CELEX: C1995/159/23
Language: en
Date: 1995-06-24 00:00:00
Title: Reference for a preliminary ruling by the High Court of Justice, Queen's Bench Division, by order of that court of 3 February 1995, in the case of The Queen against the Secretary of State for the Home Department, ex-parte: Mann Singh Shingara (Case C-65/95)

24 . 6 . 95             EN                  Official Journal of the European Communities                                      No C 159/ 11
 31 December 1992 ( Directive 92/35/EEC ) and 1 January                 preliminary ruling in the case of The Queen against the
 1993 ( Directive 92/40/EEC ).                                          Secretary of State for the Home Department, ex-parte :
                                                                        Mann Singh Shingara, on the following questions :
 H OJ No L 157, 10 . 6 . 1992 , p . 19 .
 ( 2 ) OJ No L 167, 22 . 6 . 1992, p . 1 .
                                                                        1 . ( 1 ) In Article 8 of Council Directive 64/221 /EEC of
                                                                                  25 February 1964 on the coordination of special
                                                                                  measures concerning the movement and residence
                                                                                  of foreign nationals which are justified on grounds
                                                                                  of public policy, public security or public health ( l ),
Action brought on 4 April 1995 by the Commission of the                           do the words 'the same legal remedies . . . as are
       European Communities against the Italian Republic                          available to nationals of the State concerned in
                          ( Case C-118/95 )                                       respect of acts of the administration ' refer (a ) to
                                                                                  specific remedies available in respect of decisions
                             ( 95/C 159/22 )                                      concerning entry by nationals of the State
                                                                                  concerned ( in casu, an appeal to an immigration
An action against the Italian Republic was brought before                         adjudicator ) or ( b ) do they refer only to remedies
the Court of Justice of the European Communities on                               available in respect of acts of the administration
4 April 1995 by the Commission of the European                                    generally ( in casu, an application for judicial
Communities, represented by Eugenio de March, Legal                               review )?
Adviser, acting as Agent, with an address for service in
Luxembourg at the office of Georgios Kremlis, Wagner ,
                                                                            ( 2 ) If the answer to ( 1 ) is ( a ), do the words quoted from
Centre, Kirchberg.
                                                                                  Article 8 of Directive 64/221 refer only to the legal
                                                                                  remedies available to nationals of the               State
The applicant claims that the Court should :                                      concerned in the same circumstances ( in casu,
                                                                                  refusal of entry on grounds of national security), or
 1 , declare that by failing to adopt by law, regulation or                       do they also refer to the specific remedies available
       adminstrative action within the prescribed time limit the                  in analogous or similar circumstances to nationals
       necessary provisions to implement Council Directive                        of the State concerned ; and, if so , how similar or
        92/33/EEC of 28 April 1992 on the marketing of                            analogous must the circumstances be ?
       vegetable propagating and planting material, other than
       seed ( 1 ) and Council Directive 92/34/EEC of 28 April
        1992 on the marketing of fruit plant propagating                2 . In the light of the answer to Question 1 , where a
       material and fruit plants intended for fruit                         Community national is refused entry into the United
       production (2 ) the Italian Republic has failed to fulfil its        Kingdom on grounds of national security does Article 8
       obligations under the EC Treaty;                                     of Directive 64/221/EEC require that national to have a
                                                                            right of appeal to an immigration adjudicator if, on the
2 , order the Italian Republic to pay the costs .                           correct construction of the relevant provisions of
                                                                            national law, a British national refused entry to the
Pleas in law and main arguments adduced in support:                         United Kingdom on grounds of national security has a
                                                                            right of appeal for the purpose of establishing that he is a
The pleas in law and main arguments are the same as in Case                 British national and is therefore entitled to enter the
C-79/95 ; the time limit for implementation expired on                      United Kingdom irrespective of whether his presence in
31 December 1992 .                                                          the United Kingdom is undesirable for reasons of
                                                                            national security ?
(') OJ No L 157, 10 . 6 . 1992 , p . 1 .
( 2 ) OJ No L 157, 10 . 6 . 1992 , p . 10 .
                                                                        3 . Do the opening words of Article 9 ( 1 ) of Directive
                                                                            64/221 /EEC ('where there is no right of appeal to a court
                                                                            of law, or where such appeal may be only in respect of
                                                                            the legal validity of the decision, or where the appeal
                                                                            cannot have suspensory effect') apply equally to
Reference for a preliminary ruling by the High Court of                     Article 9 ( 2 )?
Justice, Queen's Bench Division, by order of that court of
3 February 1995 , in the case of The Queen against the
Secretary of State for the Home Department, ex-parte:                  4 . Where a        decision has been taken to exclude a
                       Mann Singh Shingara                                  Community national from the territory of a Member
                           ( Case C-65/95 )                                 State other than his own on public policy or public
                                                                            security grounds and the Community national has left
                              95/C 159/23 )                                 that territory without there having been an appeal or
                                                                            reference for an advisory opinion to an independent
Reference has been made to the Court of Justice of the                      competent authority pursuant to Articles 8 or 9 of
European Communities by an order of the High Court of                       Council Directive 64/221 /EEC, does that Community
Justice, Queen's Bench Division, of 3 February 1995 , which                 national have a right of reference to an independent
was received at the Court Registry on 13 March 1995 , for a                 competent authority under Article 9 ( 2 ) if that national
 ---pagebreak--- No C 159/ 12            EN                   Official Journal of the European Communities                                    24 . 6 . 95
    subsequently returns or seeks to return to the territory of            ( Such cases being those in which the Member State has
    the Member State concerned, in respect of:                             an 'obligation' (which, for the Italian Constitutional
                                                                           Court, is a 'precise obligation': see judgment of the
    ( a ) the refusal of an application for a residence permit;            Constitutional Court (4 July), 11 July 1989 , No 389, last
          or                                                               subparagraph of paragraph 4 of the grounds of the
                                                                           judgment) to remove from its legal order those
    ( b ) the refusal of an application for entry; or                      provisions which are incompatible with Community
                                                                           law: judgment of the Court of Justice in Case 104/86
    (c ) a decision ordering expulsion ?                                   [ 1988 ] ECR 1799 )).
5 . Do the answers to question 4 vary according to                      — Is a national provision which (without stating reasons )
    whether :
                                                                           reserves to non-profit-making 'companies and firms ' the
                                                                           provision of an entire category of services, which are
    ( a ) the applicant has entered the territory of the                   important inter alia from the financial point of view,
          Member State before asking for a residence                       contrary to Article 58 of the EEC Treaty, in so far as
          permit;                                                          that Article makes a clear distinction between 'profit­
                                                                           making companies and firms ' and 'non-profit-making
    ( b ) the applicant has been expelled from the Member                  companies and firms '?
          State before he has asked for a residence permit, or
          has never asked for a residence permit;
                                                                        — Do Articles 52,58 and 5 9 of the Treaty prohibit national
    ( c ) the earlier departure was as a result of a decision              legislation which hampers the pursuit of a business
          ordering expulsion, or of a threat of detention and              activity by imposing on an undertaking established in a
          expulsion and was followed by a decision to                      particular Member State, which wishes to establish itself
          exclude ?                                                        in another Member State within the meaning of the
                                                                           Treaty, the alternative of either carrying on that activity
(') OJ No L 56 , 4 . 4 . 1964, p . 850 .                                   on a non-economic basis — in that case adopting one of
                                                                           the legal forms which are listed exhaustively but do not
                                                                           coincide with those that facilitate establishment — or —
                                                                           if it intends carrying on the activity on an economic basis
                                                                           — accepting the burden of services which should be
                                                                           provided at the expense of the public health service ?
Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale per la Lombardia by order of                   — Does Article 59 of the Treaty prohibit national
that Court of 2 March 1 995 in the case of Sodemare SA Anni                legislation which, by virtue of the procedures laid down
                 Azzurri Holding and Others                                by domestic law, directs the users of welfare services —
                          ( Case C-70/95 )                                 who are allowed by the said domestic law to choose who
                            ( 95/C 159/24 )                                is to provide them — solely towards undertakings to
                                                                           which, exclusively by reference to their legal structure,
                                                                           the State reimburses the costs of the health services
Reference has been made to the Court of Justice of the                     which all the authorized undertakings are required to
European Communities by an order of the Tribunale                          provide, thereby, first, channelling the demand for
Amministrativo          Regionale        per    la     Lombardia           services towards certain providers and, secondly,
(Administrative Court for the Lombardy Region ) of                         depriving the user of real freedom of choice ?
2 March 1995 which was received at the Court Registry on
2 March 1995 , for a preliminary ruling in the case of
Sodemare SA and Others against Regione Lombardia,                       — Do Articles 3 ( f), 5 , 85 and 86 , possibly in conjunction
intervener Fermabel on the following questions :                           with Article 90 of the Treaty, prohibit the legislation at
                                                                           issue which, under the machinery provided by national
— Under Article 190 of the EEC Treaty, must a national                     law:
    provision which, although dealing with a matter falling
    'within the field of application' of the Community
    Treaties , nevertheless contains no statement whatsoever               ( a ) allows only companies with a particular legal
    of the reasons on which it is based , be regarded as                          structure to provide, without charges to be borne by
    contrary to Community law with the result that that                           the undertaking, services which are ancillary to the
    national provision, lacking a statement of reasons,                           services provided by it against payment;
    cannot be applied by the national court: that result being
    limited to those cases — of which the present case
    appears to be one — where the national provision                       ( b ) allows them to present themselves on the market as
    creates an ambiguous state of affairs, in that it keeps the                   a category of undertakings which, having similar
    persons concerned in a state of uncertainty regarding the                     qualitative and quantitative characteristics, are
    possibilities available to them of relying on Community                       described to users as a largely unitary
    law ?                                                                         organization;