Language of document : ECLI:EU:C:2012:380

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 21 June 2012 (1)

Case C‑249/11

Hristo Byankov

v

Glaven sekretar na Ministerstvo na vatreshnite raboti

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

(Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Administrative prohibition on leaving the territory on account of the non-recovery of a debt owed to a private legal person — Principle of legal certainty with regard to administrative acts which have become final — Principles of equivalence and effectiveness)





1.        The Court of Justice of the European Union has already had occasion to rule on the compatibility with EU law of measures consisting in a prohibition on leaving the territory imposed by a Member State on one of its nationals because he owes a tax debt classified under national law as ‘considerable’. (2) In the present reference for a preliminary ruling the Court is requested to rule in a situation in which the debt is owed not to the national exchequer but to a private legal person. It is also asked about the circumstances in which EU law requires national courts to review the legality of a final administrative act which has not been contested before the courts, on the ground that it is contrary to EU law.

I –  Legal context

A –    Directive 2004/38/EC

2.        Recital 31 in the preamble to 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 (3) states that ‘[t]his 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 4(1) of Directive 2004/38 provides that ‘[w]ithout 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’.

4.        Article 27(1) and (2) of Directive 2004/38, which is contained in Chapter VI of that directive concerning restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health reads:

‘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.’

5.        Article 31 of Directive 2004/38 concerns procedural safeguards that must be afforded to citizens of the Union. In particular, Article 31(1) of the directive provides that ‘[t]he persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health’.

6.        Article 31(3) of Directive 2004/38 provides that ‘[t]he redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.’

7.        Article 32 of Directive 2004/38 lays down the temporal effects of exclusion. Article 32(1) provides:

‘Persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion.

The Member State concerned shall reach a decision on this application within six months of its submission.’

B –    Bulgarian law

1.      Law on Bulgarian identity documents

8.        Article 23(2) of the Law on Bulgarian identity documents (Zakon za balgarskite litschni dokumenti, ‘ZBLD’) (4) provides that ‘[e]very 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’.

9.        Article 23(3) continues ‘[n]o 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.’

10.      Article 76(3) of the ZBLD, in the version in force at the time the act at issue was adopted, provided that ‘[p]ersons who owe considerable debts, established by court order, to Bulgarian natural or legal persons or foreign natural or legal persons [may be prohibited from leaving the country and may be refused passports or similar documents], unless their personal assets cover the debt or they provide appropriate security’.

11.      It is apparent from the documents in the case that, by two successive measures taken by the Bulgarian legislature, Article 76(3) of the ZBLD was repealed, (5) although the legislature did not state the circumstances in which measures adopted on the basis of that provision would cease to have effect. (6) Binding administrative measures adopted on the basis of Article 76(3) of the ZBLD before it was repealed must therefore be regarded, for the purposes of the national legislation on identity documents, as continuing to have effect.

2.      The Code of Administrative Procedure

12.      Article 99 of the Code of Administrative Procedure (Administrativnoprotsesualen kodeks, ‘APK’) is contained in Chapter 7 of the APK concerning reopening of the procedure for the adoption of administrative acts. That article reads:

‘An individual or general administrative act which has not been contested before the courts may be annulled or amended by the next-higher-ranking administrative authority or, if the administrative act was not open to challenge by way of an administrative remedy, by the authority which adopted it, where:

1.       there has been a material breach of one of the conditions governing its legality;

7.       a decision of the European Court of Human Rights has established an infringement of the Convention on the Protection of Human Rights and Fundamental Freedoms’.

II –  The dispute in the main proceedings and the questions referred for a preliminary ruling

13.      The applicant in the main proceedings, Mr Byankov, is a Bulgarian national. On 17 April 2007 an order was imposed on him, containing a prohibition on leaving Bulgarian territory and on the issuing of passports or replacement documents, adopted on the basis of Article 76(3) of the ZBLD, which was then in force (‘the 2007 order’). At the request of a private bailiff, that measure was taken against Mr Byankov by the Director of the Regional Directorate of the Ministry of the Interior on account of a debt, classified as considerable, (7) owed to a Bulgarian private legal person and Mr Byankov’s inability to provide adequate security. Mr Byankov did not contest that order, which therefore became final.

14.      On 6 July 2010, more than three years after the administrative act at issue was adopted, Mr Byankov applied to the authority which had adopted the order for the administrative procedure to be reopened and that act to be annulled. Mr Byankov claimed at that time that the freedom of movement he enjoys as a citizen of the European Union may be restricted only in the circumstances provided for by EU law. The restriction imposed on him by the 2007 order prohibiting him from leaving the territory was not, in his view, imposed on grounds of public policy within the meaning of Directive 2004/38, which is clear inter alia from the judgment the Court delivered, after the adoption of the act at issue, in Jipa. (8)

15.      The Glaven Sekretar na Ministerstvoto na vatreshnite raboti (Principal Secretary of the Ministry of the Interior), to whom Mr Byankov’s application was forwarded, examined it as an application for annulment of a final administrative act, a procedure provided for in Article 99 of the APK. The competent administrative authority rejected the application in an order dated 20 July 2010.

16.      The applicant in the main proceedings therefore decided to bring the matter before the referring court, claiming that that order should be annulled and that his application for annulment of the 2007 order should be allowed.

17.      It is in those circumstances that the Administrativen sad Sofia-grad (Sofia Administrative Court) (Bulgaria) decided to stay proceedings and, by an order for reference received at the Court Registry on 19 May 2011, to refer the following questions to the Court for a preliminary ruling under Article 267 TFEU:

‘1.      In the light of the facts of the main proceedings, does the principle of sincere cooperation under Article 4(3) TEU in conjunction with Articles 20 TFEU and 21 TFEU require that a national provision of a Member State such as that at issue in the main proceedings — under which a final administrative act may be annulled in order to put an end to an infringement of a fundamental right which has been established by a decision of the European Court of Human Rights, which right is also recognised in EU law and concerns the freedom of movement enjoyed by nationals of the Member States — must also be applied with reference to the interpretation adopted by decision of the Court of Justice of the European Union of provisions of EU law which are relevant to the restrictions on the exercise of the aforementioned right, where the administrative act must be annulled in order to put an end to the infringement?

2.       Does it follow from Article 31(1) and (3) of Directive 2004/38/EC that, where a Member State has provided in its national law for a procedure for examining an administrative act which limits the right under Article 4(1) of the Directive, the competent administrative authority is required, at the request of the addressee of the administrative act, to examine that measure and to assess its legality with reference also to the case-law of the Court of Justice of the European Union on the interpretation of relevant provisions of EU law governing the conditions and limitations applicable to the exercise of that right, so as to ensure that the limitation imposed on the right is not disproportionate at the time when the review decision is adopted, where the administrative act imposing the limitation is already final at that time?

3.       Do the provisions of the second sentence of Article 52(1) of the Charter of Fundamental Rights of the European Union and Article 27(1) of Directive 2004/38 permit the application of a national provision which provides for the imposition of a limitation on the freedom of movement, within the European Union, of a national of a Member State of the European Union, solely on account of the existence of an unsecured liability in excess of a certain amount laid down by law that is owed to a private person (a commercial company), in the context of pending enforcement proceedings for the recovery of the claim, and without regard to the possibility, provided for in EU law, of the claim being recovered by an authority of another Member State?’

III –  Proceedings before the Court

18.      The European Commission is the only interested party to have submitted written observations to the Court.

IV –  Legal assessment

19.      In order to have a better understanding of the present case, it appears to me to be crucial to clarify, wherever possible, what is said by the referring court and to rearrange the questions it has referred for a preliminary ruling. I shall therefore begin by considering the third question, providing the Court with a relatively rapid assessment since recent judgments have, in my view, already given sufficient clarification on this matter. I shall go on to explain why there is no need to deal with the second question. Lastly, I shall consider the first question, after I have reworded it.

A –    Compatibility of the prohibition on leaving the territory with the law of the European Union

20.      The referring court raises the question whether or not the measure imposed on the applicant in the main proceedings is in accordance with EU law and provides a certain amount of information in that respect. First, it informs the Court that Article 76(3) of the ZBLD, which was the basis on which the measure prohibiting Mr Byankov from leaving the territory was adopted, entered into force before Bulgaria acceded to the European Union, and was not intended to transpose any provision of EU law. Moreover, it specifically states that Article 27(1) of Directive 2004/38 has not been transposed into national law as regards Bulgarian citizens. (9) It goes on to state that the measure addressed to Mr Byankov did not contain any reference to his personal conduct, did not provide any evidence to show that the imposition of such a measure was likely to lead to payment of the debt owed by Mr Byankov, and was not based on any grounds relating to public policy, public security or public health. For my part, I should like to highlight the following essential point: Mr Byankov’s debt is owed to a private legal person.

21.      With this background information in mind, I shall deal first of all with the question of the relevance in this case, as regards Bulgarian nationals, of the absence of transposition of Directive 2004/38, and then decide whether Mr Byankov’s situation does in fact fall within the scope of EU law. Lastly, it will be necessary to determine the circumstances in which a measure containing a prohibition on leaving national territory such as the 2007 order may be considered to comply with Article 27 of Directive 2004/38.

22.      In the first place, therefore, so far as the relevance of the absence of transposition of Directive 2004/38 as regards Bulgarian nationals is concerned, the Court has ruled that it had no relevance, in view of the obligation on a national court to give full effect to the rules of EU law and, where appropriate, to disregard national law that conflicts with that law, Article 27 of Directive 2004/38 having, in any event, direct effect. (10)

23.      Secondly, the situation of Mr Byankov, who seeks to travel from the Member State of which he is a national to another Member State, is undeniably covered by the right of citizens of the Union to move and reside freely in the Member States. (11) However, the right of free movement is not unconditional and may be restricted, inter alia, in the circumstances provided for in Directive 2004/38. Article 27(1) of that directive provides that the freedom of movement of citizens of the Union may be restricted on grounds of public policy, public security or public health, although those grounds may not be invoked to serve economic ends. Therefore, if EU law is not to preclude such a national measure as that which was imposed on Mr Byankov, it must be shown that it was adopted on one of the grounds listed above and subject to the further condition that that ground is not invoked to serve economic ends.

24.      Lastly, it remains to be determined what conditions a measure restricting the freedom of movement of a citizen of the Union must fulfil in order to remain compatible with EU law. In doing so I note that the 2007 order containing the prohibition on leaving the territory at issue in the main proceedings does not, as the referring court indeed mentions, provide any grounds, whether of public policy, public security or, less likely, public health. The administrative measure against Mr Byankov is based on just two findings: the existence of a debt owed to a private person and the inability of the debtor to provide security.

25.      The first ground of justification, essential in order to assess whether a measure restricting the freedom of movement of a citizen is compatible with EU law, is undeniably absent. It is true that the present reference proceedings, in which the Bulgarian Government did not wish to take part, lacks the specific clarification which that government could have usefully given to the Court regarding the objectives pursued by the national legislature at the time of the adoption and subsequent amendment (12) of the law which establishes the competence of the national administrative authorities to adopt measures such as the measure at issue in the main proceedings. The final assessment in this matter should therefore be left, to a very great extent, to the referring court. Without much certainty, that court has raised the possibility that the objective of that legislation — and, as a consequence, of the measure imposed on Mr Byankov — is to protect creditors. (13) Expressed in that way, the link between such an objective and public policy is not immediately obvious. In any event, even if there is some idea of protecting public policy underlying such an objective, the fact that pursuit of that objective does not serve exclusively economic ends is not clear from the order for reference. EU law, and in particular Article 27(1) of Directive 2004/38, expressly excludes the possibility of a Member State invoking public policy grounds to serve economic ends.

26.      On that point, the referring court is concerned about a possible discrepancy between the level of protection offered to creditors by the European Court of Human Rights and that offered by EU law, thus implying that the fact that Article 27(1) of Directive 2004/38 excludes invoking public policy grounds to serve economic ends does not ensure an adequate level of protection for the interests of creditors, whilst the European Court of Human Rights has held that such an objective constitutes a legitimate aim in protecting the rights of others capable of justifying a restriction on freedom of movement as enshrined in Article 2 of Protocol No 4 to the European Convention on the Protection of Human Rights and Fundamental Freedoms (14) (‘ECHR’), and whilst the Charter of Fundamental Rights of the European Union lays down the principle of equivalent protection of the rights and freedoms enshrined in the ECHR. The referring court adds that it might be considered that the situation at issue is one in which a fundamental freedom is limited for the purposes of protecting the rights and freedoms of others, as provided for in Article 52(1) of the Charter.

27.      With regard to those considerations, it would seem appropriate to point out to the referring court — the same court which referred questions to the Court for a preliminary ruling in Aladzhov — the distinction which must be drawn between the law deriving from the ECHR and EU law. I have already had occasion to state in that connection that if the European Court of Human Rights considered the objective at issue was a legitimate aim capable of justifying a restriction on freedom of movement, it is because the law of the ECHR and its protocols accepts that public policy may be invoked to serve economic ends and therefore does not provide for a restriction similar to that contained 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. (15) However, EU law does not limit itself to celebrating the victory of debtors’ interests over those of creditors and by no means overlooks the situation of creditors. If, as I consider, Article 27(1) of Directive 2004/38 precludes imposing a measure containing a prohibition on leaving the territory solely on the ground of the existence of a debt owed by one private person to another, the lesson to be drawn from this is also one which shows us that instruments used to protect the interests of creditors must, in principle, take a form other than that of a restriction on the debtor’s freedom of movement. There exists within EU law a legal arsenal capable of guaranteeing the rights of creditors without requiring any infringement of a debtor’s freedom of movement. (16) I do not therefore share the referring court’s concern about the existence of a level of protection that differs between the ECHR system and the European Union legal order.

28.      I would add that, even if the measure at issue in the main proceedings was clearly adopted on public policy grounds — and I am not convinced of this for the reasons set out above –, reliance on that justification is not sufficient in itself to make it, ipso facto, compatible with the requirements of EU law. The Court has repeatedly held that ‘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 affecting one of the fundamental interests of society’. (17) In that respect also, the 2007 order has been presented by the referring court as lacking any specific assessment of Mr Byankov’s conduct or of the genuine, present and serious nature of that conduct with regard to one of the fundamental interests of Bulgarian society which is nowhere defined in the documents of the case.

29.      Therefore, the total absence of any consideration linked to the specific case of the applicant in the main proceedings goes to confirm the theory of the automatic application of measures such as that imposed on Mr Byankov once a debt in excess of BGN 5 000 is found to exist and the debtor is unable to provide adequate security. Since the Court has ruled that ‘a national legislative or regulatory provision under which a decision to prohibit an individual from leaving the country solely on the ground that there is a tax liability is adopted automatically, without taking into account the personal conduct of that individual, would not meet the requirements of EU law’, (18) the same finding should also be made where the prohibition on leaving the territory has been adopted for an unlimited period solely on account of the existence of a debt of a private nature.

30.      For the foregoing reasons I suggest that the answer the Court should give to the third question should be that EU law precludes a legislative provision of a Member State which allows an administrative authority to prohibit a national of that State from leaving that State solely on account of a debt, regarded by national law as being considerable, which he owes to a private legal person where the aim of the measure at issue is not to respond to a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and where the objective thus sought serves only economic ends. In any event, even if a prohibition on leaving the territory such as that imposed on Mr Byankov in the case in the main proceedings had been adopted in the circumstances provided for in Article 27(1) of Directive 2004/38, Article 27(2) of that directive precludes such a measure where it is based solely on the existence of the debt without any specific assessment of the personal conduct of the person concerned and no reference is made to any threat which that conduct might constitute as regards public policy. It is for the national court to determine whether or not that is the case in the main proceedings.

B –    The irrelevance of Articles 31 and 32 of Directive 2004/38 for settling the dispute in the main proceedings

31.      In the second question referred to the Court for a preliminary ruling the referring court seeks, in essence, to ascertain whether Directive 2004/38 imposes an obligation to review even in a situation where the measure restricting the freedom of movement of the citizen of the Union has become final.

32.      In that regard, it must be noted that the referring court has not correctly identified the relevant provision of Directive 2004/38. Article 31 of that directive lays down the procedural safeguards which must be afforded to persons on whom measures infringing their freedom of movement are imposed at the time those measures are adopted. It is intended inter alia to ensure that such persons may exercise their right to an effective judicial remedy. In the present case, it is not denied that at the time the 2007 order containing the prohibition on leaving the territory was adopted legal remedies were available to Mr Byankov to contest that prohibition, before a court if appropriate. It is also common ground that Mr Byankov chose not to exercise his right to an effective judicial remedy at that time, with the consequence that the order became final for the purposes of Bulgarian law.

33.      The legal situation in the main proceedings, as described by the referring court in its second question, (19) cannot therefore be examined in the light of Article 31 of Directive 2004/38. It is Article 32 of that directive which governs the temporal effects of exclusion. It remains to be decided whether it is relevant in the present case.

34.      In my view, there is no doubt that the safeguards required by the EU legislature in Articles 31 and 32 of Directive 2004/38 must be afforded in the same way whether the prohibition is on entering or leaving the territory. Article 32 must therefore be interpreted beyond its letter, and the conclusion must be drawn that it applies in principle where a prohibition on leaving the territory is imposed on a citizen of the Union.

35.      Article 32 of Directive 2004/38 clearly requires Member States to establish a procedure for reviewing measures restricting the free movement of citizens of the Union adopted on the basis of Directive 2004/38. It must be possible for that procedure to be carried out at least every three years in the case of a final measure restricting the free movement of the person concerned where there has been a material change in the circumstances. Both the wording and the purpose of Article 32 of Directive 2004/38 call for the conclusion that, contrary to what the referring court has held, the fact that an act is final is not an obstacle to its being reviewed. It would, moreover make no sense to require a review only of acts which are in any event open to appeal.

36.      Since the 2007 order prohibiting Mr Byankov from leaving the territory dates back more than three years and has become final, there is reason to think that it ought to be reviewed on the basis of Article 32 of Directive 2004/38. However, two conditions required in order for that article to apply in the present case do not pertain. First, in order for the review procedure to be available the measure at issue must have been ‘validly adopted in accordance with [European Union] law.’ It is apparent from the assessment of the third question that, in my view, that is not the case. Secondly, in order to maintain a degree of legal stability, review as defined by Directive 2004/38 is limited to cases in which a ‘material change in the circumstances which justified the decision’ ordering exclusion has taken place. That material change may lie in the fact that the public policy threat which the person concerned may have constituted is no longer present or that the debt no longer exists. It must be stated that no such change has occurred in Mr Byankov’s case.

37.      Thus, the legal issue raised in the dispute in the main proceedings cannot be resolved on the basis of Directive 2004/38. The second question raised by the referring court is therefore, in those circumstances, irrelevant as regards settling that dispute.

C –    The circumstances in which EU law requires a review of the legality of an administrative act that has become final, without having been contested before the courts, on the ground that it is contrary to EU law

38.      The issue which arises in relation to the 2007 order is substantially different from that provided for in Article 32 of Directive 2004/38. That article concerns the case of a measure that was originally lawful under EU law but which subsequently proved no longer to comply with the conditions laid down in Directive 2004/38. By contrast, the situation in the main proceedings requires the Court to consider a measure which (a) must, in my view, be regarded as being incompatible, from the time of its adoption, with the substantive conditions laid down in Directive 2004/38, (b) has not been contested before the courts and, hence, has become final and (c) is now being contested by the person concerned although that challenge cannot be regarded as an application for lifting of the order within the meaning of Article 32 of Directive 2004/38.

39.      In those circumstances, I propose to carry out the assessment in three stages.

40.      First, a close examination of national law should enable the Court to target the relevant national provision more accurately for the purposes of assessing the third question referred for a preliminary ruling. Next, it will be necessary to take into account the fact that the measure prohibiting the applicant in the main proceedings from leaving the territory has not been contested before the courts. Lastly, and as a consequence, the examination will be carried out in the light of the principles of equivalence and effectiveness.

1.      The state of national law

41.      The situation in which the national court finds itself can be summarised as follows: before it is an application for annulment of an administrative decision rejecting the application made by the applicant in the main proceedings to reopen the administrative procedure which resulted in the adoption of the 2007 order containing a prohibition on leaving the territory, on the ground of the alleged inconsistency of that order with EU law. The national court therefore seeks to determine whether such rejection complies with EU law. Before ruling on that question it is necessary to clarify the national legal framework within which the decision refusing to reopen the administrative procedure is set in order to understand it more fully.

42.      It is apparent from the information provided by the referring court that the administrative procedure resulting in the adoption of the final individual administrative act which has not been contested before the courts may, by way of an exception, be reopened for the purposes of annulling or amending that act in the seven separate circumstances listed exhaustively in Article 99 of the APK. Of those seven circumstances, two in particular attracted the attention of the referring court, which considered it was appropriate to bring them to the attention of the Court of Justice.

43.      First there is Article 99(7) of the APK. As I understand it, that provision allows the person to whom the administrative act at issue is addressed to apply at any time, and if appropriate to the courts, for the administrative procedure to be reopened where a judgment of the European Court of Human Rights has shown that the act at issue infringes a fundamental right contained in the ECHR.

44.      That provision is worded in such a way that it expressly relates solely to judgments of the European Court of Human Rights. No equivalent provision exists in relation to judgments of the Court of Justice. However, such a provision is not necessary since, in contrast to the law deriving from the ECHR, EU law is distinguished by its two essential qualities: precedence (20) and direct effect. (21) It is settled case-law that ‘[t]he interpretation which, in the exercise of the jurisdiction conferred on it by Article [267 TFEU], the Court gives to a rule of [European Union] law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force’. (22) In view of the special characteristics of the European Union legal order and the particular nature of the mechanism of a reference for a preliminary ruling, the obligations incumbent on national courts as regards the circumstances in which they must review, on the ground of an infringement of EU law, the legality of an administrative act which has become final must be envisaged in a totally different way from a situation where the alleged illegality derives from a judgment of the European Court of Human Rights.

45.      It is clear from the relevant national provisions as presented by the referring court that the national law provides another option for reopening the administrative procedure which is different from that exclusively based on the case-law of the European Court of Human Rights and which is therefore more relevant in the present case.

46.      Article 99(1) of the APK provides that an administrative act which has become final may be annulled or amended if there is an essential infringement of one of the conditions governing its legality. Precisely because of the special characteristics of EU law which I mentioned above, the national concept of ‘essential infringement of legality’ must be construed as including cases in which the act is contrary to EU law.

47.      However, unlike Article 99(7) of the APK, the ground for reopening the procedure which is provided for in Article 99(1) of the APK cannot be invoked at any time by the person to whom that act relates. On the contrary, the annulment or amendment of an administrative act which has become final is, in that case, hedged round by strict conditions with regard to the power of initiative and the time-limit. Only the administrative authority which adopted the act, the public prosecutor or the ombudsman can take a decision — or make a request — to annul or amend that act, and do so within one month from the adoption of the act. It is apparent from the information provided by the referring court that the ground for reopening the administrative procedure provided for by Article 99(1) of the APK is conceived of as a ‘right’ pertaining to the administration. The appropriateness of implementing it is left to the discretion of the authorities with the power to initiate the annulment or amendment of the act; those authorities therefore have complete discretion in such circumstances and the person concerned cannot exercise his own initiative and claim infringement of the substantive legality of the act which affects his personal situation. It is apparent from the reference for a preliminary ruling that the administrative authority which ruled on the application to reopen the administrative procedure made by the applicant in the main proceedings found, in its decision of 2010, that the authority which adopted the 2007 order did not exercise the right provided for in Article 99(1) of the APK.

48.      In the light of those considerations, it is appropriate to reword the first question, which may be clearly inferred from the order for reference as seeking to establish whether the circumstances in which the redress procedure provided for in Article 99(1) of the APK meet the requirements of EU law.

2.      Irrelevance of the judgment in Kühne & Heitz

49.      In order to establish what obligations derive from EU law with regard to review of a final administrative act on the ground that it is contrary to EU law, the referring court considers at length the contributions of the judgment in Kühne & Heitz. In that judgment the Court held that the principle of sincere cooperation imposes on an administrative body an obligation to review a final administrative decision, where an application for such review is made to it, in order to take account of the interpretation of the relevant provision given in the meantime by the Court where (a) under national law, it has the power to reopen that decision, (b) the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance, (c) that judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of EU law which was adopted without a question being referred to the Court for a preliminary ruling, and (d) the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court. (23)

50.      First, so far as my suggestion to clarify the first question referred for a preliminary ruling is concerned, the point concerning the intervention of a judgment of the Court after the adoption of a final administrative act no longer appears to me to be central to settling the dispute in the main proceedings. Secondly, and in any event, the requirements set out in that judgment are applicable only where legal certainty in relation to res judicata must be weighed against the obligations of Member States to introduce and protect the rights which EU law guarantees for individuals. One of the characteristics of the present reference for a preliminary ruling is precisely that the 2007 order became final without being contested before the courts.

51.      The four cumulative conditions laid down by the Court in its judgment in Kühne & Heitz are therefore not relevant for the present case, since there is no question here of res judicata. (24)

3.      Assessment of the situation in the main proceedings with regard to the principles of effectiveness and equivalence

52.      EU law does not require, ‘[i]n accordance with the principle of legal certainty, … that administrative bodies be placed under an obligation, in principle, to reopen an administrative decision which has become final upon expiry of the reasonable time-limits for legal remedies or by exhaustion of those remedies’ (25) and ‘[c]ompliance with that principle prevents administrative acts which produce legal effects from being called into question indefinitely’. (26) However, Bulgarian law does make provision for reopening an administrative procedure where the administrative act which has become final is vitiated by a substantive illegality.

53.      Where it is a question of determining the obligations applying, under EU law, as regards review of an administrative act which has become final and it would appear to be contrary to EU law but it has not been contested before the courts, provided such a challenge to the legality of the act is permitted under national law, the Court bases its response on the principles of effectiveness and equivalence and recalls that ‘in the absence of relevant [European Union] rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under [European Union] law are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the [European Union] legal order (principle of effectiveness)’. (27) The situation in the main proceedings must therefore be examined in the light of those two principles.

54.      With regard to the principle of equivalence, this requires that all the rules applicable to appeals, including the prescribed time-limits, apply without distinction to appeals on the ground of infringement of EU law and to appeals on the ground of disregard of national law. (28) In that regard, the referring court has not raised the possibility that the special conditions laid down for implementing Article 99(1) of the APK may differ depending on whether the claim of illegality made against the final administrative act is infringement of EU law or infringement of domestic law.

55.      With regard to the principle of effectiveness the situation is more problematic. That principle requires that the rules applicable to the circumstances in which the validity of an administrative act which has become final may be challenged on the ground that it is contrary to EU law must not render the exercise of the rights conferred by EU law in that regard impossible or excessively difficult.

56.      At least two of those special conditions raise some questions: the time-limit and the persons entitled to initiate the reopening of the administrative procedure.

57.      With regard to the time-limit, I would point out that the Court has held that the Member States may, on the basis of the principle of legal certainty, require an application for review and withdrawal of an administrative decision that has become final and is contrary to EU law as interpreted subsequently by the Court to be made to the competent administrative authority within a reasonable period. (29) The time-limit must specifically be set in a manner consistent with the principles of effectiveness and equivalence. (30) It should be noted that the administrative procedure may be reopened on the basis of Article 99(1) of the APK only within one month from the adoption of the act which has not been contested before the courts, a time-limit which, in my view, does not meet the requirements associated with the principle of effectiveness.

58.      In any event, it is also with regard to the authorities empowered to initiate the reopening of the administrative procedure that the requirements associated with the principle of effectiveness do not appear to me to be met. Where infringement of the substantive legality of an administrative act which has become final and which has not been contested before the courts is the result of that act being contrary to EU law, the person to whom the act is addressed cannot apply for the administrative procedure to be reopened. As I stated above, only the administrative authority which adopted the act, the public prosecutor or the ombudsman are entitled to request or decide that the procedure should be reopened.

59.      Hedged round by over-restrictive conditions relating to the time-limit and the bodies which can lodge the application, the ground for reopening the administrative procedure provided for in Article 99(1) of the APK, by rendering the exercise of rights conferred by EU law excessively difficult or impossible in practice, does not make it possible to safeguard adequately the rights which individuals derive from EU law. Hence, it is for the national court to draw from this all the appropriate conclusions for the dispute in the main proceedings in order to rule on the application brought before it by the applicant in the main proceedings for annulment of the order refusing to reopen the administrative procedure.

60.      It follows from the above considerations that EU law precludes a legislative provision of a Member State under which the administrative procedure which has resulted in the adoption of an act which has become final and has not been contested before the courts can be reopened, where that act is contrary to EU law, only within a period of one month from the adoption of that act and only on the initiative of the administrative authority which adopted the act, the public prosecutor or the ombudsman, thus rendering excessively difficult or impossible in practice the exercise of rights conferred by EU law.

V –  Conclusion

61.      In the light of all the foregoing, I propose that the Court should answer as follows the questions referred by the Administrativen sad Sofia-grad:

(1)      European Union law precludes a legislative provision of a Member State which allows an administrative authority to prohibit a national of that State from leaving that State solely on account of a debt, regarded by national law as being considerable, which he owes to a private legal person where the aim of the measure at issue is not to respond to a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and where the objective thus sought serves only economic ends. In any event, even if a prohibition on leaving the territory such as that imposed on Mr Byankov in the case in the main proceedings had been adopted under the conditions laid down in 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, Article 27(2) of that directive precludes such a measure where it is based solely on the existence of the debt without any specific assessment of the personal conduct of the person concerned and no reference is made to any threat which that conduct might constitute as regards public policy. It is for the national court to determine whether or not that is the case in the main proceedings.

(2)      European Union law precludes a legislative provision of a Member State under which the administrative procedure which has resulted in the adoption of an act which has become final and has not been contested before the courts can be reopened, where that act is contrary to European Union law, only within a period of one month from the adoption of that act and only on the initiative of the administrative authority which adopted the act, the public prosecutor or the ombudsman, thus rendering excessively difficult or impossible in practice the exercise of rights conferred by European Union law.


1 – Original language: French.


2 – Case C‑434/10 Aladzhov [2011] ECR I‑11659.


3 – OJ 2004 L 158, p. 77.


4 – DV No 93 of 11 August 1998, as amended by DV No 105, 22 December 2006.


5 – See DV No 82 of 16 October 2009.


6 – In contrast to what the Bulgarian legislature made express provision for in respect of measures adopted on the basis of other repealed paragraphs of Article 76 of the ZBLD: see the Law amending and supplementing the Law on Bulgarian identity documents (DV No 26 of 6 April 2010).


7 – That is to say, according to Bulgarian law, in excess of BGN 5 000.


8 – Case C‑33/07 Jipa [2008] ECR I‑5157.


9 – See paragraph 17 of the Order for Reference.


10Aladzhov, paragraphs 31 and 32.


11Aladzhov, paragraphs 24 to 27.


12 – I would point out that the law repealed Article 76(3) of the ZBLD whilst leaving measures that had already been adopted on that basis to continue to have effect, unlike measures adopted on the basis of other paragraphs of Article 76 which had also been repealed.


13 – See paragraph 60 of the reference for a preliminary ruling.


14 – Eur. Court H. R., Riener v. Bulgaria judgment of 23 May 2006, application No 46343/99 (§§ 116 and 117), Ignatov v. Bulgaria judgment of 2 July 2009, application No 50/02 (§§ 35 and 37) and Gochev v. Bulgaria judgment of 26 November 2009, application No 34383/03 (§§ 48 and 49).


15 – See point 30 of my Opinion in Aladzhov.


16 – I would simply mention Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).


17Aladzhov, paragraph 35 and the case-law cited.


18Aladzhov, paragraph 43 and the case-law cited.


19 – For reference, the wording of the question refers to a ‘procedure for examining’, ‘the time when the review decision is adopted’ and, particularly, the fact that the administrative act is already final.


20 – Case 6/64 Costa [1964] ECR 585.


21 – Case 26/62 van Gend & Loos [1963] ECR 1.


22 – Case C‑453/00 Kühne & Heitz [2004] ECR I‑837, paragraph 21 and the case-law cited.


23Kühne & Heitz (paragraph 28 and operative part).


24 – That position is moreover confirmed by the Court in Joined Cases C‑392/04 and C‑422/04 i-21 Germany and Arcor [2006] ECR I‑8559, paragraphs 53 and 54.


25i-21 Germany and Arcor, paragraph 51 and the case-law cited.


26 – Ibid.


27i-21 Germany and Arcor, paragraph 57 and the case-law cited.


28i-21 Germany and Arcor, paragraph 62 and the case-law cited.


29 – Case C‑2/06 Kempter [2008] ECR I‑411, paragraph 59.


30Kempter, operative part.