CELEX: C2003/031/15
Language: en
Date: 2003-02-08 00:00:00
Title: Case C-441/02: Action brought on 5 December 2002 by the Commission of the European Communities against the Federal Republic of Germany

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)
 ---pagebreak--- 8.2.2003              EN                        Official Journal of the European Union                                           C 31/11
     (the general rule) of the AuslG, nor can the last mentioned        —       Immediate expulsion in non-urgent cases: in German
     provision fill out the terms of the first mentioned                        administrative practice it is found as a general rule —
     provision, because it conflicts with the terms of the                      almost systematically — that there exists a particular
     provision to be filled out. This contradictory legal situ-                 interest in immediate enforcement of the expulsion for
     ation creates problems when the provision is applied in                    the purposes of Paragraph 80(2), Head 4, of the VwGO.
     practice and consequently produces decisions which are                     The rules laid down in Articles 7 and 9 of Directive 64/
     contrary to Community law.                                                 221/EEC thereby lose any significance. However, as
                                                                                German law on foreign nationals does not provide a
                                                                                specific procedure before an independent authority
                                                                                within the meaning of Article 9 of Directive 64/221/EEC,
                                                                                in the case of the expulsion of citizens of the Union
—    Inadequate examination of danger to public order in the                    suspensive effect may be excluded by an order under
     case of the expulsion of citizens of the Union with limited                Paragraph 80(2), Head 4, of the VwGO only when
     residence permits. When applying Paragraph 12 of                           ‘urgency’ exists within the meaning of Article 9(1) of
     the Aufenthaltsgesetz/EWG, in many cases the German                        Directive 64/221/EEC. In the Commission’s view, such a
     authorities erroneously apply the broad interpretation of                  case of urgency can be held to exist only if immediate
     the notion of ‘public safety and order’ in German                          enforcement is the only means to avert a specific, direct
     administrative law and fail to take into account the                       and serious danger to public order and the existence of
     materially more restrictive interpretation of that notion                  that enhanced requirement has been specifically estab-
     in the case-law of the Court of Justice (‘Bouchereau’),                    lished by the authority. Furthermore, in the Commission’s
     which, in conjunction with Article 39(4) and Article 46                    view, the principle of proportionality also requires, at
     EC, is alone authoritative. This is clearly due to the fact                least in the case of long-term resident citizens of the
     that the authorities reach, a contrario from the particular                Union, to order the immediate enforcement of an expul-
     scheme of Paragraph 12(1) of the Aufenthaltsgesetz/                        sion order only in exceptional cases for particularly
     EWG, a conclusion which is obvious but incompatible                        serious and urgent reasons. The German legal position
     with Community law, namely that the existence of serious                   and administrative practice must be unambiguously and
     public order grounds is to be examined only in the case                    unmistakably clarified in that regard too.
     of persons who possess an unlimited EC residence permit
     within the meaning of the second sentence of the
     abovementioned rule, whereas other citizens of the Union
                                                                        (1 )  OJ, English Special Edition, 1963-1964, p. 117 .
     may therefore be expelled even on ‘simple’ public order            (2 )  OJ, English Special Edition, 1968 (II), p. 475.
     grounds.                                                           (3 )  OJ L 172 of 28.6.1973, p. 14.
                                                                        (4 )  OJ L 180 of 13.7.1990, p. 26.
—    General, preventative considerations unlawfully taken
     into account: Expulsion as the general rule, on the basis
     of a criminal conviction for the particular offence, as a
     means of general prevention of crime is incompatible
     with the principles applicable to the freedom of move-
     ment for workers who are nationals of a Member State.
     An administrative practice based on Article 47(1) and (2)          Reference for a preliminary ruling by the Tribunale di
     of the AuslG and thus undoubtedly also on general,                 Pordenone by order of that Court of 20 November 2002
     preventative considerations, is contrary to Community                   in the criminal proceedings against Nicolas Schreiber
     law.
                                                                                                    (Case C-443/02)
—    Failure to take adequate account of the principle of
                                                                                                     (2003/C 31/16)
     proportionality with regard to the fundamental right to
     respect for family life: In many cases the family situation
     of the person concerned (in view of the rule in Article 17
     AuslG) has not, or has not been sufficiently, taken into
     account, even though the ‘public order’ exception must
                                                                        Reference has been made to the Court of Justice of the
     be applied in accordance with human rights. The Com-
                                                                        European Communities by order of the Tribunale di Pordenone
     mission refers in this regard in particular to the case-law
                                                                        (Pordenone District Court) of 20 November 2002, received at
     of the European Court of Human Rights, according to
                                                                        the Court Registry on 6 December 2002, for a preliminary
     which even recidivists involved in serious crime without
                                                                        ruling in the criminal proceedings against Nicolas Schreiber
     an individual right of residence cannot, having regard to
                                                                        on the following questions:
     all the specific circumstances of the person concerned,
     always be expelled. In its view, the German legal situation
     and administrative practice in that regard calls for unam-         1.      Must Article 2(1)(a) and (b) of Directive 98/8/EC ( 1), in
     biguous and unmistakable clarification.                                    the light of the general rules which that directive intro-