Danielle Roux v. The State (Belgium) (Case C-363/89) Before the Court of Justice of the European Communities (3rd Chamber) ECJ (3rd Chamber)

Danielle Roux v. The State (Belgium) (Case C-363/89) Before the Court of Justice of the European Communities (3rd Chamber) ECJ (3rd Chamber) (Presiding, Moitinho de Almeida P.C.; Grévisse and Zuleeg JJ.) Sig. Giuseppe Tesauro, Advocate General 5 February 1991 Reference from Belgium by the Tribunal de Première Instance (Court of First Instance), Liège, under Article 177 EEC. Provisions considered: EEC 48, 52, 56(1), 59 Dir. 68/360 (Art. 4) Dir. 73/148 (Art. 6) Aliens. Residence permits. The right of residence is a right conferred on Community nationals directly by the EEC Treaty and is subject only to the condition that the person concerned is carrying on an economic activity within the meaning of Articles 48, 52 or 59 EEC. It is not permissible, therefore, for a member-state to subject exercise of that right to prior registration with a social security scheme. [9]-[10] Aliens. Deportation. Non-compliance with national rules on registration with a social security scheme cannot justify a deportation order. [11] Aliens. Residence permits. Issue of a residence permit to a qualifying Community national may, under Directives 68/360 and 73/148, be subjected to only two conditions: (a) production of the document (passport or identity card) with which the claimant entered the

country, and (b) production of confirmation of engagement from the employer or a certificate of employment (employee) or production of proof that the claimant comes within *4 one of the enumerated classes of person (self-employed). In neither case may prior registration of the claimant with the appropriate social security scheme constitute a condition for issue of the permit. [14]-[16] Aliens. Migrant workers. A member-state may not require affiliation to one of its social security schemes as proof that a Community national enjoys freedom of movement under Articles 48, 52 and 59 EEC. [21] Aliens. Residence permits. The correct classification of the economic activity of a Community national as employment or self-employment is irrelevant to the right to be issued a residence permit. [23] Aliens. Residence permits. Failure of a qualifying Community national to comply with the social security regulations of the host member-state is not a ground for refusing to issue a residence permit or for deportation; but it may be sanctioned by lesser penalties. [27]-[28] Aliens. Residence permits. Social security. Public policy. Compliance with the social security regulations of the host member-state is not a matter of public policy within the meaning of Articles 48 and 56 EEC such as to justify derogation from the freedom of movement rules for employees and the self-employed. [30] Aliens. Public policy. The reservation provided for in Articles 48(3) and 56(1) EEC concerning limitations on free movement justified on grounds of public policy must be construed not as a condition precedent to the acquisition of the right of entry and residence, but as affording the possibility of placing restrictions, in specific cases and where the circumstances justify it, on the exercise of a right directly conferred by the EEC Treaty. Accordingly the public policy reservation may on no account justify administrative measures requiring in general for the issue of a residence permit conditions other than those expressly provided for in the Community rules concerning freedom of movement of persons. [30]-[31] The Court interpreted Articles 48, 52, 56 and 59 EEC and Articles 4 of Directive 68/360 and 6 of Directives 72/148 in the context of a French woman working in Belgium as a "self-employed" waitress and who was refused a Belgian residence

permit (and therefore ordered to leave the country) because the Aliens Office considered she was not self-employed but an employee and was not registered with the social security scheme for employees, to the effect that correct social security registration could in no circumstance constitute a ground for refusal to issue the residence permit to a qualifying Community national *5 enjoying freedom of movement under any of Articles 48, 52 and 59 EEC, that such registration could not be used as a test of whether a Community national qualified as enjoying such freedom of movement, that correct classification as an employee or as self-employed was irrelevant to entitlement to the residence permit, that non-compliance with the Belgian social security law could be penalised but not by refusal of a residence permit or deportation, that noncompliance with the Belgian social security law did not fall within the public policy exception in Articles 48(3) and 56(1) EEC and therefore could not justify refusal to issue the residence permit, and therefore that the refusal to issue the claimant with a Belgian residence permit was in breach of Community law. Representation Luc Misson, of the Liège Bar, for the applicant. M. Rimaux, for the defendant government. Etienne Lasnet, Legal Adviser to the Commission, for the E.C. Commission as amicus curiae. The following cases were referred to in the judgment: 1. The State v. Royer (48/75), 8 April 1976: [1976] E.C.R. 497, [1976] 2 C.M.L.R. 619. Gaz:48/75 2. The State v. Watson (118/75), 7 July 1976: [1976] E.C.R. 1185, [1976] 2 C.M.L.R. 552. Gaz:118/75 3. Regina v. Pieck (157/79), 3 July 1980: [1980] E.C.R. 2171, [1980] 3 C.M.L.R. 220. Gaz:157/79 4. Messner (265/88), 12 December 1989: [1989] E.C.R. 4209, [1991] 2 C.M.L.R. 545. Gaz:265/88 The following further case was referred to by the Advocate General: 5. Sagulo (8/77), 14 July 1977: [1977] E.C.R. 1495, [1977] 2 C.M.L.R. 585. Gaz:8/77 The following additional cases were referred to in argument: 6. Walgrave and Koch v. Association Union Cycliste Internationale (36/74), 12 December 1974: [1974] E.C.R. 1405, [1975] 1 C.M.L.R. 320. Gaz:36/74 7. Levin v. Staatssecretaris Van Justitie (53/81), 23 March 1982: [1982] E.C.R. 1035, [1982] 2 C.M.L.R. 454. Gaz:53/81 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT

DISPLAYABLE Facts The dispute in the main proceedings Mrs. Danielle Roux, a French national, arrived in Belgium at the end of January 1988 and on 10 January 1989 lodged a request with the *6 municipal authorities in Liège for an establishment permit as a self-employed person, declaring that she was working as a self-employed waitress. On 24 February 1989, the Office des Étrangers (Aliens Office) informed the municipal authorities that in its view Mrs. Roux was in an employment relationship as regards her principal, and that consequently she was required to produce an employer's certificate with a number issued by the Office National de Sécurité Sociale (National Social Security Office (ONSS)). By an administrative decision notified to Mrs. Roux on 12 April 1989, the Office des Étrangers turned down her application for an establishment permit on the ground that she could not be regarded as a self-employed waitress since she was working in an employed capacity for an employer and was not working in compliance with the social legislation relating to salaried employees. In those circumstances she could not claim a right of residence in Belgium. Consequently, the Belgian authorities ordered Mrs. Roux to leave the country. Mrs. Roux made an interlocutory application to the Tribunal de Première Instance (Court of First Instance), Liège, for an order that the Belgian authorities issue her with a provisional residence permit, and for a prohibition on the enforcement of the expulsion order. The court hearing the interlocutory matters found that the Belgian authorities were not disputing that Mrs. Roux was carrying on an economic activity in Belgium. However, it noted that in Belgium there were two different residence permits, according to whether that activity is carried on as an employee or as a self-employed person. Mrs. Roux argued that the right of residence could not be frustrated by a distinction as to the description of the type of residence permit. For its part, the Belgian State considered that an activity could be authorised only where it was carried on in accordance with the laws, regulations and administrative provisions governing the employment of Belgian workers; that is not the case when a foreigner is employed without being registered with the ONSS. By an order of 29 November 1989, the President of the Tribunal de Première Instance, Liège, by an interlocutory decision, ordered the Belgian State to issue Mrs. Roux with a permit for provisional residence and establishment in Belgium pending the outcome of the interlocutory proceedings, and requested the Court of Justice to give a preliminary ruling on the four following questions: 1. Under Articles 3(c), 7, 48 et seq. and 52 et seq. EEC and Council Directives 68/360, 73/148 and 64/221, must prior registration of a worker who is a national of a member-state of the Community in a social security scheme set up by the legislation of the host State be regarded as constituting a condition of his right of

residence in that State and of his right to obtain a residence or establishment permit in that State? In particular, if there is a dispute as to the classification of the economic activity carried on by the person concerned, though not as *7 to the actual pursuit thereof, may his registration with the social security scheme for self-employed persons rather than that for employed persons or vice versa afford justification for a measure requiring him to leave the territory, or for refusing to issue him with a residence or establishment permit? 2. Do Article 4 of Directive 68/360 and Article 6 of Directive 73/148 (or any other provision of Community law) preclude a member-state from requiring as a condition for the issue of a residence or establishment permit either a certificate from an employer or a certificate of employment showing that the employer is registered with the national body responsible for managing the social security scheme for employed persons or evidence of registration with a social insurance scheme for self-employed persons, depending on whether the person concerned is regarded as an employed person or a self-employed person, to the exclusion of any other evidence of the economic activity carried on? 3. Do Articles 3(c), 48 et seq. and 52 et seq. EEC Regulation 1612/68 and Directives 68/360, 73/148 and 64/221 require member-states to issue a worker who is a national of another member-state of the EEC a residence or establishment permit valid for five years, or at the very least for a period sufficient not to constitute an obstacle to the pursuit of his occupation, where there is no dispute as to the actual pursuit thereof, and/or where it has been found to fall under either Article 48 or Article 52, but there is a dispute as to its classification under those two categories? 4. Do Articles 48(3), 56 and 66 EEC, Council Directive 64/221, Article 10 of the Council 68/360 and Article 8 of Directive 73/148 permit member-states to refuse a Community national claiming the right to freedom of movement a residence or establishment permit on the ground that he is not pursuing his economic activity in accordance with the social legislation in force, although the social legislation applicable to employed persons in the host member-state imposes an obligation to register and a corresponding penalty only on the employer of the person concerned? Opinion of the Advocate General (Sig. Giuseppe Tesauro) 1. In this reference for a preliminary ruling the Tribunal de Première Instance (Court of First Instance), Liège, has referred to the Court four questions on the interpretation of certain provisions of the Treaty and secondary legislation concerning freedom of movement for workers and the right of establishment, in particular Articles 3(c), 7, 48 et seq., and 52 et seq. EEC, Council Regulation 1612/68 and Council Directives 68/360 [FN1] and 73/148 [FN2] and 64/221. [FN3] FN1 Council Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers of member-states and their families ([1968] II O.J. Spec. Ed. 485).

FN2 Council Directive 73/148 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: [1973] O.J. L172 14. FN3 Council Directive 64/221 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: [1964] O.J. Spec. Ed. 117. Those questions are closely interrelated and essentially concern the *8 nature of the right of residence enjoyed by Community citizens pursuing an economic activity in a member-state other than that of which they are nationals. The legislative background to the dispute is only too well known, so that I shall limit myself to a brief summary of the facts underlying these proceedings, and refer for the rest to the Report for the Hearing. 2. Mrs. Roux, a French national, arrived in Belgium where she made an application for a residence permit to the municipal authorities of Liège, in which she stated that she was working as a self-employed waitress. The Office des Étrangers rejected that request, stating that Mrs. Roux was not working as a self-employed waitress, but was working in an employed capacity for an employer; Mrs. Roux had not carried on that activity in conformity with the social legislation in force in Belgium for employed persons. She was therefore ordered to leave the country. Mrs. Roux challenged that decision, requesting in interlocutory proceedings the grant of a residence permit and the suspension of the deportation order. 3. The national court has found that the competent Belgian authorities are not disputing that Mrs. Roux is in fact carrying on an economic activity in Belgium and, considering that in Belgium there are two separate types of residence permit, depending on whether the activity is carried on as an employed person or a self-employed person, has referred to the Court of Justice four questions which may be summarised as follows: [The Advocate General repeated the questions, and continued:] 4. The Court has already had occasion to rule on such matters in a number of cases. Thus a settled and exhaustive case law enables a ready reply to be given to the questions raised by the national court, which, I repeat, essentially concern the nature of the right of residence. I would first of all point out that the Court held in its well-known judgment in Royer that "... the right of nationals of a member-state to enter the territory of another member-state and reside there for the purposes intended by the Treaty-- in particular to look for or pursue an occupation or activities as employed or selfemployed persons,...--is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation." [FN4] Consequently, as the Court itself has held, the right of residence is acquired independently of the grant of a residence permit by the competent authority of a member-state. The grant of that permit is therefore to be regarded "not as a measure giving rise

to rights but as a measure by a member-state *9 serving to prove the individual position of a national of another member-state with regard to provisions of Community law." [FN5] FN4 Case 48/75: [1976] E.C.R. 497, [1976] 2 C.M.L.R. 619, at paras. [31] to [33]. To the same effect see Case 8/77, Sagulo: [1977] E.C.R. 1495, [1977] 2 C.M.L.R. 585, and Case 157/79, Regina v. Pieck: [1980] E.C.R. 2171, [1980] 3 C.M.L.R. 220. FN5 See Royer, cited above, at para. [33]. It is therefore clear that the residence permit is exclusively declaratory of the rights of Community citizens, if certain conditions are met. 5. In the present case it is not contested that Mrs. Roux is carrying on an economic activity in Belgium and, given that the right of residence, as the Court has explained on several occasions, is subject only to the condition that the person concerned carries on an economic activity falling within the scope of either Article 48, or Article 52 or Article 59 EEC, it follows that Mrs. Roux enjoys that right under the applicable Community rules irrespective of whether she carries on that activity as a self-employed or as an employed person. On that basis, it is further necessary to verify whether the conditions for the issue of the residence permit are met. In the case of an employed person the conditions to be satisfied by a Community citizen are twofold: he must be in possession of a passport or identity card on entry into the territory of another member-state and must produce an employer's certificate (Article 4 of Directive 68/360). A self-employed person, in addition to being in possession of one of the above-mentioned identity documents, must prove--by any appropriate means-- that he is carrying on an activity as a self-employed person (Article 6 of Directive 73/148). No other condition is required and, as the Court itself has confirmed with regard to employed persons, the member-states are obliged "to issue a residence permit to any person who provides proof, by means of an appropriate document, that he belongs to one of the categories set out in Article 1 of the Directive." [FN6] That also applies to self-employed persons, where the conditions set out in Article 6 of Directive 73/148 are satisfied. FN6 See Royer, cited above, at para. [37]. In the present case, the documents submitted by Mrs. Roux satisfy the requirements for the grant of the residence permit in accordance with the abovementioned provisions, whether she carries on her activity as a selfemployed person or as an employed person. 6. It may accordingly be stated that the member-states are not entitled to require other documents or to impose any other conditions than those provided for by the Community rules in question. That finding enables a single reply to be given to the national court's first three

questions. The fact that in the present case the classification of Mrs. Roux's activity is the subject of discussion is irrelevant for the purposes of the applicable Community rules. The grant of the residence permit and a priori the right of residence cannot be made conditional on compliance with national provisions on social security or on any other matter or, therefore, on Mrs. Roux's registration with *10 the social security scheme for self-employed persons rather than with the employees' scheme. What is significant is that Mrs. Roux falls within the scope ratione personae of the Community rules in question and satisfies the conditions for obtaining the residence permit. 7. As to the national court's fourth question which essentially seeks to ascertain what penalties may be attached to any failure to comply with the obligations arising out of national social legislation, it should first be noted that, under the Court's case law, any penalties imposed on nationals of another member-state for non-compliance with national provisions and procedures, that is to say penalties which also apply to a country's own nationals, may not be disproportionate. In particular, they may not be such as to impede freedom of movement for workers. [FN7] The right of residence may therefore not be denied to a Community citizen falling within the scope of the relevant rules. Still less may an expulsion order be adopted on that basis. Non-compliance with national social security rules may only be penalised under the same terms as apply to nationals in respect of the same type of offence. FN7 To that effect see as the most recent authority Case 265/88, Messner: [1989] E.C.R. 4209 [1991] 2 C.M.L.R. 545. 8. In the light of the foregoing considerations I therefore propose that the Court should reply as follows to the questions raised by the Tribunal de Première Instance, Liège: 1. The right of residence and the issue of the corresponding permit are not subject to compliance with national social security provisions; non-compliance with such provisions by a worker protected by Community law cannot of itself justify an expulsion order. 2. Article 4 of Directive 68/360 and Article 6 of Directive 73/148 preclude the member-states from requiring prior registration with a social security scheme as a precondition for the grant of a residence permit. 3. The member-states are obliged to issue a residence permit to any person showing, on the basis of the appropriate documents referred to in the applicable Community rules, entitlement to the right of residence, without it being necessary under Community law to classify the activity according to whether it is being pursued on a self-employed or employed basis. 4. Failure to comply with national provisions or procedures relating to registration with a social security scheme does not permit member-states to refuse to grant a residence permit or in any case to impose disproportionate penalties which would impede freedom of movement for workers.

*11 JUDGMENT [1] By an interlocutory order of 29 November 1989, which was received at the Court on 30 November 1989, the Tribunal de Première Instance (Court of First Instance), Liège, referred to the Court for a preliminary ruling under Article 177 EEC four questions on the interpretation of certain provisions of Community law relating to freedom of movement for workers, the right of establishment and the freedom to provide services, and in particular -, Council Regulation 1612/68 on freedom of movement for workers within the Community, Council Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers of member-states and their families, [FN8] Council Directive 73/148 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, [FN9] and Council Directive 64/221 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. [FN10] FN8 [1968] II O.J. Spec. Ed. 485. FN9 [1973] O.J. L172/14. FN10 [1964] O.J. Spec. Ed. 117. [2] Those questions arose in the course of proceedings brought by the plaintiff in the main proceedings, Mrs. Danielle Roux, a French naitonal, against the Belgian State's refusal to grant her a permit for residence in Belgium. [3] Mrs. Danielle Roux arrived in Belgium at the end of 1988 and, on 10 January 1989, applied to the Liège municipal authorities for the grant of a residence permit stating that she was working as a self-employed waitress. [4] By an administrative decision notified to Mrs. Roux on 12 April 1989, the Office des Étrangers (Aliens Office) turned down her request on the ground that she was not working as a self-employed waitress but was working in an employed capacity for an employer. That employment was not being carried on in conformity with the social legislation in force in Belgium. Consequently, the Belgian authorities ordered Mrs. Roux to leave the country. [5] Mrs. Roux challenged that decision before the Tribunal de Première Instance, Liège, and in interlocutory proceedings sought the grant of a provisional residence permit and the suspension of the expulsion order. [6] By interlocutory order of 29 November 1989, the President of the Tribunal de Première Instance, Liège, directed the Belgian State to issue Mrs. Roux with a provisional permit to reside in Belgium pending the outcome of the interlocutory proceedings. Noting also that the competent Belgian authorities did not dispute that Mrs. Roux was in fact engaged in economic activity in Belgium and having regard to the fact that there were two separate types of residence permit in Belgium *12 depending on whether the person concerned was engaged in

activity as an employed person or as a self-employed person, the President of the Tribunal de Première Instance, Liège, in the same order requested the Court of Justice to give a preliminary ruling on the following four questions: 1. Under Articles 3(c), 7, 48 et seq. and 52 et seq. EEC and Council Directives 68/360, 73/148 and 64/221, must prior registration of a worker who is a national of a member-state of the Community in a social security scheme set up by the legislation of the host State be regarded as constituting a condition of his right of residence in that State and of his right to obtain a residence or establishment permit in that State? In particular, if there is a dispute as to the classification of the economic activity of the person concerned, though not as to the actual pursuit thereof, may his registration with the social security scheme for self-employed persons rather than that for employed persons or vice versa afford justification for a measure requiring him to leave the territory, or for refusing to issue him with a residence or establishment permit? 2. Do Article 4 of Directive 68/360 and Article 6 of Directive 73/148 (or any other provision of Community law) preclude a member-state from requiring as a condition for the issue of a residence or establishment permit either a certificate from an employer or a certificate of employment showing that the employer is registered with the national body responsible for managing the social security scheme for employed persons, or evidence of registration with a social insurance scheme for self-employed persons, depending on whether the person concerned is regarded as an employed person or a self-employed person, to the exclusion of any other evidence of the economic activity carried on? 3. Do Articles 3(c), 48 et seq. and 52 et seq. EEC Regulation 1612/68 and Directives 68/360, 73/148 and 64/221 require member-states to issue a worker who is a national of another member-state of the EEC a residence or establishment permit valid for five years, or at the very least for a period sufficient not to constitute an obstacle to the pursuit of his occupation, where there is no dispute as to the actual pursuit thereof and/or where it has been found to fall under either Article 48 or Article 52, but there is a dispute as to its classification under those two categories? 4. Do Articles 48(3), 56 and 66 EEC, Council Directive 64/221, Article 10 of Council Directive 68/360 and Article 8 of Council Directive 73/148 permit member-states to refuse to a Community national claiming the right to freedom of movement a residence or establishment permit on the ground that he is not pursuing his economic activity in accordance with the social legislation in force, although the social legislation applicable to employed persons in the host member-state imposes an obligation to register and a corresponding penalty only on the employer of the person concerned? [7] Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or *13 discussed hereinafter only in so far as is necessary for the reasoning of the Court. The first question

[8] The first question seeks essentially to ascertain whether the right of residence and, thus, the grant of a residence permit pursuant to the applicable Community rules is conditional on the prior registration of a national of a member-state of the Community with a social security scheme established by the legislation of the host State and, in particular, whether the fact that the national is registered with one social security scheme whereas he should have been registered with another may justify a refusal to grant the residence permit and an expulsion order. [9] It should be pointed out that the Court has already held on several occasions that the right of residence is a right conferred directly by the Treaty subject only to the condition that the person concerned is carrying on an economic activity within the meaning of Articles 48, 52 or 59 EEC: see Case 48/75, Royer. [FN11] FN11 [1976] E.C.R. 497, [1976] 2 C.M.L.R. 619, at para. [31]. [10] Accordingly the registration of a national of another member-state of the Community with a social security scheme established by the legislation of the host State cannot be imposed as a condition precedent to the exercise of the right of residence. [11] Consequently, non-compliance with national provisions on registration with a social security scheme cannot justify a deportation order. Such a decision entirely negates the right of residence conferred and guaranteed by the EEC Treaty. [12] As the Court held in Royer [FN12] the grant of a residence permit is to be regarded not as a measure giving rise to rights but as a measure by a member- State serving to prove the individual position of a national of another member- State with regard to provisions of Community law. FN12 Cited above, para. [33]. [13] The detailed rules governing the issue of the residence permit are laid down for employed persons by Directive 68/360 and for self-employed persons by Directive 73/148. [14] Under Article 4 of Directive 68/360 a member-state may not make the issue of a residence permit subject to conditions other than the production of the document (passport or identity card) with which the person concerned entered its territory and of a confirmation of engagement from the employer or a certificate of employment. The prior registration of an employed person with the social security scheme cannot therefore in any event be imposed as a condition for issue of the residence permit. [15] Moreover, under Article 6 of Directive 73/148, the member-states may not require, for the issue of a residence permit to a self-employed person, anything other than the production of one of the abovementioned identity documents, and proof that the person *14 concerned "comes within one of the classes of person referred to in Articles 1 and 14."

[16] Since the means of proof admissible in that respect are not specified, it must be concluded that evidence may be adduced by any appropriate means. Consequently, prior registration of a self-employed person in the social security scheme cannot be regarded as a condition of the issue of a residence permit. [17] It follows from the foregoing that failure to comply with national provisions on registration with a social security scheme and, in particular, the fact that the person concerned is registered in the social security scheme for self-employed persons rather than the one for employed persons cannot justify the refusal to issue a residence permit. [18] Accordingly the reply to the first question must be that the prior registration of a national of a member-state of the Community with a social security scheme established by the legislation of the host State cannot be imposed as a condition either for obtaining the right of residence or the issue of the corresponding permit, and that registration in one social security scheme rather than another may justify neither a refusal to issue a residence permit nor a deportation order. The second question [19] The second question is whether Community rules, in particular Article 4 of Directive 68/360 and Article 6 of Directive 73/148, preclude member-states from accepting solely prior registration in a social security scheme as proof that the person concerned comes within one of the classes of persons entitled to freedom of movement, and must therefore be issued a residence permit. [20] In that respect, it should be noted that the only condition imposed on a national of a member-state of the Community for issue of a residence permit is that he proves that he comes within one of the classes of person entitled to freedom of movement. However, neither Article 4 of Directive 68/360 nor Article 6 of Directive 73/148 makes the recognition of the rights granted thereby dependent on proof of prior registration of such a person with a social security scheme. [21] Accordingly, the reply to the second question must be that Article 4 of Directive 68/360 and Article 6 of Directive 73/148 preclude member-states from accepting only prior registration in a social security scheme as proof that the person concerned comes within one of the classes of person entitled to freedom of movement, and must therefore be issued a residence permit. The third question [22] The third question is whether the applicable Community rules require the member-states to issue a residence permit to a national of *15 another member- State where it is not disputed that the person concerned is carrying on an economic activity, the only point at issue being whether it falls to be classified as employment within the meaning of Article 48 EEC or activity as a self-employed person within the meaning of Article 52 EEC. [23] On that point it should be observed that Articles 48 and 52 EEC afford the same legal protection and that therefore the classification of an economic activity

is without significance. [24] The reply to the third question should therefore be that the member-states are obliged to issue a residence permit to a national of another member-state where it is not disputed that he is carrying on an economic activity, without there being any need in that respect to classify that activity as employment or activity as a self-employed person. The fourth question [25] The fourth question essentially seeks to ascertain whether the member- States are entitled under Community rules to refuse to issue a residence permit to a Community national claiming entitlement to freedom of movement for persons on the ground that he is not pursuing his activity in conformity with the social legislation in force. [26] On that point it should be borne in mind that the issue of the residence permit recording the existence of a right conferred and guaranteed by the Treaty itself is of a declaratory nature only, and may be made subject only to the conditions expressly provided for by the applicable Community rules. However, as is plain from the reply to the first question, compliance with national social security provisions is not a condition for obtaining a residence permit. [27] Accordingly, the national authorities are not authorised to penalise noncompliance with social legislation by refusing to issue a residence permit to a Community national to whom the rules on freedom of movement for persons apply. [28] On the other hand, as the Court has consistently held, Community law does not preclude the application of sanctions or other enforcement measures attaching to the failure to comply with national social security provisions, which are comparable to sanctions also applying to nationals of the host State: see Case 118/75, Watson [FN13]; Case 157/79, Regina v. Pieck [FN14] and Case C- 265/88, Messner. [FN15] FN13 [1976] E.C.R. 1185, [1976] 2 C.M.L.R. 552, at para. [21]. FN14 [1980] E.C.R. 2171, [1980] 3 C.M.L.R. 220, at para. [19]. FN15 [1989] E.C.R. 4209, [1991] 2 C.M.L.R. 545, at para. [14]. [29] At the hearing the Belgian Government argued that compliance with social security provisions, particularly those governing registration in a social security scheme, was a matter of public policy and did therefore constitute a condition for the grant of the right of residence and the issue of the corresponding permit. [30] That argument cannot be accepted. The reservation provided *16 for in Articles 48(3) and 56(1) EEC concerning limitations justified on grounds of public policy must be construed not as a condition precedent to the acquisition of the right of entry and residence, but as affording the possibility of placing restrictions, in specific cases and where the circumstances justify it, on the exercise of a right

directly conferred by the Treaty. [31] Accordingly the public policy reservation may on no account justify administrative measures requiring in general for the issue of a residence permit conditions other than those expressly provided for in the Community rules concerning freedom of movement for persons. [32] The reply to the fourth question must therefore be that the member-states are not permitted under Community rules on freedom of movement for persons to refuse to issue a residence permit to a Community national on the ground that he is not carrying on his activity in conformity with the social legislation in force. Costs [33] The costs incurred by the Belgian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court. Order On those grounds, THE COURT (Third Chamber), in answer to the questions referred to it by the Tribunal de Première Instance, Liège, by order of 29 November 1989, HEREBY RULES: 1. The prior registration of a national of a member-state of the Community with a social security scheme established by the legislation of the host State cannot be imposed as a condition either for obtaining the right of residence, or the issue of the corresponding permit. Registration in one social security scheme rather than another may justify neither a refusal to issue a residence permit nor a deportation order. 2. Article 4 of Directive 68/360 and Article 6 of Directive 73/148 preclude member-states from accepting only prior registration in a social security scheme as proof that the person concerned comes within one of the classes of person entitled to freedom of movement, and must therefore be issued a residence permit. 3. Member-States are obliged to issue a residence permit to a national of another member-state where it is not disputed that he is carrying on an economic activity, without there being any need in that respect to classify that activity as employment or activity as a self-employed person. *17 4. Member-States are not permitted under Community rules on freedom of movement for persons to refuse to issue a residence permit to a Community national on the ground that he is not carrying on his activity in conformity with the social legislation in force. (c) Sweet & Maxwell Limited [1993] 1 C.M.L.R. 3

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