Case C-291/05: Reference for a preliminary ruling from the Raad van State by order of that court of  13 July 2005  in the proceedings between Minister voor Vreemdelingenzaken en Integratie and R.N.G. Eind
Date: 2005-11-26
Institutions: Court of Justice
Subjects: family migration, foreign national, interpretation of the law, migrant worker, residence permit, rights of aliens

C 296/10

EN

Official Journal of the European Union

26.11.2005

Reference for a preliminary ruling from the Hajdú-Bihar
Megyei Bíróság by order of that court of 3 March 2005 in
Ákos Nádasdi v Vám- és Pénzügyőrség Észak-Alföldi
Regionális Parancsnoksága

July 2005, for a preliminary ruling in the proceedings between
Minister voor Vreemdelingenzaken en Integratie (Minister for
Alien Affairs and Integration) and R.N.G. Eind on the following
questions:

(Case C-290/05)

(2005/C 296/19)

(Language of the case: Hungarian)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Hajdú-Bihar Megyei Bíróság
(Hungary) of 3 March 2005, received at the Court Registry on
19 July 2005,
for a preliminary ruling in the proceedings
between Ákos Nádasdi and Vám- és Pénzügyőrség Észak-
Alföldi Regionális Parancsnoksága on the following questions:

1. Does the first paragraph of Article 90 EC allow Member
States to maintain in force a duty on used motor vehicles
from other Member States, when that duty is wholly inde-
pendent of the value of the vehicle and the amount is deter-
mined solely on the basis of the technical characteristics of
the vehicle (engine type, engine capacity) and its environ-
mental classification?

2. If the answer to the first question is in the affirmative, is
Law No CX of 2003 on registration duty, which is applic-
able in this case, compatible, as regards imported used
motor vehicles, with the first paragraph of Article 90 EC
when the registration duty is not payable on motor vehicles
which were placed in circulation in Hungary before the law
in question entered into force?

Reference for a preliminary ruling from the Raad van
State by order of that court of 13 July 2005 in the
proceedings between Minister voor Vreemdelingenzaken
en Integratie and R.N.G. Eind

(Case C-291/05)

(2005/C 296/20)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Raad van State (Council of
State) of 13 July 2005, received at the Court Registry on 20

Ia.

Ib.

If a national of a non-member country is regarded by a
host Member State as a family member of a worker within
the terms of Article 10 of Regulation (EEC) No 1612/
68 (1) of the Council of 15 October 1968 on freedom of
movement for workers within the Community, and if the
validity of the residence permit granted by that Member
State has not yet lapsed, does this mean that the Member
State of which the worker is a national may not, for that
very reason, deny the national of
the non-member
country the right of entry and residence on the return of
the worker?

If the previous question has to be answered in the nega-
tive,
is the Member State itself permitted to determine
whether the national of the non-member country satisfies
the conditions for entry and residence based on national
law on his or her entry, or should that Member State first
determine whether
the non-member
the national of
country may still derive rights from Community law as a
family member of the worker?

II. Does it make any difference to the answers to the ques-
tions under Ia and Ib if, prior to his or her stay in the
host Member State,
the non-member
country has had no right of residence based on national
law in the Member State of which the worker is a
national?

the national of

IIIa.

If the Member State of which a worker (the reference
person) is a national is permitted, on the worker's return,
itself to determine whether the conditions laid down in
Community law for the issue of a residence permit as a
family member are still fulfilled, does a national of a non-
member country who is a family member of the reference
person, who returns from the host Member State to the
Member State of which he is a national in order to seek
employment there, have a right of residence in the latter
Member State and, if so, for how long?

IIIb. Does that right also exist if the reference person does not
perform any genuine and actual work in the latter
Member State and cannot, or can no longer, be regarded
as seeking employment, in the context of Council Direc-
tive 90/364/EEC (2) of 28 June 1990 on the right of resi-
dence, given inter alia that
the reference person is in
receipt of a welfare benefit by virtue of his Netherlands
nationality?

26.11.2005

EN

Official Journal of the European Union

C 296/11

IV. What significance for the answers to the previous ques-
tions is to be attached to the fact that the national of the
non-member country is a family member of a citizen of
the Union who has exercised the right he enjoys under
Article 18 of the Treaty establishing the European Com-
munity and has returned to the Member State of which he
is a national?

(1) OJ, English Special Edition 1968(II), p. 475.
(2) OJ 1990 L 180, p. 26.

2b. Is the reply to Question 2a different

the relaxation
concerning the requirement of possession of a temporary
residence authorisation was effected not in regard to the
in regard to policy and
regulatory provision itself but
implementing practice?

if

Action brought on 22 July 2005 by the Commission of the
European Communities against the Kingdom of the Neth-
erlands

(Case C-297/05)

(2005/C 296/22)

(Language of the case: Dutch)

Reference for a preliminary ruling from the Raad van
State (Council of State) by order of that court of 19 July
2005 in Minister for immigration and integration v Mr I.
Günes

(Case C-296/05)

(2005/C 296/21)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
22 July 2005 by the Commission of the European Commu-
nities, represented by Michel van Beek and Désirée Zijlstra,
acting as Agents.

(Language of the case: Dutch)

The applicant claims that the Court should:

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Raad van State (Council of
State) of 19 July 2005, received at the Court Registry on 22
July 2005, for a preliminary ruling in the proceedings between
the Minister for immigration and integration and Mr I. Günes
on the following questions:

1. Must the concept of restriction in Article 41(1) of the addi-
tional protocol be interpreted as subsuming within it the
requirement of a temporary residence authorisation to be
applied for, under Article 3.71, first paragraph, of the Vb
in that
2000, by a foreigner who is a Turkish national
country or the country of permanent residence and in
regard to which he must await a decision prior to coming
to the Netherlands in the absence of which his application
for leave to remain must be rejected?

2a. If the reply to Question 1 is affirmative, must Article 41(1)
of the additional protocol then be construed as meaning
that a new restriction within the meaning of that provision
is also constituted by a tightening of the national rules in
regard to the requirement
to be in possession of a
temporary residence authorisation following a post-January
1973 relaxation of that requirement?

1. declare that, by requiring motor vehicles which have
previously been registered in another Member State to
undergo a technical examination before they can be regis-
tered in the Netherlands, where no such examination is
required in the case where a motor vehicle previously regis-
tered in the Netherlands is transferred to the ownership or
control of another person established there, the Kingdom of
the Netherlands has failed to fulfil its obligations under Arti-
cles 28 EC and 30 EC;

2. order the Kingdom of the Netherlands to pay the costs of

the proceedings.

Pleas in law and main arguments

The technical examinations which the Netherlands require
motor vehicles previously registered in another Member State
to undergo as a precondition of entry in the national vehicle
licence plate register cannot be justified in the light of the
objectives mentioned in Article 30 EC or for the purpose of
meeting any mandatory requirement as recognised in the
Court's case-law.