Case C-215/03: 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
Date: 2003-07-19
Institutions: Court of Justice
Subjects: EU national, border control, free movement of persons, freedom to provide services, identity document, interpretation of the law, residence permit

19.7.2003

EN

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?

C 171/16

EN

Official Journal of the European Union

19.7.2003

As regards the second proceedings

5.

6.

So long as a national of a Member State does not himself
invoke the right of residence as the recipient of services
vis-à-vis the Member State in whose territory he is
residing, does Community law as it stands at present
preclude that Member State from not regarding that
person as a national protected by a right of residence
under Community law?

Is the term ‘recipient of services’ in the context of freedom
to provide services to be construed as meaning that, even
where a person stays in another Member State for a long
period, possibly longer than six months, is arrested there
for an offence, is unable to give a fixed abode or residence
and, furthermore, has no money or luggage, residence in
another Member State itself provides sufficient grounds
for having to assume that tourist and other services
associated with short-term residence are received such as,
for example, accommodation and the consumption of
meals?

Action brought on 22 May 2003 by the Commission
of the European Communities against the Kingdom of
Belgium

(Case C-221/03)

(2003/C 171/22)

An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 22 May
2003 by the Commission of the European Communities,
represented by G. Valero Jordana, acting as Agent, assisted by
M. van der Woode and T. Cellingsworth, lawyers, with an
address for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

— declare that the Kingdom of Belgium has not complied
with its obligations under Directive 91/676/EEC (1):

— as regards the Flemish Region, by failing to adopt
the laws, regulations or administrative provisions
and to take the measures necessary fully to transpose
and implement Articles 3(1) and (2), 4, 5 and 10 of
Directive 91/676/EEC;

— as regards the Walloon Region, by failing to adopt
the laws, regulations or administrative provisions
and to take the measures necessary fully to transpose
and implement Articles 3(1) and (2) and 5 of
Directive 91/676/EEC;

— order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

Directive 91/676/EEC lays down a progressive procedure
which the Member State are required to follow in order to
reduce and prevent water pollution caused or induced by
nitrates from agricultural sources. To that end, they are to
establish which groundwaters, surface freshwaters and coastal
waters in their territory are affected by pollution by nitrates
from agricultural sources or which could be so affected
(Article 3(1)). Once those waters have been defined, Member
State must designate ‘vulnerable zones’ (Article 3(2)). They
must then establish a code or codes of good agricultural
practice, to be implemented by farmers on a voluntary basis
(Article 4). Finally, Member States are to establish action
programmes in respect of all vulnerable zones, which must
consist of several measures laid down in the directive
(Article 5). The directive provides that Member States are
to submit a report to the Commission every four years
(Article 10).

According to the Commission, Belgium appears to consider
that the transposition and implementation of the directive in
Belgian law come under the competence of the regions.
According to the Belgian authorities, the federal authority is
competent only to designate the coastal and marine waters
referred to in Article 3(1) and in paragraph A(3) of Annex I to
the directive. That argument is not relevant in Community
law. It is for the competent authorities of each Member State
to ensure the full transposition of the directive. Moreover, as
regards the federal authority, the Commission does not have
knowledge of any measure designating marine or coastal
waters. As regards the legislation of the Flemish Region and
the Walloon Region relating to transposition of the directive,
the Commission notes that:

— the Flemish Region has not adopted any provision which
designates waters affected by pollution or which could be
so affected, in breach of Article 3(1) of the directive. As
for vulnerable zones, it has not taken account of the
procedure and criteria laid down in Article 3 for their
designation in its territory. Moreover, the Flemish Code
of Good Agricultural Practice does not satisfy the require-
ments of Article 4 and of Annex II to the directive,
nor does the Flemish action programme satisfy the
requirements of Article 5 and of Annex III to the directive,
the vulnerable zones
since it does not apply to all