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The Court of Justice ruled its Judgment in case C-430/10 with reference for a preliminary ruling concerning free movement of the EU citizens

On 17th November 2011 the Court of Justice ruled its Judgment in case C-430/10 with reference for a preliminary ruling concerning free movement of the EU citizens and prohibition on leaving the national territory due to criminal offence in another Member State.

The reference for a preliminary ruling to the Court of Justice in case C-430/10, in the proceeding Hristo Gaydarov vs the Director of General Directorate “Security Police” in the Ministry of Interior, concerns mainly the interpretation of Article 27(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. The reference has been made between the said persons in relation to a measure adopted by the Director of Police whereby Mr.Gaydarov was prohibited from leaving the country and the issuance to him of a passport or other similar document was prohibited.

By its questions, the referring court Sofia Administrative Court asks, in essence, whether the European Union law precludes an administrative decision by which a Member State prohibits one of its nationals from leaving its territory on the ground that the person concerned has been convicted by a court of another Member State of a criminal offence of narcotic drug trafficking.

The referred questions have been considered by the Court as follows:

  • Mr. Gaydarov enjoys the status of a citizen of the Union under Article 20 TFEU and may therefore rely on the rights pertaining to that status, including against his Member State of origin, and in particular the right conferred by Article 21 TFEU to move and reside freely within the territory of the Member States. Moreover, Article 4(1) of Directive 2004/38 expressly provides that all Union citizens with a valid identity card or passport have the right to leave the territory of a Member Stateto travel to another Member State.
  • The right of free movement of Union citizens may be subject to the limitations and conditions imposed by the Treaty and by the measures adopted for its application.
  • In relation to the main proceedings, those limitations and conditions stem, in particular, from Article 27(1) of Directive 2004/38. That provision does not allow Member States to restrict the freedom of movement of Union citizens or their family members on grounds other than public policy, public security or public health. The concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
  • The derogations from the free movement of persons imply in particular, as stated in Article 27(2) of Directive 2004/38, that if measures taken on grounds of public policy or public security are to be justified they must be based exclusively on the personal conduct of the individual concerned.Further, according to the same provision, previous criminal convictions cannot in themselves constitute grounds for automatically taking measures which restrict the exercise of the right of freedom of movement.
  • Оn the basis of the documents sent to the Court it seems that the sole basis for the issuance of the order in respect of Mr. Gaydarov is the fact that he was convicted of a criminal offence in Serbia, without any specific assessment of the personal conduct of the person concerned. Previous criminal conviction of the person concerned is not by itself sufficient to be accepted automatically, that the persons concerned represents a genuine, present and sufficiently serious threat to one of the fundamental interests of society.
  • Тhe referring court will have also to determine whether that restriction on the right to leave is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it.
  • Тhe person to whom such a measure is applied must have an effective judicial remedy. 

On the grounds above the Court rules that Article 21 TFEU and Article 27 of Directive 2004/38 do not preclude national legislation that permits the restriction of the right of a national of a Member State to travel to another Member State in particular on the ground that he has been convicted of a criminal offence of narcotic drug trafficking in another State, provided that (i) the personal conduct of that national constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, (ii) the restrictive measure envisaged is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it and (iii) that measure is subject to effective judicial review permitting a determination of its legality as regards matters of fact and law in the light of the requirements of European Union law.

The judgment is compulsory for the Bulgarian courts. 

 

 

 
   
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