# C_2013079EN.01000901.xml

| 16.3.2013 | EN | Official Journal of the European Union | C 79/9 |
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16.3.2013

EN

Official Journal of the European Union

C 79/9

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Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 10 January 2013 — Gena Ivanova Cholakova v Osmo rayonno upravlenie pri Stolichna direktsiya na vatreshnite raboti

(Case C-14/13)

2013/C 79/16

Language of the case: Bulgarian

Referring court

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Parties to the main proceedings

Applicant: Gena Ivanova Cholakova

Applicant:

Defendant: Osmo rayonno upravlenie pri Stolichna direktsiya na vatreshnite raboti

Defendant:

Questions referred

Questions referred

| 1. | Must Article 21(1) of the Treaty on the Functioning of the European Union, in conjunction with Articles 67 and 72 of that Treaty and in the light of the limitations permitted under European Union law on the freedom of European Union citizens to move freely within the territory of the Member States, be interpreted as not precluding a provision of national law of a Member State, such as the one at issue in the case in the main proceedings, namely point 5 of Article 63(1) of the Zakon za ministerstvoto na vatreshnite raboti (Law on the Ministry for Home Affairs), pursuant to which the police authorities are authorised to order the detention, for a maximum of 24 hours, of a citizen of a Member State in order to establish his identity following a check which does not fall within one the cases laid down in the law of that Member State in which such checks are permitted to enable the police authorities to identify an individual, and which is not expressly linked to the finding or prevention of a criminal act or an administrative infringement, or the protection of public order or domestic security? |
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1.

Must Article 21(1) of the Treaty on the Functioning of the European Union, in conjunction with Articles 67 and 72 of that Treaty and in the light of the limitations permitted under European Union law on the freedom of European Union citizens to move freely within the territory of the Member States, be interpreted as not precluding a provision of national law of a Member State, such as the one at issue in the case in the main proceedings, namely point 5 of Article 63(1) of the Zakon za ministerstvoto na vatreshnite raboti (Law on the Ministry for Home Affairs), pursuant to which the police authorities are authorised to order the detention, for a maximum of 24 hours, of a citizen of a Member State in order to establish his identity following a check which does not fall within one the cases laid down in the law of that Member State in which such checks are permitted to enable the police authorities to identify an individual, and which is not expressly linked to the finding or prevention of a criminal act or an administrative infringement, or the protection of public order or domestic security?

| 2. | Does it result from Article 52(1) of the Charter of Fundamental Rights of the European Union, interpreted in conjunction with the limitation on the rights laid down in Articles 6 and 45(1) of that Charter and in accordance with the European Union law principle of protection from arbitrary or disproportionate interference with the freedom of action of natural persons, that a provision of national law such as the one at issue in the case in the main proceedings, namely point 5 of Article 63(1) of the Zakon za ministerstvoto na vatreshnite raboti in relation to police detention for a maximum of 24 hours, may be applied — provided that a national of a Member State cannot be identified in accordance with the procedures laid down by law — pursuant to which such detention is permissible under the following conditions:






  A. | the police authorities have discretion to order such a measure where it is impossible to identify the individual on the basis of an identification document, through another person whose identify is already known or by any other permissible means; |
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2.

Does it result from Article 52(1) of the Charter of Fundamental Rights of the European Union, interpreted in conjunction with the limitation on the rights laid down in Articles 6 and 45(1) of that Charter and in accordance with the European Union law principle of protection from arbitrary or disproportionate interference with the freedom of action of natural persons, that a provision of national law such as the one at issue in the case in the main proceedings, namely point 5 of Article 63(1) of the Zakon za ministerstvoto na vatreshnite raboti in relation to police detention for a maximum of 24 hours, may be applied — provided that a national of a Member State cannot be identified in accordance with the procedures laid down by law — pursuant to which such detention is permissible under the following conditions:

A.

the police authorities have discretion to order such a measure where it is impossible to identify the individual on the basis of an identification document, through another person whose identify is already known or by any other permissible means;

| B. | the provision neither governs how to assess whether it is necessary to identify the individual, nor provides for an assessment of the individual’s conduct or whether, in the circumstances of the case, it has become necessary for the police authorities to make use of the authority made available to them under law; |
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B.

the provision neither governs how to assess whether it is necessary to identify the individual, nor provides for an assessment of the individual’s conduct or whether, in the circumstances of the case, it has become necessary for the police authorities to make use of the authority made available to them under law;

| C. | the identification of the individual is not based expressly on the cases in which the law authorises measures to be adopted to identify an individual; identification is also possible by merely consulting an information system or by another reliable means other than identification mesaures; |
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C.

the identification of the individual is not based expressly on the cases in which the law authorises measures to be adopted to identify an individual; identification is also possible by merely consulting an information system or by another reliable means other than identification mesaures;

| D. | the application of the provision is subject to review by the courts only in the circumstances set out therein, since the exercise of that authority is wholly discretionary? |
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D.

the application of the provision is subject to review by the courts only in the circumstances set out therein, since the exercise of that authority is wholly discretionary?

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