Case C-438/02: Reference for a preliminary ruling from Stockholms tingsrätt by decision of of 29 November 2002 in the case of Åklagaren v Krister Hanner
Date: 2003-02-08
Institutions: Court of Justice
Subjects: interpretation of the law, over-the-counter drug, pharmaceutical legislation, retail trade

8.2.2003

EN

Official Journal of the European Union

C 31/9

4.

and by failing to institute criminal or administrative
proceedings against masters or other persons
responsible for fishing taking place after the prohib-
ition of fishing,

the Republic of Finland has failed to fulfil its obligations
under Article 9 of Regulation (EEC) No 3760/92 (1) and
Articles 2, 21 and 31 of Regulation (EEC) No 2847/93 (2),
and

— order the Republic of Finland to pay the costs.

Pleas in law and main arguments

A b s e n c e o f a p p r o p r i a t e d e t a i l e d r u l e s c o n -
c e r n i n g t h e u s e o f a l l o c a t i o n s

Certain stocks of fish referred to in the annexes to the aforesaid
regulations were overfished in 1995 and 1996 by vessels
flying the Finnish flag. It appears from the Finnish Govern-
ment’s response to the Commission’s reasoned opinion that
Finland accepts the Commission’s complaint of overfishing in
1995 and 1996 as specified in detail in the tables annexed to
the Commission’s official notice.

A b s e n c e
a n d m o n i t o r i n g
m e a s u r e s c o n c e r n i n g t h e u s e o f a l l o c a t i o n s

i n s p e c t i o n

o f

It is clear on the basis of the excess fishing which took place
in 1995 and 1996 that Finland breached Article 2 of the
monitoring regulation. In its response to the Commission’s
reasoned opinion Finland accepts that the monitoring arrange-
ments did not operate adequately. Finland refers in particular
to the difficulties which derived from Finland’s accession to
the European Union and the changes required by membership
to the Finnish legislation on fishing.

L a t e s u s p e n s i o n o f f i s h i n g

A b s e n c e o f c r i m i n a l p r o c e e d i n g s o r a d m i n -
i s t r a t i v e a c t i o n

It appears from the Finnish Government’s answer to the
Commission’s reasoned opinion that no measures in accord-
ance with Article 31 of the monitoring Regulation No 2847/
93 have been taken.

(1) Council Regulation (EEC) No 3760/92 of 20 December 1992
establishing a Community system for fisheries and aquaculture
(OJ 1992 L 389, p. 1).

(2) Council Regulation (EEC) No 2847/93 of 12 October 1993
establishing a control system applicable to the common fisheries
policy (OJ 1993 L 261, p. 1).

Reference for a preliminary ruling from Stockholms
tingsrätt by decision of of 29 November 2002 in the case
of Åklagaren v Krister Hanner

(Case C-438/02)

(2003/C 31/14)

Reference has been made to the Court of
Justice of the
European Communities by a decision of Stockholms tingsrätt
of 29 November 2002, which was received at the Court
Registry on 4 December 2002, for a preliminary ruling in the
case of Åklagaren v Krister Hanner on the following questions:

1.

There is an independent system at national level for the
testing and approval of medicinal products intended to
maintain good quality for medicinal products and prevent
damaging effects of medicinal products. Certain medicinal
products also require a prescription from a registered
doctor. In such circumstances does Article 31 of the EC
Treaty preclude national legislation which provides that
retail trade in medicinal products may only be carried on
by the State or by legal persons in which the State has a
determining influence, the objective of which is to meet
the need for safe and effective medicinal products?

A Member State which terminates fishing only when it is
already known that the quota has been exceeded acts too late
and thus breaches its obligations under Article 21(2) of the
monitoring Regulation No 2847/93.
It is clear from the
Finnish Government’s response to the Commission’s reasoned
opinion that the national prohibition decisions were not made
in sufficient time to prevent excess fishing.

2. Does Article 28 of the EC Treaty preclude legislation such
in the light of the

as that described in Question 1,
information in that question.

3. Does Article 43 of the EC Treaty preclude legislation such
in the light of the

as that described in Question 1,
information in that question.

C 31/10

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Official Journal of the European Union

8.2.2003

4. Does the principle of proportionality preclude legislation
such as that described in Question 1, on examination of
Questions 1 to 3?

5. Would the answer to Questions 1 to 4 be different if
‘non-prescription’ medicinal products were entirely or
partly exempted from the requirement under national
legislation that retail trade in medicinal products be
carried on only by the State or by legal persons in which
the State has a determining influence?

Action brought on 5 December 2002 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

(Case C-441/02)

(2003/C 31/15)

4.

5.

in adopting expulsion orders against citizens of
the Union which fail to maintain a reasonable
to
relationship between the fundamental
respect for the right to family life, on the one hand,
and the preservation of public order, on the other;

right

in ordering the immediate enforcement of expulsion
orders against citizens of the Union in non-urgent
cases;

the Federal Republic of Germany has failed to fulfil its
obligations under Articles 18 and 39 of the EC Treaty,
under the fundamental right to respect for family life as a
general principle of Community law, and under Articles 3
and 9 of Directive 64/221/EEC (1) on the coordination of
special measures concerning the movement and residence
of foreign nationals which are justified on grounds of
public policy, public security or public health, Article 1
of Regulation (EEC) No 1612/68 (2) on freedom of
movement for workers, Articles 1, 4, 5, 8 and 10 of
Directive 73/148/EEC (3) on the abolition of restrictions
on movement and residence within the Community for
nationals of Member States with regard to establishment
and the provision of services, and Articles 1 and 2 of
Directive 90/364/EEC (4) on the right of residence;

— Order the Federal Republic of Germany to pay the costs.

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 5 December 2002 by the Commission of the European
Communities, represented by C. O’Reilly and W. Bogensberger,
with an address for service in Luxembourg.

Pleas in law and main arguments

The Commission claims that the Court should find that:

— 1.

in failing to make sufficiently clear in its legislation
that expulsion orders against citizens of the Union
may not be based on an enabling provision which
provides mandatorily for expulsion on the ground
of a final criminal conviction or provides mandatori-
ly for it as the general rule, or in basing expulsion
orders against citizens of the Union on this unclear
enabling provision;

2.

3.

in failing to implement in sufficiently clear terms in
Paragraph 4 12(1) of the Aufenthaltsgesetz/EWG
the requirements under Community law with regard
to restriction of freedom of movement, or in basing
expulsion orders against citizens of the Union on
this unclear enabling provision;

in failing to make sufficiently clear in its legislation
that expulsion orders against citizens of the Union
may not be based on an enabling provision which
pursues general preventative aims, or in justifying
expulsion orders against citizens of the Union with
deterrence of other foreign nationals;

— Mandatory (automatic) expulsion fails to take adequate
account of individual conduct: The provisions of Para-
graph 47(1) and (2) of the Ausländergesetz (AuslG) are,
in so far as they relate to citizens of the Union, flagrantly
and inevitably contrary to the requirements of Article 3(2)
of Directive 64/221/EEC, under which criminal convic-
tions may not
in themselves constitute grounds for
automatic expulsion. They also conflict with the require-
ment in Article 3(1) of Directive 64/221/EEC, which
requires an assessment of the personal conduct of the
‘individual concerned’, i.e. an examination of the individ-
ual case. However, Paragraph 47(1) and (2) (the general
rule) of the AuslG deprive the authorities of precisely the
discretion which they must have for such an assessment
of the individual case and replaces it with the legislature’s
general assessment which exclusively takes account of
the conviction. Although Paragraph 12 of the Aufen-
thaltsgesetz/EWG provides that a criminal conviction in
itself does not suffice for the expulsion of a foreign
national (subparagraph 4) and the determining factor is
whether his personal conduct gives cause to expel him
for reasons of public order and security (subparagraph 3),
Paragraph 12(3) and (4) of the Aufenthaltsgesetz/EWG
and Article 3(1) and (2) of Directive 64/221/EEC cannot
be understood as a mere ‘supplement’ and ‘modification’
to mandatory expulsion under Paragraph 47(1) and (2)