Case C-551/07: Order of the Court (Seventh Chamber) of 19 December 2008 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Deniz Sahin v Bundesminister für Inneres (Article 104(3) of the Rules of Procedure — Directive 2004/38/EC — Articles 18 EC and 39 EC — Right to respect for family life — Right of residence of a national of a non-member country who entered the territory of a Member State as an asylum seeker and subsequently married a national of another Member State)
Date: 2008-12-19
Institutions: Court of Justice
Subjects: Austria, admission of aliens, free movement of persons, interpretation of the law, nationality, right of asylum

21.2.2009

EN

Official Journal of the European Union

C 44/23

Judgment of the Court (Third Chamber) of 1 December
2008 (reference for a preliminary ruling from the Korkein
oikeus — Finland) — Criminal proceedings against Artur
Leymann, Aleksei Pustovarov

(Case C-388/08 PPU) (1)

(Police and judicial cooperation in criminal matters — Frame-
work Decision 2002/584/JHA — Article 27 — European
arrest warrant and surrender procedures between Member
States — Specialty principle — Consent procedure)

(2009/C 44/38)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Artur Leymann, Aleksei Pustovarov

Re:

of the offence and do not lead to grounds for non-execution under
Articles 3 and 4 of the Framework Decision.

2. In circumstances such as those in the main proceedings, a modifica-
tion of the description of the offence concerning the kind of narco-
tics concerned is not such, of itself, as to define an ‘offence other’
than that for which the person was surrendered within the meaning
of Article 27(2) of Framework Decision 2002/584.

3. The exception provided for in Article 27(3)(c) of Framework Deci-
sion 2002/584 must be interpreted as meaning that, where there
is an ‘offence other’ than that for which the person was surrendered,
consent must be requested, in accordance with Article 27(4) of the
Framework Decision, and obtained if a penalty or a measure invol-
ving the deprivation of liberty is to be executed. The person surren-
dered can be prosecuted and sentenced for such an offence before
that
consent has been obtained, provided that no measure
restricting liberty is applied during the prosecution or when judg-
ment is given for that offence. The exception in Article 27(3)(c)
does not, however, preclude a measure restricting liberty from being
imposed on the person surrendered before
consent has been
obtained, where that restriction is lawful on the basis of other
charges which appear in the European arrest warrant.

(1) OJ C 272, 25.10.2008.

Reference for a preliminary ruling — Korkein oikeus — Inter-
pretation of Article 27(2), (3) and (4) of 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) — Description of the offence on
which the prosecution is based altered in relation to the descrip-
tion on which the arrest warrant was based — Concept of
‘offence other than that for which he or she was surrendered’ —
Whether or not necessary to initiate the consent procedure

Operative part of the judgment

Order of the Court (Seventh Chamber) of 19 Decem-
ber 2008 (reference for a preliminary ruling from the
Verwaltungsgerichtshof — Austria) — Deniz Sahin v
Bundesminister für Inneres

(Case C-551/07) (1)

the Rules of Procedure — Directive
(Article 104(3) of
2004/38/EC — Articles 18 EC and 39 EC — Right to respect
for family life — Right of residence of a national of a
non-member country who entered the territory of a Member
State as an asylum seeker and subsequently married a
national of another Member State)

than that

1. In order to establish whether the offence under consideration is an
‘offence other’
for which the person was surrendered
within the meaning of Article 27(2) of Council Framework Deci-
sion 2002/584/JHA of 13 June 2002 on the European arrest
warrant and the surrender procedures between Member States,
requiring the implementation of the consent procedure referred to in
Article 27(3)(g) and 27(4) of that Framework Decision, it must
the offence,
be ascertained whether
according to the legal description given by the issuing State, are
those in respect of which the person was surrendered and whether
there is a sufficient correspondence between the information given
in the arrest warrant and that contained in the later procedural
document. Modifications concerning the time or place of the offence
are allowed, in so far as they derive from evidence gathered in the
course of the proceedings conducted in the issuing State concerning
the conduct described in the arrest warrant, do not alter the nature

the constituent elements of

(2009/C 44/39)

Language of the case: German

Referring court

Verwaltungsgerichtshof (Austria)

C 44/24

EN

Official Journal of the European Union

21.2.2009

Parties to the main proceedings

Applicant: Deniz Sahin

Defendant: Bundesminister für Inneres

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof
(Austria) — Interpretation of Articles 18 EC and 39 EC, as well
as Articles 3(1), 6(2), 7(1)(d) and (2), 9(1) and 10(1) of Directive
2004/38/EC of the European Parliament and of the Council of
29 April 2004 on the right of citizens of the Union and their
family members to move and reside freely within the territory
of the Member States amending Regulation (EEC) No 1612/68
and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC,
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC
and 93/96/EEC (OJ 2004 L 158, p. 77) — Right of residence of
a national of a non-member country who entered the territory
of a Member State as an asylum seeker and subsequently
married a national of another Member State

Operative part of the order

68/360/EEC,

1. Articles 3(1), 6(2) and 7(1)(d) and (2) of Directive 2004/38/EC
of the European Parliament and of the Council of 29 April 2004
on the right of citizens of the Union and their family members to
move and reside freely within the territory of the Member States
amending Regulation (EEC) No 1612/68 and repealing Directives
73/148/EEC,
64/221/EEC,
75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
93/96/EEC must be
interpreted as applying also to family
members who arrived in the host Member State independently of
the Union citizen and acquired the status of
family member or
started to lead a family life with that Union citizen only after
arriving in that State. In that regard, the fact that, at the time the
family member acquires that status or starts to lead a family life, he
resides temporarily in the host Member State pursuant to that
State's asylum laws has no bearing.

72/194/EEC,

Order of the Court of 13 November 2008 — Giuseppe
Gargani v European Parliament

(Case C-25/08 P) (1)

(Appeal — Action brought by the Chairman of the Committee
on Legal Affairs of the Parliament against the ‘action’ of the
President of the Parliament which led to the submission of
observations in the name of the Parliament in a matter which
related to a reference for a preliminary ruling — Time-limit
for initiating proceedings)

(2009/C 44/40)

Language of the case: German

Parties

Appellant: Giuseppe Gargani
Rechtsanwalt)

(represented by: W. Rothley,

Other party to the proceedings: European Parliament (represented
by: J. Schoo and H. Krück, agents)

Re:

Appeal brought against the Order of the Court of First Instance
(Third Chamber) of 21 November 2007, Gargani v Parliament
in which the Court of First Instance dismissed as
(T-94/06),
manifestly inadmissible the action brought by the Chairman of
the Committee on Legal Affairs of the European Parliament,
seeking a declaration of unlawfulness in relation to the decision
of the President of the European Parliament to submit written
observations in the name of the Parliament, in accordance with
the second paragraph of Article 23 of the Statute of the Court,
in the context of a reference for a preliminary ruling, contrary
to the advice of the Commission of Legal Affairs, and his refusal
to submit the issue to plenary

2. Articles 9(1) and 10 of Directive 2004/38 preclude a national
provision under which family members of a Union citizen who are
in accordance with
not nationals of a Member State and who,
Community law, and in particular Article 7(2) of the directive,
have a right of residence, cannot be issued with a residence card of
a family member of a Union citizen solely because they are entitled
temporarily to reside in the host Member State under that State's
asylum laws.

Operative part of the order

1. The appeal is dismissed.

2. Mr Gargani is ordered to pay the costs.

(1) OJ C 64, 8.3.2008.

(1) OJ C 79, 29.3.2008.