The Court of Justice has held that a criminal penalty imposed in a Member State which consists in automatically expelling for life from that State's territory nationals of other Member States found guilty of committing an offence under its drugs laws constitutes an obstacle to the freedom to provide services and to the other fundamental freedoms guaranteed by the Treaty which cannot be justified on grounds of public policy.
While staying as a tourist in Crete, Donatella Calfa, an Italian national, was charged by the Criminal Court at Heraklion with possession for personal use and use of prohibited drugs. Having been found guilty of an offence under Greece's drugs laws she was sentenced to three months' imprisonment and expelled for life from Greece.
Under the Greek Law on Drugs, where a foreign national is convicted of a breach of that Law, the court must order his expulsion for life from Greek territory unless there are compelling reasons, in particular family reasons, for not doing so. That measure can only be revoked by a decision of the Minister of Justice in his discretion and after a minimum period of three years. Greek nationals, on the other hand, cannot be subject to an expulsion order. At the very most, they may, in the event of a serious offence, which is one sanctioned by at least five years' imprisonment, be forbidden from residing in certain parts of the territory for a period not exceeding five years.
The Arios Pagos (Supreme Court of Cassation), to which Ms Calfa appealed, referred a question to the Court of Justice for a preliminary ruling on the compatibility of the Greek Law at issue with the provisions of the EC Treaty relating to freedom to provide services.
The Court points out that the principle of freedom to provide services includes the freedom for a tourist to go to another Member State in order to receive a service there, without being subject to restrictions. Moreover, although in principle criminal legislation is a matter for which the Member States are responsible, such legislation must not create restrictions on the fundamental freedoms guaranteed by Community law.
According to the Court, the expulsion for life of foreign nationals provided for by the Greek Law does constitute an obstacle to the freedom to provide services and the other fundamental freedoms guaranteed by the Treaty.
The Court therefore examined whether such a penalty can be justified on grounds of public policy, which implies "a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society". It points out that a Member State may consider that the use of drugs, for example, may constitute a danger for society, justifying special measures against foreign nationals.
However, the Court considers that the public policy exception, like any derogation from a fundamental principle of the Treaty, must be interpreted restrictively. The European directive relating to special measures concerning the movement and residence of foreign nationals expressly limits the right of Member States to expel foreign nationals on grounds of public policy. Thus, such measures must be based exclusively on the personal conduct of the individual constituting a genuine threat to the requirements of public policy. The mere fact of a criminal conviction is not sufficient.
In its judgment the Court finds that expulsion for life, as provided for by the Greek legislation, is imposed automatically following a criminal conviction, without any account being taken of the personal conduct of the individual or of the existence of a danger for the requirements of public policy.
The Court concludes that legislation such as the Greek legislation at issue constitutes an obstacle to the freedom to provide services, to the freedom of movement for workers and to the freedom of establishment which cannot be justified on grounds of public policy.
Unofficial document for media use, which is not binding on the Court of Justice.
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