CELEX: C2003/044/27
Language: en
Date: 2003-02-22 00:00:00
Title: Case C-459/02: Reference for a preliminary ruling by the Cour de cassation du Grand-duché de Luxembourg by judgment of that Court of 14 November 2002 in the case of 1. Willy Gerekens and 2. Association agricole PROCOLA against State of the Grand Duchy of Luxembourg

C 44/14               EN                        Official Journal of the European Union                                         22.2.2003
1.  Can a citizen of the Union in the factual circumstances                    Must the host country comply with any other rules in
    described in this order                                                    order to avoid rendering meaningless the right of resi-
                                                                               dence, such as a duty to assess the situation in the light
                                                                               of the fact that the application for the minimex or for
    —     who has temporary leave to remain,                                   social assistance is temporary, or taking into account the
                                                                               principle of proportionality (would the burden on the
                                                                               State in question be unreasonable)?
    —     does not have sufficient resources,
                                                                        (1 ) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
    —     carries out work for the hostel where he lives to the
                                                                             on freedom of movement for workers within the Community (OJ
          extent of some 30 hours a week in the context of a                 L 257 of 19.10.1968, p. 2).
          personal reinsertion scheme, and                              (2 ) Council Directive 90/364/EEC of 28 June 1990 on the right of
                                                                             residence (OJ L 180 of 13.7.1990, p. 26).
    —     receives in return benefits in kind which cover his
          living expenses at the hostel itself
    claim a right of residence:
    —     as a worker within the meaning of Article 39 EC or            Reference for a preliminary ruling by the Cour de
          Article 7(1) of Regulation No 1612/68 ( 1),                   cassation du Grand-duché de Luxembourg by judgment
                                                                        of that Court of 14 November 2002 in the case of 1. Willy
                                                                        Gerekens and 2. Association agricole PROCOLA against
    —     or as a worker pursuing an activity as a self-
                                                                                   State of the Grand Duchy of Luxembourg
          employed person within the meaning of Article 43
          EC,
                                                                                                  (Case C-459/02)
    —     or as a person providing a service, in view of the
          tasks he performs at the hostel, or as a person for                                      (2003/C 44/27)
          whom the services are intended, in view of the
          benefits in kind granted to him by that hostel, within
          the meaning of Article 49 EC,
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by judgment of the Cour de cassation
    —     or merely because he participates in a scheme with
          a view to his social rehabilitation and access to             du Grand-duché de Luxembourg (Court of Cassation of the
                                                                        Grand Duchy of Luxembourg) of 14 November 2002, received
          employment?
                                                                        at the Court Registry on 19 December 2002, for a preliminary
                                                                        ruling in the case of 1. Willy Gerekens and 2. Association
2.  Should the answer be in the negative, can he rely directly          agricole PROCOLA against State of the Grand Duchy of
    on Article 18 EC which guarantees the right to freedom              Luxembourg on the following question:
    of movement and to reside in the territory of another
    Member State of the Union, merely in his capacity as a
    European citizen?                                                   Do the general principles of Community law of legal certainty
                                                                        and non-retroactivity mean that, for the application of Com-
    What then becomes of the requirements laid down                     munity legislation establishing production quotas of the type
    by Directive 90/364/EEC ( 2) and/or the ‘limitations and            introduced by Council Regulation (EEC) No 856/84 of
    conditions’ laid down in the EC Treaty, and in particular           31 March 1984 amending Regulation (EEC) No 804/68 on the
    the minimum resources requirement which, if it were                 common organisation of the market in milk and milk products
    applied on entry to the host country, would deprive him             (OJ 1984 L 90, p. 10) and Council Regulation (EEC) No 857/
    of the substantive right of residence itself?                       84 of 31 March 1984 adopting down general rules for the
                                                                        application of the levy referred to in Article 5c of Regulation
                                                                        (EEC) No 804/68 in the milk and milk products sector (OJ
    If, conversely, the right of residence arises automatically         1984 L 90, p. 13), a Member State is precluded from adopting,
    on the basis of citizenship of the Union, could the host            in place of initial rules held by the Court of Justice of the
    State subsequently refuse an application for the minimex            European Communities to be discriminatory, new rules which
    or for social assistance (that is to say, non-contributory          make it possible to penalise retroactively production in excess
    benefits), curtailing his right of residence on the ground          of production quotas introduced after the entry into force of
    that he does not have sufficient resources, when it grants          the Community regulations but under the aegis of the national
    those benefits to nationals of the host country provided            rules which have been replaced?
    they comply with requirements to which Belgian
    nationals are also subject (proof of their availability for
    work, proof that they are in need)?