Van Duyn v. Home Office (Case 41/74) Before the Court of Justice of the European Communities ECJ

Transcription

1 Van Duyn v. Home Office (Case 41/74) Before the Court of Justice of the European Communities ECJ ( The President, Judge R. Lecourt; Judges C. Ó Dálaigh, Lord Mackenzie Stuart, A. M. Donner, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher and M. Sorensen.) M. Henri Mayras, Advocate General. 4 December 1974 Reference from the Chancery Division of the English High Court [FN1] Under Article 177 EEC. National courts. Self-executing provisions. Article 48 EEC is self-executing, having a direct effect in the legal orders of the member-states and conferring on individual rights which the national courts must protect. [8] and ruling 1. FN1 [1974] 1 C.M.L.R Community law and national law. Judicial review. Public policy. The exercise by a member-state of the rights given in Article 48 (3) EEC to limit free movement of workers on grounds of public policy, public security or public health is subject to judicial control. [7] National courts. Self-executing provisions. Directives. It is necessary to examine, in every individual case, whether the nature, general scheme and wording of a Community legal provision (whether directive or decision) are capable of having direct effects on the relations between member- States and individuals. The tests are: (1) whether the provision lays down an obligation which is not subject to any exception or condition and which, by its

2 very nature, does not require the intervention of any act on the part either of the institutions of the Community or of member-states; (2) in casu (Article 3 (1) of Directive 64/221 limiting to 'personal conduct' the public policy proviso in Article 48 (3) EEC), where the member-states are obliged, in implementing a clause which derogates from one of the fundamental principles of the Treaty in favour of individuals (freedom of movement) not to take account of factors extraneous to personal conduct, legal certainty requires that the persons concerned should be able to rely on the limitation contained in a legislative act, even though the latter has no automatic direct effect in its entirety; (3) if the meaning and exact scope of the provision raise questions of interpretation, these can be resolved by the courts, using Article 177 procedure if need be. Accordingly, *2 Article 3 (1) of Directive 64/221 is self-executing, conferring on individuals rights which are enforceable by them in the courts of a member-state and which the national courts must protect. [12-15] Movement of persons. Exclusion of aliens. Public policy. 'Personal conduct'. Although a person's past association cannot, in general, amount to 'personal conduct' within the meaning of Article 3 (1) of EEC Directive 64/221, present association, which reflects participation in the activities of the body or organisation and identification with its aims and designs, may be considered a voluntary act of the person concerned and consequently part of his 'personal conduct'. [17] Movement of persons. Exclusion of aliens. Public policy. Although 'public policy' as a ground for derogating from freedom of movement under Article 48 (3) EEC must be interpreted strictly, the competent national authorities should be allowed an area of discretion within the limits imposed by the Treaty and subject to control by the Community institutions. In particular, where the competent authorities of a member-state have clearly defined their standpoint as regards the activities of a particular organisation and where, considering it to be socially harmful, they have taken administrative measures to counteract those activities, the member-state cannot be forced, in order to be able to rely on the concept of 'public policy', to make such activities unlawful, if recourse to such a measure is not thought appropriate in the circumstances. [18-19] Movement of persons. Exclusion of aliens. Public policy. 'Personal conduct'. Article 48 (3) EEC and Article 3 (1) of Directive 64/221 mean that a member- State, in imposing restrictions justified on grounds of public policy, is entitled to take into account, as a matter of personal conduct of the individual concerned, the fact that the individual is associated with some body or organisation the

3 activities of which the member-state considers socially harmful but which are not unlawful in that State, despite the fact that no restriction is placed upon nationals of the said member-state who wish to take similar employment with those same bodies or organisations. [24] The Court, interpreting Article 48 (3) EEC and Article 3 (1) of Directive 64/221, held that Article 48 is self-executing, that Article 3 (1) of the directive is selfexecuting, that current membership of and participation in the activities of a frowned-upon organisation may amount to 'personal conduct' within the meaning of the directive, and that such conduct does not have to be tainted with illegality before a member-state may exercise its discretion under Article 48 (3) and refuse a Community national entry into the country. Representation *3 Alan Newman, of the English Bar, for the applicant. Peter Gibson, of the English Bar, for the respondent. Anthony McClellan, Legal Adviser to the E.C. Commission, for the Commission as amicus curiae. The following cases were referred to by the Advocate General in his submissions: 1. Alfons Lütticke GmbH v. Hauptzollamt Sarrelouis (57/65), 16 June 1966: [1971] C.M.L.R. 674, 12 Recueil International Fruit Co. NV. v. Produktschap voor Groenten en Fruit (21-24/72), 12 December 1972: 18 Recueil Schlüter v. Hauptzollamt Lörrach (9/73), 24 October 1973: [1973] E.C.R Reyners v. Belgian State (2/74), 21 June 1974: [1974] 2 C.M.L.R. 305, [1974] E.C.R Re French Merchant Seamen: E.C. Commission v. France (167/73), 4 April 1974: [1974] 2 C.M.L.R. 216, [1974] E.C.R Franz Grad v. Finanzamt Traunstein (9/70), 6 October 1970: [1971] C.M.L.R. 1, 16 Recueil Transports Lesage et Cie v. Hauptzollamt Freiburg (20/70), 21 October 1974: [1971] C.M.L.R. 1, 16 Recueil Haselhorst v. Finanzamt Düsseldorf-Altstadt (23/70), 21 October 1970: [1971] C.M.L.R. 1, 16 Recueil S.A.C.E. v. Italian Ministry of Finance (33/70), 17 December 1970: [1971] C.M.L.R. 123, 16 Recueil Württembergische Milchverwertung-Süd-Milch AG v. Ugliola (15/69), 15 October 1969: [1970] C.M.L.R. 194, 15 Recueil 363. The following additional cases were referred to in argument: 11. Salgoil SpA v. Foreign Trade Ministry of the Italian Republic (13/68), 19 December 1968: [1969] C.M.L.R. 181, 14 Recueil NV Algemene Transport- en Expeditie Onderneming Van Gend en Loos v.

4 Nederlandse Belastingadministratie (26/62), 5 February 1963: [1963] C.M.L.R. 105, 9 Recueil Plaumann & Co. v. EEC Commission (25/62), 15 July 1963: [1964] C.M.L.R. 29, 9 Recueil Unger v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten (75/63), 19 March 1964: [1964] C.M.L.R. 319, 10 Recueil Diederichs and Plaschke v. the State (Arrondissementsrechtbank, the Hague), 7 January 1970: [1973] C.M.L.R. 509, [1971] N.J City of Wiesbaden v. Barulli (Landgericht, Wiesbaden), 14 November 1966: [1968] C.M.L.R. 239, [1967] dvbl Corvelyn (Belgian Conseil d'etat), 7 October 1968: [1968] Bull.Arr TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE *4 Facts The Church of Scientology is a body established in the United States of America, which functions in the United Kingdom through a college at East Grinstead, Sussex. The British Government regards the activities of the Church of Scientology as contrary to public policy. On 25 July 1968, the Minister of Health stated in the House of Commons that the Government was satisfied that Scientology was socially harmful. The statement included the following remarks: 'Scientology is a pseudo-philosophical cult.... The Government are satisfied having reviewed all the available evidence that Scientology is socially harmful. It alienates members of families from each other and attributes squalid and disgraceful motives to all who oppose it; its authoritarian principles and practice are a potential menace to the personality and well-being of those so deluded as to become its followers; above all its methods can be a serious danger to the health of those who submit to them. There is evidence that children are now being indoctrinated. There is no power under existing law to prohibit the practice of Scientology; but the Government have concluded that it is so objectionable that it would be right to take all steps within their power to curb its growth.... Foreign nationals come here to study Scientology and to work at the so-called College in East Grinstead. The Government can prevent this under existing law... and have decided to do so. The following steps are being taken with immediate effect (e) Work permits and employment vouchers will not be issued to foreign nationals... for work at a Scientology establishment.' [FN2] FN2 H. C. Deb. vol. 769 c.189 (W.A.). No legal restrictions are placed upon the practice of Scientology in the United Kingdom nor upon British nationals (with certain immaterial exceptions) wishing to become members of or take employment with the Church of Scientology.

5 Miss van Duyn is a Dutch national. By a letter dated 4 May 1973 she was offered employment as a secretary with the Church of Scientology at its college at East Grinstead. With the intention of taking up that offer she arrived at Gatwick Airport on 9 May 1973 where she was interviewed by an immigration officer and refused leave to enter the United Kingdom. It emerged in the course of the interview that she had worked in a Scientology establishment in Amsterdam for six months, that she had taken a course in the subject of Scientology, that she was a practising Scientologist and that she was intending to work at a Scientology establishment in the United Kingdom. The ground of refusal of leave to enter which is stated in the document entitled 'Refusal of Leave to Enter' handed by the immigration officer to Miss van Duyn reads: 'You have asked for leave to enter the United Kingdom in order to take employment with The Church of Scientology, but the *5 Secretary of State considers it undesirable to give anyone leave to enter the United Kingdom on the business of or in the employment of that organisation.' The power to refuse entry into the United Kingdom is vested in immigration officers by virtue of section 4 (1) of the Immigration Act Leave to enter was refused by the immigration officer acting in accordance with the policy of the Government and with Rule 65 of the relevant Immigration Rules for Control of Entry which Rules have legislative force. Rule 65 reads: 'Any passenger except the wife or child under 18 of a person settled in the United Kingdom may be refused leave to enter on the ground that the exclusion is conducive to the public good where-- (a) the Secretary of State has personally so directed, or (b) from information available to the Immigration Officer it seems right to refuse leave to enter on that ground--if, for example, in the light of the passenger's character, conduct or associations it is undesirable to give him leave to enter.' Relying on the Community rules on freedom of movement of workers and especially on Article 48 of the EEC Treaty, Regulation 1612/68 and Article 3 of Directive 64/221, [FN3] Miss van Duyn claims that the refusal of leave to enter was unlawful and seeks a declaration from the High Court that she is entitled to stay in the United Kingdom for the purpose of employment and to be given leave to enter the United Kingdom. FN3 Article 3 (1) of the Directive reads: 'Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned'. Before deciding further, the High Court has stayed the proceedings and requested the Court of Justice, pursuant to Article 177 of the EEC Treaty, to give a preliminary ruling on the following questions: 1. Whether Article 48 of the Treaty establishing the European Economic Community is directly applicable so as to confer on individuals rights enforceable by them in the Court of a member-state. 2. Whether Directive 64/221 adopted on 25 February 1964 in accordance with

6 the Treaty establishing the European Economic Community is directly applicable so as to confer on individuals rights enforceable by them in the Courts of a member-state. 3. Whether upon the proper interpretation of Article 48 of the Treaty establishing the European Economic Community and Article 3 of Directive 64/221 a member- State in the performance of its duty to base a measure taken on grounds of public policy exclusively on the personal conduct of the individual concerned is entitled to take into account as matters of personal conduct (a) the fact that the individual is or has been associated with some body or organisation the activities of which the member-state considers contrary to the public good but which are not unlawful in that State, (b) the fact that *6 the individual intends to take employment in the member-state with such a body or organisation it being the case that no restrictions are placed upon nationals of the member-state who wish to take similar employment with such a body or organisation. Submissions of the Advocate General (M. Henri Mayras) I. Introduction The present preliminary ruling case is of particular interest in two respects. It is the first time that a court of the United Kingdom, the High Court of Justice in London, has brought before you by means of Article 177 of the EEC Treaty a request for interpretation of Community rules. Also for the first time you are being asked to settle the important problem of the reservation of public policy [FN4] and public security set out as regards the free movement of workers within the Community in Article 48 of the Treaty. FN4 The Advocate General, giving his submissions in French, of course used the French phrase 'ordre public', of which 'public policy' is the authoritative English equivalent in the English text of Article 48. It should be remembered, however, that there is a considerable difference between the meaning of 'ordre public' in French law and 'public policy' in English law.-ed. You are therefore to examine the extent to which the power of the States to judge the requirements of national public policy can be reconciled with a uniform application of Community law. Finally, let it be added that you have also to decide on any direct effect of a Council directive or at least a given provision of a directive. But your case law already contains certain indications for a reply to that question. The facts which have given rise to the action are simple. Miss Yvonne Van Duyn, a Dutch national, disembarked on 9 May 1973 at Gatwick Airport in England. She said she was coming into the United Kingdom to take up a job as secretary offered to her some days earlier by the Church of Scientology of California whose headquarters is at East Grinstead in the County of Sussex, at Saint Hill Manor. After being questioned by the immigration officer she was sent back to Holland the same day.

7 The reason for refusal of entry into the United Kingdom was expressly indicated in the document given to her by the Immigration Officer. It was: 'You have asked for leave to enter the United Kingdom in order to take employment with The Church of Scientology but the Secretary of State considers it undesirable to give anyone leave to enter the United Kingdom on the business of or in the employment of that organisation.' *7 That decision was taken, it seems, in conformity with the position set out in 1968 by the United Kingdom Government which considered--and still considers-- the activities of the Church of Scientology to be socially harmful. We shall have to return to the reasons for expulsion of Miss Van Duyn when we come to examine the question of whether the decision of the Immigration Officer was based on the 'personal conduct' of the applicant within the meaning of Article 3 (1) of Council Directive 64/221 which will have to be interpreted. Miss Van Duyn, having brought an action against the Home Office in the Chancery Division of the High Court, invoked Article 48 of the Treaty and the above-mentioned provision of Directive 64/221, which was enacted to coordinate the special measures relating to aliens as regards movement and stay and justified by reasons of public policy, public security and public health. After having examined the applicant's claim and heard counsel for the respondent Home Office, the Vice-Chancellor, a judge of the High Court, decided to stay the proceedings and pass to you three preliminary questions. The first bears on the direct effect of Article 48 of the Treaty. In the second you are asked whether Council Directive 64/221 is also directly applicable, in the sense that it confers on individuals rights which they can invoke in legal proceedings in a member-state. The third question concerns the interpretation of Article 48 and of Article 3 of the directive. The High Court asks whether, when the competent authority of a member-state decides for reasons of public policy to refuse entry to the national territory to a Community national on the basis of the personal conduct of the would-be entrant, such authority may or may not consider as falling within the concept of personal conduct: (a) the fact that the individual is or has been associated with some body or organisation the activities of which the member-state considers contrary to the public good but which are not unlawful in that State, (b) the fact that the individual intends to take employment in the member-state with such a body or organisation, it being the case that no restrictions are placed upon nationals of the member-state who wish to take similar employment with such a body or organisation. These three questions are clearly put; they are set out in a logical order. The first question will not delay us. II. Discussion 1. Direct effect of Article 48 of the EEC Treaty

8 The criteria which have over several years emerged from your *8 case law to determine whether a provision of Community law, and in particular a rule laid down in the EEC Treaty, is directly applicable in the sense that it confers on individuals rights on which they can rely in proceedings before national courts, are clearly fixed: -- the provision must impose on the member-states a clear and precise obligation; -- it must be unconditional, i.e., not accompanied by any reservation; if, however, it is subject to certain exceptions, they must be strictly defined and delimited; -- finally, the application of the Community rule must not be conditional on any subsequent legislation either of the Community institutions or of those of the member-states, and must not lead to the latter having an effective power of discretionary judgment as to the application of the rule in question. These criteria, which Gand A.G. suggested in 1966 in his submissions in Alfons Lütticke GmbH v. Hauptzollamt Sarrelouis (57/65) [FN5] and which you have adopted in several judgments, have been confirmed and refined, e.g., in International Fruit Co. NV v. Produktschap voor Groenten en Fruit (21-24/72), [FN6] Schlüter v. Hauptzollamt Lörrach (9/73), [FN7] and more recently still, in Reyners v. Belgian State (2/74), [FN8] regarding Article 52 on the right of establishment. That the provisions of Article 48, which are some of the most important in the Treaty in that they are aimed at establishing the freedom of movement in the Community of employed workers, meet these conditions can in any case no longer admit of doubt since the equally recent judgment in Re French Merchant Seamen: E.C. Commission v. France (167/73). [FN9] FN5 [1971] C.M.L.R. 674, (1966) 12 Recueil 293, 311. FN6 (1972) 18 Recueil 1219, FN7 [1973] E.C.R. 1135, FN8 [1974] 2 C.M.L.R FN9 [1974] 2 C.M.L.R By that decision you held that 'the provisions of [that Article] and of Regulation 1612/68 are directly applicable in the legal system of every member-state and... give rise, on the part of those concerned, to rights which the national authorities must respect and safeguard'. [FN10] FN10 Ibid. at p. 229, para. [35]. If the superior court of the United Kingdom had known of that judgment when it decided to put to you the present request for a preliminary ruling, it is probable that it would have refrained from putting the first question. One can understand that it thought it necessary to put it because it took its decision to make a

9 reference on 1 March last, i.e., before you had yourselves given judgment on the direct effect of Article 48. However that may be, the problem is now settled, and it will suffice for you to confirm on this point your judgment of 4 April last [Re French Merchant Seamen]. *9 2. Direct effect of Council Directive 64/221 Less obvious is the solution to the second question which concerns, as we have seen, the direct applicability of the Council directive of 25 February Article 189 of the Treaty distinguishes between regulations, which are not only binding but also directly applicable in the member-states, and directives, which are also binding, to be sure, for the States but which do not in principle have direct effect in so far as they leave to the States the choice of the methods of bringing them into operation. But, keeping outside formal legal categories, you have held in Grad v. Finanzamt Traunstein (9/70), [FN11] Transports Lesage et Cie v. Hauptzollamt Freiburg (20/70) [FN12] and Haselhorst v. Finanzamt Düsseldorf-Altstadt (23/70) [FN13] that, apart from regulations, other Community acts mentioned in Article 189 can produce direct effect, particularly in those cases in which the Community authorities have obliged the member-states to adopt a given behaviour; the effective power of such acts, you said, would be weakened if individuals could not, in such circumstances, rely in legal proceedings on the rights which are conferred on them by decisions of such nature, even though they were not enacted in the form of regulations. FN11 [1971] C.M.L.R. 1, 16 Recueil 825, 838. FN12 [1971] C.M.L.R. 1, 16 Recueil 861, 874. FN13 [1971] C.M.L.R. 1, 16 Recueil 881, 893. Even clearer is the statement in your judgment in S.A.C.E. v. Italian Ministry of Finance (33/70): a Directive, 'the purpose of which was to impose on a member-state a final date for the performance of a Community obligation, not only affects the relations between the Commission and that State but also entails consequences which may be invoked... by individuals whenever by its nature the provision establishing this obligation is directly applicable'. [FN14] FN14 [1971] C.M.L.R. 123, 133, 16 Recueil 1213, 1224 (Para. [14]). Faced with a directive we must therefore examine in each case whether the wording, the nature and the logic of the provisions in question are capable of producing direct effects between the addressee member-states and their citizens. What is the position with Council Directive 64/221? That Act has the object of co-ordinating in the member-states the measures

10 applicable to aliens as regards movement and stay which are justified by reasons of public policy, public security and public health. It was enacted on the basis both of Article 48--and incidentally refers expressly to the regulation then applicable to the free movement of workers-- and of Article 56 which concerns the right of establishment. It aims at limiting the powers which the States have indisputedly retained to ensure within the field of their jurisdiction the protection *10 of their public policy, and especially the public security on their territory. Article 3 (1) of this directive states: 'Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.' To give a useful reply to the question put there is no need to seek whether all the rules contained in the directive do or do not produce direct effects. Only Article 3 (1) is in issue in the present case. But to judge its direct applicability it is necessary to enter into an examination of its interpretation and so encroach a little on the third preliminary question. As to the field of application of Article 3 (1), there is no doubt that it covers both employees, covered by Article 48, and persons carrying on independent activities, covered by Articles 52 et seq. With regard to migrant workers, the Council could have enacted a regulation, as Article 48 permits it to do, and that is indeed what it has done concerning the conditions for their employment in a member-state. For independent workers, recourse to a directive was the only possibility in accordance with Article 56 (2). Doubtless the Council considered it desirable to unify in the same legal instrument the system of free movement of employees and the right of establishment of non-employees, at least as regards the measures relating to public policy in the States. But recourse to that procedure in no wise prevents Article 3 of the directive being able to have direct effect. What was the aim of the Council in enacting that provision if not to limit the discretion of the member-states and to subject the restrictions on freedom of movement, such as prohibition of entry, deportation or order to quit the country, to the condition that such measures should be based exclusively on the personal conduct of the party? It seems clear that it wanted thereby to prohibit States taking general measures aimed at whole categories of persons, including collective expulsions or deportations. In any case it has laid down on the States a precise and clear obligation. The first condition for a direct effect is fulfilled. The second is too. The rule laid down is sufficient in itself. Likewise, it does not depend on the intervention of subsequent acts either of the Community authorities or of the States. The fact that the latter have, in accordance with principle as regards directives, the choice of form and methods according to their national law in no wise implies that the Community rule is not directly applicable. On the contrary, it is so intimately linked to the application of Article 48, as regards employees, that it seems inseparable from it and forms part of the nature

11 of that provision of the Treaty. *11 Finally, it is clear that although the States have retained, within the limits which I shall indicate, their jurisdiction over public security, Article 3 (1) of the directive contains a precise limit to that jurisdiction, of which they may not make discretionary use with regard to Community nationals. These considerations lead me therefore to hold that the provision in question gives rise in favour of Community nationals to rights which they can invoke in legal proceedings and which the national courts are required to protect. 3. Public security and concept of personal conduct We now come to the third question. What is to be understood by 'personal conduct' such as to justify a prohibition on entry into the territory of a member- State? How is that concept to be defined? Apart from exegesis from the text, the solution seems dominated by two basic thoughts: -- On the one hand, the freedom of movement of workers is one of the fundamental principles of the Treaty and the prohibition of any discrimination based on nationality between workers of the member-states is subject to no reservation other than those restrictively laid down in Article 48 (3) which relate to public policy, public security and public health (Württembergische Milchverwertung-Süd-Milch AG v. Ugliola (15/69) [FN15]). -- On the other hand, while there may well exist a 'Community public policy' in the fields in which the Treaty has the object or effect of transferring directly to the Community institutions powers which were previously exercised by the member- States, that can only refer to an economic public policy, relating, for example, to the common organisation of the agricultural markets, to commercial exports and imports, to the common customs tariff or to the rules on competition. FN15 [1970] C.M.L.R. 194, 15 Recueil 363. But it seems that, in the present state of affairs and of the law, the States alone, subject to the reservations necessitated by certain Community provisions such as precisely Directive 64/221, enjoy the power to take the measures necessary for the protection of public security on their territory and to judge how that security could be endangered. In other words, if the general reservation of public policy, which is to be found in both Article 48 and Article 56, is a limited exception to the Treaty principles on free movement and freedom of establishment and to be interpreted strictly, I do not think, in contrast to the Commission's view, that it is possible to discern a Community concept of public security. Such a concept remains, at present at least, national and that is in accordance with reality in so far as the requirements of public security vary in time and in space from one State to another. *12 It is in the light of these thoughts that we should consider the third question. First, to what extent can the notion of 'personal conduct' be applied to the facts found by the national judge, viz. membership of a Community national in an organisation whose activities are considered to be harmful to the ordre public,

12 [FN16] without being prohibited, and the intention to take a job with such organisation even though nationals are not, in such a case, subject to any restriction? FN16 The difference between 'ordre public' and 'public policy' would appear to be relevant to the Advocate General's thought process here, and certainly to the structure of the sentence.--ed. In truth, the question as thus formulated has led me to seek in the file from the High Court elements which permit a more precise understanding of the facts which motivated the expulsion of the applicant. It appears that not only did she come to England with the avowed intention of taking a job as secretary with the Church of Scientology but she had already worked in an establishment of that same organisation for the previous six months in Holland; that she had studied and practised scientology. It is without any doubt the whole of these facts, the accuracy of which we clearly do not have to consider, which determined the British immigration service to forbid her entry onto the national territory. It also appears from the file that in 1968 the Minister for Health of the United Kingdom, in a statement to Parliament, expressed the opinion that ' scientology is a pseudo-philosophical cult' whose principles and practices constitute, in the opinion of the British Government, a danger both to public security and to the health of those who submit themselves to it. The Minister then announced the decision of the Government to oppose, so far as its powers permitted, the activity of this organisation. Since the national laws in force did not prohibit the practice of scientology, the Government could at least refuse entry to England to those aliens who were proposing to come to work at the headquarters of the Church of Scientology. It seems to have been in furtherance of this policy that Miss Van Duyn was forbidden to enter the United Kingdom both because of the links she had already in the past had with this 'Church' in Holland and because she had herself practised scientology and finally because of her intention to take a job at Saint Hill Manor. In the light of this information, there is not, in my opinion, any doubt that these facts taken together certainly fall within the notion of 'personal conduct' within the meaning of Article 3 (1) of the directive and that membership alone, even through a contract of service, of the Church of Scientology is an element of personal conduct. *13 As we have seen, the provision in issue was basically inspired by the desire of the Community institutions to prohibit the States taking collective police measures with regard to nationals of the Common Market. It requires an individual examination of the situation of each person subjected to a decision based on the protection of ordre public [FN17]; it implies without any doubt a judicial review of the reasons for such a decision by the national courts which, as is the case here, have the power--or sometimes even the obligation-- to consult you as to the interpretation of the applicable Community law.

13 FN17 See note 13. It is on this point--and on this point alone--that the power of the States in this field is admittedly limited by the directive. Finally, we should examine whether, by forbidding entry to a Community national on the grounds I have set out, the Government of the United Kingdom violated the principle of non-discrimination, of national treatment, which is the necessary corollary of freedom of movement of persons and which, based on the fundamental principle in Article 7 of the Treaty, is expressly applicable to employed workers under Article 48. It is undisputed that, while the Church of Scientology is in the eyes of the British Government socially harmful, while consequently its activities are considered to be contrary to public policy, it is a fact that they are not forbidden on United Kingdom territory and that nationals are free to study and to practise scientology as well as to work at the organisation's headquarters. At first sight, therefore, there is a discrimination in the treatment imposed on nationals of other States of the Community in the prohibition on their entry on to U.K. territory for the sole reason that they are coming there themselves to practise scientology at Saint Hill Manor and to take a job there. However, I do not think that such discrimination is contrary to the Treaty. As I have said, the reservation of public policy, and particularly of public security, has the effect of leaving to the States their powers in this field, subject to the obligation to justify the measures of public security by the individual conduct of the persons concerned. But the States retain, as regards both the judgment of the threat to their security and the expediency of the measures to be taken to avoid it, a power whose exercise does not put in question the principle of equality of treatment, so long, of course, as they do not abuse this power for ends other than those for which it should be exercised, e.g., by using it for purposes of economic protection. It happens that, according to the statements of the British Government, the internal law has not allowed and does not permit prohibition of the Scientology establishment. That is the consequence of a particularly liberal system. It would doubtless be otherwise in other member-states whose Governments were to hold the activities of this *14 organisation as contrary to public policy. But, in so far as the U.K. Government has legal means permitting it to stop aliens, even Community nationals, coming to swell the cohort of Scientology adepts on its territory, I consider that it can act as it is doing without creating a discrimination within the meaning of Article 48 of the Treaty. It is thus acting within the framework of the State powers which the public policy reservation of that Article recognises in each member-state. I conclude, in sum, that you should rule: 1. Both Article 48 of the Treaty and Article 3 (1) of Council Directive 64/221 are directly applicable in the legal order of each member-state and give rise to rights in individuals concerned which the national authorities must protect. 2. The concept of 'personal conduct', such as to justify a measure of public policy

14 or public security within the meaning of the above-mentioned provision of Directive 64/221, covers the circumstance in which a person has been or is a member of an organisation whose activities are considered by a member-state to be contrary to public policy, even if such activities are not, on the territory of that State, prohibited under the national law. 3. Likewise, the concept of 'personal conduct' covers the circumstance of a person coming to the territory of the member-state concerned with a view to taking a job with an organisation whose activities are considered to be contrary to public policy and public security, even though no restriction applies to the nationals of that State who wish to take a job with that organisation. JUDGMENT (drafting judge, Sorensen J.) [1] By order of the Vice-Chancellor of 1 March 1974, lodged at Court on 13 June, the Chancery Division of the High Court of Justice of England, referred to the Court, under Article 177 of the EEC Treaty, three questions relating to the interpretation of certain provisions of Community law concerning freedom of movement for workers. [2] These questions arise out of an action brought against the Home Office by a woman of Dutch nationality who was refused leave to enter the United Kingdom to take up employment as a secretary with the 'Church of Scientology'. [3] Leave to enter was refused in accordance with the policy of the Government of the United Kingdom in relation to the said organisation, the activities of which it considers to be socially harmful. First Question [4] By the first question, the Court is asked to say whether Article 48 of the EEC Treaty is directly applicable so as to confer on individuals rights enforceable by them in the courts of a member-state. *15 [5] It is provided, in Article 48 (1) and (2), that freedom of movement for workers shall be secured by the end of the transitional period and that such freedom shall entail 'the abolition of any discrimination based on nationality between workers of member-states as regards employment, remuneration and other conditions of work and employment'. [6] These provisions impose on member-states a precise obligation which does not require the adoption of any further measure on the part either of the Community institutions or of the member-states and which leaves them, in relation to its implementation, no discretionary power. [7] Paragraph (3), which defines the rights implied by the principle of freedom of movement for workers, subjects them to limitations justified on grounds of public policy, public security or public health. The application of these limitations is, however, subject to judicial control, so that a member-state's rights to invoke the limitations does not prevent the provisions of Article 48, which enshrine the principle of freedom of movement for workers, from conferring on individuals

15 rights which are enforceable by them and which the national courts must protect. [8] The reply to the first question must therefore be in the affirmative. Second Question [9] The second question asks the Court to say whether 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 is directly applicable so as to confer on individuals rights enforceable by them in the courts of a member-state. [10] It emerges from the order making the reference that the only provision of the Directive which is relevant is that contained in Article 3 (1) which provides that 'measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned'. [11] The United Kingdom observes that, since Article 189 of the Treaty distinguishes between the effects ascribed to regulations, directives and decisions, it must therefore be presumed that the Council, in issuing a directive rather than making a regulation, must have intended that the directive should have an effect other than that of a regulation and accordingly that the former should not be directly applicable. [12] If, however, by virtue of the provisions of Article 189 regulations are directly applicable and, consequently, may by their very nature have direct effects, it does not follow from this that other categories of acts mentioned in that Article can never have similar effects. It would be incompatible with the binding effect attributed to *16 a directive by Article 189 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned. In particular, where the Community authorities have, by directive, imposed on member-states the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law. Article 177, which empowers national courts to refer to the Court questions concerning the validity and interpretation of all acts of the Community institutions, without distinction, implies furthermore that these acts may be invoked by individuals in the national courts. It is necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between member-states and individuals. [13] By providing that measures taken on grounds of public policy shall be based exclusively on the personal conduct of the individual concerned, Article 3 (1) of Directive 64/221 is intended to limit the discretionary power which national laws generally confer on the authorities responsible for the entry and expulsion of foreign nationals. First, the provision lays down an obligation which is not subject to any exception or condition and which, by its very nature, does not require the intervention of any act on the part either of the institutions of the Community or of member-states. Secondly, because member-states are thereby obliged, in implementing a clause which derogates from one of the fundamental principles of

16 the Treaty in favour of individuals, not to take account of factors extraneous to personal conduct, legal certainty for the persons concerned requires that they should be able to rely on this obligation even though it has been laid down in a legislative act which has no automatic direct effect in its entirety. [14] If the meaning and exact scope of the provision raise questions of interpretation, these questions can be resolved by the courts, taking into account also the procedure under Article 177 of the Treaty. [15] Accordingly, in reply to the second question, Article 3 (1) of Council Directive 64/221 of 25 February 1964 confers on individuals rights which are enforceable by them in the courts of a member-state and which the national courts must protect. Third Question [16] By the third question the Court is asked to rule whether Article 48 of the Treaty and Article 3 of Directive 64/221 must be interpreted as meaning that 'a member-state, in the performance of its duty to base a measure taken on grounds of public policy exclusively on the personal conduct of the individual concerned is entitled to take into account as matters of personal conduct: *17 (a) the fact that the individual is or has been associated with some body or organization the activities of which the member-state considers contrary to the public good but which are not unlawful in that State; (b) the fact that the individual intends to take employment in the member-state with such a body or organization it being the case that no restrictions are placed upon nationals of the member-state who wish to take similar employment with such a body or organization.' [17] It is necessary, first, to consider whether association with a body or an organisation can in itself constitute personal conduct within the meaning of Article 3 of Directive 64/221. Although a person's past association cannot, in general, justify a decision refusing him the right to move freely within the Community, it is nevertheless the case that present association, which reflects participation in the activities of the body or of the organisation as well as identification with its aims and its designs, may be considered a voluntary act of the person concerned and, consequently, as part of his personal conduct within the meaning of the provision cited. [18] This third question further raises the problem of what importance must be attributed to the fact that the activities of the organisation in question, which are considered by the member-state as contrary to the public good, are not however prohibited by national law. It should be emphasised that the concept of public policy in the context of the Community and where, in particular, it is used as a justification for derogating from the fundamental principle of freedom of movement for workers, must be interpreted strictly, so that its scope cannot be determined unilaterally by each member-state without being subject to control by the institutions of the Community. Nevertheless, the particular circumstances justifying recourse to the concept of public policy may vary from one country to another and from one period to another, and it is therefore necessary in this

17 matter to allow the competent national authorities an area of discretion within the limits imposed by the Treaty. [19] It follows from the above that where the competent authorities of a member- State have clearly defined their standpoint as regards the activities of a particular organisation and where, considering it to be socially harmful, they have taken administrative measures to counteract these activities, the member-state cannot be required, before it can rely on the concept of public policy, to make such activities unlawful, if recourse to such a measure is not thought appropriate in the circumstances. [20] The question raises finally the problem of whether a member-state is entitled, on grounds of public policy, to prevent a national of another member- State from taking gainful employment within its territory with a body or organisation, it being the case that no similar restriction is placed upon its own nationals. [21] In this connection, the Treaty, while enshrining the principle *18 of freedom of movement for workers without any discrimination on grounds of nationality, admits, in Article 48 (3), limitations justified on grounds of public policy, public security or public health to the rights deriving from this principle. Under the terms of the provision cited above, the right to accept offers of employment actually made, the right to move freely within the territory of member-states for this purpose, and the right to stay in a member-state for the purpose of employment are, among others, all subject to such limitations. Consequently, the effect of such limitations, when they apply, is that leave to enter the territory of a member- State and the right to reside there may be refused to a national of another member-state. [22] Furthermore, it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between member-states, that a State is precluded from refusing its own nationals the right of entry or residence. [23] It follows that a member-state, for reasons of public policy, can, where it deems necessary, refuse a national of another member-state the benefit of the principle of freedom of movement for workers in a case where such a national proposes to take up a particular offer of employment even though the member- State does not place a similar restriction upon its own nationals. [24] Accordingly, the reply to the third question must be that Article 48 of the EEC Treaty and Article 3 (1) of Directive 64/221 are to be interpreted as meaning that a member-state, in imposing restrictions justified on grounds of public policy, is entitled to take into account, as a matter of personal conduct of the individual concerned, the fact that the individual is associated with some body or organisation the activities of which the member-state considers socially harmful but which are not unlawful in that State, despite the fact that no restriction is placed upon nationals of the said member-state who wish to take similar employment with these same bodies or organisations. Costs [25] The costs incurred by the United Kingdom and by the Commission of the

18 European Communities, which have submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, costs are a matter for that court. Order On those grounds, THE COURT, in answer to the questions referred to it by the High Court of Justice, by order of that court, dated 1 March 1974, HEREBY RULES: 1. Article 48 of the EEC Treaty has a direct effect in the *19 legal orders of the member-states and confers on individuals rights which the national courts must protect. 2. Article 3 (1) of Council Directive 64/221 of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health confers on individuals rights which are enforceable by them in the national courts of a member-state and which the national courts must protect. 3. Article 48 of the EEC Treaty and Article 3 (1) of Directive 64/221 must be interpreted as meaning that a member-state, in imposing restrictions justified on grounds of public policy, is entitled to take into account as a matter of personal conduct of the individual concerned, the fact that the individual is associated with some body or organisation the activities of which the member-state considers socially harmful but which are not unlawful in that State, despite the fact that no restriction is placed upon nationals of the said member-state who wish to take similar employment with the same body or organisation. (c) Sweet & Maxwell Limited [1975] 1 C.M.L.R. 1 END OF DOCUMENT