An interesting case not only for ‘Sons of Anarchy’ fans was handed down by the EFTA-Court this week. The scenario is somewhat similar to the early, well known Van Duyn case law, where the Church of Scientology was at issue. In the present case, a member of the Norvegian Hells Angels was denied entry into Iceland because the Icelandic authorities argued that he played a central role in the final stage of accession of an Icelandic motorcycle club as a new charter in Hells Angels. The Supreme Court of Iceland referred a number of questions to the EFTA Court, most interesting to us regarding the interpretation of Article 27 of Directive 2004/38/EC. To quite some extent, the EFTA Court reiterates here what it had already established in Van Duyn long ago. However, there are three points I find interesting: The insistence on the need for the individual in question to constitute a genuine and sufficiently serious threat; the treatment of the dangerous organization by the State in question; and finally the findings on the alleged discrimination of non-nationals.
First, the Court insisted here – based on its case law ever since Van Duyn – much more on the fact that the individual at issue had to constitute by its conduct a genuine, present and sufficiently serious threat to one of the fundamental interests of society. It thus agreed with the assessment of the national authorities because the latter had not only limited themselves to consider ‘mere membership in a particular organization associated with organized crime’ sufficient to establish such conduct (para 90). Rather, the authorities’ assessment was based on a danger assessment by the National Commissioner of Police on the individual’s ‘presumed role in the final accession stage of a national motorcycle club becoming a new charter in an international organization associated with organized crime’ (ibid.). The visit to Iceland was thus linked to that process; accession of the Icelandic club would subsequently ferment the spread of organized crime in Iceland; and the relevant information had been gathered specifically on that individual’s planned entry into Iceland (ibid.). Between the lines, the EFTA Court thus seemed to be very much inclined to accept the procedure followed by the Icelandic authorities, but it still sent the case back to the national court to make the necessary findings based on the individual case (para 91).
A second interesting point concerns the attitude of the State towards the organization that is considered to constitute a danger. As the CJEU did in Van Duyn, the EFTA Court here insisted that despite the margin of appreciation national authorities, they were required to have a clearly defined standpoint towards the activities of such an organization, and must have taken administrative measures to counteract their activities considered a threat to public policy and/or public security (para 101). Again, the Court sent the case back to the national court for the final assessment of the facts, but hinted at its own views quite clearly: It held that it would appear to be ‘common ground’ that the motorcycle organization in question was viewed as a threat by the Nordic countries in general, that a policy to restrict its activities was formulated by the authorities of Nordic countries and implemented in Iceland since 2002; during a considerable period of time, the Icelandic authorities had thus already been working on preventing the accession of the national club to Hells Angels, denying ‘repeatedly’ entry to foreign members of Hells Angels referring to public policy and security (para 102).
A last point concerned the fact that the measures in place could appear to be discriminatory, as only foreigners were targeted. The rather straightforward acceptance of discrimination in Van Duyn had sometimes been criticized in this regard. Here, however, the EFTA Court clarified that the national measure had to target exclusively foreigners, since the national motorcycle club needed the support of an already established charter of Hells Angels to become a full charter. In this particular case, therefore, ‘only a foreigner could represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’ (para 107).