Case C-441/02: Action brought on 5 December 2002 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2003-02-08
Institutions: Court of Justice
Subjects: EU national, European Commission, Germany, action for failure to fulfil an obligation, public order, public safety, removal, residence permit

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)

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(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-