JUDGMENT OF 4. 12.

1974 — CASE 41/74

individuals were prevented from fundamental principle of Community

relying on it before the national law, must be interpreted strictly, so
courts and if the latter were prevented that its scope cannot be determined
from taking it into consideration as unilaterally by each Member State
an element of Community law. without being subject to control by
Article 177, which empowers national the institutions of the Community.
courts to refer to the Court questions Nevertheless, the particular circum­
concerning the validity and interpret­ stances justifying recourse to the
ation of all acts of the Community concept of public policy may vary
institutions, without distinction, from one country to another and
implies furthermore that these acts from one period to another, and it is
may be invoked by individuals in the therefore necessary in this matter to
national courts. allow the competent national
authorities an area of discretion
It is necessary to examine in every
case whether the nature, general within the limits imposed by the
scheme and wording of the provision Treaty.
in question are capable of having
direct effects on the relations between
5. Article 48 of the EEC Treaty and
Member States and individuals. Article 3 (1) of Directive No 64/221
must be interpreted as meaning that a
3. Article 3 (1) of Council Directive No Member State, imposing restrictions
64/221 of 25 February 1964 on the justified on grounds of public policy,
coordination of special measures is entitled to take into account, as a
concerning the movement and matter of personal conduct of the
residence of foreign nationals which individual concerned, the fact that the
are justified on grounds of public individual is associated with some
policy, public security or public body or organization the activities of
health confers on individuals rights which the Member State considers
which are enforceable by them in the socially harmful but which are not
national courts of a Member State
unlawful in that State, despite the fact
and which the latter must protect.
that no restriction is placed upon
4. The concept of public policy in the nationals of the said Member State
context of the Community and who wish to take similar employment
where, in particular, it is used as a with the same bodies or organiza­
justification for derogating from a tions.

In Case 41/74

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

YVONNE VAN DUYN

and

HOME OFFICE

1338
 VAN DUYN v HOME OFFICE

on the interpretation of Article 48 of the EEC Treaty and Article 3 of Council

Directive 64/221/EEC of 25 February 1964 on the coordination of special
measures concerning the movement and residence of foreign nationals which
are 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 written remarks: 'Scientology is a pseudo-philo­
observations submitted pursuant to sophical cult ... The Government are
Article 20 of the Protocol on the Statute satisfied having reviewed all the
of the Court of Justice of the EEC may available evidence that Scientology is
be summarized as follows: socially harmful. It alienates members of
families from each other and attributes
squalid and disgraceful motives to all
who oppose it; its authoritarian
I — Facts and procedure principles and practice are a potential
menace to the personality and well-being
1. The Church of Scientology is a body of those so deluded as to become its
established in the United States of followers; above all its methods can be a
America, which functions in the United serious danger to the health of those
Kingdom through a college at East who submit to them. There is evidence
Grinstead, Sussex. The British Govern­ that children are now being
ment regards the activities of the Church indoctrinated. There is no power under
of Scientology as contrary to public existing law to prohibit the practice of
policy. On 25 July 1968, the Minister of Scientology; but the Government have
Health stated in the House of Commons concluded that it is so objectionable that
that the Government was satisfied that it would be right to take all steps within
Scientology was socially harmful. The their power to curb its growth...
statement included the following Foreign nationals come here to study

1339
 JUDGMENT OF 4. 12. 1974 — CASE 41/74

Scientology and to work at the so-called officers by virtue of section 4 (1) of the
College in East Grinstead. The Immigration Act 1971. Leave to enter
Government can prevent this under was refused by the immigration officer
existing law ... and have decided to do acting in accordance with the policy of
so. The following steps are being taken the Government and with Rule 65 of the
with immediate effect ... relevant Immigration Rules for Control
of Entry which Rules have legislative
force. Rule 65 reads:
(e) Work permits and employment
'Any passenger except the wife or child
vouchers will not be issued to foreign
under 18 of a person settled in the
nationals ... for work at a Scien­
United Kingdom may be refused leave to
tology establishment.'
enter on the ground that the exclusion is
No legal restrictions are placed upon the conducive to the public good where —
practice of Scientology in the United
Kingdom nor upon British nationals (a) the Secretary of State has personally
(with certain immaterial exceptions) so directed, or
wishing to become members of or take
(b) from information available to the
employment with the Church of
Immigration Officer it seems right to
Scientology.
refuse leave to enter on that ground
2. Miss van Duyn is a Dutch national. — if, for example, in the light of the
By a letter dated 4 May 1973 she was passenger's character, conduct or
offered employment as a secretary with associations it is undesirable to give
him leave to enter.'
the Church of Scientology at its college
at East Grinstead. With the intention of
3. Relying on the Community rules on
taking up that offer she arrived at
freedom of movement of workers and
Gatwick Airport on 9 May 1973 where
especially on Article 48 of the EEC
she was interviewed by an immigration
officer and refused leave to enter the Treaty, Regulation 1612/68 and Article 3
of Directive 64/221, 1 Miss van Duyn
United Kingdom. It emerged in the
claims that the refusal of leave to enter
course of the interview that she had
was unlawful and seeks a declaration
worked in a Scientology establishment in
from the High Court that she is entitled
Amsterdam for six months, that she had
to stay in the United Kingdom for the
taken a course in the subject of
Scientology, that she was a practising
purpose of employment and to be given
leave to enter the United Kingdom.
Scientologist and that she was intending
to work at a Scientology establishment Before deciding further, the High Court
in the United Kingdom. has stayed the proceedings and requested
the Court of Justice, pursuant to Article
The ground of refusal of leave to enter
which is stated in the document entitled 177 of the EEC Treaty, to give a
preliminary ruling on the following
'Refusal of Leave to Enter' handed by
questions:
the immigration officer to Miss van
Duyn reads: 'You have asked for leave 1. Whether Article 48 of the Treaty
to enter the United Kingdom in order to establishing the European Economic
take employment with The Church of Community is directly applicable so
Scientology, but the Secretary of State as to confer on individuals rights
considers it undesirable to give anyone enforceable by them in the Court of a
leave to enter the United Kingdom on Member State.
the business of or in the employment of
that organization'.
1 — Article 3 (1) of the Directive reads: 'Measures
taken on grounds of public policy or of public
The power to refuse entry into the security shall be based exclusively on the per­
United Kingdom is vested in immigration sonal conduct of the individual concerned.'

1340
 VAN DUYN v HOME OFFICE

2. Whether Directive 64/221 adopted on II — Written observations

25 February 1964 in accordance with submitted to the
the Treaty establishing the European Court
Economic Community is direcly
applicable so as to confer on indivi­ On the First Question
duals rights enforceable by them in
the Courts of a Member State. Miss van Duyn and the Commission
submit that Article 48 of the EEC Treaty
3. Whether upon the proper interpret­ is directly applicable. They rely in
ation of Article 48 of the Treaty particular on the judgments of the Court
establishing the European Economic of 4 April 1974 in Commission v French
Community and Article 3 of Directive Republic (Case No 167/73, [1974] ECR
64/221/EEC a Member State in the
359) and of 21 June 1974 in Reyners v
performance of its duty to base a Belgian State (Case No 2/74, not yet
measure taken on grounds of public published).
policy exclusively on the personal
conduct of the individual concerned is In the light of the judgment in Case No
entitled to take into account as
167/73 the United Kingdom makes no
submission on this question.
matters of personal conduct

(a) the fact that the individual is or On the Second Question

has been associated with some
body or organization the Miss van Duyn submits that Article 3 of
activities of which the Member Directive 64/221 is directly applicable.
State considers contrary to the She observes that the Court has already
public good but which are not held that, in principle, directives are
unlawful in that State susceptible of direct application. She
refers to the judgments of the Court of 6
(b) the fact that the individual October 1970 in Grad v Finanzamt
intends to take employment in Traunstein (Case No 9/70, Recueil 1970,
the Member State with such a p. 825) and of 17 December 1970 in Spa
body or organization it being the SACE v Italian Ministry of Finance
case that no restrictions are (Case No 33/70, Recueil 1970, p. 1213).
placed upon nationals of the
She submits that the criterion as to
Member State who wish to take
whether a directive is directly applicable
similar employment with such a
is identical with the criterion adopted in
body or organization. the case of articles in the Treaty itself,
and she observes that the Court has not
4. The order of the High Court of 1
felt itself constrained to hold that a given
March 1974 was registered at the Court
article in the Treaty is not directly
on 13 June 1974.
applicable merely because in its formal
Written observations have been wording it imposes an obligation on a
Member State. She refers to the
submitted on behalf of Miss van Duyn
by Alan Newman, on behalf of the judgments of the Court of 19 December
1968 in Salgoil v Italian Ministry (Case
United Kingdom by W. H. Godwin and
No 13/68, Recueil 1968, p. 661) and of
on behalf of the Commission by its
16 June 1966 in Lütticke GmbH v
Legal Adviser, A. McClellan.
Hauptzollamt Sarrelouis (Case No
Having heard the report of the 57/65, Recueil 1966, p. 293).
Judge-Rapporteur and the opinion of the Miss van Duyn further submits that a
Advocate-General, the Court decided to directive which directly affects an
open the oral procedure without any individual is capable of creating direct
preparatory inquiry. rights for that individual where its

1341
 JUDGMENT OF 4. 12. 1974 — CASE 41/74

provisions are clear and unconditional applicable when it is clear and

and where, as to the result to be unambiguous. It refers to the judgments
achieved, it leaves no substantial in the Grad and SACE cases (already
measure of discretion to the Member cited).
State. Provided that these criteria are The Commission observes that a
fulfilled it does not matter
Community Regulation has the same
(a) whether the provision in the weight with immediate effect as national
directive consists of a positive legislation whereas the effect of a
directive is similar to that of those
obligation to act or of a negative
prohibition, or provisions of the Treaty which create
obligations for the Member States. If
(b) that the Member State has a choice
provisions of a directive are legally clear
of form and methods to be adopted and unambiguous, leaving only a
in order to achieve the stated result.
discretion to the national authorities for
As to (a), it is implicit in the Court's their implementation, they must have an
judgments in the cases of Lutticke and effect similar to those Treaty provisions
Salgoil (already cited) that an article of which the Court has recognized as
the Treaty which imposes a positive directly applicable.
obligation on a Member State to act is It therefore submits that
capable of direct applicability and the
same reasoning is valid in relation to (a) the executive of a Member State is
directives. bound to respect Community law

As to (b), she notes that Article 189 of (b) if a provision in a directive is not
the Treaty expressly draws a distinction covered by an identical provision in
in relation to directives between binding national law, but left, as to the result
effect of the result to be achieved and to be achieved, to the discretion of
the discretionary nature of the methods the national authority, the discre­
to be adopted. tionary power of that authority is
reduced by the Community
She contends that the provisions of
provision
Article 3 fulfil the criteria for direct
applicability. She refers to the preamble (c) in these circumstances and given
to the Directive which envisages a direct that to comply with a directive it is
applicability when it states: 'whereas, in not always indispensable to amend
each Member State, nationals of other national legislation it is clear that
Member States should have adequate the private individual must have the
legal remedies available to them in right to prevent the national
respect of the administration in such authority concerned from exceeding
matters ...' (i.e. when a Member State its powers under Community law to
invokes grounds of public policy, public the detriment of that individual.
security or public health in matters
connected with the movement or
According to the Commission, Article 3
is one of the provisions of Directive
residence of foreign nationals).
64/221 having all the characteristics
The only 'adequate legal remedy' necessary to have direct effect in the
available to an individual is the right to Member State to which it is addressed.
invoke the provisions of the Directive And it further recalls that the difficulty
before the national courts. A decision to of applying the rules in a particular case
this effect would undoubtedly strengthen does not derogate from their general
the legal protection of individual citizens application.
in the national courts.
In this context the Commission
The Commission submits that a examines the Judgment of 7 October
provision in a directive is directly 1968 of the Belgian Conseil d'État in the

1342
 VAN DUYN v HOME OFFICE

Corveleyn case (CE 1968, No 13.146 was expressly contemplated in Article 10

arrêt 7. 10. 1968, p. 710). that Member States would put into force
As the British authorities have not the measures necessary to comply with
the "provisions of the Directive. Indeed
adopted the wording of Article 3 of the
the very terms of Article 3 (1) itself
Directive to achieve the required result,
contemplate the taking of measures.
the Commission submits, by virtue of
Article 189 of the Treaty and in the light The United Kingdom examines the only
four cases in which national courts to its
of the case-law of the Court, that Article
3 is a directly applicable obligation knowledge have considered the question
which limits the wide discretion given to of the direct applicability of the
Directive. It submits that little assistance
immigration officers under Rule 65 in
can be obtained from these cases. Inter
the 'Statement of Immigration Rules'.
The Commission proposes the following alia it points out that the true effect of
answer to the question: Where a the Corveleyn case (already cited) has
provision is legally clear and been the subject of considerable debate
unambiguous as is Article 3 of Directive among Belgian jurists and the better
64/221, such a provision is directly view appears to be that the Conseil
d'État did not decide that the Directive
applicable so as to confer on individuals
rights enforceable by them in the Courts was directly applicable but applied the
of a Member State. Belgian concept of public order which
itself required international obligations
The United Kingdom recalls that Article of Belgium to be taken into account.
189 of the EEC Treaty draws a clear
distinction between regulations and
On the Third Question
directives, and that different effects are
ascribed to each type of provision. It Miss van Duyn points out that the first
therefore submits that prima facie the part of the question assumes a situation
Council in not issuing a regulation must where an organization engages in
have intended that the Directive should activities which are lawful in the State.
have an effect other than that of a The question does not necessarily
regulation and accordingly should not be assume that the individual concerned
binding in its entirety and not be directly intends to continue this association. It is
applicable in all Member States. sufficient that he has in the past been
The United Kingdom submits that associated. In this respect Miss van Duyn
neither the Grad not the SACE decision recalls that even if the individual had

is authority for the proposition that it is been associated with an illegal

immaterial whether or not a provision is organization and, by virtue of his
contained in a regulation, directive or activities therein, had been convicted of
decision. In both cases the purpose of a crime, that circumstance would not, by
the directive in question was merely to virtue of the provisions of Article 3,
fix a date for the implementation of paragraph 2, of Directive 64/221, in
clear and binding obligations contained itself be sufficient grounds for the
in the Treaty and instruments made Member State to take measures based on
under it. Those cases show that in public policy to exclude the individual.
special circumstances a limited provision Merely belonging to a lawful
in a directive could be directly organization, without necessarily taking
applicable. The provisions of the part in its activities, cannot, in her
Directive in the present case are wholly submission, amount to 'conduct'.
different. Directive 64/221 is far broader Conduct implies 'activity.' Moreover, the
in scope. It gives comprehensive activities of the organization in question
guidance to Member States as to all are not, merely because the individual is
measures taken by them affecting or has been a passive member, 'personal'
freedom of movement for workers and it to the individual concerned. To hold

1343
 JUDGMENT OF 4. 12. 1974 — CASE 41/74

otherwise would mean that a Member the Member States. It would be

State could exclude an individual merely inconsistent with the Treaty if one
because, in the distant past, he had for a Member State accepted workers from
brief period perfectly lawfully belonged another Member State while its own
to a somewhat extreme political or workers did not receive uniform
religious organization in his own treatment as regards the application of
Member State. the rules in respect of public order in
that other State.
In regard to the second part of the
question, Miss van Duyn recalls that The Commission submits that the
freedom of movement of persons is one discrimination by a Member State on
of the fundamental principles established grounds of public policy against
by the Treaty and that discrimination on nationals of another Member State for
grounds of nationality is prohibited in being employed by an organization the
Article 7. Exemptions to these activities of which it considers contrary
fundamental principles must be to the public good when it does not
interpreted restrictively. make it unlawful for its own nationals to

She points out that the question assumes be employed by such organization is
discrimination on grounds of nationality contrary to Article 48, paragraph 2 of
and that it assumes a situation where an the Treaty. Article 3 (1) of the Directive
individual whose past activity has been is precise in stating that measures taken
blameless seeks entry into a Member on grounds of public policy shall be
State in order to work for an based exclusively on the personal
conduct of the individual concerned.
organization in whose employment the
nationals of the Member State are Personal conduct which is acceptable
prefectly free to engage. She submits that when exercised by a national of one
if an organization is deemed contrary to Member State cannot be unacceptable,
the public good the Member State is under Community law, when exercised
faced with a simple choice: either to ban by a national of another Member State.
everyone, including its own nationals, It is for consideration that Article 3
from engaging in employment with that precludes a Member State, as a general
organization, or to tolerate nationals of contingency against some potential harm
other Member States as it tolerates its to society, from invoking public policy
own nationals engaging in such as a ground for refusing entry when the
employment. personal conduct of the individual is or
The Commission asserts that the was not contrary to public policy in the
concepts 'public policy' and 'personal Member States concerned. It is not
conduct' contained in Article 48, denied that membership of a militant
paragraph 3 of the Treaty and Article 3 organization proscribed in the host
of Directive 64/221 are concepts of Member State would be an element to
Community law. The must first be be taken into account in assessing
interpreted in the context of Community personal conduct for the purpose of
law and national criteria are only justifying a refusal of entry on grounds
relevant to its application. of public policy or public security.
In practice, if each Member State could As to the first part of the question the
set limits to the interpretation of public United Kingdom deals with three
policy the obligations deriving from the problems.
principle of freedom of movement of The first problem is whether an
workers would take a variety of forms in individual's past or present association
different Member States. It is only with an organization can be regarded as
possible for this freedom to be an aspect of his personal conduct. The
maintained throughout the Community United Kingdom asserts that it is of
on the basis of uniform application in all importance that a Member State in

1344
 VAN DUYN v HOME OFFICE

relation to public policy should be Member State to be contrary to the

entitled to consider a person's public good does not disentitle the
associations with a body or organization. Member State from taking into account
The Member State should be entitled to the individual's association with the
exclude that person in appropriate cases, organization. It must be a matter for
i.e. if the organization is considered each State to decide whether it should
sufficiently undesirable from the make activities of an organization, or the
viewpoint of public policy and the organization itself, illegal. Only the State
association by that person with that is competent to make such evaluation
organization is sufficiently close. and it will do so in the light of the
particular circumstances of that State.
Secondly the United Kingdom submits
that a measure which is taken on Thus, as is common knowledge, the
United Kingdom practises a considerable
grounds of public policy and which
degree of tolerance in relation to
provides for the exclusion from a
Member State of an individual on the organizations within the United
Kingdom. In the case of Scientology the
grounds of that individual's association
reasons why the United Kingdom
with an organization is compatible with
regards the activities of the Scientologists
the requirement of Article 3 (1). It
as contrary to public policy were
accepts that the intention underlying
that Article must have been to exclude
explained in the statement made in
Parliament on 25 July 1968. The
collective expulsions and to require the
Scientologists still have their World
consideration by the national authorities
Headquarters in the United Kingdom so
of the personal circumstances of each
individual in each case. Nevertheless it is
that Scientology is of particular concern
not inconsistent with that intention for a
to the United Kingdom.
Member State to take into account an The United Kingdom notes that two
individual's association with an problems arise in connection with the
organization and, in appropriate cases, matter referred to in subparagraph (b) of
to exclude the individual by reason of the question.
that association. Whether, in any given The first problem is whether the fact
case, such exclusion is justified will that an individual intends to take
depend on the view the Member State employment with such an organization is
takes of the organization. an aspect of that individual's personal
conduct. It is submitted that such an
As a practical matter the processes of
admitting persons to enter a Member intention is a very material aspect of the
State must be administered by a large individual's personal conduct.
number of officials. Such officials cannot The second problem is whether the fact
be expected to know all that the that no restrictions are placed upon
Government may know about a nationals of the Member State who wish
particular organization and it is to take similar employment with such an
inevitable that such officials must act in organization disentitles the Member
accordance with directions given by the State from taking this intention into
Government and laying down broad account.

principles on which the officials are to

The United Kingdom points out that it is
act. It is inevitable also that such
inevitable that in respect of the entry
directions may relate to particular
into a state of persons, there must be
organizations which a Government may some discrimination in favour of the
consider contrary to the public good.
nationals of that state. For a national,
Thirdly the United Kingdom submits however undesirable and potentially
that the fact that the activities of the harmful his entry may be, cannot be
organization are not unlawful in a refused admission into his own state. A
Member State though considered by the state has a duty under international law

1345
 JUDGMENT OF 4. 12. 1974 — CASE 41/74

to receive back its own nationals. The admit a drug addict who was one of its
United Kingdom refers inter alia to own nationals.
Article 5 (b) (ii) of the Universal Miss van Duyn, represented by Alan
Declaration of Human Rights which Newman, the United Kingdom, repre­
states: 'Everyone has the right to leave sented by Peter Gibson, and the Com­
any country, including his own, and to mission, represented by Anthony
return to his country'. It observes that, McClellan, submitted oral observations
for example, a Member State would be at the hearing on 23 October 1974.
justified in refusing to admit a drug The Advocate-General delivered his
addict who is a national of another State opinion at the hearing on 13 November
even though it would be obliged to 1974.

Law

1 By order of the Vice-Chancellor of 1 March 1974, lodged at the Court on

13 June, the Chancery Division of the High Court of Justice of England,
referred to the Court, under Article 177 of the EEC Treaty, three questions
relating to the interpretation of certain provisions of Community law
concerning freedom of movement for workers.

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

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

First question

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

1346
 VAN DUYN v HOME OFFICE

5 It is provided, in Article 48 (1) and (2), that freedom of movement for

workers shall be secured by the end of the transitional period and that such
freedom shall entail 'tha abolition of any discrimination based on nationality
between workers of Member States as regards employment, remuneration
and other conditions of work and employment.'

6 These provisions impose on Member States a precise obligation which does

not require the adoption of any further measure on the part either of the
Community institutions or of the Member States and which leaves them, in
relation to its implementation, no discretionary power.

7 Paragraph 3, which defines the rights implied by the principle of freedom

of movement for workers, subjects them to limitations justified on grounds
of public policy, public security or public health. The application of these
limitations is, however, subject to judicial control, so that a Member
State's right to invoke the limitations does not prevent the provisions of
Article 48, which enshrine the principle of freedom of movement for workers,
from conferring on individuals rights which are enforceable by them and
which 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 concerning
the movement and residence of foreign nationals which are justified on
grounds of public policy, public security or public health is directly applicable
so as to confer on individuals rights enforceable by them in the courts of a
Member State.

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

1347
 JUDGMENT OF 4. 12. 1974 — CASE 41/74

11 The United Kingdom observes that, since Article 189 of the Treaty distinguishes
between the effects ascribed to regulations, directives and decisions, it must
therefore be presumed that the Council, in issuing a directive rather than
making a regulation, must have intended that the directive should have an
effect other than that of a regulation and accordingly that the former should
not be directly applicable.

12 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. Article 177, which empowers national courts to refer to the
Court questions concerning the validity and interpretation of all acts of the
Community institutions, without distinction, implies furthermore that these
acts may be invoked by individuals in the national courts. It is necessary to
examine, in every case, whether the nature, general scheme and wording of
the provision in question are capable of having direct effects on the relations
between Member States and individuals.

13 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 No 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. First, the provision lays down an obliga­
tion which is not subject to any exception or condition and which, by its
very nature, does not require the intervention of any act on the part either
of the institutions of the Community or of Member States. Secondly, because
Member States are thereby obliged, in implementing a clause which derogates
from one of the fundamental principles of the Treaty in favour of indivi­
duals, not to take account of factors extraneous to personal conduct, legal
certainty for the persons concerned requires that they should be able to
rely on this obligation even though it has been laid down in a legislative
act which has no automatic direct effect in its entirety.

1348
 VAN DUYN v HOME OFFICE

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

15 Accordingly, in reply to the second question, Article 3 (1) of Council Directive

No 64/221 of 25 February 1964 confers on individuals rights which are
enforceable by them in the courts of a Member State and which the national
courts must protect.

Third question

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

'a Member State, in the performance of its duty to base a measure taken on
grounds of public policy exclusively on the personal conduct of the individual
concerned 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 or
organization the activities of which the Member State considers contrary
to the public good but which are not unlawful in that State;

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

17 It is necessary, first, to consider whether association with a body or an

organization can in itself constitute personal conduct within the meaning of
Article 3 of Directive No 64/221. Although a person's past association cannot
in general, justify a decision refusing him the right to move freely within
the Community, it is nevertheless the case that present association, which
reflects participation in the activities of the body or of the organization as
well as identification with its aims and its designs, may be considered a
voluntary act of the person concerned and, consequently, as part of his
personal conduct within the meaning of the provision cited.
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 JUDGMENT OF 4. 12. 1974 — CASE 41/74

18 This third question further raises the problem of what importance must be
attributed to the fact that the activities of the organization in question,
which are considered by the Member State as contrary to the public good
are not however prohibited by national law. It should be emphasized that
the concept of public policy in the context of the Community and where,
in particular, it is used as a justification for derogating from the fundamental
principle of freedom of movement for workers, must be interpreted strictly,
so that its scope cannot be determined unilaterally by each Member State
without being subject to control by the institutions of the Community.
Nevertheless, the particular circumstances justifying recourse to the concept of
public policy may vary from one country to another and from one period
to another, and it is therefore necessary in this matter to allow the compe­
tent national authorities an area of discretion within the limits imposed by
the Treaty.

19 It follows from the above that where the competent authorities of a Member
State have clearly defined their standpoint as regards the activities of a
particular organization and where, considering it to be socially harmful,
they have taken administrative measures to counteract these activities, the
Member State cannot be required, before it can rely on the concept of public
policy, to make such activities unlawful, if recourse to such a measure is
not 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 Member
State from taking gainful employment within its territory with a body or
organization, it being the case that no similar restriction is placed upon its
own nationals.

21 In this connexion, the Treaty, while enshrining the principle of freedom of

movement 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 of
employment actually made, the right to move freely within the territory of
Member States for this purpose, and the right to stay in a Member State
for the purpose of employment are, among others all subject to such limita-
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 VAN DUYN v HOME OFFICE

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

22 Furthermore, it is a principle of international law, which the EEC Treaty

cannot be assumed to disregard in the relations between Member States, that
a State is precluded from refusing its own nationals the right of entry or
residence.

23 It follows that a Member State, for reasons of public policy, can, where it
deems, necessary, refuse a national of another Member State the benefit of
the principle of freedom of movement for workers in a case where such a
national proposes to take up a particular offer of employment even though
the 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 the
EEC Treaty and Article 3 (1) of Directive No 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 organization 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
organizations.

Costs

25 The costs incurred by the United Kingdom and by the Commission of the
European Communities, which have submitted observations to the Court, are
not recoverable, and as these proceedings are, insofar as the parties to the
main action are concerned, a step in the action pending before the national
court, 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, by

order of that court, dated 1 March 1974, hereby rules:

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

2. Article 3 (1) of Council Directive No 64/221 of 25 February 1964 on

the coordination of special measures concerning the movement and
residence of foreign nationals which are justified on grounds of public
policy, public security or public health confers on individuals rights
which are enforceable by them in the national courts of a Member
State 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 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
organization 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 the same body or organiza­
tion.

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 R. Lecourt

Registrar President

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