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 . 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.

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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 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. tation. It was adopted on the basis of Article 48 Nevertheless, looking beyond formal — and it in facts refers expressly to the legal categories, the Court declared in its rules applicable at that time to freedom judgments of 6 and 21 October 1970 of movement for workers — and of (Case 9/70, Grad, Recueil 1970, p. 838: Article 56, on the right of establishment.

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The Directive is intended to limit the States and subject restrictions on powers which the States have undeniably freedom of movement, such as refusal of retained to ensure, within the area of leave to enter, exclusion or expulsion, to their competence, the safeguarding of the condition that these measures should their public policy and, in particular, of be based exclusively on the personal public security within their territory. conduct of the persons concerned? Article 3 (1) of this Directive lays down, It seems that the Council thereby wished as the Court knows, that: 'measures to prevent Member States from taking taken on grounds of public policy or general measures relating to whole public security shall be based exclusively categories of persons and, were seeking, on the personal conduct of the person in particular, to prohibit collective concerned'. exclusions and expulsions. For the purpose of giving a practical The Council has, in any case, imposed answer to the question put by the High on Member States a clear and precise Court there is in fact no need to examine obligation. The first condition for direct whether all the rules fixed by the effect is satisfied. Directive have direct effect or not. The second is also. The rule is sufficient Only Article 3 (1) is relevant in this case. in itself. It is not subject either to the However, in order to judge whether adoption of subsequent acts on the part Article 3 (1) is directly applicable, it is either of the Community authorities or necessary to approach the matter of its of Member States. The fact that the interpretation and therefore to encroach latter have, in accordance with the a little on the third preliminary question. principle relating to directives, the choice As to the scope of Article 3 (1), there is of form and methods which accord with no doubt that it covers both employed their national law does not imply that persons, dealt with under Article 48, and the Community rule is not directly those pursuing activities as self-employed applicable. On the contrary, it is so persons, dealt with under Articles 52 et closely linked to the implementation of seq. Article 48, as regards employed persons, With regard to employed migrants, the that it seems to me to be inseparable Council had the power under Article 48 from and is of the same nature as that to adopt a regulation, and this is, provision of the Treaty. moreover, what it did as regards the Finally, it is clear thar even though the conditions of their employment in a States have retained their competence in Member State. the field of public security, Article 3 (1) For persons who are self-employed, of the Directive imposes a specific Article 56 (2) limits the possibility to the limitation on that competence, in the use of directives. Without doubt the exercise of which they cannot act in a Commission considered it desirable to discretionary manner towards Com­ unify, by means of the same legal munity nationals. instrument, the rules concerning freedom These considerations lead me to of movement for the employed and conclude that the provision in question those concerning the right of establish­ confers on Community nationals rights ment of the self-employed, at least as which are enforceable by them in the regards measures relating to public national courts and which the latter policy in the Member States. must protect. But recourse to that procedure does not preclude Article 3 of the Directive from 3. Public security and the concept of having direct effect. personal conduct What other aim could the Council have had in enacting this provision than to I now come to the third question. What limit discretionary power of Member is meanty by 'personal conduct' which is

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such as to justify refusal of leave to Commission, that it is possible to deduce enter a Member State? How should this a Community concept of public security. concept be defined? This concept remains, at least for the Looking beyond a commentary on the present, national, and this conforms with words themselves, the solution seems to reality inasmuch as the requirements of me to be governed by two prime public security vary, in time and in considerations: space, from one State to another. — Firstly, freedom of movement for In my opinion, the third question must workers is one of the fundamental be decided in accordance with the above principles of the Treaty and the considerations. prohibition on any discrimination on First of all, to what extent can the grounds of nationality between concept 'personal conduct' be applied to workers of the Member States is not the facts provided by the national court, subject to any other limitations than namely that a Community national is those provided for, in restrictive associated with an organization, the terms, in paragraph (3) of Article 48, activities of which are considered to be relating to public policy, public contrary to public policy, without security and public health (Judgment however being illegal, and that she of 15 October 1969, Case 15/69, intends to take up employment with that Ugliola, Recueil 1969, p. 368). organization, it being the case that — Secondly, if a 'Community public nationals are not subject, in similar policy' exists in areas where the circumstances, to any restriction? Treaty has the aim or the effect of In truth, the question, expressed in those transferring directly to Community terms, led me to examine the file institutions powers previously exer­ received from the High Court for cised by Member States, it can only evidence permitting a clearer under­ be an economic public policy relating standing of the facts which warranted for example to Community or­ the exclusion of the plaintiff in the main ganizations of the agricultural action. market, to trade, to the Common Customs Tariff or of the rules on It is clear from the file that not only did competition. the plaintiff go to England with the avowed intention of taking up On the other hand, it seems to me that, employment as a secretary with the under present conditions and given the Church of Scientology, but that she had present position of the law, Member already worked in a Scientology States have sole power, given the establishment in the Netherlands for six exceptions expressed in certain months prior to her arrival in England Community provisions such as Directive and that she had taken a course in No 64/221, to take measures for the Scientology and was a practising safeguarding of public security within Scientologist. their territory and to decide the It is clearly on the basis of these facts as circumstances under which that security a whole, the accuracy of which it is may be endangered. obviously not for the Court to judge, In other words, even though the general that the British immigration authorities proviso relating to public polity, which decided to refuse her leave to enter. is found both in Article 48 and in Article 56, is a limited exception to the It also emerges from the file that in 1968 principles of the Treaty concerning the United Kingdom Minister of Health freedom of movement and freedom of made a statement in Parliament in which establishment, and one which must be he expressed the opinion that: restrictively construed, I did not think, 'Scientology is a pseudo-philosophical contrary to the opinion of the cult' of which the principles and practice

1357 OPINION OF MR MAYRAS — CASE 41/74 are, in the opinion of the British It is in relation to this point — and only Government, a danger both to public this point — that the competence of the security and to the health of those who Member States in this area is limited by submit to it. the Directive. The Minister announced, on that It is necessary to examine, finally, occasion, the decision of the whether, by prohibiting the entry of a Government to take all steps within its Community national on the grounds power to curb the activity of the which I have rehearsed, the Government organization. He stated that although of the United Kingdom has not violated there was no power under national law the principle of non-discrimination, in to prohibit the practice of Scientology, other words, that of equality of the Government could at least refuse treatment with nationals, which is the entry to foreign nationals intending to necessary corollary of freedom of work at the headquarters of the Church movement for individuals, and which, of Scientology in England. based principally upon Article 7 of the It is, it seems, on the basis of this policy Treaty, is expressly applicable to that Miss Van Duyn was refused leave to employed persons by virtue of Article 48. enter the United Kingdom by reason as much of the links which she had already It is an established fact that, although had in the past with the said 'Church' in the Church of Scientology is, in the eyes the Netherlands as of the fact that she of the British Government, socially was herself a practising Scientologist harmful, and although, in consequence, and, finally, by reason of her intention its activities are considered to be to take up employment at Saints Hill contrary to public policy, they are not Manor. unlawful in the United Kingdom and nationals are free to study and practise Given this information, there is no Scientology and also to work at the doubt, in my opinion, that these facts organization's establishment. fall within the concept of 'personal conduct' within the meaning of Article 3 At first sight, there is therefore discrimination in the treatment inflicted (1) of the Directive and that mere on nationals of other States of the association, albeit only through a contract of employment, with the Community, in the fact that they are Church of Scientology, is an element of refused entry to Britain solely on the a person's conduct. ground of their coming to practise Scientology at Saints Hill Manor and Moreover, as I have said, the provision to take up employment at that in question was essentially inspired by establishment. the concern of the Community I do not think however that this institutions to prohibit Member States discrimination is contrary to the Treaty. from taking collective measures in relation to Community nationals. It As I have said, the proviso relating to requires that an examination be made of public policy and particularly to public the particular circumstances of each security has the effect of maintaining the individual affected by a decision based competence of the Member States in this on the safeguarding of public policy. area, subject to the obligation that The provision implies without any doubt measures of public security must be that the grounds of such a decision justified by the personal conduct of should be subject to review by the those concerned. national courts which, as is the case But Member States retain, as regards here, have the power — or sometimes both assessment of the threat to their even the duty — to consult this Court security and the choice of measures to on the interpretation of the Community counteract such a threat, a power the law applicable. exercise of which does not cast doubt

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upon the principle of equality of activities of the said organization as treatment, unless, of course, they misuse being contrary to public policy. But, in so this power by exercising it for an far as the United Kingdom Government improper purpose, such as economic has the legal means to prevent foreign protection. nationals, and even Community It so happens that, according to the nationals, from coming to expand, statements of the British Government, within the UK, the band of followers of there is no power under past or existing Scientology, I consider that it can act in national law to take measures the way it does without creating prohibiting the establishment of discrimination within the meaning of Scientology. That is one consequence Article 48 of the Treaty. The action it of a particularly liberal form of has taken lies within the powers which government. It would doubtless be quite the proviso relating to public policy different in other Member States, the contained in that Article confers upon Governments of which regard the every Member State.

In conclusion, I advise the Court to rule that:

1. The provisions of Article 48 of the Treaty and those of Article 3 (1) of the Council Directive No 64/221 are directly applicable in the legal order of every Member State and confer on individuals concerned rights which the national authorities must protect.

2. The fact that a person has been or is associated with an organization the activities of which are considered by a Member State to be contrary to public policy even though those activities are not, within the territory of that State, prohibited by national law, is a matter which comes within the concept of 'personal conduct' and which may justify a measure taken on the grounds of public policy or public security within the meaning of the aforementioned provision of Directive No 64/221.

3. The fact that a person enters the Member State concerned with the intention of taking up employment with an organization the activities of which are considered to be contrary to public policy and public security, it being the case that no restriction is placed upon nationals of that Member State who wish to take up similar employment with that organization, is likewise a matter falling within the concept of 'personal conduct'.

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