Individuals with large private debts should not be denied freedom of movement, according to the ECJ.
On 4 October 2012, the ECJ ruled that certain provisions in the Bulgarian Identity Documents Act were incompatible with EU law. The provisions allowed individuals to be prohibited from leaving the country, or not to be issued passports or other identity documents, if they had large debts to private bodies such as companies whose repayment could not be secured or guaranteed by their personal assets.
The legislation defined a large debt as one exceeding BGN 5,000 (c. €2,500) when Bulgaria joined the EU in 2007. In 2010, the provision was repealed to comply with the EU law rules on freedom of movement. However, no action was taken to revoke the prohibition orders already made by the Ministry of the Interior.
In April 2007, an order was issued prohibiting Hristo Byankov, a Bulgarian national, from leaving Bulgaria and from being issued a replacement passport or other identity documents. The order was issued following an application from a private enforcement agent (bailiff) acting on behalf of a company to which Mr Byankov had an unsecured debt of BGN 200,000 (c. €100,000).
Mr Byankov did not challenge the order at the time it was made but, in 2010, tried to get his case reopened following a decision by the Supreme Administrative Court which overturned another prohibition order. His appeal was rejected by the Ministry of the Interior. Mr Byankov then took his case to the Administrative Court in Sofia, which stayed proceedings and sought a preliminary ruling from the ECJ.
The ECJ ruled that:
- the prohibition order was in breach of the fundamental EU principle of freedom of movement for EU nationals even though the legislation itself had been repealed
- the only exceptions to this principle could be on grounds of public policy, public security or public health
- the public policy exception should be interpreted in a narrow, restrictive manner
- EU law already provides sufficient mechanisms for cross-border debt-collection (for example the “Brussels I” Regulation)
- a prohibition order such as that imposed on Mr Byankov is only permissible in case of a serious threat to social order and society as a whole
- under ECJ case law, such a restriction may not serve economic purposes or be disproportionate
- Bulgaria’s Administrative Procedure Code should be interpreted as providing an opportunity for cases to be reopened and restrictions reviewed, as failure to allow this would contravene EU law
- The outcome of the case did not prejudice the already settled in previous ECJ judgments (e.g. C-434/10 “Aladzhov”) reasoning of the Court that in general the opportunity to impose restrictions on movement remains open subject to the proportionality test and the public policy, security and health exceptions
Law: Bulgarian Identity Documents Act; ECJ Case 249/11; Articles 20 and 21 of the Treaty on the Functioning of the European Union; Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I”)