Mouvement Contre Le Racisme, L'Antisemitisme et la Xenophobie Asbl
(MRAX) v. Belgium (Case C-459/99)
Before the Court of Justice of the European
(Presiding, Rodrguez Iglesias, P.; Colneric and von Bahr, PP.C.; Gulmann ,
Edward, Puissochet, Wathelet, Schintgen and Cunha Rodrigues ( Rapporteur) JJ.)
Christine Stix-Hackl, Advocate General.
25 July 2002
H1 Reference from Belgium by the Conseil d'Etat (Council of State) under Article 234 EC .
H2 Freedom of movement--aliens--entry--residence permits--national law clarifying position of third country spouse of Member State national--visa requirement--national proceedings for annulment--reference under Article 234 EC--Directives 64/221, 68/360 and 73/148 and Regulation 2317/95--scope of EC free movement provisions--limited to spouse of Community law national who has exercised rights of free movement--compatibility of visa requirement with principles of non-discrimination and proportionality--right to respect for family life--right of entry for spouse not in possession of identity documents or visa proving conjugal link--right of residence not to be denied to spouses entering unlawfully--right of residence for spouses entering lawfully but whose visa has since expired--proportionate sanctions for failure to observe immigration rules--procedural guarantees--deportations--right to appeal. H3 MRAX brought proceedings before the Conseil d'Etat in Belgium for the annulment of a government circular. Its purpose was to clarify the rules of Belgian law on the position of third country nationals who sought entry to and residence in Belgium, claiming to be married to a Member State national, but who were not in possession of the required travel documents including, where relevant, a visa. In particular, the Belgian Government claimed that such third country nationals could be turned back at the border and refused entry until they
obtained the appropriate documentation, or could be denied a residence permit where they had entered the country unlawfully or where they had entered the country with a valid visa which had since expired. MRAX *682 argued that the Circular was incompatible with the Community directives on freedom of movement and residence within the Community. The Conseil d'Etat stayed its proceedings and referred several questions of interpretation of Community law on rights of entry and residence to the European Court. Held: Scope of application of free movement provisions of the Treaty H4 Community legislation concerning freedom of movement for workers, freedom to provide services and freedom of establishment was not applicable to situations not presenting any link to any of the situations envisaged by Community law. Consequently, that legislation could not be applied to the situation of persons who had never exercised those freedoms. The position of third country spouses of Member State nationals who had not exercised their rights of freedom of movement was therefore outside the scope of Community law, and references to a Member State national in the following paragraphs should be read accordingly.  Koua Poirrez v. Caisse d'Allocations Familiales de la Rgion Parisienne (C-206/91):  E.C.R. I-6685; Carpenter v. Secretary of State for the Home Department (C-60/00):  2 C.M.L.R. 64, followed. In principle, visa requirement for third country nationals compatible with Community law H5 In accordance with Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148, when a national of a Member State moved within the Community with a view to exercise the rights conferred upon him by the Treaty and those Directives, the Member States might demand an entry visa or equivalent document from members of his family who were not nationals of a Member State. As Community legislation did not specify the measures which a Member State might take should a third country national married to a Member State national wish to enter Community territory without being in possession of a valid identity card or passport or, if necessary, a visa, sending him back at the border did not appear to be precluded. There were several reasons for this. First, in the absence of a valid identity card or passport, the person concerned could not as a rule properly prove his identity or, consequently, his family ties. Secondly, while, the right of a third country national married to a Member State national to enter the territory of the Member States derived under Community law from the family ties alone, the fact remained that, according to the very wording of Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148, exercise of that right might be conditional on possession of a visa. However, those Articles stated that the Member States were to accord to such persons every facility for obtaining any necessary visas. That meant that, if those provisions were not to be denied their full effect, a *683 visa had to be issued without delay and, as far as possible, at the place of entry into national territory. - EC Commission v. Netherlands (C-68/89):  E.C.R. I-2637;  2 C.M.L.R. 389 ; Giagounidis v. Stadt Reutlingen (C-376/89):  E.C.R. I-1069;
 1 C.M.L.R. 573, followed. Disproportionate to refuse entry to a third country national proving identity and conjugal ties to national of a Member State H6 (a) The Community legislature had recognised the importance of ensuring protection for the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty. Thus, Article 10 of Regulation 1612/68, Article 1 of Directive 68/360 and Article 1 of Directive 73/148 extended in identical terms the application of Community law relating to entry into and residence in the territory of the Member States to the spouse of a Member State national who was covered by those provisions. - Carpenter v. Secretary of State for the Home Department (C-60/00) : supra; Criminal Proceedings against Royer (48/75):  E.C.R. 497;  2 C.M.L.R. 619, followed. H7 (b) In view of the importance which the Community legislature had attached to the protection of family life, it was in any event disproportionate and, therefore, prohibited for a Member State to send back at the border a third country national married to a national of a Member State who attempted to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where that third country national was able to prove his identity and the conjugal ties and there was no evidence to establish that he represented a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148 .  Unlawful entry by third country spouse of a Member State national not affecting right of residence H8 (a) Issue of a residence permit to a national of a Member State was 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. The same finding had to be made with regard to a third country national married to a national of a Member State, whose right of residence derived directly from Article 4 of Directive 68/360or Article 4 of Directive 73/148, irrespective of issue of a residence permit by the competent authority of a Member State.  Roux v. Belgium (C-363/89):  E.C.R. I-273;  1 C.M.L.R. 3, followed. H9 (b) Under Article 4(3) of Directive 68/360 and Article 6 of Directive 73/148, a Member State might make issue of a residence permit *684 conditional upon production of the document with which the person concerned entered its territory. Furthermore, Community law did not prevent the Member States from prescribing, for breaches of national provisions concerning the control of aliens, any appropriate sanctions necessary in order to ensure the efficacity of those provisions, provided that those sanctions were proportionate. On the other hand, refusal of a residence permit, and a fortiori an expulsion order, based solely on the failure of the person concerned to comply with legal formalities concerning the control of aliens would impair the very substance of the right of residence directly conferred by Community law and would be manifestly disproportionate to the gravity of the infringement. -
Roux v. Belgium (C-363/89): supra; Criminal Proceedings against Royer (48/75): supra; R. v. Pieck (157/79):  E.C.R. 2171;  3 C.M.L.R. 220, followed. H10 (c) Article 10 of Directive 68/360 and Article 8 of Directive 73/148 did not prevent the Member States from derogating from those Directives on grounds of public policy, public security or public health, while Article 3(1) of Directive 64/221established that measures taken on grounds of public policy or of public security were to be based exclusively on the personal conduct of the individual concerned. However, failure to comply with the legal formalities concerning the entry, movement and residence of aliens could not in itself give rise to application of the measures referred to in Article 3 of Directive 64/221.  Criminal Proceedings against Royer (48/75): supra, followed. H11 (d) Consequently, on a proper construction of Article 4 of Directive 68/360 and Article 6 of Directive 73/148, a Member State was not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who was able to furnish proof of his identity and of his marriage to a Member State on the sole ground that he had entered the territory of the Member State concerned unlawfully.  Right of residence of third c