Van Duyn v The Home Office 179 178 All England Law Reports [1974] 3 All ER f, or in the employment of, the Church of Scientology. She was returned to The change of rate from to per cent to 8 per cent announced by the Chancello ess o 2. herlands that evening. She brought an action against the Home Office in of the Exchequer which is to be effective on and from 29th July 1974 will apply et 'ell she claimed a declaration that she was entitled under art all bills of costs the taxation of which is completed on or after that date irrespec • 48a of the EEC Treaty EEC Regulation 1612/68, to accept the offer of employment, to move of the date when the work was transacted. art tb of y within the United Kingdom for that purpose, to stay within the United King- 3. For this purpose the taxation shall be deemed to be completed on the date for the purposes of employment, and to be given leave to enter the United or after 29th July 1974 when the taxing officer finalises the taxation by issuing datn. She alleged that she had been refused entry solely on the grounds of public certificate, allocatur or other notification of the final result of the taxation. and that such a refusal was unlawful for, on the true interpretation of art 48(3) 4. There will therefore be no necessity to apportion bills of costs pre- siteEEC Treaty and art 3c of EEC Directive 64/221 a member state could only refuse post- 29th July 1974, as at first anticipated by the profession. Ilona of another member state entry on grounds of public policy for reasons based 5. An exception will arise when a bill which constitutes a tax invoice has b usively on the personal conduct of the individual person concerned. In its defence delivered by a solicitor to his own client and is subsequently submitted for taxa orne Office (i) denied that either art 48 of the EEC Treaty or EEC Directive pursuant to the Solicitors Act 1957, when the date of delivery of the bill is the effe I conferred on the plaintiff any right that was directly enforceable by her in the date. ..'Of the United Kingdom and (ii) alleged that in any event the refusal to grant e to enter was based on the plaintiff's personal conduct within the meaning of GRAHAM GRAHAM-G birective 64/221, art 3, in that she had been associated with the Church of Scien- Chief Taxing Ma 24th July 1974 , in the past, was a practising Scientologist and was intending to work at a ology establishment in the United Kingdom. The plaintiff moved for an order RSC Ord 114, r 2, that the following questions be referred to the European bflustice for a preliminary ruling under art 177e of the EEC Treaty: (a)whether Van Duyn v The Home Office ome Office's refusal on grounds of public policy to allow the plaintiff leave to the United Kingdom was in the circumstances contrary to art 48(1)(2) of the Treaty, EEC Regulation 1612/68, art r, and EEC Directive 64/221, art 3(I), and CHANCERY DIVISION tether the facts relied on by the Home Office were capable of amounting to PENNYCUICK V-C al conduct within the meaning of EEC Directive 64/221, art 3; (c) whether 8th, tith, IzIth FEBRUARY 1974 of the EEC Treaty and EEC Directive 64,221 were directly applicable. European Economic Community — Reference to European Court — Request for preli ruling concerning interpretation of treaty — Power of national court to refer ques 'The application would be granted and an order would be made forthwith g the questions to the European Court for the following reasons— considers necessary to enable it to give judgment — Question relating to free may workers within European Economic Community — Member state having power to estions (a) and (b) raised an arguable 'question of interpretation' in respect of Ofthe EEC Treaty, and of art national of another member state entry on grounds of public policy — Measures ta 3 of EEC directive 64/221 which, by virtue of grounds of public policy to be based exclusively on personal conduct of individual con 'Of the EEC Treaty, was binding on the United Kingdom (see p 185 h and declar to f, post). Dutch national refused entry into United Kingdom — Dutch national seeking ecision on the true meaning of those provisions was 'necessary' within the that refusal unlawful — Dutch national alleging refusal on grounds of public policy Home Office alleging refusal based on personal conduct of national — Home Office Of art 177 in order to enable judgment to be given (see p 186 g, post). Dutch national not having any right directly enforceable in United Kingdom courts iere.were no grounds for deferring a decision on whether a reference should delivery of reply Dutch national seeking reference of questions raised by issues — .flptil after the trial of the action or even until after discovery, since there were necessary to enab questions 'questions of interpretation' — Whether decision on theni !issues of fact and of national law to be determined and no prospect of any Tr iteing produced that would illuminate the matters pleaded (see p 186 h to give judgment — Whether appropriate time for reference to be made — EEC post). 48, 177 - EEC Directive 64/221, art 3. rmore it was necessary to refer question (c) for it was not clear whether EEC In 1968 a government Minister stated in the House of Commons that the goy Treaty was directly applicable so as to confer on individuals rights considered that the practice of Scientology was socially harmful and that it ha 13y them in the courts of a member state (see p 187 d to f, post). drawn its acceptance as an educational establishment of the college set up by the, of Scientology at East Grinstead. Pursuant to government policy foreign II' Iiiet out at p i85 a to d, post intending to work or study at Scientology establishments were not allowed rovides: `(i) Any national of a Member State shall, irrespective of his place of into the United Kingdom. After the United Kingdom's accession to the EEC ve the right to take up an activity as an employed person, and to pursue such 1972 the Home Office announced that that policy would be continued of the territory of another Member State in accordance with the provisions laid apply to nationals of states that were members of the European Economic Co 4,! rekulation or administrative action governing the employment of nationals . (20)uHt the plaintiff, a Dutch national, was offered employment at the coll eatshpaIl18,5ine apnadrti:icuploasr,t In 1973 a ry have the right to take up available employment Grinstead. She had taken a course in Scientology and had been working in of another Member State with the same priority as nationals of that State.' Out at p 186 c, establishment in Amsterdam for six months. When she arrived at Gam!! post t at p 911 .7 g, post on her way to take up the post at East Grinstead, she was refused entry jack 1;- out at Kingdom by an immigration officer on the ground that the Secretary p 185 g to j, post sidered it undesirable to give leave to anyone to enter the United King [1974] 3 All ER Van Duyn v The Home Office (Pennycuick V-C) 181 180 All England Law Reports ch D

applied for an order that: (1) pursuant to RSC Ord 114, r 2, the following questions Notes minary hearing For control of immigration of nationals of EEC countries, see 4 Halsbury's Laws (4rl a 8 be referred to the European Court of Justice for a preli under art 177 the EEC Treaty: (a) whether art 48 of the EEC Treaty was directly applicable so as Edn), 493, 494, para too'. of For the reference of questions to the European Court, see 39A Halsbury's Laws to confer on individuals rights enforceable by them in the courts of the United Kingdom ; (b) whether EEC Directive 64/221, adopted on 25th February 1964 in accordance (3rd Edn) para 38. with the EEC Treaty, was directly applicable so as to confer on individuals rights Cases referred to in judgment CMLR 1. enforceable by them in the courts of the United Kingdom; (c) whether the Home Lowenbriiu Munchen v Grunhalle Lager International Ltd [1974] r office's refusal based on grounds of public policy to allow the plaintiff leave to enter Schmidt v Secretary of State for Home Affairs [1969] i All ER 904, [1969] 2 Ch 149, [196A b 129a. the United Kingdom in order to take employment with the Church of Scientology 2 WLR 337, 133 JP 2.74, CA, Digest (Cont Vol C) 17, on the basis that it was 'undesirable to give anyone leave to enter the United Kingdom Cases also cited on the business of or in the employment of that organisation' was contrary to (i) the Albatros SARL v Societe des Pétroles et des Combustibles Liquides (SOPECO) [19651 provisions of art 48(I), (2), of the EEC Treaty and/or art of EEC Regulation 1612/68 CMLR 159, CJEC. and/or art 3(I) of EEC Directive 64/221 insofar as the effect of the policy was to dis- Van Gend en Loos, NV v Nederlandse Algemene Transport- en Expeditie Onderneming C criminate between nationals of member states of the European Economic Community [1963] CMLR 105, CJEC. other than of the United Kingdom and United Kingdom citizens on whom no similar Tariefcomissie Corriere Association Generale des Fabricants Belges de Ciment Portland Artificiel, SA v SA restrictions were placed, and (ii) the provisions of art 3(r) of EEC Directive A_4,221 / Dufour [1967] CMLR 2,50, Belgian Cour de Cassation. lniofar as the policy was of general application; (d) whether all or any of the following Beus (W) GmbH & Co v Hauptcollamt Miinchen-Lansbergerstrasse [1968] CMLR 13i Matters, namely, (i) that the plaintiff had worked in a Scientology establishment in Amsterdam for six months, (ii) that the plaintiff had taken a course in Scientology, CJEC. All ER 1380, [1971] i WLR 1037, [197i] CMI., Blackburn v Attorney-General [1971] 2 (iii) that the plaintiff was a practising Scientologist in the sense that she subscribed to doctrines and beliefs of the Church of Scientology, (iv) that the plaintiff intended CMLR 156, Finanzgericht, Munich. the Bu7lg8a4;iCanAD. essert Grapes, Re [1967] M work at a Scientology establishment in the United Kingdom, was capable of v Barulli [1968] CMLR 239, Landgericht, Wiesbaden. Ithounting to personal conduct within the meaning of art 3 of EEC Directive 64/221. City of Wiesbaden [1964] CMLR 425, Cott Costa v Ente Nacionale per L'Energia Elettrica (ENEL) The facts are set out in the judgment. Costimzionale. i, Da Costa en Schaake NV v Nederlandse Belastingadministratie [1963] CMLR 224, CJEC. R H Newman for the plaintiff. for the Home Office. Diederichs and Plaschke v The State [1973] CMLR 509, District Court of the Hague. 4er Gibson Firma Alfons Liitticke GmbH v Hauptcollamt Sarrelouis [1971] CMLR 674, CJEC. Cur adv vult [1971] CMLR i,CJEC. Grad (Franz) v Finanzamt Traunstein ,ith February. PENNYCUICK V -C read the following judgment. In this Marimex SpA v II Ministero delle Finance [1972] CMLR 907, CJEC. retfon the plaintiff is Miss Yvonne Van Duyn. The defendant is the Home Office. Marsman v Firma M Rosskamp [1973] CMLR 501, CJEC. for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 3 e plaintiff seeks a declaration that she is entitled to enter and remain in the Minister Aiolted Kingdom for the purpose of accepting employment with a body known as Belgian Cour de Cassation. Church of Scientology. The plaintiff was in fact refused leave to enter the United Moebs v Bestuur der Sociale Vercekeringsbank [1964] CMLR 338, CJEC. • [1968]CMLR 187, C dom on 9th May 1973 and returned to the Netherlands on the same day. The Molkerei-Zentrale Wesyklen/Lippe GmbHvHauptcollamt Paderborn [1973] CMLR 6o, CJEC. rue Office contends that such refusal was justified. Politi SAS v Ministero delle Finance -t-The Pubblico Ministero v SpA Societd Agricola Industria Latte [1972] CMLR 723, CJEC. issue in the action turns for all practical purposes on the construction of certain an Italian National, Re [1971] CMLR 54o, Verivaltuncseeif ons in the EEC Treaty, and a direction given pursuant to that treaty, the com- Residence Prohibition on effect of which is that within the European Economic Community a member shaf, Baden-Warltemberg. Getreide und Futtermittd [s may refuse entry to an individual on the grounds of public policy, but that Dusseldorf v Einfuhr- und Vorratsstelle fur Rheinmuhlen es taken on this ground must be based exclusively on the personal conduct CMLR 523, CJEC. e [197I] CMLR 123, CJEC. individual concerned. I have before me today a motion on the part of the SACE v Italian Ministry of Finance Oarwt hereIn obfytshheeEseEe Sociaal Fonds voor de Diamanterbeiders, Antwerp v SA Ch Brachfeld & Sons, Antwerp cksTtrheaatytce. rtain questions set out in the schedule to the notice tion be referred to the European Court of Justice for a preliminary ruling CMLR 335, CJEC. Sociale Vercekeringsbank v H J van der Vecht [1968] CMLR 151, CJEC. ets may be stated as follows. The Church of Scientology is a body established Societe des Petroles Shelt-Berre, Re [1964] CMLR 462, French Conseil d'Etat. nited States of America, which functions in the United Kingdom through [1970] CMLR 112, CJEC. Stauder v City of Ulm at East Grinstead, Sussex. There is no evidence before me as to the consti- Tax on Imported Lemons, Re [1968] CMLR I, Finanzgericht, Hamburg. Maschinenbau Ulm GmbH [1966] CMLR 357, CJEC. purpose of the Church of Scientology, but it is not in doubt that the govern- Technique Miniere v [1964] C Bestuur der Bedriffsvereniging voor Detailhandel en Ambachten this country regards its activities as contrary to public policy. On 25th Unger v .;.1)e Minister of Health stated in the House of Commons that the govern- CJEC. Ets Vervaecke SPRL [1969] CMLR 273, CJEC. tisfied that Scientology was socially harmful and that he had withdrawn Valk (Franz) v of the college as an educational establishment. In Schmidt v Secretary of Wilhelm v Bundeskartellanit [1969] CMLR roo, CJEC. One Affairs It 9h69e C2 ocuhr:94of Appeal upheld a decision of Ungoed-Thomas J Motion ER 904, r By notice of motion dated 4th December 1973, as amended, Yvonne Van plaintiff in an action begun by writ issued on 12th June 1973 against the Hom [1974] 3 All ER Van Duyn v The Home Office (Pennycuick V-C) 185 184 All England Law Reports Ch D

nd Hardy's EEC Law'. I will come at once to the provisions which bear directly on the '5. Subject to reference at the trial to Directive 64/221 for its full terms a a present issue. The EEC Treaty itself contains three artides which are directly in effect, paragraph 7 of the Statement of Claim is admitted. The Defendant will a contend that the said Directive is not directly applicable so as to confer on in ch.. point. Article 48 provides: viduals rights enforceable by them in the Courts in the United Kingdom. cy 'a. Freedom of movement for workers shall be secured within the Community '6. The Defendant admits that at all material times it has been the poli by the end of the transitional period at the latest. [I intervene to say that it is of the Government for the time being of the United Kingdom not to allow the common ground that the transitional period is now ended.] entry into the United Kingdom of foreign nationals intending to work or study '2. Such freedom of movement shall entail the abolition of any discrimination at a Scientology establishment in the United Kingdom. The Defendant further b based on nationality between workers of the Member States as regards employ- admits that the said policy was announced on July 25th 1968 in the House of ment, remuneration and other conditions of work and employment. Commons by the then Minister of Health in a written answer and that its con- '3. It shall entail the right, subject to limitations justified on grounds of public tinued application to nationals of Member States of the said Community after policy, public security or public health: (a) to accept offers of employment the United Kingdom became a Member State was confirmed by letter from the actually made; (b) to move freely within the territory of Member States for this Defendant to Mr. C. B. B. ParseIle of the Church of Scientology dated April and (c) to stay in a Member State for the purpose of employment in ac- in reply to letters from the said Mr. ParseIle dated February 15th, March t purpose; 5973 cordance with the provisions governing the employment of nationals of that Save as hereinbefore admitted and subject to i3th and March 21st 1973. State laid down by law, regulation or administrative action; (d) to remain in reference at the trial to the said written answer and to the said letters for their the territory of a Member State after having been employed in that State, sub- 8 and 9 respective full terms and effect each and every allegation in paragraphs ject to conditions which shall be embodied in implementing regulations to be of the Statement of Claim is denied. drawn up by the Commission. If, which is denied, the said Directive is directly applicable so as to confer MN '7. `4. The provisions of this Article shall not apply to employment in the public on individuals rights enforceable by them in the Courts in the United Kingdom, service.' the Defendant will contend that the refusal to grant leave to the Plaintiff to enter the United Kingdom was based on her personal conduct, within the mean- Article 177 provides: ing of Article 3 of the said Directive, in that—(a) she had worked in a Scientology 'The Court of Justice [that is, the European Court] shall have jurisdiction to establishment in Amsterdam for six months prior to the 9th May 5973, (b) prior the interpretation of this Treaty; and [(b) to such work she had taken a course in the subject of Scientology, (c) she was at give preliminary rulings concerning: (a) are not in point.] Where such a question is raised before any court or the date of such refusal a practising Scientologist, (d) she was intending at such and (c) tribunal of a Member State, that court or tribunal may, if it considers chat a date to work at a Scientology establishment in the United Kingdom. decision on the question is necessary to enable it to give judgment, request the The Plaintiff is not entitled to the relief claimed or any relief.' '8. Court of Justice to give a ruling thereon. Then there are the particulars which I need not read. Finally the reply reads: 'Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under The facts contained in sub-paragraphs (a) to (d) inclusive of paragraph 7 national law, that court or tribunal shall bring the matter before the Court of Justice.' of the defence are admitted. 7 of the defence is denied. '2. Save as to the above admission, paragraph I mention in passing that the meaning of the word 'preliminary' in art 177 is rather Save as hereinbefore admitted, the plaintiff joins issue with the defendant= '3. obscure. For an explanation see Parry and Hardy's EEC Lawz. It is not suggested that on its defence.' the word has any bearing on the problem now before me. Article 189 provides: 7 The pleadinas raise no issue of fact, with the following exception. Paragraph 'In order to carry out their task the Council and the Commission shall, in accor- dance with the provisions of tl ns Treaty, make regulations, issue directives, take the defence alleges that the refusal to grant leave was based on the plaintiff's person . - conduct particularised under sub-paras (a) to (d). The official refusal of leave to entei decisions, make recommendations or deliver opinions. merely states that it is undesirable to give anyone leave to enter the United Kingdonl driayergutll ti aott,I p slhicaalbl llelai\n e agllen m ereaml abperpl sicta atteiosn . It shall be binding in its entirety andA ec on the business of or in the employment of that organisation, i e, in effect sub-pa4thi of the defence. This divergence has at first sight some significance in .. A directive shall be binding, as to the result to be achieved, upon each Member (d) in para 7 ontradiseincu it confines the ground of refusal to the plaintiff's future intention in c 'State to which it is addressed, but shall leave to the national authorities the choice : of form and methods. to her past activities. But it is stated by counsel for the Home Office thatthe sub-pa Mimi (a) to (c), as well as sub-para (d), are derived from information aiven CO :A decision shall be binding in its entirety upon those to whom it is addressed. That being so, there is no substan tion officer by the plaintiff on 9th May 1973. the Recommendations and opinions shall have no binding force.' relevance in this issue of fact and the case turns wholly on the provisions of e7re followed certain secondary legislation now in point. The important piece of Treaty and its secondary legislation. r 44rY legislation for the present purpose is a directive made by the Council of The pleadings raise two broad issues in this connection, namely: (i) was the C ...C.)13ean Economic Community on 25th February 1964, and numbered 64/221/ of entry based on the plaintiff's personal conduct within the meaning of art 48 The Directive contained, amongst others, these recitals: EEC Treaty and EEC Directive 64/220 and (ii) does art 48 of the EEC Treaty the plaintiff a right of action enforceable in the courts in this country? on a r_, I will not attempt any introductory statement as to the EEC Treaty or the P Court of Justice. For a convenient general review of these matters, see 187 Van Duyn v The Home Office (Pennycuick V-C) Ch D 0974] 3 All ER All England Law Reports produced on discovery which could throw any more light on the matters pleaded. e Counsel for the Home Office contended that the national court should not over- approximation of th a deluge of references. I Whereas such co-ordination presupposes in particular an a burden the already overburdened European Court with a . procedures followed in each Member State when invoking grounds of public bt whether that is a legitimate consideration, but in any case this seems to me an policy, public security or public health in matters connected with the movement doue of the first importance on which a reference is entirely appropriate. issu or residence of foreign nationals; There appears to have been so far only one case in this country in which the court 'Whereas in each Member State, nationals of other Member States should have Löwenbrent München v Grunhalle Lager has been asked to make a reference, namely, refused to make a reference adequate legal remedies available to them in respect of the decisions of the is before Graham J. In that case Graham J si International Ltc1 1 administration in such matters; b. in the particular circumstances of the case at an interlocutory stage. I would, however, 'Whereas it would be of little practical use to compile a list of diseases and like to quote and adopt one passage in his judgment where he said 2 : disabilities which might endanger public health, public policy or public security and it would be difficult to make such a list exhaustive; whereas it is sufficient to 'As I read the Treaty, references are not to be made unnecessarily, but on the other hand the power to refer is not confined only to courts whose decisions are classify such diseases and disabilities in groups . . final, or to any particular stage of a case. It seems to me therefore that if I felt in of the Directive reads: this case in need of guidance upon the interpretation of any Article of the Treary Then art 3 and that such guidance was necessary for my decision I have unfettered power to Measures taken on grounds of public policy or of public securiry shall be refer the matter to the EEC Court. Such appears to me to be the clear intention based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for of the Treaty from its wording.' '2. , (2) The question whether any given provision in the EEC Treaty is enforceable by an the taking of such measures.' individual in the court of a member nation, sometimes called 'direct applicability', of that Directive clearly, I think, go to the 'result to be - u has been considered by the European Court in connection with various articles of the Paragraphs I and a of art 3 achieved' within the meaffing of art 189 of the EEC Treaty, and not to the `form and .- EEC Treaty, and in certain cases the court has held that an artide is directly appli- 48 were methods', which are left to the national authorities. I was also referred to a repladon cable. I should only be justified in refusing a reference on the ground that art of the Coundl dated t5th October 1968, and numbered 1612168, but so far as I can see not directly applicable if it were really clear that that was so. Counsel for the Home that regulation, so far as now material, does no more than reaffirm and amplify the Office very properly accepted that this is at any rate an open question and I do not basic principle laid down in article 48. - e think it necessary to say any more on this point. I turn then to consider the two broad issues raised by the pleadings. 3 I should observe in this connection what is perhaps obvious. If I considered that (a) should not make a reference on issue (t) I think it plain that art 48 of the EEC Treaty, when read in conjunction with art plaintiff had no arguable case on issue (t), I of the EEC Directive 641221, raises a question of interpretation. If art 48 stood alone, , the on the other hand, if I considered that - which would then be purely academic; (b) it might perhaps be sufficiently clear that each member state was to be the sole judge (1), the-, the plaintiff had a perfectly clear case on issue (1), it would still be necessary to make a of its own public policy. But the Directive introduces a new element, namely the fact that the plaintiff has to , reference on question (2). This position is inherent in personal conduct of the individual concerned. Counsel for the plaintiff and counsel- ' surmount two obstacles in order to succeed. for the Home Office advanced fundamentally opposing views as to the meaning of this:- plaintift, . It remains for me to frame the terms of reference. RSC Ord 114, after definitions of expression, that is to say, as to cover or not to cover the position of the the Court' and 'the European Court', provides in r 2: Counsel for the Home Office contended that his view was so clearly right as to pre- n order may be made by the Court of its own motion at any stage in a clude the necessity of a reference. I am wholly unable to accept this contention. It oAfi seems to me that at the very lowest counsel for the plaintiff's view is well arguable cause or matter, or on application by a party before or at the trial or hearing fill,' the:: indeed, I think it might be put a good deal higher than that. Turning then to art \Vhere an application is made before the trial or hearing, it shall be made of the Treaty, it seems to me that a decision on this question is necessary, in the sense of that word, to enable me to give judgment in the present case. Indeed, . by moon.'ti would be quite impossible to give judgment without such a decision. Thatrequesting being sQ, -And in. (2) it seems to me that I ought certainly to exercise my discretion by t'eAmt En3 ui' nrorowdpele ir atni shhh Ca:i set out in a schedule the request for the preliminary ruling of European Court to give a ruling on the question. Article 177 refers to rulings conc ourt, and the Court may give directions as to the manner and ing the interpretation of the treaty, but it has not been suggested that the article is u e schedule is to be prepared'. applicable to interpretation of the EEC Treaty in connection with secondary lei, d in r 4: tion under it. Indeed, an interpretation of art 48 in isolation from the 1964 Dir" - 'The proceedings. in which an order is made shall, unless the Court otherwise wouldCounsel be meaningless. for the Home Office contended that if a reference was to be made at, orders be has o'iven a. preliminary- ruling on the the action, or at anY , stayed until the European Court then the reference should be deferred until after the trial of question referred to it.' until after discovery. I do not doubt that in general issues of fact and issues of natiti-- e notice of motion now before me contains in a schedule the questions sought to law should be determined before a reference is made to the European Court erred to those issues in a particular sense may make the reference,-;.i the European Court. Questions (a) and (b) are concerned with direct Nay. Question (a) runs as follows: the expensedetermination and delay of involved, unnecessary; but here there is no substandal fact, and no issue at all of national law. That being the position, I seemaking no advan the r; 974) X CMLR 1 going through the form of bringing the action on for hearing and 43 I CMLR at 9 at the conclusion of the hearing of the action. Again, in the particular circurnstal this case there does not appear to be the slightest prospect of any docurnenv 188 All England Law Reports [1974] 3 All ER Van Duyn v The Home Office (Pennycuick V-C) 189 ch D

'Whether article 48 of the Treaty establishing the European Economic Corn. March. PENNYCUICK V-C approved the following amended version of munity is directly applicable so as to confer on individuals rights enforceable by ISE quesintioenins b(cer)a sntadte(d) them in the Courts of the United Kingdom.' a 'Whether upon the proper interpretation of article 48 of the Treaty establishing Question (b) is: the European Economic Community and Article 3 of EEC Directive _4,I 221 a 'Whether Directive 64/221 adopted on 25th February 1964 in accordance with in : the performance of its duty to base a measure taken on grounds the Treaty establishing the European Economic Community is directly appli. of public policy exclusively on the personal conduct of the individual concerned is entitled to take into account as matters of personal conduct (a) the fact that the cable so as to confer on individuals rights enforceable by them in the courts of the b United Kingdom.' individual is or has been associated with some body or organisation the activities of which the member State considers contrary to the public good but which are No difficulty appears to arise on the wording of those two questions. Questions (c) not unlawful in that State (b) the fact the individual intends to take employment and (d) are concerned with the other issue in the action, and question (c) has been in the member State with such a body or organisation it being the case that no amended at the hearing. Those questions as they now stand are worded as follows, restrictions are placed upon nationals of the member State who wish to take Question (c) is: similar employment with such a body or organisation.' 'Whether the Defendant's refusal, based on grounds of public policy, to allow Court. the Plaintiff leave to enter the United Kingdom in order to take employment with Order that questions, in their amended form, be referred to the European the Church of Scientology on the basis that it is "undesirable to give anyone leave Treasury Solicitor (for the to enter the United Kingdom on the business of or in the employment of that Solicitors: Stephen M Bird, East Grinstead (for the plaintiff); organisation" is contrary to :—(i) The provisions of Article 48(1) and 48(2) of the Home Office). Evelyn Budd Barrister. Treaty establishing the European Economic Community and/or Article a of Regulation 1612/68 and/or Artide 3(r) of the Directive 64/221 insofar as the effect of the said policy is to discriminate between nationals of other Member States of the European Economic Community and United Kingdom Citizens (upon whom no similar restrictions are placed) and (ii) The provisions of Article 3(I) of the Dalmia Cement Ltd v National Bank Directive 64/221 insofar as the said policy is of general application.' of Pakistan Question (d) is: QUEEN'S BENCH DIVISION 'Whether all or any of the following matters, namely:—(i) That the Plaintiff KERR J has worked in a Scientology establishment in Amsterdam for six months (ii) 23rd, 25th JULY, 2nd OCTOBER 1973 That the Plaintiff has taken a course in Scientology (iii) That the Plaintiff is a prac. ,

tising Scientologist in the sense that she subscribes to the doctrines and beliefs Arbitration - A wa rd - Enforcement - Leave - Enforcement in same manner as judgment of the Church of Scientology (iv) That the Plaintiff intends to work at a Scientology or order to same effect - Award made abroad - Arbitration procedure not governed by establishment in the United Kingdom is capable of amounting to personal English law - Award not foreign award within meaning of statutory definition - Award conduct within the meaning of Article 3 of the said Directive 64/221: directing defendants to pay certain sum to plaintiffs in India - Defendants failing to comply It seems to me that questions (c) and (d) are altogether too much tied to the particular with award - Whether procedure for summary enforcement only available in respect of in Engand - Arbitration facts of this case. It is well established that the function of the European Court is English awards - Whether award in favour of plaintiffs enforceable confined to the interpretation of the EEC Treaty and no doubt secondary legis. Act 1950, s 26. lation, and that once the relevant provisions have been interpreted it is for the national Arbitration court to apply that interpretation to the particular case in point. It is no doubt often - Award - Enforcement - Foreign award - Meaning - Parties subject to clic ferent - impossible to frame a question of interpretation without setting it in the framewor powers declared bv Order in Council to be parties to convention - Different powers Atha and Pakistan - Order declaring His Majesty to be party to convention in relation to of particular facts, but it is nevertheless important to formulate the question so that -*territory can be answered simply as a question of interpretation. of British India - Order continuing in force after independence of India and Pakis- - 7:40- Whethereffect of independence legislation to substitute heads of state of India and Pakis- I have provisionally drawn a question which I think would be appropriate al . .tan as question (c) to raise the necessary question of interpretation before the Europea, powers declared to be parties of convention - Indian Independence Act 1947, s 18(1) - ta( nCo(ncsoenqtsqeienuteian 36 - Court. I will hand the question as drawn down to counsel for their consideration ,- itialPr ovp riosvioisni)on.) AcA t ct19149596, , ss lg.- Arbitration Act 195o, ss 35(1), will not read it aloud because it is still purely provisional. The case can then be in tioned at some convenient early date when I can approve the question in its final fo as revised by counsel, and if necessary I can hear submissions on it. Having regard Cell 1962 and 1964 Dalmia, a company registered and carrying on business in a, agreed to sell certain property to a Pakistani company. As consideration for the terms of question (c) in the schedule to the notice of motion, I think it right to tale the that so far as I can see para 2 of art 48 of the EEC Treaty is of no relevance here, an Pakistani company undertook to deliver certain quantities of cement a over a period of three years. Performance of that obligation was guaran- that I would not myself make a reference based on para 2 of art 48. However, tiler by a bank, incorporated in Pakistan, which undertook to pay to Dalmia in India no objection to a question based on para 2 being included in the reference if co for the plaintiff wishes to include it. That concludes my judgment. fied sum for every ton by which the deliveries of cement fell short of the stipu- 1:.„1111 tnal quantity. The guarantee contained an arbitration clause which pro- Action stayed pending ruling. er alia, that any disputes arising under the guarantee should be settled 191 Van Duyn v Home Office Cl 975] 3 All ER CJ EC All England Law Reports 190 3(1)b of EEC Directive 64/221, she was entitled to stay in the United Kingdom for the purpose of taking up her employment with the Church of Scientology. The plaintiff a a Van Duyn v The Home Office (No 2) contended that under art 48(3) of the EEC Treaty and art 3(0 of the EEC Directive 64/221 the Home Office were not entitled to refuse her leave to enter on the grounds of public policy since the refusal was not based on her personal conduct. On the plain- COURT OF JUSTICE OP TI-IE EUROPEAN COMMUNITIES JUDGES LECOURT (PRESIDENT), DALAIGH, MACKENZIE STUART, DONNER, MONACO, MERTENS tiff's application, Pennycuick V-Cc stayed the proceedings and requested the European Court of Justice to give preliminary rulings, under art 177 of the EEC Treaty, on the DE WILMARS, PESCATORE, KUTSCHER AND SORENSEN question whether art 48 of the EEC Treaty and EEC Directive 64/221 were directly OCTOBER, I3th NOVEMBER, 4th DECEMBER 1974 b 23rd applicable so as to confer on individuals rights enforceable by them in the courts of of the European Economic Community, and whether art 48 of the Treaty provisions - Direct application in member states - member states . European Economic Community - provisions directly enforceable by indi- EEC Treaty and art 3(5) of EEC Directive 64/221 permitted a member state to refuse Circumstances in which rights conferred by treaty courts of member states - Provisions imposing precise obligations - Provisions not a person leave to enter its territory on the ground that he was associated with an viduals in measures for implementation - Provision establishing organisation whose activities that state deemed to be contrary to the public good. requiring the adoption of further nationality- reedom of movement for workers - Provision abolishing discrimination based on f conferred by provision directly enforceable by individuals in courts of member C (i) The obligations imposed on member states by art 48(0 and (2) of the EEC Whether rights Held - states - EEC Treaty, art 48(1)(2). Treaty to abolish discrimination based on nationality as regards employment were directly applicable so as to confer on individuals rights enforceable by them in the Directives - Direct application in member states - Circum- courts of member states since those provisions imposed on member states a precise European Economic Community - courts of member which rights conferred by directives enforceable by individuals in obligation which did not require the adoption of any further measures by the stances in re- f, p 204 e and p 205 b to d, post). states - Directive imposing unconditional obligation on member states - Directive not d Community or member states (see p 200 b to Provision of directive imposing limitation Although art 189a of the EEC Treaty provided that regulations were to be measure for its implementation - (ii) quiringon power further of states to derogate from fundamental principle of EEC Treaty - Freedom of 'directly applicable' in member states, it did not follow that directives could not be to be based ex- directly applicable it restricting right to freedom of movement so applicable also. In order to determine whether a directive was movement for workers - Measures 189 - EEC Directive clusively on personal conduct of individuals concerned - EEC Treaty, art was necessary to examine whether the nature, general scheme and wording of the provision were capable of having a direct effect on the relations between member 641221, art 3(1). xci ciepretcitolny states and individuals. On that basis art 3(0 of EEC Directive4 I Immigration - Workers - Freedom of movement - Nationals of member states of European e -ct 2512toany w aes applicable since (a) it laid down an obligation which was not subje Economic Community - Restrictions imposed by member states on freedom of movement - or condition and which did not require any further act or measure for its implementa- Public policy - Measures imposing restrictions to be based exclusively on personal conduct of socially harmful tion, and (b) its function was to impose a limitation on the power of member states to Meaning - Membership implement a provision which derogated from one of the fundamental principles of the of individual concerned - Personal conduct - oganisation - Organisation act of individual in associating with EEC Treaty in favour of individuals, i e the freedom of movement for workers organisation - Voluntary to enter United Kingdom Church of Scientology - Dutch Scientologist wishing and j and p 2o6 a to d, post). not unlawful - governntent as f (see p 210 C, p 202. b to d, p 204 e, p 205 g United Kingdom act of an individual in associating with a particular organisation, up employment with Church - Church regarded by (iii) The voluntary to take with Church 'personal conduce - Whether harmful - Whether act of associating which involved participation in its activities and identification with its aims, could socially permitted to refuse Scientologist leave to enter United Kingdom - EEC Directive government properly be regarded as a matter of 'personal conduct' within art 3(0 of EEC Direc- 64/221, art 3(1). tive 64/221. A member state was therefore permitted under art 48 of the EEC 1968 the Minister of Health stated in the House of Commons that the government g Inconsidered that the practice of Scientology was socially harmful, and that work (Continued from p 190) permits and employment vouchers would not be issued to foreign nationals for on nationality between workers of the Member States as regards employment, remun- work at Scientology establishments. No legal restrictions were, however, placed on eration and other conditions of work and employment. the practice of Scientology in the United Kingdom nor on British nationals who '3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) wished to become members of the Church of Scientology or to take employment , (c) to stay in a the plaintiff, who was a Dutch national and a practising Sdentologist to move freely within the territory of Member States for this purpose; with it. In 1973 h Member State for the purpose of employment in accordance with the provisions governing was offered employment as a secretary with the Church of Scientology at its college ttAi rei:l e: ml e3 p l o y m e n t of nationals of that State laid down by law, regulation or administrative at East Grinstead. The plaintiff decided to take up the post but on arrival at Gat- of a Member State after having been employed at oc t, ib oe n d; r a(w d )n uto p br ey mt hae i nc oinmtm h ei s ts ieorn r i. t o r y wick airport she was refused leave to enter the United Kingdom on the ground in that State, subject to conditions which shall be embodied in implementing regulations that the Home Office 'considered it undesirable to give anyone leave to enter the United Kingdom on the business of or in the employment of' the Church of Scien- 4.. The provisions of this Article shall not apply to employment in the public service.' orfnepdub lic s ecuri t y tology. The plaintiff brought an action against the Home Office seeking a dec- lai l)s eEpdRr elxo‘7- ic8d1 eu s i:v e'lMy eoansuthreesptearksoenaol ncognrdouucntdosf or hf epiunbdliivcidpuoalilcycoonrce of the EEC Treaty, EEC Regulation 1612168 and arc shall be3Ab( laration that, under art 48a Article 189, so far as material, provides: ' . .. A regulation shall have general application. a Article 48 provides: It shall be binding in its entirety and directly applicable in all Member States. A directive 'r. Freedom of movement for workers shall be secured within the Community by the is shall be binding, as to the result to be achieved' upon each Member State to which it end of the transitional period at the latest. ' freedom of movement shall entail the abolition of any discrimination based 'ddressed, but shall leave to thenational authorities the choice of form and methods ... '2. Such (Continued on p 191) Van Duyn v Home Office [1975] 3 All ER CJEC 192 All England Law Reports It alienates members of families from each other and attributes squalid and dis- Treaty and art 3(0 of the directive to prohibit, on the grounds of public policy, graceful motives to all who oppose it; its authoritarian principles and practice an individual from entering its territory where the individu2.l was associated with a a are a potential menace to the personality and well-being of those so deluded as an organisation which the member state considered to be socially harmful and the to become its followers; above all its methods can be a serious danger to the individual was proposing to enter the territory of the member state in order to take health of those who submit to them. There is evidence that children are now up employment with the organisation. It was immaterial that the organisation was being indoctrinated. There is no power under existing law to prohibit the practice not subject to any restrictions under the law of the member state and that nationals of Scientology; but the Government have concluded that it is so objectionable f, of that state were permitted to take up employment with the organisation (see p 203 that it would be right to take all steps within their power to curb its growth .. . p 204 a to d and p 206 g and j to p 207 a and d to f, post). Foreign nationals come here to study Scientology and to work at the so-called "college" in East Grinstead. The Government can prevent this under existing Notes For the freedom of movement for workers who are nationals of EEC countries, see law . . . and have decided to do so. The following steps are being taken with immediate effect . . (e) Work permits and employment vouchers will not be 39A Halsbury's Laws (3rd Edn) paras 108-113. For controls on the immigration of EEC nationals, see 4 Halsbury's Laws (4th Edn) issued to foreign nationals ... for work at a Scientology establishment.' cp arT a r etaotoy,t No legal restrictions were placed on the practice of Scientology in the United Kindom 49F3 Or49E4E , 'arts 48, 177, 189, see 42A Halsbury's Statutes (3rd Edn) 751, 436, 316. nor on British nationals (with certain immaterial exceptions) wishing to become 1 'I For EEC Directive 64/221, art 3, see ibid 131. members of or take employment with the Church of Scientology. 1 For EEC Regulation 1612/68, see ibid 755. 2. Miss Van Duyn was a Dutch national. By a letter dated 4th May 2973 she was offered employment as a secretary with the Church of Scientology at its college at Cases cited Commission of the European Communities v French Republic (Case 167173) [1974] ECR 359. East Grinstead. With the intention of taking up that offer she arrived at Gatwick where she was interviewed by an immigration officer and (7th October 1968) Bull Arr 710, Conseil d'Etat. Airport on 9th May 1973 Corveleyn v Belgian State refused leave to enter the United Kingdom. It emerged in the course of the interview Traunstein (Case 9170) (1970) 16 Recueil 825, [1971] CMLR 1. Grad v Finanzamt that she had worked in a Scientology establishment in Amsterdam for six months, Haselhorst v Finanzamt Dusseldorf-Altstadt (Case 23I70) (1970) 16 Recueil 881, [1971] that she had taken a course in the subject of Scientology, that she was a practising CMLR i. Recueil 1107. Scientologist, and that she was intending to work at a Scientology establishment in the International Fruit Co v Produktschap voor Groenten (Cases 21, 24/70) (1971)17 Liitticke (Firma Alfons) GmbH v Hauptzollamt Sarrelouis (Case 57165) (1966) 12 Recueil e United Kingdom. The ground of refusal of leave to enter, which was stated in the document entitled 'Refusal of Leave to Enter' handed by the immigration officer to 293, [1971] CMLR 674. Reyners v Belgian State (Case 2174) [1974] 2 CMLR 305. Miss Van Duyn, read: SACE v Italian Ministry of Finance (Case 33I70) (1970) 16 Recueil 1213, [1971] CMLR 123. 'You have asked for leave to enter the United Kingdom in order to take em- Recueil 661, [1969] Salgoil SpA v Italian Ministry of Foreign Trade (Case 13168) (1968) 14 ployment with The Church of Scientology but the Secretary of State considers it CMLR 181. undesirable to give anyone leave to enter the United Kingdom on the business of Schluter v Hauptzollampt Lorrach (Case 9173) [1973] ECR 1135. or in the employment of that organisation.' Transports Lesage et Cie v Hauptzollamt Freiburg (Case 20170) (1970) 16 Recueil 861, The power to refuse entry into the United Kingdom was vested in immigration [1971] CMLR i. WUrttembergische Milchverwertung-Suclmilch AG v Ugliola (Case 15169) (1969) 15 Recueil officers by virtue of s 4(1) of the Immigration Act 1971. Leave to enter was refused l6e5ce aprnrraoctin g in accordance with the policy of the Government 363, [1970] CMLR 194. baenl ygidt sbhweittiihvme rm f 06i5rg cr oeaf.tti hORe nurloeeffi v ivm!dmedig: ration rules for control of entry' which rules had Reference On r4th February 2974 Pennycuick V-C', on a motion by Yvonne Van Duyn, the plain- tiff in an action begun by writ issued on 12th June 1973 against the Home Office, 'Any passenger except the wife or child under 18 of a person settled in the United ordered that, pursuant to RSC Ord 114, r 2, certain questions be referred to the Court Kingdom may be refused leave to enter on the ground that his exclusion is of Justice of the European Communities for a preliminary hearing under art 177 of conducive to the public good, where—(a) the Secretary of State has personally the EEC Treaty. The following summary of the order for reference and the written sto deoirteectte d, or (b) from information available to the Immigration Officer it seems observations submitted pursuant to art zo of the Protocol on the Statute of the Court right to refuse leave to enter on that ground—if, for example, in the light of the of Justice is taken from the judgment of the court. ir epctiasvseengeir's character, conduct or associations it is undesirable to give him leave I—Facts and procedure 1. The Church of Scientology was a body established in the United States of America, act!n1 e yd Kin 1heC8 of thom e E rules on freedom of movement of workers and ydion n g ao grI,ntd 4 mEuc nity T which functioned in the United Kingdom through a college at East Grinstead, Sussex. Miss Van Duyn reaty,, EEC Regulation 1612/68 and art 30) of EEC The British government regarded the activities of the Church of Scientology as con- -4, 22 claimed that the refusal of leave to enter was un- trary to public policy. On 25th July 1968 the Minister of Health stated in the Housc astiefe,.:ula jnR sought a declaration from the High Court that she was entitled to stay in of Commons that the government was satisfied that Scientology was socially harmful. e United Kingd om f or the purpose of employment and to be given leave to enter The statement included the following remarks: om. Before deciding further, the High Court stayed the proceedings ! 'Scientology is a pseudo-philosophical cult . . . The Government are satisfied having reviewed all the available evidence that Scientology is socially harmfu Staternent of IrrinHaoigursaetioofncRounlierns foonrsCpoapnterro8l Ion Entry, EEC and other Non-Commonwealth alionals (1973) [197] 3 All ER 178, [1974] WLR 1107

• • • - [1975] 3 All ER UJ tt, All England Law Reports 194 substantial measure of discretion to the member state. Provided that those criteria were fulfilled it did not matter (a) whether the provision in the directive consisted and requested the Court of Justice, pursuant to art 177 of the EEC Treaty, to give a 48 of the Treaty a a of a positive obligation to act or of a negative prohibition, or (b) that the member state preliminary ruling on the following questions: (i) Whether art had a choice of form and methods to be adopted in order to achieve the stated result. establishing the European Ecornonic Community was directly applicable so as to 1 and Salgoil2 cases confer on individuals rights enforceable by them in the courts of a member state. As to (a), it was implicit in the court's judgments in the Liittick that an article of the EEC Treaty which imposed a positive obligation on a member (2) Whether EEC Directive 64/221 adopted on 25th February 1964 in accordance with state to act was capable of direct application and the same reasoning was valid in the Treaty establishing the European Economic Community was directly applicable relation to directives. As to (b), she noted that art 189 of the EEC Treaty expressly so as to confer on individuals rights enforceable by them in the courts of a member b b 48 of the Treaty establishing drew a distinction in relation to directives between the binding effect of the result to state. (3) Whether on the proper interpretation ofof artEEC Directive 641221 a member be achieved and the discretionary nature of the methods to be adopted. 3 fulfilled the criteria for direct applica- the European Economic Community and art She contended that the provisions of art 3 state in the performance of its duty to base a measure taken on grounds of public bility. She referred to the preamble to the directive which envisaged direct policy exclusively on the personal conduct of the individual concerned was entitled to take into account as matters of personal conduct (a) the fact that the individual applicability when it stated: was or had been associated with some body or organisation the activities of which the C 'Whereas, in each Member State, nationals of other Member States should have member state considered contrary to the public good butwhich were not unlawful in adequate legal remedies available to them in respect of the decisions of the that state (b) the fact that the individual intended to take employment in the mem- administration in such matters ...' ber state with such a body or organisation it being the case that no restrictions (i e when a member state invoked grounds of public policy, public security or public were placed on nationals of the member state who wished to take similar employment health in matters connected with the movement or residence of foreign nationals). with such a body or organisation. was registered at the court on The only 'adequate legal remedy' available to an individual was the right to invoke The order of the High Court of 1st March 1974 d the provisions of the directive before the national courts. A decision to that effect 4. Written observations were submitted on behalf of Miss Van Duyn would undoubtedly strengthen the legal protection of individual citizens in the byt3th Alan June Newman, 1974. on behalf of the United Kingdom by W H Godwin and on behalf ocommisurts. of the Commission by its legal adviser, A McClellan. Having heard the report of the naTtihoneacl sion submitted that a provision in a directive was directly applicable 3 and Judge Rapporteur and the opinion of the Advocate-General, the court decided to when it was clear and unambiguous. It referred to the judgments in the Grad open the oral procedure without any preparatory enquiry. SACO' cases. The Commission observed that a Community regulation had the same e weight with immediate effect as national legislation whereas the effect of a direc- court ll--Written observations submitted to the tive was similar to that of those provisions of the EEC Treaty which created obli- gations for the member states. If provisions of a directive were legally clear and the first question 48 of the EEC Treaty was OnMiss Van Duyn and the Commission submitted that art unambiguous, leaving only a discretion to the national authorities for their irnpli- directly applicable. They relied in particular on the judgments of theReyners court v ofBelgian _ith mentation, they must have an effect similar to those treaty provisions which the and of 2Ist June 1974 in Commission v French Republic' the United court had recognised as directly applicable. It therefore submitted that (a) the execu- April 1974 in Commission v French Republic' tive of a member state was bound to respect Community law (b) if a provision in a State5. In the light of the judgment in Kingdom made no submission on this question. directive was not covered by an identical provision in national law, but left, as to the result to be achieved, to the discretion of the national authority, the discretionary power of that authority was reduced by the Community provision (c) in those circum- On the second question of EEC Directive 64/221 was directly applicable. Miss Van Duyn submitted that art 3 stances and given that to comply with a directive it was not always indispensable to She observed that the court had already held that, in principle, directives were amend national legislation it was clear that the private individual must have the right susceptible of direct application. She referred to the judgments of the court of and of r7th December 1970 in to prevent the national authority concerned from exceeding its powers under 6th October 1970 in Grad v Finanzamt Traunstein 3 'Community law to the detriment of that individual. According to the Commission, . She submitted that the criterion as to whether provisions of EEC Directive 64/221 having all the characteristics Ministry of Finance4 adretr 30g w a ates fornoemofthe th SACEa directive v Italian was directly applicable was identical with the criterion adopted in the rect effect in the member state to which it was addressed. And nli:eisusdargymteonht aN,f- e di case of articles in the EEC Treaty itself, and she observed that the court had not felt tat cf:retvhee t rrecalledh that the difficulty of applying the rules in a particular case did not itself constrained to hold that a given article in the treaty was not directly applicable eir general application. In [hat context the Commission examined Corveleyn case5. merely because in its formal wording it imposed an obligation on a member state.Italian 7th October 1968 of the Belgian Conseil d'E tat in the Salgoil v o of the directive to She referred to the judgments of the court of t9th December 1968 in p4thiei ecra r Bb6i teitoisbhligaauttihoonrw itiheishadch l . not adopted the wording of art 3 GmbH v Hauptzollamt Sarreloui56. Comssion submitted that, by virtue of art 189 of e required result, the mi Ministry5 and of t6th June 1966 in Lutticke 3 was a directly Van Duyn further submitted that a directive which directly affected an in- d EEC Treaty and in the ligth of the case law of the court, art dividualMiss was capable of creating direct rights for that individual where its provisionS united the wide discretion given to immigration officers were clear and unconditional and where, as to the result to be achieved, it left 11 9(6.6 9i8.00)0))) 15::466to RRufRb eeeee tchccrcuuue:e:ll 96iiiimli:281\622 9m R35: ig3 ri a t i o n rules. The Commission proposed the following answer

11974] ECR 359 2 [1974] 2 CMLR 305 3 (1970) 16 Recueil 825 4 (1970 16 Recueil 1213 "0. , A"rr 710 5 (1968) 14 Recueil 661 6 (1966) 12 Recueil 293 196 All England Law Reports [1975] 3 All ER CJEC Van Duyn v Home Office 197 to the question: where a provision was legally clear and unambiguous as was art 3 and that it assumed a situation where an individual whose past activity had been of EEC Directive 64/221, such a provision was directly applicable so as to confer on a a blameless sought entry into a member state in order to work for an organisation in individuals rights enforceable by them in the courts of a member state. whose employment the nationals of the member state were perfectly free to engage. The United Kingdom recalled that art 189 of the EEC Treaty drew a dear distinction She submitted that if an organisation was deemed contrary to the public good the between regulations and directives, and that different effects were ascribed to each member state was faced with a simple choice: either to ban everyone, including its type of provision. It therefore submitted that prima facie the Council in not issuing own nationals, from engaging in employment with that organisation, or to tolerate a regulation must have intended that the directive should have an effect other than nationals of other member states as it tolerated its own nationals engaging in such that of a regulation and accordingly should not be binding in its entirety and not b employment. be directly applicable in all member states. The United Kingdom submitted that The Commission asserted that the concepts 'public policy' and 'personal conduct' neither the Grad' nor the SACE 2 decision was authority for the proposition that it was contained in art 48(3) of the EEC Treaty and art 3 of EEC Directive 64/221 were con- immaterial whether or not a provision was contained in a regulation, directive or cepts of Community law. They had first to be interpreted in the context of Com- decision. In both cases the purpose of the directive in question was merely to fix munity law and national criteria were only relevant to its application. In practice, if a date for the implementation of clear and binding obligations contained in the EEC each member state could set limits to the interpretation of public policy the obliga- Treaty and instruments made under it. Those cases showed that in special circum- C tions deriving from the principle of freedom of movement of workers would take a stances a limited provision in a directive could be directly applicable. The provisions variety of forms in different member states. It was only possible for that freedom to be of the directive in the instant case were wholly different. EEC Directive 64/221 was maintained throughout the Community on the basis of uniform application in all far broader in scope. It gave comprehensive guidance to member states as to all the member states. It would be inconsistent with the Treaty if one member state measures taken by them affecting freedom of movement for workers and it was accepted workers from another member state while its own workers did not expressly contemplated in art to that member states would put into force the measures receive uniform treatment as regards the application of the rules in respect of public necessary to comply with the provisions of the directive. Indeed the very terms of d order in the other state. The Commission submitted that the discrimination by a art 3(I) itself contemplated the taking of measures. The United Kingdom examined member state on grounds of public policy against nationals of another member state the only four cases in which national courts to its knowledge had considered the for being employed by an organisation the activities of which it considered contrary question of the direct applicability of the directive. It submitted that little assistance to the public good when it did not make it unlawful for its own nationals to be em- could be obtained from those cases. Inter alia it pointed out that the true effect of ployed by such organisation was contrary to art 48(2) of the EEC Treaty. Article 3(0 the Corveleyn case3 had been the subject of considerable debate among Belgian of the directive was precise in stating that measures taken on the grounds of public jurists and the better view appeared to be that the Conseil d'Etat did not decide e policy should be based exclusively on the personal conduct of the individual concerned. that the directive was directly applicable but applied the Belgian concept of public Personal conduct which was acceptable when exercised by a national of one member order which itself required international obligations of Belgium to be taken into state could not be unacceptable, under Community law, when exercised by a national account. of another member state. It was for consideration that art 3 precluded a member state, as a general contingency against some potential harm to society, from invoking On the third question public policy as a ground for refusing entry when the personal conduct of the individual Miss Van Duyn pointed out that the first part of the question assumed a situation where was or was not contrary to public policy in the member states concerned. It was not an organisation engaged in activities which were lawful in the state. The question denied that membership of a militant organisation proscribed in the host member did not necessarily assume that the individual concerned intended to continue that state would be an element to be taken into account in assessing personal conduct association. It was sufficient that he had in the past been associated. In this respect for the purpose of justifying a refusal of entry on grounds of public policy or public Miss Van Duyn recalled that even if the individual had been associated with an illegal security. organisation and, by virtue of his activities therein, had been convicted of a crime, As to the first part of the question the United Kingdom dealt with three problems. that circumstance would not, by virtue of the provisions of art 3(2) of EEC Direct The first problem was whether an individual's past or present association with an tive 64/221, in itself be sufficient grounds for the member state to take measures organisation could be regarded as an aspect of his personal conduct. The United based on public policy to exclude the individual. Merely belonging to a lawful Kingdom asserted that it was of importance that a member state in relation to public organisation, without necessarily taking part in its activities, could not, in her subt policy should be entitled to consider a person's associations with a body or organisation. mission, amount to 'conduct'. Conduct implied 'activity'. Moreover, the activities The member state should be entitled to exclude that person in appropriate cases, of the organisation in question were not, merely because the individual was or hacl i e if the organisation was considered sufficiently undesirable from the viewpoint been a passive member, 'personal' to the individual concerned. To hold otherwas, .Of public policy and the association by that pers'on with that organisation was would mean that a member state could exclude an individual merely because, n. 'sufficiently close. the distant past, he had for a brief period perfectly lawfully belonged to a somewhat, ' Secondly the United Kingdom submitted that a measure which was taken on extreme political or religious organisation in his own member state. ounds of public policy and which provided for the exclusion from a member state In regard to the second part of the question, Miss Van Duyn recalled that free& =an by th individual on the grounds of that individual's association with an organisation of movement of persons was one of the fundamental principles established as compatible with the requirement of art 3(I). It accepted that the intention EEC Treaty and that discrimination on grounds of nationality was prohibited , &Hying that article must have been to exclude collective expulsions and to art 7. Exemptions to those fundamental principles had to be interpreted restrictively ulte the consideration by the national authorities of the personal circumstances She pointed out that the question assumed discrimination on grounds of nationali -C.h individual in each case. Nevertheless it was not inconsistent with that intention 't-member state to take into account an individual's associationwith an organisation (1970) 16 Recueil 825 f.:!.leappropriate 2 (1970) 16 Recueil 1213 cases, to exclude the individual by reason of that association. 3 (7th October 1968) Bull Arr 710 in any given case, such an exclusion was justified would depend on the view [1975] 3 All ER CJEC Van Duyn v Home Office (Advocate-General) 199 198 All England Law Reports Consequently, you will have to examine, in this connection, the extent to which the member state took of the organisation. As a practical matter the process of permitting persons to enter a member state had to be administered by a large number a a the power of the member states to assess the essential requirements of national of officials. Such officials could not be expected to know all that the government public policy can be reconciled with a uniform application of Community law and might know about a particular organisation and it was inevitable that such officials in particular with the application of the principle of non-discrimination between had to act in accordance with directions given by the government which laid down migrant and national workers. You will also have to make a ruling as to the direct broad principles on which the officials were to act. It was inevitable also that such effect of a directive of the Council, or at least of a particular provision of a directive. directions might relate to particular organisations which the government might The case law of this court does however already indicate the reply to be given to consider contrary to the public good. that question. Thirdly the United Kingdom submitted that the fact that the activities of the organisation were not unlawful in the member state though considered by the I —TThhe e ff a c t s member state to be contrary to the public good did not disentitle the member state giving rise to the main action are straightforward. Miss YvonneVan Duyn. from taking into account the individual's associationwith the organisation. It had to be a Dutch national, arrived at Gatwick Airport in England on 9th May 5973. She a matter for each state to decide whether it should make activities of an organisation declared that her purpose in coming to the United Kingdom was to take up an offer itself illegal. Only the state was competent to make such an evaluation and it would c of employment as a secretary, made to her a few days earlier by the Church of do so in the light of the particular circumstances of that state. Thus, as was common Scientology of California, the headquarters of which are at Saint Hill Manor, East knowledge, the United Kingdom practised a considerable degree of tolerance in Grinstead, in the county of Sussex. After an interview with the immigration author- relation to organisations within the United Kingdom. In the case of Scientology the ities, she was sent back to the Netherlands that same day. reasons why the United Kingdom regarded the activities of the Scientologists as The ground of refusal of leave to enter the United Kingdom is stated in the docu- contrary to public policy had been explained in the statement made in Parliament ment handed to her by the immigration officer. It reads: d 011 25th July 1968. The Scientologists still had their world headquarters in the United Kingdom so that Scientology was a particular concern to the United Kingdom. 'You have asked for leave to enter the United Kingdom in order to take em- The United Kingdom noted that two problems arose in connection with the matter ployment with the Church of Scientology but the Secretary of State considers referred to in sub-para (b) of the question. The first problem was whether the fact it undesirable to give anyone leave to enter the United Kingdom on the business that an individual intended to take employment with such an organisation was an of or in the employment of that organisation.' aspect of that individual's personal conduct. It was submitted that such an intention This decision was taken in accordance with the policy adopted, in 1968, by the govern- was a very material aspect of the individual's personal conduct. The second problem e ment of the United Kingdom which considered—and still considers—the activities was whether the fact that no restrictions were placed on nationals of the member state who wished to take similar employment with such an organisation disentitled of the Church of Scientology to be socially harmful. I must however re-examine the grounds of the decision to exclude Miss Van Duyn the member state from taking that intention into account. when I come to consider the question whether the decision taken by the immi- The United Kingdom pointed out that it was inevitable that, in respect of the entry gration authorities was based on the 'personal conduct' of Miss Van Duyn, within the of persons into a state, there had to be some discrimination in favour of the nationals gof art 3(1) of EEC Directive 64/221, a provision which the court is asked to of that state. For a national, however undesirable and potentially harmful his entry rpt.rne might be, could not be refused admission into his own state A state had a duty under f imn teeani In her action in the Chancery Division against the Home Office, Miss Van Duyn international law to receive back its own nationals. The United Kingdom referred of the EEC Treaty and on art 3 of EEC Directive inter alia to art 5(b)(ii) of the Universal Declaration of Human Rights which stated: sought, in fact, to rely on art 48 64/221, adopted for the purpose of coordinating special measures concerning the 'Everyone has the right to leave any country, including his own, and return to his movement and residence of foreign nationals which are justified on grounds of country.' It observed that, for example, a member state would be justified in refusing to admit a drug addict who was a national of another state even though it would be 9 public policy, public security or public health. After examining the motion made by Miss Van Duyn in the main action and on obliged to admit a drug addict who was one of its own nationals. hearing counsel for the Home Office Pennycuick V-C 1 decided to stay the proceedings Alan Newman for Miss Van Duyn. and to refer three preliminary questions to the court. Peter Gibson for the United Kingdom. The first question concerns the direct effect of art 48 of the EEC Treaty. Under the Anthony McClellan for the Commission. second, the court is asked whether EEC Directive 64/221 is also directly applicable so as to confer on individuals rights enforceable by them in the courts of the member delivered the 48 of the EEC Treaty 13th November 1974- The Advocate-General (M Henri Mayras) states. The third question concerns the interpretation of art following opinion: and of art 3 of the directive. The High Court asks you whether, when the competent authorities of a member state decide, on grounds of public policy, to refuse a Com- Introduction onnsiidtyerns ationalto b leave to enter the state on the basis of the personal conduct of the Mr President, members of the court, this preliminary reference is of special interest :::11::,edufa ale t concerned, those authorities are entitled to take into account, as being for two reasons. It is the first time that a court of the United Kingdom, theHighCourt ?natters of personal conduct: (a) the fact that the individual is or has been associated of Justice in London, has made a reference to the Court of Justice for interpretation / m:with an organisation the activities of which the government of the member state of Community rules under art 177 of the EEC Treaty. This is also the first time that e contrary to the public good but which are not unlawful in that state; the court has been called on to decide the important problem raised by the limi- that the individual intends to take up employment in the member state tations, expressed in art 48 of the EEC Treaty, to the principle of freedom of movement for workers within the Community imposed by considerations of public policy (19741 3 All ER 178, [1974] i WLR 1107 and public security. 201 Van Duyn v Home Office (Advocate-General) CJEC All England Law Reports 975] 3 All ER 200 that, apart from regulations, other Com- judgments of 6th and 2ISC October 5970 1 with such an organisation, it being the case however that no restrictions are placed a triunity acts mentioned in art 189 may have direct effect, particularly in cases where a on nationals of the member state who take up similar employment. These three the Community authorities have imposed on member states the obligation to adopt questions are clearly framed and follow a logical order. a particular course of conduct. The court stated that the positive effect of these acts would be lessened if individuals were unable, in such a case, to enforce through the courts rights conferred on them by decisions of this nature, even though such decisions II—Discussion of the EEC Treaty were not taken in the form of regulations. is even clearer : 1. Direct effect of art 48 The statement contained in the judgment of t7th December 5970 2 My Lords, the first question need not long detain us. The criteria which the court has evolved over the past years for the purpose of the purpose of which is to set a final date for the implementation 'A directive determining whether a provision of Community law and, in particular, a rule set by a Member State of a Community obligation, concerns not only the relations out in the EEC Treaty, is directly applicable so as to confer on individuals rights between the Commission and that State, but also entails legal consequences the enforceable by them in the national courts, are clearly laid down: the provision must on which individuals may in particular rely whenever, by its very nature, impose a clear and precise obligation on member states; it must be unconditional, provision enacting that obligation is directly applicable.' in other words subject to no limitation; if, however, a provision is subject to certain extent must be exactly defined; finally, the imple- When faced with a directive, it is therefore necessary to examine, in each case, whether limitations, their nature ancl. mentation of a Community rule must not be subject to the adoption of any sub- the wording, nature and general scheme of the provisions in question are capable sequent rules or regulations on the part either of the Community institutions or of producing direct effects between the member states to which the directive is of the member states, so that, in particular, member states must not be left any real addressed and their subjects. discretion with regard to the application of the rule in question. What is the position as regards EEC Directive 64/221? The purpose of this act is to These criteria, which Mr Advocate-General Gand proposed in 1966 in his opinion coordinate, in the member states, measures concerning the movement and residence and which the court has adopted in several judgments, have been con- of foreign nationals which are justified on the grounds of public policy, public security in Liitticke 1 2 and 24th firmed and refined in particular by the judgments of I2th September 1972 or public health. It was adopted on the basis of art 48—and in fact it refers expressly 2ISC June 19744 in to the rules applicable at that time to freedom of movement for workers—and of October 19733 and, more recently still, by the judgment of connection with art 52, on the right of establishment. art 56, on the right of establishment. The directive is intended to limit the powers The fact that the provisions of art 48, which are among the most important in the which the states have undeniably retained to ensure, within the area of their compe- Treaty in that their purpose is to establish freedom of movement within the Com- tence, the safeguarding of their public policy and, in particular, of public security munity for employed persons, satisfy these criteria can no longer be open to doubt within their territory. . By this decision, the following the judgment, also very recent, of 4th April 1974 5 As the court knows, art 3(0 of the directive provides: court stated that the provisions of art 48 and of EEC Regulation 1612168 of the Council 'Measures taken on grounds of public policy or of public security shall be based on employment of migrant workers were directly applicable in the legal system of exclusively on the personal conduct of the individual concerned.' every member state and gave rise, on the part of those concerned, to rights which the national authorities must respect and safeguard. For the purpose of giving a practical answer to the question put by the High Court If the High Court had had knowledge of this judgment when it decided to make there is in fact no need to examine whether all the rules fixed by the directive have this reference for a preliminary ruling, it is probable that it would not have put its direct effect or not. Only art 3(5) is relevant in this case. However, in order to judge first question to the court. It is understandable that it considered it necessary to whether art 3(I) is directly applicable, it is necessary to approach the matter of its in other words before do so because it made its order for reference on 1st March 1974, inteA srptroe ttatheiosneeapn edtherefore of to encroach a little on the third preliminary question. the court delivered its decision ori the direct effect of art 48. However that may be, 5r2te3t(s5e),qt.here is no doubt that it covers both employed persons, the problem is resolved for the future and it suffices for the court to confirm, with dealt with under art 48, and those pursuing activities as self-employed persons, 5 regard to this matter, its judgment of 4th April 5974 - dealt with under art a With regard to employed migrants, the Council had the power under art 48 to idothe iprtema preloymngulate io tnni anda methmisisbe r, s mtateoreo ver, what it did as regards the conditions of 2. Direct effect of EEC Directive 64/221 There is less certainty regarding the solution of the second question which, as has been seen, is concerned with the direct applicability of the Council directive of 'For persons who are self-employed, art 56(2) limits the possibility to the use of ,yectives. Without doubt the Commission considered it desirable to unify, by means 25th February 1964. Article 189 of the EEC Treaty distinguishes in fact between regulations, which are f the same legal instrument, the rules concerning freedom of movement for the not only binding but also directly applicable in the member states, and directives, ployed and those concerning the right of establishment of the self-employed, which are also binding on the states but which have, in principle, no direct effect least as regards measures relating to public policy in the member states. But n; of the directive from having inasmuch as they leave to the states the choice of methods for their implementatio ecOurse to that procedure does not preclude art 3 Nevertheless, looking beyond formal legal categories, the court declared in Its - rpct effect. What other aim could the Council have had in enacting this provision 11; e cluiemili8t8Idiastc8r9e3tionary power of member states and subject restrictions on Transports Lesage et Cie v Haupt- rad v Finanzamt Traunstein (1970) 16 Recueil 825 at 838, I (1966) 12 Recueil 293 at 311 12.2.7 (1970) (1971) 17 Recueil 1107, YfInit Frieburg (1970) 16 Recueil 861 at 874, Haselhorst v Finanzamt Dusseldorf-Altstadt, 2 International Fruit Co v Produktschap voor Groenten tg [1973] ECR 1135 3 Schliiter v Haupttollampt Lorrach 44CE v Italian ministry (1970) T6 Recueil 1213 at 1224 Reyners v Belgian State [1974] 2 CMLR 305 of Finance 4 [1974] ECR 359 5 Commission of European Communities r French Republic 202 All England Law Reports [1975] 3 All ER Van Duyn v Home Office (Advocate-General) 203 freedom of movement, such as refusal of leave to enter, exclusion or expulsion, to to the facts provided by the national court, namely that a Community national is the condition that these measures should be based exclusively on the personal conduct a associated with an organisation, the activities of which are considered to be contrary of the persons concerned? It seems that the Council thereby wished to prevent to public policy, without however being illegal, and that she intends to take up em- member states from taking general measures relating to whole categories of persons ployment with that organisation, if being the case that nationals are not subject, and, were seeking, in particular, to prohibit collective exclusions and expulsions. in similar circumstances, to any restriction? In truth, the question, expressed in those The Council has, in any case, imposed on member states a clear and precise obli- terms led me to examine the file received from the High Court for evidence permitting gation. The first condition for direct effect is satisfied. The second is also. The rule is a clearer understanding of the facts which warranted the exclusion of Miss Van Duyn sufficient in itself. It is not subject either to the adoption of subsequent acts on the b in the main action. It is clear from the file that not only did the Miss Van Duyn go to part either of the Community authority or of member states. The fact that the latter England with the avowed intention of taking up employment as a secretary with the have, in accordance with the principle relating to directives, the choice of form and Church of Scientology, but that she had already worked in a Scientology establish- methods which accord with their national law does not imply that the Community ment in the Netherlands for six months prior to her arrival in England and that she rule is not directly applicable. On the contrary, it is so closely linked to the imple- had taken a course in Scientology and was a practising Scientologist. mentation of art 48, as regards employed persons, that it seems to me to be inseparable It is clearly on the basis of these facts as a whole, the accuracy of which it is obviously from and of the same nature as the provision of the EEC Treaty. c not for the court to judge, that the British immigration authorities decided to refuse Finally, it is clear that even though the states have retained their competence in her leave to enter. the field of public security, art 3(0 of the directive imposes a specific limitation It also emerges from the file that in 1968 the United Kingdom Minister of Health on that competence, in the exercise of which they cannot act in a discretionary manner niade a statement in Parliament in which he expressed the opinion that: 'Scientology is a pseudo-philosophical cult' of which the principles and practice were, in the opinion towards community nationals. These considerations lead me to conclude that the provision in question confers on of the British government, a danger both to public security and to the health of those Community nationals rights which are enforceable by them in the national courts d who submitted to it. The Minister announced, on that occasion, the decision of the government to take all steps within its power to curb the activity of the organisation. and which the latter must protect. He stated that although there was no power under national law to prohibit the prac- 3. Public security and the concept of personal conduct tice of Scientology, the government could at least refuse entry to foreign nationals I n6w come to the third question. What is meant by 'personal conduct' which is intending to work at the headquarters of the Church of Scientology in England. such as to justify refusal of leave to enter a member state? How should this concept It seems that it was on the basis of this policy that Miss Van Duyn was refused leave e to enter the United Kingdom by reason as much of the links which she had already had be defined? Looking beyond a commentary on the words themselves, the solution seems to me in the past with that 'Church' in the Netherlands as of the fact that she was herself to be governed by two prime considerations: Firstly, freedom of movement for a practising Scientologist and, finally, by reason of her intention to take up employ- ment at Saints Hill Manor. workers is one of the fundamental principles of the Treaty and the prohibition on Given this information, there is no doubt, in my opinion, that these facts fall within any discrimination on grounds of nationality between workers of the member states is not subject to any other limitations than those provided for, in restrictive the concept of 'personal conduct' within the meaning of art 3(1) of the directive and I that mere association, albeit only through a contract of employment, with the Church terms, in para of art 48. relating to public policy, public security and public s of Scientology, is an element of a person's conduct. healthl. Secondly, if a 'Community public policy' exists in areas where the Treaty Moreover, as I have said, the provision in question was essentially inspired by the has the aim or the effect of transferring directly to Community institutions powers concern of the Community institutions to prohibit member states from taking col- previously exercised by member states, it can only be an economic public policy lective measures in relation to Community nationals. It requires that an examination relating for example to Community organisations of the agricultural market, to be made of the particular circumstances of each individual affected by a decision trade, to the Common Customs Tariff or to the rules on competition. On the other g based on the safeguarding of public policy. The provision implies without any doubt hand, it seems to me that, under present conditions and given the present position that the grounds of such a decision should be subject to review by the national courts of the law, member states have sole power, given the exceptions expressed in certain which, as is the case here, have the power—or sometimes even the duty—to consult Community provisions such as EEC Directive 64/221, to take measures for the safe- this court on the interpretation of the Community law applicable. It is in relation to guarding of public security within their territory and to decide the circumstances this point—and only this point—that the competence of the member states in this under which that security may be endangered. h area is limited by the directive. In other words, even though the general proviso relating to public policy, which is It is necessary to examine, finally, whether, by prohibiting the entry of a Community found both in art 48 and in art 56, is a limited exception to the principles of the EEC national on the grounds which I have rehearsed, the government of the United King- Treaty concerning freedom of movement and freedom of establishment, and one dom has not violated the principle of non-discrimination, in other words, that of which must be restrictively construed, I do not think, contrary to the opinion of the equality of treatment with nationals, which is the necessary corollary of freedom of tmheovt at Commission, that it is possible to deduce a Community concept of public security. .r. individuals, and which, based principally on art 7 of the EEC Treaty, This concept remains, at least for the present, national, and this conforms with reality is expressly applicable to employed persons by virtue of art 48. inasmuch as the requirements of public security vary, in time and in space, from one It is an established fact that, although the Church of Scientology is, in the eyes of state to another. . the British government, socially harmful, and although, in consequence, its activities In my opinion, the third question must be decided in accordance with the above are considered to be contrary to public policy, they are not unlawful in the United considerations. First of all, to what extent can the concept 'personal conduct' be applied Kingdomthe and nationals are free to study and practise Scientology and also to work at organisation's establishment. At first sight, there is therefore discrimination in ere mntem e nti .o in flicted on nationals of other states of the Communi ty, in the fact that Warttembergische INifildiverwerning-Siidwilch .4G V Ugliola ( i069) i Rerueil 163 at 166 Van Duyn v Home Office (Judgment) 205 All England Law Reports [1975] 3 All ER CJ EC 204 First question they are refused entry to the United Kingdom solely on the ground of their coming to 4. By the first question, the court is asked to say whether art 48 of the EEC Treaty is a a practise Scientology at Saints Hill Manor and to rake up employment at that establish- directly applicable so as to confer on individuals rights enforceable by them in the ment. courts of a member state. I do not think however that this discrimination is contrary to the EEC Treaty. 5. It is provided, in art 48(0 and (2), that freedom of movement for workers shall As I have said, the proviso relating to public policy and particularly to public security be secured by the end of the transitional period and that such freedom 'shall entail has the effect of maintaining the competence of the member states in this area, subject the abolition of any discrimination based on nationality between workers of the to the obligation that measures of public security must be justified by the personal Member States as regards employment, remuneration and other conditions of work conduct of those concerned. But member states retain, as regards both assessment b b and employment'. of the threat to their security and the choice of measures to counteract such a threat, 6. These provisions impose on member states a precise obligation which does not a power the exercise of which does not cast doubt on the principle of equality of require the adoption of any further measure on the part either of the Community treatment, unless, of course, they misuse this power by exercising it for an improper institutions or of the member states and which leaves them, in relation to its purpose, such as economic protection. implementation, no discretionary power. It so happens that, according to the statements of the British government, there is 7. Paragraph 3, which defines the rights implied by the principle of freedom of c c no power under past or existing national law to take measures prohibiting the movement for workers, subjects them to limitations justified on grounds of public establishment of Scientology. That is one consequence of a particularly liberal form policy, public security or public health. The application of these limitations is, how- of government. It would doubtless be quite different in other member states, the ever, subject to judicial controls, so that a member state's right to invoke the limi- governments of which regard the activities of that organisation as being contrary tations does not prevent the provisions of art 48, which enshrine the principle of to public policy. But, insofar as the United Kingdom government has the legal means freedom of movement for workers, from conferring on individuals rights which are to prevent foreign nationals, and even Community nationals, from coming to expand, enforceable by them and which the national courts must protect. within the United Kingdom, the band of followers of Scientology, I consider that it d d 8. The reply to the first question must therefore bc in the affirmative. can act in the way it does without creating discrimination within the meaning of art 48 of the EEC Treaty. The action it has taken lies within the powers which Second question the proviso relating to public policy contained in that article confers on every member 64,221 of 25th 9. The second question asks the court to say whether EEC Directive state. February 1964 on the co-ordination of special measures concerning the movement and In conclusion, I advise the court to rule that: (t) The provisions of art 48 of the ECC residence of foreign nationals which are justified on grounds of public policy, public e e Treaty and those of art 3(0 of the EEC Directive 64/221 are directly applicable in the security or public health is directly applicable so as to confer on individuals rights legal order of every member state and confer on individuals concerned rights which enforceable by them in the courts of a member state. the national authorities must protect. (2) The fact that a person has been or is associ- to. It emerges from the order making the reference that the only provision of the ated with an organisation the activities of which are considered by a member state directive which is relevant is that contained in art 3(0 which provides: 'Measures to be contrary to public policy even though those activities are not, within the terri- taken on grounds of public policy or public security shall be based exclusively on the tory of that state, prohibited by national law, is a matter which comes within the con- f personal conduct of the individual concerned.' concept of 'personal conduct' and which may justify a measure taken on the grounds II. The United Kingdom observes that, since art 189 of the EEC Treaty distinguishes of public policy or public security within the meaning of the aforementioned provision between the effects ascribed to regulations, directives and decisions, it must therefore of EEC Directive 64/221. (3) The fact that a person enters the member state concerned be presumed that the Council, in issuing a directive rather than making a regulation, with the intention of taking up employment with an organisation the activities of must have intended that the directive should have an effect other than that of a which are considered to be contrary to public policy and public security, it being the regulation and accordingly that the former should not be directly applicable. case that no restriction is placed on nationals of that member state who wish to take g 12. If, however, by virtue of the provisions of art 189 regulations are directly appli- up similar employment with that organisation, is likewise a matter falling within cable and, consequently, may by their very nature have direct effects, it does not the concept of 'personal conduct'. follow from this that other categories of acts mentioned in that article can never have similar effects. It would be incompatible with the binding effect attributed to a directive by art 189 to exclude, in principle, the possibility that the obligation which it 4th December. THE COURT delivered its judgment which, having summarised imposes may be invoked by those concerned. In particular, where the Community the facts and procedure, dealt with the law as follows: of ast March 1974, lodged at the court on t3th h authorities have, by directive, imposed on member states the obligation to pursue 1. By order of Pennycuick V-C 1 a particular course of conduct, the useful effect of such an act would be weakened if June, the Chancery Division of the High Court of Justice of England referred to the individuals were prevented from relying on it before their national courts and if the court, under art 177 of the EEC Treaty, three questions relating to the interpretation latter were prevented from taking it into consideration as an element of Community of certain provisions of Community law concerning freedom of movement for workers. law. Article 177, which empowers national courts to refer to the court questions 2. These questions arise out of an action brought against the Home Office by a woman concerning the validity and interpretation of all acts of the Community institutions, of Dutch nationality who was refused leave to enter the United Kingdom to take up without distinction, implies furthermore that these acts may be invoked by individuals employment as a secretary with the 'Church of Scientology'. in the national courts. It is necessary to examine, in every case, whether the nature, 3. Leave to enter was refused in accordance with the policy of the government of general scheme and wording of the provision in question are capable of having direct the United Kingdom in relation to that organisation. the activities of which it considers effects on the relations between member states and individuals. to be socially harmful. 1 3- By providing that measures taken on grounds of public policy shall be based exclusively on the personal conduct of the individual concerned, art 3(5) of EEC [1974] 3 All ER 178. [1974] i WLR 1107 206 All England Law Reports [1975] 3 All ER Van Duyn v Home Office (Judgment) Directive 64/221 is intended to limit the discretionary power which national laws 20. The question raises finally the problem of whether a member state is entitled, generally confer on the authorities responsible for the entry and expulsion of foreign a a nationals. First, the provision lays down an obligation which is not subject to any on grounds of public policy, to prevent a national of another member state from taking exception or condition and which, by its very nature, does not require the intervention gainful employment within its territory with a body or organisation, it being the case of any act on the part either of the institutions of the Community or of member that no similar restriction is placed on its own nationals. states. Secondly, because member states are thereby obliged, in implementing a clause 21. In this connection, the EEC Treaty, while enshrining the principle of freedom of which derogates from one of the fundamental principles of the EEC Treaty in favour movement for workers without any discrimination on grounds of nationality, of individuals, not to take account of factors extraneous to personal conduct, legal b admits, in art 48(3), limitations justified on grounds of public policy, public security certainty for the persons concerned requires that they should be able to rely on this b or public health to the rights deriving from this principle. Under the terms of the obligation even though it has been laid down in a legislative act which has no auto- provision cited above, the right to accept offers of employment actually made, the matic direct effect in its entirety. right to move freely within the territory of member states for this purpose, and the 14. If the meaning and exact scope of the provision raise questions of interpretation, right to stay in a member state for the purpose of employment are, among others, these questions can be resolved by the courts, taking into account also the procedure all subject to such limitations. Consequently. the effect of such limitations, when they under art 177 of the EEC Treaty. apply, is that leave to enter the territory of a member state and the right to reside 15. Accordingly, in reply to the second question, art 3(0 of EEC Directive 6 / c there may be refused to a national of another member state. of 25th February 1964 confers on individuals rights which are enforceable by them in 22. Furthermore, it is a principle of international law. which the EEC Treaty cannot the courts of a member state and which the national courts must protect. be assumed to disregard in the relations between member states, that a state is pre- Third question cluded from refusing its own nationals the right of entry or residence. 23. 16. By the third question the court is asked to rulewhether art 48 of the EEC Treaty It follows that a member state, for reasons of public policy, can, where it deems and art 3 of EEC Directive 64/221 must be interpreted as meaning that— necessary, refuse a national of another member state the benefit of the principle of d freedom of movement for workers in a case where such a national proposes to rake 'a member state in the performance of its duty to base a measure taken on up a particular offer of employment even though the member state does not place a grounds of public policy exclusively on the personal conduct of the individual similar restriction on its own nationals. concerned is entitled to take into account as matters of personal conduct (a) the 24. Accordingly, the reply to the third question must be that art 48 of the EEC fact that the individual is or has been associated with some body or organisation Treaty and art 3(0 of EEC Directive 64/221 are to be interpreted as meaning that a the activities of which the member state considers contrary to the public good e member state, in imposing restrictions justified on grounds of public policy, is entitled e but which are not unlawful in that state (b) the fact that the individual intends to take into account, as a matter of personal conduct of the individual concerned, to take employment in the member state with such a body or organisation it the fact that the individual is associated with some body or organisation the activities being the case that no restrictions are placed upon nationals of the member state of which the member state considers socially harmful but which are not unlawful who wish to take similar employment with such a body or organisation.' in that state, despite the fact that no restriction is placed on nationals of the member 17. Cstoasttes It is necessary, first to consider whether association with a body or an organisation who wish to take similar employment with these same bodies or organisations. can in itself constitute personal conduct within the meaning of art 3 of EEC Directive I 64/221. Although a person's past association cannot, in general, justify a decision refus- f 25. The costs incurred by the United Kingdom and by the Commission of the Euro- ing him the right to move freely within the Community, it is nevertheless the case tpheaatncCouormt. that present association, which reflects participation in the activities of the body or munities, which have submitted observations to the court, are not recover- able, and as these proceedings are, insofar as the parties to the main action are con- of the organisation as well as identification with its aims and its designs, may be con- cerned, a step in the action pending before the national court, costs are a matter for sidered a voluntary act of the person concerned and, consequently, as part of his personal conduct within the meaning of the provision cited. 18. This third question further raises the problem of what importance must be 9 On those grounds, the court, in answer to the questions referred to it by the High Court of Justice, by order of that court dated ist March attributed to the fact that the activities of the organisation in question which are con- 1 974, hereby rules: 1. Article 48 of the EEC Treaty has a direct effect in the legal orders of the member sidered by the member state as contrary to the public good are not however pro- states and confers on individuals rights which the national courts must protect. hibited by national law. It should be emphasised that the concept of public policy , iasnnr2pe. ddieA ivc air ua i rl dst it tuci l3m:ei: ees) t3da rs( iuiog ) of EEC Directive 64/221 of 25th February 1964 on the coordination of in the context of the Community and where, in particular, it is used as a justification for derogating from the fundamental principle of freedom of movement for workers, h res concerning the movement and residence of foreign nationals which must be interpreted strictly, so that its scope cannot be determined unilaterally by n grounds of public policy, public security or public health confers on each member state without being subject to control by the institutions of the Com- hts which are enforceable by them in the national courts of a member state and which the national courts must protect. 3. Article 48 of the EEC Treaty munity. Nevertheless, the particular circumstances justifying recourse to the concept ' -st of EEC Directive 64/221 must be interpreted as meaning that a member of public policy may vary from one country to another and from one period to another, -. ate, in impo sitnga. h tp „into restrictions. • justified• • on grounds of public policy, is entitled to take and it is therefore necessary in this matter to allow the competent national authorities , account as a matter o f an area of discretion within the limits imposed by the EEC Treaty. the individua personal conduct of the individual concerned, the fact that l is a " d • 19. It follows from the above that where the competent authorities of a member illl, ember sta ssociate with some body or organisation the activities of which the d • te considers socially harmful but which are not unlawful in that state, state have clearly defined their standpoint as regard the activities of a particular „ espite the fact nooym 0 take si 1 resetnrticwtioitnhisthpelascaemd eonbondaytioonraolsrgoafnthiseatm organisation and where, considering it to be socially harmful, they have taken adminj- 1111 ar em l ioenm. ber state who wish strative measures to counteract these activities, the member state cannot be require , , : l icitors: S teph en A4 Bird, before it can rely on the concept of public policy, to make such activities unlawful, East Grinstead (for Miss Van Duyn); Treasury Solicitor. if recourse to such a measure is not thought appropriate in the circumstances. R G C Flynn Barrister.