Case C-288/05: Judgment of the Court (Second Chamber) of 18 July 2007 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against Jürgen Kretzinger (Convention implementing the Schengen Agreement — Article 54 — Ne bis in idem principle — Notion of same acts — Contraband cigarettes — Importation into several Contracting States — Prosecution in different Contracting States — Notion of enforcement of criminal penalties — Suspension of the execution of the sentence — Setting-off of brief periods of detention pending trial — European arrest warrant)
Date: 2007-10-06
Institutions: Court of Justice
Subjects: European arrest warrant, Schengen Agreement, enforcement of ruling, interpretation of the law, legal process, penalty

C 235/4

EN

Official Journal of the European Union

6.10.2007

Re:

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus —
Interpretation of Articles 43, 56 and 58 EC — Income tax
legislation — Deductibility by a company of sums paid as an
intra-group transfer conditional on the transferee company also
having its establishment in the Member State concerned

Operative part of the judgment

Article 43 EC does not preclude a system instituted by legislation of a
Member State, such as that at issue in the main proceedings, whereby
a subsidiary resident
in that Member State may not deduct an
intra-group financial transfer which it makes in favour of its parent
company from its taxable income unless that parent company has its
establishment in that same Member State.

Reference for a preliminary ruling — Bundesgerichtshof —
Interpretation of Article 54 of the Convention implementing
the Schengen Agreement of 14 June 1985 between the Govern-
ments of the States of the Benelux Economic Union, the Federal
Republic of Germany and the French Republic on the gradual
abolition of checks at their common borders (OJ 2000 L 239,
p. 19) — Ne bis in idem principle — Conditions governing the
expiry of the right to bring criminal proceedings — Notion of
‘same acts’ — Transportation of contraband cigarettes across the
in two
territory of several Member States — Conviction,
Member States,
tax evasion and handling the
profits of tax evasion, respectively — Notion of ‘enforcement’
— Stay in enforcement of the sentence — Inclusion of periods
of detention on remand

in respect of

(1) OJ C 193, 6.8.2005.

Operative part of the judgment

Judgment of the Court (Second Chamber) of 18 July 2007
(reference for a preliminary ruling from the Bundesgericht-
shof — Germany) — Criminal proceedings against Jürgen
Kretzinger

(Case C-288/05) (1)

(Convention implementing the Schengen Agreement —
Article 54 — Ne bis in idem principle — Notion of ‘same
acts’ — Contraband cigarettes — Importation into several
Contracting States — Prosecution in different Contracting
States — Notion of ‘enforcement’ of criminal penalties —
Suspension of the execution of the sentence — Setting-off of
brief periods of detention pending trial — European arrest
warrant)

(2007/C 235/06)

Language of the case: German

Referring court

Bundesgerichtshof

Party in the main proceedings

Jürgen Kretzinger

in the presence of: Hauptzollamt Augsburg

1. Article 54 of the Convention implementing the Schengen Agree-
ment of 14 June 1985 between the Governments of the States of
the Benelux Economic Union, the Federal Republic of Germany
and the French Republic on the gradual abolition of checks at their
common borders, signed on 19 June 1990, in Schengen, must be
interpreted as meaning that:

— the relevant criterion for the purposes of the application of that
article is identity of the material acts, understood as the exis-
tence of a set of facts which are inextricably linked together,
irrespective of the legal classification given to them or the legal
interest protected;

— acts consisting in receiving contraband foreign tobacco in one
Contracting State and of importing that tobacco into another
Contracting State and being in possession of it there, charac-
terised by the fact that the defendant, who was prosecuted in
two Contracting States, had intended from the outset to trans-
port the tobacco, after first taking possession of it, to a final
destination, passing through several Contracting States in the
process, constitute conduct which may be covered by the notion
of ‘same acts’ within the meaning of Article 54. It is for the
competent national courts to make the final assessment in that
respect.

2. For the purposes of Article 54 of the CISA, a penalty imposed by
a court of a Contracting State ‘has been enforced’ or is ‘actually in
the process of being enforced’
if the defendant has been given a
suspended custodial sentence.

3. For the purposes of Article 54 of the CISA, a penalty imposed by
a court of a Contracting State is not to be regarded as ‘having been
enforced’ or ‘actually in the process of being enforced’ where the
defendant was for a short time taken into police custody and/or
held on remand pending trial and that detention would count
towards any subsequent enforcement of the custodial sentence under
the law of the State in which judgment was given.

6.10.2007

EN

Official Journal of the European Union

C 235/5

4. The fact that a Member State in which a person has been sentenced
by a final and binding judgment under its national law may issue
a European arrest warrant for the arrest of that person in order to
Framework Decision
under Council
enforce
2002/584/JHA of 13 June 2002 on the European arrest warrant
and the surrender procedures between Member States cannot affect
the interpretation of the notion of ‘enforcement’ within the meaning
of Article 54 of the CISA.

sentence

the

(1) OJ C 257, 15.10.2005.

Judgment of the Court (First Chamber) of 18 July 2007
(reference
from the
preliminary
Verwaltungsgericht Darmstadt — Germany) — Ismail
Derin v Landkreis Darmstadt-Dieburg

ruling

for

a

(Case C-325/05) (1)

(EEC-Turkey Association — Article 59 of the Additional
Protocol — Articles 6, 7 and 14 of Decision No 1/80 of the
Association Council — Right of free access to employment
under the second indent of the first paragraph of Article 7 —
Corollary right of residence — Turkish national over the age
of 21 years who is no longer dependent on his parents —
Criminal convictions — Conditions governing the loss of
acquired rights — Compatibility with the rule that
the
Republic of Turkey is not to receive more favourable treatment
than that applicable between Member States)

21 years of age and no longer maintained by his parents —
More favourable treatment than that given to nationals of the
Member States

Operative part of the judgment

A Turkish national, who was authorised while he was a child to enter
the territory of a Member State in order to join his family and who
has acquired the right of free access to any paid employment of his
choice under the second indent of the first paragraph of Article 7 of
Decision No 1/80 of 19 September 1980 on the development of the
Association, adopted by the Association Council set up by the Associa-
tion Agreement between the European Economic Community and
Turkey, loses the right of residence in the host Member State which is
a corollary of that right of free access only in two situations, that is:

— in the circumstances provided for in Article 14(1) of that decision,

or

— if he leaves the territory of the Member State concerned for a

significant length of time without legitimate reason,

even though he is over 21 years of age, is no longer dependent on his
parents, but lives independently in the Member State concerned, and
was not available to join the labour force for several years because he
was during that period serving an unsuspended sentence of imprison-
ment. Such an interpretation is not inconsistent with the requirements
of Article 59 of
signed at Brussels on
23 November 1970 and concluded, approved and confirmed on behalf
the Community by Council Regulation (EEC) No 2760/72 of
of
19 December 1972.

the Additional Protocol

(2007/C 235/07)

Language of the case: German

(1) OJ C 281, 12.11.2005.

Referring court

Verwaltungsgericht Darmstadt

Parties to the main proceedings

Applicant: Ismail Derin

Defendant: Landkreis Darmstadt-Dieburg

Re:

Reference for a preliminary ruling — Verwaltungsgericht
Darmstadt — Interpretation of the second indent of the first
paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey
Association Council and of Article 59 of
the Additional
Protocol relating to the transitional stage provided for in the
Agreement establishing an Association between the European
Economic Community and Turkey signed on 23 November
1970 (OJ 1973 C 113, p. 17) — No loss of right of free access
to any paid employment and of the resulting right of residence
for a Turkish national who entered the national territory in
order to join his family, in circumstances where he is now over

Judgment of the Court (Third Chamber) of 18 July 2007 —
Industrias Químicas del Vallés, SA v Commission of the
European Communities

(Case C-326/05 P) (1)

(Appeal — Non-inclusion of metalaxyl in Annex I to Directive
for plant
91/414/EEC — Withdrawal of authorisations
protection products
substance —
Distortion of the clear sense of the evidence — Manifest error
of appraisal)

containing that active

(2007/C 235/08)

Language of the case: Spanish

Parties

Appellant: Industrias Químicas del Vallés, SA, (represented by: C.
Fernández Vicién, I. Moreno-Tapia Rivas and J. Sabater Marotias,
abogados)