Case C-50/06, Commission v Netherlands

>> The Netherlands cannot apply to EU citizens general legislation which makes it possible to establish a systematic and automatic connection between a criminal conviction and a measure ordering expulsion

>> The Netherlands thereby fails to fulfill its obligations under Directive 64/221


A number of Union citizens who were sentenced to imprisonment in the Netherlands complained to the Commission about measures taken against them by the Dutch authorities declaring them undesirable on public policy grounds.

After examining those complaints, the Commission concluded that the general legislation of the Netherlands relating to foreign nationals, which was equally applicable to nationals of other Member States, made it possible to establish a systematic and automatic connection between a criminal conviction and a measure ordering expulsion from the territory.

It found that this was not, as concerned citizens of the Union, consistent with Directive 64/221.

The Court agreed. It first of all reiterated that the status of citizen of the Union was destined to be the fundamental status of nationals of the Member States (see, inter alia,
Case C-184/99 Grzelczyk (2001), and Case C-209/03 Bidar (2005)). It pointed out that under Article 18(1) EC, every citizen of the Union had the right to move and reside freely within the territory of the Member States.

A national of a Member State who did not enjoy a right of residence in the host Member State as a result of other provisions of the Treaty or of provisions adopted to give it effect might, simply by virtue of being a citizen of the Union, enjoy a right of residence there in direct application of that Article (see
Case C-413/99 Baumbast and R (2002), and Case C-456/02 Trojani (2004)).

The Court held that that right was not, however, unconditional. Among the limitations and conditions laid down or authorised by Community law, Directive 64/221 permitted Member States to expel nationals of other Member States from their territory on grounds of public policy or public security, subject to compliance with the substantive and procedural safeguards laid down by that directive and with the general principles of Community law.

However, as the Court had held before, the safeguards provided by Directive 64/221 called for a broad interpretation as regards the persons to whom they appl
ied (
C-459/99 MRAX (2002)).

Member States must take all steps to ensure that the safeguard of the provisions of the directive was available to any national of another Member State who was subject to a decision ordering expulsion (see
Case C‑136/03 Dörr and Ünal (2005)).

The Court held that to exclude from the benefit of those substantive and procedural safeguards citizens of the Union who were not lawfully resident on the territory of the host Member State would deprive those safeguards of their essential effectiveness.

An interpretation to the effect that the provisions of Directive 64/221 applied only to citizens of the Union who were lawfully resident on the territory of the host Member State was not consistent with Community law.

The Court held that although it was not possible to ascertain in this case whether there was under the general Netherlands legislation relating to foreign nationals an absolutely automatic connection between, on the one hand, a criminal conviction and, on the other hand, a measure ordering expulsion from the territory, the fact remained that that legislation made it possible to expel from the territory of the Netherlands citizens of the Union who had been convicted of an offence, without regard to the substantive and procedural safeguards provided by Directive 64/221.

It could not be ruled out that a decision to expel such a person would be taken, in spite of family considerations being taken into account, without regard either to their personal conduct or to whether there existed a genuine and sufficiently serious threat to the requirements of public policy.

The legislation hence made it possible to establish a systematic and automatic connection between a criminal conviction and a measure ordering expulsion in respect of citizens of the Union. The Netherlands thereby failed to fulfill its obligations under Directive 64/221.


Text of Judgment