CELEX: C2003/171/20
Language: en
Date: 2003-07-19 00:00:00
Title: Case C-210/03: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) by order of that court dated 17 April 2003, in the case of The Queen on the application of 1) Swedish Match AB 2) Swedish Match UK Ltd against Secretary of State for Health

C 171/14              EN                         Official Journal of the European Union                                       19.7.2003
1.   Whether, given the decisions of the Court of Justice of                  erty), to be interpreted as precluding national legislation
     the European Communities in case C-39/86 Lair v                          which prohibits any person from supplying, offering or
     Universität Hannover [1988] ECR 3161, and case C-189/                    agreeing to supply, exposing for supply or possessing for
     97 Brown v Secretary of State for Scotland [1988] ECR                    supply any product made wholly or partly of tobacco
     3205, and developments in the law of the European                        which is either in powder or particulate form or any
     Union, including the adoption of Article 18 EC and                       combination of those forms or is presented in a form
     developments in relation to the competence of the                        resembling a food product and is intended for oral use
     European Union in the field of education, assistance                     other than smoking or chewing?
     with maintenance costs for students attending university
     courses, such assistance being given by way of either
     (a) subsidised loans or (b) grants, continues to fall outside
                                                                         (2) Is Article 8 of Directive 2001/37/EC ( 1) invalid in whole
     the scope of the application of the EC Treaty for the
                                                                              or in part by reason of:
     purposes of Article 12 EC and the prohibition on
     discrimination on grounds of nationality.
2.   If either part of question 1 is answered in the negative,                a.    infringement of the principle of non-discrimination;
     and if assistance with maintenance costs for students in
     the form of grants or loans do now fall within the scope
     of Article 12 EC, what criteria should the national court                b.    Infringement of Article 23 and/or 29 EC;
     apply in determining whether the conditions governing
     eligibility for such assistance are based on objectively
     justifiable considerations not dependent on nationality?
                                                                              c.    infringement of the principle of proportionality;
3.   If either part of question 1 is answered in the negative,
     whether Article 12 EC may be relied upon to claim
     entitlement to assistance with maintenance costs from a                  d.    the inadequacy of Article 95 and/or Article 133 as a
     date prior to the date of the judgment of the Court of                         legal basis;
     Justice in the present case and, if so, whether an exception
     should be made for those who initiated legal proceedings
     before that date?
                                                                              e.    infringement of Article 95(3);
                                                                              f.    misuse of powers;
                                                                              g.    infringement of Article 253 EC and/or the duty to
Reference for a preliminary ruling by the High Court of                             give reasons;
Justice (England and Wales), Queen’s Bench Division
(Administrative Court) by order of that court dated
17 April 2003, in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against                        h.    infringement of the fundamental right to property?
                 Secretary of State for Health
                        (Case C-210/03)                                  (3) In circumstances where:
                        (2003/C 171/20)
                                                                              a.    a national measure implementing Article 8a of
                                                                                    Directive 89/622/EEC (2) was adopted in 1992;
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court                            b.    the said national measure was adopted pursuant to
of Justice (England and Wales), Queen’s Bench Division                              powers in domestic law which do not depend on
(Administrative Court), dated 17 April 2003, which was                              the existence of an obligation to implement the
received at the Court Registry on 15 May 2003, for a                                Directive;
preliminary ruling in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against
Secretary of State for Health on the following questions:                     c.    Directive 89/622/EEC (as subsequently amended by
                                                                                    the Act of Accession of Austria, Finland and Sweden)
(1) Are Articles 28-30 EC, applied compatibly with the                              is repealed and replaced by Directive 2001/37/EC,
     general principles of proportionality, non-discrimination                      Article 8 of which re-enacts Article 8a of Directive
     and fundamental rights (in particular the right to prop-                       89/622/EEC; and
 ---pagebreak--- 19.7.2003                 EN                       Official Journal of the European Union                                         C 171/15
       d.    Article 8 of Directive 2001/37/EC is invalid by                          person invokes his right of residence imposes on its
             reason of the principles referred to in questions 2(a),                  own nationals no general duty to provide evidence
             2(c) or 2(h) are those principles to be interpreted as                   of identity?
             also prohibiting the national measure in question?
                                                                                c.    If the answer to Question 2a is in the affirmative,
( 1) Directive 2001/37/EC of the European Parliament and of the                       does Community law as it stands at present lay
     Council of 5 June 2001 on the approximation of the laws,                         down any requirements in regard to the period
     regulations and administrative provisions of the Member States                   within which that Member State must afford the
     concerning the manufacture, presentation and sale of tobacco
                                                                                      opportunity for the person concerned still to present
     products — Commission statement, OJ L 194, 18.7.2001, p. 26-
                                                                                      a valid identity card or passport before it imposes
     35.
( 2) Council Directive 89/622/EEC of 13 November 1989 on the                          an administrative penalty in the form of an order in
     approximation of the laws, regulations and administrative pro-                   respect of the presumed unlawful residence?
     visions of the Member States concerning the labelling of tobacco
     products, OJ L 359, 8.12.1989, p. 1-4.
                                                                                d.    Does an administrative penalty in the form of an
                                                                                      order, as referred to in Question 2c, namely the
                                                                                      imposition of a detention order with a view to
                                                                                      deportation pursuant to Article 59 of the Vw 2000
                                                                                      before the period referred to in Question 2c has
                                                                                      elapsed constitute a penalty which impinges dispro-
Reference for a preliminary ruling by the Rechtbank                                   portionately on freedom to provide services?
’s-Gravenhage by judgment of that Court of 12 May 2003
in the proceedings between Salah Oulane and Minister
                                                                           3.   a.    If the answer to Question 1 is in the negative, as
            voor Vreemdelingenzaken en Integratie
                                                                                      Community law stands at present, is freedom to
                                                                                      provide services impeded where a detention order
                            (Case C-215/03)                                           with a view to deportation under Article 59 of the
                                                                                      Vw 2000 is, in the interest of public policy, imposed
                            (2003/C 171/21)                                           on a person claiming to be a national of another
                                                                                      Member State and a tourist for as long as he does
                                                                                      not demonstrate his right of residence by presenting
                                                                                      a valid identity card or passport, even where there is
Reference has been made to the Court of Justice of the                                no obvious present and serious danger to public
European Communities by judgment of the Rechtbank                                     policy?
’s-Gravenhage (District Court, The Hague) of 12 May 2003,
received at the Court Registry on 19 May 2003, for a
preliminary ruling in the proceedings between Salah Oulane                      b.    If that freedom is impeded in the manner described
and Minister voor Vreemdelingenzaken en Integratie (Minister                          in Question 3a, is the period within which that
responsible for foreign nationals and Integration) on the                             Member State afforded an opportunity still to pre-
following questions:                                                                  sent a valid identity card or passport material for
                                                                                      the purposes of establishing whether or not the
                                                                                      impediment is justified?
As regards the first proceedings:
1.     As a consequence of the abolition of entry controls at                   c.    If that freedom is impeded in the manner described
       internal borders, must the third paragraph of Article 4(2)                     in Question 3a is it relevant, for the purposes of
       of Directive 73/148/EEC (OJ 1973 L 172) be interpreted                         establishing whether that impediment is justified,
       as meaning that the right of residence granted therein of                      whether or not the Member State subsequently pays
       a person who claims to be a national of another Member                         compensation in respect of the period during which
       State and a tourist has to be recognised by the authorities                    the person was detained pending production of
       of the Member State in which that person invokes his                           proof of nationality by means of a valid passport or
       right of residence only from such time as he has presented                     identity card, as is customary in that Member State
       his valid identity card or passport?                                           in the case of unlawful detention as an illegal alien?
2.     a.    If the answer to Question 1 is in the affirmative,
             does Community law as it stands at present, in                4.   Where a Member State itself lays down no general duty
             particular in regard to the principle of non-discrimi-             to provide evidence of identity, does Community law as
             nation and the freedom to provide services, provide                it stands at present preclude, in particular in light of the
             grounds for making an exception thereto with the                   prohibition on discrimination, a Member State from
             result that the authorities of a Member State must                 imposing, in connection with the internal control of
             still afford to that person the opportunity to present             aliens, a measure such as detention as an illegal alien with
             his valid identity card or passport?                               a view to deportation under Article 59 of the Vw in
                                                                                respect of a person who claims to be a tourist for as long
       b.    Is it material to the answer to Question 2a that the               as that person does not demonstrate his alleged right of
             national law of the Member State in which that                     residence by presenting a valid identity card or passport?