Brussels, 22/05/2012 (Agence Europe) -EU citizens who have committed particular crimes, such as those set out in Article 83 of the Treaty on the Functioning of the European Union (TFEU), may be deported from a host member state, even if they may have lived there for more than ten years. However, deportation can only be justified if any individual concerned represents “a genuine, present threat” affecting one of the “fundamental interests” of that state.
With this ruling delivered on 22 May in Case C-348/09, the Court of Justice of the EU came to the same conclusion as Advocate General Yves Bot in his opinion (see EUROPE 10569). In 2006, Mr I., an Italian national, who has lived in Germany since 1987, was sentenced to a term of imprisonment of seven years and six months for the sexual assault, sexual coercion and rape of an under-aged girl. He appealed to the Higher Administrative Court of North Rhine-Westphalia (Oberverwaltungsgericht für das Land Nordrhein-Westfalen), Germany, against the order, delivered in 2008, to leave Germany upon his release in July 2013 because of the seriousness of his crimes and the risk of his re-offending. To determine whether the offences committed by this individual may justify - within the meaning of EU law - his expulsion, the German court asked the Court to interpret the term “imperative grounds of public security” used in Directive 2004/38/EC (on the right of EU citizens to move and reside freely within the territory of the member states), which alone can justify the removal of an EU citizen resident in the territory of another member state for more than ten years.
In its ruling, the Court states that the concept of “imperative grounds of public security” presupposes not only the existence of a threat to public security, but also that such a threat is of a particularly high degree of seriousness, as reflected by the use of the words “imperative grounds”. The requirements of this concept must be interpreted strictly, so that their scope cannot be determined unilaterally by each member state without any control by EU institutions. In order to determine whether offences such as those committed by Mr I. may be covered by the concept of “imperative grounds of public security”, account must be taken of the fact that the sexual exploitation of children is one of the areas of particularly serious crime with a cross-border dimension (which also include inter alia terrorism, human trafficking, and arms trafficking) for which express provision is made in Article 83 of the TFEU. However, such offences may justify an expulsion measure only if the manner in which they were committed “discloses particularly serious characteristics”, which is a matter for the national court to determine on the basis of an individual examination of the particular case before it. Thus, the Court says, the issue of any expulsion measure is conditional on the requirement that “the personal conduct of the individual concerned must represent a genuine, present threat affecting one of the fundamental interests of society or of the host member state”, which implies, in general, the existence in the individual concerned of “a propensity to act in the same way in the future”. In the case of Mr I, where the expulsion measure has been adopted as a penalty or legal consequence of a custodial penalty, but is enforced more than two years after it was issued, the member states must check that the individual concerned is currently and genuinely a threat to public security and assess whether there has been any material change in the circumstances. Lastly, the Court points out that, before taking an expulsion decision on grounds of public policy or public security, the host member state must take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into that state and the extent of his/her links with the country of origin. (FG/transl.rt)