Case C-297/05: Action brought on  22 July 2005  by the Commission of the European Communities against the Kingdom of the Netherlands
Date: 2005-11-26
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for failure to fulfil an obligation, motor vehicle, roadworthiness tests, technical barriers to trade

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.