Essay Example on Consequently public security is a concept which is not clearly Defined









Consequently public security is a concept which is not clearly defined Tsakouridis case constitutes the most important case concerning the interpretation of the public security concept As Article 27 2 specifies and in the same manner as for public policy any measure in order to safeguard public security must be relied upon the personal conduct of the individual concerned This individual s conduct will be analyzed below 2 4 Elements which have to be examined concerning the public policy and public security derogations 2 4 1 Personal conduct of the individual concerned The starting point for defining what actually is included in public policy and public security derogation with regard to the individual is the first paragraph of Article 27 2 CDR which emphasizes that Measures taken on 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 The concept of the personal conduct is the most important in order to examine the restrictions which may be imposed by a Members State based on these grounds Member States discretion relating to the interpretation of these derogations can only be exercised within the limits defined by EU law according to the conditions of the principle of proportionality Moreover the interpretation of these derogations by Member States is subject to control by the ECJ 

The consequence of the fact that Member States must exclusively rely upon the personal conduct of the individual is that extraneous situations irrelevant to the individual s conduct must not be taken into consideration This conclusion was pointed out by the ECJ in Bonsignore case Mr Bonsignore was confronted with the conviction of a firearms offence and of bringing about the death of his brother by negligence because of handling a gun for which he did not have a licence The German authorities order his deportation for reasons of a general preventive nature The national authorities wanted to deal with a revival of violence and disturbance within immigrant communities and tried to present the Bonsignore situation as an example in order to deter others The German court wanted to present the deportation as the reason of a general preventive nature in order to maintain peacefulness within the society The ECJ held that a deportation under these circumstances would go against the CDR A deportation order can be available but only as a protection against the breaches of peace and public security brought about by the individual defendant Consequently any action taken against an individual based on public policy or public security grounds cannot be relied upon reasons extraneous to the individual case Therefore deportation cannot constitute a preventive or a deterrent measure This provision is also incorporated in Article 27 2 according to which Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted 

The question of what actually forms personal conduct was explicitly examined in Van Duyn case Mrs Van Duyn a Dutch national was refused entry into the UK to work for the Church of Scientology as a secretary Even though the British authorities did not prohibit membership of this organization the activities of this church were taken into account as socially harmful The Court stated that it is not necessary for the personal conduct to be illegal in order for a Member State to have the possibility to invoke the derogation of public policy as we previously mentioned The fact that the conduct was considered socially harmful and that Member State took steps to promote administrative measures to combat these specific activities were sufficient for the Court Moreover the Court had to determine whether membership of an organization can constitute personal conduct It decided that a person's past membership of a specific organization could not constitute the justification of a decision refusing this person to move freely However a person s present association which indicates involvement in the activities of the organization as well as identification with its targets and designs may constitute personal conduct The basic element in this decision is that person s present association with an organization constitutes a personal conduct due to the fact that current association proves a voluntary participation in the organization's activities What is most impressive in the Van Duyn case is the ECJ s controversial conclusion regarding the host State s reaction in case of a person's present association with organization 

The Court held that a host State could refuse a non national the right to move freely through this State did not impose a similar restriction on its own nationals As a result the UK authorities could refuse a Dutch national to enter the UK to work as a secretary for the Church of Scientology on grounds of public policy On the contrary a British national had the possibility to do the exact same job even though the British authorities had expressed strong disapproval of the Church s of Scientology activities The UK Government expressed its disapproval of the activities but it did not try to ban the operation of the church and it stated that there was no force to do so The justification of this decision was based on the principle of international law that Member States do not have the authority and the power to deny the entry or to expel their own nationals from their own state's territory

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