Luxembourg, 29/11/2002 (Agence Europe) - As EUROPE has already pointed out (27 November, p.18), the Court of Justice amended its judicial practice in plenary. Hitherto, a Member State in a "terrorism" case could not refuse access to any part of its territory to an EU national. Since the Olazabal ruling of 26 November, Member States may now do so, under certain conditions.
Aitor Oteiza Olazabal is a Basque of Spanish nationality who, in 1996, had been banned by the Minister of the Interior from taking up residence in 31 French departments, so that he would be further away from the Spanish border and ETA's logistic bases.
EU nationals cannot be subject to an administrative measure of this kind unless they are a real and sufficiently serious threat to the fundamental interest of the society, the Court recalls. Furthermore, the Member State in question must prove that, if one of its nationals had committed the same deeds, it would have taken repressive measures towards that person.
The French "Conseil d'Etat" had sent the dossier on the Basque to the Court of Justice after the administrative tribunal and the administrative appellate court in Paris had ruled in favour of the Basque. These two jurisdictions had followed the precedent of the European Court of Justice's so-called "Rutili" case. In the name of the principle of non-discrimination and the free movement of persons, it was prohibited to refuse access by a Basque of Spanish nationality to any portion of a territory, since it would be impossible to ban any part of the French territory to a French national or to a Basque of French nationality.
France was determined that the Court should overturn its case law: Rutili, who had the same measure imposed upon him to keep him away from France, was an Italian trade unionist who had taken part in the events of May 1968 in France. He had hurt no one. The context has now changed, however. From social protest, we have moved on to terrorism, and the Rutili case law is now out of place, it explains. It was France that demanded the Court should hold a plenary meeting.
The dossier will be referred to the "Conseil d'Etat" which should break the ruling of the administrative appellate court in Paris. In 1999, the latter had confirmed cancellation of the ministerial decree banning access to the departments in the South West of France to Oteiza Olazabal. The administrative court or administrative tribunal - as experts seem to hesitate - should take over the dossier and verify whether the Basque is a real and sufficiently serious danger for society and whether, in the same case, a French Basque would have been subject to repressive measures. The Court did not specify what sort of measures it was referring to. Some experts believe that the Court has not wished to do what is known as "overturning an authority". Of the kind: "contrary to what I have always maintained, I now say …", as it has done in the past. It simply played down the Rutili ruling: the activities of the Italian trade unionist were essentially political and related to trade unions. Some even doubted it was necessary to invoke public law and order. In the case of the Basque, however, the Court speaks of criminal conspiracy and of disturbing law and order through intimidation and terror. In 1999, Aitor Oteiza had been found guilty of criminal conspiracy with terrorist intent after the kidnapping of an industrialist from Bilbao.
The hearing of the parties in this case had been turbulent and controversial due to the Spanish political context. The dossier was a sensitive one as, throughout proceedings and in the written evidence, the name of the representative for the Spanish government was not mentioned. At the hearing, the representative had violently countered the affirmations of Aitor Oteiza's lawyer, who said that the Spanish government practised torture. Spanish circles have long reproached the president of the Court, Gil Rodriguez Iglesias, for not having interrupted the lawyer. Other observers considered he was right not to intervene, on behalf of freedom of expression. (See also EUROPE of 8 May and 25/26 November). It should also be noted that, in the "Rutili" and "Oteiza" cases, it is a question of administrative measures. Only judicial measures may affect nationals as non-nationals.