CELEX: C2003/083/14
Language: en
Date: 2003-04-05 00:00:00
Title: Case C-45/03: Reference for a preliminary ruling by the Tribunale di Catania — Prima Sezione Civile, by order of that Court of 19 January 2003 in the case of Catania Commissary General of Police against Oxana Dem'Yanenko

C 83/8                  EN                          Official Journal of the European Union                                             5.4.2003
            that still to be assessed; in the further alternative,          —      Infringement of the preferential status of the OCT: the
            order the Community to pay compensation to be                          Court of First Instance erred in its determination of the
            determined on an equitable basis by the Court of                       relevant facts to such an extent that its appraisal in the
            Justice, plus annual interest of 8 % from the date of                  grounds of its judgment here referred to is, in the light of
            the application at first instance to the date of full                  the procedural documents, incomprehensible.
            and final payment;
                                                                            (1 ) Commission Regulation (EC) No 465/2000 of 29 February 2000
                                                                                 introducing safeguard measures for imports from the overseas
(3) order the respondent to pay the costs of both sets of                        countries and territories of sugar sector products with EC/OCT
      proceedings, in accordance with Article 69(2) of the Rules                 cumulation of origin (OJ 2000 L 56, p. 39).
      of Procedure.                                                         (2 ) — Council Decision 91/482/EEC of 25 July 1991 on the
                                                                                 association of the overseas countries and territories with the
                                                                                 European Economic Community (OJ 1991 L 263, p. 1).
Pleas in law and main arguments
                                                                            Reference for a preliminary ruling by the Tribunale di
—     Breach of Article 109(1) of the OCT Decision ( 2): the                Catania — Prima Sezione Civile, by order of that Court of
      Court of First Instance failed to take into account the fact          19 January 2003 in the case of Catania Commissary
      that Article 109(1) of the OCT Decision constitutes a                         General of Police against Oxana Dem’Yanenko
      derogation from the prohibition in Article 101 of the
      OCT Decision of import duties and measures having
      equivalent effect. As in the case of every derogation which                                       (Case C-45/03)
      departs from the principal rule, and in this case from the
      objective of the successive OCT Decisions, this derogation
      must be narrowly construed and applied. The ‘wide                                                (2003/C 83/14)
      discretion’ of the Commission and the limited appraisal
      of the Community judicature on which the Court of
      First Instance based itself are incompatible with such a
      possibility of applying Article 109(1) of the OCT Decision            Reference has been made to the Court of Justice of the
      that is limited to exceptional cases (Article 109(1) of the           European Communities by order of the Tribunale di Catania
      OCT Decision as an ‘emergency brake’);                                — Prima Sezione Civile (Catania District Court, First Civil
                                                                            Chamber) of 19 January 2003, received at the Court Registry
                                                                            on 7 February 2003, for a preliminary ruling in the case
—     Failure to provide reasons: it was wrong in law and also, in          of Catania Commissary General of Police against Oxana
      light of the documents on the case-file, incomprehensible             Dem’Yanenko on the following questions:
      and/or indicative of inadequate reasoning that the Court
      of First Instance should hold (i) that any additional                 1.     Are the Community rules set out above — Articles 7, 8
      imports of OCT sugar under the EC/OCT cumulation of                          and 9 of Council Directive 64/221/EEC ( 1) of 25 February
      origin regime would increase the amount of surplus sugar                     1964 and Articles 2, 5, 6, 13 and 14 of the Convention
      on the Community market, and (ii) that ‘additional                           for the Protection of Human Rights and Fundamental
      imports’ within the meaning of (i) impose an extra burden                    Freedoms, signed in Rome on 4 November 1950 — and
      on the Community budget;                                                     the general, fundamental principles of Community law to
                                                                                   be interpreted as meaning that any foreigner deported
                                                                                   from a Member State of the European Community is
                                                                                   entitled to have his deportation order reviewed before it
—     Breach of Article 109(1) of the OCT Decision: the Court                      is enforced by an impartial authority different from that
      of First Instance erred in law in its construction of the                    which adopted the order?
      terms ‘difficulties’ and ‘deterioration’ and consequently
      erred in law in its application of those terms. The
      appellant refers to its application at first instance;                2.     Are the Community rules set out above — Articles 7, 8
                                                                                   and 9 of Council Directive 64/221/EEC of 25 February
                                                                                   1964 and Articles 2, 5, 6, 13 and 14 of the Convention
                                                                                   for the Protection of Human Rights and Fundamental
—     Breach of Article 109(2) of the OCT Decision: there is no                    Freedoms, signed in Rome on 4 November 1950 — and
      quantitative correlation between the quota in Regulation                     the general, fundamental principles of Community law to
      No 465/2000 and ‘difficulties’ and/or ‘deterioration’. In                    be interpreted as meaning that it is unacceptable and
      the light of the historical quantities, the measure is also                  unlawful for the police of a Member State of the European
      entirely arbitrary and inequitable;                                          Community, without prior review by any other authority,
 ---pagebreak--- 5.4.2003              EN                        Official Journal of the European Union                                                C 83/9
     forcibly to arrest and deport any person whom they                 6.     Are the Community rules set out above — Articles 7, 8
     unilaterally consider not to be entitled to remain within                 and 9 of Council Directive 64/221/EEC of 25 February
     that State, and to do so within such a period of time and                 1964 and Articles 2, 5, 6, 13 and 14 of the Convention
     in such a way that their action escape any practical and                  for the Protection of Human Rights and Fundamental
     effective review by any third-party impartial authority                   Freedoms, signed at Rome on 4 November 1950 — and
     whether before, during or after their actions?                            the general, fundamental principles of Community law to
                                                                               be interpreted as meaning that Articles 13(3), (4) and (5)a
                                                                               of Legislative Decree No 286 of 25 July 1998, as amended
                                                                               are inconsistent with them?
3.   Are the Community rules set out above — Articles 7, 8              (1 ) Council Directive 64/221/EEC of 25 February 1964 on the co-
     and 9 of Council Directive 64/221/EEC of 25 February                    ordination of special measures concerning the movement and
     1964 and Articles 2, 5, 6, 13 and 14 of the Convention                  residence of foreign nationals which are justified on grounds of
     for the Protection of Human Rights and Fundamental                      public policy, public security or public health (OJ P 56 of
     Freedoms, signed at Rome on 4 November 1950 — and                       4.4.1964, p. 850).
     the general, fundamental principles of Community law to
     be interpreted as meaning that it is illogical and unlawful
     for a Member State of the European Community to lay
     down a system for the judicial review of orders for the
     deportation of foreigners and of police action taken to
     execute such orders which, essentially, has no effect on
     the consequences which flow from such orders or on the
     actions taken to execute them, and is thus nothing more            Appeal brought on 7 February 2003 by Mr Cwik against
     than a semblance of legal protection, wholly deprived of           the judgment delivered on 26 November 2002 by the
     any practical effect or usefulness?                                Second Chamber of the Court of First Instance of the
                                                                        European Communities in Case T-103/01 between Mr
                                                                            Cwik and Commission of the European Communities
                                                                                                  (Case C-47/03 P)
4.   Are the Community rules set out above — Articles 7, 8
     and 9 of Council Directive 64/221/EEC of 25 February                                          (2003/C 83/15)
     1964 and Articles 2, 5, 6, 13 and 14 of the Convention
     for the Protection of Human Rights and Fundamental
     Freedoms, signed in Rome on 4 November 1950 — and
     the general, fundamental principles of Community law to            An appeal against the judgment delivered on 26 November
     be interpreted as meaning that it is unlawful for a Member         2002 by the Second Chamber of the Court of First Instance
     State of the European Community to lay down provisions             of the European Communities in Case T-103/01 Cwik v
     governing orders for the deportation of foreigners and             Commission was brought before the Court of Justice of the
     the execution of such orders in such a way as to preclude          European Communities on 7 February 2003 by Mr Cwik,
     the person deported from actually exercising any right of          represented by N. Lhoëst, lawyer, with an address for service
     asylum?                                                            in Luxembourg.
                                                                        The appellant claims that the Court should:
                                                                        1.     declare the appeal admissible and well founded;
5.   Are the Community rules set out above — Articles 7, 8
     and 9 of Council Directive 64/221/EEC of 25 February
     1964 and Articles 2, 5, 6, 13 and 14 of the Convention             2.     accordingly:
     for the Protection of Human Rights and Fundamental
     Freedoms, signed in Rome on 4 November 1950 — and                         (a)   set aside the contested judgment;
     the general, fundamental principles of Community law to
     be interpreted as meaning that it is unlawful, in the sense               (b) refer the case back to the Court of First Instance so
     that it disproportionately and unfairly denies and limits                       that it may rule, first, on the application seeking the
     the right to personal liberty accorded to all persons in                        annulment of the decision of the Commission of
     the European Community, for a Member State of the                               13 June 2000 transferring the applicant from the
     Community to provide that orders for the deportation of                         ‘Economic Information, Publications and Docu-
     foreigners in possession of a valid passport be forcibly                        mentation’ Unit, which, following restructuring,
     executed immediately (in the sense of within a few                              subsequently became the ‘Information: EURO, EMU’
     minutes) following their notification to the foreigner                          Unit (CFIN-04 under the direction of Mr Blackie), to
     concerned, even in the absence of genuine and specific                          the ‘General Coordination, Human Resources and
     reasons of public security or public order justifying                           Administration’ Unit, (ECFIN-01 under the direction
     recourse to such physical coercion?                                             of Mr Verhaeven), and (ii) on the claim for damages;