CELEX: C2003/031/16
Language: en
Date: 2003-02-08 00:00:00
Title: Case C-443/02: Reference for a preliminary ruling by the Tribunale di Pordenone by order of that Court of 20 November 2002 in the criminal proceedings against Nicolas Schreiber

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-
 ---pagebreak--- C 31/12                  EN                        Official Journal of the European Union                                          8.2.2003
       duces into the Community legal order, be construed as               Reference for a preliminary ruling by the Monomeles
       meaning that the terms ‘biocidal products’ and ‘low-risk            Protodikio Athinon by order of that Court of 11 July
       biocidal product’ refer solely to products whose biocidal           2002 in the case of Fixtures Marketing Limited against
       function depends on active substances added to those                    Organismos Prognostikon Agonon Podosphairou AE
       products by chemical or biological means through pro-
       cesses expressly designed to add such substances in order                                    (Case C-444/02)
       to confer on those products a biocidal function?
                                                                                                     (2003/C 31/17)
2.     Must Article 2(1)(c) of Directive 98/8/EC, in the light of
       the general rules which that directive introduces into the
       Community legal order, be construed as meaning that the             Reference has been made to the Court of Justice of the
       term ‘basic substance’ refers to substances which are not           European Communities by order of the Monomeles Protodikio
       added to a product in order to enable it to perform an              Athinon (Single-Judge Court of First Instance, Athens) of
       intended biocidal function but such a biocidal function is          11 July 2002, received at the Court Registry on 9 December
       performed in addition to the function normally perfor-              2002, for a preliminary ruling in the case of Fixtures Marketing
       med by that product during its use (as an example: liquid           Limited against Organismos Prognostikon Agonon Podosphai-
       for a dishwasher which, by virtue of the addition of a              rou AE (Football-match-results-forecasting Undertaking) on
       substance designed to improve its detergent function,               the interpretation of Article 7 of Directive 96/9/EC and the sui
       may also have a bactericidal function)?                             generis right thereunder in connection with the following
                                                                           issues:
3.     May a piece of red cedar wood, simply by virtue of the              1.    the concept of databases and the scope of Directive 96/
       fact that it is marketed as being ‘anti-moth’, be classifiable            9/EC ( 1) and in particular Article 7 thereof (sui generis
       as a ‘biocidal product’, as a ‘low-risk biocidal product’ or              right).
       as a ‘basic substance’ within the meaning of Directive 98/
       8/EC, bearing in mind that: (a) the wood in question has            2.    Further to determination of the scope of the directive,
       in no way been treated chemically or biologically; (b) the                whether the lists of football fixtures enjoy protection as
       substance on which the effects attributed to the wood                     databases over which there is a sui generis right in favour
       may depend is naturally present in the product; (c) the                   of the maker and with what consequences.
       product is substantially marketed as found in its natural
       state?                                                              3.    How exactly the database right is infringed and whether
                                                                                 it is protected in regard to rearrangement of the contents
                                                                                 of the database.
4.     Must Article 2(1)(c) of Directive 98/8/EC be construed as
       meaning that it is only if a ‘basic substance’ is included
       on the list referred to in Annex IB that that substance             (1 ) OJ L 77 of 27.3.1996, p. 20.
       may be exempted from the authorisation and registration
       provided for the marketing in the Member States of
       products covered by Article 2, with such inclusion on the
       list referred to in Annex IB thus acquiring constitutive
       effectiveness for all purposes?
                                                                           Appeal brought on 9 December 2002 by Glaverbel against
5.     Must Article 4 of Directive 98/8/EC, by reference to                the judgment delivered on 9 October 2002 by the Second
       Articles 28 EC and 30 EC, be construed as meaning that              Chamber of the Court of First Instance of the European
       a product such as that described in Question 3, placed              Communities in case T-36/01 (1) between Glaverbel and
       lawfully on the market in a Member State without any                the Office for Harmonization in the Internal Market
       need for authorisation or registration in that Member                              (Trademarks and Designs) (OHIM)
       State, may be made subject to authorisation or regis-
       tration in another Member State in which it is sub-                                         (Case C-445/02 P)
       sequently marketed by reason of the fact that the product
       in question is not included on the list referred to in
       Annex IB to Directive 98/8/EC?                                                                (2003/C 31/18)
                                                                           An appeal against the judgment delivered on 9 October 2002
( 1) Directive 98/8/EC of the European Parliament and of the Council       by the Second Chamber of the Court of First Instance of the
     of 16 February 1998 concerning the placing of biocidal products       European Communities in case T-36/01 between Glaverbel
     on the market (OJ L 123 of 24.04.1998, p. 1).                         and the Office for Harmonization in the Internal Market
                                                                           (Trademarks and Designs) (OHIM), was brought before the
                                                                           Court of Justice of the European Communities on 9 December
                                                                           2002 by Glaverbel, represented by Susanne Möbus, Attorney
                                                                           at Law, with an address for service in Luxembourg.