CELEX: C2003/171/21
Language: en
Date: 2003-07-19 00:00:00
Title: Case C-215/03: Reference for a preliminary ruling by the Rechtbank 's-Gravenhage by judgment of that Court of 12 May 2003 in the proceedings between Salah Oulane and Minister voor Vreemdelingenzaken en Integratie

19.7.2003                 EN                       Official Journal of the European Union                                         C 171/15
       d.    Article 8 of Directive 2001/37/EC is invalid by                          person invokes his right of residence imposes on its
             reason of the principles referred to in questions 2(a),                  own nationals no general duty to provide evidence
             2(c) or 2(h) are those principles to be interpreted as                   of identity?
             also prohibiting the national measure in question?
                                                                                c.    If the answer to Question 2a is in the affirmative,
( 1) Directive 2001/37/EC of the European Parliament and of the                       does Community law as it stands at present lay
     Council of 5 June 2001 on the approximation of the laws,                         down any requirements in regard to the period
     regulations and administrative provisions of the Member States                   within which that Member State must afford the
     concerning the manufacture, presentation and sale of tobacco
                                                                                      opportunity for the person concerned still to present
     products — Commission statement, OJ L 194, 18.7.2001, p. 26-
                                                                                      a valid identity card or passport before it imposes
     35.
( 2) Council Directive 89/622/EEC of 13 November 1989 on the                          an administrative penalty in the form of an order in
     approximation of the laws, regulations and administrative pro-                   respect of the presumed unlawful residence?
     visions of the Member States concerning the labelling of tobacco
     products, OJ L 359, 8.12.1989, p. 1-4.
                                                                                d.    Does an administrative penalty in the form of an
                                                                                      order, as referred to in Question 2c, namely the
                                                                                      imposition of a detention order with a view to
                                                                                      deportation pursuant to Article 59 of the Vw 2000
                                                                                      before the period referred to in Question 2c has
                                                                                      elapsed constitute a penalty which impinges dispro-
Reference for a preliminary ruling by the Rechtbank                                   portionately on freedom to provide services?
’s-Gravenhage by judgment of that Court of 12 May 2003
in the proceedings between Salah Oulane and Minister
                                                                           3.   a.    If the answer to Question 1 is in the negative, as
            voor Vreemdelingenzaken en Integratie
                                                                                      Community law stands at present, is freedom to
                                                                                      provide services impeded where a detention order
                            (Case C-215/03)                                           with a view to deportation under Article 59 of the
                                                                                      Vw 2000 is, in the interest of public policy, imposed
                            (2003/C 171/21)                                           on a person claiming to be a national of another
                                                                                      Member State and a tourist for as long as he does
                                                                                      not demonstrate his right of residence by presenting
                                                                                      a valid identity card or passport, even where there is
Reference has been made to the Court of Justice of the                                no obvious present and serious danger to public
European Communities by judgment of the Rechtbank                                     policy?
’s-Gravenhage (District Court, The Hague) of 12 May 2003,
received at the Court Registry on 19 May 2003, for a
preliminary ruling in the proceedings between Salah Oulane                      b.    If that freedom is impeded in the manner described
and Minister voor Vreemdelingenzaken en Integratie (Minister                          in Question 3a, is the period within which that
responsible for foreign nationals and Integration) on the                             Member State afforded an opportunity still to pre-
following questions:                                                                  sent a valid identity card or passport material for
                                                                                      the purposes of establishing whether or not the
                                                                                      impediment is justified?
As regards the first proceedings:
1.     As a consequence of the abolition of entry controls at                   c.    If that freedom is impeded in the manner described
       internal borders, must the third paragraph of Article 4(2)                     in Question 3a is it relevant, for the purposes of
       of Directive 73/148/EEC (OJ 1973 L 172) be interpreted                         establishing whether that impediment is justified,
       as meaning that the right of residence granted therein of                      whether or not the Member State subsequently pays
       a person who claims to be a national of another Member                         compensation in respect of the period during which
       State and a tourist has to be recognised by the authorities                    the person was detained pending production of
       of the Member State in which that person invokes his                           proof of nationality by means of a valid passport or
       right of residence only from such time as he has presented                     identity card, as is customary in that Member State
       his valid identity card or passport?                                           in the case of unlawful detention as an illegal alien?
2.     a.    If the answer to Question 1 is in the affirmative,
             does Community law as it stands at present, in                4.   Where a Member State itself lays down no general duty
             particular in regard to the principle of non-discrimi-             to provide evidence of identity, does Community law as
             nation and the freedom to provide services, provide                it stands at present preclude, in particular in light of the
             grounds for making an exception thereto with the                   prohibition on discrimination, a Member State from
             result that the authorities of a Member State must                 imposing, in connection with the internal control of
             still afford to that person the opportunity to present             aliens, a measure such as detention as an illegal alien with
             his valid identity card or passport?                               a view to deportation under Article 59 of the Vw in
                                                                                respect of a person who claims to be a tourist for as long
       b.    Is it material to the answer to Question 2a that the               as that person does not demonstrate his alleged right of
             national law of the Member State in which that                     residence by presenting a valid identity card or passport?
 ---pagebreak--- C 171/16              EN                          Official Journal of the European Union                                         19.7.2003
As regards the second proceedings                                               —     as regards the Walloon Region, by failing to adopt
                                                                                      the laws, regulations or administrative provisions
                                                                                      and to take the measures necessary fully to transpose
5.   So long as a national of a Member State does not himself
                                                                                      and implement Articles 3(1) and (2) and 5 of
     invoke the right of residence as the recipient of services
                                                                                      Directive 91/676/EEC;
     vis-à-vis the Member State in whose territory he is
     residing, does Community law as it stands at present
     preclude that Member State from not regarding that
                                                                          —     order the Kingdom of Belgium to pay the costs.
     person as a national protected by a right of residence
     under Community law?
6.   Is the term ‘recipient of services’ in the context of freedom
     to provide services to be construed as meaning that, even
     where a person stays in another Member State for a long              Pleas in law and main arguments
     period, possibly longer than six months, is arrested there
     for an offence, is unable to give a fixed abode or residence
     and, furthermore, has no money or luggage, residence in
     another Member State itself provides sufficient grounds              Directive 91/676/EEC lays down a progressive procedure
     for having to assume that tourist and other services                 which the Member State are required to follow in order to
     associated with short-term residence are received such as,           reduce and prevent water pollution caused or induced by
     for example, accommodation and the consumption of                    nitrates from agricultural sources. To that end, they are to
     meals?                                                               establish which groundwaters, surface freshwaters and coastal
                                                                          waters in their territory are affected by pollution by nitrates
                                                                          from agricultural sources or which could be so affected
                                                                          (Article 3(1)). Once those waters have been defined, Member
                                                                          State must designate ‘vulnerable zones’ (Article 3(2)). They
                                                                          must then establish a code or codes of good agricultural
                                                                          practice, to be implemented by farmers on a voluntary basis
                                                                          (Article 4). Finally, Member States are to establish action
                                                                          programmes in respect of all vulnerable zones, which must
                                                                          consist of several measures laid down in the directive
Action brought on 22 May 2003 by the Commission                           (Article 5). The directive provides that Member States are
of the European Communities against the Kingdom of                        to submit a report to the Commission every four years
                             Belgium                                      (Article 10).
                        (Case C-221/03)
                                                                          According to the Commission, Belgium appears to consider
                                                                          that the transposition and implementation of the directive in
                        (2003/C 171/22)
                                                                          Belgian law come under the competence of the regions.
                                                                          According to the Belgian authorities, the federal authority is
                                                                          competent only to designate the coastal and marine waters
                                                                          referred to in Article 3(1) and in paragraph A(3) of Annex I to
                                                                          the directive. That argument is not relevant in Community
An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 22 May                law. It is for the competent authorities of each Member State
                                                                          to ensure the full transposition of the directive. Moreover, as
2003 by the Commission of the European Communities,
                                                                          regards the federal authority, the Commission does not have
represented by G. Valero Jordana, acting as Agent, assisted by
M. van der Woode and T. Cellingsworth, lawyers, with an                   knowledge of any measure designating marine or coastal
                                                                          waters. As regards the legislation of the Flemish Region and
address for service in Luxembourg.
                                                                          the Walloon Region relating to transposition of the directive,
                                                                          the Commission notes that:
The Commission of the European Communities claims that
the Court should:                                                         —     the Flemish Region has not adopted any provision which
                                                                                designates waters affected by pollution or which could be
                                                                                so affected, in breach of Article 3(1) of the directive. As
—    declare that the Kingdom of Belgium has not complied
                                                                                for vulnerable zones, it has not taken account of the
     with its obligations under Directive 91/676/EEC (1):
                                                                                procedure and criteria laid down in Article 3 for their
                                                                                designation in its territory. Moreover, the Flemish Code
     —     as regards the Flemish Region, by failing to adopt                   of Good Agricultural Practice does not satisfy the require-
           the laws, regulations or administrative provisions                   ments of Article 4 and of Annex II to the directive,
           and to take the measures necessary fully to transpose                nor does the Flemish action programme satisfy the
           and implement Articles 3(1) and (2), 4, 5 and 10 of                  requirements of Article 5 and of Annex III to the directive,
           Directive 91/676/EEC;                                                since it does not apply to all the vulnerable zones