OPINION OF ADVOCATE GENERAL
delivered on 6 September 2011 (1)
Zamestnik director na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti
(Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria))
(Restriction on the freedom of movement of a Union citizen – Prohibition on leaving national territory imposed on a company representative on account of non‑payment of sums owed to a public authority – Concept of public policy – Proportionality)
1. The essential issue arising from this reference for a preliminary ruling is whether and, if so, to what extent a Member State may justify the imposition of a measure derogating from the freedom of movement of its own nationals on the ground of public policy by reason of the fact that the nationals in question have not settled their tax liabilities. The Court is therefore called upon to consider the interpretation of Article 27 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. (2)
I – The legal context
A – European Union law
1. Directive 2004/38
2. Recital 31 of the preamble to Directive 2004/38 states that ‘this Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union’.
3. Article 1 of Directive 2004/38 states that the Directive lays down:
‘(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.’
4. Article 4(1) of Directive 2004/38 states that ‘without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport … shall have the right to leave the territory of a Member State to travel to another Member State’.
5. Article 27 of Directive 2004/38 is in Chapter VI – Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health.
6. Article 27(1) and (2) of Directive 2004/38 states:
‘1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.’
B – National law
1. Law on Bulgarian identity documents
7. Article 23(2) of the Law on Bulgarian identity documents (Zakon za balgarskite lichni dokumenti, ‘ZBLD’) (3) provides that ‘every Bulgarian citizen shall have the right to leave and return to the country, with an identity card, via the internal borders of the Republic of Bulgaria with the Member States of the European Union and in the situations provided for under international agreements’.
8. Article 23(3) adds that ‘no restrictions shall be placed on the right under paragraph 2 other than such as are in accordance with law and have as their objective the protection of national security, public policy, public health or the rights and freedoms of other citizens’.
9. Under Article 75(5) ZNLD, permission to leave the country is not to be granted to ‘persons in relation to whom an application has been made for a prohibition under Article 182(2)(2)(a) and Article 221(6)(1)(a) and (b) of the [Code of Taxation and Insurance Procedure]’.
2. The Code of Taxation and Insurance Procedure
10. Article 182(2)(2)(a) of the Code of Taxation and Insurance Procedure (Danachno-osiguritelen protsesualen kodeks, ‘DOPK’) (4) provides that in conjunction with the notification provided for in paragraph (1) or as a result thereof, the authority referred to in paragraph (1) may, if the amount of the debt exceeds [BGN 5 000] and if there is no security for an amount equal to the principal and interest (“security” means “financial provision” or a “guarantee” for the principal sum and the interest) require the authorities of the Ministry for the Interior not to permit the debtor or the members of its supervisory and management bodies to leave the country and also to withdraw their passport or not to issue a passport or any other similar document permitting the holder to cross national frontiers’.
11. Article 182(4) DOPK provides that ‘the measures referred to in paragraph (2) may, depending on the assessment by the competent authority, be taken simultaneously or separately, taking account of the amount of the debt or the debtor’s conduct until it is finally discharged’.
12. Article 221(6) DOPK states that ‘in cases where the measures referred to in Article 182(2)(2) or (4) are not taken by the competent authority, the enforcement officer may, if the amount of the debt exceeds [BGN 5 000] and if there is no security for an amount equal to or exceeding the principal and interest:
1. require the authorities of the Ministry of the Interior:
(a) not to permit the debtor or the members of its supervisory and management bodies to leave the country;
(b) to withdraw their passport or not to issue a passport or any other similar document permitting the crossing of national frontiers’.
13. Article 269c, point 4 DOBK states that ‘a request for mutual assistance shall not be made if the total debt or debts is less than the equivalent of [EUR 1 500] in BGN’.
II – The main proceedings and the questions referred
14. The applicant in the main proceedings, Mr Aladzhov, a Bulgarian national, is one of the three managers of a commercial company whose tax liability to the Bulgarian Treasury exceeds BGN 5 000. He is also the sales manager of another company, work which often requires him to travel abroad.
15. The tax liability in question appears to have become chargeable on 10 October 1995, the date of a tax assessment relating to the State’s claim for value‑added tax and customs duty. A recovery order was issued on 20 August 1999 and a formal demand for payment followed on 10 April 2000, notified on 26 September 2001. Enforcement proceedings were initiated in 2002, but were unsuccessful. On 17 June 2010 the Bulgarian tax authorities stated in a letter, in the context of judicial proceedings, that the commercial company’s total tax liability was BGN 44 449, that is to say, initial tax of BGN 7 721 and interest of BGN 38 728. The authorities also stated that, in the context of the enforcement proceedings, the attachment of the debtor company’s bank accounts had been unsuccessful as there were no funds in the accounts. Likewise, since it had not been possible to locate the company vehicles they could not be seized.
16. By letter of 30 July 2009 the public enforcement officer of the National Public Revenue Agency, in accordance with his powers under national law, applied to the Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti (Deputy Director of the Sofia Directorate for Internal Affairs, Ministry for the Interior) for the imposition of an administrative measure on the applicant in the main proceedings, in his capacity as a manager of the commercial company which owed tax, prohibiting him from leaving Bulgaria until payment of, or provision of security for, the State’s claim in full.
17. Accordingly, the present reference for a preliminary ruling arises from an application by Mr Aladzhov to the referring court for the annulment of the contested decision.
18. On encountering difficulties in the interpretation of European Union law, the Administrativen sad Sofia-grad (Administrative Court, Sofia) decided to stay proceedings and, by order of reference of 6 September 2010, to refer the following questions to the Court for a preliminary ruling on the basis of Article 267 TFEU:
‘(1) Must the prohibition on leaving the territory of a Member State of the European Union which has been imposed on a national of that State as the manager of a commercial company registered under the law of the State concerned, on account of an unpaid debt owed o the public authorities by that company be regarded as falling within the scope of the ground of protection of “public policy” provided for in Article 27(1) of Directive 2004/38 … in the circumstances of the main proceedings and where the following circumstances also obtain:
– the constitution of that Member State makes no provision for restricting the freedom of movement of natural persons for the purpose of protecting “public policy”;
– the ground of “public policy” as a basis for imposing the aforementioned prohibition is contained in a national law which was adopted in order to transpose another legislative act of the European Union;
– the ground of “public policy” within the meaning of the aforementioned provision of the directive also includes the ground of “protection of the rights of other citizens” where a measure is adopted to secure the budgetary revenue of the Member State by means of the settlement of debts to a public authority?
(2) In the circumstances of the main proceedings, does it follow from the limitations and conditions laid down in respect of the exercise of freedom of movement for Union citizens and from the measures adopted in accordance with European Union law to give them effect that national legislation under which the Member State imposes on one of its nationals, in his capacity as manager of a commercial company registered under the law of the Member State concerned, an administrative coercive measure in the form of a “prohibition on leaving the country”, on account of unpaid debts owed to that State by that company which are classified as “considerable” under its law, is permissible where the procedure for mutual assistance between the Member States under Directive [2008/55/EC] and Regulation [(EC) No 1179/2008] may be applied for the purpose of recovering the debt?
(3) In the circumstances of the main proceedings, are the principle of proportionality and [the restrictions on] the freedom of movement of Union citizens and the measures adopted in accordance with European Union law to give them effect and, as the case may be, the criteria contained in Article 27(1) and (2) of Directive 2004/38 … to be interpreted as meaning that, where a commercial company registered under the law of a Member State owes a debt to a public authority classified as a “considerable debt” under the law of that State, they allow a natural person who is the manager of the company concerned to be prohibited from leaving that Member State where the following circumstances obtain:
– the existence of a “considerable” debt owed to a public authority is regarded as a genuine, present and sufficiently serious threat affecting a fundamental interest of society, in the light of which the legislature has considered it necessary to introduce the specific measure of a “prohibition on leaving the country”;
– no provision is made for an assessment of circumstances connected with the personal conduct of the manager or with an infringement of his fundamental rights, such as his right to pursue an occupation involving travelling abroad under a separate employment relationship;
– no account is taken of the consequences for the commercial activities of the debtor company and the possibilities of paying the debt to the State after the prohibition has been imposed;
– the prohibition was imposed on the basis of an application which is mandatory if it certifies that a “considerable” public-law debt exists which is owed by a specific commercial company, that the debt is not secured to an extent sufficient to cover the principal and the interest, and that the person to whom the prohibition is to be applied is a manager of that commercial company;
– the prohibition lasts until such time as the debt to the public authority is fully paid or secured, but no provision is made for a review of that prohibition on application by the addressee to the authority which imposed the prohibition or for account to be taken of the limitation period applicable to the debt?’
III – The procedure before the Court
19. Only the applicant in the main proceedings and the European Commission have submitted written observations to the Court.
IV – Discussion of law
A – Preliminary remarks
20. First, the Court has already had occasion to interpret Article 27 of Directive 2004/38 in Jipa, (5) in which the applicant in the main proceedings had been prohibited from leaving national territory by a decision of the authorities of his Member State on the ground of illegal residence in another Member State, which led to his repatriation to his Member State of origin. Although the judgment in Jipa is not on its own sufficient to reply to the questions referred in the present case, it must be observed that the Court adopted certain positions in the earlier case which it will be very helpful to set out before considering the present case.
21. In that judgment the Court reaffirmed that the status of citizen of the Union conferred upon the nationals of Member States by virtue of European Union law grants them the right of freedom of movement, which necessarily includes the right to leave their State of origin, (6) which is also expressly provided for by Article 4(1) of Directive 2004/38. (7) It follows that the situation of a Union citizen who is prevented by a national measure from leaving his State of origin is per se covered by the right of citizens of the Union to move and reside freely in the Member States. (8) However, the Court immediately recognised that ‘the right of free movement of Union citizens is not unconditional but may be subject to the limitations and conditions imposed by the Treaty and by the measures adopted to give it effect’. (9) Those limitations and conditions stem from Directive 2004/38, in particular Article 27(1), which permits the Member States to ‘restrict the freedom of movement of Union citizens … on grounds inter alia of public policy or public security’. (10) In view of the parallel established by the Court between the right of entry and the right to leave, it is clear that Article 27(1) of Directive 2004/38 is the basis on which the Member States are authorised to restrict, subject to conditions, the freedom of Union citizens to leave their national territories.
22. In Jipa, the court went on to observe that, ‘while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, the fact remains that, in the Community context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the Community institutions’. (11)
23. Referring to the actual words of Article 27 of Directive 2004/38, the Court added that, according to its case-law, ‘the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat to one of the fundamental interests of society’. (12) Furthermore, as any derogation from the freedom of movement must be interpreted strictly, any restriction of it will be tolerated only if it is ‘exclusively based on the personal conduct of the individual concerned, and justifications that are isolated from the particulars of the case in question or that rely on considerations of general prevention cannot be accepted’, (13) so that ‘a measure limiting the exercise of the right of free movement must … be adopted in the light of considerations pertaining to the protection of public policy … in the Member State imposing the measure’. (14)
24. In the light of those principles formulated by the Court, it is now necessary to assess the situation which has given rise to the present reference.
25. The case file does not indicate clearly whether Mr Aladzhov has previously exercised his freedom of movement, although it is reasonable to assume that his work as the sales manager of a company which, according to what he says, requires him as a general rule to travel abroad, has led him to exercise that freedom. In any event, with regard to the right to leave the territory of a Member State as guaranteed by European Union law, there are two main reasons why the prior exercise of the freedom of movement cannot be decisive. First, Article 4(1) of Directive 2004/38 guarantees the right to leave without requiring prior exercise of the freedom of movement. (15) Secondly, as a matter of logic, freedom of movement would be meaningless to the point of absurdity if Union citizens could rely on a right to leave their Member State of origin only subject to the prior condition that they had already left and then returned to that State. Although that was precisely the situation in Jipa, (16) taking the foregoing remarks into account I suggest that the observations in that judgment be extended to the situation of a citizen who has not previously travelled within the Union. That conclusion is confirmed by Article 3 of the Directive, which provides that the Directive applies to ‘all Union citizens who move to or reside in a Member State other than that of which they are a national’. Therefore Mr Aladzhov’s situation is undoubtedly covered by the right of citizens of the Union to move and reside freely in the Member States, as guaranteed by Directive 2004/38.
26. Therefore the main problem arising from this case lies elsewhere. The Court is called upon to decide whether the freedom of movement of Union citizens may be restricted, entirely in compliance with Directive 2004/38, for reasons relating to the recovery of sums owed to a public authority which, in the present case, take the form of tax liabilities. In other words, the question is whether and, if so, to what extent, a Member State may rely on public policy in order to justify a prohibition on leaving national territory imposed on one of its nationals on the ground that he owes a debt which is deemed by the Public Treasury to be substantial. There are two stages, which I regard as quite separate, in the argument to be conducted for assessing whether such a measure complies with the requirements of Article 27 of Directive 2004/38. It is necessary to determine, first, whether the justification may fall within those referred to by Article 27(1) and, secondly, whether the measure in question is proportionate by reference to the criteria in Article 27(2), which will be undertaken when discussing the second and third questions referred, which will have to be considered together.
B – The first question
27. Before beginning the first stage of the detailed assessment, I must point out that the Bulgarian Government did not wish to intervene in this preliminary ruling procedure. The Court therefore does not have the specific information which the Bulgarian Government could have provided concerning the aims of its own legislation which is at issue in the main proceedings. In view of the information available in the case file, I think it would be hazardous for the Court to make a final assessment of the said aims which would be based only on presumptions, since the final assessment must, to a very large extent, be left to the referring court.
28. Moreover, I note that, in the order for reference and in the wording of the first question, the referring court mentions a difference between the Constitution of the Republic of Bulgaria, which does not provide for justification on the ground of public policy, and the national legislation under which the contested decision was imposed on the applicant in the main proceedings, which does provide for such a ground. However, the measure imposed on Mr Aladzhov was adopted on the basis of the combined provisions of the ZBLD and the DOPK. The question of whether the non-inclusion of a reference to public policy in the wording of the relevant article of the Constitution of the Republic of Bulgaria is a result of a conscious intention on the part of the constitutional authority to limit even more than the directive itself the scope of the restrictions on the freedom of movement is an issue which must be settled by the political and/or judicial authorities of Bulgaria and is therefore outside the jurisdiction of the Court. The same applies to the question of whether the legislation is compatible with the requirements of the Bulgarian Constitution. That is why I shall be concerned, in the following observations, to determine whether the ban on leaving the territory of a Member State of the Union, imposed on a citizen of that State in his capacity as a manager of a commercial company registered in accordance with the law of that State, by reason of an unpaid debt of that company to a public authority may, in principle, be covered by the ground of public policy within the meaning of Article 27(1) of Directive 2004/38, which is reproduced in the national law on which the prohibition is based.
29. Having said that, let me proceed to the substance of the first question.
30. I shall begin by considering in the context of the present case the implications of the judgment in Riener v. Bulgaria delivered by the European Court of Human Rights, (17) which in that case had to give a ruling on the compatibility with Article 2 of Protocol No 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) (18) of a ban on leaving Bulgarian territory imposed on an Austro-Bulgarian national on the ground that she owed a debt to a public authority of a very considerable amount. (19) The European Court of Human Rights held that the aim of the Bulgarian legislation was to secure the payment of taxes (20) and that the measure adopted therefore had the purpose of ‘maintaining of ordre public and protection of the rights of others’ within the meaning of the ECHR. (21) If the European Court of Human Rights gave judgment in those terms, that is because the law of the ECHR and its protocols accepts that public policy may be invoked even to serve economic ends (22) and therefore does not provide for a restriction similar to that in the second sentence of Article 27(1) of Directive 2004/38. Consequently the legal system of the European Union tolerates interference with the freedom of movement of Union citizens in much more limited cases and offers a higher level of protection than that offered by the ECHR system.
31. It is a requirement of Article 27 of Directive 2004/38 that the justifications underlying a plea of public policy aim to preserve ‘the fundamental interests of society’, (23) but the invocation of such grounds in order ‘to serve economic ends’ is ruled out. (24) Consequently, the problem here is to identify what aim is actually being pursued by the national legislation. On that point the only information available has been provided by the referring court which, without further explanation, observes only that the Bulgarian Republic ‘adopts measures for the settlement of debts owed to a public authority with a view to securing budgetary revenue, since securing such resources is a matter of public interest’. (25) The wording of the question referred does no more than state that the measure was adopted with a view to securing the budgetary revenue of the Member State, but also mentions that the recovery of debts to a public authority has the aim, in national law, of ‘protecting the rights of other citizens’. The existence of the debtor company’s tax liability is also described as a threat ‘affecting a higher interest of society’, but that is not specified.
32. In this situation, there are two possible interpretations.
33. Either one can take the view that the recovery of tax liabilities has no effect other than to compel a debtor to pay his debt. That is a way of thinking which tends to treat the State in the same way as any businessman who seeks to recover a debt which has been withheld. The State would be pursuing an aim which is essentially, if not entirely, an economic aim. If the only objective is to secure State revenue, a justification on the grounds of public policy on the basis of Article 27(1) of Directive 2004/38 would clearly not be permitted. (26)
34. Alternatively, the problem could be considered differently, having regard to the wholly singular character of the creditor in the present case and the purpose of the tax. It cannot be ruled out that there may be considerations other than those of an economic nature underlying the Bulgarian legislation because, in paying his tax liabilities, any taxpayer is aware that he belongs to a community with which he thereby shows his solidarity. It is true that the payment of tax serves essentially to finance a number of State activities or infrastructures and, if that were all, it would be easy to conclude that the payment of tax has an economic purpose. However, that approach seems to me simplistic because it is not a matter of financing any activities of any kind or any infrastructures of any kind. Beyond the recovery of tax, it is the durability of the essential functions of the State that is, or at least may be, at stake, at the same time as the foundations of social solidarity and the willingness of the community in question to live together. Perhaps that is the interpretation to be given to the idea expressed by the referring court when it says that the objective pursued by the measure at issue in the main proceedings is also ‘protecting the rights of other citizens’. In any case, when all is said and done, the idea that the function of tax is to procure resources for the State with a view to redistribution in order to ensure a minimum degree of social cohesion seems to me very far from purely economic reasoning, characterized by seeking personal profit at any price.
35. In my opinion, therefore, the fundamental collective interests which are being defended when it is a matter of the State levying or recovering tax cannot be routinely and automatically reduced to their economic dimension alone, as the Court has previously accepted that the fact that rules are of such a nature as to make it possible to achieve, in addition to objectives falling within the scope of a ground of derogation, other objectives of an economic nature which may also be pursued, does not exclude reliance on that ground of derogation. (27)
36. In all cases it is for the Member State whose legislation or regulations are at issue to explain and clarify in detail the reasons why it considers that the non‑recovery of tax liabilities would actually jeopardise its public policy. Although not opposed to the recognition of a possible connection between the recovery of tax liabilities and the maintenance of public policy, I nevertheless think that public policy can be invoked only in quite exceptional circumstances requiring a particularly precise demonstration and explanation, by the Member State concerned, of the reasons why it considers that its public policy is threatened by the non‑recovery of a tax liability, particularly as the amount of the debt which may give rise to a measure restricting freedom of movement, although considered substantial in national law, does not seem to me, prima facie, to be such as to call into question the fundamental interests to which I have just referred.
37. Two sets of conclusions may therefore be drawn from the foregoing remarks. First, in my opinion it is not possible to rule out a priori and in all circumstances the possibility that the recovery of tax liabilities may, in certain circumstances, be covered by a derogation based on public policy. Secondly, a ruling on the question whether public policy may be invoked in the main proceedings as justification for a measure derogating from the freedom of movement of Union citizens will require the referring court to consider the general philosophy of its national tax system and the particular context of the disputed measure. Finally, I take the liberty of pointing out that an assessment of the compatibility of the measure at issue in the main proceedings with European Union law does not stop at determining the ground of the justification claimed since that measure must also meet the other requirements of Article 27(2) of Directive 2004/38, which will precisely be dealt with in relation to the second and third questions.
38. Therefore, having regard to the shortcomings of the case file, I suggest that the reply to the first question from the referring court should be that a prohibition on leaving the territory of a Member State of the European Union which has been imposed on a national of that State as the manager of a commercial company registered under the law of that Member State, on account of an unpaid debt owed by that company to a public authority, may in principle be regarded as falling within the scope of the public policy ground of derogation within the meaning of Article 27(1) of Directive 2004/38, provided that recovery of the debt pursues higher interests other than economic interests which are actually jeopardised by non-recovery, that being for the national court to ascertain by determining the reasons underlying the national legislation upon which the said measure is based and also the particular circumstances of the adoption of that measure.
C – The second and third questions
39. With the second and third questions, which should be considered together, the referring court asks, in essence, whether the measure prohibiting the applicant in the main proceedings from leaving the territory in question fulfils the conditions of Article 27(2) of Directive 2004/38. Under that paragraph, it is not sufficient that the objective pursued by a measure restricting the freedom of movement of a Union citizen falls within the scope of the justifications set out in Article 27(1). Such a measure must also pass the test of proportionality and be based on the personal conduct of the individual concerned, which must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society which the measure aims to protect.
40. With regard to the question upon which the Court is expressly asked by the referring court to give a ruling, whether the measure at issue in the main proceedings complies with the principle of proportionality, the Court of Justice has consistently held that it is necessary to determine whether a restriction by a national measure on the right to leave is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it. (28) In other words, to meet the requirements of Article 27(2), the measure imposed on the applicant in the main proceedings must be necessary and appropriate to attain the objective pursued. (29) In addition, the consistent and systematic nature of the legislation on which the restrictive measure is based must also be taken into account in determining whether it is proportionate. (30)
41. It will therefore be observed that the measure in question was imposed on the applicant in the main proceedings in his capacity as a manager of the debtor company, although the company has three managers who, taking together what is said by the referring court and the applicant, have the same powers to represent the company ‘jointly and severally’. Again, according to the referring court, the imposition of the measure precisely on Mr Aladzhjov is ‘subjective and not based on specific criteria’. In addition, depriving the applicant in the main proceedings of his right to leave when the income which he could earn from his occupation depends precisely on exercising that right appears, to an extent, inconsistent with the very purpose of recovering tax liabilities. Therefore it is at least permissible to question whether the national law is systematic and consistent.
42. As I have already said, it is also necessary to decide whether the debt to be recovered is actually significant. The threshold above which Bulgarian law authorises the tax authorities to require the Ministry of the Interior to prohibit a person from leaving Bulgaria is BGN 5 000, that is to say, roughly the equivalent of EUR 2 500. Here again, I doubt whether all debts of that amount owed to the State are really such as to jeopardise fundamental interests which are other than economic, to which I referred in relation to the first question, save in a quite exceptional situation which the referring court would, here again, have to assess particularly thoroughly.
43. Finally, it is difficult to argue that there are no alternative measures which are equally effective but have less effect on freedom of movement. The measure imposed on the applicant is for an unlimited period and does not appear to be open to review until the debt is recovered or security for the amount owed is provided. The possibility of reviewing the decision or of appealing against it appears, according to the referring court, to be limited or even non-existent. Furthermore, any interference with freedom of movement entails potential interference with a number of fundamental rights which depend on the freedom to come and go. Therefore the measure adversely affecting the applicant is particularly onerous while being only relatively effective if, as appears to be the case with regard to Mr Aladzhov, it has the effect of preventing him from pursuing his occupation. He points out, rightly, that attachment of his salary could be envisaged. In addition, all the alternative measures offered by European Union law must be taken into account. In that connection, account should obviously be taken, as the referring court rightly mentions, of the possibility of using the procedure for mutual assistance for the recovery of claims relating, in particular, to value-added tax and customs duties, (31) those being precisely the tax and the duties which gave rise to the debt owed by the company of which Mr Aladzhov is one of the managers. That procedure gives the Bulgarian State a guarantee that, even if Mr Aladzhov exercises his right to leave in order to settle on a lasting basis in another Member State, he would not be able, notwithstanding that change, to escape his tax obligations to the Bulgarian Treasury.
44. In the light of all the foregoing, in my opinion it must therefore be concluded that there is a disproportionate interference in the right to leave of the person concerned. Consequently one can conclude that, if public policy can be invoked as justification for a measure derogating from the freedom of movement of a Union citizen, as provided for by Directive 2004/38, Article 27(2) of the Directive precludes such a measure on the sole ground that it is contrary to the principle of proportionality.
45. Furthermore, should the Court decide, notwithstanding that conclusion, to continue examining the requirements laid down by Article 27(2), it will also be found that the contested measure is not based on the strictly personal conduct of the applicant in the main proceedings and was not adopted in view of the fact that he represents a genuine, present and sufficiently serious threat affecting a fundamental interest of Bulgarian society. As the national law stands at present, it appears that, if the enforcement officer applies to the competent authorities of the Ministry of the Interior to impose a prohibition on leaving Bulgaria, those authorities must do so. That is a case of non‑discretionary power. It is sufficient for the enforcement officer to state in his application that there is a tax liability exceeding BGN 5 000, that the enforcement procedure has been initiated, and that the debtor company and the manager to whom the decision imposing the prohibition on leaving is addressed are identified. Consequently the application by the enforcement officer is not based on Mr Aladzhov’s personal conduct. The enforcement officer has not established that Mr Aladzhov represents a genuine, present and sufficiently serious threat. Nor could it be argued that the mere fact of owing tax exceeding BGN 5 000 represents such a threat because the second subparagraph of Article 27(2) clearly lays down that it is personal conduct, not a factual situation, that represents a threat. Furthermore, it is clear from the case file that the contested decision contains no reference to individual, current factors in the personal conduct of the party concerned (such as, for example, a situation of repeated large-scale fraud or fraudulently procuring his own bankruptcy) which could justify such a decision in relation to himself alone.
46. In those circumstances, it must be concluded that Article 27(2) of Directive 2004/38 precludes national legislation which provides for the adoption by a Member State of an administrative coercive measure in the form of a ‘prohibition on leaving the country’ imposed on one of its nationals, in his capacity as manager of a commercial company registered under the law of the Member State concerned, on account of an unpaid debt owed by that company to that State when it appears from the case file that, first, the decision can be seen to be contrary to the principle of proportionality and, secondly, the said measure is not based on an assessment of the personal conduct of the individual concerned as representing a genuine, present and sufficiently serious threat.
V – Conclusion
47. In the light of all the foregoing, I suggest that the Court’s reply to the questions referred by the Administrativen sad Sofia-grad should be as follows:
(1) A prohibition on leaving the territory of a Member State of the Union which has been imposed on a national of that State in his capacity as a manager of a commercial company registered under the law of that Member State on account of an unpaid debt owed by that company to a public authority may in principle fall within the scope of the public-policy ground of derogation within the meaning of Article 27(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, provided that recovery of the debt pursues higher interests other than economic interests which are actually jeopardised by non‑recovery, that being for the national court to ascertain by determining the reasons underlying the national legislation upon which the said measure is based and also the particular circumstances of the adoption of that measure.
(2) Article 27(2) of Directive 2004/38 precludes national legislation which provides for the adoption by a Member State of an administrative coercive measure in the form of a ‘prohibition on leaving the country’ against one of its nationals, in his capacity as a manager of a commercial company registered under the law of the Member State concerned, on account of an unpaid debt owed by that company to that State and classified as ‘considerable ‘under its law, when it appears from the case file that, first, the decision can be seen to be contrary to the principle of proportionality and, secondly, the said measure is not based on an assessment of the personal conduct of the individual concerned as representing a genuine, present and sufficiently serious threat.