Opinion of Mr Advocate General Mischo

Mr President,

Members of the Court,

1. Lothar Messner, a national of the Federal Republic of Germany, with a fixed address in Germany, resided in Italy in order to work as a consultant on behalf of an Italian subsidiary of a German undertaking for which he works.

2. The documents forwarded by the national court show that he arrived in Italy on 27 April 1987 and that on 8 May 1987 he reported the theft of his car to police headquarters at Volterra. By a report of 4 June 1987, the police informed the local magistrate (Pretore) that he had not made the prescribed declaration of residence within three days of entering Italy.

3. In those proceedings, the Pretore has referred the following question to the Court:

4. Let me point out straight away that the question concerns exclusively the obligation to make a declaration imposed directly on nationals of other Member States and not the obligations imposed by Italian legislation on hoteliers, hospitals, private persons, and so on, in relation to the residence of foreigners.

5. Proceedings were brought against Lothar Messner under Article 142 of the consolidated laws on public security, approved by Royal Decree No 773 of 18 June 1931, which provides that:

6. Article 17 of the Consolidation Act lays down the relevant penalties:

7. The obligation for nationals of other Member States to report their presence to the police was later dispensed with, except for employed persons and persons providing or receiving services who enter Italy with the intention of staying there for only three months or less. Those who take up residence in Italy with the intention of carrying on an activity there for more than three months are required to apply for a residence card for a citizen of a Member State of the European Communities. Thus, the competent authorities are thereby notified of the presence of such persons within national territory.

8. Let us first consider whether the legislation at issue is in principle compatible with Community law.

A — Principle

9. Lothar Messner resided in Italy either as an employed person or as a supplier of services. For our purposes here, the provisions of Community law applicable to both cases are based on identical principles.

10. First of all, Article 8 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (Official Journal, English Special Edition, 1968 (II), p. 485) provides that:

11. Moreover, Article 4(2) of 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 (Official Journal L 172, 28.6.1973, p. 14) provides that

12. Since the position in Community law is thus perfectly clear, it is not surprising that in its judgment of 7 July 1976 in Case 118/75 Watson and Belmann [1976] ECR 1185, the Court stated that:

13. Of course, it is understandable that the Pretore di Volterra considers the provisions at issue as incompatible with the growing feeling of the citizens of the Member States that they belong to a true community of peoples and are no longer foreigners, in the full sense of the word, in any of the other 11 countries.

14. On the other hand, the desire of the governments of the Member States to achieve, as soon as possible, the complete abolition of controls on persons at frontiers will probably mean that some formalities will be retained within countries in order to trace offenders of all kinds and to enable national authorities to identify the persons who are temporarily carrying on economic activities in the national territory.

15. However, with regard to a measure such as the one at issue, the Court is not required merely to take formal note of it. As it pointed out in paragraph 18 of the judgment in Watson and Belmann, an infringement of the rules concerning freedom of movement for persons

16. Consideration must therefore also be given to the question whether freedom of movement is restricted by a time-limit which is too short for making the declaration of arrival and a penalty which is too severe in the case of an infringement of the rule.

B — The time-limit

17. In Watson and Belmann, the Court stated that

18. However, it is certainly not easy to establish what constitutes a reasonable time-limit. According to the Italian Government,

19. In only one of them, Germany, are the rules more restrictive than in Italy. In Germany, the declaration of arrival must be made immediately (unverzüglich). (That rule too only applies for periods of residence of more than one month and less than three months for the purpose of gainful employment.)

20. In all the Member States, the rules are more liberal. No declaration of arrival is required in Ireland or France. In the United Kingdom the rules in force at the present time require a declaration of arrival to be made within seven days, but the competent authorities do not apply the rules to nationals of the other Member States. In Denmark, a self-employed person or employed person who takes up residence for less than three months need only make a declaration to the tax authorities. However, no time-limit is prescribed for that declaration. In the other Member States, a declaration of arrival must be made within eight days (Belgium, Greece, Luxembourg, the Netherlands), 10 days (Portugual) or 15 days (Spain).

21. In order to assess whether or not the three-day period allowed by Italy is reasonable, account must also be taken of the fact that the period starts to run once the frontier has been crossed. However, it may easily take a traveller coming from northern Europe at least two days to reach a place in the southern part of the Italian peninsula.

22. He then needs time to inquire about the various administrative formalities which his residence entails and to establish which authority he must report to in order to make the declaration of residence. In fact, depending on the size of the locality, he must report either to the sindaco, or to the commissariato di polizia, or to the questura.

23. Finally, in my opinion, the purpose of the obligation to make that declaration of arrival must also be taken into consideration.

24. Inasmuch as the obligation is intended to reveal the presence of foreign offenders at a certain place in the national territory, it is obviously in the interests of public order and public security that their presence should come to the attention to the authorities as soon as possible. However, there can be no doubt that those who have something to hide take good care not to make a declaration of arrival. Therefore, as far as they are concerned, the time-limit of three days will remain a dead letter.

25. However, the provision is also intended, more generally, to enable the national authorities to have an exact knowledge of population movements affecting their territory (see paragraph 17 of the judgment in Watson and Belmann). In my view, since those concerned will remain in the country for up to three months, the public interest is not seriously harmed if they do not make the declaration until eight or even 10 days after their arrival.

26. For all those reasons, in my view, the period of three days imposed by Italy cannot be regarded as reasonable, as stipulated in the judgment in Watson and Belmann.

C — The penalties

27. With regard to the penalties which national authorities may legitimately impose in such cases, we find valuable criteria for assessment in the judgments in Watson and Belmann and Pieck.

28. In paragraphs 20 and 21 of the judgment in Watson and Belmann, the Court stated that:

29. In the judgment in Pieck, the Court made clear its view on the penalty of imprisonment. In paragraph 20 of the judgment it stated:

30. In that case the infringement was not the same inasmuch as the offender had failed to obtain a residence permit. Obviously, when a foreigner fails to make a declaration of arrival, as Lothar Messner did, he commits a less serious offence. Therefore, imprisonment should a fortiori be ruled out in such cases.

31. With regard to the amount of the fine, the following observations may be made: the fines imposed by the other Member States to punish a failure to make a declaration vary from BFR 60 to 1500 in Belgium, from LFR 250 to 2500 in Luxembourg, and not more than HFL 5000 in the Netherlands and DM 5000 in Germany.

32. By way of comparison, the Commission points out in its written observations that Article 11(2) of Italian Law No 1228 of 24 September 1954, imposes a fine of only up to LIT 10000 for failure to discharge an equivalent obligation, namely the obligation imposed both on Italian nationals and foreign nationals to apply for registration in the commune in which they take up residence after a period of residence abroad. That fine has since been raised to LIT 50000.

33. In my view, that provision is a good benchmark for the application of the principle of penalties which are comparable to those attaching to infringements of provisions of equal importance by nationals laid down by the Court in its judgment in Watson and Beimanti. As the infringement consisting in not making a declaration of arrival is certainly not more serious than the infringement which consists in not registering with the commune when taking up a permanent residence, I am of the opinion that a national court should not impose a higher fine for failure to make a declaration of arrival than it would impose for failure to register with the commune.

34. Moreover, a fine which may be as much as LIT 50000 (approximately BFR 1500) could scarcely be regarded as

35. In conclusion, I propose that the Court should reply to the question referred to the Pretore di Volterra in the following way:

1 Original language: French.

2 See Articles I, 2 and 3 of the Decree of the President of the Republic No 1656 of 30 December 1965. GURI No 55, 3. 3 1966, as amended by Law No 127 of 4 April 1977, GURI No 105, 19. 4 1977.

3 Observations of the Italian Republic, pp. 4 and 5.

4 B. Nascimbene: Lo Straniero nel diritto italiano, Milan, Giuffré editore, 1988, pp. 22 and 23.

5 Judgment of 3 July 1980 in Case 157/79 Regina v Stanislaus Pieck [1980] ECR 2171.

6 GURI No 8, 12 1 1955