Case C-456/02: Reference for a preliminary ruling by the Tribunal du Travail de Bruxelles by judgment of that Court of 21 November 2002 in the proceedings between Michel Trojani and Le Centre Public d'Aide Sociale de Bruxelles
Date: 2003-02-22
Institutions: Court of Justice
Subjects: EU national, European citizenship, interpretation of the law, residence permit, welfare, worker (EU)

22.2.2003

EN

Official Journal of the European Union

C 44/13

(3)

Is Directive 90/605/EEC compatible with the general
principle of equality in so far as it places at a disadvantage
those Kommanditgesellschaften whose personally liable
partner is a private limited company as compared with
Kommanditgesellschaften whose personally liable partner
is a natural person, even though creditors of a GmbH &
Co. KG (a limited partnership in which the unlimited
partner is a private company) are better protected by the
duty of disclosure imposed on private limited companies
than are creditors of a Kommanditgesellschaft whose
personally liable partner, as a natural person, is not under
any duties of disclosure?

( 1) OJ L 317 of 16.11.1990, p. 60.
( 2) OJ L 222 of 14.8.1978, p. 11.

Appeal brought on 13 December 2002 by Sgaravatti
Mediterranea S.r.l. against the judgment delivered on
26 September 2002 by the Fifth Chamber of the Court of
First Instance of the European Communities in Case
T-199/99 between Sgaravatti Mediterranea S.r.l and the
Commission of the European Communities

(Case C-455/02 P)

(2003/C 44/25)

An appeal against the judgment delivered on 26 September
2002 by the Fifth Chamber of the Court of First Instance
of the European Communities in Case T-199/99 between
Sgaravatti Mediterranea S.r.l and the Commission of the
European Communities was brought before the Court of
Justice of the European Communities on 13 December 2002
by Sgaravatti Mediterranea S.r.l., a company with registered
offices in Capoterra (CA), Italy, represented by Massimo Merola
and Piero A.M. Ferrari, Lawyers.

The applicant claims that the Court should:

— annul the judgment of the Court of First Instance delivered

on 26 September 2002 in Case T-199/99;

— annul Commission Decision C(1999) 1502 of 4 June
1990 or, in the alternative, refer the case back to the
Court of First Instance in accordance with Article 54 of
the EC Statute of the Court of Justice;

— in any event, order the Commission to pay the costs of

both sets of proceedings.

Pleas in law and main arguments

The applicant takes issue with the improper use of a statement
made by the Customs Service as evidence, sufficient in itself,

of certain alleged irregularities in its conduct. According to the
applicant, the Customs Service merely has jurisdiction to
record in its statements facts gathered during the course of its
investigations. It is not competent to evaluate those facts and
the Commission ought to have conducted its own investigation
of the matter. The applicant says that, in finding the Customs
Service’s statement to be sufficient proof, the Court of First
Instance erred in law and its judgment is thereby vitiated.

The applicant maintains that the judgment is also vitiated by
the fact that the Court failed to give consideration to the
subjective element as a decisive factor in determining whether
a decision to withdraw a certain grant was permissible. The
Court should have distinguished between the possible case of a
culpable, but not fraudulent, breach of the financial conditions,
such as would justify no more than the reduction or suspension
of the grant, and a fraudulent breach of the financial conditions,
entitling the Commission to withdraw the grant in its entirety.

Lastly, the applicant maintains that the Court’s finding that
there is no possibility of a breach of the principle of ne bis in
idem is questionable, given that the sanction imposed by means
of the injunction issued in Italy came after the Community
decision. According to the applicant, when the Commission
decided to withdraw the grant which was due it knew or ought
to have known that an administrative sanction would be
handed down in Italy.

Reference for a preliminary ruling by the Tribunal du
Travail de Bruxelles by judgment of that Court of 21 No-
vember 2002 in the proceedings between Michel Trojani
and Le Centre Public d’Aide Sociale de Bruxelles

(Case C-456/02)

(2003/C 44/26)

Reference has been made to the Court of
Justice of the
European Communities by judgment of the Tribunal du Travail
de Bruxelles (Labour Court, Brussels) of 21 November 2002,
received at the Court Registry on 18 December 2002, for a
preliminary ruling in the proceedings between Michel Trojani
and Le Centre Public d’Aide Sociale de Bruxelles on the
following questions:

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?