(preliminary ruling requested by the Pretura di Milano)

JUDGMENT OF THE COURT7 JULY 1976 <appnote>1</appnote>

Lynne Watson and Allessandro Belmann(preliminary ruling requested by the Pretura di Milano)

Case 118/75

Summary

1. Free movement of persons and services — Community law — Fundamentalprinciple — Precedence over national law — Individual rights — Protection bythe national courts

(EEC Treaty, Articles 48 to 66)

2. Free movement of persons — National of a Member State — Movement intoanother Member State and stay in that State — Administrative formalities —Acceptability — Conditions — Failure to observe such formalities — Penalties —Limits

(EEC Treaty, Article 7, Article 48)

1. Articles 48 to 66 of the Treaty and themeasures adopted by the Communityin application thereof implement afundamental principle of the Treaty,confer on persons whom they concernindividual rights which the nationalcourts must protect and takeprecedence over any national rulewhich might conflict with them.

2. National regulations which requirenationals of other Member States who

benefit from the provisions of Articles48 to 66 of the EEC Treaty to reportto the authorities of that State and

prescribe that residents who provideaccommodation for foreign nationals

must inform the said authorites of the

identity of such foreign nationals arein principle compatible with theprovisions in question provided, first,that the period fixed for the dischargeof the said obligations is reasonableand, secondly, that the penaltiesattaching to a failure to dischargethem are not disproportionate to thegravity of the offence and do notinclude deportation.In so far as such rules do not entailrestrictions on freedom of movement

for persons they do not constitutediscrimination prohibited underArticle 7 of the Treaty.

In Case 118/75

Reference to the Court under Article 177 of the EEC Treaty by the Pretura diMilano, for a preliminary ruling in the criminal proceedings pending beforethat court against

I — Language of the Case: Italian.

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LYNNE WATSON

and

ALESSANDRO BELMANN

in particular on the interpretation of certain provisions of Community lawwhich concern the prohibition on discrimination between nationals of theMember States and on freedom of movement for persons, as well as on theapplicability in Community law of the fundamental principles set out in theEuropean Convention on Human Rights,

THE COURT

composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidentsof Chambers, J. Mertens de Wilmars, P. Pescatore, M. SØrensen and LordMackenzie Stuart, Judges,

Advocate-General: A. Trabucchi

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The order making the reference, theprocedure and the written observationssubmitted under Article 20 of theProtocol on the Statute of the Court of

Justice of the EEC may be summarizedas follows:

I — Facts and procedure

1. For a certain period at the beginningof 1973, Mr Belmann, an Italian citizenresiding in Milan, gave accommodationto Miss Watson, a British citizen, thenaged 17. When Miss Watson disappearedsuddenly on a journey to Venice Mr

Belmann informed the Milan police(Questura). Thereupon the police foundthat Miss Watson and Mr Belmann had

not discharged the obligations imposedon them by certain provisions of Italianlaw, and they reported those concernedto the competent judicial authority, thePretura, Milan.

The provisions allegedly violated by MissWatson and by Mr Belmann respectivelyare Article 142 of the 'Testo Unico Leggedi Pubblica Sicurezza' (ConsolidatedPublic Security Acts), approved by RoyalDecree No 773 of 18 June 1931,hereinafter referred to as 'TULPS', and

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Article 2 of Decree-Law No 50 of

11.2.1948 (Gazzetta Ufficiale No 44 of21.2.1948, p. 598):— Under the terms of the first

paragraph of the said Article 142'Within three days of his entry intothe territory of the State, a foreignnational must report to the publicsecurity authority of the place wherehe is staying in order to notify hispresence and to make a declaration ofresidence'.

In the case of failure to discharge thisobligation, the penalty provided for isa maximum of three month'sdetention or a maximum fine of Lit.

80 000 (Article 17 TULPS inconjunction with Article 3 of Law No603 of 12.7.1961, Gazzetta UfficialeNo 181 of 24.7.1961, p. 2828). Inaddition, a foreign national who isaccused of such an offence may bedeported from the territory of theState (Article 150 (4) TULPS); for theforeign national the principal resultof such deportation is a prohibitionon entry into Italy without the specialpermission of the Minister for theInterior (Article 252 (1)).In pursuance, in particular, of certainCouncil Directives, the Italianauthorities have modified Article 142

(1) TULPS so that at present theobligation set out therein is no longerimposed on workers who arenationals of the other Member States

and who are working as employedpersons for a period of more thanthree months. In all other cases,however, the provision is unchanged(cf. Articles 1 to 3 of Decree No 1656of the President of the Republic of30.12.1965, Gazzeta Ufficiale No 55of 3.3.1966, p. 990; Article 1 ofDecree No 1225 of the President of

the Republic of 29.12.1969, GazzettaUfficiale No 75 of 25 March 1970, p.1882).

— Article 2 of Decree-Law No 50 is

worded as follows:

Any person who provides board andlodging, on whatever basis, to aforeign national or a stateless person,

including his own kith and kin, orfor any reason whatever takes suchperson into his employment, shall bebound to inform the competent localpublic security authority within 24hours of the identity of such personspecifying, in the case ofemployment, the work allotted tohim.

Failure to observe the terms of the

preceding provisions entails theimposition of the penalties providedfor in Article 1, that is, detention forup to six months, to which may beadded a fine of up to Lit. 240 000.'

2. By order of 18 November 1975,received at the Court Registry on 1December 1975, the Pretura di Milanodecided to refer to the Court the

following questions, which had been setout by the accused in their statement ofdefence and which it has adopted:

(a) Do the prohibition of discriminationbetween nationals of the Member

States of the Community and theirfreedom of movement, residence andestablishment in the Member States

of the Community constitutefundamental principles which theCourt will enforce while protectingthe rights conferred upon privateparties thereunder?

(b) Do these fundamental principlesinclude those which are common to

the Member States, in particular thoseset out and protected under theEuropean Convention on HumanRights, especially the right to privacy(Article 8 of the Convention) theimportance of which becomes clearwhen it is viewed in conjunction withfreedom of movement, residence andestablishment, and [do they alsoinclude] the obligation upon aforeign national or upon others onhis behalf to report or make hispresence, for whatever reason, on theterritory of the State known to thecompetent authorities.

(c) In case of conflict, do those funda­mental principles, as part of Com­munity law, prevail over national laws?

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JUDGMENT OF 7. 7. 1976 — CASE 118/75

(d) Does the obligation imposed upon aforeign national under national law toreport within three days of his entryinto the territory of the State to oneof its authorities in order to notify hispresence (or rather, 'give an accountof himself') and to make a declarationof residence, notwithstanding that theforeign national is in transit andremains, pending departure, on theterritory of the State for not morethan two months:

(1) produce discrimination betweennationals of Member States,especially if such obligation existsonly in one or some of the States;

(2) constitute a direct or indirectrestriction of or impediment tothe residence (and possibly also tothe movement) of nationals ofMember States within the

Community, whether in thecapacity of 'self-employedpersons' or 'employed persons','persons providing services' or'persons for whom the services areintended'?

(e) Does the obligation laid down by anational law, imposing on anyonewho provides board and lodging, onwhatever basis, to a foreign national,including his own kith and kin(meaning a national of one MemberState on the one hand, and a nationalof another Member State on the

other) or for any reason whatevertakes him into his own employment,the duty to inform the competentlocal authorities of the identity of theperson within 24 hours specifying, incase of employment, the workallotted to him, give rise todiscrimination and constitute arestriction of the kind described

under (d) (1) und (2) above and on thebasis of the criteria for determination

and interpretation therein described?

In its statement giving the grounds forthe order, the Pretura observes, as regardsquestion (d), that the Court may take intoaccount, as a consideration of fact, theheavy penalties incurred by a foreign

national who does not fulfil the

obligation set out in Article 142 TULPS:detention for up to three months;deportation on the basis of a mereinformation alleging an offence,independently of conviction. Accountshould be taken of Article 3 (1) and (2) ofCouncil Directive No 64/221 of the

Council of 25 February 1964 'on thecoordination of special measuresconcerning the movement and residenceof foreign nationals which are justifiedon grounds of public policy, publicsecurity or public health' (62/221/EEC,Official Journal, English Special Edition1963-1964, p. 117) according to which'Measures taken on grounds of publicpolicy or of public security shall be basedexclusively on the personal conduct ofthe individual concerned' and 'Previouscriminal convictions shall not in

themselves constitute grounds for thetaking of such measures'.

In accordance with Article 20 of theProtocol on the Statute of the Court of

Justice of the EEC, written observationswere submitted by the defendants in themain action, the British and ItalianGovernments and the Commission.

Upon hearing the report of theJudge-Rapporteur and the views of theAdvocate-General, the Court decided toopen the oral procedure without holdingany preparatory inquiry.

II — Summary of the observationssubmitted under Article 20of the Protocol on theStatute of the Court of

Justice of the EEC

The defendants in the main actiondescribe the reason for Miss Watson's

stay in Italy as follows: 'Hospitality, andmore specifically board and lodging [ilvitto e l'allogio], were offered in exchangefor the aid and assistance which the girlwas to provide [within the Belmannfamily], in particular, by looking after achild who was still in infancy'.

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Community law contains fundamentalprinciples, observance of which isensured by the Court. Those principlesare expressed, in particular, in theprohibition of discrimination set out inArticle 7 of the Treaty which is laiddown in further detail in the provisionsproviding for freedom of movement(Article 48 et seq.: freedom of movementfor workers; Article 52 et seq.: right ofestablishment; Article 59 et seq.: freedomto provide services). They are common tothe legal systems of the Member Statesand are protected by the EuropeanConvention on Human Rights, whichhas been ratified by all the MemberStates and which is taken into account bythe Court, as is shown by its case-law.The Court therefore has jurisdiction torule on the meaning of the rules andprinciples contained in that Conventionand on the effects which they producewithin the legal systems of the MemberStates. In this instance, it is necessary toconsider Articles 8 and 14 of the

Convention, as well as Article 2 of itsProtocol No 4.

Apart from the provisions of the Treatyreferred to above, the Community rulesof importance in this instance are certainmeasures adopted by the Council, inparticular Regulation No 1612/68 of 15October 1968 on freedom of movement

for workers within the Community (OJ,English Special Edition 1968 (II), p. 475),Directive No 64/221 (referred to above),Directive No 68/360 of 15 October 1968'on the abolition of restrictions onmovement and residence within the

Community for workers of MemberStates and their families' (OJ, EnglishSpecial Edition, 1968 (II), p. 485) andDirective No 73/148 of 21 May 1973 'onthe abolition of restrictions onmovement and residence within the

Community for nationals of MemberStates with regard to establishment andthe provision of services' (OJ, L172 of28.6.1973, p. 14). The Court has foundon several occasions that these provisionstake precedence over national ruleswhich form an obstacle to the effective

enjoyment of the rights conferredthereby on individuals.

Taken as a whole the abovementioned

Community provisions lay down, for thenationals of Member States to whom theyapply, the right to enter the territory ofanother Member State on presentation ofa valid passport or identity card withoutthe need for any visa or equivalentrequirement, and to reside in that Statewithout being subject to any formality,where the period of residence does notexceed three months. For longer periodsand as regards employed orself-employed persons, the right ofresidence is proved by the issue, by thehost State, of a residence permit which isvalid for five years and is automaticallyrenewable. As regards persons providingand receiving services, the right ofresidence is simply proved by the issueof a permit of equal duration with theperiod during which the services areprovided. Reference should, however, bemade to Article 8 (2) of Directive No68/360 and Article 4 (2) of Directive No73/148.

The defendants in the main action have

provided a description and a detailedcriticism of the Italian legislation whichmay be of interest in this instance; theymake the following principalobservations:

(a) As regards the obligation on foreignnationals entering Italy to report theirpresence in the territory (Article 142TULPS), until now the Italian State hasonly applied the abovementionedCouncil Directives in an incompletemanner.

Self-employed persons and personsproviding and receiving services are in anunfavourable position in comparisonwith employed workers since,independently of the length of theirperiod of residence in Italy, they remainsubject to the obligations laid down inArticle 142 (1) TULPS.

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It is true that Decree No 1656 has

simplified, in favour of nationals of otherMember States, the details which theindividual must provide when he makesa declaration of residence. In practice,however, this is only an apparentsimplification, since the declaration ofresidence form (modello), provided for inthe abovementioned Decree, has neverbeen distributed to the Questura, whichcontinues to use the old forms.

(b) As regards the obligation imposedon persons who give lodging to foreignnationals or take them into their

employment (Article 2 of Decree-LawNo 50), the requirement that it bedischarged within 24 hours is extremelystrict and unjustified. The same appliesto the penalties laid down. Furthermore,the provision may be criticized on theground that it is applicable, first, withoutregard to the reason for the period ofresidence and, secondly, independentlyof whether the foreign national hashimself reported his presence to thepublic authorities or is a national ofanother Member State. The provision iseven more incomprehensible since acheck is already made at the frontier,when the foreign national enters Italy.

To the extent to which it applies toCommunity workers the said provision isunnecessary and may even be unlawful,since the foreign nationals concerned aretreated as national workers for the

purposes of eligibility for employment(cf. Articles 1 to 3 of Regulation No1612/68 and Directive No 68/360).Community workers suffer discrimi­nation in comparison with nationalworkers, since the employer is notobliged to make a similar declaration tothe authorities in respect of the latter. Asregards nationals of other Member Stateswho enter Italy in order to pursueactivities as self-employed persons or toprovide services there, the provision indispute constitutes a restriction onmovement and residence within the

meaning of Article 1 of Directive No73/148, which is prohibited under this

article as well as under Articles 52 and 59

of the Treaty. The penalties attaching toa failure to observe Article 2 ofDecree-Law No 50 tend to dissuade

Italian nationals from offering hospitalityor lodging to foreign nationals whomthey intend to employ.

(c) In short, the obligations laid downby the provisions of Italian law which thedefendants in the main action are allegedto have violated establish discriminationbetween Italian nationals and nationalsof other Member States and form anobstacle to freedom of movement and

residence, which is closely linked to thefreedom to take up and pursue activitiesas a self-employed or employed person.

These provisions are not covered by theexception to the principle of the freedomof movement which is provided for,under Articles 48 (3), 56 and 66 of theTreaty, in relation to limitations justifiedon the grounds of public policy. Theconcept of public policy must be given arestrictive interpretation and may only berelied on in cases of particular gravity.Although the Member States are free toexercise a certain discretion as regardsthe application of these limitations, theirevaluation cannot be unilateral, but issubject to review by the Communityinstitutions. Community law limits thegrounds on which measures of publicpolicy may be based (cf. Article 8 ofRegulation No 1612/68; Articles 2 and 3of Directive No 64/221). The provisionsof the Convention on Human Rights arealso to this effect.

The British Government considers that

the Court has jurisdiction under Article177 to give a ruling on the provisions ofthe European Convention on HumanRights only where that Convention isrelevant either to the interpretation ofthe Treaty, of measures adopted by theCommunity institutions or of the statutesof bodies established by an act of theCouncil, or to the validity of such acts.

In relation to the validity of Communitymeasures, the case-law of the Court has

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taken account of certain fundamental

principles common to the MemberStates, a number of which have also beensanctioned by the Convention. However,the Court regards these principles ratheras sources of inspiration than as formingpart of the corpus of Community law (cf.in particular, Judgment of 14 May 1974,Nold, Kohlen- und Baustoffgroßhand­lung v Commission of the EuropeanCommunities, Case 4/73, [1974] ECR491).

The possible relevance of a provision ofthe Convention to the interpretation andapplication of Community law should beassessed independently, and then only inthe light of the particular circumstancesof each case. Certain provisions of theConvention are so far removed from the

objectives of the Community that theyare unlikely to play any role in aCommunity context.

The fundamental rights of mostimportance for the Community are setout in the Treaty and in secondaryCommunity law. Certain of those rightsreflect principles laid down by theConvention. This is true, in particular, asregards the limitations placed on thepowers of Member States in relation tocontrol of aliens (cf. Judgment of 28October 1975, Roland Rutili v Ministerfor the Interior, Case 36/75, [1975] ECR1219) and as regards the prohibition ondiscrimination on the grounds ofnationality (cf. Articles 7 and 48 (1) ofthe Treaty; Article 14 of the Convention).On the other hand, Community rulesguarantee to nationals of Member Statescertain fundamental rights which are notreferred to by the Convention, that is,freedom of movement for workers,freedom of establishment, freedom toprovide services and the right ofresidence (Articles 48, 52 and 59 of theTreaty; Directives Nos 68/360 and73/148).

There is no justification for treating theprinciples established by the Convention,or any of them, as part of Community

law in the sense of being directlyapplicable in Member States, except in sofar as the rights which they guaranteehave been embodied or may be impliedin provisions of Community law.

Any exercise of overlapping jurisdictionby the institutions established by theConvention and by the Court of Justiceof the European Communities could giverise to confusion and conflict. The

generalized and somewhat impreciselanguage of the Convention and of theexceptions to which most of the rightsset out in Section I thereof are subjectcan give rise to questions of constructionwhich fall with the ultimate jurisdictionof the institutions created by theConvention. Similarly, it is for thoseinstitutions alone to make a ruling on anational measure which is contrary to theConvention but compatible withCommunity law.

As regards the notification requirementimposed by the law of the MemberStates, it can in no way be incompatiblewith Community rules in so far as itapplies solely to visitors, who do not fallinto any of the categories of personsprotected by the provisions of Title III ofPart Two of the Treaty. However, even ifit applies to persons protected by theTreaty, it cannot be regarded as arestriction on freedom of movement

unless it is subject to onerous andunreasonable conditions or provides, inthe event of failure to comply, fordisproportionate penalties in relation tothe gravity of the offence. At all events, anotification requirement may be justifiedon grounds of public policy, publicsecurity or public health.

The Italian Government expresses itsregret that, as the national court omittedto indicate clearly the reason for MissWatson's residence in Italy, it has giventhe Court 'an irksome task which is, inmany respects, unnecessary'.

However, it appears from Question (d)that the individual concerned entered

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Italy as a tourist. If this is correct, shedoes not fall into any of the categories ofpersons protected by Community lawand the fundamental rights which formpart of that law, so that the questionsraised are rendered nugatory.

Article 7 of the Treaty limits theprohibition on discrimination containedtherein to the 'scope of application ofthis Treaty', which is defined by Article2. It is put into practical effect byChapters 1 to 3 of Title III of Part Twoof the Treaty, dealing with the freemovement of persons and service, thescope of which is clearly defined. Whenthe Court has dealt with fundamental

rights it has always considered them'within the framework of the structure

and objectives of the Community'(Judgment of 17 December 1970,Internationale Handesgesellscbaft mbHv Einfuhr- und Vorratsstelle fürGetreide und Futtermittel, Case 11/70,[1970] ECR 1125 and Vandeweghe andOthers v Berufsgenossenschaft für diechemische Industrie, Case 130/73 [1973]ECR 1329, in which the Court declaredthat it has no jurisdiction under Article177 to give a ruling 'on the interpretationof provisions of international law whichbind Member States outside the

framework of Community law').

Having said this, it is undeniable that theprinciples of non-discrimination and offreedom of movement and residence

constitute fundamental principles of theCommunity, on which Communitynationals may rely. The same applies tothe fundamental rights common to theMember States and acknowledged by theEuropean Convention on Human Rights.However, as regards in particular theright to respect for private life, protectedby Article 8 of the Convention andreferred to in Question (b) raised by thePretura of Milan, there is here no specificrelationship with the sphere of economicactivity governed by the Treaty. Fromthis point of view, and in the light of itsjudgment in Case 130/73 referred toabove, the Court has no jurisdiction to

rule on the interpretation of the saidArticle 8.

As regards the legislation in dispute, it isnot only intended to subject foreignnationals to a form of control, but also toguarantee them the assistance to whichthey are entitled (for example, thetransmission of urgent informationwhich the Consular authorities of their

State of origin wish to bring to theirnotice). Furthermore, the notificationrequirement has a functional aspect, thatis, it is necessary for the issue of theresidence permit provided for by Articles2 and 5 of Directive No 64/221, Article 4et seq. of Directive No 68/360 andArticle 4 et seq. of Directive No 73/148.Finally, a comparable obligation isimposed upon Italian nationals, who arerequired to register their namens, theirplace of residence and the place ofresidence of all persons living with them,on the register of local residents. Thereis, therefore, no discrimination.

Furthermore, the rules in question donot form an impediment to the residenceor movement of nationals of MemberStates. Under the terms of Article 7 of

Decree No 1656, the decisionauthorizing the residence of such anational or refusing such authorizationmust be taken within six months of the

declaration of residence and, meanwhile,the person concerned is entitled to resideprovisionally in Italian territory. Theobligation to make this declarationtherefore affects neither the right to enterthe State nor the right to reside there andmove about freely. Moreover, it is notcontrary to Article 8 of the Conventionon Human Rights.

At all events, the obligation imposed onforeign nationals to report their presenceto the authorities is fully justified ongrounds of public policy, according tothe interpretation of this concept in theabovementioned directives. This is shown

in particular by the fact, to whichreference has already been made, thatthat obligation must be related to the

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duty to issue a residence permit, which isimposed on the authorities by thosedirectives.

The Commission begins its observationswith a detailed description of the Italianlegislation.

It considers that Miss Watson came to

Italy as a tourist. She must, therefore, beregarded as a person receiving serviceswho is covered by Articles 59, et seq. ofthe Treaty.

The principle of the free movement ofpersons, laid down in the first threechapters of Title III of Part Two of theTreaty, implies a prohibition on alldiscrimination based on nationality, aswell as ensuring the right to enter andreside in the territory of any MemberState, and this principle is of direct effectas regards those whom it concerns —employed workers, self-employedworkers, and persons providing andreceiving services.

In essence, the questions referred by thePretura, Milan, must be understood asasking the Court to define the scope ofthe exception laid down in Articles 48 (3)and 56 (1) in favour of discriminatorymeasures which are justified on groundsof public policy or public security. Asregards this point, the case-law of theCourt shows that although the MemberStates have a certain area of discretion,they are still bound to respect the limitsimposed by the Treaty, in particular thefundamental principles of the Com­munity system. Therefore, a measurewhich, although adopted on grounds ofpublic policy, infringes other generalprinciples of Community law or conflictswith the fundamental rights of nationalsof the Member States, is not 'justified'within the meaning of Article 56.

In general terms, it is not sufficient that ameasure is justified on grounds of publicpolicy; it must, in addition, beimpossible for public policy to besafeguarded effectively other than by a

discriminatory measure. This is the casefor example, where the differenttreatment applied to a foreign national ascompared with a national of the Stateconcerned corresponds to a realdifference in their factual situation. It

follows that, as Community measuresgradually bring the position of theforeigner into line with that of thenational, the possibility of providing fordiscriminatory treatment becomesprogressively more restricted. It is nowclear from recent case-law of the Court

that the right to enter and reside inanother Member State for the purpose ofpursuing an economic activity there isconferred directly on the individualsconcerned by the Treaty. Therefore itdoes not depend on any gratuitous,limited authorization by the host State,and a residence permit issued or right ofabode granted by the latter have no otherobjective than to certify and record theexercise of that right for administrativepurposes.

Having made these observations, theCommission defines its attitude with

regard to the obligations which thedefendants in the main action have

allegedly failed to discharge as follows:

(a) As regards the obligation on aforeign national to notify his presence inthe host country, this is a measure which,although discriminatory, is generallyjustified by the need to keep a check onthe presence of foreign nationals. Assuch, it has been authorized by Article 8(2) of Directive No 69/360 and by Article4 (2) of Directive No 73/148 for thosecases in which it is unnecessary to issue aresidence permit.

However, it must be remembered that acheck is already carried out at thefrontier, that in Italy, foreign nationals,like Italian nationals, are required to askfor their names to be added to the

register of local residents of thecommune in which they have establishedtheir place of residence and, finally, thatunder Italian legislation hotel-keepersand any persons who offer lodging in

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exchange for payment must inform thelocal public security authority every dayof the identity of the persons lodgingwith them, whether nationals orforeigners. In the circumstances, theprovision contained in Article 142 (1)TULPS is only of very limited use and,therefore, appears to be oppressive andexcessively severe, particularly if oneconsiders the brevity of the period laiddown for this purpose and the severity ofthe penalty attaching to a failure todischarge the obligation. This penalty iseven less justified in the light of the factthat Italian nationals only risk a fine ofLit 2 000 to Lit 10 000 for a failure to

discharge their obligation to add theirnames to the register of local residents.

In short, therefore, the provision indispute violates the fundamentalprinciple of proportionality, which formspart of the common legal heritage of theMember States and is set out in Article

56 (1) of the Treaty, which only allowsfor exceptions which are 'justified' ongrounds of public policy, public securityand public health.

(b) As regards the obligation containedin Article 2 of Decree No 50, it is onlyimposed in cases in which hospitality isoffered to a foreign national. It thuscreates discrimination between Italiancitizens and nationals of other Member

States, to the detriment of the latter.

In the light of the brevity of the periodlaid down and the gravity of the penaltieswhich may be imposed, the provision inquestion appears to be excessively severe.Furthermore, it violates the fundamentalprinciples set out in Articles 8 and 14 ofthe European Convention on HumanRights (the right to respect for privateand family life and the home; enjoymentof the rights and freedoms acknowledgedby the Convention without anydistinction based on national origin). Itconstitutes an unreasonable intrusion

into private life. In cases such as thepresent, hospitality is given for strictlypersonal reasons which, as a result of the

provision in question, are necessarilyrevealed to a public authority, withoutregard for the discretion which mustsurround the private reasons for humanaction.

Following its ratification by the MemberStates, the Convention is now legallybinding upon the Community, both inrelation to measures adopted byCommunity institutions and each timethat a provision of Community law isinvoked.

Finally, therefore, the Commissionproposes that an affirmative reply begiven to Questions (a), (b) and (c) and thatin addition it be stated that:

Articles 48 (3) and 56 (1) of the EECTreaty must be interpreted as meaningthat the following cannot be regarded asbeing justified on grounds of publicpolicy and public security:(1) National measures which oblige

nationals of other Member States to

notify their presence to theauthorities, where that obligation:— must be discharged within an

unreasonably short period fromthe time of entry into the territoryof the State;

— is in addition to other obligationsimposed on the said foreignnationals or on other personswhich are intended to ensure that

a check is kept on the population;and

— breach of which is punishable byimprisonment;

(2) National measures which obligeanyone giving board and lodging forpersonal reasons to a foreigner who isa national of a Member State to

inform the authorities within 24

hours of the identity of such person,and breach of which is punishable byimprisonment.

During the oral procedure, which tookplace on 6 May 1976, the defendants inthe main action, represented by BrunoNascimbene, Advocate of the Milan Bar,the Italian Government, represented by

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Ivo Maria Braguglia, Deputy StateAdvocate-General, the British Govern­ment, represented by Mr Gibson, of theTreasury Solicitor's Office, and theCommission of the EuropeanCommunities, represented byJean-Claude Seche, Legal Adviser, andEugenio de March, a member of theLegal Department, expanded thearguments which they had put forward inthe course of the written procedure.

On that occasion, the followingstatements were made in particular:

The Italian and British Governments

disagree with the argument put forwardby the Commission, that any citizen of aMember State moving within theterritory of another Member State, evenas a tourist, is protected by the Treaty asa person for whom services are intended.Taken as a whole, their argumentsmaintain that although Article 59 of theTreaty also refers to the person for whomthe services are intended, this is not forthe purpose for protecting that person assuch, but in order to enable those whoprovide the services to be protected, since

otherwise that protection would beincomplete. Furthermore, the Com­mission's view is contradicted by the factthat there are tourists such as campers orhitch-hikers who do not make use of the

services of the host country. In itsjudgment of 12 December 1974(Walrave v Association Union CyclisteInternationale, Case 36/74 1974 ECR1405) the Court ruled that the Treaty isonly concerned with economic activities.

Furthermore, the British Governmentpoints out that as regards the question ofthe extent to which the Court must

protect the fundamental rights referred toin the European Convention on HumanRights, a distinction must be madeaccording to whether the action inquestion is taken by the Community orby the Member States. In this respect, thelatter, who have a certain area ofdiscretion in connexion with the

implementation of the Convention, areonly liable to the institutions providedfor thereby.

The Advocate-General delivered his

opinion at the hearing on 2 June 1976.

Law

1 By order of 18 November 1975 received at the Court Registry on 1 December1975 the Pretura, Milan, referred to the Court under Article 177 of the EECTreaty a series of questions dealing in particular with the interpretation ofArticles 7 and 48 to 66 of that Treaty.

2 These questions have been raised within the context of criminal proceedingsagainst, on the one hand, a British national who spent several months in Italyand, on the other, an Italian national who gave her accommodation.

3 The said British national is alleged to have failed to discharge the obligationto report, within three days of her entry into the territory of the ItalianRepublic, to the police authorities of the place where she was staying 'in order

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to notify [her] presence and to make a declaration of residence'. Thisobligation is imposed by Italian legislation on all foreign nationals, with theexception of certain categories of employed workers from other MemberStates, and the penalties provided for in the event of a failure to discharge itare a maximum fine of Lit. 80 000 or a maximum of three months' detention

and, in addition, possible deportation from the national territory, entailing aprohibition on re-entry without the permission of the Minister for theInterior.

4 The Italian national is charged with having failed to inform the saidauthorities within twenty-four hours of the identity of the British national inquestion. This obligation is imposed by Italian legislation on 'any person whoprovides board and lodging, on whatever basis, to a foreign national or astateless person, ... or for any reason whatever takes such person into hisemployment', and failure to discharge it renders the person concerned liableto a maximum fine of Lit. 240 000 or a maximum of six months' detention.

5 The questions referred to the Court ask essentially whether such rules arecontrary to the provisions of Articles 7 and 48 to 66 of the Treaty, on theground that they constitute discrimination based on nationality and arestriction on freedom of movement for persons within the Community.

6 They also ask whether the above mentioned Community rules constitutefundamental principles which create individual rights and take precedenceover national rules to the contrary.

7 1. It is appropriate to deal with these questions as a whole.

8 Without giving the reason for the temporary residence in Italy of thedefendant in the main action or defining her position in relation to theprovisions of Community law which might be applicable to her the nationalcourt referred to the first three chapters of Title III of Part Two of the Treaty,which concern workers, the right of establishment and services, withoutmaking any distinction between those chapters.

9 Nevertheless comparison of these different provisions shows that, to theextent to which they may be applied in cases such as the present, they arebased on the same principles both in so far as they concern the entry into

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and residence in the territory of Member States of persons covered byCommunity law and the prohibition of all discrimination between them ongrounds of nationality.

10 It is for the national court to consider whether, and if so in what capacity, thedefendant in the main action is covered by the provisions of one or other ofthe abovementioned chapters.

11 2. Article 48 provides that freedom of movement for workers shall besecured within the Community.

Paragraph (3) of that article provides that it shall entail the right to enter theterritory of Member States, to move freely there, to stay there for the purposeof employment and to remain there after the end of this employment.

Articles 52 and 59 provide that restrictions on the freedom of establishmentand the freedom to provide services within the Community shall be abolishedby progressive stages which shall be completed by the end of the transitionalperiod.

12 These provisions, which may be construed as prohibiting Member States fromsetting up restrictions or obstacles to the entry into their territory of nationalsof other Member States, have the effect of conferring rights directly on allpersons falling within the ambit of the abovementioned articles, as later givencloser articulation by certain provisions adopted by the Council inimplementation of the Treaty.

13 Thus, Article 1 of Regulation No 1612/68 of 15 October 1968 on freedom ofmovement for workers within the Community (OJ, English Special Edition,1968 (II), p. 475) provides that any national of a Member State shall,irrespective of his place of residence, have 'the right to take up an activity asan employed person, and to pursue such activity, within the territory ofanother Member State'.

14 Article 4 of Directive No 68/360 of 15 October 1968 on the abolition of

restrictions on movement and residence within the Community for workersof Member States and their families (loc. cit. p. 485) provides that MemberStates shall grant 'the right of residence in their territory' to the personsreferred to and further states that as 'proof' of this right an individualresidence permit shall be issued.

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15 Further, the preamble to Directive No 73/148 of 21 May 1973 on theabolition of restrictions on movement and residence within the Communityfor nationals of Member States with regard to establishment and the provisionof services (OJ, L 172, p. 14) states that freedom of establishment can be fullyattained only 'if a right of permanent residence is granted to the persons whoare to enjoy freedom of establishment' and that freedom to provide servicesentails that persons providing and receiving services have 'the right ofresidence for the time during which the services are being provided'.

16 The provisions of the Treaty and of secondary Community law to whichreference has just been made implement a fundamental principle containedin Article 3 (c) of the Treaty, which states that, for the purposes set out inArticle 2, the activities of the Community shall include the abolition, asbetween Member States, of obstacles to freedom of movement for persons,services and capital.

These provisions take precedence over any national rule which might conflictwith them.

17 By creating the principle of freedom of movement for persons and byconferring on any person falling within its ambit the right of access to theterritory of the Member States, for the purposes intended by the Treaty,Community law has not excluded the power of Member States to adoptmeasures enabling the national authorities to have an exact knowledge ofpopulation movements affecting their territory.

18 Under the terms of Article 8 (2) of Directive No 68/360 and Article 4 (2) ofDirective No 73/148, the competent authorities in the Member States mayrequire nationals of the other Member States to report their presence to theauthorities of the State concerned.

Such an obligation could not in itself be regarded as an infringement of therules concerning freedom of movement for persons.

However, such an infringement might result from the legal formalities inquestion if the control procedures to which they refer were such as to restrictthe freedom of movement required by the Treaty or to limit the rightconferred by the Treaty on nationals of the Member States to enter and residein the territory of any other Member State for the purposes intended byCommunity law.

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19 In particular as regards the period within which the arrival of foreignnationals must be reported, the provisions of the Treaty are only infringed ifthe period fixed is unreasonable.

20 Among the penalties attaching to a failure to comply with the prescribeddeclaration and registration formalities, deportation, in relation to personsprotected by Community law, is certainly incompatible with the provisions ofthe Treaty since, as the Court has already confirmed in other cases, such ameasure negates the very right conferred and guaranteed by the Treaty.

21 As regards other penalties, such as fines and detention, whilst the nationalauthorities are entitled to impose penalties in respect of a failure to complywith the terms of provisions requiring foreign nationals to notify theirpresence which are comparable to those attaching to infringements ofprovisions of equal importance by nationals, they are not justified inimposing a penalty so disproportionate to the gravity of the infringement thatit becomes an obstacle to the free movement of persons.

22 In so far as national rules concerning the control of foreign nationals do notinvolve restrictions on freedom of movement for persons and on the right,conferred by the Treaty on persons protected by Community law, to enterand reside in the territory of the Member States, the application of suchlegislation, where it is based upon objective factors, cannot constitute'discrimination on grounds of nationality', prohibited under Article 7 of theTreaty.

23 Provisions which require residents of the host State to inform the publicauthorities of the identity of foreign nationals for whom they provideaccommodation, and which are for the most part connected with the internalorder of the State, can only be called into question from the point of view ofCommunity law if they place an indirect restriction on freedom of movementfor persons.

The foregoing observations concerning the obligations imposed on nationalsof other Member States are therefore equally valid as regards the abovementioned requirement.

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Costs

24 The costs incurred by the British and Italian Governments and theCommission of the European Communities, which have submittedobservations to the Court, are not recoverable and as these proceedings are, inso far as the parties to the main action are concerned, in the nature of a stepin the action pending before the national court, the decision as to costs is amatter for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Pretura, Milan, hereby rules:

1. Articles 48 to 66 of the Treaty and the measures adopted by theCommunity in application thereof implement a fundamentalprinciple of the Treaty, confer on persons whom they concernindividual rights which the national courts must protect andtake precedence over any national rule which might conflictwith them.

2. National regulations which

— require nationals of other Member States who benefit fromthe provisions of Articles 48 to 66 of the EEC Treaty toreport to the authorities of that State,

and

— prescribe that residents who provide accommodation forsuch foreign nationals must inform the said authorities ofthe identity of such foreign nationals

are in principle compatible with the provisions in questionprovided, first, that the period fixed for the discharge of thesaid obligations is reasonable and, secondly, that the penaltiesattaching to a failure to discharge them are notdisproportionate to the gravity of the offence and do notinclude deportation.

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3. In so far as such rules do not entail restrictions on freedom of

movement for persons, they do not constitute discriminationprohibited under Article 7 of the Treaty.

Lecourt Kutscher O'Keeffe

Mertens de Wilmars Pescatore Sørensen Mackenzie Stuart

Delivered in open court in Luxembourg on 7 July 1976.

A. Van Houtte

Registrar

R. Lecourt

President

OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 2 JUNE 1976 1

Mr President,Members of the Court,

1. On the subject of the movement ofworkers, the provision of services and theright of establishment, the Court hashitherto had occasion to concern itself

with the application, in particular cases,of the clause safeguarding public policy.The Judgments in Cases 41/74, VanDuyn, 67/74, Bonsignore, 36/75, Rutiliand 48/75, Royer, laid down basicprinciples and criteria on this subject andbegan to outline the limits of the powersof derogation exceptionally allowed tothe States in carrying out the task ofsafeguarding public policy on theirterritory.

In each of those cases, the references tothis Court for a preliminary ruling wereintended to enable the court of reference

to determine the compatibility withCommunity law of a single nationaladministrative act (denial of entry,expulsion order, territorial restriction onfreedom of residence) adopted by thenational authorities in the case of aliens

under the wide powers of discretionconferred upon them by nationallegislation concerning aliens.

In the present case, on the other hand,the decision which the Italian court is

called upon to make regardingcompatibility with Community law isdirectly and exclusively concerned withnational legislative acts. It must also, andat once, be emphasized that these actswere not adopted in exercise of anexceptional power of derogation, as inthe case of the state measures with whichthe abovementioned cases were

concerned, but were the expression of a

I — Translated from the Italian.

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