Mouvement Contre Le Racisme, L'Antisemitisme et la Xenophobie Asbl (MRAX) v. Belgium (Case C-459/99)

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1 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

2 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;

3 [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]

4 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

5 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-

6 3213; [1997] 3 C.M.L.R Koua Poirrez v. Caisse d'allocations Familiales de la Région Parisienne (C- 206/91), 16 December 1992: [1992] E.C.R. I Carpenter v. Secretary of State for the Home Department (C-60/00), 11 July 2002: [2002] 2 C.M.L.R Criminal Proceedings against Royer (48/75), 8 April 1976: [1976] E.C.R. 497; [1976] 2 C.M.L.R EC Commission v. Netherlands (C-68/89), 30 May 1991: [1991] E.C.R. I-2637; [1993] 2 C.M.L.R Giagounidis v. Stadt Reutlingen (C-376/89), 5 March 1991: [1991] E.C.R. I- 1069; [1993] 1 C.M.L.R Criminal Proceedings against Sagulo and Others (8/77), 14 July 1977: [1977] E.C.R. 1495; [1977] 2 C.M.L.R Criminal Proceedings against Watson and Belman (118/75), 7 July 1976: [1976] E.C.R. 1185; [1976] 2 C.M.L.R Roux v. Belgium (C-363/89), 5 February 1991: [1991] E.C.R. I-273; [1993] 1 C.M.L.R R. v. Pieck (157/79), 3 July 1980: [1980] E.C.R. 2171; [1980] 3 C.M.L.R 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 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 * Pecastaing v. Belgium (98/79), 5 March 1980: [1980] E.C.R. 691; [1980] 3 C.M.L.R 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 Oleficio Borelli SpA v. EC Commission (C-97/91), 3 December 1992: [1992] E.C.R. I 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 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 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 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 Demirel v. Stadt Schwäbisch Gmünd (12/86), 30 September 1987: [1987] E.C.R. 3719; [1989] 1 C.M.L.R Connolly v. EC Commission (C-274/99 P), 6 March 2001: [2001] E.C.R. I-

7 1611; [2001] 3 C.M.L.R EC Commission v. Germany (249/86), 18 May 1989: [1989] E.C.R. 1263; [1990] 3 C.M.L.R 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 Fazenda Pública v. Câmara Municipal do Porto (C-446/98), 14 December 2000: [2000] E.C.R. I Adoui and Cornuaille v. Belgium (115 & 116/81), 18 May 1982: [1982] E.C.R. 1665; [1982] 3 C.M.L.R Dzodzi v. Belgium (C 297/88 & 197/89), 18 October 1990: [1990] E.C.R. I Coote v. Granada Hospitality Ltd (C-185/97), 22 September 1998: [1998] E.C.R. I-5199 ; [1998] 3 C.M.L.R 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 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. * Rewe-Zentralfinanz EG v. Landwirtschaftskammer für das Saarland (33/76), 16 December 1976: [1976] E.C.R. 1989; [1977] 1 C.M.L.R Comet BV v. Produktschap voor Siergewassen (45/76), 16 December 1976: [1976] E.C.R. 2043; [1977] 1 C.M.L.R Before the European Court of Human Rights: 32. Ciliz v. Netherlands, 11 July 2000: [2000] 2 F.L.R Marckx v. Belgium (A/31), 13 June 1979 : ( ) 2 E.H.R.R Abdulaziz and Others v. United Kingdom (A/94), 28 May 1985: (1985) 7 E.H.R.R Ahmut v. Netherlands, 28 November 1996: (1997) 24 E.H.R.R. 62. [FN1] Opinion of Advocate General Stix-Hackl FN1 Delivered on 13 September 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

8 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 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.

9 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

10 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 selfemployed 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

11 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 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 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

12 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 (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 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

13 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

14 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

15 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

16 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.).

17 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. * 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

18 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].