian territory of nationals of other Member States residing legally in Belgium, in order to determine whether they are carrying their residence or establishment permit, the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty,
composed of O . Due, President, T . Koopmans, R . Joliet and F . Grévisse, ( Presidents of Chambers ), Sir Gordon Slynn, C . N . Kakouris, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias and M . Díez de Velasco, Judges,
Advocate General : G . Tesauro
Registrar : J . A . Pompe, Deputy Registrar
having regard to the Report for the Hearing and further to the hearing on 2 February 1989,
after hearing the Opinion of the Advocate General delivered at the sitting on 7 March 1989,
gives the following
1 By application lodged at the Court Registry on 16 October 1987, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by requiring checks, on the entry into Belgian territory of nationals of other Member States residing legally in Belgium, in order to determine whether they are carrying their establishment permit, the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty .
2 According to Article 38 of the Belgian Royal Decree of 8 October 1981 governing aliens' access to, residence and establishment in and expulsion from its territory, "any alien of more than 15 years of age must at all times carry his residence or establishment permit or any other residence document and produce the same on request by any agent of the public authorities ".
3 That obligation corresponds to the obligation imposed on Belgian nationals by Article 1 of the Royal Decree of 29 July 1985 on identity cards for Belgians . In both cases, non-compliance constitutes an offence punishable by a fine of up to BFR 1 500 .
4 Upon entry into Belgium, the authorities responsible for frontier controls, on a non-systematic basis and in various circumstances, ask non-Belgian Community nationals residing in Belgium to produce, in addition to their passport or identity card, their residence or establishment permit . If the person concerned does not produce the latter document, he may continue his journey but may be liable to a fine .
5 The Commission considers that practice to be contrary to Council Directive 68/360 of 15 October 1968 ( Official Journal, English Special Edition 1968 ( II ), p . 485 ) and Council Directive 73/148 of 21 May 1973 ( Official Journal 1973, L 172, p . 14 ), which relate respectively to the abolition of restrictions on movement and residence within the Community for workers of Member States and their families and for nationals of Member States with regard to establishment and the provision of services .
6 The Belgian Government contends, for its part, that inspection of residence or establishment permits is not a frontier control but part of a general system of police checks carried out habitually throughout Belgian territory to which all inhabitants are liable, and it may incidentally be carried out at the same time as the frontier control .
7 Reference is made to the Report for the Hearing for a fuller account of the facts, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
8 Article 3(1 ) of each of the two directives concerned, whose wording is identical, ( 1 ) provides that the nationals of a Member State benefiting from the rules on free movement of persons are to be admitted to the territory of another Member State "simply on production of a valid identity card or passport ". Article 3(2 ) of both directives states that no entry visa or equivalent requirement may be imposed .
9 As the Court has already held in the judgment of 3 July 1980 in Case 157/79 Regina v Pieck (( 1980 )) ECR 2171, the term "entry visa or equivalent requirement" covers any formality for the purpose of granting leave to enter the territory of a Member State which is coupled with a passport or identity card check at the frontier, whatever may be the place or time at which that leave is granted and in whatever form it may be granted .
10 It is apparent from the same judgment that the restriction which the EEC Treaty lays down concerning free movement of persons on grounds of public policy, public security or public health must be regarded not as imposing a condition precedent to the acquisition of the right of entry and residence but as providing the possibility, in individual cases where there is sufficient justification, of imposing restrictions on the exercise of a right derived directly from the Treaty . It does not therefore justify administrative measures imposing in a general way formalities at the frontier other than the mere production of a valid identity card or passport .
11 Consequently, the only precondition which Member States may impose on the right of entry into their territory for the persons covered by the abovementioned directives is the production of a valid identity card or passport .
12 The controls at issue are not a condition for the exercise of the right of entry into Belgian territory and it is undisputed that Community law does not prevent Belgium from checking, within its territory, compliance with the obligation imposed on persons enjoying a right of residence under Community law to carry their residence or establishment permit at all times, where an identical obligation is imposed upon Belgian nationals as regards their identity card .
13 The Commission disputes the compatibility with Community law of the controls at issue in so far as they are carried out at the time of entry into Belgian territory and are thus added to the requirement of production of a valid identity card or passport .
14 It must be stated in the first place that provided that the controls criticized by the Commission are not a condition of entry into Belgian territory, they are not prohibited by the wording of the provisions of the directives relied upon by the Commission .
15 However, the carrying out of such controls upon entry into the territory of a Member State may, depending on the circumstances, constitute a barrier to the free movement of persons within the Community, a fundamental principle of the EEC Treaty to which the abovementioned directives are intended to give full effect . That would be the case in particular if it were found that the controls in question were carried out in a systematic, arbitrary or unnecessarily restrictive manner .
16 It is not disputed in the present case that the controls at issue are carried out sporadically and unsystematically . Moreover, the Commission merely alleged that the controls are in themselves contrary to Community law, without providing further information concerning the circumstances in which they are carried out . Accordingly, the Kingdom of Belgium cannot be held to have failed to fulfil any obligation .
17 The application must therefore be dismissed .
18 Pursuant to Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party' s pleadings . However, the Belgian Government did not ask for costs to be awarded against the Commission . Accordingly, although the Commission has failed in its submissions, each party must be ordered to bear its own costs .
On those grounds,
( 1 ) Dismisses the application;
( 2 ) Orders the parties to bear their own costs .