# C_2010301EN.01001401.xml

| 6.11.2010 | EN | Official Journal of the European Union | C 301/14 |
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6.11.2010

EN

Official Journal of the European Union

C 301/14

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Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 2 September 2010 — Hristo Gaydarov v Direktor na Glavna direktsia‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti

(Case C-430/10)

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2010/C 301/21

Language of the case: Bulgarian

Referring court

Referring court

Administrativen sad Sofia-grad (Bulgaria)

Parties to the main proceedings

Parties to the main proceedings

Applicant: Hristo Gaydarov

Applicant:

Defendant: Direktor na Glavna direktsia‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti

Defendant:

Questions referred

Questions referred

| 1. | Is Article 27(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (1) to be interpreted, under the circumstances of the main proceedings, as being applicable where a national of a Member State is prohibited from leaving the territory of his own State because he has committed a criminal offence involving narcotic drugs in a third country, in so far as the following circumstances also exist:






  1.1. | the abovementioned provisions of the directive were not expressly transposed in respect of the Member State’s own nationals; |
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1.

Is Article 27(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (1) to be interpreted, under the circumstances of the main proceedings, as being applicable where a national of a Member State is prohibited from leaving the territory of his own State because he has committed a criminal offence involving narcotic drugs in a third country, in so far as the following circumstances also exist:

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1.1.

the abovementioned provisions of the directive were not expressly transposed in respect of the Member State’s own nationals;

| 1.2. | the grounds given by the national legislature for the adoption of the legitimate aims for a restriction on the freedom of movement of Bulgarian nationals are based on Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), (2) and |
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1.2.

the grounds given by the national legislature for the adoption of the legitimate aims for a restriction on the freedom of movement of Bulgarian nationals are based on Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), (2) and

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| 1.3. | the administrative measures are applied in connection with Article 71 of the Convention implementing the Schengen Agreement of 14 June 1985 and having regard to Recitals 5 and 20 in the preamble to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)? |
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1.3.

the administrative measures are applied in connection with Article 71 of the Convention implementing the Schengen Agreement of 14 June 1985 and having regard to Recitals 5 and 20 in the preamble to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)?

| 2. | Does it follow from the limitations and conditions governing the exercise of the freedom of movement of European Union citizens and from the measures adopted to give them effect under European Union law, including Article 71(1), (2) and (5) of the Convention implementing the Schengen Agreement in conjunction with Recitals 5 and 20 in the preamble to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), under the circumstances of the main proceedings, that national legislation is lawful under which a Member State imposes on one of its nationals who has committed a criminal offence involving narcotic drugs the coercive administrative measure: ‘not to leave the country’, if that national was convicted of that offence by a court in a third country? |
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2.

Does it follow from the limitations and conditions governing the exercise of the freedom of movement of European Union citizens and from the measures adopted to give them effect under European Union law, including Article 71(1), (2) and (5) of the Convention implementing the Schengen Agreement in conjunction with Recitals 5 and 20 in the preamble to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), under the circumstances of the main proceedings, that national legislation is lawful under which a Member State imposes on one of its nationals who has committed a criminal offence involving narcotic drugs the coercive administrative measure: ‘not to leave the country’, if that national was convicted of that offence by a court in a third country?

| 3. | Are the limitations and conditions governing the exercise of the freedom of movement of citizens of the European Union and the measures adopted to give them effect under European Union law, including Article 71(1), (2) and (5) of the Convention implementing the Schengen Agreement in conjunction with Recitals 5 and 20 in the preamble to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), under the circumstances of the main proceedings, to be interpreted as meaning that the conviction of a national of a Member State by a court in a third country for acts concerned with narcotic drugs which, under the law of that Member State, are classified as a serious intentional criminal offence, is sufficient ground for holding, on grounds of general and specific prevention, including guaranteeing a higher level of protection of the health of others in accordance with the precautionary principle, that the personal conduct of that national represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society for a future period of time, which is precisely defined by law and is not connected with the term served for the sentence imposed, but falls within the rehabilitation period? |
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3.

Are the limitations and conditions governing the exercise of the freedom of movement of citizens of the European Union and the measures adopted to give them effect under European Union law, including Article 71(1), (2) and (5) of the Convention implementing the Schengen Agreement in conjunction with Recitals 5 and 20 in the preamble to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), under the circumstances of the main proceedings, to be interpreted as meaning that the conviction of a national of a Member State by a court in a third country for acts concerned with narcotic drugs which, under the law of that Member State, are classified as a serious intentional criminal offence, is sufficient ground for holding, on grounds of general and specific prevention, including guaranteeing a higher level of protection of the health of others in accordance with the precautionary principle, that the personal conduct of that national represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society for a future period of time, which is precisely defined by law and is not connected with the term served for the sentence imposed, but falls within the rehabilitation period?

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(1)  OJ 1993 L 317, p. 59

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(2)  OJ 2006 L 105, p. 1

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