Case C-443/02: Reference for a preliminary ruling by the Tribunale di Pordenone by order of that Court of 20 November 2002 in the criminal proceedings against Nicolas Schreiber
Date: 2003-02-08
Institutions: Court of Justice
Subjects: animal health, chemical product, environmental protection, interpretation of the law, interpreting, marketing, public health

8.2.2003

EN

Official Journal of the European Union

C 31/11

(the general rule) of the AuslG, nor can the last mentioned
provision fill out the terms of
the first mentioned
provision, because it conflicts with the terms of the
provision to be filled out. This contradictory legal situ-
ation creates problems when the provision is applied in
practice and consequently produces decisions which are
contrary to Community law.

‘public safety and order’

— Inadequate examination of danger to public order in the
case of the expulsion of citizens of the Union with limited
residence permits. When applying Paragraph 12 of
the Aufenthaltsgesetz/EWG, in many cases the German
authorities erroneously apply the broad interpretation of
in German
the notion of
administrative law and fail to take into account the
materially more restrictive interpretation of that notion
in the case-law of the Court of Justice (‘Bouchereau’),
which, in conjunction with Article 39(4) and Article 46
EC, is alone authoritative. This is clearly due to the fact
that the authorities reach, a contrario from the particular
scheme of Paragraph 12(1) of the Aufenthaltsgesetz/
EWG, a conclusion which is obvious but incompatible
with Community law, namely that the existence of serious
public order grounds is to be examined only in the case
of persons who possess an unlimited EC residence permit
within the meaning of
the
abovementioned rule, whereas other citizens of the Union
may therefore be expelled even on ‘simple’ public order
grounds.

the second sentence of

— General, preventative considerations unlawfully taken
into account: Expulsion as the general rule, on the basis
of a criminal conviction for the particular offence, as a
means of general prevention of crime is incompatible
with the principles applicable to the freedom of move-
ment for workers who are nationals of a Member State.
An administrative practice based on Article 47(1) and (2)
of the AuslG and thus undoubtedly also on general,
preventative considerations, is contrary to Community
law.

— Failure to take adequate account of the principle of
proportionality with regard to the fundamental right to
respect for family life: In many cases the family situation
of the person concerned (in view of the rule in Article 17
AuslG) has not, or has not been sufficiently, taken into
account, even though the ‘public order’ exception must
be applied in accordance with human rights. The Com-
mission refers in this regard in particular to the case-law
of the European Court of Human Rights, according to
which even recidivists involved in serious crime without
an individual right of residence cannot, having regard to
all the specific circumstances of the person concerned,
always be expelled. In its view, the German legal situation
and administrative practice in that regard calls for unam-
biguous and unmistakable clarification.

— Immediate expulsion in non-urgent cases:

in German
administrative practice it is found as a general rule —
almost systematically — that there exists a particular
interest in immediate enforcement of the expulsion for
the purposes of Paragraph 80(2), Head 4, of the VwGO.
The rules laid down in Articles 7 and 9 of Directive 64/
221/EEC thereby lose any significance. However, as
German law on foreign nationals does not provide a
specific procedure before an independent authority
within the meaning of Article 9 of Directive 64/221/EEC,
in the case of the expulsion of citizens of the Union
suspensive effect may be excluded by an order under
Paragraph 80(2), Head 4, of
the VwGO only when
‘urgency’ exists within the meaning of Article 9(1) of
Directive 64/221/EEC. In the Commission’s view, such a
case of urgency can be held to exist only if immediate
enforcement is the only means to avert a specific, direct
and serious danger to public order and the existence of
that enhanced requirement has been specifically estab-
lished by the authority. Furthermore, in the Commission’s
view, the principle of proportionality also requires, at
least in the case of long-term resident citizens of the
Union, to order the immediate enforcement of an expul-
sion order only in exceptional cases for particularly
serious and urgent reasons. The German legal position
and administrative practice must be unambiguously and
unmistakably clarified in that regard too.

(1) OJ, English Special Edition, 1963-1964, p. 117 .
(2) OJ, English Special Edition, 1968 (II), p. 475.
(3) OJ L 172 of 28.6.1973, p. 14.
(4) OJ L 180 of 13.7.1990, p. 26.

Reference for a preliminary ruling by the Tribunale di
Pordenone by order of that Court of 20 November 2002
in the criminal proceedings against Nicolas Schreiber

(Case C-443/02)

(2003/C 31/16)

Reference has been made to the Court of
Justice of the
European Communities by order of the Tribunale di Pordenone
(Pordenone District Court) of 20 November 2002, received at
the Court Registry on 6 December 2002, for a preliminary
ruling in the criminal proceedings against Nicolas Schreiber
on the following questions:

1. Must Article 2(1)(a) and (b) of Directive 98/8/EC (1), in
the light of the general rules which that directive intro-

C 31/12

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Official Journal of the European Union

8.2.2003

duces into the Community legal order, be construed as
meaning that the terms ‘biocidal products’ and ‘low-risk
biocidal product’ refer solely to products whose biocidal
function depends on active substances added to those
products by chemical or biological means through pro-
cesses expressly designed to add such substances in order
to confer on those products a biocidal function?

2. Must Article 2(1)(c) of Directive 98/8/EC, in the light of
the general rules which that directive introduces into the
Community legal order, be construed as meaning that the
term ‘basic substance’ refers to substances which are not
added to a product in order to enable it to perform an
intended biocidal function but such a biocidal function is
performed in addition to the function normally perfor-
med by that product during its use (as an example: liquid
for a dishwasher which, by virtue of the addition of a
substance designed to improve its detergent function,
may also have a bactericidal function)?

3. May a piece of red cedar wood, simply by virtue of the
fact that it is marketed as being ‘anti-moth’, be classifiable
as a ‘biocidal product’, as a ‘low-risk biocidal product’ or
as a ‘basic substance’ within the meaning of Directive 98/
8/EC, bearing in mind that: (a) the wood in question has
in no way been treated chemically or biologically; (b) the
substance on which the effects attributed to the wood
may depend is naturally present in the product; (c) the
product is substantially marketed as found in its natural
state?

4. Must Article 2(1)(c) of Directive 98/8/EC be construed as
meaning that it is only if a ‘basic substance’ is included
on the list referred to in Annex IB that that substance
may be exempted from the authorisation and registration
provided for the marketing in the Member States of
products covered by Article 2, with such inclusion on the
list referred to in Annex IB thus acquiring constitutive
effectiveness for all purposes?

5. Must Article 4 of Directive 98/8/EC, by reference to
Articles 28 EC and 30 EC, be construed as meaning that
a product such as that described in Question 3, placed
lawfully on the market in a Member State without any
need for authorisation or registration in that Member
State, may be made subject to authorisation or regis-
tration in another Member State in which it
is sub-
sequently marketed by reason of the fact that the product
in question is not included on the list referred to in
Annex IB to Directive 98/8/EC?

( 1) Directive 98/8/EC of the European Parliament and of the Council
of 16 February 1998 concerning the placing of biocidal products
on the market (OJ L 123 of 24.04.1998, p. 1).

Reference for a preliminary ruling by the Monomeles
Protodikio Athinon by order of that Court of 11 July
2002 in the case of Fixtures Marketing Limited against
Organismos Prognostikon Agonon Podosphairou AE

(Case C-444/02)

(2003/C 31/17)

Justice of the
Reference has been made to the Court of
European Communities by order of the Monomeles Protodikio
Athinon (Single-Judge Court of First Instance, Athens) of
11 July 2002, received at the Court Registry on 9 December
2002, for a preliminary ruling in the case of Fixtures Marketing
Limited against Organismos Prognostikon Agonon Podosphai-
rou AE (Football-match-results-forecasting Undertaking) on
the interpretation of Article 7 of Directive 96/9/EC and the sui
generis right thereunder in connection with the following
issues:

1.

2.

the concept of databases and the scope of Directive 96/
9/EC (1) and in particular Article 7 thereof (sui generis
right).

Further to determination of the scope of the directive,
whether the lists of football fixtures enjoy protection as
databases over which there is a sui generis right in favour
of the maker and with what consequences.

3. How exactly the database right is infringed and whether
it is protected in regard to rearrangement of the contents
of the database.

(1) OJ L 77 of 27.3.1996, p. 20.

Appeal brought on 9 December 2002 by Glaverbel against
the judgment delivered on 9 October 2002 by the Second
Chamber of the Court of First Instance of the European
Communities in case T-36/01 (1) between Glaverbel and
the Office for Harmonization in the Internal Market
(Trademarks and Designs) (OHIM)

(Case C-445/02 P)

(2003/C 31/18)

An appeal against the judgment delivered on 9 October 2002
by the Second Chamber of the Court of First Instance of the
European Communities in case T-36/01 between Glaverbel
and the Office for Harmonization in the Internal Market
(Trademarks and Designs) (OHIM), was brought before the
Court of Justice of the European Communities on 9 December
2002 by Glaverbel, represented by Susanne Möbus, Attorney
at Law, with an address for service in Luxembourg.