JUDGMENT OF 4. 12. 1974 — CASE 41/74

individuals were prevented fromrelying on it before the nationalcourts and if the latter were preventedfrom taking it into consideration asan element of Community law.Article 177, which empowers nationalcourts to refer to the Court questionsconcerning the validity and interpret­ation of all acts of the Communityinstitutions, without distinction,implies furthermore that these actsmay be invoked by individuals in thenational courts.

It is necessary to examine in everycase whether the nature, generalscheme and wording of the provisionin question are capable of havingdirect effects on the relations betweenMember States and individuals.

3. Article 3 (1) of Council Directive No64/221 of 25 February 1964 on thecoordination of special measuresconcerning the movement andresidence of foreign nationals whichare justified on grounds of publicpolicy, public security or publichealth confers on individuals rightswhich are enforceable by them in thenational courts of a Member State

and which the latter must protect.

4. The concept of public policy in thecontext of the Community andwhere, in particular, it is used as ajustification for derogating from a

fundamental principle of Communitylaw, must be interpreted strictly, sothat its scope cannot be determinedunilaterally by each Member Statewithout being subject to control bythe institutions of the Community.Nevertheless, the particular circum­stances justifying recourse to theconcept of public policy may varyfrom one country to another andfrom one period to another, and it istherefore necessary in this matter toallow the competent nationalauthorities an area of discretion

within the limits imposed by theTreaty.

5. Article 48 of the EEC Treaty andArticle 3 (1) of Directive No 64/221must be interpreted as meaning that aMember State, imposing restrictionsjustified on grounds of public policy,is entitled to take into account, as amatter of personal conduct of theindividual concerned, the fact that theindividual is associated with some

body or organization the activities ofwhich the Member State considers

socially harmful but which are notunlawful in that State, despite the factthat no restriction is placed uponnationals of the said Member State

who wish to take similar employmentwith the same bodies or organiza­tions.

In Case 41/74

Reference to the Court under Article 177 of the EEC Treaty by the ChanceryDivision of the High Court of Justice, England, for a preliminary ruling inthe action pending before that court between

YVONNE VAN DUYN

and

HOME OFFICE

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VAN DUYN v HOME OFFICE

on the interpretation of Article 48 of the EEC Treaty and Article 3 of CouncilDirective 64/221/EEC of 25 February 1964 on the coordination of specialmeasures concerning the movement and residence of foreign nationals whichare justified on grounds of public policy, public security or public health.(OJ of 4. 4. 1964, p. 850).

THE COURT

composed of: R. Lecourt, President C. Ó Dálaigh and Mackenzie Stuart,Presidents of Chambers A. M. Donner, R. Monaco, J. Mertens de Wilmars,P. Pescatore, H. Kutscher and M. Sørensen (Rapporteur), Judges.

Advocate-General: H. Mayras,Registrar: A. Van Houtte,

gives the following

JUDGMENT

Facts

The order for reference and the writtenobservations submitted pursuant toArticle 20 of the Protocol on the Statute

of the Court of Justice of the EEC maybe summarized as follows:

I — Facts and procedure

1. The Church of Scientology is a bodyestablished in the United States ofAmerica, which functions in the UnitedKingdom through a college at EastGrinstead, Sussex. The British Govern­ment regards the activities of the Churchof Scientology as contrary to publicpolicy. On 25 July 1968, the Minister ofHealth stated in the House of Commonsthat the Government was satisfied thatScientology was socially harmful. Thestatement included the following

remarks: 'Scientology is a pseudo-philo­sophical cult ... The Government aresatisfied having reviewed all theavailable evidence that Scientology issocially harmful. It alienates members offamilies from each other and attributes

squalid and disgraceful motives to allwho oppose it; its authoritarianprinciples and practice are a potentialmenace to the personality and well-beingof those so deluded as to become itsfollowers; above all its methods can be aserious danger to the health of thosewho submit to them. There is evidencethat children are now beingindoctrinated. There is no power underexisting law to prohibit the practice ofScientology; but the Government haveconcluded that it is so objectionable thatit would be right to take all steps withintheir power to curb its growth...Foreign nationals come here to study

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Scientology and to work at the so-calledCollege in East Grinstead. TheGovernment can prevent this underexisting law ... and have decided to doso. The following steps are being takenwith immediate effect ...

(e) Work permits and employmentvouchers will not be issued to foreignnationals ... for work at a Scien­tology establishment.'

No legal restrictions are placed upon thepractice of Scientology in the UnitedKingdom nor upon British nationals(with certain immaterial exceptions)wishing to become members of or takeemployment with the Church ofScientology.

2. Miss van Duyn is a Dutch national.By a letter dated 4 May 1973 she wasoffered employment as a secretary withthe Church of Scientology at its collegeat East Grinstead. With the intention of

taking up that offer she arrived atGatwick Airport on 9 May 1973 whereshe was interviewed by an immigrationofficer and refused leave to enter theUnited Kingdom. It emerged in thecourse of the interview that she hadworked in a Scientology establishment inAmsterdam for six months, that she hadtaken a course in the subject ofScientology, that she was a practisingScientologist and that she was intendingto work at a Scientology establishmentin the United Kingdom.

The ground of refusal of leave to enterwhich is stated in the document entitled

'Refusal of Leave to Enter' handed bythe immigration officer to Miss vanDuyn reads: 'You have asked for leaveto enter the United Kingdom in order totake employment with The Church ofScientology, but the Secretary of Stateconsiders it undesirable to give anyoneleave to enter the United Kingdom onthe business of or in the employment ofthat organization'.

The power to refuse entry into theUnited Kingdom is vested in immigration

officers by virtue of section 4 (1) of theImmigration Act 1971. Leave to enterwas refused by the immigration officeracting in accordance with the policy ofthe Government and with Rule 65 of therelevant Immigration Rules for Controlof Entry which Rules have legislativeforce. Rule 65 reads:

'Any passenger except the wife or childunder 18 of a person settled in theUnited Kingdom may be refused leave toenter on the ground that the exclusion isconducive to the public good where —

(a) the Secretary of State has personallyso directed, or

(b) from information available to theImmigration Officer it seems right torefuse leave to enter on that ground— if, for example, in the light of thepassenger's character, conduct orassociations it is undesirable to givehim leave to enter.'

3. Relying on the Community rules onfreedom of movement of workers andespecially on Article 48 of the EECTreaty, Regulation 1612/68 and Article 3of Directive 64/221, 1 Miss van Duynclaims that the refusal of leave to enterwas unlawful and seeks a declarationfrom the High Court that she is entitledto stay in the United Kingdom for thepurpose of employment and to be givenleave to enter the United Kingdom.

Before deciding further, the High Courthas stayed the proceedings and requestedthe Court of Justice, pursuant to Article177 of the EEC Treaty, to give apreliminary ruling on the followingquestions:

1. Whether Article 48 of the Treatyestablishing the European EconomicCommunity is directly applicable soas to confer on individuals rightsenforceable by them in the Court of aMember State.

1 — Article 3 (1) of the Directive reads: 'Measurestaken on grounds of public policy or of publicsecurity shall be based exclusively on the per­sonal conduct of the individual concerned.'

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VAN DUYN v HOME OFFICE

2. Whether Directive 64/221 adopted on25 February 1964 in accordance withthe Treaty establishing the EuropeanEconomic Community is direclyapplicable so as to confer on indivi­duals rights enforceable by them inthe Courts of a Member State.

3. Whether upon the proper interpret­ation of Article 48 of the Treatyestablishing the European EconomicCommunity and Article 3 of Directive64/221/EEC a Member State in the

performance of its duty to base ameasure taken on grounds of publicpolicy exclusively on the personalconduct of the individual concerned isentitled to take into account asmatters of personal conduct

(a) the fact that the individual is orhas been associated with somebody or organization theactivities of which the Member

State considers contrary to thepublic good but which are notunlawful in that State

(b) the fact that the individualintends to take employment inthe Member State with such a

body or organization it being thecase that no restrictions areplaced upon nationals of theMember State who wish to take

similar employment with such abody or organization.

4. The order of the High Court of 1March 1974 was registered at the Courton 13 June 1974.

Written observations have been

submitted on behalf of Miss van Duynby Alan Newman, on behalf of theUnited Kingdom by W. H. Godwin andon behalf of the Commission by itsLegal Adviser, A. McClellan.

Having heard the report of theJudge-Rapporteur and the opinion of theAdvocate-General, the Court decided toopen the oral procedure without anypreparatory inquiry.

II — Written observationssubmitted to theCourt

On the First Question

Miss van Duyn and the Commissionsubmit that Article 48 of the EEC Treatyis directly applicable. They rely inparticular on the judgments of the Courtof 4 April 1974 in Commission v FrenchRepublic (Case No 167/73, [1974] ECR359) and of 21 June 1974 in Reyners vBelgian State (Case No 2/74, not yetpublished).

In the light of the judgment in Case No167/73 the United Kingdom makes nosubmission on this question.

On the Second Question

Miss van Duyn submits that Article 3 ofDirective 64/221 is directly applicable.She observes that the Court has alreadyheld that, in principle, directives aresusceptible of direct application. Sherefers to the judgments of the Court of 6October 1970 in Grad v FinanzamtTraunstein (Case No 9/70, Recueil 1970,p. 825) and of 17 December 1970 in SpaSACE v Italian Ministry of Finance(Case No 33/70, Recueil 1970, p. 1213).She submits that the criterion as to

whether a directive is directly applicableis identical with the criterion adopted inthe case of articles in the Treaty itself,and she observes that the Court has notfelt itself constrained to hold that a givenarticle in the Treaty is not directlyapplicable merely because in its formalwording it imposes an obligation on aMember State. She refers to thejudgments of the Court of 19 December1968 in Salgoil v Italian Ministry (CaseNo 13/68, Recueil 1968, p. 661) and of16 June 1966 in Lütticke GmbH vHauptzollamt Sarrelouis (Case No57/65, Recueil 1966, p. 293).

Miss van Duyn further submits that adirective which directly affects anindividual is capable of creating directrights for that individual where its

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provisions are clear and unconditionaland where, as to the result to beachieved, it leaves no substantialmeasure of discretion to the MemberState. Provided that these criteria arefulfilled it does not matter

(a) whether the provision in thedirective consists of a positiveobligation to act or of a negativeprohibition, or

(b) that the Member State has a choiceof form and methods to be adoptedin order to achieve the stated result.

As to (a), it is implicit in the Court'sjudgments in the cases of Lutticke andSalgoil (already cited) that an article ofthe Treaty which imposes a positiveobligation on a Member State to act iscapable of direct applicability and thesame reasoning is valid in relation todirectives.

As to (b), she notes that Article 189 ofthe Treaty expressly draws a distinctionin relation to directives between bindingeffect of the result to be achieved and

the discretionary nature of the methodsto be adopted.

She contends that the provisions ofArticle 3 fulfil the criteria for direct

applicability. She refers to the preambleto the Directive which envisages a directapplicability when it states: 'whereas, ineach Member State, nationals of otherMember States should have adequatelegal remedies available to them inrespect of the administration in suchmatters ...' (i.e. when a Member Stateinvokes grounds of public policy, publicsecurity or public health in mattersconnected with the movement orresidence of foreign nationals).

The only 'adequate legal remedy'available to an individual is the right toinvoke the provisions of the Directivebefore the national courts. A decision tothis effect would undoubtedly strengthenthe legal protection of individual citizensin the national courts.

The Commission submits that aprovision in a directive is directly

applicable when it is clear andunambiguous. It refers to the judgmentsin the Grad and SACE cases (alreadycited).The Commission observes that a

Community Regulation has the sameweight with immediate effect as nationallegislation whereas the effect of adirective is similar to that of those

provisions of the Treaty which createobligations for the Member States. Ifprovisions of a directive are legally clearand unambiguous, leaving only adiscretion to the national authorities for

their implementation, they must have aneffect similar to those Treaty provisionswhich the Court has recognized asdirectly applicable.

It therefore submits that

(a) the executive of a Member State isbound to respect Community law

(b) if a provision in a directive is notcovered by an identical provision innational law, but left, as to the resultto be achieved, to the discretion ofthe national authority, the discre­tionary power of that authority isreduced by the Communityprovision

(c) in these circumstances and giventhat to comply with a directive it isnot always indispensable to amendnational legislation it is clear thatthe private individual must have theright to prevent the nationalauthority concerned from exceedingits powers under Community law tothe detriment of that individual.

According to the Commission, Article 3is one of the provisions of Directive64/221 having all the characteristicsnecessary to have direct effect in theMember State to which it is addressed.And it further recalls that the difficultyof applying the rules in a particular casedoes not derogate from their generalapplication.

In this context the Commission

examines the Judgment of 7 October1968 of the Belgian Conseil d'État in the

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VAN DUYN v HOME OFFICE

Corveleyn case (CE 1968, No 13.146arrêt 7. 10. 1968, p. 710).

As the British authorities have not

adopted the wording of Article 3 of theDirective to achieve the required result,the Commission submits, by virtue ofArticle 189 of the Treaty and in the lightof the case-law of the Court, that Article3 is a directly applicable obligationwhich limits the wide discretion given toimmigration officers under Rule 65 inthe 'Statement of Immigration Rules'.The Commission proposes the followinganswer to the question: Where aprovision is legally clear andunambiguous as is Article 3 of Directive64/221, such a provision is directlyapplicable so as to confer on individualsrights enforceable by them in the Courtsof a Member State.

The United Kingdom recalls that Article189 of the EEC Treaty draws a cleardistinction between regulations anddirectives, and that different effects areascribed to each type of provision. Ittherefore submits that prima facie theCouncil in not issuing a regulation musthave intended that the Directive shouldhave an effect other than that of aregulation and accordingly should not bebinding in its entirety and not be directlyapplicable in all Member States.

The United Kingdom submits thatneither the Grad not the SACE decision

is authority for the proposition that it isimmaterial whether or not a provision iscontained in a regulation, directive ordecision. In both cases the purpose ofthe directive in question was merely tofix a date for the implementation ofclear and binding obligations containedin the Treaty and instruments madeunder it. Those cases show that inspecial circumstances a limited provisionin a directive could be directlyapplicable. The provisions of theDirective in the present case are whollydifferent. Directive 64/221 is far broaderin scope. It gives comprehensiveguidance to Member States as to allmeasures taken by them affectingfreedom of movement for workers and it

was expressly contemplated in Article 10that Member States would put into forcethe measures necessary to comply withthe "provisions of the Directive. Indeedthe very terms of Article 3 (1) itselfcontemplate the taking of measures.The United Kingdom examines the onlyfour cases in which national courts to itsknowledge have considered the questionof the direct applicability of theDirective. It submits that little assistancecan be obtained from these cases. Interalia it points out that the true effect ofthe Corveleyn case (already cited) hasbeen the subject of considerable debateamong Belgian jurists and the betterview appears to be that the Conseild'État did not decide that the Directive

was directly applicable but applied theBelgian concept of public order whichitself required international obligationsof Belgium to be taken into account.

On the Third Question

Miss van Duyn points out that the firstpart of the question assumes a situationwhere an organization engages inactivities which are lawful in the State.

The question does not necessarilyassume that the individual concernedintends to continue this association. It is

sufficient that he has in the past beenassociated. In this respect Miss van Duynrecalls that even if the individual had

been associated with an illegalorganization and, by virtue of hisactivities therein, had been convicted ofa crime, that circumstance would not, byvirtue of the provisions of Article 3,paragraph 2, of Directive 64/221, initself be sufficient grounds for theMember State to take measures based onpublic policy to exclude the individual.Merely belonging to a lawfulorganization, without necessarily takingpart in its activities, cannot, in hersubmission, amount to 'conduct'.Conduct implies 'activity.' Moreover, theactivities of the organization in questionare not, merely because the individual isor has been a passive member, 'personal'to the individual concerned. To hold

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JUDGMENT OF 4. 12. 1974 — CASE 41/74

otherwise would mean that a MemberState could exclude an individual merelybecause, in the distant past, he had for abrief period perfectly lawfully belongedto a somewhat extreme political orreligious organization in his ownMember State.

In regard to the second part of thequestion, Miss van Duyn recalls thatfreedom of movement of persons is oneof the fundamental principles establishedby the Treaty and that discrimination ongrounds of nationality is prohibited inArticle 7. Exemptions to thesefundamental principles must beinterpreted restrictively.She points out that the question assumesdiscrimination on grounds of nationalityand that it assumes a situation where anindividual whose past activity has beenblameless seeks entry into a MemberState in order to work for anorganization in whose employment thenationals of the Member State are

prefectly free to engage. She submits thatif an organization is deemed contrary tothe public good the Member State isfaced with a simple choice: either to baneveryone, including its own nationals,from engaging in employment with thatorganization, or to tolerate nationals ofother Member States as it tolerates itsown nationals engaging in suchemployment.The Commission asserts that the

concepts 'public policy' and 'personalconduct' contained in Article 48,paragraph 3 of the Treaty and Article 3of Directive 64/221 are concepts ofCommunity law. The must first beinterpreted in the context of Communitylaw and national criteria are onlyrelevant to its application.

In practice, if each Member State couldset limits to the interpretation of publicpolicy the obligations deriving from theprinciple of freedom of movement ofworkers would take a variety of forms indifferent Member States. It is onlypossible for this freedom to bemaintained throughout the Communityon the basis of uniform application in all

the Member States. It would beinconsistent with the Treaty if oneMember State accepted workers fromanother Member State while its ownworkers did not receive uniformtreatment as regards the application ofthe rules in respect of public order inthat other State.

The Commission submits that thediscrimination by a Member State ongrounds of public policy againstnationals of another Member State forbeing employed by an organization theactivities of which it considers contraryto the public good when it does notmake it unlawful for its own nationals to

be employed by such organization iscontrary to Article 48, paragraph 2 ofthe Treaty. Article 3 (1) of the Directiveis precise in stating that measures takenon grounds of public policy shall bebased exclusively on the personalconduct of the individual concerned.Personal conduct which is acceptablewhen exercised by a national of oneMember State cannot be unacceptable,under Community law, when exercisedby a national of another Member State.It is for consideration that Article 3precludes a Member State, as a generalcontingency against some potential harmto society, from invoking public policyas a ground for refusing entry when thepersonal conduct of the individual is orwas not contrary to public policy in theMember States concerned. It is notdenied that membership of a militantorganization proscribed in the hostMember State would be an element to

be taken into account in assessingpersonal conduct for the purpose ofjustifying a refusal of entry on groundsof public policy or public security.

As to the first part of the question theUnited Kingdom deals with threeproblems.

The first problem is whether anindividual's past or present associationwith an organization can be regarded asan aspect of his personal conduct. TheUnited Kingdom asserts that it is ofimportance that a Member State in

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VAN DUYN v HOME OFFICE

relation to public policy should beentitled to consider a person'sassociations with a body or organization.The Member State should be entitled toexclude that person in appropriate cases,i.e. if the organization is consideredsufficiently undesirable from theviewpoint of public policy and theassociation by that person with thatorganization is sufficiently close.

Secondly the United Kingdom submitsthat a measure which is taken on

grounds of public policy and whichprovides for the exclusion from aMember State of an individual on thegrounds of that individual's associationwith an organization is compatible withthe requirement of Article 3 (1). Itaccepts that the intention underlyingthat Article must have been to exclude

collective expulsions and to require theconsideration by the national authoritiesof the personal circumstances of eachindividual in each case. Nevertheless it isnot inconsistent with that intention for aMember State to take into account anindividual's association with an

organization and, in appropriate cases,to exclude the individual by reason ofthat association. Whether, in any givencase, such exclusion is justified willdepend on the view the Member Statetakes of the organization.As a practical matter the processes ofadmitting persons to enter a MemberState must be administered by a largenumber of officials. Such officials cannotbe expected to know all that theGovernment may know about aparticular organization and it isinevitable that such officials must act in

accordance with directions given by theGovernment and laying down broadprinciples on which the officials are toact. It is inevitable also that suchdirections may relate to particularorganizations which a Government mayconsider contrary to the public good.

Thirdly the United Kingdom submitsthat the fact that the activities of theorganization are not unlawful in aMember State though considered by the

Member State to be contrary to thepublic good does not disentitle theMember State from taking into accountthe individual's association with the

organization. It must be a matter foreach State to decide whether it shouldmake activities of an organization, or theorganization itself, illegal. Only the Stateis competent to make such evaluationand it will do so in the light of theparticular circumstances of that State.Thus, as is common knowledge, theUnited Kingdom practises a considerabledegree of tolerance in relation toorganizations within the UnitedKingdom. In the case of Scientology thereasons why the United Kingdomregards the activities of the Scientologistsas contrary to public policy wereexplained in the statement made inParliament on 25 July 1968. TheScientologists still have their WorldHeadquarters in the United Kingdom sothat Scientology is of particular concernto the United Kingdom.

The United Kingdom notes that twoproblems arise in connection with thematter referred to in subparagraph (b) ofthe question.The first problem is whether the factthat an individual intends to take

employment with such an organization isan aspect of that individual's personalconduct. It is submitted that such an

intention is a very material aspect of theindividual's personal conduct.

The second problem is whether the factthat no restrictions are placed uponnationals of the Member State who wishto take similar employment with such anorganization disentitles the MemberState from taking this intention intoaccount.

The United Kingdom points out that it isinevitable that in respect of the entryinto a state of persons, there must besome discrimination in favour of thenationals of that state. For a national,however undesirable and potentiallyharmful his entry may be, cannot berefused admission into his own state. Astate has a duty under international law

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JUDGMENT OF 4. 12. 1974 — CASE 41/74

to receive back its own nationals. TheUnited Kingdom refers inter alia toArticle 5 (b) (ii) of the UniversalDeclaration of Human Rights whichstates: 'Everyone has the right to leaveany country, including his own, and toreturn to his country'. It observes that,for example, a Member State would bejustified in refusing to admit a drugaddict who is a national of another State

even though it would be obliged to

admit a drug addict who was one of itsown nationals.

Miss van Duyn, represented by AlanNewman, the United Kingdom, repre­sented by Peter Gibson, and the Com­mission, represented by AnthonyMcClellan, submitted oral observationsat the hearing on 23 October 1974.The Advocate-General delivered his

opinion at the hearing on 13 November1974.

Law

1 By order of the Vice-Chancellor of 1 March 1974, lodged at the Court on13 June, the Chancery Division of the High Court of Justice of England,referred to the Court, under Article 177 of the EEC Treaty, three questionsrelating to the interpretation of certain provisions of Community lawconcerning freedom of movement for workers.

2 These questions arise out of an action brought against the Home Office bya woman of Dutch nationality who was refused leave to enter the UnitedKingdom to take up employment as a secretary with the 'Church ofScientology'.

3 Leave to enter was refused in accordance with the policy of the Governmentof the United Kingdom in relation to the said organization, the activitiesof which it considers to be socially harmful.

First question

4 By the first question, the Court is asked to say whether Article 48 of theEEC Treaty is directly applicable so as to confer on individuals rightsenforceable by them in the courts of a Member State.

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VAN DUYN v HOME OFFICE

5 It is provided, in Article 48 (1) and (2), that freedom of movement forworkers shall be secured by the end of the transitional period and that suchfreedom shall entail 'tha abolition of any discrimination based on nationalitybetween workers of Member States as regards employment, remunerationand other conditions of work and employment.'

6 These provisions impose on Member States a precise obligation which doesnot require the adoption of any further measure on the part either of theCommunity institutions or of the Member States and which leaves them, inrelation to its implementation, no discretionary power.

7 Paragraph 3, which defines the rights implied by the principle of freedomof movement for workers, subjects them to limitations justified on groundsof public policy, public security or public health. The application of theselimitations is, however, subject to judicial control, so that a MemberState's right to invoke the limitations does not prevent the provisions ofArticle 48, which enshrine the principle of freedom of movement for workers,from conferring on individuals rights which are enforceable by them andwhich the national courts must protect.

8 The reply to the first question must therefore be in the affirmative.

Second question

9 The second question asks the Court to say whether Council Directive No 64/­221 of 25 February 1964 on the co-ordination of special measures concerningthe movement and residence of foreign nationals which are justified ongrounds of public policy, public security or public health is directly applicableso as to confer on individuals rights enforceable by them in the courts of aMember State.

10 It emerges from the order making the reference that the only provision of theDirective which is relevant is that contained in Article 3 (1) which providesthat 'measures taken on grounds of public policy or public security shall bebased exclusively on the personal conduct of the individual concerned.'

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JUDGMENT OF 4. 12. 1974 — CASE 41/74

11 The United Kingdom observes that, since Article 189 of the Treaty distinguishesbetween the effects ascribed to regulations, directives and decisions, it musttherefore be presumed that the Council, in issuing a directive rather thanmaking a regulation, must have intended that the directive should have aneffect other than that of a regulation and accordingly that the former shouldnot be directly applicable.

12 If, however, by virtue of the provisions of Article 189 regulations are directlyapplicable and, consequently, may by their very nature have direct effects, itdoes not follow from this that other categories of acts mentioned in thatArticle can never have similar effects. It would be incompatible with thebinding effect attributed to a directive by Article 189 to exclude, in principle,the possibility that the obligation which it imposes may be invoked by thoseconcerned. In particular, where the Community authorities have, by directive,imposed on Member States the obligation to pursue a particular course ofconduct, the useful effect of such an act would be weakened if individualswere prevented from relying on it before their national courts and if thelatter were prevented from taking it into consideration as an element ofCommunity law. Article 177, which empowers national courts to refer to theCourt questions concerning the validity and interpretation of all acts of theCommunity institutions, without distinction, implies furthermore that theseacts may be invoked by individuals in the national courts. It is necessary toexamine, in every case, whether the nature, general scheme and wording ofthe provision in question are capable of having direct effects on the relationsbetween Member States and individuals.

13 By providing that measures taken on grounds of public policy shall be basedexclusively on the personal conduct of the individual concerned, Article 3 (1)of Directive No 64/221 is intended to limit the discretionary power whichnational laws generally confer on the authorities responsible for the entryand expulsion of foreign nationals. First, the provision lays down an obliga­tion which is not subject to any exception or condition and which, by itsvery nature, does not require the intervention of any act on the part eitherof the institutions of the Community or of Member States. Secondly, becauseMember States are thereby obliged, in implementing a clause which derogatesfrom one of the fundamental principles of the Treaty in favour of indivi­duals, not to take account of factors extraneous to personal conduct, legalcertainty for the persons concerned requires that they should be able torely on this obligation even though it has been laid down in a legislativeact which has no automatic direct effect in its entirety.

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VAN DUYN v HOME OFFICE

14 If the meaning and exact scope of the provision raise questions of inter­pretation, these questions can be resolved by the courts, taking into accountalso the procedure under Article 177 of the Treaty.

15 Accordingly, in reply to the second question, Article 3 (1) of Council DirectiveNo 64/221 of 25 February 1964 confers on individuals rights which areenforceable by them in the courts of a Member State and which the nationalcourts must protect.

Third question

16 By the third question the Court is asked to rule whether Article 48 of theTreaty and Article 3 of Directive No 64/221 must be interpreted as meaningthat

'a Member State, in the performance of its duty to base a measure taken ongrounds of public policy exclusively on the personal conduct of the individualconcerned is entitled to take into account as matters of personal conduct:

(a) the fact that the individual is or has been associated with some body ororganization the activities of which the Member State considers contraryto the public good but which are not unlawful in that State;

(b) the fact that the individual intends to take employment in the MemberState with such a body or organization it being the case that no restric­tions are placed upon nationals of the Member State who wish to takesimilar employment with such a body or organization.'

17 It is necessary, first, to consider whether association with a body or anorganization can in itself constitute personal conduct within the meaning ofArticle 3 of Directive No 64/221. Although a person's past association cannotin general, justify a decision refusing him the right to move freely withinthe Community, it is nevertheless the case that present association, whichreflects participation in the activities of the body or of the organization aswell as identification with its aims and its designs, may be considered avoluntary act of the person concerned and, consequently, as part of hispersonal conduct within the meaning of the provision cited.

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18 This third question further raises the problem of what importance must beattributed to the fact that the activities of the organization in question,which are considered by the Member State as contrary to the public goodare not however prohibited by national law. It should be emphasized thatthe concept of public policy in the context of the Community and where,in particular, it is used as a justification for derogating from the fundamentalprinciple of freedom of movement for workers, must be interpreted strictly,so that its scope cannot be determined unilaterally by each Member Statewithout being subject to control by the institutions of the Community.Nevertheless, the particular circumstances justifying recourse to the concept ofpublic policy may vary from one country to another and from one periodto another, and it is therefore necessary in this matter to allow the compe­tent national authorities an area of discretion within the limits imposed bythe Treaty.

19 It follows from the above that where the competent authorities of a MemberState have clearly defined their standpoint as regards the activities of aparticular organization and where, considering it to be socially harmful,they have taken administrative measures to counteract these activities, theMember State cannot be required, before it can rely on the concept of publicpolicy, to make such activities unlawful, if recourse to such a measure isnot thought appropriate in the circumstances.

20 The question raises finally the problem of whether a Member State is entitled,on grounds of public policy, to prevent a national of another MemberState from taking gainful employment within its territory with a body ororganization, it being the case that no similar restriction is placed upon itsown nationals.

21 In this connexion, the Treaty, while enshrining the principle of freedom ofmovement for workers without any discrimination on grounds of nationality,admits, in Article 48 (3), limitations justified on grounds of public policy,public security or public health to the rights deriving from this principle.Under the terms of the provision cited above, the right to accept offers ofemployment actually made, the right to move freely within the territory ofMember States for this purpose, and the right to stay in a Member Statefor the purpose of employment are, among others all subject to such limita-

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tions. Consequently, the effect of such limitations, when they apply, is thatleave to enter the territory of a Member State and the right to reside theremay be refused to a national of another Member State.

22 Furthermore, it is a principle of international law, which the EEC Treatycannot be assumed to disregard in the relations between Member States, thata State is precluded from refusing its own nationals the right of entry orresidence.

23 It follows that a Member State, for reasons of public policy, can, where itdeems, necessary, refuse a national of another Member State the benefit ofthe principle of freedom of movement for workers in a case where such anational proposes to take up a particular offer of employment even thoughthe Member State does not place a similar restriction upon its own nationals.

24 Accordingly, the reply to the third question must be that Article 48 of theEEC Treaty and Article 3 (1) of Directive No 64/221 are to be interpreted asmeaning that a Member State, in imposing restrictions justified on groundsof public policy, is entitled to take into account, as a matter of personalconduct of the individual concerned, the fact that the individual is associatedwith some body or organization the activities of which the Member Stateconsiders socially harmful but which are not unlawful in that State, despitethe fact that no restriction is placed upon nationals of the said MemberState who wish to take similar employment with these same bodies ororganizations.

Costs

25 The costs incurred by the United Kingdom and by the Commission of theEuropean Communities, which have submitted observations to the Court, arenot recoverable, and as these proceedings are, insofar as the parties to themain action are concerned, a step in the action pending before the nationalcourt, costs are a matter for that court.

On those grounds,

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JUDGMENT OF 4. 12. 1974 — CASE 41/74

THE COURT

in answer to the questions referred to it by the High Court of Justice, byorder of that court, dated 1 March 1974, hereby rules:

1. Article 48 of the EEC Treaty has a direct effect in the legal orders ofthe Member States and confers on individuals rights which the nationalcourts must protect.

2. Article 3 (1) of Council Directive No 64/221 of 25 February 1964 onthe coordination of special measures concerning the movement andresidence of foreign nationals which are justified on grounds of publicpolicy, public security or public health confers on individuals rightswhich are enforceable by them in the national courts of a MemberState and which the national courts must protect.

3. Article 48 of the EEC Treaty and Article 3 (1) of Directive No 64/­221 must be interpreted as meaning that a Member State, in imposingrestrictions justified on grounds of public policy, is entitled to takeinto account as a matter of personal conduct of the individualconcerned, the fact that the individual is associated with some body ororganization the activities of which the Member State considers sociallyharmful but which are not unlawful in that State, despite the factthat no restriction is placed upon nationals of the said Member Statewho wish to take similar employment with the same body or organiza­tion.

Lecourt Ó Dálaigh Mackenzie Stuart Donner Monaco

Mertens de Wilmars Pescatore Kutscher Sørensen

Delivered in open court in Luxembourg on 4 December 1974.

A. Van Houtte

Registrar

R. Lecourt

President

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