Case C-33/07, Jipa

>> Repatriation restricting EU citizen’s right of free movement only when genuine, present and sufficiently serious threat to fundamental interest of society.

Mr Jipa left Romania to travel to Belgium. On account of his “illegal residence” in Belgium, he was repatriated to Romania under the terms of an Agreement between Belgium, Luxembourg and the Netherlands, on the one hand, and Romania, on the other, on the readmission of persons who were in an illegal situation. The Romanian Minister for Administration and Home Affairs
applied to the referring court for a measure prohibiting Mr Jipa from travelling to Belgium for a period of up to three years, in accordance with a Romanian Law on the conditions for the free movement of Romanian citizens abroad. The referring court asked whether Art. 18 EC and Art. 27 of Directive 2004/38 precluded national legislation that allowed the right of a national of a Member State to travel to another Member State to be restricted, in particular on the ground that he had previously been repatriated from the latter Member State on account of his “illegal residence” there.

The Court of Justice held that, as a Romanian national, Mr Jipa enjoyed the status of a citizen of the Union under Art. 17(1) EC and might therefore rely on the rights pertaining to that status, including against his Member State of origin, and in particular the right conferred by Art. 18 EC to move and reside freely within the territory of the Member States. The Court held that the right of freedom of movement included both the right for citizens of the European Union to enter a Member State other than the one of origin and the right to leave the State of origin.

However, the right of free movement of Union citizens was not unconditional but might be subject to the limitations and conditions imposed by the Treaty and by the measures adopted to give it effect. As far as the main proceedings were concerned, those limitations and conditions derived in particular from Art. 27(1) of Directive 2004/38, which provided that Member States might restrict the freedom of movement of Union citizens and their family members on grounds inter alia of public policy or public security.

The Court held that while Member States essentially retained the freedom to determine the requirements of public policy and public security in accordance with their national needs, in the Community context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly. Their scope could not be determined unilaterally by each Member State without any control by the Community institutions.

The Court stated that a measure limiting the exercise of the right of free movement could not be based exclusively on reasons advanced by another Member State to justify a decision to remove a Community national from the territory of the latter State, as in the main proceedings.

The fact that a citizen of the Union had been subject to a measure repatriating him from the territory of another Member State, where he was residing illegally, might be taken into account by his Member State of origin for the purpose of restricting that citizen’s right of free movement only to the extent that his personal conduct constituted a genuine, present and sufficiently serious threat to one of the fundamental interests of society. According to the Court, the situation in the present case did not however seem to meet these requirements.

The Court held that it was nevertheless for the national court to make the necessary findings in this respect, on the basis of the matters of fact and of law justifying, in the main proceedings, the request of the Minister for a restriction on Mr Jipa’s right to leave Romania.

Text of Judgement