Opinion of the Advocate General — ECLI:EU:C:2003:455
Date: 2003-09-11
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Freedom to provide services;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

summary then, the legal position in Baden-Württemberg applicable in the main proceedings following the introduction of Paragraph 6a of the AGVwGO does not provide for an independent competent authority within the meaning of Article 9(1) of Directive 64/221 which issues an opinion at the time laid down in Community law in cases in which the Regierungspräsidium has jurisdiction to an expulsion order. 91. Finally, it should be noted that Article 9 of Directive 64/221 has been classified by the Court (30) as sufficiently well-defined and specific and therefore can be invoked by individuals without having to wait for an adjustment of federal or Land law. 92. The answer to the second question submitted for a preliminary ruling should therefore be that on a proper construction of Article 9(1) of Directive 64/221 national legislation – which does not provide for objection proceedings in which an examination of expediency is also carried out in relation to an administrative authority’s decision to expel the holder of a residence permit from the national territory in circumstances where a special body independent of the administrative authority adopting the decision has not been established – is not precluded provided that an appeal is possible that permits an exhaustive examination of all the facts and circumstances, including the expediency of the proposed measure. VII – First question submitted for a preliminary ruling in Case C-493/01 A – Main arguments of the parties 93. The Regierungspräsidium Stuttgart submits that Article 39 EC and Article 3 of Directive 64/221 do not preclude the rules contained in Paragraph 45 of the Ausländergesetz and Paragraph 12 of the Aufenthaltsgesetz/EEC. The fact that the requirements of Paragraph 47(1) of the Ausländergesetz are satisfied does not make it mandatory for authorities to expel an individual. Furthermore, an examination of the specific case is carried out which also takes account of compatibility with the principle of proportionality. Moreover, since the orders in the main proceedings were based on aspects relating to individual deterrence, the first question submitted is not material. 94. The German and Italian Governments make the same observations on this question as they did on the first question in Case C-482/01. 95. The Commission considers that Directive 64/221 implements the derogation relating to public policy contained in Article 39(3) EC, and it points to the two central principles of Article 3 of this directive. First, measures taken on grounds of public policy or of public security are to be based solely on the personal conduct of the individual concerned. Secondly, previous criminal convictions are not in themselves to constitute grounds for the taking of such measures. 96. On the basis of the Court’s case-law the Commission concludes that Article 39(3) EC and Article 3 of Directive 64/221 preclude national legislation which makes it mandatory for authorities to expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years, or to a term of imprisonment, for an intentional criminal offence under the Betäubungsmittelgesetz where the sentence has not been suspended. B – Appraisal 1. Admissibility of the first question submitted for a preliminary ruling 97. Since the Regierungspräsidium Stuttgart takes the view that the first question submitted is not at all material, it is necessary first to examine the admissibility of this question. 98. According to the Court’s established case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must rule thereon, to determine in the light of the particular case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. (31) 99. On the other hand, the Court’s functions do not include delivering advisory opinions on general or hypothetical questions. (32) Similarly, the Court can decline to rule on a question submitted by a national court where, for example, the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a helpful answer to the questions submitted to it. (33) Moreover, in order to enable the Court to give a useful interpretation of Community law, it is essential for the national court to explain why it considers that an answer to its questions is necessary for resolving the dispute. (34) 100. In the present case it is not apparent that one of these grounds of inadmissibility obtains in respect of the question submitted for a preliminary ruling. Even if it were true that the orders in the main proceedings were based also on aspects relating to individual deterrence, that would not render the question inadmissible. 101. Therefore, the first question submitted for a preliminary ruling is admissible. 2. Substance of the first question submitted for a preliminary ruling 102. The first question submitted for a preliminary ruling is worded in such a way that it makes reference exclusively and specifically to national legislation which makes it mandatory for authorities to expel individuals in particular cases. In this context it should be noted that it is evident from the decision at issue in the main proceedings that the authority itself assumes that Paragraph 47(1)(2) of the Ausländergesetz provides for expulsion as a mandatory legal consequence. 103. Furthermore, it is likewise not for the Court, in preliminary ruling proceedings, to interpret provisions of national law, that is to say, for example, to determine whether and in what respect the provisions concerning ‘expulsion as a rule’ give the authorities a margin of discretion. (35) 104. Moreover, the question submitted for a preliminary ruling does not refer specifically to a particular provision of the Ausländergesetz and therefore there is no need to consider the problem of the disputed relationship between Paragraph 12 of the Aufenthaltsgesetz/EWG and Paragraph 47 of the Ausländergesetz. (36) 105. Nor is it necessary in these preliminary ruling proceedings to consider the conformity of national implementing measures or to examine whether and to what extent an interpretation of the national legislation in conformity with Community law is possible and is actually practised by the administrative authorities and the courts. According to its case-law, the Court may not, in preliminary ruling proceedings, rule upon the compatibility of a provision of domestic law with Community law. (37) 106. The question submitted concerns the following four points: an intentional criminal offence, an intentional criminal offence under the Betäubungsmittelgesetz, a final sentence, and non-suspension of the sentence. 107. It is evident from Article 3 of Directive 64/221, the provision to be interpreted in this case, that there are two limits on the Member State taking measures under the law relating to aliens. 108. First, Article 3(1) of Directive 64/221 requires that measures ‘be based exclusively on the personal conduct of the individual concerned’. 109. The German legislation appears to satisfy this criterion since its defining elements refer to the personal conduct of the individual concerned, inasmuch as what matters is the nature of the fault, the infringement of a particular law, the nature and term of the sentence and the absence of suspension. 110. Secondly, Article 3(2) of Directive 64/221 provides that ‘[p]revious criminal convictions shall not in themselves constitute grounds for the taking of such measures’. 111. According to the Court’s case-law, when the future conduct of the individual concerned is assessed for the purposes of the law relating to aliens there is a duty to consider whether there is a genuine and sufficiently serious threat to one of the fundamental interests of society. (38) It also follows from the Court’s case-law that ‘general considerations’ are prohibited. (39) Such general considerations exist also where national law makes expulsion mandatory in general and abstract terms. Such legal constructions prevent a – substantive – examination of a specific case. 112. In any event, the application of a general and abstract provision to a specific case is not consistent with the prohibition on ‘general considerations’. This is evident precisely in legislation such as that in the main proceedings (40) which lays down ‘standardised criteria’ on the basis of which a particular threat is inferred. Therefore, even if an individual threat assessment were carried out in such cases, no weight could be attributed to it on account of the mandatory nature of the expulsion and it would not have the importance conferred on it by Community law. 113. In this context note should be taken of the comparison which the Commission rightly makes between the legislation at issue and the national legislation which was the subject of the proceedings in Calfa. In that case too the authorities had to order expulsion. (41) The fact that it concerned expulsion for life is immaterial because it was the automatic nature of the national provision that rendered it incompatible with Community law, as is evident from the Court’s interpretation of Calfa in the case of Nazli. (42) 114. The answer to the first question submitted for a preliminary ruling should therefore be that Article 39(3) EC and Article 3 of Directive 64/221 preclude national legislation which makes it mandatory for authorities to expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years, or to a term of imprisonment, for an intentional criminal offence under the Betäubungsmittelgesetz where the sentence has not been suspended. VIII – Second question submitted for a preliminary ruling in Case C-493/01 A – Main arguments of the parties 115. In the view of the Regierungspräsidium Stuttgart, the second question submitted for a preliminary ruling in this case is irrelevant. The illness acquired after the expulsion constitutes an obstacle to deportation and consequently affects the legality of the enforcement of the expulsion, not the lawfulness of the expulsion itself. Moreover, Community law does not preclude the time of the adoption of a measure from being regarded as the material time. Finally, the question of a time-limit on the expulsion does not necessarily depend on the individual concerned already having left the country. 116. The German Government submits that it does not follow from Article 3 of Directive 64/221 that submission of a report and a positive development in the person concerned which occurred after the final decision of the authority must be taken into account when the lawfulness of the expulsion is reviewed. The authority is not able to take into consideration actual future developments. Therefore it is the time at which a decision is adopted which is decisive. Since Article 3 lays down only the substantive requirements relating to measures adopted under the law relating to aliens, it cannot alter the position in that regard. 117. Developments following the adoption of the final decision of the authority must be taken into account in the context of a decision on an application for a time-limit to be placed on the expulsion. That can result in the lifting of the prohibition on re-entry and the issuing of a new residence permit. Moreover, new facts must be taken into account in relation to enforcement of the expulsion. 118. In its observations the Italian Government does not make a separate examination of the second question submitted but makes the same submissions as in Case C-482/01. 119. In the view of the Commission, it follows from the case-law of the Court that the authorities must consider whether or not there is a present threat to the requirements of public policy. Article 3 of Directive 64/221 precludes any restriction on account being taken of the submission of a report or of a positive development in the person concerned which occurred between the decision of the authority concerned and the ruling of the national court. B – Assessment 120. By the second question the national court asks whether national courts are required to take account of certain developments in the person concerned which occurred after the final decision of the authority. The main proceedings are concerned essentially with the fact that the person concerned developed Aids after the action was brought and will presumably soon die in spite of treatment. 121. This question concerns another matter of dispute in German law, that is to say the material time to be taken into consideration by the national court. In that regard three positions can be distinguished as regards the interpretation of the relevant provision of national procedural law, that is to say Paragraph 113 of the Verwaltungsgerichtsordnung. Whilst according to the first position the conclusion of the administrative proceedings is decisive, according to the second position the time of the application for annulment is decisive. According to a third position, it is the factual and legal situation at the time of the final oral procedure that is decisive. The present case relates to proceedings before an administrative court which were initiated by an action for annulment. 122. Under national law the question has already arisen as to whether the solution is to be found at all in administrative law alone rather than in substantive law. Applied to the main proceedings, this would mean that the solution is to be sought in the national law relating to aliens. 123. However, in view of the Court’s function in preliminary ruling proceedings, it is Community law and not national law which should be taken as the starting point in the present case. 124. It is first necessary to start with Article 3 of Directive 64/221, which is expressly referred to in the question submitted. 125. According to the Court’s case-law, that provision must be interpreted as meaning that ‘the circumstances which gave rise [to that criminal conviction] are evidence of personal conduct constituting a present threat to the requirements of public policy’. (43) 126. Therefore, the decisive factor is a present threat, although an assessment of the future may indeed be necessary. However, no more specific information as to what constitutes the ‘present’ is evident from the wording of Article 3 of Directive 64/221 or the case-law based thereon. 127. Although the case of Santillo, (44) cited by the Commission, also relates to a temporal aspect, it concerns the period between the opinion of the independent competent authority and the expulsion order. 128. However, the principle underlying Santillo, namely that ‘the factors to be taken into account, particularly those concerning [a person’s] conduct, are likely to change in the course of time’, applies in respect of the period between the expulsion order and its review by the administrative court, which is the material period in this case. 129. German law relating to aliens, which – from the point of view of Community law – also includes the procedural law of administrative courts in this field, must also comply with this principle. 130. Where Community law does not provide for more specific rules, national procedural law does, in principle, apply. However, in that respect it is necessary to apply the case-law of the Court, according to which ‘it is for the domestic legal system of each Member State ... to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)’. (45) 131. It can be inferred from this that the exercise of the rights conferred on a person affected by an expulsion order by Directive 64/221 is rendered excessively difficult for him if he is unable to put forward new facts in pending administrative proceedings, including proceedings before an administrative court, but must make a specific application for a time-limit on expulsion and if any developments that have occurred in the meantime can be taken into account only in the decision on that application. 132. However, not only the assertion of rights by the person concerned is relevant under Community law. Community law also requires that the bodies responsible under national law, that is to say also the administrative courts, must be able to ensure the exercise of rights and are not hindered in this respect by provisions of procedural law. 133. Such a hindrance would, however, exist if administrative courts could consider new developments only upon application and were barred from taking them into account of their own motion. 134. Therefore, it follows that national procedural law, that is to say also Paragraph 8 of the Ausländergesetz or the Verwaltungsgerichtsordnung, must be interpreted in conformity with Community law as meaning that a time-limit on expulsion is also to be granted of a court’s own motion. (46) 135. However, even if it is concluded that a time-limit must be granted in any event also of a court’s own motion, it must still be asked whether or not the requirements of Community law are thereby satisfied. 136. Although the taking into account of further developments in connection with a decision on a time-limit on expulsion can result in the lifting of the prohibition on re-entry and the issuing of a new residence permit, this possibility does not constitute an adequate instrument which satisfies the requirements of Community law. 137. Thus, the problem of taking account of further developments arises also in respect of expulsion orders themselves. Although an expulsion order is not an administrative measure with permanent effect, new developments could be taken into consideration for as long it is not enforced. Since an expulsion order is based on an expulsion prognosis, that is to say an assessment with no temporal limit, (47) new developments are of great practical importance precisely in relation to the expulsion. 138. The answer to the second question submitted for a preliminary ruling should therefore be that Article 3 of Directive 64/221 is to be interpreted as meaning that the submission of a report and a positive development in the person concerned which occurred after the final decision of the authority must also be taken into account by the national courts when they review the lawfulness of the expulsion of an EU national. IX – Conclusion 139. In the light of those considerations I propose that the Court should answer the national court’s questions as follows: A – In Case C-482/01 (1) Article 3 of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health is to be interpreted as not precluding a restriction on the freedom of movement of a foreign EU national with many years’ residence in a host State, ordered on account of a criminal offence under the Betäubungsmittelgesetz on grounds of public policy, public security or public health, in so far as that measure is proportionate in the light of Article 8 of the European Convention on Human Rights and Fundamental Freedoms, in particular where, on account of the EU national’s personal conduct, there is a justified expectation that he will also commit future criminal offences and where the spouse of that EU national and his children can reasonably be expected to live in his State of origin. (2) On a proper construction of Article 9(1) of Directive 64/221/EEC national legislation – which does not provide for objection proceedings in which an examination of expediency is also carried out in relation to an administrative authority’s decision to expel the holder of a residence permit from the national territory in circumstances where a special body independent of the administrative authority adopting the decision has not been established – is not precluded provided that an appeal is possible that permits an exhaustive examination of all the facts and circumstances, including the expediency of the proposed measure. B – In Case C-493/01 (1) Article 39 EC and Article 3 of Directive 64/221/EEC preclude national legislation which makes it mandatory for authorities to expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years, or to a term of imprisonment, for an intentional criminal offence under the Betäubungsmittelgesetz where the sentence has not been suspended. (2) Article 3 of Directive 64/221/EEC is to be interpreted as meaning that the submission of a report and a positive development in the person concerned which occurred after the final decision of the authority must also be taken into account by the national courts when they review the lawfulness of the expulsion of an EU national. 1 – Original language: German. 2 – OJ, English Special Edition 1963-1964 (I), p. 117. 3 – BGBl. I 1990, p. 1354, in the version of the Law of 16 February 2001, BGBl. I, p. 266. 4 – The version published in the Notice of 31 January 1980, BGBl. I, p. 116, as amended by the Law of 27 December 2000, BGBl. I, p. 2042. 5 – Bundesanzeiger No 188a of 6 October 2000. 6 – Law of 10 May 1999, GBl. p 173. 7 – See, in particular, Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paragraph 50, Case C-332/88 Alimenta [1990] ECR I-2077, paragraph 9, and Case 139/85 Kempf [1986] ECR 1741, paragraph 12. 8 – Case 36/75 Rutili [1975] ECR 1219, paragraph 27, and Case 30/77 Bouchereau [1977] ECR 1999, paragraph 33; see also Case C-100/01 Olazabal [2002] ECR I-10981, paragraph 30 et seq. 9 – Case 30/77, cited above in footnote 8, and Case C-340/97 Nazli [2000] ECR I-957, paragraph 57. 10 – Case 67/74 Bonsignore [1975] ECR 297, paragraph 6, Case C-348/96 Calfa [1999] ECR I-11, paragraph 27, and Case C-340/97, cited above in footnote 9, paragraph 59. 11 – Case 67/74, cited in footnote 10 above, paragraph 7, Case 36/75, cited in footnote 8 above, paragraph 29, Case 48/75 Royer [1976] ECR 497, paragraph 46, Joined Cases 115/81 and 116/81 Adoui and Cornuaille [1982] ECR 1665, paragraph 11, and Case C-340/97, cited in footnote 9 above, paragraphs 59 and 63; see also Case C-100/01, cited in footnote 8 above, paragraph 30 et seq. 12 – Case 30/77, cited in footnote 8 above, paragraphs 27 and 28. 13 – Case C-340/97, cited in footnote 9 above, paragraph 58; see Case C-348/96, cited in footnote 10 above, paragraphs 22 to 24. 14 – Case C-100/01, cited in footnote 8 above, paragraph 43 and Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37. 15 – See Case C-274/99 P Connolly [2001] ECR I-1611, paragraph 37 et seq. and Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 41. 16 – Sennekamp, ‘Ist-Ausweisung menschenrechtswidrig?’, Zeitschrift für Ausländerrecht und Ausländerpolitik 2002, p. 136 (at p. 141 et seq.). 17 – Case C-60/00, cited in footnote 15 above, paragraph 41. Although this paragraph refers to a ‘decision to deport’, the main proceedings relate to a ‘decision to make a deportation order’. 18 – Case C-60/00, cited in footnote 15 above, paragraph 42; see judgment of the ECHR in the case of Boultif v Switzerland of 2 August 2001, Reports 2001-IX, §§ 39, 41 and 46. 19 – Case C-100/01, cited in footnote 8 above, paragraph 44; see Case 30/77, cited in footnote 8 above, paragraph 30. 20 – See judgments of the ECHR in Berrehab v The Netherlands of 21 June 1988, Series A, No 138, §§ 7 and 29, Mehemi v France of 26 September 1997, Reports 1997-VI, Boultif v Switzerland, cited in footnote 18 above, Sen v The Netherlands of 21 December 2001, not yet published in the Reports, § 40, Yildiz v Austria of 31 October 2002, not yet published in the Reports, § 43, and Jakupovic v Austria of 6 February 2003, not yet published in the Reports, § 29. 21 – See judgment of the ECHR in Beldjoudi v France of 26 March 1992, Series A, No 234, in which it was found that there had been an infringement even though a sentence of eight years had been passed; on the other hand, in Amrollahi v Denmark of 11 July 2002, not yet published in the Reports, no reference was made to the length of the sentence. 22 – Case C-357/98 Yiadom [2000] ECR I-9265, paragraphs 27 and 29. See Case 131/79 Santillo [1980] ECR 1585, paragraph 12, Joined Cases 115/81 and 116/81, cited in footnote 11 above, paragraph 15, Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 62, and Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 34. 23 – Joined Cases 115/81 and 116/81, cited in footnote 11 above, paragraph 15, Case 131/79, cited in footnote 22 above, paragraph 12, and Case C-175/94 Gallagher [1995] ECR I-4253, paragraph 17. 24 – Joined Cases 209/84 to 213/84 Asjes and Others [1986] ECR 1425, paragraph 12, Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, paragraph 36, and Case C-28/99 Verdonck and Others [2001] ECR I-3399, paragraph 28. 25 – Case 131/79, cited in footnote 22 above, paragraph 15. 26 – Case C-357/98, cited in footnote 22 above, paragraph 26; see also Case 327/82 Ekro v Produktschap voor Vee en Vlees [1984] ECR 107, paragraph 11, and Case C-287/98 State of the Grand Duchy of Luxembourg v Linster and Others [2000] ECR I-6917, paragraph 43. 27 – Emphasis added. Case 48/75, cited in footnote 11 above, paragraph 59, Case 98/79 Pecastaing v Belgium [1980] ECR 691, paragraph 17, Case 131/79, cited in footnote 22 above, paragraph 12, Joined Cases 115/81 and 116/81, cited in footnote 11 above, paragraph 15, Joined Cases C-297/88 and C-197/89, cited in footnote 22 above, paragraph 62, Case C-175/94, cited in footnote 23 above, paragraph 17, Joined Cases C-65/95 and C-111/95, cited in footnote 22 above, paragraph 34, and Case C-357/98, cited in footnote 22 above, paragraph 31. 28 – See, to that effect, for example Joined Cases C-297/88 and C-197/89, cited in footnote 22 above, paragraph 65. 29 – See Joined Cases C-297/88 and C-197/89, cited in footnote 22 above, paragraphs 61 and 66, in which the focus was placed on enforcement of the decision solely because the question submitted for a preliminary ruling specifically referred to it. 30 – Case 131/79, cited in footnote 22 above, paragraph 13. 31 – Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38, Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18, and Case C-153/00 der Weduwe [2002] ECR I-11319, paragraph 31. 32 – Case C-415/93, cited in footnote 31 above, paragraph 60, Case C-451/99 Cura Anlagen [2002] ECR I-3193, paragraph 26, Case C-153/00, cited in footnote 31 above, paragraph 32. 33 – Case C-379/98, cited in footnote 31 above, paragraph 39, Case C-390/99, cited in footnote 31 above, paragraph 19, and Case C-153/00, cited in footnote 31 above, paragraph 33. 34 – Joined Cases 98/85, 162/85 and 258/85 Bertini and Others [1986] 1885, paragraph 6, Case C-343/90 Lourenço Dias [1992] ECR I-4673, paragraph 19, and Case C-153/00, cited in footnote 31 above, paragraph 34. 35 – For example, in German legal circles the view is taken that ‘expulsion as a rule’ constitutes a sub-case of compulsory expulsion, the authorities may rely on a margin of discretion only at a secondary level, a margin of discretion may be given only in connection with atypical events, and the demarcation between rule and exception is not subject to a margin of discretion. 36 – See, on this, Harms, ‘Ausländerrecht’, in Deutsches Verwaltungsrecht unter europäischem Einfluss, 2002, paragraph 91. 37 – Joined Cases 209/84 to 213/84, cited in footnote 24 above, paragraph 12, Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95, cited in footnote 24 above, paragraph 36, and Case C-28/99, cited in footnote 24 above, paragraph 28. 38 – Case 30/77, cited in footnote 8 above, paragraph 35, and Case C-340/97, cited in footnote 9 above, paragraph 57. 39 – Case 67/74, cited in footnote 10 above, paragraph 7, Case 36/75, cited in footnote 8 above, paragraph 29, Case 48/75, cited in footnote 11 above, paragraph 46, Joined Cases 115/81 and 116/81, cited in footnote 11 above, paragraph 11, Case C-348/96, cited in footnote 10 above, paragraphs 22 to 24, and Case C-340/97, cited in footnote 9 above, paragraph 63; see Case C-100/01, cited in footnote 8 above, paragraph 30 et seq. 40 – A critical assessment of the German legal situation is given by: Beichel, ‘Das deutsche Ausweisungsrecht auf dem Prüfstand’, Informationsbrief Ausländerrecht 2002, p. 457 et seq.; Brinkmann, in: Barwig (Ed.), ‘Ausweisung im demokratischen Rechtsstaat’, 1996, p. 172 et seq.; Renner, ‘Ausländerrecht in Deutschland’, 1998, p. 564. 41 – Case C-348/96, cited in footnote 10 above, paragraph 5 et seq. 42 – Case C-340/97, cited in footnote 9 above, paragraphs 58 and 59. 43 – Case 30/77, cited in footnote 8 above, paragraph 28, Case C-348/96, cited in footnote 10 above, paragraph 24, and Case C-340/97, cited in footnote 9 above, paragraph 58. 44 – Case 131/79, cited in footnote 22 above. 45 – See, to that effect, Case C-255/00 Grundig [2002] ECR I-8003, paragraph 33. 46 – Renner, cited in footnote 40 above, p. 304 et seq., already comes to the same conclusion under national law. 47 – Beichel, cited in note 40 above, p. 460.