Case C-45/03: Reference for a preliminary ruling by the Tribunale di Catania — Prima Sezione Civile, by order of that Court of 19 January 2003 in the case of Catania Commissary General of Police against Oxana Dem'Yanenko
Date: 2003-04-05
Institutions: Court of Justice
Subjects: EU law, foreign national, interpretation of the law, removal

C 83/8

EN

Official Journal of the European Union

5.4.2003

that still to be assessed; in the further alternative,
order the Community to pay compensation to be
determined on an equitable basis by the Court of
Justice, plus annual interest of 8 % from the date of
the application at first instance to the date of full
and final payment;

— Infringement of the preferential status of the OCT: the
Court of First Instance erred in its determination of the
relevant facts to such an extent that its appraisal in the
grounds of its judgment here referred to is, in the light of
the procedural documents, incomprehensible.

(3) order the respondent to pay the costs of both sets of
proceedings, in accordance with Article 69(2) of the Rules
of Procedure.

(1) Commission Regulation (EC) No 465/2000 of 29 February 2000
introducing safeguard measures for imports from the overseas
countries and territories of sugar sector products with EC/OCT
cumulation of origin (OJ 2000 L 56, p. 39).

(2) — Council Decision 91/482/EEC of 25 July 1991 on the
association of the overseas countries and territories with the
European Economic Community (OJ 1991 L 263, p. 1).

Pleas in law and main arguments

— Breach of Article 109(1) of the OCT Decision (2): the
Court of First Instance failed to take into account the fact
that Article 109(1) of the OCT Decision constitutes a
derogation from the prohibition in Article 101 of the
OCT Decision of import duties and measures having
equivalent effect. As in the case of every derogation which
departs from the principal rule, and in this case from the
objective of the successive OCT Decisions, this derogation
must be narrowly construed and applied. The ‘wide
discretion’ of the Commission and the limited appraisal
of the Community judicature on which the Court of
First Instance based itself are incompatible with such a
possibility of applying Article 109(1) of the OCT Decision
that is limited to exceptional cases (Article 109(1) of the
OCT Decision as an ‘emergency brake’);

— Failure to provide reasons: it was wrong in law and also, in
light of the documents on the case-file, incomprehensible
and/or indicative of inadequate reasoning that the Court
that any additional
of First Instance should hold (i)
imports of OCT sugar under the EC/OCT cumulation of
origin regime would increase the amount of surplus sugar
on the Community market, and (ii) that
‘additional
imports’ within the meaning of (i) impose an extra burden
on the Community budget;

— Breach of Article 109(1) of the OCT Decision: the Court
of First Instance erred in law in its construction of the
terms ‘difficulties’ and ‘deterioration’ and consequently
erred in law in its application of
those terms. The
appellant refers to its application at first instance;

— Breach of Article 109(2) of the OCT Decision: there is no
quantitative correlation between the quota in Regulation
No 465/2000 and ‘difficulties’ and/or ‘deterioration’. In
the light of the historical quantities, the measure is also
entirely arbitrary and inequitable;

Reference for a preliminary ruling by the Tribunale di
Catania — Prima Sezione Civile, by order of that Court of
19 January 2003 in the case of Catania Commissary
General of Police against Oxana Dem’Yanenko

(Case C-45/03)

(2003/C 83/14)

Reference has been made to the Court of
Justice of the
European Communities by order of the Tribunale di Catania
— Prima Sezione Civile (Catania District Court, First Civil
Chamber) of 19 January 2003, received at the Court Registry
on 7 February 2003, for a preliminary ruling in the case
of Catania Commissary General of Police against Oxana
Dem’Yanenko on the following questions:

1. Are the Community rules set out above — Articles 7, 8
and 9 of Council Directive 64/221/EEC (1) of 25 February
1964 and Articles 2, 5, 6, 13 and 14 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950 — and
the general, fundamental principles of Community law to
be interpreted as meaning that any foreigner deported
from a Member State of the European Community is
entitled to have his deportation order reviewed before it
is enforced by an impartial authority different from that
which adopted the order?

2. Are the Community rules set out above — Articles 7, 8
and 9 of Council Directive 64/221/EEC of 25 February
1964 and Articles 2, 5, 6, 13 and 14 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950 — and
the general, fundamental principles of Community law to
be interpreted as meaning that it is unacceptable and
unlawful for the police of a Member State of the European
Community, without prior review by any other authority,

5.4.2003

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Official Journal of the European Union

C 83/9

forcibly to arrest and deport any person whom they
unilaterally consider not to be entitled to remain within
that State, and to do so within such a period of time and
in such a way that their action escape any practical and
effective review by any third-party impartial authority
whether before, during or after their actions?

3. Are the Community rules set out above — Articles 7, 8
and 9 of Council Directive 64/221/EEC of 25 February
1964 and Articles 2, 5, 6, 13 and 14 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed at Rome on 4 November 1950 — and
the general, fundamental principles of Community law to
be interpreted as meaning that it is illogical and unlawful
for a Member State of the European Community to lay
down a system for the judicial review of orders for the
deportation of foreigners and of police action taken to
execute such orders which, essentially, has no effect on
the consequences which flow from such orders or on the
actions taken to execute them, and is thus nothing more
than a semblance of legal protection, wholly deprived of
any practical effect or usefulness?

4. Are the Community rules set out above — Articles 7, 8
and 9 of Council Directive 64/221/EEC of 25 February
1964 and Articles 2, 5, 6, 13 and 14 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950 — and
the general, fundamental principles of Community law to
be interpreted as meaning that it is unlawful for a Member
State of the European Community to lay down provisions
governing orders for the deportation of foreigners and
the execution of such orders in such a way as to preclude
the person deported from actually exercising any right of
asylum?

5. Are the Community rules set out above — Articles 7, 8
and 9 of Council Directive 64/221/EEC of 25 February
1964 and Articles 2, 5, 6, 13 and 14 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950 — and
the general, fundamental principles of Community law to
be interpreted as meaning that it is unlawful, in the sense
that it disproportionately and unfairly denies and limits
the right to personal liberty accorded to all persons in
the European Community, for a Member State of the
Community to provide that orders for the deportation of
foreigners in possession of a valid passport be forcibly
executed immediately (in the sense of within a few
minutes) following their notification to the foreigner
concerned, even in the absence of genuine and specific
reasons of public security or public order justifying
recourse to such physical coercion?

6. Are the Community rules set out above — Articles 7, 8
and 9 of Council Directive 64/221/EEC of 25 February
1964 and Articles 2, 5, 6, 13 and 14 of the Convention
for the Protection of Human Rights and Fundamental
Freedoms, signed at Rome on 4 November 1950 — and
the general, fundamental principles of Community law to
be interpreted as meaning that Articles 13(3), (4) and (5)a
of Legislative Decree No 286 of 25 July 1998, as amended
are inconsistent with them?

(1) Council Directive 64/221/EEC of 25 February 1964 on the co-
ordination of special measures concerning the movement and
residence of foreign nationals which are justified on grounds of
public policy, public security or public health (OJ P 56 of
4.4.1964, p. 850).

Appeal brought on 7 February 2003 by Mr Cwik against
the judgment delivered on 26 November 2002 by the
Second Chamber of the Court of First Instance of the
European Communities in Case T-103/01 between Mr
Cwik and Commission of the European Communities

(Case C-47/03 P)

(2003/C 83/15)

An appeal against the judgment delivered on 26 November
2002 by the Second Chamber of the Court of First Instance
of the European Communities in Case T-103/01 Cwik v
Commission was brought before the Court of Justice of the
European Communities on 7 February 2003 by Mr Cwik,
represented by N. Lhoëst, lawyer, with an address for service
in Luxembourg.

The appellant claims that the Court should:

1.

2.

declare the appeal admissible and well founded;

accordingly:

(a)

set aside the contested judgment;

(b)

refer the case back to the Court of First Instance so
that it may rule, first, on the application seeking the
annulment of the decision of the Commission of
13 June 2000 transferring the applicant from the
‘Economic Information, Publications and Docu-
mentation’ Unit, which,
following restructuring,
subsequently became the ‘Information: EURO, EMU’
Unit (CFIN-04 under the direction of Mr Blackie), to
the ‘General Coordination, Human Resources and
Administration’ Unit, (ECFIN-01 under the direction
of Mr Verhaeven), and (ii) on the claim for damages;