CELEX: C2003/031/14
Language: en
Date: 2003-02-08 00:00:00
Title: Case C-438/02: Reference for a preliminary ruling from Stockholms tingsrätt by decision of of 29 November 2002 in the case of Åklagaren v Krister Hanner

8.2.2003                EN                        Official Journal of the European Union                                               C 31/9
       4.   and by failing to institute criminal or administrative        A bse n c e of c r i m i n al p r o c e e d i n gs o r ad m i n-
            proceedings against masters or other persons                  i s tra ti v e ac ti on
            responsible for fishing taking place after the prohib-
            ition of fishing,
                                                                          It appears from the Finnish Government’s answer to the
                                                                          Commission’s reasoned opinion that no measures in accord-
       the Republic of Finland has failed to fulfil its obligations       ance with Article 31 of the monitoring Regulation No 2847/
       under Article 9 of Regulation (EEC) No 3760/92 ( 1) and            93 have been taken.
       Articles 2, 21 and 31 of Regulation (EEC) No 2847/93 (2),
       and
                                                                          (1 ) Council Regulation (EEC) No 3760/92 of 20 December 1992
—      order the Republic of Finland to pay the costs.                         establishing a Community system for fisheries and aquaculture
                                                                               (OJ 1992 L 389, p. 1).
                                                                          (2 ) Council Regulation (EEC) No 2847/93 of 12 October 1993
                                                                               establishing a control system applicable to the common fisheries
                                                                               policy (OJ 1993 L 261, p. 1).
Pleas in law and main arguments
A bs ence o f ap p rop ri at e deta i l ed rul es con -
c erni n g t he use of al l o cati o ns
                                                                          Reference for a preliminary ruling from Stockholms
                                                                          tingsrätt by decision of of 29 November 2002 in the case
Certain stocks of fish referred to in the annexes to the aforesaid                          of Åklagaren v Krister Hanner
regulations were overfished in 1995 and 1996 by vessels
flying the Finnish flag. It appears from the Finnish Govern-
ment’s response to the Commission’s reasoned opinion that                                            (Case C-438/02)
Finland accepts the Commission’s complaint of overfishing in
1995 and 1996 as specified in detail in the tables annexed to
the Commission’s official notice.                                                                     (2003/C 31/14)
A bs ence of i n sp ect i on an d mon i to ri ng                          Reference has been made to the Court of Justice of the
m easu res con cern i n g th e u se o f al l oca ti o ns                  European Communities by a decision of Stockholms tingsrätt
                                                                          of 29 November 2002, which was received at the Court
                                                                          Registry on 4 December 2002, for a preliminary ruling in the
It is clear on the basis of the excess fishing which took place           case of Åklagaren v Krister Hanner on the following questions:
in 1995 and 1996 that Finland breached Article 2 of the
monitoring regulation. In its response to the Commission’s
                                                                          1.     There is an independent system at national level for the
reasoned opinion Finland accepts that the monitoring arrange-                    testing and approval of medicinal products intended to
ments did not operate adequately. Finland refers in particular
                                                                                 maintain good quality for medicinal products and prevent
to the difficulties which derived from Finland’s accession to
                                                                                 damaging effects of medicinal products. Certain medicinal
the European Union and the changes required by membership                        products also require a prescription from a registered
to the Finnish legislation on fishing.
                                                                                 doctor. In such circumstances does Article 31 of the EC
                                                                                 Treaty preclude national legislation which provides that
                                                                                 retail trade in medicinal products may only be carried on
                                                                                 by the State or by legal persons in which the State has a
                                                                                 determining influence, the objective of which is to meet
La te sus pen si o n of fi s hi n g                                              the need for safe and effective medicinal products?
                                                                          2.     Does Article 28 of the EC Treaty preclude legislation such
A Member State which terminates fishing only when it is
                                                                                 as that described in Question 1, in the light of the
already known that the quota has been exceeded acts too late
                                                                                 information in that question.
and thus breaches its obligations under Article 21(2) of the
monitoring Regulation No 2847/93. It is clear from the
Finnish Government’s response to the Commission’s reasoned                3.     Does Article 43 of the EC Treaty preclude legislation such
opinion that the national prohibition decisions were not made                    as that described in Question 1, in the light of the
in sufficient time to prevent excess fishing.                                    information in that question.
 ---pagebreak--- C 31/10                 EN                        Official Journal of the European Union                                           8.2.2003
4.    Does the principle of proportionality preclude legislation                4.    in adopting expulsion orders against citizens of
      such as that described in Question 1, on examination of                         the Union which fail to maintain a reasonable
      Questions 1 to 3?                                                               relationship between the fundamental right to
                                                                                      respect for the right to family life, on the one hand,
5.    Would the answer to Questions 1 to 4 be different if                            and the preservation of public order, on the other;
      ‘non-prescription’ medicinal products were entirely or
      partly exempted from the requirement under national
      legislation that retail trade in medicinal products be                    5.    in ordering the immediate enforcement of expulsion
      carried on only by the State or by legal persons in which                       orders against citizens of the Union in non-urgent
      the State has a determining influence?                                          cases;
                                                                                the Federal Republic of Germany has failed to fulfil its
                                                                                obligations under Articles 18 and 39 of the EC Treaty,
                                                                                under the fundamental right to respect for family life as a
                                                                                general principle of Community law, and under Articles 3
                                                                                and 9 of Directive 64/221/EEC ( 1) on the coordination of
                                                                                special measures concerning the movement and residence
                                                                                of foreign nationals which are justified on grounds of
Action brought on 5 December 2002 by the Commission                             public policy, public security or public health, Article 1
of the European Communities against the Federal Repub-                          of Regulation (EEC) No 1612/68 ( 2) on freedom of
                           lic of Germany                                       movement for workers, Articles 1, 4, 5, 8 and 10 of
                                                                                Directive 73/148/EEC (3) on the abolition of restrictions
                                                                                on movement and residence within the Community for
                          (Case C-441/02)                                       nationals of Member States with regard to establishment
                                                                                and the provision of services, and Articles 1 and 2 of
                                                                                Directive 90/364/EEC ( 4) on the right of residence;
                           (2003/C 31/15)
                                                                          —     Order the Federal Republic of Germany to pay the costs.
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 5 December 2002 by the Commission of the European
Communities, represented by C. O’Reilly and W. Bogensberger,
with an address for service in Luxembourg.                                Pleas in law and main arguments
                                                                          —     Mandatory (automatic) expulsion fails to take adequate
The Commission claims that the Court should find that:                          account of individual conduct: The provisions of Para-
                                                                                graph 47(1) and (2) of the Ausländergesetz (AuslG) are,
—     1.    in failing to make sufficiently clear in its legislation            in so far as they relate to citizens of the Union, flagrantly
            that expulsion orders against citizens of the Union                 and inevitably contrary to the requirements of Article 3(2)
            may not be based on an enabling provision which                     of Directive 64/221/EEC, under which criminal convic-
            provides mandatorily for expulsion on the ground                    tions may not in themselves constitute grounds for
            of a final criminal conviction or provides mandatori-               automatic expulsion. They also conflict with the require-
            ly for it as the general rule, or in basing expulsion               ment in Article 3(1) of Directive 64/221/EEC, which
            orders against citizens of the Union on this unclear                requires an assessment of the personal conduct of the
            enabling provision;                                                 ‘individual concerned’, i.e. an examination of the individ-
                                                                                ual case. However, Paragraph 47(1) and (2) (the general
                                                                                rule) of the AuslG deprive the authorities of precisely the
      2.    in failing to implement in sufficiently clear terms in              discretion which they must have for such an assessment
            Paragraph 4 12(1) of the Aufenthaltsgesetz/EWG                      of the individual case and replaces it with the legislature’s
            the requirements under Community law with regard
                                                                                general assessment which exclusively takes account of
            to restriction of freedom of movement, or in basing                 the conviction. Although Paragraph 12 of the Aufen-
            expulsion orders against citizens of the Union on
                                                                                thaltsgesetz/EWG provides that a criminal conviction in
            this unclear enabling provision;
                                                                                itself does not suffice for the expulsion of a foreign
                                                                                national (subparagraph 4) and the determining factor is
      3.    in failing to make sufficiently clear in its legislation            whether his personal conduct gives cause to expel him
            that expulsion orders against citizens of the Union                 for reasons of public order and security (subparagraph 3),
            may not be based on an enabling provision which                     Paragraph 12(3) and (4) of the Aufenthaltsgesetz/EWG
            pursues general preventative aims, or in justifying                 and Article 3(1) and (2) of Directive 64/221/EEC cannot
            expulsion orders against citizens of the Union with                 be understood as a mere ‘supplement’ and ‘modification’
            deterrence of other foreign nationals;                              to mandatory expulsion under Paragraph 47(1) and (2)