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

Communities

ECJ

(Presiding, RodrÍguez 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. [39] Koua Poirrez v. Caisse d'Allocations Familiales de la Région Parisienne (C-206/91): [1992] E.C.R. I-6685; Carpenter v. Secretary of State for the Home Department (C-60/00): [2002] 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. [56]-[60] EC Commission v. Netherlands (C-68/89): [1991] E.C.R. I-2637; [1993] 2 C.M.L.R. 389 ; Giagounidis v. Stadt Reutlingen (C-376/89): [1991] E.C.R. I-1069;

[1993] 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. [53]-[54] Carpenter v. Secretary of State for the Home Department (C-60/00) : supra; Criminal Proceedings against Royer (48/75): [1976] E.C.R. 497; [1976] 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 . [61] 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. [74] Roux v. Belgium (C-363/89): [1991] E.C.R. I-273; [1993] 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. [76]-[78]

Roux v. Belgium (C-363/89): supra; Criminal Proceedings against Royer (48/75): supra; R. v. Pieck (157/79): [1980] E.C.R. 2171; [1980] 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. [79] 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. [80] Right of residence of third country spouse of Member State national whose visa expired after entry to host State H12 (a) While Article 4(3) of Directive 68/360 and Article 6 of Directive 73/148authorised the Member States to demand, for the purpose of issue of a residence permit, production of the document with which the person concerned entered their territory, they did not require that that document still had to be valid. Accordingly, where a third country national required a visa, issue of a residence permit to him could not be made subject to the condition that his visa was still valid. [89] Giagounidis v. Stadt Reutlingen (C-376/89): supra, followed. H13 (b) Furthermore, an order of expulsion from national territory on the sole ground that a visa had expired would constitute a sanction manifestly disproportionate to the gravity of the breach of the national provisions concerning the control of aliens. [90] H14 *685 (c) Consequently, on a proper construction of Articles 3 and 4(3) of Directive 68/360, Articles 3 and 6 of Directive 73/148 and Article 3(3) of Directive 64/221, a Member State might neither refuse to issue a residence permit to a third country national who was married to a national of a Member State and entered the territory of that Member State lawfully, nor issue an order expelling him from the territory, on the sole ground that his visa expired before he applied for a residence permit. [91] Spouse of Member State national benefiting from procedural guarantees in Directive 64/221 H15 (a) The purpose of Article 9(2) of Directive 64/221 was to provide minimum procedural guarantees for persons refused a first residence permit, or whose expulsion was ordered before the issue of the permit, in any of the three cases defined in Article 9(1). Where the right of appeal against administrative measures was restricted to the legality of the decision, the purpose of the intervention of the competent authority was to enable an examination of the facts and

circumstances, including factors demonstrating the appropriateness of the proposed measure, to be carried out before the decision was finally taken. [100] R. v. Secretary of State for the Home Department, ex parte Shingara and Radiom (C 65 & 111/95): [1997] E.C.R. I-3343; [1997] 3 C.M.L.R. 703 , followed. H16 (b) The provisions of Article 9 of Directive 64/221, which were complementary to those relating to the system of appeals to a court of law referred to in Article 8 and were intended to mitigate the effect of deficiencies in those remedies, called for a broad interpretation in relation to the persons to whom they applied. In the field of Community law, the requirement for judicial review of any decision of a national authority reflected a general principle stemming from the constitutional traditions common to the Member States and enshrined in Articles 6 and 13 of the European Convention on Human Rights. [101] Pecastaing v. Belgium (98/79): [1980] E.C.R. 691; [1980] 3 C.M.LR. 685; Union Nationale des Entraineurs et Cadres Techniques Professionnels du Football (UNECTEF) v. Heylens and Others (222/86): [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901; Oleficio Borelli SpA v. EC Commission (C-97/91): [1992] E.C.R. I-6313; Siples Srl, in liquidation v. Ministero delle Finanze and Servizio della Riscossione dei Tributi and Others (C-226/99): [2001] E.C.R. I-277, followed. H17 (c) Accordingly, any foreign national married to a Member State national claiming to meet the conditions necessary to qualify for the protection afforded by Directive 64/221 benefited from the minimum procedural guarantees laid down in Article 9 of the Directive, even if he was not in possession of an identity document or, requiring a visa, he had entered the territory of a Member State without one or had remained there after its expiry. Moreover, those procedural *686 guarantees would be rendered largely ineffective if entitlement to them was excluded in the absence of an identity document or visa or where one of those documents had expired [102]-[103] H18 (d) Consequently, on a proper construction of Articles 1(2) and 9(2) of Directive 64/221, a foreign national married to a national of a Member State had the right to refer to the competent authority envisaged in Article 9(1) of that Directive a decision refusing to issue a first residence permit or ordering his expulsion before the issue of the permit, even when he was not in possession of an identity document or when, required a visa, he had entered the territory of a Member State without one or had remained there after its expiry. [104] H19 Representation I. de Viron, avocat, for Mouvement contre le racisme, l'antisémitisme et la xénophobie ASBL (MRAX). E. Matterne and E. Derriks, avocats, for Belgium. A. Längle, acting as Agent, for the Austrian Government. H. Mitchard, C. O'Reilly and N. Yerrell, acting as Agents, for the EC Commission. H20 Cases referred to in the judgment: 1. European Parliament v. EU Council (C-392/95), 10 June 1997: [1997] E.C.R. I-

3213; [1997] 3 C.M.L.R. 896. 2. Koua Poirrez v. Caisse d'Allocations Familiales de la Région Parisienne (C-206/91), 16 December 1992: [1992] E.C.R. I-6685. 3. Carpenter v. Secretary of State for the Home Department (C-60/00), 11 July 2002: [2002] 2 C.M.L.R. 64. 4. Criminal Proceedings against Royer (48/75), 8 April 1976: [1976] E.C.R. 497; [1976] 2 C.M.L.R. 619. 5. EC Commission v. Netherlands (C-68/89), 30 May 1991: [1991] E.C.R. I-2637; [1993] 2 C.M.L.R. 389. 6. Giagounidis v. Stadt Reutlingen (C-376/89), 5 March 1991: [1991] E.C.R. I-1069; [1993] 1 C.M.L.R. 573. 7. Criminal Proceedings against Sagulo and Others (8/77) , 14 July 1977: [1977] E.C.R. 1495; [1977] 2 C.M.L.R. 585. 8. Criminal Proceedings against Watson and Belman (118/75) , 7 July 1976: [1976] E.C.R. 1185; [1976] 2 C.M.L.R. 552. 9. Roux v. Belgium (C-363/89), 5 February 1991: [1991] E.C.R. I-273; [1993] 1 C.M.L.R. 3. 10. R. v. Pieck (157/79), 3 July 1980: [1980] E.C.R. 2171; [1980] 3 C.M.L.R. 220. 11. R. v. Secretary of State for Home Affairs, ex parte Santillo (131/79), 22 May 1980: [1980] E.C.R. 1585; [1980] 2 C.M.L.R. 308. 12. R. v. Secretary of State for the Home Department, ex parte Shingara and Radiom (C 65 & 111/95), 17 June 1997 : [1997] E.C.R. I-3343; [1997] 3 C.M.L.R. 703. *687 13. Pecastaing v. Belgium (98/79), 5 March 1980: [1980] E.C.R. 691; [1980] 3 C.M.L.R. 685. 14. Union Nationale des Entraineurs et Cadres Techniques Professionnels du Football (UNECTEF) v. Heylens and Others (222/86), 15 October 1987: [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901. 15. Oleficio Borelli SpA v. EC Commission (C-97/91), 3 December 1992: [1992] E.C.R. I-6313. 16. Siples Srl, in liquidation v. Ministero delle Finanze and Servizio della Riscossione dei Tributi and Others (C-226/99), 11 January 2001: [2001] E.C.R. I-277. H21 Further cases referred to by the Advocate General: Before the European Courts: 17. Ruckdeschel and Ströh v. Hauptzollamt Hamburg-St Annen (117/76 & 16/77), 19 October 1977: [1977] E.C.R. 1753; [1979] 2 C.M.L.R. 445. 18. Annibaldi v. Sindaco del Comune di Guidonia and Another (C-309/96), 18 December 1997; [1997] E.C.R. I-7493: [1998] 2 C.M.L.R. 187 . 19. Cinéthèque SA and Others v. Fédération nationale des cinémas français (60 & 61/84), 11 July 1985: [1985] E.C.R. 2605; [1986] 1 C.M.L.R. 365. 20. Demirel v. Stadt Schwäbisch Gmünd (12/86), 30 September 1987: [1987] E.C.R. 3719; [1989] 1 C.M.L.R. 421. 21. Connolly v. EC Commission (C-274/99 P), 6 March 2001: [2001] E.C.R. I-

1611; [2001] 3 C.M.L.R. 58. 22. EC Commission v. Germany (249/86), 18 May 1989: [1989] E.C.R. 1263; [1990] 3 C.M.L.R. 540. 23. Johnston v. Chief Constable of the Royal Ulster Constabulary (222/84), 15 May 1986: [1986] E.C.R. 1651; [1986] 3 C.M.L.R. 240. 24. Fazenda Pública v. Câmara Municipal do Porto (C-446/98), 14 December 2000: [2000] E.C.R. I-1143. 25. Adoui and Cornuaille v. Belgium (115 & 116/81), 18 May 1982: [1982] E.C.R. 1665; [1982] 3 C.M.L.R. 631. 26. Dzodzi v. Belgium (C 297/88 & 197/89), 18 October 1990: [1990] E.C.R. I-3763. 27. Coote v. Granada Hospitality Ltd (C-185/97), 22 September 1998: [1998] E.C.R. I-5199 ; [1998] 3 C.M.L.R. 958. 28. Marshall v. Southampton and South-West Hampshire Area Health Authority (C-271/91), 2 August 1993: [1993] E.C.R. I-4367; [1993] 3 C.M.L.R. 293 . 29. Metallgesellschaft Ltd and Others, Hoechst AG and Hoechst Ltd v. Commissioners of Inland Revenue and HM Attorney General (C 397 & 410/98), 8 March 2001: [2001] E.C.R. I-1727; [2001] 2 C.M.L.R. 32. *688 30. Rewe-Zentralfinanz EG v. Landwirtschaftskammer für das Saarland (33/76), 16 December 1976: [1976] E.C.R. 1989; [1977] 1 C.M.L.R. 533. 31. Comet BV v. Produktschap voor Siergewassen (45/76), 16 December 1976: [1976] E.C.R. 2043; [1977] 1 C.M.L.R. 533. Before the European Court of Human Rights: 32. Ciliz v. Netherlands, 11 July 2000: [2000] 2 F.L.R. 469. 33. Marckx v. Belgium (A/31), 13 June 1979 : (1979-80) 2 E.H.R.R. 330. 34. Abdulaziz and Others v. United Kingdom (A/94), 28 May 1985: (1985) 7 E.H.R.R. 471. 35. Ahmut v. Netherlands, 28 November 1996: (1997) 24 E.H.R.R. 62.

Opinion of Advocate General Stix-Hackl [FN1] FN1 Delivered on 13 September 2001.

Introduction A1 The Belgian Conseil d'Etat has referred a number of questions to the Court of Justice concerning the legal position of nationals of non-Member States who are married to Community citizens. More specifically, they concern refusal to allow entry at the frontier, refusal to issue a residence permit, expulsion and legal remedies.

Legal background

Community law

A2 Council Directive 64/221of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health [FN2] applies, by virtue of Article 1(2), also to the spouse and to members of the family of certain nationals of a Member State who fulfil the conditions in the regulations and directives adopted on the basis of the Treaty in regard to the exercise of an employed or self-employed activity or the freedom to provide services. FN2 [1964] O.J. Spec. Ed. 117. A3 Article 3 provides: (1) Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned. (2) Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures. (3) Expiry of the identity card or passport used by the person concerned to enter the host country and to obtain a residence permit shall not justify expulsion from the territory. (4) The State which issued the identity card or passport shall allow the holder of such a document to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute. A4 *689 Article 8 lays down that the person concerned must have the same legal remedies in respect of the decision refusing entry, the issue or extension of a residence permit, or the decision ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration. A5 Article 9(1) and (2) states: (1) Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the host country before which the person concerned enjoys such rights of defence and of assistance or representation as the domestic law of that country provides for. This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering expulsion. (2) Any decision refusing the issue of a first residence permit or ordering expulsion of the person concerned before the issue of the permit shall, where that person so requests, be referred for consideration to the authority whose prior opinion is required under paragraph 1. The person concerned shall then be entitled to submit his defence in person, except where this would be contrary to the interests of national security.

A6 Council Directive 68/360 of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families [FN3] applies, pursuant to Article 1 thereof, to the persons to whom Regulation 1612/68 applies. FN3 [1968] O.J. Spec. Ed. (II) 485. A7 Article 3 provides: (1) Member States shall allow the persons referred to in Article 1 to enter their territory simply on production of a valid identity card or passport. (2) No entry visa or equivalent document may be demanded save from members of the family who are not nationals of a Member State. Member States shall accord to such persons every facility for obtaining any necessary visas. A8 Article 4 provides: (1) Member States shall grant the right of residence in their territory to the persons referred to in Article 1 who are able to produce the documents listed in paragraph 3. (2) As proof of the right of residence, a document entitled Residence Permit for a National of a Member State of the EEC shall be issued. This document must include a statement that it has been issued pursuant to Regulation 1612/68 and to the measures taken by the Member States for the implementation of the present Directive. The text of such statement is given in the annex to this Directive. (3) For the issue of a Residence Permit for a National of a Member State of the EEC, Member States may require only the production of the following documents: -- by the worker: (a) the document with which he entered their territory; *690 (b) a confirmation of engagement from the employer or a certificate of employment; -- by the members of the worker's family: (c) the document with which they entered the territory; (d) a document issued by the competent authority of the State of origin or the State whence they came, proving their relationship; (e) in the cases referred to in Article 10(1) and (2) of Regulation 1612/68, a document issued by the competent authority of the State of origin or the State whence they came, testifying that they are dependent on the worker or that they live under his roof in such country. (4) A member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the worker on whom he is dependent. A9 Article 10 of Regulation 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community [FN4] provides as follows: (1) The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is

employed in the territory of another Member State: (a) his spouse and their descendants who are under the age of 21 years or are dependants; (b) dependent relatives in the ascending line of the worker and his spouse. FN4 [1968] O.J. Spec. Ed. (II) 475. (2) Member States shall facilitate the admission of any member of the family not coming within the provision of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes. (3) For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however, must not give rise to discrimination between national workers and workers from the other Member States. A10 Council Directive 73/148 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 [FN5] applies, according to Article 1 thereof, inter alios, to the following persons: (1) The Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of: (a) nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that State; (b) nationals of Member States wishing to go to another Member State as recipients of services; (c) the spouse an the children under 21 years of age of such nationals, irrespective of their nationality; (d) the relatives in the ascending and descending lines of such nationals *691 and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality. FN5 [1973] O.J. L172/14. A11 Under Article 3(1), the Member States are to grant to the persons referred to in Article 1 the right to enter their territory merely on production of a valid identity card or passport. A12 Article 3(2) is worded in the same manner as Article 3(2) of Directive 68/360. A13 Article 4(3) provides: A member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the national on whom he is dependent. A14 Article 6 provides: An applicant for a residence permit or right of abode shall not be required by a Member State to produce anything other than the following, namely: (a) the identity card or passport with which he or she entered its territory; (b) proof that he or she comes within one of the classes of person referred to in

Articles 1 and 4. A15 Council Regulation 2317/95of 25 September 1995, determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States, [FN6] lays down rules on the visa obligation, inter alia , with regard to nationals of third countries listed in the Annex. That Regulation was replaced by Council Regulation 574/1999of 12 March 1999 determining the third countries whose nationals must be in possession of visas when crossing external borders of the Member States. [FN7] FN6 [1995] O.J. L234/1. FN7 [1999] O.J. L72/2.

National law A16 Title II, Chapter I (Articles 40 to 47) of the Law of 15 December 1980 (as amended on numerous occasions) on access to the territory, residence, establishment and expulsion of foreigners [FN8] contains provisions concerning "foreigners who are nationals of the Member States of the European Communities, members of their family and foreigners who are members of the family of a Belgian national". These provisions were adopted in the light of the EC Treaty and Regulation 1612/68 and in order to implement various directives. FN8 Moniteur belge of 31 December 1980. A17 In implementation of Article 42 of the Law of 15 December 1980, a Royal Decree of 8 October 1981 laid down the conditions for recognising the right of residence and the procedure for issuing a residence permit. A18 On 28 August 1997, the Minister of the Interior and the Minister of Justice issued a circular concerning the procedure for publication of banns of marriage and documents which must be produced in order to *692 obtain a visa for the purpose of concluding a marriage in Belgium or for obtaining a visa for the purpose of reuniting a family on the basis of a marriage concluded abroad ("the Circular"). [FN9] FN9 Moniteur belge of 1 October 1997. A19 Paragraph 4 of the Circular provides as follows: (4) Lodging an application for residence after celebration of a marriage ... as regards residence, it is pointed out that the documents required for entry into the Kingdom must be produced in support of the application for residence submitted under Article 10(1) No. 1 or No. 4, or Article 40(3) to (6) of the Law of 15 December 1980 on access to the territory, residence, establishment and expulsion of aliens. That means specifically that the alien must be in possession of a valid national passport or travel document in lieu, bearing if necessary a visa or equivalent authorisation, which is valid for Belgium, having been affixed by a Belgian

diplomatic or consular representative or by a representative of a State which is a party to an international convention concerning the crossing of borders which is binding on Belgium (Article 2 of the Law of 15 December 1980). Where an alien fails to produce the above mentioned entry documents, his application for residence shall in principle be declared inadmissible. Neither the Law of 15 December 1980 nor the Royal Decree of 8 October 1981 provides expressly for this inadmissibility. A20 Paragraph 6 of the Circular provides, inter alia, as follows: Documents which must be produced for the purpose of reuniting a family on the basis of a marriage concluded abroad A. Reuniting a family on the basis of Article 10(1), No. 1 or No. 4, of the Law of 15 December 1980 ... (2) Under Article 10(1), No. 1, of the Law (application of bilateral agreements relating to the employment in Belgium of foreign workers concluded between Belgium and Morocco, Turkey, Tunisia, Algeria and Yugoslavia, approved by the Law of 13 December 1976--M.B., 17 June 1977): ... --evidence that the spouse is employed in Belgium (certificate from the employer, employment contract, entry in the commercial register, ...); --a copy of the work permit or trading licence of the spouse in Belgium; --evidence that the spouse in Belgium has worked there for at least three months (one month in the case of Turkish nationals).

Facts and main proceedings A21 On 28 November 1997, the Mouvement contre le racisme, l'antisemitisme et la xénophobie ASBL (Movement to combat racism, anti-semitism and xenophobia) ("MRAX") brought an action before the Belgian Conseil d'Etat (Administrative Section) for annulment of paragraphs 4 and 6 of the Circular. A22 The Conseil d'Etat dismissed the application with regard to paragraph 6. A23 *693 With regard to paragraph 4, MRAX submitted that the provision in question infringes Articles 8 and 9 of Directive 64/221 , Article 10 of Directive 68/360, "Article 6 of the Maastricht Treaty" and a number of provisions of Belgian law. A24 As the Conseil d'Etat considers that the interpretation of the provisions of Community law relevant to the main proceedings is not obvious, it has referred the following questions to the Court of Justice for a preliminary ruling, by order of 23 November 1999: 1. Must Article 3 of Directive 68/360 of 15 October 1968, Article 3 of Directive 73/148 of 21 May 1973 and Regulation 2317/95 of 25 September 1995, read in the light of the principles of proportionality, non-discrimination and the right to respect for family life, be interpreted as meaning that the Member States may, at the border, send back aliens who are subject to a visa requirement and spouses of Community nationals who attempt to enter the territory of a Member State without being in possession of an identity document or visa? 2. Must Article 4 of Directive 68/360 of 15 October 1968 and Article 6 of Directive

73/148, read in the light of Article 3 of each of those Directives and of the principles of proportionality, non-discrimination and the right to respect for family life, be interpreted as meaning that Member States may refuse to issue a residence document to the spouse of a Community national who has entered their territory in an irregular manner and issue an expulsion order against him? 3. Do Articles 3 and 4(3) of Directive 68/360, Article 3 of Directive 73/148 and Article 3(3) of Directive 64/221 of 25 February 1964 mean that the Member States may neither withhold a residence document nor expel the foreign spouse of a Community national who has entered the national territory in a regular manner but whose visa has expired when application is made for the issue of that document? 4. Must Articles 1 and 9(2) of Directive 64/221 of 25 February 1964 be interpreted as meaning that the foreign spouses of Community nationals who are not in possession of identity documents or a visa or whose visa has expired have the right to refer the matter to the competent authority mentioned in Article 9 when applying for the issue of a first residence document or when they have an expulsion order made against them before the issue thereof?

Preliminary observations on reunification of families A25 The present proceedings essentially concern the question of the right of residence of non-Member State nationals married to a Member State national, in particular the protection of family life against measures terminating residence or measures which impede reunification of the family, and also legal remedies. A26 The great value attached to reunification of families [FN10] is already evident from the fact that rules on it have been laid down in a series of international legal instruments, such as the International Covenant on *694 Civil and Political Rights, in the Conventions on the Rights of the Child, in the International Convention on the Protection of the Rights of All Migratory Workers and Members of their Families, in the European Convention on the Legal Status of Migrant Workers, and in the European Convention on the Protection of Human Rights and Fundamental Freedoms ("the ECHR"), and in the European Social Charter. FN10 See in that regard the communication of the Commission, the Council and the European Parliament on Community immigration policy of 22 November 2000, COM (2000) 757 final, pages 10 et seq . A27 Furthermore, for many years reunification of families has been one of the main reasons for immigration into the European Union. Reunification of families is also an important factor in the integration of non-Member State nationals who have already established themselves in the European Union before the members of their family. A28 In that context it should be noted that, apart from rules on non-Member State nationals who are members of the family of Member State nationals, Community law as it currently stands does not contain any provisions on reunification of families. Because of its lack of binding legal force, it is not

necessary to consider the 1993 Resolution of the Council on family reunification. [FN11] FN11 Council document SN 2828/1/93 WGI 1497 REV 1. See for more details Handoll, Free Movement of Persons in the EU, 1995, 367 et seq. A29 On the other hand, the Action Plan of the Council and of the Commission on an "Area of freedom, security and justice" adopted following the Treaty of Amsterdam provides for a series of specific legal instruments. They include the--planned--directive concerning the right to family reunification; at the moment, however, the Council has before it only the amended proposal of the Commission for discussion. [FN12] FN12 COM (2000) 624 final. A30 As Community law currently stands, the legal situation of non-Member State nationals who are members of the family of a Member State national who is living in his Member State and who has not exercised his right to freedom of movement, is determined solely by national provisions on family reunification. [FN13] FN13 cf. the Commission in its Proposal for a directive concerning family reunification, COM (1999) 638 final, No. 7.5; Martin, Loi du 15 Décembre 1980, Revue du droit des étrangers 1996, 722 (725). A31 Under Community law as it currently stands, there is therefore a material difference between a non-Member State national, whose spouse makes use of his rights derived from Community law, and a non-Member State national whose spouse has never made use of those rights. [FN14] FN14 Case C-206/91, Koua Poirrez v. Caisse d'Allocations Familiales de la Région Parisienne: [1992] E.C.R. I-6685, para. [13], concerning freedom of movement for workers. That is also the essential starting piont in the present proceedings. A32 Save where otherwise indicated, the following remarks concerning non-Member State nationals refer to non-Member State nationals who are married to Community citizens.

*695 The first question (refusal of entry at the frontier) A33 The first question concerns refusal to allow a non-Member State national spouse of a Community citizen entry at the frontier without a passport or visa, that frontier being Belgium's external frontier.

Submissions of the parties

A34 MRAX submits that the refusal to allow an alien entry at the border infringes Article 3 of Directive 68/360 , Article 3 of Directive 73/148, Regulation 2317/95 and Article 8(2) of the ECHR. According to MRAX, examination of the visa requirements should be carried out in Belgium and not in the country of origin of the non-Member State national. A35 The Belgian Government maintains that it is for the Member States to examine whether the persons who wish to enter their territory, or who have already entered it and assert a right of residence, may rely on Community law. It is necessary to prove identity and family relationships. Many aspects concerning the person who is a non-Member State national can be clarified only by the Belgian representation in the person's country of origin. Issue of a visa in the third country is therefore preferable to issue in Belgium itself. Moreover, the requirement for a visa represents a means in particular of examining whether the person who claims to be entering the territory of a Member State as the spouse of a Member State national actually satisfies the necessary conditions. Accordingly, the Member State can, on the basis of Directive 64/221, refuse certain rights to Member State nationals and members of their families. A36 The Austrian Government agrees with the submissions of the Belgian Government, in so far as different treatment resulting from the visa obligation is not based on non-objective considerations and does not therefore constitute discrimination. The same holds for the different treatment of persons who have complied with their obligation to obtain a visa, on the one hand, and persons who have not complied with this obligation, on the other. In the light of the free movement of persons and the principle of proportionality, a Member State may provide for exceptions from the general principle that a visa is required in specific cases in which the person concerned can plead exceptional circumstances, as Article 4 of Regulation 574/99 also provides. A37 In the Commission's view, if it is possible to refuse entry to a Member State national if he cannot prove his nationality, the same must hold for non-Member State nationals who are unable to establish their right on the basis of a family link to a Member State national. If, however, a non-Member State national can prove rights derived from Community law, the lack of a visa cannot affect those rights and cannot justify a refusal of entry at the frontier, which is the very *696 negation of those rights. Refusal of entry is therefore a disproportionate measure. For a person who has a family link to a migrant worker, the visa has a merely formal character and must be issued virtually automatically by the Member State in which entry is sought. In no way does the visa serve to determine the position under Community law of the person concerned. The right of entry is derived under Community law solely through the family link. The assistance of consulates in the non-Member State nationals' countries of origin is merely an organisational measure and cannot restrict rights derived under Community law.

Assessment

A38 As Community law currently stands, the status of spouses who are non-Member State nationals is determined by the legal status of the Community national. Those non-Member State nationals therefore have only rights derived through their spouse, for example rights of entry and residence. A39 The status conferred by Community law on non-Member State nationals is not, however, the result of primary law but only of secondary law. A40 Pursuant to Article 1 of Directive 68/360 and Article 1 of Directive 73/148, non-Member State nationals who are married to Community nationals fall within the scope ratione personae of both Directives. They are thus privileged non-Member State nationals.

1. Entry conditions--Power of the Member States to demand a visa A41 The national court's first question concerns the power of the Member States to deny entry at the frontier to non-Member State nationals who are married to Community nationals and who have no passport or visa. A42 For members of the family, in particular spouses of Community nationals, the essentially similar provisions (at least in the German version) of Article 3(1) of Directive 68/360 and Directive 73/148 apply. They provide that the Member States are to grant the right to enter their territory "merely" [FN15] on production of a valid identity card or passport. FN15 In the German version; this word is missing in some language versions of Directive 68/360 . That is, however, of no legal significance. A43 However, Article 3(2) of Directive 68/360 and of Directive 73/148--which are identical in the language of procedure and almost the same in the German version [FN16] create an exception to this basic obligation of the Member States and the corresponding right of entry. Those *697 parallel provisions allow a Member State to demand a visa from members of the family who are non-Member State nationals. FN16 Irrelevant to the English version of this Opinion. A44 Article 3 of Directive 68/360 and of Directive 73/148 therefore maintain the visa obligation for such members of the family. [FN17]Therein lies a further material difference from nationals of the Member States. In return, Article 3(2) of both Directives requires the Member States to accord the members of the family "every facility" for obtaining any necessary visas. FN17 Carlier, "La circulation des personnes dans l'Union européenne", Journal des tribunaux. Droit européen, 1995, 97 (104); Hailbronner, Neuere Entwicklungen im europäischen Ausländerrecht, 1997, 18; Maresceau, "La libre circulation des personnes et les ressortissants d'Etats tiers", in: Demaret (Hrsg.), Relations extérieurs de la Communauté européenne et marché intérieur: aspects juridiques et fonctionels, 1986, 108 (111 f.).

A45 Regulation 2317/95, replaced by Regulation 574/1999, contains a list of third-countries, whose nationals must be in possession of a visa when crossing the Community's external frontier. As these Regulations do not adopt any special rules for spouses of Community nationals, it must be assumed that this visa obligation also applies to this group of persons. A46 Article 4 of each Regulation also militates in favour of a visa obligation for non-Member State nationals who are members of the family. They exempt particular categories of persons from the visa obligation. As the category of family members who are non-Member State nationals is not one of them, it must be concluded a contrario that such members of the family are not exempt from the visa obligation. A47 Likewise, it would be contrary to Article 3(2) of Directive 63/360 and of Directive 73/148 to infer from them a general obligation on the Member States to issue a visa to members of the family. Both provisions restrict the Member States' obligation to according "every facility". A48 On the other hand, it can be inferred from the fact that "every facility" is to be accorded that in any event the procedure for issuing a visa is to be facilitated. It might be assumed that there is an obligation to accelerate the procedure in comparison with procedures concerning non-privileged non-Member State nationals, in particular in order to reduce the period for processing the application. A49 In any event, it must be concluded that the Member States have not only a power, but in certain cases also an obligation, to require a visa from members of the family if they are not nationals of a Member State. A50 It is now necessary to examine the powers retained by the Member States when a non-Member State national does not have a passport or visa. The national court's question is confined to the Member States' power to refuse entry at the frontier. It is therefore unnecessary to examine, as the Commission does, the Member States' rights to impose penalties.

*698 2. Power of the Member States to refuse entry at the frontier A51 First it should be emphasised once again that, although the power and--in some cases--the obligation of the Member States to demand a visa of non-Member State nationals, including spouses of Community citizens, is expressly regulated in Community law, the question of refusal of entry at the frontier is not. A52 Refusal of entry is one of several possible measures which the Member State may take in that connection. It must, however, be made clear that a power or an obligation to refuse entry does not follow automatically from the visa obligation for non-Member State nationals. A53 As an obligation to issue a visa at the frontier cannot be inferred from the obligation laid down in Article 3(2) of Directive 68/360 and of Directive 73/148 to "afford every facility", a prohibition on refusing entry at the frontier cannot--at least at first sight--be inferred from it. A54 Instead, it is possible to infer from the entry conditions laid down in Article 3 of Directive 68/360 and of Directive 73/148 that the Member State have a power

to refuse entry at the frontier. If a non-Member State national does not fulfil a condition, such as presentation of a valid passport or a valid visa, the Member States' obligation to grant him entry does not apply. Contrary to the Commission's view, it is not necessary to distinguish between whether the non-Member State national has no valid passport or--merely--no visa. Regulation 2317/95, which was replaced by Regulation 574/1999, shows that the visa requirement is not a lesser obligation. Article 5 of both Regulations defines visa expressly as "a decision ... which is required for entry". Community law therefore proceeds from the premise that the visa is a requirement, and even a necessary condition, for entry. A55 It is therefore necessary to consider the principle of non-discrimination referred to in the national court's question. It will then be necessary to examine the significance attached to the rights to respect for family life in a situation such as that in the main proceedings. A56 The principle of proportionality, to which the question expressly refers, will not be examined separately but in conjunction with the right to respect for family life. One of the conditions for the legality of interference with this fundamental right is the proportionality of the measure adopted by the State concerned. (a) Principle of non-discrimination A57 As regards the principle of non-discrimination, the present case essentially concerns the question whether non-Member State nationals who have a passport or a visa can be treated differently with regard to entry than non-Member State nationals who do not fulfil that condition. A58 It must first of all be pointed out that a mere difference in treatment *699 does not infringe the prohibition of discrimination. Different treatment of two groups of persons is permissible if objectively justified. A59 Although legal writers disagree as to whether non-Member State nationals can also rely on the prohibition of discrimination, the special nature of the present proceedings lies in the fact that they concern non-Member State nationals who are spouses of Community nationals, thus non-Member State nationals who--at least in some respects--are covered by Community law. To that extent the prohibition of discrimination is also applicable to them. However, even if one can thus proceed on the basis that non-Member State nationals, who are subject to derived Community law, fall within the scope of the Treaty and thus may rely on the prohibition of discrimination in Article 12 EC, it must be made clear that the present case does not concern equal treatment of non-Member State nationals and Belgian or Community nationals under that provision of the Treaty, but the treatment of two different groups of non-Member State nationals. It is therefore rather the general principle of equality, as part of general legal principles, which is the legal basis for the prohibition of discrimination. [FN18] FN18 Joined Cases 117/76 & 16/77, Ruckdeschel and Ströh v. Hauptzollamt Hamburg-St. Annen: [1977] E.C.R. 1753; [1979] 2 C.M.L.R. 445, para. [7], and Case C-309/96, Annibaldi v. Sindaco del Comune di Guidonia and Another: [1997] E.C.R. I-7493: [1998] 2 C.M.L.R. 187, para. [18].

A60 A distinction made by a Member State between non-Member State nationals without visas and non-Member State nationals with visas is based on a distinction that is not in itself discriminatory. In connection with rules relating to aliens, in particular those relating to entry, such a criterion is objective. Equal treatment of both groups of persons does not therefore appear to be required eo ipso. (b) Right to respect for family life and the principle of proportionality A61 The right to respect for family life, to which the national court refers, is a fundamental right. The Court of Justice must ensure observance of fundamental rights. [FN19] For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect. [FN20] FN19 Joined Cases 60 & 61/84 , Cinéthèque SA and Others v. Fédération nationale des cinémas français: [1985] E.C.R. 2605 *700 ; [1986] 1 C.M.L.R. 365, para. [26] and Case 12/86, Demirel v. Stadt Schwäbisch Gmünd : [1987] E.C.R. 3719; [1989] 1 C.M.L.R. 421, para. [28]. FN20 Case C-274/99 P, Connolly v. EC Commission: [2001] E.C.R. I-1611; [2001] 3 C.M.L.R. 58, para. [37] . Those principles have, moreover, been restated in Article 6(2) of the Treaty on European Union. [FN21] FN21 Case C-274/99 P, cited above, para. [38]. A62 In the present case, the ECHR therefore plays a role in so far as it is a yardstick against which the relevant provisions of secondary law are to be measured. [FN22] FN22 On interpretation of a regulation in the light of Article 8 ECHR, see Case 249/86 , EC Commission v. Germany: [1989] E.C.R. 1263; [1990] 3 C.M.L.R. 540, para. [10] see also Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary: [1986] E.C.R. 1651 ; [1986] 3 C.M.L.R. 240, para. [18], concerning the interpretation of a directive in the light of human rights and fundamental freedoms. A63 The national court's first question concerns the case of refusal to allow entry at the frontier. Such a refusal impinges on the right to respect for family life in various ways. First, it raises the issue of the negative obligation on the contracting parties or Member States derived from Article 8 ECHR, namely not to interfere with the spouses' right to live together. [FN23] Secondly, it touches on the State's positive obligation [FN24]to allow specified members of the family

access to their territory. [FN25] FN23 In that regard see generally De Schutter, Le droit au regroupement familial au croisement des ordres juridiques européens, Revue du droit des étrangers, 1996, 531 (546). On the negative obligation see the judgment of the ECHR Ciliz v. Netherlands: [2000] 2 F.L.R. 469, para. 62. FN24 Judgment of the ECHR in Marckx v. Belgium (A/31): (1979-80) 2 E.H.R.R. 330, para. 31. FN25 De Schutter (cited in fn. 22), 546. A64 This therefore concerns the core of the right to respect for family life protected by Article 8 ECHR, [FN26] namely the protection of marital relationships. [FN27] FN26 Which corresponds to Article 7 of the Charter of Fundamental Rights of the European Union adopted in Nice on 7 December 2000 ([2000] O.J. C 364/1). FN27 Judgment of the ECHR in Abdulaziz and Others v. United Kingdom (A/94): (1985) 7 E.H.R.R. 471, para. 62. A65 It must therefore be presumed that to refuse entry to a spouse at the frontier interferes with the right to respect for family life. A66 Such interference is permissible only if it satisfies the requirements of Article 8(2) ECHR. According to Article 8(2) it is permissible if it is: in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. A67 The Member States enjoy a certain amount of discretion in that regard. [FN28] FN28 Judgment of the ECHR in Ahmut v. Netherlands: (1997) 24 E.H.R.R. 62, para. 63. A68 Restrictions on the right to respect for family life must, however, be narrowly construed. The present case concerns the criterion of the necessity of the interference, primarily the proportionality of the interference. That requires private and public interests to be weighed. *701 All relevant circumstances of the particular case must be taken into account. A69 While it is for the Court of Justice to give to the national court the information on interpretation which is necessary to decide the dispute, it is for the national court to appraise the facts of the case in the light of the criteria adopted by the Court of Justice. That applies especially in view of the nature of the analysis to be carried out. [FN29]Application of the rules of Community law, like the rules for

their implementation in a specific case, remains the task of the national court. FN29 Case C-446/98, Fazenda Pública v. Câmara Municipal do Porto (C-446/98): [2000] E.C.R. I-1143, para. [23]. A70 It must be remembered that the subject-matter of the main proceedings is not a specific set of circumstances but the review of a general, abstract national rule. For that reason, examination by reference to the ECHR must be confined to matters of principle. A71 The Member States must organise their legal systems in such a way that it is possible to take into account circumstances which are relevant to an examination of the proportionality of interfering with the right to respect for family life, such as family and other personal circumstances or whether it is reasonable for the third-country spouse living in the Member State to leave that State. [FN30] In order to take account of the collective aspects of the right to respect for family life, it is therefore necessary to have regard to the interests of the other members of the family as well as to the interests of the person directly concerned. FN30 See judgment of the ECHR in Abdulaziz and Others v. United Kingdom (A/94): (1985) 7 E.H.R.R. 471. A72 The answer to the national court's first question is therefore that Article 3 of Directive 68/360, Article 3 of Directive 73/148 and Regulation 2317/95 are to be interpreted as meaning that the Member States may refuse entry at the frontier to non-Member State national spouses of Community nationals who are required to have a visa on entry but who attempt to enter the territory of a Member State without being in possession of a passport or visa only if that is compatible with the right to respect for family life, in particular with the principle of proportionality.

The second question (unlawful entry) A73 The national court's second question concerns refusal of a residence permit and expulsion from the territory in the event of the unlawful entry of the non-Member State national spouse of a Community citizen.

Arguments of the parties A74 MRAX states that, under Belgian law, a non-Member State national who has married a Belgian national during his illegal residence in Belgium must return to his country of origin in order to acquire a visa for his residence permit. *702 The Belgian Government treats non-Member State nationals who have acquired a visa in their country of origin and apply for a residence permit differently from non-Member State nationals who apply for a residence permit without being in possession of a visa. MRAX questions whether this different treatment of the two groups is justified, because both groups are in fact not so different: in one case there are non-Member State nationals who have applied for a visa, who are in their country of origin and request entry into Belgium, while in

the other case there are non-Member State nationals who are illegally resident in Belgium, and therefore already in Belgian territory, who have married there and are already enjoying a family life with their partner. A75 The Belgian Government contends that Article 4 of Directive 68/360 and Article 6 of Directive 73/148should be interpreted as meaning that they allow a Member of State to refuse to grant a residence permit to a non-Member State national spouse of a Community citizen and to order him to leave their territory, if he has unlawfully entered that territory. Any other interpretation would deprive Article 3 of Directive 68/360 and Article 3 of Directive 73/148 of any meaning and effectiveness. Finally, the Belgian Government submits that in view of the interests at stake, namely public order, on the one hand, and respect for private family life, on the other, removal from the national territory cannot be regarded as disproportionate. A76 The Austrian Government observes that both primary and secondary law provide for the termination of the right of even a national of a Member State to reside in another Member State, if the conditions for further residence are not, or are not longer, fulfilled. It can be inferred from the relevant provisions of Article 10 of Directive 68/360 and of Article 8 of Directive 73/148 that expulsion of a non-Member State national who is a member of a family is a fortiori permissible. A77 The Commission submits that under Directive 64/221 a residence permit can be refused only on grounds of public order and security and that such a measure must be based exclusively on the personal conduct of the person concerned. Unlawful entry into the territory of a Member State cannot be regarded systematically as a threat to public order and call in question the right of residence. The Member States should in any event impose proportionate penalties. Removal from the national territory and imprisonment seems in any event to be disproportionate.

Assessment A78 It must first be observed that a distinction must be drawn between the right of residence and the residence permit. While the right of residence follows as a matter of law from Article 4 of Directive 68/360 or Article 4 of Directive 73/148, the issue of a residence permit is not a *703 measure by a Member State "giving rise to rights". [FN31] That means that it cannot be constitutive of the right of residence. FN31 Case 48/75, Criminal Proceedings against Royer: [1976] E.C.R. 497; [1976] 2 C.M.L.R. 619, para. [33].

1. Refusal of a residence permit A79 It must first be emphasised that the national court's second question relates to the case where the non-Member State national has entered the territory unlawfully. A80 Article 4 of Directive 68/360 and Article 6 of Directive 73/148 provide that for the issue of the residence permit, only the production of the documents listed in

that provision can be demanded, for example, the passport with which the person concerned entered the territory. It can be inferred from this that the Member States are obliged to issue a residence permit where those conditions are satisfied. A81 Neither Article 4 of Directive 68/360 or Article 4 and 6 of Directive 73/148, nor Article 3 of either Directive, refer to whether or not the entry was lawful or unlawful. It must be concluded from this that the Community legislature clearly did not with to make the issue of the residence permit dependent on that circumstance. A82 Refusal of a residence permit must be classified as a public order measure. According to Article 3(1) of Directive 64/221, measures taken on such grounds are to be based "exclusively on the personal conduct of the individual concerned". A general, abstract national rule, such as that in the Circular at issue in the proceedings, which does not impose an obligation to examine the individual case, i.e. that such factors be taken into account, for example in that it requires a residence permit to be refused generally in the event of unlawful entry, is therefore impermissible.

2. Expulsion from the territory A83 Article 3(3) of Directive 64/221 expressly prohibits expulsion from the territory only where the identity card or passport used to enter the country has expired. A84 However, the national court's second question concerns the case where there has been unlawful entry into the country. This case is not expressly covered by Article 3(3). One could conclude from this, a contrario, that in such cases the Member States are entitled to expel the person from their territory. A85 Nevertheless, the other provisions of Article 3 of Directive 64/221 militate against such a contrario reasoning. Article 3(3) should probably be understood as a lex specialis in comparison with the general prohibition in Article 3(1). In the absence of a special rule, penalties for unlawful entry fall under the general rule in Article 3(1) of Directive 64/221. A86 *704 Expulsion from the territory represents a measure taken on grounds of public policy within the meaning of Article 3(1). However, Article 3(1) provides that such measures are to be based exclusively on the personal conduct of the person concerned. That means that a general, abstract national rule, such as that in the Circular, is therefore impermissible where it does not ensure an examination of the individual case, i.e. the taking into account of such factors, for example by laying down generally the penalty of expulsion from the territory in the event of unlawful entry. A87 According to the judgment of the Court of Justice in Royerexpulsion of a Community citizen from a Member State's territory is not permitted "if it [is] based solely on that person's failure to comply with the legal formalities concerning the control of aliens or on the lack of a residence permit". [FN32] FN32 Judgment in Case 48/75 (cited in fn. 30), para. [40].

A88 In Case 157/79, R. v. Pieck, [FN33] the Court of Justice held that a recommendation for deportation was impermissible where a Community citizen had failed to obtain the special residence permit prescribed by Article 4 of Directive 68/360. FN33 [1980] E.C.R. 2171; [1980] 3 C.M.L.R. 220, para. [20]. A89 The judgments in Royer and Pieckseem in principle to be transposable to privileged non-Member State nationals, such as spouses of Community citizens, with regard to the matters at issue here. A90 However, it is settled case law that other penalties, such as fines or imprisonment, are basically permissible in the case of unlawful acts, including infringements of the entry rules. That is, however, subject to the condition that the penalty be "proportionate" [FN34] or, in other words, an "appropriate punishment for infringement". [FN35] FN34 Case 118/75, Criminal Proceedings against Watson and Belman: [1976] E.C.R. 1185; [1976] 2 C.M.L.R. 552, para. [21]. FN35 Case 8/77, Criminal Proceedings against Sagulo and Others: [1977] E.C.R. 1495; [1977] 2 C.M.L.R. 585, para. [6]. (a) Principle of non-discrimination A91 With regard to the principle of non-discrimination as a general principle of law, it should be pointed out--as I have in answering the first question-- that drawing a distinction with regard to the issue of a residence permit, between whether or not the applicant has a valid visa, should not be classified from the outset as lacking objectivity. The identical treatment of those two categories is therefore not required eo ipso. (b) Right to respect for family life and the principle of proportionality A92 It is necessary to emphasise, in connection with the answer to the second question too, that the national proceedings are general in *705 character and that the task of the Court of Justice is to give the national court merely indications as to the interpretation of Community law that are necessary for it to decide the dispute. Consequently, it is necessary to restrict oneself to matters of principle, in particular with regard to interpretation in the light of the ECHR. Application of the Community rules, and of the national rules implementing them in a particular case, remains the task of the national court. A93 In the present case, as I have already indicated, it is necessary to proceed from the premise that a refusal to grant a residence permit for the spouse of a Community citizen and his expulsion from the territory interferes with the right to respect for family life. A94 Such interference is permissible only upon the conditions already set out above and which are to be construed narrowly, the Member States enjoying a degree of discretion in that regard. A95 When balancing private and public interests in the course of assessing

proportionality, all relevant circumstances of the particular case must be taken into account. A96 In the present case, it is necessary to give particular weight also to the fact that the non-Member State national concerned has infringed the rules relating to aliens. A97 The answer to the second question is therefore that Article 4 of Directive 68/360 and Article 6 of Directive 73/148in conjunction with Article 3 of those Directives and Article 3 of Directive 64/221are to be interpreted as meaning that the Member States may refuse to issue a residence permit to the spouse of a Community citizen who has irregularly entered their territory and adopt a measure expelling him from the territory only if that is compatible with the right to respect for family life, and in particular with the principle of proportionality.

The third question (lawful entry, expiry of the visa) A98 The national court's third question concerns the refusal of the right of residence and expulsion of a non-Member State national spouse of a Community citizen who has lawfully entered the territory and whose visa has expired when he applies for a residence permit.

Arguments of the parties A99 MRAX submits that the expiry of the visa cannot justify expulsion from the territory of the Member State, as is provided for in Article 4 of the Circular. Article 4 of Directive 68/360 does not require that the documents under which entry was permitted must still be valid. A100 According to the Belgian Government, the answer to this question is clear from the wording of Article 3(3) of Directive 64/221. According to it, the document on the basis of which entry was permitted can, for the spouse of a Member State national, be none other than the passport with valid visa which is to be submitted when the residence permit is applied for. The expiry of that document after the issue of the *706 residence permit on the basis of the production of the passport with valid visa cannot justify expulsion from the territory. A101 The Austrian Government submits that the expiry of the visa in the territory concerned after lawful entry of a non-Member State national spouse of a Member State national is not a case to which Article 3(3) of Directive 64/221 applies. Consequently, the question of justification for expulsion from the territory does not arise either. The expiry of the visa justifies refusal of a residence permit. A102 According to the Commission, the answer to this question is based on the same premises as in the case of unlawful entry. Because of the family connection with a Member State national, Directives 68/380 and 73/148 and the judgment in Royer are to be applied. [FN36] The Commission infers from this that the expiry of a visa after entry does not in principle justify refusal of a residence permit. The absence of this formal requirement does not alter the validity of the passport for the purposes of issuing a residence permit. That is, moreover, confirmed by Article 3(3) of Directive 64/221. In the Commission's view, the Community legislature is thereby emphasising the substance of that formality and

not merely its form. That is not affected by the fact that this provision governs only the expiry of an identity card or passport, not that of a visa. FN36 Judgment in Case 48/75 (cited in fn. 30).

Assessment

1. Refusal to issue a residence permit A103 Although Article 3(3) of Directive 64/221 governs the case where the identity card or passport expires, it relates to a case which is different in two respects from the case underlying the third question. First, that question concerns the case where a visa expires and not the document which made entry into the territory possible. Secondly, Article 3(3) governs the case where the documents expire after issue of the residence permit, whereas the third question concerns the case where the visa has already expired before application is made for the residence permit. A104 Article 3(3) of Directive 64/221 can therefore govern only expulsion from the territory, not also the issue of the residence permit. A105 The answer to the question whether the Member States may demand the production of a valid visa for the issue of a residence permit is to be found instead in the Community rules in which the conditions for the issue of a residence permit are expressly set out. A106 The formal conditions for the issue of a residence permit are laid down in Article 4(3) of Directive 68/360 and Article 6 of Directive 73/148. A107 Pursuant to those provisions, the Member States may demand from the applicant only the production of the document with which he entered their territory, a confirmation proving the family relationship *707 and--under Directive 68/360 for particular members of the family--a document testifying that they are dependent on the worker or live under his roof. A108 Those provisions do not refer to a visa, nor therefore to the continuing validity of a visa. A109 A comparison between the provisions of Article 3 of Directive 68/360 and Article 3 of Directive 73/148, concerning the conditions for entry, shows that a valid visa cannot be a condition. Directive 73/148 expressly refers to the requirement for a visa. A110 Moreover, in view of the information already contained in the documents production of which may be required for the issue of a residence permit, a visa does not seem to be indispensable. The documents listed in Article 4(3) of Directive 68/360 and Article 6 of Directive 73/148 suffice to enable the Member States to establish in particular the identity and nationality of the person concerned. A111 In addition, the passport with which the non-Member State national entered the territory also contains the visa, even if it has in the meantime expired. A112 Where there has been a lawful entry into the territory, a residence permit may not therefore be refused solely on the ground that the visa has expired.

2. Expulsion from the territory A113 Article 3(3) of Directive 64/221 expressly prohibits expulsion from the territory only where the identity card or passport used to enter the country and to obtain a residence permit, has expired. A114 However, the fourth question concerns the expiry of the visa before an application is made. As this too is a penalty for infringement of a rule relating to aliens and a case not expressly dealt with in Article 3(3) of Directive 64/221, the approach to answering the third question must, as regards expulsion from the territory, be the same as in the context of the second question. A115 Failing special rules, the case of such an expired visa also falls under the general provisions of Article 3(1) of Directive 64/221. I refer in that regard to my remarks in connection with the second question. A116 According to the judgment of the Court of Justice in Royer, which can in principle be transposed to non-Member State nationals as regards the points at issue here, the Member States may not punish a failure to observe "national provisions concerning the control of aliens" [FN37] with expulsion from the territory. FN37 Judgment in Case 48/75 (cited in fn. 30), para. [42]. A117 Breaches of national provisions concerning the control of aliens can however, be subject to "appropriate sanctions necessary in order to ensure the efficacity of those provisions". [FN38] However, only "appropriate punishment for infringement may be imposed". [FN39] FN38 Ibid. FN39 Case 8/77 (cited in fn. 34), para. [6]. A118 *708 That means that residence in the territory after the expiry of the visa may only be punished by an appropriate penalty, but not expulsion from the territory. A119 The answer to the third question is therefore that Article 3 and Article 4(3) of Directive 68/360, Articles 3 and 6 of Directive 73/148 and Article 3(3) of Directive 64/221 are to be interpreted as meaning that Member States may neither refuse a residence permit nor expel a non-Member State national spouse of a Community citizen who has lawfully entered the territory but whose visa has expired at the time when application is made for that permit.

The fourth question (legal remedies) A120 The fourth question concerns the legal remedies of a non-Member State national spouse of a Community citizen.

Arguments of the parties

A121 MRAX submits that the current Belgian administrative practice does not comply with the Community Directives or Article 44 of the Law of 15 October 1980. Non-Member State national spouses of Community nationals cannot apply for review under Articles 44 and 66 of that law. They can only make an application to the Conseil d'Etat for suspension or annulment of the relevant decision. The Conseil d'Etat may review only the decision's legality, but not its expediency in the light of the facts of the specific case. However, in all cases in which there is a threat to a right derived from Community law, an adequate means of redress must be available. As regards the appeal provided for in Article 9 of Directive 64/221, MRAX refers to the judgment in Joined Cases C-65/95 and C-111/95, R. v. Secretary of State for the Home Department, ex parte Shingara and Radiom. [FN40] FN40 [1997] E.C.R. I-3343; [1997] 3 C.M.L.R. 703. A122 According to the Belgian Government, Articles 8 and 9 of Directive 64/221 are not applicable to persons who have entered unlawfully. A123 The Austrian Government submits, referring to the judgments of the Court of Justice in Royer and Case 131/79, R. v. Secretary of State for Home Affairs, ex parte Santillo, [FN41] that a decision concerning expulsion from the territory cannot--except in the case of substantial urgency--be implemented against a person protected by Community law until he has been able to exhaust the remedies guaranteed to him in Articles 8 and 9 of Directive 64/221. FN41 [1980] E.C.R. 1585; [1980] 2 C.M.L.R. 308. If the spouse of a Member State national does not fulfil the conditions for entry, Articles 8 and 9 of Directive 64/221 are not applicable. This position is different, however, if the identity card or passport which allowed entry, and the issue of a residence permit, expires. That *709 case does not justify expulsion from the territory and the person concerned enjoys the guaranteed appeal procedures, because the Directive applies to him without restriction. A124 The Commission takes the view that Article 1(2) of Directive 64/221 also applies to non-Member State nationals who are members of the family of a national of a Member State. If the family connection exists, such persons also enjoy the remedies provided for in Article 9(2) of Directive 64/221 even if their visa has expired. On the other hand, if there is no identity card or passport, it refers to the answer which it believes should be given to the first question. It is necessary that the status of a person as a non-Member State national spouse of a Community national be capable of being established so that the spouse can enjoy the rights guaranteed by Community law.

Assessment

A125 As is clear from the provisions of Article 9(2) of Directive 64/221 to be interpreted here, the fourth question concerns the review of "decisions refusing the first residence permit" and "decisions concerning expulsion from the territory" by a body other than the administrative authority. More specifically, it concerns the question of the right of action, i.e. who has the right to apply for such a review. A126 The question distinguishes between four situations in which the applicant may find himself: no passport, no visa, expiry of passport, expiry of visa. Moreover, the question refers, with regard to the object of the review, to two different sets of circumstances: application for the first residence permit and expulsion from the territory before its issue. Consequently, the question contains eight different groups of cases. A127 It should first be pointed out that Article 9(2) of Directive 64/221 applies expressly both to "decisions refusing the issue of a first residence permit" and also to "decisions ordering expulsion of the person concerned before the issue of the permit". As regards the scope of application ratione materiae, for which Directive 64/221 lays down an obligation to provide for a review, the fourth question does not therefore pose any difficulties of interpretation. A128 On the other hand, Article 9(2)of the Directive does not define the persons entitled to apply for review, but refers merely to "the persons concerned". A129 As there is therefore no specific definition of the scope ratione personae with regard to the right to apply for review laid down in Article 9(2) of the Directive, it is necessary to refer to the general provisions concerning that scope. A130 According to Article 1(2) of Directive 64/221, the provisions of the Directive apply also to the spouse and the members of the family who fulfil the conditions in the regulations and directives adopted in this field in pursuance of the Treaty. The conditions under which the relevant family members in the present case fall within the scope of *710 Directive 64/221 derive from primary law and the provisions of secondary law other than Directive 64/221 itself. A131 It would however be wrong to infer, as the Belgian Government does, from the words "fulfil the conditions" that only persons who fulfil all conditions for entry and residence have a right of application. It would be just as incorrect to reduce the fourth question to the case of unlawful entry and, consequently, to deny non-Member State nationals who had already unlawfully entered the territory a right to apply for review. A132 The wording itself indicates that there should be a broad interpretation of the scope ratione personae of the right to apply for review. Article 9(2)refers to the "persons concerned", without laying down any further conditions. The case law of the Court of Justice also takes account of that in holding that Article 9(2) provides that "persons against whom decisions have been adopted ... may request that such decisions be considered ...". [FN42] FN42 Joined Cases 115 & 116/81, Adoui and Cornuaille v. Belgium: [1982] E.C.R. 1665; [1982] 3 C.M.L.R. 631, para. [15].

A133 The following two hypothetical cases demonstrate that the right to apply for relief cannot depend, in all the sets of circumstances raised by the national court's question, on fulfilment of the conditions for entry and issue of the residence permit. A134 The first set of circumstances concerns the issue of the first residence permit. If a residence permit is refused to a non-Member State national because the authority erroneously assumes that the family relationship has not been proved, the non-Member State national concerned could not bring proceedings for review of the question whether the evidence produced by him represents adequate proof, if his passport has expired after entry. A135 The second set of circumstances concerns expulsion from the territory. If, for example, the passport of a non-Member state national expires and the Member State orders expulsion from the territory, that might infringe the prohibition in Article 3(3) of Directive 64/221 . If, in such a case, the person concerned were denied the right to review of the expulsion decision, that would mean that one of the most serious interferences with his rights would not be reviewed. A136 The untenability of the Belgian Government's contention that non-Member State nationals must fulfil all conditions for entry and residence even for a right to apply for review becomes even clearer, where there is to be a substantive examination of whether or not one of the conditions for the issue of the residence permit exists. There could be no such substantive review, since formal conditions have not been satisfied. If the right of application were denied in all of the cases referred to in the national court's question, that would at the same time exclude a substantive review. A137 However, Article 9(2) of Directive 64/221 is inconsistent with the *711 exclusion of the right of application in all cases. It cannot be inferred from that provision that review of particular aspects of the decisions to which it refers may be excluded. A138 For the sake of completeness I observe, however, that, subject to the considerations set out in regard to the other questions by the national court, the lack of passport or visa or the expiry of a passport or visa may indeed be taken into account or punished in a procedure concerning the issue of a first residence permit or expulsion from the territory. A139 The question of the legal significance to be attributed to the absence of a passport or visa or the expiry of a passport or visa should be the subject-matter of the review procedure. A decision on that issue should therefore be made only in the context of the merits of the application and not of its admissibility. A140 To exclude the right of application where there is no passport or visa or where the passport or visa has expired would undermine the minimum procedural safeguard laid down by that provision. [FN43] FN43 Judgment in Joined Cases 115/81 and 116/81 (cited in fn. 41), para. [15], and Joined Cases C 297/88 & 197/89, Dzodzi v. Belgium: [1990] E.C.R. I-3763, para. [62].

A141 The general principles of Community law, including those of the ECHR, also militate in favour of an interpretation of the conditions for the right of application which is not too strict. A142 As Directive 64/221 grants rights to non-Member State nationals, this also applies to the requirement for judicial review of all corresponding decisions by a national authority, as guaranteed by Articles 6 and 13 of the ECHR. [FN44] FN44 See Case C-226/99, Siples Srl, in liquidation v. Ministero delle Finanze and Servizio della Riscossione dei Tributi and Others: [2001] E.C.R. I-277 , para. [17] and the cases cited there. A143 The principle of judicial review [FN45] entails that "the rights thus conferred can be effectively relied upon". [FN46] FN45 Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, cited above in fn. 21, para. [18]. FN46 Case C-185/97, Coote v. Granada Hospitality Ltd: [1998] E.C.R. I-5199; [1998] 3 C.M.L.R. 958, para. [20], and Case C-271/91, Marshall v. Southampton and South-West Hampshire Area Health Authority: [1993] E.C.R. I-4367; [1993] 3 C.M.L.R. 293, para. [22]. A144 Finally, a broad interpretation of the scope ratione personae of the right to apply for relief is indicated by the principle, which has become settled law of the Court of Justice, that the procedures intended to safeguard the rights granted by Community law may not render their exercise practically impossible or excessively difficult. [FN47]That would, however, be the case if the procedural right to apply for review was made dependent on the fulfilment of over-strict conditions. FN47 See Joined Cases C 397 & 410/98, Metallgesellschaft Ltd and Others, Hoechst AG and Hoechst Ltd v. Commissioners of Inland Revenue and HM Attorney General: [2001] E.C.R. I-1727; [2001] 2 C.M.L.R. 32, para. [85], and the cases cited there, and Case 33/76, Rewe-Zentralfinanz EG v. Landwirtschaftskammer für das Saarland: [1976] E.C.R. 1989; [1977] 1 C.M.L.R. 533, para. [5], and Case 45/76, Comet BV v. Produktschap voor Siergewassen : [1976] E.C.R. 2043; [1977] 1 C.M.L.R. 533, paras [12]-[16]. A145 The answer to the fourth question is therefore that Article 1 and *712 Article 9(2) of Directive 64/221 are to be interpreted as meaning that non-Member State national spouses of Community citizens who have no passport or visa or whose passport or visa has expired many apply to the competent authority within the meaning of Article 9(1) where they apply for a first residence permit or are expelled before its issue, if they prove that they come within the scope of the persons referred to in Directive 64/221. The Member States must

proceed in such a way that assertion of the rights granted by Community law is not rendered practically impossible or excessively difficult.

Conclusion A146 I therefore propose that the Court of Justice should answer the questions as follows: (1) The answer to the national court's first question is that Article 3 of Directive 68/360, Article 3 of Directive 73/148and Regulation 2317/95 are to be interpreted as meaning that the Member States may refuse entry at the frontier to non-Member State national spouses of Community nationals who are required to have a visa on entry but who attempt to enter the territory of a Member State without being in possession of a passport or visa only if that is compatible with the right to respect for family life, in particular with the principle of proportionality. (2) The answer to the second question is that Article 4 of Directive 68/360 and Article 6 of Directive 73/148in conjunction with Article 3 of those Directives and Article 3 of Directive 64/221are to be interpreted as meaning that the Member States may refuse to issue a residence permit to the spouse of a Community citizen who has irregularly entered their territory and adopt a measure expelling him from the territory only if that is compatible with the right to respect for family life, and in particular with the principle of proportionality. (3) The answer to the third question is that Article 3 and Article 4(3) of Directive 68/360, Articles 3 and 6 of Directive 73/148 and Article 3(3) of Directive 64/221 are to be interpreted as meaning that Member States may neither refuse a residence permit nor expel a non-Member State national spouse of a Community citizen who has lawfully entered the territory but whose visa has expired at the time when application is made for that permit. (4) The answer to the fourth question is that Article 1 and Article 9(2) of Directive 64/221 are to be interpreted as meaning that non-Member State national spouses of Community citizens who have no passport or visa or whose passport or visa has expired may apply to the competent authority within the meaning of Article 9(1) where they apply for a first residence permit or are expelled before its issue, if they prove that they come within the scope of the persons referred to in Directive 64/221. The Member States *713 must proceed in such a way that assertion of the rights granted by Community law is not rendered practically impossible or excessively difficult. JUDGMENT 1 By judgment of 23 November 1999, received at the Court on 2 December 1999, the Belgian Conseil d'Etat (Council of State) referred to the Court for a preliminary ruling under Article 234 ECfour questions on the interpretation of Articles 1(2), 3(3) and 9(2) of Council Directive 64/221 of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, [FN48] Articles 3 and 4 of Council Directive 68/360 of 15 October 1968 on the abolition of restrictions on movement and residence within

the Community for workers of Member States and their families, [FN49]Articles 3 and 6 of Council Directive 73/148 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 [FN50] and Council Regulation 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States. [FN51] FN48 [1964] O.J. Spec. Ed. 117. FN49 [1968] O.J. Spec. Ed. (II) 485. FN50 [1973] O.J. L172/14. FN51 [1995] O.J. L234/1 . 2 Those questions were raised in proceedings between Mouvement contre le racisme, l'antisémitisme et la xénophobie ASBL (Movement to combat racism, anti-Semitism and xenophobia; "MRAX") and the Belgian State for annulment of the Circular of the Ministers for the Interior and for Justice of 28 August 1997 concerning the procedure for publication of banns of marriage and the documents which must be produced in order to obtain a visa for the purpose of contracting a marriage in Belgium or to obtain a visa for the purpose of reuniting a family on the basis of a marriage contracted abroad. [FN52] FN52 Moniteur belge of 1 October 1997, p. 25905; "the Circular of 28 August 1997". Legal framework Community legislation 3 Article 1(1) of Regulation 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community [FN53] provides: Any national of a Member State shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or *714 administrative action governing the employment of nationals of that State. FN53 [1968] O.J. Spec. Ed. (II) 475. 4 Article 10 of Regulation 1612/68 states: 1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a) his spouse and their descendants who are under the age of 21 years or are dependants; (b) dependent relatives in the ascending line of the worker and his spouse. 2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes. 3. For the purpose of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however must not give rise to discrimination between national workers and workers from the other Member States. 5 Under Article 1 of Directive 68/360 , the Member States, acting as provided in that Directive, are to abolish restrictions on the movement and residence of nationals of the Member States and of members of their families to whom Regulation 1612/68applies. 6 Article 3 of Directive 68/360 states: 1. Member States shall allow the persons referred to in Article 1 to enter their territory simply on production of a valid identity card or passport. 2. No entry visa or equivalent document may be demanded save from members of the family who are not nationals of a Member State. Member States shall accord to such persons every facility for obtaining any necessary visas. 7 Article 4(1) of Directive 68/360 provides that the Member States are to grant the right of residence in their territory to the persons referred to in Article 1 who are able to produce the documents listed in Article 4(3). 8 As set out in the second indent of Article 4(3), for members of a worker's family those documents are: (c) the document with which they entered the territory; (d) a document issued by the competent authority of the State of origin or the State whence they came, proving their relationship; (e) in the cases referred to in Article 10(1) and (2) of Regulation 1612/68, a document issued by the competent authority of the State of origin or the State whence they came, testifying that they are dependent on the worker or that they live under his roof in such country. 9 Article 10 of Directive 68/360 provides: Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health. 10 Under Article 1(1) of Directive 73/148: the Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of: *715 (a) nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that State; (b) nationals of Member States wishing to go to another Member State as recipients of services; (c) the spouse and the children under 21 years of age of such nationals,

irrespective of their nationality; (d) the relatives in the ascending and descending lines of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality. 11 Article 3 of Directive 73/148 is in essentially the same terms as Article 3 of Directive 68/360 . 12 Article 4(1) of Directive 73/148 states: Each Member State shall grant the right of permanent residence to nationals of other Member States who establish themselves within its territory in order to pursue activities as self-employed persons, when the restrictions on these activities have been abolished pursuant to the Treaty. As proof of the right of residence, a document entitled Residence Permit for a National of a Member State of the European Communities shall be issued. This document shall be valid for not less than five years from the date of issue and shall be automatically renewable. ... 13 Article 6 of Directive 73/148 provides: An applicant for a residence permit or right of abode shall not be required by a Member State to produce anything other than the following, namely: (a) the identity card or passport with which he or she entered its territory; (b) proof that he or she comes within one of the classes of person referred to in Articles 1 and 4. 14 Article 8 of Directive 73/148 is in the same terms as Article 10 of Directive 68/360. 15 Article 1 of Directive 64/221states: 1. The provisions of this Directive shall apply to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services. 2. These provisions shall apply also to the spouse and to members of the family who come within the provisions of the regulations and directives adopted in this field in pursuance of the Treaty. 16 Article 2 of Directive 64/221provides: 1. This Directive relates to all measures concerning entry into their territory, issue or renewal of residence permits, or expulsion from their territory, taken by Member States on grounds of public policy, public security or public health. 2. Such grounds shall not be invoked to [serve] economic ends. 17 Article 3 of Directive 64/221states: 1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned. *716 2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures. 3. Expiry of the identity card or passport used by the person concerned to enter the host country and to obtain a residence permit shall not justify expulsion from the territory. 4. The State which issued the identity card or passport shall allow the holder of

such document to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute. 18 Article 8 of Directive 64/221states: The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration. 19 Article 9 provides: 1. Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the host country before which the person concerned enjoys such rights of defence and of assistance or representation as the domestic law of that country provides for. This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering expulsion. 2. Any decision refusing the issue of a first residence permit or ordering expulsion of the person concerned before the issue of the permit shall, where that person so requests, be referred for consideration to the authority whose prior opinion is required under paragraph 1. The person concerned shall then be entitled to submit his defence in person, except where this would be contrary to the interests of national security. 20 Regulation 2317/95 was annulled by judgment of 10 June 1997 in Case C-392/95, European Parliament v. EU Council. [FN54] However, the Court held that the effects of the annulled Regulation should be maintained until the Council of the European Union adopted new legislation in the matter. FN54 [1997] E.C.R. I-3213; [1997] 3 C.M.L.R. 896. 21 Article 5 of Regulation 2317/95 states: For the purposes of this Regulation, visa shall mean an authorisation given or a decision taken by a Member State which is required for entry into its territory with a view to: -- an intended stay in that Member State or in several Member States of no more than three months in all, -- transit through the territory of that Member State or several Member States, except for transit through the international zones of airports and transfers between airports in a Member State. 22 On 12 March 1999, the Council adopted Regulation 574/1999 determining the third countries whose nationals must be in possession *717 of visas when crossing the external borders of the Member States. [FN55] That Regulation was replaced by Council Regulation 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement.

[FN56] FN55 [1999] O.J. L72/2. FN56 [2001] O.J. L81/1. National legislation 23 The Law on access to the territory, residence, establishment and expulsion of foreign nationals of 15 December 1980, [FN57] as amended by the Law of 15 July 1996 [FN58] ("the Law of 15 December 1980"), provides in the first paragraph of Article 2: Foreign nationals shall be permitted to enter the Kingdom where they are in possession of: ... (ii) or a valid passport or travel document in lieu of a passport, bearing a visa or equivalent authorisation valid for Belgium affixed by a Belgian diplomatic or consular representative or by such a representative of a State party to an international Convention concerning the crossing of external borders which is binding on Belgium. FN57 Moniteur belge of 31 December 1980. FN58 Moniteur belge of 12 October 1996. 24 Under sub-paragraph (ii) of the first paragraph of Article 3 of the Law of 15 December 1980, the "authorities responsible for border controls" may send back foreign nationals who "attempt to enter the Kingdom without being in possession of the documents required by Article 2". 25 Under sub-paragraphs (i) and (ii) of the first paragraph of Article 7, a foreign national who is not authorised or allowed to reside for more than three months or to establish himself in the Kingdom may be ordered by the competent minister or a person delegated by him to leave national territory before a specified date: (i) if he is staying in the Kingdom without being in possession of the documents required by Article 2; (ii) if he remains in the Kingdom beyond the time-limit set in accordance with Article 6 or cannot prove that that time-limit has not been exceeded. 26 Article 40(2) to (6) of the Law of 15 December 1980 states: 2. For the purposes of this Law, EC foreign national shall mean any national of a Member State of the European Communities who resides in or travels to the Kingdom and who: (i) pursues or intends to pursue there an activity as an employed or self-employed person; (ii) receives or intends to receive services there;

(iii) enjoys or intends to enjoy there a right to remain; (iv) enjoys or intends to enjoy there a right of residence after ceasing a professional activity or occupation pursued in the Community; (v) undergoes or intends to undergo there, as a principal pursuit, vocational training in an approved educational establishment; or *718 (vi) belongs to none of the categories under (i) to (v) above. 3. Subject to any contrary provisions of this Law, the following persons shall, whatever their nationality, be treated in the same way as an EC foreign national covered by paragraph 2(i), (ii) and (iii) above, provided that they come in order to settle, or do settle, with him: (i) the spouse of that national; ... 4. Subject to any contrary provisions of this Law, the following persons shall, whatever their nationality, be treated in the same way as an EC foreign national covered by paragrah 2(iv) and (vi) above, provided that they come in order to settle, or do settle, with him: (i) the spouse of that national; ... 5. Subject to any contrary provisions of this Law, the spouse of an EC foreign national covered by paragraph 2(v) above and his children or those of his spouse who are dependent on them shall, whatever their nationality, be treated in the same way as the EC foreign national provided that they come in order to settle, or do settle, with him. 6. The spouse of a Belgian who comes in order to settle, or does settle, with him, and also their descendants who are under 21 years of age or dependent on them, their ascendants who are dependent on them and any spouse of those descendants or ascendants, who come to settle, or do settle, with them, shall also be treated in the same way as an EC foreign national. 27 Article 41 of the Law of 15 December 1980 provides: The right to enter the Kingdom shall be granted to an EC foreign national upon production of a valid identity card or national passport. Spouses and family members referred to in Article 40 who are not nationals of a Member State of the European Communities must be in possession of the document required under Article 2. A person holding a document issued by the Belgian authorities which he has used to enter and reside in a Member State of the Communities shall be accepted without formality on Belgian territory even if his nationality is disputed or if the document has expired. 28 Article 42 of the Law of 15 December 1980 provides: A right of residence shall be granted to EC foreign nationals under the conditions and for the period determined by the King in accordance with the regulations and directives of the European Communities. Such right of residence shall be proved by a permit issued in the cases and under the detailed rules laid down by the King, in accordance with the said regulations and directives. The decision concerning issue of a residence permit shall be taken as quickly as possible and no later than six months from the application.

29 Article 43 of the Law of 15 December 1980 states: Entry and residence may not be denied to EC foreign nationals except on grounds of public policy, public security or public health, and then only subject to the following limitations: ... (iii) expiry of a document used for entry into and residence in Belgian territory cannot by itself justify expulsion from the territory; ... 30 Sub-paragraph (i) of the first paragraph of Article 44 states: *719 An application for review, as provided for by Article 64, may be made in respect of: (i) any refusal to issue a residence permit to an EC foreign national to whom a right of residence is granted under Article 42 and any decision ordering expulsion from the territory before such a permit is issued. 31 Article 64 of the Law of 15 December 1980 states: Apart from the decisions referred to in Articles 44 and 44a, an application for review by the minister conducted in accordance with the following provisions may be made in respect of: (i) a decision refusing under Article 11 to grant a right of residence; (ii) a requirement to return to the country of origin; (iii) refusal of an application for authorisation for establishment; ... (vii) a decision requiring a foreign national, pursuant to Article 22, to leave specified premises, to stay away from them or to reside at a specified location; (viii) a decision refusing authorisation to reside to a foreign national who wishes to study in Belgium. 32 Article 69 of the Law of 15 December 1980 provides: An action for annulment, governed by Article 14 of the Laws on the Conseil d'Etat, consolidated on 12 January 1973, may be brought against a decision refusing entitlement to a right envisaged by this Law. The lodging of an application for review shall not preclude an action being brought directly for annulment of the decision whose review is sought. In that case, consideration of the action for annulment shall be suspended until the minister has ruled on the admissibility of the application for review. 33 The Circular of 28 August 1997 is worded as follows: The aim of this circular is to resolve certain problems relating to the procedure for publication of banns ... which have recently given rise to controversy. In addition, it provides clarification with regard to the documents which must be produced in order to obtain a visa for the purpose of contracting a marriage in the Kingdom or to obtain a visa for the purpose of reuniting a family on the basis of a marriage contracted abroad. ... 4. Lodging an application for residence after celebration of a marriage. ... However, as regards residence, it is to be remembered that the documents required for entry into the Kingdom must be produced in support of the

application for residence submitted under sub-paragraphs (i) or (iv) of the first paragraph of Article 10 or Article 40(3) to (6) of the Law of 15 December 1980 on access to the territory, residence, establishment and expulsion of foreign nationals. That means specifically that the foreign national must be in possession of a valid national passport or travel document in lieu of a passport, bearing if necessary a visa or equivalent authorisation valid for Belgium affixed by a Belgian diplomatic or consular representative or by such a representative of a State party to an international Convention concerning the crossing of external borders which is binding on Belgium (Article 2 of the Law of 15 December 1980). Where a foreign national fails to produce the abovementioned entry *720 documents, his application for residence shall in principle be declared inadmissible. ... 34 The Circular of the Minister for the Interior of 12 October 1998 relating to applications for residence or establishment in the Kingdom submitted, following contraction of marriage, on the basis of Article 10 or 40 of the Law of 15 December 1980 on access to the territory, residence, establishment and expulsion of foreign nationals [FN59] was adopted in order to define more precisely the rule set out in paragraph 4 of the Circular of 28 August 1997. Paragraphs 1 and 2 of the Circular of 12 October 1998 provide: 1. The general rule that an application for residence or establishment in the Kingdom in order to reunite a family will not be considered where the foreign national is not in possession of valid entry documents, that is to say a national passport or a travel document in lieu of a passport which is valid when the application is made and bears, if necessary, a valid visa, continues to apply. FN59 Moniteur belge of 6 November 1998, p. 36360; "the Circular of 12 October 1998". 2. In derogation from that general rule, an application for establishment submitted on the basis of Article 40 of the Law of 15 December 1980 by a foreign national (requiring a visa) married to a Belgian national or a national of a Member State of the EEA, who produces only a national passport, or a travel document in lieu of a passport, which is valid but bears an expired visa will however be considered in so far as the documents concerning his ties of kinship or marriage to the Belgian national or the national of a Member State of the EEA are produced at the time of the application for establishment. ... The main proceedings and the questions referred for a preliminary ruling 35 By application of 28 November 1997 to the Conseil d'Etat, MRAX sought annulment of the Circular of 28 August 1997. 36 It submitted in support of its action that the Circular, in particular paragraph 4, was incompatible with the Community directives on movement and residence within the Community.

37 Since the Conseil d'Etat found that an interpretation of Community law was required in order to dispose of the case before it, it decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: 1. Must Article 3 of Directive 68/360 of 15 October 1968, Article 3 of Directive 73/148 of 21 May 1973 and Regulation 2317/95 of 25 September 1995, read in the light of the principles of proportionality and non-discrimination and the right to respect for family life, be interpreted as meaning that the Member States may, at the border, send back foreign nationals subject to a visa requirement and married to a Community national who attempt to enter the territory of a Member State without being in possession of an identity document or visa? 2. Must Article 4 of Directive 68/360 and Article 6 of Directive 73/148, *721 read in the light of Article 3 of each of those Directives and of the principles of proportionality and non-discrimination and the right to respect for family life, be interpreted as meaning that Member States may refuse to issue a residence permit to the spouse of a Community national who has entered their territory unlawfully and issue an expulsion order against him? 3. Do Articles 3 and 4(3) of Directive 68/360, Article 3 of Directive 73/148 and Article 3(3) of Directive 64/221of 25 February 1964 mean that the Member States may neither withhold a residence permit nor expel a foreign spouse of a Community national who has entered national territory lawfully but whose visa has expired when application is made for the issue of that permit? 4. Must Articles 1 and 9(2) of Directive 64/221 of 25 February 1964 be interpreted as meaning that foreign spouses of Community nationals who are not in possession of identity documents or a visa or whose visa has expired have the right to refer the matter to the competent authority mentioned in Article 9(1) when applying for the issue of a first residence permit or when they have an expulsion order made against them before the issue thereof? Preliminary point 38 The Belgian State contends that the national legislature has placed spouses of Belgian nationals on the same footing as nationals of the Member States so that they are not treated less favourably than a spouse or family member of a national of another Member State. However, according to the Belgian State the Court of Justice has no jurisdiction where the situation of a third country national married to a Belgian national is at issue. 39 As to that submission, Community legislation concerning freedom of movement for workers, freedom to provide services and freedom of establishment is not applicable to situations not presenting any link to any of the situations envisaged by Community law. Consequently, that legislation cannot be applied to the situation of persons who have never exercised those freedoms. [FN60] FN60 See, in particular, Case C-206/91, Koua Poirrez v. Caisse d'Allocations Familiales de la Région Parisienne : [1992] E.C.R. I-6685, paras [10], [11] & [12], and Case C-60/00, Carpenter v. Secretary of State for the Home Department:

[2002] 2 C.M.L.R. 64, para. [28]. 40 It is in that light that the Court will answer the questions inviting it to rule on the effect of a number of provisions of Directives 64/221, 68/360 and 73/148 and Regulation 2317/95 with regard to third country nationals married to a Member State national. Question 1 Observations submitted to the Court 41 MRAX submits that to send back at the border of a Member State a third country national married to a Member State national on the ground that he does not have a visa issued by that Member State infringes Article 3 of Directive 68/360, Article 3 of Directive 73/148, Regulation 2317/95 and Article 8(2) of the European Convention for *722 the Protection of Human Rights and Fundamental Freedoms ("the Convention"). 42 In addition MRAX argues that, in the case of third country nationals married to a Member State national, examination of the conditions for obtaining a visa should take place in Belgium and not in their country of origin. 43 With regard to the requirement for an identity document, the Belgian State contends that the Member States have the task of checking whether or not third country nationals who wish to enter their territory or, having already entered, claim a right of residence, may rely on Community law. The obligation to produce a valid passport at the point of entry to the Member State is thus justified by the need for a third country national to prove his identity or his family ties with a national of a Member State. 44 With regard to the requirement for a visa, the Belgian State submits that the obligation to apply for a visa before entering the territory of a Member State provides the Member States with means of checking both whether a third country national who wishes to enter their territory as the spouse of a Member State national fulfils the requisite conditions and whether he does not fall within the category of persons liable to be refused entry on grounds of public policy, public security or public health in accordance with Directive 64/221. Accordingly, Article 3 of Directive 68/360 and Article 3 of Directive 73/148, which authorise the Member States to demand a visa from third country nationals who are a member of the family of a Member State national, should be interpreted as entitling the Member States to send back such persons at their borders if they have no visa. The opposite interpretation would render those provisions nugatory. 45 The Belgian State adds that many matters relating to a third country national can be clarified only by the Belgian representation in his country of origin. For that reason it is appropriate to issue the visa in the third country rather than at the Belgian border. 46 The Austrian Government submits that the obligation on third country nationals married to a Member State national to obtain a visa is not discriminatory in so far as both Belgian law and Community law prescribe such

an obligation. 47 On the other hand, to allow third country nationals who have not complied with the requirement for a visa to enter Belgian territory would infringe the principle of equality to the disadvantage of third country nationals who have complied with that requirement. However, in light of the principles of freedom of movement for persons and proportionality, a Member State is permitted to create exemptions from the general requirement for a visa in exceptional circumstances, as provided for in particular by Article 4 of Regulation 574/1999. 48 The Commission underlines the particular position of a third country national who is a member of the family of a Member State national vis-à-vis other third country nationals who arrive at the *723 external border of the Community. He derives from Community law the right to settle in the Community with the Member State national. 49 According to the Commission, a Member State national can be refused entry into a Member State if he cannot prove his nationality. The same must accordingly hold for a third country national who is unable to prove his family ties with a Member State national. 50 If, on the other hand, a third country national is able to establish those family ties and, therefore, rights which he derives from Community law, the lack of a visa is not to affect those rights and cannot in any event justify refusal of entry at the border. Such a measure would amount to negation of the rights and appears disproportionate. 51 The Commission submits that, where a person establishes family ties with a migrant Community worker, the visa has a merely formal character and must be issued virtually automatically by the Member State through which he enters the Community. His right to enter the Community is not founded in any way on the visa but derives, pursuant to Community law, from the family ties alone. 52 The Commission adds that issue of visas by consulates of a Member State located in third country nationals' States of origin is merely an organisational measure which cannot restrict the exercise of rights arising from Community law. The Court's answer 53 It is apparent in particular from the Council regulations and directives on freedom of movement for employed and self-employed persons within the Community that the Community legislature has 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. [FN61] FN61 Carpenter, cited above, para. [38]. 54 Thus, Article 10 of Regulation 1612/68 , Article 1 of Directive 68/360 and Article 1 of Directive 73/148extend 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 is covered by those

provisions. [FN62] FN62 Case 48/75 Criminal Proceedings against Royer: [1976] E.C.R. 497; [1976] 2 C.M.L.R. 619, para. [13]. 55 In addition, under Article 3(1) of Directive 68/360 and Article 3(1) of Directive 73/148, which are worded in almost identical terms, the Member States are to allow nationals of the Member States and members of their family who are covered by those Directives to enter the territory of the Member States simply on production of a valid identity card or passport. 56 Nevertheless, in accordance with Article 3(2) of Directive 68/360 *724 and Article 3(2) of Directive 73/148, when a national of a Member State moves within the Community with a view to exercising the rights conferred upon him by the Treaty and those Directives, the Member States may demand an entry visa or equivalent document from members of his family who are not nationals of a Member State. The list of third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States was determined by Regulation 2317/95, which was replaced by Regulation 574/1999, itself since replaced by Regulation 539/2001. 57 As Community legislation does not specify the measures which a Member State may 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 does not appear to be precluded. [FN63] FN63 See in particular, to that effect, with regard to Article 3(1) of Directive 68/360 and Article 3(1) of Directive 73/148, Case C-68/89, EC Commission v. Netherlands: [1991] E.C.R. I-2637; [1993] 2 C.M.L.R. 389, para. [11]. 58 First, in the absence of a valid identity card or passport, documents which are intended to enable their holder to provide proof of his identity and nationality, [FN64] the person concerned cannot as a rule properly prove his identity or, consequently, his family ties. FN64 See, to that effect, in particular Case C-376/89, Giagounidis v. Stadt Reutlingen: [1991] E.C.R. I-1069; [1993] 1 C.M.L.R. 573, paras [14] & [15]. 59 Secondly, while, as the Commission correctly points out, the right of a third country national married to a Member State national to enter the territory of the Member States derives under Community law from the family ties alone, the fact remains 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 may be conditional on possession of a visa. Indeed, Article 5 of Regulation 2317/95 defines a visa as an authorisation given or a decision taken by a Member State which is required "for entry into its territory". 60 However, Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148

state that the Member States are to accord to such persons every facility for obtaining any necessary visas. This means that, if those provisions of Directives 68/360 and 73/148 are not to be denied their full effect, a visa must be issued without delay and, as far as possible, at the place of entry into national territory. 61 In view of the importance which the Community legislature has attached to the protection of family life, [FN65] it is in any event disproportionate and, therefore, prohibited to send back a third country national married to a national of a Member State where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents 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 . FN65 See para. 53 of this judgment. 62 *725 The answer to the first question referred for a preliminary ruling must therefore be that, on a proper construction of Article 3 of Directive 68/360, Article 3 of Directive 73/148 and Regulation 2317/95, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents 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. Question 2 Observations submitted to the Court 63 MRAX states that in order for a third country national who has got married in Belgium while resident there unlawfully to claim a right of residence, he is obliged to return to his country of origin to obtain a visa. However, the Belgian State sometimes agrees, in its discretion, to regularise the residence of a spouse of a Member State national. 64 Accordingly, in MRAX's submission, the Belgian State's administrative practice does not provide spouses of Member State nationals with any legal certainty and may be perceived as discriminatory. 65 MRAX observes that the Court has never ruled on the sanction to be imposed on a third country national who has entered the territory of a Member State unlawfully; however, it has held that a national of a Member State who is not in possession of the document required (a passport) in order to be able to reside in another Member State cannot have an expulsion order issued against him but may be sentenced to payment of a fine in criminal proceedings. [FN66] MRAX wonders whether the measures which may be taken against a national of a Member State should not be transposed to the spouse of such a national and whether infringements in respect of entry into and residence in the territory of a

Member State could not be punished by a fine, whether administrative or imposed in criminal proceedings, a sanction which would be more in keeping with the principle of freedom of movement and the right to respect for private life. FN66 See Case 8/77, Criminal Proceedings against Sagulo and Others (8/77), 14 July 1977: [1977] E.C.R. 1495; [1977] 2 C.M.L.R. 585. 66 The Belgian State contends that Article 4 of Directive 68/360 and Article 6 of Directive 73/148must be interpreted as allowing a Member State to refuse to grant a residence permit to a third country national who is married to a Member State national and has entered its territory *726 unlawfully and to issue an expulsion order against him. To decide otherwise would render Article 3 of Directive 68/360 and Article 3 of Directive 73/148meaningless and entirely redundant. 67 The Belgian State maintains that, in a situation such as that envisaged in the second question referred for a preliminary ruling, an expulsion order cannot be regarded as disproportionate, having regard to the competing interests, namely public policy requirements and the requirements of respect for private and family life. In its submission, the interference with family life would be extremely limited if the third country national were refused entry or requested to leave national territory: the spouses would be separated for a brief period if the person concerned were able to establish entitlement to the benefit of the Community law provisions since, in that case, it should be possible to grant him a visa within a short time. 68 The Austrian Government observes that if both primary and secondary law provide that the Member States may terminate the right of nationals of other Member States to reside in their territory if the conditions for further residence are not, or are no longer, fulfilled, a Member State must a fortiori be able to expel a third country national who is a member of the family of a Member State national. [FN67] FN67 See Article 10 of Directive 68/360 and Article 8 of Directive 73/148. 69 The Commission maintains that if a third country national who is married to a Member State national furnishes proof of those family ties when he submits an application for a residence permit in accordance with Article 4(1) of Directive 68/360, he should not be refused a residence permit on the sole ground that he entered the Member State concerned unlawfully. 70 The Commission points out in this connection that the Court ruled in Royer, cited above, that the mere failure by a national of a Member State to comply with the formalities concerning the entry, movement and residence of aliens is not of such a nature as to constitute in itself conduct threatening the requirements of public policy and public security and cannot therefore, by itself, justify a measure ordering expulsion or temporary imprisonment for that purpose. According to the Commission, there is nothing to prevent that case law from applying by analogy to a third country national who is covered by Community law because of his

family ties with a migrant Community worker. 71 The Commission submits that under Directive 64/221 a residence permit can be refused, or expulsion from national territory ordered, only on grounds of public policy, public security or public health and that such measures must be based exclusively on the personal conduct of the individual concerned. Unlawful entry into the territory of a Member State cannot systematically constitute a threat to the requirements of public policy calling into question the very right of residence. 72 *727 The Commission adds that in Case 118/75, Criminal Proceedings against Watson and Belman , [FN68] the Court defined its position with regard to the sanctions which the Member States may impose in the event of a failure to comply with certain formalities provided for by Community legislation. Having regard to that case law, the Member States may prescribe proportionate sanctions if their territory is entered unlawfully, such as a fine. [FN69] However, the imposition of such sanctions must not affect issue of the residence permit. FN68 [1976] E.C.R. 1185; [1976] 2 C.M.L.R. 552. FN69 Sagulo, cited above, para. [6]. The Court's answer 73 The second question must be understood as referring to the position of a third country national who has entered the territory of a Member State unlawfully and is able to furnish proof of his identity and of his marriage to a Member State national falling within the provisions of Directives 68/360 or 73/148. 74 As the Court has stated on several occasions, issue of a residence permit to a national of a Member State [FN70] is 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 must be made with regard to a third country national married to a national of a Member State, whose right of residence derives directly from Article 4 of Directive 68/360 or Article 4 of Directive 73/148, irrespective of issue of a residence permit by the competent authority of a Member State. FN70 See, in particular, Case C-363/89, Roux v. Belgium : [1991] E.C.R. I-273; [1993] 1 C.M.L.R. 3, para. [12]. 75 The detailed rules governing issue of residence permits are determined for employed persons and members of their families by Directive 68/360 and for self-employed persons and members of their families by Directive 73/148. 76 Under Article 4(3) of Directive 68/360 and Article 6 of Directive 73/148, a Member State may make issue of a residence permit conditional upon production of the document with which the person concerned entered its territory. [FN71] FN71 See Roux, cited above, paras [14] & [15].

77 Furthermore, Community law does 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, [FN72] provided that those sanctions are proportionate. [FN73] FN72 Royer, cited above, para. [42]. FN73 See, in particular, Case 157/79, R. v. Pieck: [1980] E.C.R. 2171; [1980] 3 C.M.L.R. 220, para. [19]. 78 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 *728 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. [FN74] FN74 See, by analogy, in particular Royer, para. [40]. 79 It is true that Article 10 of Directive 68/360 and Article 8 of Directive 73/148do 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 64/221 lays down that measures taken on grounds of public policy or of public security are 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 cannot in itself give rise to application of the measures referred to in Article 3 of Directive 64/221. [FN75] FN75 Royer, paras [47] & [48]. 80 The answer to the second question referred for a preliminary ruling must therefore be that, on a proper construction of Article 4 of Directive 68/360 and Article 6 of Directive 73/148, a Member State is not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and of his marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfully. Question 3 Observations submitted to the Court 81 MRAX argues that Article 4 of Directive 68/360 does not require that the document with which members of the family of a Community worker have lawfully entered the territory of a Member State must still be valid when they apply for issue of a residence permit. Therefore, paragraph 4 of the Circular of 28 August

1997, according to which an application for residence by a spouse of a Member State national is inadmissible where it is submitted after the document has expired, infringes Community law. 82 The Belgian State submits that, under Article 3(3) of Directive 64/221, expiry of the identity card or passport used by the person concerned to enter the host Member State and to obtain a residence permit is not to justify expulsion from the territory. It follows a contrario that, where the document expires before a residence permit is applied for, the Member State is entitled to refuse the application and expel the third country national married to a Member State national. Thus, the document with which the former entered the territory of a Member State that is envisaged by Article 4(3) of *729 Directive 68/360 can only be a passport bearing a visa which is still valid. 83 The Austrian Government contends that expiry of the visa within the Member State justifies a refusal to issue a residence permit. 84 The Commission submits that the third question referred for a preliminary ruling should be answered in the affirmative. Where the spouse of a Member State national establishes that family tie, Directives 68/360 and 73/148 apply and the Member States are under an obligation to issue a residence permit to him, as follows from Royer, cited above. The Commission takes this to mean that in principle a residence permit cannot be refused on the ground that the visa expired after entry into national territory. That formal defect is not such as to affect the validity of the passport for the purposes of issue of a residence permit. This analysis is confirmed by Article 3(3) of Directive 64/221 , which demonstrates the intention of the Community legislature that the substance of an application for a residence permit should prevail over its purely formal aspects. 85 The Commission adds that failure to submit an application for a residence permit before a visa expires cannot in itself constitute personal conduct liable to threaten the requirements of public policy and public security justifying, as such, refusal to issue a residence permit or, a fortiori, a measure ordering expulsion. The Court's answer 86 Where a third country national remains in the territory of a Member State after his visa has expired, he infringes the legislation of that Member State concerning residence of aliens. 87 Article 3(3) of Directive 64/221 , which has been referred to in the course of the proceedings before the Court, provides that expiry of the identity card or passport used by a national of a Member State or members of his family to enter the host Member State and to obtain a residence permit is not to justify expulsion from the territory. 88 However, the third question submitted for a preliminary ruling concerns the situation of a person married to a national of a Member State and requiring a visa, who entered lawfully but did not apply for a residence permit before his visa expired. 89 While Article 4(3) of Directive 68/360 and Article 6 of Directive 73/148 authorise the Member States to demand, for the purpose of issue of a residence

permit, production of the document with which the person concerned entered their territory, they do not lay down that that document must still be valid. Accordingly, where a third country national requires a visa, issue of a residence permit to him cannot be made subject to the condition that his visa is still valid. That is all the more the case because, as the Court held in Giagounidis, cited above, at paragraphs 22 and 23, the Member States are obliged to grant the right of residence within their territory to the workers referred to in *730 Article 1 of Directive 68/360 who can produce either a valid identity card or a valid passport, regardless of the document with which they entered their territory. 90 Consequently, a Member State cannot make issue of a residence permit under Directives 68/360 and 73/148 conditional upon production of a valid visa. Furthermore, as follows from paragraph 78 of this judgment, an order of expulsion from national territory on the sole ground that a visa has expired would constitute a sanction manifestly disproportionate to the gravity of the breach of the national provisions concerning the control of aliens. 91 The answer to the third question referred for a preliminary ruling must therefore be that, on a proper construction of Articles 3 and 4(3) of Directive 68/360, Articles 3 and 6 of Directive 73/148 and Article 3(3) of Directive 64/221, a Member State may neither refuse to issue a residence permit to a third country national who is married to a national of a Member State and entered the territory of that Member State lawfully, nor issue an order expelling him from the territory, on the sole ground that his visa expired before he applied for a residence permit. Question 4 Observations submitted to the Court 92 MRAX states that Articles 8 and 9 of Directive 64/221 have been transposed into Belgian law by Articles 44 and 64 of the Law of 15 December 1980. However, the Belgian State's current administrative practice denies third country nationals who are married to Member State nationals and are not in possession of a visa or whose visa has expired the right to make an application for review as provided for in Articles 44 and 64 of the Law of 15 December 1980 when a decision is made refusing them a residence permit or ordering their expulsion. They are permitted only to bring an action for suspension and annulment of the decision before the Conseil d'Etat, which merely reviews the decision's legality and cannot review whether the decision was appropriate in the light of the facts and circumstances of the case. Accordingly, Belgian administrative practice does not comply with the requirements of Community law. 93 According to the Belgian State, Articles 8 and 9 of Directive 64/221, under which a third country national may refer the matter to the competent authority of the Member State, envisaged in Article 9(1), where he applies for issue of a first residence permit or his expulsion is ordered before such a permit is issued, do not apply where he has not entered the territory of that Member State lawfully. 94 Article 1(2) of Directive 64/221 limits the Directive's scope to members of the family of a Member State national who come within the provisions of the

regulations and directives adopted in the field. A Member State national's spouse who is not in possession of an identity *731 document or visa or whose visa has expired does not come within the conditions set out in Articles 3 and 4 of Directive 68/360 and in Regulation 2317/95. 95 The Austrian Government submits that, in the absence of absolute urgency, a decision to expel a person protected by Community law is not to be implemented until he has been able to exhaust the remedies which he is guaranteed by Articles 8 and 9 of Directive 64/221. [FN76] FN76 Royer, cited above, and Case 131/79, R. v. Secretary of State for Home Affairs, ex parte Santillo: [1980] E.C.R. 1585; [1980] 2 C.M.L.R. 308. 96 However, if under Belgian law entry and residence of third country nationals who are a member of the family of a Member State national is conditional upon production of a valid passport or identity card and of a visa, it is legitimate to deny such a family member who has entered Belgian territory unlawfully the right to bring the matter before the competent authority within the meaning of Article 9(1) of Directive 64/221 . 97 On the other hand, having regard to Article 3(3) of Directive 64/221, the family member is to enjoy the right of recourse provided for in Article 9 of the Directive where he has entered the territory of the Member State lawfully but the identity card or passport used by him to enter and to obtain a residence permit has expired. In such a case expulsion from national territory is not justified. 98 The Commission contends that Article 1(2) of Directive 64/221 applies to third country nationals who are a member of the family of a Member State national, even if they are not in possession of a visa or their visa has expired. Provided that the family ties are established, there is no doubt that they enjoy the rights of recourse provided for in Article 9(2) of Directive 64/221. 99 On the other hand, if there are no identity documents the answer should be the same as that suggested for the first question. The status of spouse of a Member State national must be established in order for the Community law protection to apply. The Court's answer 100 The purpose of Article 9(2) of Directive 64/221 is to provide minimum procedural guarantees for persons refused a first residence permit, or whose expulsion is ordered before the issue of the permit, in any of the three cases defined in Article 9(1). Where the right of appeal against administrative measures is restricted to the legality of the decision, the purpose of the intervention of the competent authority is to enable an examination of the facts and circumstances, including factors demonstrating the appropriateness of the proposed measure, to be carried out before the decision is finally taken. [FN77] FN77 See, to that effect, Joined Cases C 65 & 111/95, R. v. Secretary of State for the Home Department, ex parte Shingara and Radiom: [1997] E.C.R. I-3343;

[1997] 3 C.M.L.R. 703 , paras [34] & [37]. 101 The provisions of Article 9 of Directive 64/221, which are complementary to those relating to the system of appeals to a court of law referred to in Article 8 and are intended to mitigate the effect of *732 deficiencies in those remedies, [FN78] call for a broad interpretation as regards the persons to whom they apply. In the field of Community law, the requirement for judicial review of any decision of a national authority reflects a general principle stemming from the constitutional traditions common to the Member States and enshrined in Articles 6 and 13 of the Convention . [FN79] FN78 See, in particular, Case 98/79, Pecastaing v. Belgium: [1980] E.C.R. 691; [1980] 3 C.M.L.R. 685, paras [15] & [20]. FN79 Case 222/86, Union Nationale des Entraineurs et Cadres Techniques Professionnels du Football (UNECTEF) v. Heylens and Others: [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901, para. [14], Case C-97/91, Oleficio Borelli SpA v. EC Commission: [1992] E.C.R. I-6313, para. [14], and Case C-226/99, Siples Srl, in liquidation v. Ministero delle Finanze and Servizio della Riscossione dei Tributi and Others: [2001] E.C.R. I-277 , para. [17]. 102 Accordingly, contrary to the argument put forward by the Belgian State, any foreign national married to a Member State national claiming to meet the conditions necessary to qualify for the protection afforded by Directive 64/221 benefits from the minimum procedural gurantees laid down in Article 9 of the Directive, even if he is not in possession of an identity document or, requiring a visa, he has entered the territory of a Member State without one or has remained there after its expiry. 103 Moreover, those procedural guarantees would be rendered largely ineffective if entitlement to them were excluded in the absence of an identity document or visa or where one of those documents has expired. 104 The answer to the fourth question referred for a preliminary ruling must therefore be that, on a proper construction of Articles 1(2) and 9(2) of Directive 64/221, a foreign national married to a national of a Member State has the right to refer to the competent authority envisaged in Article 9(1) of that Directive a decision refusing to issue a first residence permit or ordering his expulsion before the issue of the permit, including where he is not in possession of an identity document or where, requiring a visa, he has entered the territory of a Member State without one or has remained there after its expiry. Costs 105 The costs incurred by the Austrian Government and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

R1 Order On those grounds, THE COURT, in answer to the questions referred to it by the Conseil d'Etat by judgment of 23 November 1999, HEREBY RULES: 1. On a proper construction of Article 3 of Council Directive 68/360 of 15 October 1968 on the abolition of restrictions on *733 movement and residence within the Community for workers of Member States and their families, Article 3 of Council Directive 73/148 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 and Council Regulation 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents 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. 2. On a proper construction of Article 4 of Directive 68/360 and Article 6 of Directive 73/148, a Member State is not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and of his marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfully. 3. On a proper construction of Articles 3 and 4(3) of Directive 68/360, Articles 3 and 6 of Directive 73/148 and Article 3(3) of Council Directive 64/221 of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, a Member State may neither refuse to issue a residence permit to a third country national who is married to a national of a Member State and entered the territory of that Member State lawfully, nor issue an order expelling him from the territory, on the sole ground that his visa expired before he applied for a residence permit. 4. On a proper construction of Articles 1(2) and 9(2) of Directive 64/221, a foreign national married to a national of a Member State has the right to refer to the competent authority envisaged in Article 9(1) of that Directive a decision refusing to issue a first residence permit or ordering his expulsion before the issue of the permit, including where he is not in possession of an identity document or where, requiring a visa, he has entered the territory of a Member State without one or has remained there after its expiry.

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