Case C-493/03: Reference for a preliminary ruling by the Cour d'appel de Bordeaux, chambre de l'instruction, by order of that Court of 4 November 2003 in the case of Ministère public against André Rochus Hiebeler
Date: 2004-01-24
Institutions: Court of Justice
Subjects: EU Member State, drug traffic, interpretation of the law, narcotic

C 21/22

EN

Official Journal of the European Union

24.1.2004

available, but this has no effect on its own value.
The decisive point is that the study itself contains
new scientific evidence and conclusions and clearly
shows that a current risk of negative consequences
for the environment, fauna and flora cannot be ruled
out.

— Problem specific to the Member State concerned

the farming system in Upper
The structure of
Austria, demonstrably consisting of small farms,
coupled with the constant increase in the proportion
of organically managed areas and the number of
organically run farming enterprises, means that the
character of this region of the Community is unique.

that

In the opinion of the Republic of Austria, the
additional requirement laid down by Article 95(5)
the problem which is specific to the
EC,
Member State should have arisen only after the
harmonisation measure has been adopted, has been
fulfilled. The fact that concerns had arisen earlier in
that regard does not preclude this. The decisive
point is that the full extent of the problem became
apparent only after the adoption of the harmonis-
ation measure. Only on publication of the Müller
study on 28 April 2002 was it possible to confirm
the actual scope of the problem.

— Proportionality

The Oö. GTVG 2002 should be seen as a national
provision which is necessary for the protection of
the environment and which, having regard to the
fact that it is applicable for a limited period of three
years, also falls to be classified as proportionate.

— The precautionary principle and the principle that

preventive action should be taken

The Oö. GTVG 2002 is a precautionary and preven-
tive measure within the meaning of Article 174(2)
EC. This provision states that Community policy on
is to aim at a high level of
the environment
protection taking into account
the diversity of
situations in the various regions of the Community
and is to be based inter alia on the precautionary
principle and the principle that preventive action
should be taken. The distinction drawn by the
the
Community legislature makes sense only if
terms ‘precaution’ and ‘prevention’ are each given a
separate meaning. ‘Precaution’ accordingly begins at
a point in time at which a threat to the environment
is not sufficiently precise for ‘preventive action’ to
be necessary in relation to it. The Oö. GTVG 2002
is clearly aimed at the avoidance of risks and is
therefore justified by the precautionary principle.

(1) OJ L 230 of 16.9.2003, p. 34.
(2) OJ L 106 of 17.4.2001, p. 1.

Reference for a preliminary ruling by the Cour d’appel de
Bordeaux, chambre de l’instruction, by order of that
Court of 4 November 2003 in the case of Ministère public
against André Rochus Hiebeler

(Case C-493/03)

(2004/C 21/40)

Reference has been made to the Court of Justice of the
European Communities by order of the Cour d’appel de
Bordeaux, chambre de l’instruction, (Examining Chamber of
the Bordeaux Court of Appeal) of 4 November 2003, received
at the Court Registry on 24 November 2003, for a preliminary
ruling in the case of Ministère public against André Rochus
Hiebeler on the following questions:

— Do the transportation and sale of the same quantity of
drugs constitute different acts depending on whether
these acts are committed in only one Member State or
from one Member State to another?

— Does the importation into a Member State of the same
quantity of drugs and its transportation shortly thereafter
to another Member State constitute a single act or
separate acts?

— Does Article 54 of the Schengen Convention entitle a
Contracting State to which a request for extradition is
addressed to accept a plea of ne bis in idem where the
requirements for the application of that principle are met,
but where the final conviction on the basis of which it
is sought to have the prosecution discontinued was
pronounced not in that State but in another Contracting
State?

— Does the prohibition under Article 54 of the Schengen
Convention preclude the enforcement of a judgment
imposing a penalty delivered in a Member State before
the coming into force of that Convention?

— Does the offence of being a party to dealing in more than
minimal quantities of drugs, laid down by and punishable
under Paragraphs 30.I.4, 29.I(1), III(2)2 and 29.I.4, Para-
graph 3-I, 2-I, 1-I combined with Annex III of Para-
graph 1-II of the German Law on drugs, in the version of
27 January 1987, and Paragraphs 25-II, 52 and 53 of the
Federal Criminal Code, protect the same legal interests as,
or different legal interests from, those protected by the
offence of the importation, unlawful possession and sale
of more than minimal and partially substantial quantities
of drugs, laid down by and punishable under Articles 71,
72, 74(I)2, 74(II) and 75 of Italian Law No 685/75 of
22 December 1975 and Articles 81, 56 and 110 of the
Italian Criminal Code?