CELEX: C1998/358/19
Language: en
Date: 1998-11-21 00:00:00
Title: Reference for a preliminary ruling by the Court of Appeal, London, by order of that Court of 13 May 1998, in the case of The Queen against Secretary of State for the Home Department, ex parte: Nana Yaa Konadu Yiadom (Case C-357/98)

C 358/10              EN                Official Journal of the European Communities                                   21.11.98
    majority of cases, select only a Belgian national                   considered (see paragraph 255 of the United Kingdom
    residing for a certain length of time in Belgium, thus              Immigration Rules, House of Commons Paper 395), as
    allowing those authorities to carry out the screening'             compared to a requirement of 12 months residence
    which they deem necessary, but not a person who has                 before such application can be made, as is applied to
    acted as a manager of a comparable undertaking in                   spouses of the United Kingdom nationals and spouses
    another Member State of the European Union. In                      of those present and settled in the United Kingdom
    those circumstances, the requirement of residence                   (paragraph 287 of the United Kingdom Immigration
    constitutes indirect discrimination which could only be             Rules, House of Commons Paper 395) constitute
    justified under Article 56 of the EC Treaty. The                    unlawful discrimination contrary to Article 7(2)
    Commission considers, however, that the restriction                 Regulation (EEC) No 1612/68?
    derives from administrative considerations which are
    not such as to justify it.
                                                                   (1) Regulation (EEC) No 1612/68 of the Council of 15 October
                                                                       1968 on freedom of movement for workers within the
                                                                       Community (OJ L 257, 19.10.1968, p. 2 [SE SER1 68(II)
Ð Restriction on freedom of movement for workers                       p. 475]).
    (Article 48 of the EC Treaty):
    The requirement of residence in Belgium prevents
    workers residing in other countries from being
    engaged by a security firm or a security systems firm,
    or being employed for the purposes of an internal
    security service in an undertaking in Belgium. In              Reference for a preliminary ruling by the Court of Appeal,
    response to the argument alleging the need for control,        London, by order of that Court of 13 May 1998, in the
    the Commission reiterates the arguments which it put           case of The Queen against Secretary of State for the
    forward in connection with Article 52 of the EC                  Home Department, ex parte: Nana Yaa Konadu Yiadom
    Treaty.
                                                                                          (Case C-357/98)
(1) OJ C 334, 9.12.1993, p. 3.                                                             (98/C 358/19)
                                                                   Reference has been made to the Court of Justice of the
                                                                   European Communities by an order of the Court of
                                                                   Appeal, London, of 13 May 1998, which was received at
Reference for a preliminary ruling by the Immigration              the Court Registry on 1 October 1998, for a preliminary
Adjudicator, by order of the Adjudicator of 25 September           ruling in the case of The Queen against Secretary of State
1998, in the case of Arben Kaba against Secretary of State         for the Home Department, ex parte: Nana Yaa Konadu
                  for the Home Department                          Yiadom, in the following questions:
                       (Case C-356/98)
                        (98/C 358/18)                              1. Do both Article 8 and Article 9 of Council Directive
                                                                        64/221/EEC of 25 February 1964 on the coordination
                                                                        of special measures concerning the movement and
Reference has been made to the Court of Justice of the                  residence of foreign nationals which are justified on
European Communities by an order of the Immigration                     grounds of public policy, public security or public
Adjudicator of 25 September 1998, which was received at                 health (OJ English Special Edition 1963Ð4, p. 117
the Court Registry on 1 October 1998, for a preliminary                 and OJ 56, 4.4.1964, p. 850.) apply to decisions
ruling in the case of Arben Kaba against Secretary of State             concerning entry into the territory of a Member State,
for the Home Department, on the following questions:                    or are decisions concerning entry covered solely by the
                                                                        provisions of Article 8?
1. Does the right to apply for indefinite leave to remain
    in the United Kingdom and the right to have that               2. If the answer to the first question is that Article 8, but
    application considered constitute a social advantage'              not Article 9, of Directive 64/221/EEC applies to
    within the meaning of Article 7(2), Regulation (EEC)                decisions concerning entry into the territory of a
    No 1612/68 (1)?                                                     Member State, are the requirements of Article 8
                                                                        satisfied by provisions of national law which grant to
                                                                        the national of a Member State who is refused entry to
2. Does the requirement imposed on the spouses of EC                    another Member State on grounds of public policy a
    nationals to have been resident in the United Kingdom               right of appeal to a court of law which may only be
    for four years before an application for indefinite leave           exercised once that person is no longer physically
    to remain in the United Kingdom may be made and                     present in the Member State concerned?
 ---pagebreak--- 21.11.98              EN                 Official Journal of the European Communities                                   C 358/11
3. For the purposes of Article 8 and/or 9 of Directive              Action brought on 2 October 1998 by the Commission of
    64/221/EEC, where national law:                                   the European Communities against the Italian Republic
                                                                                           (Case C-358/98)
                                                                                            (98/C 358/20)
    Ð permits the competent authorities, as an alternative
         to detention, to grant temporary admission' to a
         national of another Member State who does not
         hold a current residence permit onto the territory         An action against the Italian Republic was brought before
         of the host Member State, without granting that            the Court of Justice of the European Communities on
         person entry' under national law into the Member          2 October 1998 by the Commission of the European
         State concerned; and                                       Communities, represented by Enrico Traversa and Maria
                                                                    Patakia, of its Legal Service, acting as Agents, with an
                                                                    address for service in Luxembourg at the office of Carlos
                                                                    Gómez de la Cruz, Wagner Centre, Kirchberg.
    Ð permits the competent authorities to keep the
         person concerned on temporary admission until
         they have completed their enquiries as to whether          The applicant claims that the Court should:
         or not the facts justify measures to exclude that
         person from the Member State on grounds of
         public policy,                                             Ð declare that, by making the provision of cleansing,
                                                                         disinfection,   disinfestation,  rodent-control     and
                                                                         sanitation services by operators established in other
                                                                         Member States subject to registration under Article 1
                                                                         of Law No 82/1994 of 25 January 1994, in
    is a subsequent decision to refuse entry' to that person            accordance with Articles 1 and 6 of that Law, the
    and to exclude her from the territory of the Member                  Italian Republic has failed to fulfil its obligations
    State on grounds of public policy a decision                         under Article 59 of the EC Treaty;
    concerning entry into the territory of a Member State,
    or a decision concerning expulsion from the territory
    of a Member State?
                                                                    Ð order the Italian Republic to pay the costs of the
                                                                         proceedings.
4. Is the answer to question 3 different if national law            Pleas in law and main arguments adduced in support:
    permits the competent national authorities to lift
    employment restrictions initially imposed as a
    condition of such temporary admission, and those
                                                                    According to the Commission, the obligation on
    authorities do so after the decision is taken to refuse
                                                                    undertakings to register and the substantial penalties
    admission to the national territory, pending the
                                                                    provided for failure to comply with that obligation
    determination of judicial review proceedings to set
                                                                    amount to a clear breach of Article 59 of the Treaty,
    aside that refusal?
                                                                    which provides for the abolition of all restrictions on the
                                                                    freedom to provide services within the Community. By
                                                                    providing penal sanctions for the exercise of cleansing
                                                                    activities by non-registered undertakings, by providing
                                                                    that contracts concluded with such undertakings are void,
5. Is the answer to question 3 capable of being affected            and by providing for administrative penalties to be
    by the length of time taken a) to refuse entry' and/or         imposed on those receiving cleansing services provided by
    b) to implement such decision by actually removing              non-registered undertakings, Article 6 of Law No 82/1994
    the person concerned from the territory of the                  has the result that registration of undertakings constitutes
    Member State, and if so in what way?                            an essential precondition to carrying out cleansing,
                                                                    disinfection and similar activities within the territory of
                                                                    the Italian State.
6. Is the answer to question 5 in turn capable of being
    affected by whether the delay in implementing a                 The Commission submits that, in so far as that
    decision to refuse entry' is due to a challenge to its         registration requirement also applies to operators
    legality, and if so in what way?                                established in other Member States and not established in
                                                                    Italy, it prevents and in any event obstructs the freedom to
                                                                    provide services as defined by Article 60 of the Treaty.