UK ban on scientology worker allowed by EEC rules European Law Report Week ended December 7 Court of Justice of the European Communitv Yvonne van Duyn and Home Office (United Kingdom). Before tlte president, Judge R. Lecourt, and Judges C. O'Dalaigh, Lord Mackenzie Stuart, A. Donner, R. Monaco, J. Mcrtens de Wilmars, P. Pescatore, H. Kutscher. M. Sorensen (rapporteur) Mr Advo- cate-General H. Mayras. Facts: This was a reference to the Euro- pean Court under Article 177 of the EEC Treaty by the Chancery Division of the High Court of Justice of England, for a prelim- inary ruling on the interpretation of Article 48 of the EEC Treaty and Article 3 of Council Directive'64/ 221 of February 25, 1964 (coordina- tion of special measures concern- ing the movement and residence of foreign nationals wltich are justified on grounds of public policy, public security or public health-Official Journal, April 4, 1964). By-order of the Vice-Chancellor on March 1, 1974, the Chancery Division referred to the cotrt. under Article 177 of the EEC Treaty, three-questions relating to the interpretation of certain pro- visions of Community law concern- ing freedom - of miovement for workers. These questions arise out of an action brought against the Home Office by a woman of Dutch nationality who was refused leave to enter the United Kingdom to take up employment as a secretary with the " Church of Scientology ". Leave to enter was refused in accordance with the policy of the Government of the United King- dom in relation to that organiza- tion, the activities of which it considers to be socially harmful. First question: By the first question, the court is asked to say whether Article 48 of the EEC Treaty is directly appli- cable so as to confer on indivi- duals, rights enforceable hy them in the courts of a member state. It is provided, in Article 48(1) and (2), that freedom of movement for workers shall be secured bv the end of the transitional period and that such freedom shall entail " the abolition of any discrimina- tion based on nationality between workers of member states as re- gards employment, remuneration and other conditions of work and employment " . These provisions impose on mem- ber states a precise obligation which leaves them, in relation to its implementation, no discretion- ary power. Paragraph 3, which defines the rights implied by the principle of freedom of movement for workers, subjects them to limitations justi- fied on grounds of public policy, public security or public health. The applicalion of these limita- tions is, however, subject to judi- cial control, so that a member state's right to invoke the limita- dons does not prevent the provi- sions of Article 48, which enshrine the principle of freedom of nmove- ment for workers, from conferring on individuals rights which are enforceable by them and which the national courts must protect, The reply to the first question must therefore be in the affirma- tive. Second question: The second question asiks the court to say whether Council direc- tive No 64/221 of February 25 1964, on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, is directly applicable so as to confer on individuals rights enforceable by them in the courts of a member state. It emerges from the order making the reference that the only provision of the Directive which is relevant is that contained in Article 3 (1) which provides that " measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned ". The United Kingdom observes that, since Article 189 of the Treaty distinguishes between the effects ascribed to regulations, directives and decisions, it must therefore be presumed that the council, in issuing a directive rather than making a regulation, rnust have intended that the direc- tive should have an effect other than that of a regulation. If, however, by virtue of the provisions of Article 189 regula- tions are directly applicable and, consequently, may by their very nature have direct effects, it does not 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 Article 189 to exclude, in principle, the Possibility that the obligation whbic it imposes may be invoked by those con- cerned. In particular, wvhere the Community authorities have, hy a directive, imposed on member states the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals wuerP prevented from relying on it before their national courts and if those courts were prevented from taking It into consideration as an ele- ment of community law. Article 177, implies furthermore that these acts may be invoked by individuals in the national courts. It is necessar to examine, In every case, whether the nature, general scheme and wording of the provision in ques. tion are capable of having direct effects on the relations between member states and individuals. By providing that measures taken on grounds of public policy shall be based exclusively on the personal conduct of the individual concerned, Article-3 (1) of direc- tive No 64/221 is intended to limit the discretionary power which national lawvs generally confer on the authorities responsible for the entry and expulsion of foreign nationzls. First, the provision lays down an obligation which is not subject to any exception or condition and which, by its very nature, does not require the intervention of any act on the part either of the institu- tions of the Community or ot member states. Secondly, because member states are thereby obliged in implementing a clause which derogates from one of the funda- mental principles of the treaty In favour of individuals, not to take account of factors extraneous to personal conduct. Legal certaintv for the persons concerned requires that they should be able to rely on this oblieation even thouah it has been laid dowvn in a legislative act wvhich has no automatic direct effect in its entirety. rf the meaning and exact scone of the provision raise questions of interpretation, these questions can be resolved by the courts, taking into account also the pro- cedure under Article 177 of the Treatv. Accordingly, in replv to the second question, Article 3 (1) of c ouncil directive No 64/221 of February 25, 1964. confers on indi- viduals rights which are enforce. able by them in the courts of a member state and -hich the ntinnal courts musj protect. Third question: By the third question the court is asked to rule whether Article 48 of the Treaty and Article 3 of directive No 64/221 must be interoreted Ps meaning that ' A member state, in the per- formance of its duty to base a measure taken on grounds of public policy exclusivelv on the personal conduct of the individual concerned, is entitled to take into account as matters of personal conduct: (A) The fact that the individual is, or has been, associated with sonme body or organization the activities of which the member state considers contrary to the public good but which. are not unlawful in that state. (B) The fact that the individual intends to take employment in the member state With such a body or organization, it being the. case that no restrictions are placed upon nationals of the member state who wish to take similar employ- ment with such a body or organiza. tion." It is necessary first, to consider whether association with a body or an organization can in itself constitute personal conduct with- in the meaning of Article 3 of Directive No 64221. Although a person's past association cannot, in general, justify a decision re- fusing him the right to move freely uithin the community, it is nevertheless the case that pre- sent association which reflects participation in the activities of the body or of the organization as well as identification w-ith its aims and its designs, may be considered a voluntary act of the person con- cerned and, consequently, as a part of his personal conduct with- in the meaning of the provision cited. Tis third question furtlier raises the problem of what im- portance must be attributed to the fact that the activities of the orga- nization in question, which are considered by the member state as contrary to the public good, are not, however, prohibited bv national law. It should be empha- sized that the concept of public policy in the context of the com- munity and where, in particular, it is used as a justification for derogation from the fundamental principle of freedom of movement for workers, must be interpreted strictly, so that its scope cannot be determined unilaterally bv each member state virhout beirg subject to control bv tle Institutions of the community. Nevertheless, the particular circumstances justifying recourse to the concept of public policy may vary from one coun- try to another and from one period to another. It follows from the above that where the competent authorities of a member state have clearlv de- fined their standpoint as regards the activities of a particular orga- nization and where. considering it to be socially harmful. they have taken administrative measures to counteract these activities, the member state cannot be required, before it can rely on the concept of public policy. to make such activities unlawful, if recourse to such a measure is not thought appropriate in the circumstances. The question rafses finally the problem of whether a member state is entitled, on grounds of pub- lic policy, to prevent a natlonal of another member state from taking gainful employment within its ter- ritory with a body or organization, when no similar restriction is placed upon its own nationals. In this connexion, the TreatY, while enshrining the principle of freedom of movement for workers w%ithout any discrimination on grounds of nationality, admits, In Article 48 (3), limitations, justi- fied on grounds of public policv, public se,urity or public health, to the rights deriving from this principle. Under the terms of the provisions cited above, the rJght to accept offers of employment actu- ally made, the right to move freelv vwithin the territory or member states for this purpose, and the right to stay in a member state for the purpose of employment are all subject to such limitations. Con- sequenitly, the effect of such limi- tations. wvhen they apply, Is that leave to enter the territory of a member state and tile right to reside there mav be refused to a national or another member state. Furthermore, it is a principle of international lawv, wshich the EEC Treaty cannot be assumed to disregard in the relations between member states. that a state is pre- cltided from refusing its own nat- ionals the right of entnv or resi- dence. Tt follows that a memlbpr state, for reasons of public policv, can. where it deems necessanr. refuise a national or another metbhor -t-ate the benefit of the orincipl of frer- dom of movemernt for *-"'k^'; in a case where rcicl a rntinnpl prf. poces to take un a P11-tirl-,- offer of emplovnient even thoiugh the member state does not olace a simi- lar restriction upon its own nationals. Accordingiv, the replv to the third question must be that Article 48 of the EEC Treatv and Article 3 (1) of Directive No 64/221 are to be interpreted as meaning that a member state, in imposing re- strictions iustified on grounds of public policy, is entitled to take into account, as a matter nf ner sonal conduct of the indjiilue11 concerned, the fact that the indi- vidual is associated vith en-"'' bod or nrganization the activities of which the member state corsiderr sorially harmful but vhicli Pre no, unlawful in that state. deqpit" th' fact that no restrictior is nlac-eI upon nationals of that mrembe'- state svho wish to take simil-- en' plovment with these same bodies oi organizations. UK ban on scientology worker allowed by EEC rules