CELEX: C1999/265/04
Language: en
Date: 1999-09-18 00:00:00
Title: Case C-257/99: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division, Divisional Court, by order of that court of 29 March 1999, in the case of The Queen against Secretary of State for the Home Department, ex parte: Julius Barkoci and Marcel Malik

C 265/2                 EN                    Official Journal of the European Communities                                      18.9.1999
2. If the answer to Question 1 is in the negative:                       II.   If the answer to one of the questions under I is in the
                                                                              negative:
     Can it be concluded that these circumstances constitute ‘a
                                                                              a) Are advances on maintenance payments under the
     special situation’ which — if the other legislative conditions
                                                                                   Unterhaltsvorschußgesetz referred to in Question I(a)
     are satisfied — may lead to repayment of the import duties
                                                                                   social advantages within the meaning of Article 7(2) of
     under Article 239 of the Customs Code in conjunction
                                                                                   Regulation (EEC) No 1612/68 (4) of the Council of
     with Article 905(1) of the regulation implementing the
                                                                                   15 October 1968 on freedom of movement for work-
     Customs Code?
                                                                                   ers within the Community?
                                                                              b) Does the fact that the child has to be resident in Austria
(1) Council Regulation (EEC) No 2913/92, OJ L 302 of 19.10.1992,                   in order to be awarded advances on maintenance
    p. 1.                                                                          payments constitute a prohibited limiting provision
(2) Commission Regulation (EEC) No 2454/93, OJ L 253 of                            under the second indent of Article 3(1) of Regulation
    11.10.1993, p. 1.
                                                                                   (EEC, No 1612/68 in the light of the right to freedom
                                                                                   of movement for workers enshrined in Article 48 of
                                                                                   the EC Treaty?
                                                                              c) Do the provisions of Regulation No 1612/68 give rise
                                                                                   to an entitlement, in the person of the child of a
                                                                                   worker, to the award of advances on maintenance
                                                                                   payments?
Reference for a preliminary ruling by the Oberster                       ( 1) OJ L 149 of 5.7.1971, p. 2.
Gerichtshof by Order of that court of 23 June 1999 in the                ( 2) OJ L 230 of 22.8.1984, p. 6.
case relating to the minor Anna Humer represented by                     ( 3) OJ L 331 of 16.11.1989, p. 1.
           her mother Andrea Sturmbauer-Machand                          ( 4) OJ, English Special Edition 1968 (II), p. 475.
                          (Case C-255/99)
                         (1999/C 265/03)
                                                                         Reference for a preliminary ruling by the High Court
                                                                         of Justice (England & Wales), Queen’s Bench Division,
Reference has been made to the Court of Justice of the                   Divisional Court, by order of that court of 29 March
European Communities by order of the Oberster Gerichtshof,               1999, in the case of The Queen against Secretary of State
Vienna, of 23 June 1999, received at the Court Registry on               for the Home Department, ex parte: Julius Barkoci and
8 July 1999, for a preliminary ruling in the case relating to the                                     Marcel Malik
minor Anna Humer, represented by her mother Andrea
Sturmbauer-Machand, on the following question:                                                      (Case C-257/99)
                                                                                                    (1999/C 265/04)
I. a) Do advances on maintenance payments to the minor
          children of working persons, or unemployed persons             Reference has been made to the Court of Justice of the
          drawing unemployment benefit under Austrian legis-             European Communities by an order of the High Court of
          lation, which are payable in respect of children under         Justice (England & Wales), Queen’s Bench Division, Divisional
          the Austrian federal law on the grant of advances on           Court of 29 March 1999, which was received at the Court
          maintenance (Unterhaltsvorschußgesetz 1985 [Law on             Registry on 9 July 1999, for a preliminary ruling in the case of
          Advances on Maintenance Payments 1985], hereinafter            The Queen against Secretary of State for the Home Depart-
          UVG — current version in BGBl p. 451) constitute               ment, ex parte: Julius Barkoci and Marcel Malik, on the
          family benefits for the purposes of Article 4(1)(h) of         following questions:
          Council Regulation (EEC) No 1408/71 (1) of 14 June
          1971 on the application of social security schemes to
          employed persons, to self-employed persons and to              Direct effect and interpretation of the Agreement (1)
          members of their families moving within the Com-
          munity, as amended and updated by Regulation (EEC)
          No 2001/83 (2) of 2 June 1983 and amended by                   1. Does Article 45 of the Agreement have direct effect
          Council Regulation (EEC) No 3427/89 (3) of 30 Octo-                 within the national legal systems of Member States,
          ber 1989, and is Article 3 of the regulation, on equality           notwithstanding the provisions of Article 59 of the Agree-
          of treatment, therefore also applicable in such a case?             ment?
                                                                         2. If the answer to question 1 is ‘yes’, how is the proviso in
     b) Do Articles 73 and 74 of Regulation 1408/71 entitle a                 the penultimate sentence of Article 59(1) of the Agreement
          child of a marriage who is resident with his mother in              (and in particular the words ‘benefits accruing to any Party
          a Member State other than Austria and whose father is               under the terms of a specific provision of this Agreement’)
          resident in Austria and is working there, or unem-                  to be interpreted; and, more generally, to what extent may
          ployed and drawing unemployment benefit under                       a Member State apply its laws and regulations regarding
          Austrian legislation, to the award of an advance on                 entry, stay and establishment of natural persons to persons
          maintenance payments under the Unterhaltsvorschuß-                  invoking Article 45 of the Agreement, without violating
          gesetz referred to in paragraph (a) above?                          this proviso?
 ---pagebreak--- 18.9.1999              EN                     Official Journal of the European Communities                                           C 265/3
3. If the answer to question 1 is ‘no’, is a natural person who               iv. the fact that the applicant has had access to the social
   is a national of the Czech Republic nonetheless entitled, in                    welfare system of the Member State and has depended
   domestic legal proceedings brought for the purposes of                          upon it financially whilst establishing himself as a
   challenging a decision of the relevant national authorities                     self-employed person?
   to refuse him admission to establish himself in business
   pursuant to the Agreement, to invoke Article 45 of the                7. If a Member State is not entitled to refuse entry to a person
   Agreement in order to challenge the lawfulness of a                        seeking to establish himself under the Agreement on the
   Member State’s laws and regulations regarding entry, stay                  sole basis that prior entry clearance has not been obtained,
   and establishment of natural persons, and if so on what                    is it legitimate for the competent authorities to grant such
   legal basis?                                                               a person leave to enter only if his application clearly and
                                                                              manifestly satisfies the same substantive criteria as would
                                                                              have been applied had he sought prior entry clearance?
Requirement to obtain prior permission before travelling
                                                                         (1) Europe Agreement establishing an association between the Euro-
                                                                             pean Communities and their Member States, of the one part, and
                                                                             the Czech Republic, of the other part (OJ L 360, 31.12.94, p. 2.)
                                                                         (2) UK and EC legislation — Immigration Rules.
4. If the answer to question 1 or question 3 is ‘yes’, do
   Articles 45 and/or 59 of the Agreement permit a Member
   State to require a person who wishes to travel to a Member
   State purely to establish himself as a self-employed person
   under the Agreement to apply for and obtain prior ‘entry
   clearance’ (that is, prior permission to travel to the State
   for that specific purpose)?
                                                                         Reference for a preliminary ruling by the Arrondisse-
5. If the answer to question 4 is ‘yes’:                                 mentsrechtbank ’s-Gravenhage by decision of 2 July 1999
                                                                         in the case of BASF AG v Bureau voor de Industriële
                                                                                                      Eigendom
   a) is a Member State entitled to make the grant of
        such prior entry clearance conditional upon satisfying
        substantive requirements relating to establishment                                         (Case C-258/99)
        such as those contained in paragraph 212 of
        HC 395 (2); and                                                                            (1999/C 265/05)
   b) may a Member State refuse admission into its territory             Reference has been made to the Court of Justice of the
        to a person seeking to establish himself as a self-              European Communities by decision of 2 July 1999 from the
        employed person under the Agreement on the sole                  Arrondissementsrechtbank ’s-Gravenhage (District Court, The
        ground that such prior entry clearance has not been              Hague), which was received at the Court Registry on 12 July
        obtained?                                                        1999, for a preliminary ruling in the case of BASF AG
                                                                         v Bureau voor de Industriële Eigendom on the following
                                                                         questions:
6. Where such a person has not been granted permission to
   enter the territory of the Member State on any other basis,           I. a. In light of the definitions laid down in Article 1.2,
   is the answer to question 5 affected (and if so how) by any                     1.3 and 1.8 of Regulation (EC) No 1610/96 (1) (‘the
   of the following factors:                                                       regulation’), must ‘product’ within the meaning of
                                                                                   Article 3 of the regulation be understood as meaning
                                                                                   an active substance or the combination of active
   i.   the fact that, on initial arrival at the border of the                     substances, as described in more detail in Article 1.3,
        Member State, the person did not seek admission                            as they occur naturally or by manufacture, including
        pursuant to the Agreement but on some other basis,                         any impurity inevitably resulting from the manufacturing
        which was subsequently rejected;                                           process?
   ii. the length of time which has elapsed between the                       b. Are identical products involved, for the purposes of
        applicant’s initial arrival at the border of the Member                    the regulation, in the case where, by means of a new
        State and the date of his subsequent application for                       process, a plant protection product is obtained which
        establishment as a self-employed person pursuant to                        contains a longer amount of unavoidable impurities
        the Agreement;                                                             than an existing plant protection product with the
                                                                                   same active component?
   iii. the extent of any restrictions placed on the applicant                c. Does the issue of whether a new authorisation must be
        by the national authorities during that time, pursuant                     obtained for this new plant protection product have
        to powers contained in national immigration law, as                        any bearing on the answer to Question I.b. and, if so,
        to his liberty or employment/occupation;                                   how much of a bearing does it have?