Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The Community provisions which the Court has been requested to interpret in these proceedings for a preliminary ruling are Articles 8 and 9 of Council Directive No 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. In considering those provisions regard must be had for the basic principles of a fair hearing which are to be inferred from Article 6 of the European Convention for the Protection of Human Rights since the point at issue is what procedures must be made available to nationals of Member States who have been ordered to leave the territory of a Member State other than their own in which they are residing or have requested permission to settle.

2. Before beginning to examine these problems it should, I think, be emphasized that the law governing the matter in dispute still remains based on Directive No 64/221 and it is not possible to regard that as having been overtaken by the subsequent case-law of the Court of Justice as appears to be suggested in the submissions of the plaintiff in the main action and by the agent of the Commission. In the said Royer case the Court of Justice indeed stated in very clear terms that the right of nationals of a Member State to enter the territory of another Member State and reside there ... is a right conferred directly by the Treaty or, as the case may be, by the provisions adopted for its implementation and accordingly independently of the issue of a residence permit by the competent authority of a Member State (paragraphs 31 and 32 of the decision). That statement today constitutes without doubt the key to a proper understanding of the legal situation of a national of a Member State who moves to another country in the Community. At the same time however it must be recognized that the system set up by Directive No 64/221 is still in force and must be applied until any new Community provisions are adopted. The role of trie courts in dealing with a situation of this nature is necessarily limited : they are required to interpret the provisions in force whilst endeavouring to adapt them to the developments in the system and the changing requirements of the community. The Court of Justice has already adopted this method in its judgment in the Royer case and there is no reason to depart from it.

3. Articles 8 and 9 of Directive No 64/221 correspond to the objective that in each Member State, nationals of other Member States should have adequate legal remedies available to them in respect of the decisions of the administration concerning the right of residence (cf. the third recital in the preamble to the directive). In order to attain this objective it is provided in Article 8 that each Member State must from the outset recognize the right of nationals of other Member States of the same legal remedies ... as are available to nationals of the State concerned in respect of acts of the administration against decisions relating to their entry into the territory, refusal to issue or renew a residence permit or an expulsion order.

4. At this point I should like to consider in detail the salient features of the administrative procedure referred to in Article 9 (2) of Directive No 64/221 and to clarify the conditions which must be met by the Member States in complying with the provision in question if that procedure is to be considered an adequate legal remedy for the purposes of the third recital of the preamble to the directive.

5. I do not think that the solution which I favour can be called in question on the basis of Article 6 of the European Convention on Human Rights and the right to a fair hearing which it guarantees. In this connexion we have seen that the Belgian court has expressly referred to that right and has raised the point whether it entails the need to recognize that a national of a Member State has the right of personal access to the courts of any other Member State and perhaps the further right to remain in the State against which proceedings have been instituted for the duration of those proceedings.

6. Nor, in my view, is the result I have accepted regarding Articles 8 and 9 of Directive No 64/221 at variance with the notion that the right enjoyed by Community nationals under the Treaty to reside on the territory of any other Member State constitutes an individual right. I am in fact not persuaded by the argument set out in this connexion in the Commission's submissions to the effect that the existence of a right implies in any case the requirement that it should be protected by the courts with the corollary that an application to the courts should automatically have suspensory effect. In my view it is arbitrary to argue that absence of suspensory effect amounts to failure to provide legal protection. Even if it were admitted that it must always be possible to protect individual rights created by the Treaty directly in favour of individual persons through proceedings before a judicial authority it does not appear possible to infer from that that such protection is deficient whenever an alien served with an expulsion order is not permitted to block the execution thereof merely by instituting counterproceedings. Protection of the actual position of a person who is temporarily in another Member State is in fact ensured by a more flexible and swift procedure although it does not have the same force as an application to the courts; that procedure consists in the requirement of a review within the administration and a suspension of the expulsion order only until the completion of the advisory procedure. On the other hand the fact that the expulsion order is executed is no bar to an application to the courts and accordingly does not rule out the possibility that, as a result of such an appeal, the right of the applicant to reside in a Member State of which he is not a national may be recognized.

7. It remains to consider the second group of questions: it is necessary, therefore, to establish whether an expulsion order can be executed, in a case of urgency, even after an application has been made to a court and whether it is solely for the administrative authority to decide whether a case is urgent or whether, once an application has been submitted, the court dealing with the matter has jurisdiction over this point.

8. In conclusion I suggest that the Court should give the following reply to the questions submitted to by the President of the Tribunal de Premiere Instance, Liège, by an order dated 18 June 1979:

1 Translated from the Italian.