Case C-123/08: Reference for a preliminary ruling from the Rechtbank Amsterdam lodged on 21 March 2008 — Dominic Wolzenburg
Date: 2008-03-21
Institutions: Court of Justice
Subjects: EU Member State, EU law - national law, European arrest warrant, carrying out of sentence, enforcement of ruling, interpretation of the law, nationality, power of implementation, residence permit

C 116/18

EN

Official Journal of the European Union

9.5.2008

Pleas in law and main arguments

The time-limit
domestic law expired on 31 August 2006.

for

transposition of Directive 2005/61 into

(1) OJ L 256, 1.10.2005, p. 32.

Reference for a preliminary ruling from the Rechtbank
Amsterdam lodged on 21 March 2008 — Dominic
Wolzenburg

(Case C-123/08)

(2008/C 116/33)

Language of the case: Dutch

Action brought on 19 mars 2008 — Commission of the
European Communities v United Kingdom of Great Britain
and Northern Ireland

(Case C-122/08)

(2008/C 116/32)

Referring court

Rechtbank Amsterdam

Language of the case: English

Party to the main proceedings

Applicant: Dominic Wolzenburg

Parties

Applicant: Commission of the European Communities (repre-
sented by: Mr M. Wilderspin, Agent)

Questions referred

Defendant: United Kingdom of Great Britain and Northern
Ireland

1.

The applicant claim that the Court should:

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/38/EC of the European Parliament and of the Council
of 29 April 2004 (1) on the right of citizens of the Union
and their family members to move and reside freely within
the territory of the Member States, or in any event by failing
to communicate them to the Commission,
the United
Kingdom of Great Britain and Northern Ireland has failed to
fulfil its obligations under the Directive;

— order United Kingdom of Great Britain and Northern Ireland

to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 30 April 2006.

(1) OJ L 158, p. 77.

Should persons who are staying in or are residents of the
executing Member State, as referred to in Article 4(6) of the
Framework Decision (1), be taken to mean persons who do
not have the nationality of the executing Member State, but
do have the nationality of another Member State and are
lawfully resident in the executing Member State pursuant to
Article 18(1) EC, regardless of the duration of that lawful
residence?

2a.

If the answer to question 1 is negative, should the terms
referred to in that question be interpreted as meaning that
they concern persons who do not have the nationality of
the executing Member State, but do have the nationality of
another Member State and, prior to their arrest under a
European arrest warrant, have been lawfully resident in the
executing Member State pursuant to Article 18(1) EC for at
least a certain period?

2b. If the answer to question 2a is affirmative, what require-

ments must lawful residence meet?

3.

the answer

If
to question 2a is affirmative, may the
executing Member State lay down, in addition to a require-
ment concerning the duration of lawful residence, supple-
mentary administrative requirements, such as possession of
a permanent residence permit?

4. Does a national measure specifying the conditions under
which a European arrest warrant issued with a view to the
enforcement of a custodial sentence is rejected by the judi-
cial authority of the executing Member State come within
the (material) scope of the EC Treaty?

9.5.2008

EN

Official Journal of the European Union

C 116/19

5. Given that:

Parties to the main proceedings

— Article 6(2) and (5) OLW (2) lays down rules affording
persons who do not have Netherlands nationality, but
are in possession of a permanent Netherlands residence
permit, equal treatment with Netherlands nationals

Applicants: Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng,
Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal
Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke
Chinedu, Henry Igboanusi, Roksana Batkowska

and

— those rules require refusal to surrender such classes of
persons if the EAW concerns the enforcement of an
irreversible custodial sentence,

does Article 6(2) and (5) OLW result in discrimination prohib-
ited by Article 12 EC, in that the aforementioned equal treat-
ment does not apply equally to nationals of other Member
States with a right of residence under Article 18(1) EC who will
not forfeit that right of residence as a result of the imposition
on them of an irreversible custodial sentence, but who are not
in possession of a permanent Netherlands residence permit?

(1) Council Framework Decision 2002/584/JHA of 13 June 2002 on the
European arrest warrant and the surrender procedures between
Member States (OJ 2002 L 190, p. 1).

(2) Overleveringswet (Staatsblad 2004, 195, as subsequently amended).

Reference for a preliminary ruling from High Court of
Ireland (Ireland) made on 25 March 2008 — Blaise Baheten
Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten,
Samuel Zion Ikeng Baheten, Hencheal
Ikogho, Donna
Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry
for Justice,
Igboanusi, Roksana Batkowska v Minister

Equality and Law Reform

(Case C-127/08)

(2008/C 116/34)

Defendant: Minister for Justice, Equality and Law Reform

Questions referred

1. Does Directive 2004/38/EC (1) permit a Member State to
have a general requirement that a non-EU national spouse of
a Union citizen must have been lawfully resident in another
Member State prior to coming to the host Member State in
order that he or she be entitled to benefit from the provi-
sions of Directive 2004/38/EC.

2. Does article 3(1) of Directive 2004/38/EC include within its

scope of application a non-EU national who is:

(i) a spouse of a Union citizen who resides in the host
Member State and satisfies a condition in article 7(1)(a),
(b) or (c) and

(ii) is then residing in the host Member State with the Union

citizen as his/her spouse

irrespective of when or where their marriage took place or
when or how the non-EU national entered the host Member
State.

3. If the answer to the preceding question is in the negative
does article 3(1) of Directive 2004/38/EC include within its
scope of application a non-EU national spouse of a Union
citizen who is:

(i) a spouse of a Union citizen who resides in the host
Member State and satisfies a condition in article 7(1)(a),
(b) or (c); and

(ii) resides in the host Member State with the Union citizen

as his/her spouse; and

(iii) has entered the host Member State independently of the

Union citizen; and

Language of the case: English

(iv) subsequently married the Union citizen in the host

Referring court

High Court of Ireland

Member State.

(1) OJ L 158, p. 77.