14.

In the proceedings before the Landgericht Darmstadt Mr Leifer, joined by Mr Hölzer, sought and obtained a stay of the proceedings and a reference to this Court. The referring court indicates that it has considerable doubt, in particular after taking note of the Commission proposal for a Council Regulation on the control of exports of certain dual-use goods and technologies and of certain nuclear products and technologies, ( 5 ) whether the Federal Republic of Germany has the competence to introduce a licensing procedure for trade with third countries and to introduce criminal sanctions in relation thereto. It therefore asks the Court the following questions: ‘1. (a) Is Article 113 of the EEC Treaty to be interpreted as meaning that it covers national rules restricting the expon to nonmember countries of goods which may be used for both military and civil purposes (so-called dual-use goods) ...? ( 6 ) (b) Are only the Community institutions competent therefore to impose such export restrictions, subject to any power in favour of individual Member States and subject to the exceptions provided for in the EEC Treaty? If so: 2. Are Articles 223(l)(b) and 224 of the EEC Treaty and Article 11 of Regulation No 2603/69 of the Council of 20 December 1969 establishing common rules for exports (Official Journal, English Special Edition 1969 (II), p. 590), as last amended by Council Regulation (EEC) No 3918/91 of 19 December 1991 (Official Journal 1991 L 372, p. 31) (hereafter “the Export Regulation”), to be interpreted as meaning that by way of exception they allow a Member State to adopt national provisions such as those described in Question 1 to restrict the export of dual-use goods to nonmember countries? 3. Are Articles 223(l)(b) and 224 of the EEC Treaty and Article 11 of the Export Regulation to be interpreted as meaning that they allow Member States to adopt national provisions, (a) which impose the whole burden of proving that dual-use goods are intended for civil use on the applicant as a condition for the grant of an export licence? (b) according to which an export Učence may be refused if the goods are objectively suitable for military use? 4. (a) Should Article 1 of the Export Regulation be interpreted as meaning that the freedom to export provided for covers the freedom from export licensing procedures and national penalties for infringement of national export licensing regulations? (b) Do penalties of the Member States have the effect of restricting the freedom to export within the meaning of Article 1 of the Export Regulation and have the individual Member States no power to adopt such penalties unless empowered by the Community institutions and subject to the exception in Article 11 of the Export Regulation? 5. (a) Are Article 223(1 )(b) and 224 of the EEC Treaty and Article 11 of the Export Regulation to be interpreted as meaning that the individual Member States may exceptionally adopt export licensing procedures with penalties for infringement, not in order to safeguard their security, but merely in order to prevent considerable disturbance to the peaceful coexistence of nations or to prevent the external relations of the Member State concerned from being considerably disturbed (cf. the provisions of points 2 and 3 of Paragraph 7(1) of the German Aussenwirtschaftsgesetz (Foreign Trade Law) (hereafter “the AWG”))? (b) Are Articles 223(1 )(b) and 224 of the EEC Treaty and Article 11 of the Export Regulation to be interpreted as meaning that they permit the individual Member States exceptionally to adopt criminal provisions which allow a penalty to be imposed for the export without a licence of dual-use goods and POCL3 which may be used for both military and civil purposes, as provided for in Paragraph 34(1), point 3, Paragraph 33(1) and Paragraph 7(1) of the AWG in conjunction with Paragraph 70(1), point 1, Paragraph 5 and Paragraph 5a of the AWV and Section A, C No 1710 and Section D of Part I of the export list in the versions of 14 May 1984 and 6 August 1984, and are such criminal provisions, which include imprisonment, compatible with the principle of proportionality? (c) Are Articles 223(l)(b) and 224 of the EEC Treaty and Article 11 of the Export Regulation to be interpreted as meaning that they permit Member States in the event of the unauthorized export of dual-use goods to impose imprisonment and fines if the goods may objectively be used for military purposes? (d) Does Community law allow a penalty to be imposed only if it is proved that there is a reasonable likelihood of the military use of dual-use goods and that the exporter has knowledge thereof? 6. If the questions are answered wholly or partly in the negative: Does Article 113 of the EEC Treaty and/or Article 1 of the Export Regulation have direct effect in favour of individual citizens with the consequence that Article 113 of the EEC Treaty and/or Article 1 of the Export Regulation create rights in favour of the individual Community citizen which the national courts must protect?’