• In the case of Case 41/74 Van Duyn [1974] ECR 1337, the European Court of Justice ruled that Members of the EU can be refused access if they engage in socially detrimental behaviour that, despite not being illegal, is connected to organisations that the state is actively and successfully using administrative means to combat.
  • This case is about freedom of movement, public policy, religious discrimination and vertical direct effect.

Facts of the Case

  • C contended that by blocking her work permit at the Church of Scientology, D breached Article 45(3) of the TFEU.
  • D argued this was not a limit to the free movement of workers rather that the Scientology infringed mental health, even though participation in Scientology is unrestricted.
  • C further claimed in this case that Directive 64/221/EC is legally binding to the UK as per the Treaty of Rome 1957.

Issues

  • Can a Member State prevent other Member State nationals from being employed – justified by public policy?
  • How can the courts interpret article 48 of the E.E.C. Treaty and article 3 (1) of Directive 64/221?
  • Were article 48 of the Treaty and Directive 64/221 directly applicable so as to confer on individuals rights enforceable by them in a member state’s courts?

Held by European Court of Justice

  • C’s claim dismissed – Directive 64/221/EC was directly effective however C could be banned based on the UK’s reasoning.

Advocate-General (Henri Mayras)

Direct effect of Directives

  • Article 177 infers that individuals can invoke acts via national courts.
  • “If, however, by virtue of the provisions of article 189 regulations are directly applicable and, consequently, may by their very nature have direct effects, it does not follow from this that other categories of acts mentioned in that article can never have similar effects. It would be incompatible with the binding effect attributed to a directive by article 189 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned. In particular, where the community authorities have, by directive, imposed on member states the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of community law.”

Directive 64/221

  • “By providing that measures taken on grounds of public policy shall be based exclusively on the personal conduct of the individual concerned, article 3 (1) of Directive 64/221 is intended to limit the discretionary power which national laws generally confer on the authorities responsible for the entry and expulsion of foreign nationals.”
  • “Article 48 of the E.E.C. Treaty and article 3 (1) of Directive 64/221 are to be interpreted as meaning that a member state, in imposing restrictions justified on grounds of public policy, is entitled to take into account, as a matter of personal conduct of the individual concerned, the fact that the individual is associated with some body or organisation the activities of which the member state considers socially harmful but which are not unlawful in that state, despite the fact that no restriction is placed upon nationals of the said member state who wish to take similar employment with these same bodies or organisations.”