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National, Arrived at Gatwick Airport in Ters of Which Are at Saint OPINION OF MR MAYRAS — CASE 41/74 OPINION OF MR ADVOCATE-GENERAL MAYRAS DELIVERED ON 13 NOVEMBER 1974 1 Mr President, Miss Yvonne Van Duyn, a Dutch national, arrived at Gatwick Airport in Members of the Court, England on 9 May 1973. She declared that her purpose in coming to the United Introduction Kingdom was to take up an offer of employment as a secretary, made to her This preliminary reference is of special a few days earlier by the Church of interest for two reasons. Scientology of California, the headquar­ It is the first time that a court of the ters of which are at Saint Hill Manor, East Grinstead, in the County of Sussex. United Kingdom, the High Court of Justice in London, has made a reference After an interview with the immigration to the Court of Justice for interpretation authorities, she was returned to the of Community rules under Article 177 of Netherlands that same day. the Treaty of Rome. The ground of refusal of leave to enter This is also the first time that the Court the United Kingdom is stated in the has been called upon to decide the document handed to her by the important problem raised by the immigration officer. It reads: limitations, expressed in Article 48 of the 'You have asked for leave to enter the Treaty, to the principle of freedom of United Kingdom in order to take movement for workers within the employment with the Church of Community imposed by considerations Scientology but the Secretary of State of public policy and public security. considers it undesirable to give anyone Consequently, you will have to examine, leave to enter the United Kingdom on in this connection, the extent to which the business of or in the employment of the power of the Member States to that organization'. assess the essential requirements of This decision was taken in accordance national public policy can be reconciled with the policy adopted, in 1968, by the with a uniform application of Government of the United Kingdom Community law and in particular with which considered — and still considers the application of the principle of — the activities of the Church of non-discrimination between migrant and Scientology to be socially harmful. national workers. I must however re-examine the grounds You will also have to make a ruling as of the decision to exclude Miss Van to the direct effect of a directive of the Duyn when I come to consider the Council, or at least of a particular pro­ question of whether the decision taken vision of a directive. The case-law of this by the immigration authorities is based Court does however already indicate on the 'personal conduct of the plaintiff, the reply to be given to this question. within the meaning of Article 3 (1) of Council Directive No 64/221, a I — The facts provision which the Court is asked to interpret. The facts giving rise to the main action In her action in the High Court are straightforward. (Chancery Division) against the Home 1 — Translated from the French. 1353 VAN DUYN v HOME OFFICE Office, Miss Van Duyn sought, in fact, II — Discussion to rely on Article 48 of the Treaty and on Article 3 of Directive No 64/221, 1. Direct effect of Article 48 of the adopted for the purpose of coordinating Treaty establishing the European special measures concerning the Economic Community movement and residence of foreign My Lords, this first question need not nationals which are justified on grounds long retain us. of public policy, public security or The criteria which the Court has evolved public health. over the past years for the purpose of After examining the motion made by the determining whether a provision of plaintiff in the main action and upon Community law and, in particular, a rule hearing Counsel for the Home Office, set out in the Treaty of Rome, is directly the defendant, the Vice-Chancellor, a applicable so as to confer on individuals Judge of the High Court, decided to stay rights enforceable by them in the the proceedings and to refer three national courts, are clearly laid down: preliminary questions to the Court. — the provision must impose a clear The first question concerns the direct and precise obligation on Member effect of Article 48 of the Treaty. States; Under the second, the Court is asked — it must be unconditional, in other whether Council Directive No 64/221 is words subject to no limitation; if, also directly applicable so as to confer however, a provision is subject to on individuals rights enforceable by certain limitations, their nature and them in the courts of the Member States. estent must be exactly defined; The third question concerns the — finally, the implementation of a interpretation of Article 48 of the Treaty Community rule must not be subject and of Article 3 of the Directive. The to the adoption of any subsequent High Court asks you whether, when the rules or regulations on the part either competent authorities of a Member State of the Community institutions or of decide, on grounds of public policy, to the Member States, so that, in refuse a Community national leave to particular, Member States must not enter that State on the basis of the be left any real discretion with regard personal conduct of the individual to the application of the rule in concerned, those authorities are entitled question. to take into account, as being matters of These criteria, which Mr Advocate- personal conduct: General Gand proposed in 1966 in his (a) the fact that the individual is or has opinion in Lütticke (Case 57/65, Recueil been associated with an organization 1966, p. 311) and which the Court has the activities of which the Govern­ adopted in several judgments, have been ment of the Member State considers confirmed and refined in particular by to be contrary to the public good the judgments of 12 September 1972 but which are not unlawful in that (Cases 21 to 24/72, Recueil 1972, p. State; 1227) and 24 October 1973 (Case 9/73, (b) the fact that the individual intends to Schlüter, [1973] ECR 1135) and, more take up employment in a Member recently still, by the judgment of 21 June State with such an organization, it 1974 (Case 2/74, Reyners) in connextion being the case however that no with Article 52, on the right of restrictions are placed upon establishment. nationals of the Member State who The fact that the provisions of Article take up similar employment. 48, which are among the most important These three questions are clearly framed in the Treaty in that their purpose is to and follow a logical order. establish freedom of movement within 1354 OPINION OF MR MAYRAS — CASE 41/74 the Community for employed persons, Case 20/70, Lesage, Recueil 1970, p. satisfy these criteria can no longer be 874; Case 13/70, Haselhorst, Recueil open to doubt following the judgment, 1970, p. 893), that, apart from also very recent, of 4 April 1974 (Case regulations, other Community acts 167/73, Commission v France, [1974] mentioned in Article 189 may have ECR 359). direct effect, particularly in cases where By this decision, the Court stated that the Community authorities have the provisions of Article 48 and of imposed on Member States the Regulation No 1612/68 of the Council obligation to adopt a particular course on employment of migrant workers are of conduct. The Court stated that the directly applicable in the legal system of positive effect of these acts would be every Member State and give rise, on the lessened if individuals were unable, in part of those concerned, to rights which such a case, to enforce through the the national authorities must respect and courts rights conferred on them by safeguard. decisions of this nature, even though such decisions were not taken in the If the High Court of England had had form of regulations. knowledge of this judgment when it decided to make this reference for a The statement contained in the preliminary ruling, it is probable that it Judgment of 17 December 1970 (Case would not have put its first question to 33/70, SACE, Recueil 1970, p. 1224) is the Court. It is understandable that it even clearer: considered it necessary to do so because 'a directive, the purpose of which is to it made its order for reference on 1 set a final date for the implementation March, in other words before the Court by a Member State of a Community delivered its decision on the direct effect obligation, concerns not only the of Article 48. relations between the Commission and However that may be, the problem is that State, but also entails legal resolved for the future and it suffices for consequences on which individuals may the Court to confirm, with regard to this in particular rely whenever, by its very matter, its judgment of 4 April 1974. nature, the provision enacting that obligation is directly applicable.' When faced with a directive, it is 2. Direct effect of Council Directive No therefore necessary to examine, in each 64/221 case, whether the wording, nature and There is less certainty regarding the general scheme of the provisions in solution of the second question which, question are capable of producing direct as has been seen, is concerned with the effects between the Member States to direct applicability of the Council which the directive is addressed and Directive of 25 February 1964. their subjects. Article 189 of the Treaty distinguishes in What is the position as regards Council fact between regulations, which are not Directive No 64/221? only binding but also directly applicable The purpose of this act is to coordinate, in the Member States, and directives, in the Member States, measures which are also binding on the States but concerning the movement and residence which have, in principle, no direct effect of foreign nationals which are justified inasmuch as they leave to the States the on grounds of public policy, public choice of methods for their implemen­ security or public health.
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