Case C-459/02: Reference for a preliminary ruling by the Cour de cassation du Grand-duché de Luxembourg by judgment of that Court of 14 November 2002 in the case of 1. Willy Gerekens and 2. Association agricole PROCOLA against State of the Grand Duchy of Luxembourg
Date: 2003-02-22
Institutions: Court of Justice
Subjects: agricultural quota, interpretation of the law, milk, regulation of agricultural production, retroactivity of a law

C 44/14

EN

Official Journal of the European Union

22.2.2003

1.

Can a citizen of the Union in the factual circumstances
described in this order

— who has temporary leave to remain,

— does not have sufficient resources,

— carries out work for the hostel where he lives to the
extent of some 30 hours a week in the context of a
personal reinsertion scheme, and

— receives in return benefits in kind which cover his

living expenses at the hostel itself

claim a right of residence:

— as a worker within the meaning of Article 39 EC or

Article 7(1) of Regulation No 1612/68 (1),

— or as a worker pursuing an activity as a self-
employed person within the meaning of Article 43
EC,

— or as a person providing a service, in view of the
tasks he performs at the hostel, or as a person for
whom the services are intended,
in view of the
benefits in kind granted to him by that hostel, within
the meaning of Article 49 EC,

— or merely because he participates in a scheme with
a view to his social rehabilitation and access to
employment?

2.

Should the answer be in the negative, can he rely directly
on Article 18 EC which guarantees the right to freedom
of movement and to reside in the territory of another
Member State of the Union, merely in his capacity as a
European citizen?

What then becomes of the requirements laid down
by Directive 90/364/EEC (2) and/or the ‘limitations and
conditions’ laid down in the EC Treaty, and in particular
the minimum resources requirement which, if it were
applied on entry to the host country, would deprive him
of the substantive right of residence itself?

If, conversely, the right of residence arises automatically
on the basis of citizenship of the Union, could the host
State subsequently refuse an application for the minimex
or for social assistance (that is to say, non-contributory
benefits), curtailing his right of residence on the ground
that he does not have sufficient resources, when it grants
those benefits to nationals of the host country provided
to which Belgian
they comply with requirements
nationals are also subject (proof of their availability for
work, proof that they are in need)?

Must the host country comply with any other rules in
order to avoid rendering meaningless the right of resi-
dence, such as a duty to assess the situation in the light
of the fact that the application for the minimex or for
social assistance is temporary, or taking into account the
principle of proportionality (would the burden on the
State in question be unreasonable)?

(1) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
on freedom of movement for workers within the Community (OJ
L 257 of 19.10.1968, p. 2).

(2) Council Directive 90/364/EEC of 28 June 1990 on the right of

residence (OJ L 180 of 13.7.1990, p. 26).

Reference for a preliminary ruling by the Cour de
cassation du Grand-duché de Luxembourg by judgment
of that Court of 14 November 2002 in the case of 1. Willy
Gerekens and 2. Association agricole PROCOLA against
State of the Grand Duchy of Luxembourg

(Case C-459/02)

(2003/C 44/27)

Reference has been made to the Court of
Justice of the
European Communities by judgment of the Cour de cassation
du Grand-duché de Luxembourg (Court of Cassation of the
Grand Duchy of Luxembourg) of 14 November 2002, received
at the Court Registry on 19 December 2002, for a preliminary
ruling in the case of 1. Willy Gerekens and 2. Association
agricole PROCOLA against State of the Grand Duchy of
Luxembourg on the following question:

Do the general principles of Community law of legal certainty
and non-retroactivity mean that, for the application of Com-
munity legislation establishing production quotas of the type
introduced by Council Regulation (EEC) No 856/84 of
31 March 1984 amending Regulation (EEC) No 804/68 on the
common organisation of the market in milk and milk products
(OJ 1984 L 90, p. 10) and Council Regulation (EEC) No 857/
84 of 31 March 1984 adopting down general rules for the
application of the levy referred to in Article 5c of Regulation
(EEC) No 804/68 in the milk and milk products sector (OJ
1984 L 90, p. 13), a Member State is precluded from adopting,
in place of initial rules held by the Court of Justice of the
European Communities to be discriminatory, new rules which
make it possible to penalise retroactively production in excess
of production quotas introduced after the entry into force of
the Community regulations but under the aegis of the national
rules which have been replaced?