Case C-430/10

Hristo Gaydarov

v

Director na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti

(Reference for a preliminary ruling from the Administrativen sad Sofia-grad)

(Freedom of movement of a Union citizen – Directive 2004/38/EC – Prohibition on leaving national territory due to a criminal conviction in another country – Drug trafficking – Whether measure can be justified on grounds of public policy)

Summary of the Judgment

1.        Citizenship of the European Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Right to leave and to enter – Field of application

(Art. 21 TFEU; European Parliament and Council Directive 2004/38, Art. 4(1))

2.        Citizenship of the European Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Restriction on the right to enter and reside for reasons of public policy or public security

(Art. 21 TFEU; European Parliament and Council Directive 2004/38, Art. 27)

1.        The status of a citizen of the Union under Article 20 TFEU bestows on a national of a Member State rights pertaining to that status, including against his Member State of origin, and in particular the right conferred by Article 21 TFEU to move and reside freely within the territory of the Member States. The right of freedom of movement includes both the right for citizens of the European Union to enter a Member State other than that of origin and the right to leave the State of origin. The fundamental freedoms guaranteed by that treaty would be rendered meaningless if the Member State of origin could, without valid justification, prohibit its own nationals from leaving its territory in order to enter the territory of another Member State.

Since Article 4(1) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States expressly provides that all Union citizens with a valid identity card or passport have the right to leave the territory of a Member State to travel to another Member State, the situation of a person prohibited from leaving a State of which he is a national therefore falls within the ambit of that directive.

(see paras 24-27)

2.        Article 21 TFEU and Article 27 of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States do not preclude national legislation that permits the restriction of the right of a national of a Member State to travel to another Member State in particular on the ground that he has been convicted of a criminal offence of narcotic drug trafficking in another State, provided that (i) the personal conduct of that national constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, (ii) the restrictive measure envisaged is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it and (iii) that measure is subject to effective judicial review permitting a determination of its legality as regards matters of fact and law in the light of the requirements of European Union law.

(see para. 42, operative part)