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Limitations on the movement and residence which are justified on grounds of public policy

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1) OBJECTIVE

To coordinate the provisions applicable in each of the Member States when invoking grounds of public policy, public security or public health in matters connected with the movement or residence of nationals of other Member States and the members of their families.

2) ACT

Council Directive 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 [Official Journal L 56 of 04.04.1964].

Amended by the following acts:

Council Directive 72/194/EEC of 18 May 1972 [Official Journal L 121 of 26.05.1972];
Council Directive 75/35/EEC of 17 December 1974 [Official Journal L 14 of 20.01.1975].

Repealed by:

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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. 

3) SUMMARY

Initially the Directive applied to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employee or self-employed person, or as a recipient of services, and to the spouse and to members of the family. The scope of the Directive has now been extended to workers enjoying the right to remain in the territory of a Member State after having been employed in that State (Directive 72/194/EEC) and to non-active persons (Directives 90/364, 90/365 and 93/96).

It relates to measures concerning entry into the territory, issue or renewal of residence permits, or expulsion from the territory, taken by Member States on grounds of public policy, public security or public health. Such grounds may not be invoked to service economic ends.

Measures taken on grounds of public policy or public security must be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions do not in themselves constitute grounds for the taking of such measures and expiry of the identity card used by the person concerned does not justify expulsion from the territory.

Only the diseases or disabilities listed in the Annex may justify refusal of entry into a territory or refusal to issue a first residence permit (e.g. tuberculosis, syphilis, drug addiction, psychotic disorders). Those occurring after a first residence permit has been issued do not justify refusal to renew the residence permit or expulsion from the territory. Member States must not introduce new provisions or practices which are more restrictive than those in force at the date of notification of the Directive.

The decision to grant or to refuse a first residence permit must be taken as soon as possible and in any event not later than six months from the date of application for the permit. The host country may, in cases where this is considered necessary, request another Member State to provide information concerning any previous police record, but such enquiries must not be made as a matter of routine.

The person concerned must be informed of the grounds of public policy, public security or public health upon which the decision to refuse to grant or to renew a residence permit or to expel him from the country is based, unless this is contrary to the interests of the security of the State involved. Except in cases of urgency, the period allowed for leaving the territory shall not be less than 15 days if the person has not yet been granted a residence permit and not less than 1 month in all other cases.

The person concerned has the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal or a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration. Additional procedural guarantees are provided for in specific cases (e.g. where there is no right of appeal to a court of law, or where the appeal cannot have a suspension effect, etc.).

ActDate
of entry into force
Final date for implementation in the Member States
Directive 64/221/EEC19.03.196419.09.1964
Directive 72/194/EEC23.05.197223.11.1972
Directive 75/35/EEC18.12.197418.12.1975

4) IMPLEMENTING MEASURES

Communication - COM(1999) 372 final [not published in the Official Journal]
Communication from the Commission to the Council and the European Parliament of 30 July 1999 on the special measures concerning the movement and residence of citizens of the Union which are justified on grounds of public policy, public security or public health.

Over the years the provisions of Directive 64/221/EEC have been interpreted by the Court of Justice in a number of judgements. Besides, the notion of European citizenship has been fleshed out, notably through the introduction of the concept of Union citizenship in Article 18 of the EC Treaty. Hence the Commission is keen to draw attention to a certain number of difficulties posed by the application of the Directive.
Firstly, there is the matter of the extension of the Directive's scope to former employees and self-employed persons remaining in another Member State after they have ceased pursuing their professional activity ((Directives 72/194/EEC and 75/35/EEC) and other groups of non-active beneficiaries of Community law within the meaning of Directives 90/364, 90/365 and 93/96. Besides, the Directive applies to spouses and other family members, irrespective of their nationality.
As regards the definition of the notions of public policy, public security and public health, Member States are free to determine the scope of these concepts on the basis of their national legislation and case law, but within the framework of Community law. However, any measures taken on grounds of public policy, public security or public health must be justified by a real and sufficiently serious threat to a fundamental interest of society and must be in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with the proportionality principle.
The Commission will see to it that this Communication is widely disseminated with the aid of the new instruments put in place to promote dialogue with the citizens.

5) FOLLOW-UP WORK

Last updated: 28.07.2004
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