Case C-210/03: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) by order of that court dated 17 April 2003, in the case of The Queen on the application of 1) Swedish Match AB 2) Swedish Match UK Ltd against Secretary of State for Health
Date: 2003-07-19
Institutions: Court of Justice
Subjects: anti-discriminatory measure, interpretation of the law, ownership, tobacco, tobacco industry

C 171/14

EN

Official Journal of the European Union

19.7.2003

1. Whether, given the decisions of the Court of Justice of
the European Communities in case C-39/86 Lair v
Universität Hannover [1988] ECR 3161, and case C-189/
97 Brown v Secretary of State for Scotland [1988] ECR
3205, and developments in the law of the European
Union, including the adoption of Article 18 EC and
developments in relation to the competence of the
European Union in the field of education, assistance
with maintenance costs for students attending university
courses, such assistance being given by way of either
(a) subsidised loans or (b) grants, continues to fall outside
the scope of the application of the EC Treaty for the
purposes of Article 12 EC and the prohibition on
discrimination on grounds of nationality.

2.

3.

If either part of question 1 is answered in the negative,
and if assistance with maintenance costs for students in
the form of grants or loans do now fall within the scope
of Article 12 EC, what criteria should the national court
apply in determining whether the conditions governing
eligibility for such assistance are based on objectively
justifiable considerations not dependent on nationality?

If either part of question 1 is answered in the negative,
whether Article 12 EC may be relied upon to claim
entitlement to assistance with maintenance costs from a
date prior to the date of the judgment of the Court of
Justice in the present case and, if so, whether an exception
should be made for those who initiated legal proceedings
before that date?

erty), to be interpreted as precluding national legislation
which prohibits any person from supplying, offering or
agreeing to supply, exposing for supply or possessing for
supply any product made wholly or partly of tobacco
which is either in powder or particulate form or any
combination of those forms or is presented in a form
resembling a food product and is intended for oral use
other than smoking or chewing?

(2)

Is Article 8 of Directive 2001/37/EC (1) invalid in whole
or in part by reason of:

a.

infringement of the principle of non-discrimination;

b.

Infringement of Article 23 and/or 29 EC;

c.

infringement of the principle of proportionality;

d.

the inadequacy of Article 95 and/or Article 133 as a
legal basis;

e.

infringement of Article 95(3);

f. misuse of powers;

Reference for a preliminary ruling by the High Court of
Justice (England and Wales), Queen’s Bench Division
(Administrative Court) by order of that court dated
17 April 2003, in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against
Secretary of State for Health

g.

infringement of Article 253 EC and/or the duty to
give reasons;

h.

infringement of the fundamental right to property?

(Case C-210/03)

(2003/C 171/20)

Reference has been made to the Court of Justice of the
European Communities by an order of
the High Court
of
Justice (England and Wales), Queen’s Bench Division
(Administrative Court), dated 17 April 2003, which was
for a
received at the Court Registry on 15 May 2003,
preliminary ruling in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against
Secretary of State for Health on the following questions:

(1) Are Articles 28-30 EC, applied compatibly with the
general principles of proportionality, non-discrimination
and fundamental rights (in particular the right to prop-

(3)

In circumstances where:

a.

b.

a national measure implementing Article 8a of
Directive 89/622/EEC (2) was adopted in 1992;

the said national measure was adopted pursuant to
powers in domestic law which do not depend on
the existence of an obligation to implement the
Directive;

c. Directive 89/622/EEC (as subsequently amended by
the Act of Accession of Austria, Finland and Sweden)
is repealed and replaced by Directive 2001/37/EC,
Article 8 of which re-enacts Article 8a of Directive
89/622/EEC; and

19.7.2003

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Official Journal of the European Union

C 171/15

d. Article 8 of Directive 2001/37/EC is invalid by
reason of the principles referred to in questions 2(a),
2(c) or 2(h) are those principles to be interpreted as
also prohibiting the national measure in question?

person invokes his right of residence imposes on its
own nationals no general duty to provide evidence
of identity?

( 1) Directive 2001/37/EC of the European Parliament and of the
Council of 5 June 2001 on the approximation of the laws,
regulations and administrative provisions of the Member States
concerning the manufacture, presentation and sale of tobacco
products — Commission statement, OJ L 194, 18.7.2001, p. 26-
35.

( 2) Council Directive 89/622/EEC of 13 November 1989 on the
approximation of the laws, regulations and administrative pro-
visions of the Member States concerning the labelling of tobacco
products, OJ L 359, 8.12.1989, p. 1-4.

Reference for a preliminary ruling by the Rechtbank
’s-Gravenhage by judgment of that Court of 12 May 2003
in the proceedings between Salah Oulane and Minister
voor Vreemdelingenzaken en Integratie

(Case C-215/03)

(2003/C 171/21)

Reference has been made to the Court of Justice of the
European Communities by judgment of
the Rechtbank
’s-Gravenhage (District Court, The Hague) of 12 May 2003,
received at the Court Registry on 19 May 2003,
for a
preliminary ruling in the proceedings between Salah Oulane
and Minister voor Vreemdelingenzaken en Integratie (Minister
responsible for foreign nationals and Integration) on the
following questions:

As regards the first proceedings:

1. As a consequence of the abolition of entry controls at
internal borders, must the third paragraph of Article 4(2)
of Directive 73/148/EEC (OJ 1973 L 172) be interpreted
as meaning that the right of residence granted therein of
a person who claims to be a national of another Member
State and a tourist has to be recognised by the authorities
of the Member State in which that person invokes his
right of residence only from such time as he has presented
his valid identity card or passport?

2.

a.

If the answer to Question 1 is in the affirmative,
does Community law as it stands at present,
in
particular in regard to the principle of non-discrimi-
nation and the freedom to provide services, provide
grounds for making an exception thereto with the
result that the authorities of a Member State must
still afford to that person the opportunity to present
his valid identity card or passport?

b.

Is it material to the answer to Question 2a that the
law of the Member State in which that
national

c.

If the answer to Question 2a is in the affirmative,
does Community law as it stands at present lay
down any requirements in regard to the period
within which that Member State must afford the
opportunity for the person concerned still to present
a valid identity card or passport before it imposes
an administrative penalty in the form of an order in
respect of the presumed unlawful residence?

d. Does an administrative penalty in the form of an
order, as referred to in Question 2c, namely the
imposition of a detention order with a view to
deportation pursuant to Article 59 of the Vw 2000
before the period referred to in Question 2c has
elapsed constitute a penalty which impinges dispro-
portionately on freedom to provide services?

3.

a.

b.

c.

If the answer to Question 1 is in the negative, as
Community law stands at present, is freedom to
provide services impeded where a detention order
with a view to deportation under Article 59 of the
Vw 2000 is, in the interest of public policy, imposed
on a person claiming to be a national of another
Member State and a tourist for as long as he does
not demonstrate his right of residence by presenting
a valid identity card or passport, even where there is
no obvious present and serious danger to public
policy?

If that freedom is impeded in the manner described
in Question 3a, is the period within which that
Member State afforded an opportunity still to pre-
sent a valid identity card or passport material for
the purposes of establishing whether or not the
impediment is justified?

If that freedom is impeded in the manner described
in Question 3a is it relevant, for the purposes of
establishing whether that impediment is justified,
whether or not the Member State subsequently pays
compensation in respect of the period during which
the person was detained pending production of
proof of nationality by means of a valid passport or
identity card, as is customary in that Member State
in the case of unlawful detention as an illegal alien?

4. Where a Member State itself lays down no general duty
to provide evidence of identity, does Community law as
it stands at present preclude, in particular in light of the
prohibition on discrimination, a Member State from
imposing, in connection with the internal control of
aliens, a measure such as detention as an illegal alien with
a view to deportation under Article 59 of the Vw in
respect of a person who claims to be a tourist for as long
as that person does not demonstrate his alleged right of
residence by presenting a valid identity card or passport?