Report for the Hearing in Case C-68/89

I — Summary of the facts

A — Legal background

(a) Community law

1. Pursuant to Article 3(c) of the EEC Treaty, the activities of the Community are to include, as provided in the Treaty and in accordance with the timetable set out in it, ‘the abolition as between Member States of obstacles to freedom of movement for persons, services and capital’. The second paragraph of the new Article 8a, introduced by the Single European Act, provides: Council Directive 68/360/EEC of 15 October 1968 (Official Journal, English Special Edition 1968 (II), p. 485) on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families and Council Directive 73/148/EEC 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 provides as follows in Article 3(1), which is framed in the same terms in both directives:

‘The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty’.

‘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’.

(b) National law

2. Aliens' right of entry and frontier supervision are governed in the Netherlands by the Vreemdelingenwet (Law on aliens) of 13 January 1965. Detailed provisions under that Law were laid down by the Vreemdelingenbesluit (Aliens Order) of 19 September 1966, Article 23 of which provides :

‘1. If so requested by an official responsible for frontier supervision, aliens entering the Netherlands shall be required: (a) to produce and hand over the document held by them in order to cross the frontier; (b) to provide information concerning the purpose and duration of their stay in the Netherlands; (c) to show what means are available to them with a view to their entry into the Netherlands.

2. The provisions of the opening subparagraph and subparagraph (a) of the foregoing paragraph shall apply mutatis mutandis to aliens who leave the Netherlands.

3. The provisions of the opening subparagraph and subparagraph (c) of the foregoing paragraph shall not apply to the nationals of a Member State who are seeking employment.’

B — Background to the dispute

3. The Netherlands legislation on aliens' right of entry and frontier supervision came to the Commission's notice following a complaint lodged by a German national, Mr Hoffmann, who, on 9 March 1984, en route for Antwerp, was denied entry to Netherlands territory at the Aken/Heerlen frontier post. Two Netherlands officials questioned him about the purpose of his journey. They also asked him how much cash he had with him. After first contending that he was under no obligation to answer that question, Mr Hoffmann then declared that he had DM 5 in his possession. He was then denied access to the Netherlands and was ordered to return to Germany.

4. Considering that legislation to be contrary to Community law, the Commission, by letter of 21 September 1987, called on the Netherlands Government to submit its observations on the matter within a period of two months, pursuant to Article 169 of the EEC Treaty. In its answer of 3 December 1987, the permanent representation of the Netherlands denied that it had in any way infringed the Treaty. On 8 June the Commission sent a reasoned opinion to the Netherlands Government calling on it to take the measures needed to comply with it within a period of two months. The Netherlands Government replied by letter of 22 August 1988 from its permanent representation, adhering to its earlier view. The Commission then decided to bring the present action.

II — Written procedure and forms of order sought by the parties

5. The Commission's application was received at the Court Registry on 6 March 1989. By order of 4 October 1989, the Court gave leave to the United Kingdom of Great Britain and Northern Ireland to intervene in support of the submissions of the Netherlands. The Commission claims that the Court should : (i) declare that, by maintaining in force and by applying legislation by virtue of which citizens of a Member State may be required to answer questions put by border officials regarding the purpose and duration of their journey and the financial means at their disposal for it before they are permitted to enter Netherlands territory, the Kingdom of the Netherlands has failed to fulfil the obligations imposed on it by Directives 68/360 and 73/148 and by the second paragraph of Article 5, in conjunction with Articles 3(c), 48, 52 and 59, of the EEC Treaty; (ii) order the Kingdom of the Netherlands to pay the costs. The Kingdom of the Netherlands and the intervener contend that the Court should: (i) dismiss the application as unfounded; (ii) order the applicant to pay the costs.

III — Pleas in law and arguments of the parties

6. The Commission states first that in the present case the infringement of the EEC Treaty of which the Netherlands is accused relates exclusively to controls applied to nationals of a Member State at the Netherlands border for reasons other than those of public policy, public security and public health. The checking of luggage or other goods is likewise not at issue in these proceedings. Furthermore, the present action concerns only the right to enter and spend time in a Member State but not the right to reside there. The Commission then emphasizes that virtually every citizen of a Member State belongs to the classes of persons to whom the EEC Treaty grants rights. They are, in particular: workers and people seeking work (Article 48); persons to whom the right of establishment applies (Article 52); persons providing, and persons receiving, services (Article 59). Tourists fall into the latter category, that of persons receiving services, according to the judgments of the Court in Joined Cases 286/82 and 22/83 Luisi and Carbone [1984] ECR 377, paragraph 16, and Case 186/87 Cowan [1989] ECR 195, paragraph 15. Accordingly, the present dispute relates not only to nationals of a Member State who go to the Netherlands to reside there for a long period (and who must apply for a residence permit for that purpose) but also — above all — to such nationals who cross the frontier in order to stay for a short period in the Netherlands, in other words for a period which might extend from one hour to, for example, a maximum of three months. The Netherlands legislation referred to, in particular Article 23 of the Aliens Order under which nationals of a Member State who are unable or unwilling to state the purpose of their stay in the Netherlands or the amount of cash they are carrying may be sent back over the border is contrary to Community law since, pursuant to Article 3(1) of Directive 68/360 and Article 3(1) of Directive 73/148, a national of a Member State entering another Member State may only be required to produce a passport or identity card and no questions may be addressed to him. First, since it is reasonable to work on the principle that all travellers from an EEC Member State enjoy a status such that rights may be vested in them by the EEC Treaty, a presumption exists that any national of a Member State who presents himself at a frontier with an identity card or passport has a right of entry and a right to stay. A contrary conclusion would lead to an unjustifiable barrier to the crossing of frontiers. Secondly, it is apparent from Article 4(3) of Directive 68/360 and from Article 6 of Directive 73/148 that it is only when a national of a Member State applies for a permit to reside in the host Member State (that is to say after entering its territory) that he must furnish evidence to the authorities of the host Member State that he is entitled to rely on one of those directives. It follows that when he enters the latter State no evidence of that kind may be required of him. In the case of tourists, in particular, a valid identity card or passport takes the place of a residence permit. According to the Commission, its view was supported by Mr Advocate General Warner in his Opinion in Case 157/79 Pteck [1980] ECR 2171. Consequently, even if the provisions of Directives 68/360 and 73/148 do not expressly contain a prohibition whereby nationals of a Member State wishing to enter another Member State may not be made to answer questions other than those relating to the identity card or passport, it is nevertheless clear that to make them answer such questions is contrary to the fundamental principle of the free movement of persons and services which is embodied in Article 3(c) of the EEC Treaty and moreover underlies the two directives in question. To ask such questions and, a fortiori, to expel nationals of a Member State who refuse to answer or, in the opinion of the border officials, do not have sufficient cash with them is to commit acts that jeopardize the attainment of that fundamental aim of the EEC Treaty; they are therefore contrary to the second paragraph of Article 5 of the EEC Treaty. In its reply, the Commission maintains that the Netherlands legislation goes further than the Belgian rules at issue in Case 321/87 Commission v Belgium [1989] ECR 997. In paragraphs 12 and 14 of that judgment, the Court held that the controls at issue were not a condition of entry into Belgian territory. In the present case, the rules at issue specifically make access to Netherlands territory conditional upon fulfilment of certain requirements. The Commission is of the opinion that, having regard to that judgment, that fact alone is sufficient to support the conclusion that the Netherlands rules at issue are incompatible with the provisions of the abovementioned directives.

7. The Netherlands Government, supported by the United Kingdom, considers that the Commission's application should be dismissed. The Netherlands Government considers that Directives 68/360/EEC and 73/148/EEC are intended inter alia to remove national restrictions on the movement of persons claiming a right of residence under the EEC Treaty. The scope of those directives is not therefore such as to cover all the nationals of the Member States. As the Commission itself stated in its application, ‘practically’ all the nationals of a Member States fall into one of the classes of persons who can claim a right of residence under the EEC Treaty. It is apparent from the word ‘practically’ that the EEC Treaty does not grant a right of residence to everyone. It cannot therefore be said that the mere status of national of one of the Member States confers on the person possessing that status a right to enter and reside in another Member State. The finding that a person possesses the nationality of a Member State of the EEC does not automatically afford that person a right of residence since there is at least one category of EC nationals who cannot claim a right of residence under the Treaty, namely those who are not working. The Netherlands Government infers from the fact that Community law lays down certain rules for the grant of a right of residence that checks may also be carried out to ensure that those rules are observed. Compliance and verification of compliance are inherent in those rules. Directives 68/360/EEC and 73/148/EEC presuppose that a person may derive a right of residence from the EEC Treaty. That is a precondition for the application of those directives. In the absence of Community rules in that respect, it is in principle for the Member States to determine how that power of verification is to be exercised. That verification may not, of course, be carried out so as to interfere, in fact or in law, with the Community principle of the free movement of persons. As regards Article 23 of the Aliens Order, the Netherlands Government emphasizes that it provides for a power of control which is exercised by spot checks in the case of nationals of a Member State (as opposed to nationals of nonmember countries, whose access is in principle systematically controlled) and has no bearing on the conditions under which Community nationals have, or do not have, a right of residence. In that regard, the provision in question is neutral. The simple fact that border officials check whether the persons concerned may derive a right of residence from Community law proves that the Netherlands Government takes it for granted that there is a presumption in favour of a right of residence. Consequently, it cannot understand why spot checks should amount to an unjustifiable obstacle to the free movement of persons. The fact that, as the Court has consistently held (see Case 48/75 Royer [1976] ECR 497), the issue of a residence permit is merely declaratory does not affect the possibility of making certain, for the time being and by spot checks, at an earlier stage, namely when they cross the frontier, whether the conditions for the right of residence can be fulfilled. It would be absurd to allow access to a national of another Member State when it was clear that that national had no right of residence and would have to leave the territory of the Member State in question. The interpretation advocated by the Commission would have the effect of creating a right of access which was independent of the right of residence, an interpretation which is illogical and is not supported by the EEC Treaty. The United Kingdom states in the first place that the ‘persons referred to’ in Article 1 of Directives 68/360/EEC and 73/148/EEC are only those persons who have a right of free movement in accordance with Community law. On the other hand, neither of those directives addresses the question of what steps a Member State may take to ascertain whether a national of another Member State wishing to enter its territory is entitled to do so under Community law. In certain circumstances, the asking of questions of a national of a Member State at the border would, depending on the factual circumstances and subject to the application of the principle of proportionality, be compatible with Community law. Questions are justified, under Article 3 of those directives, to ascertain whether the identity card or passport presented is valid (for example, if there is reason to believe that it has been forged) or in order to ascertain whether the person presenting that document is entitled to it (for example, if there is reason to believe that the document belongs to another person). In its application, the Commission takes no account of the fact that it may be legitimate to ask questions for that purpose. Moreover, it may prove necessary for officials responsible for carrying out frontier checks to ask questions about the purpose of the visit, length of stay and financial means, inter alia for reasons of public policy, public security or public health (see Article 10 of Directive 68/360 and Article 8 of Directive 73/148). Furthermore, a Member State may require a Spanish or Portuguese national to have prior authorization before seeking to enter the Member State to pursue an activity as an employed person (see Articles 56 and 58 of the Act of Accession of Spain and Portugal). It is therefore legitimate for the officials in question to establish that such persons have authority to enter and to that end they may ask questions about the purpose of a visit. Finally, it is open to the Member States to ask questions of an individual to ascertain whether he or she actually has a right of entry under Community law where there is reason to doubt the existence of such a right.

G. C. Rodriguez Iglesias

Judge-Rapporteur

1 Language of the case: Dutch.