CELEX: C2004/021/40
Language: en
Date: 2004-01-24 00:00:00
Title: Case C-493/03: Reference for a preliminary ruling by the Cour d'appel de Bordeaux, chambre de l'instruction, by order of that Court of 4 November 2003 in the case of Ministère public against André Rochus Hiebeler

C 21/22                EN                          Official Journal of the European Union                                        24.1.2004
           available, but this has no effect on its own value.             Reference for a preliminary ruling by the Cour d’appel de
           The decisive point is that the study itself contains            Bordeaux, chambre de l’instruction, by order of that
           new scientific evidence and conclusions and clearly             Court of 4 November 2003 in the case of Ministère public
           shows that a current risk of negative consequences                              against André Rochus Hiebeler
           for the environment, fauna and flora cannot be ruled
           out.
                                                                                                   (Case C-493/03)
     —     Problem specific to the Member State concerned
                                                                                                    (2004/C 21/40)
           The structure of the farming system in Upper
           Austria, demonstrably consisting of small farms,
           coupled with the constant increase in the proportion
           of organically managed areas and the number of
           organically run farming enterprises, means that the             Reference has been made to the Court of Justice of the
           character of this region of the Community is unique.            European Communities by order of the Cour d’appel de
                                                                           Bordeaux, chambre de l’instruction, (Examining Chamber of
           In the opinion of the Republic of Austria, the                  the Bordeaux Court of Appeal) of 4 November 2003, received
           additional requirement laid down by Article 95(5)               at the Court Registry on 24 November 2003, for a preliminary
           EC, that the problem which is specific to the                   ruling in the case of Ministère public against André Rochus
           Member State should have arisen only after the                  Hiebeler on the following questions:
           harmonisation measure has been adopted, has been
           fulfilled. The fact that concerns had arisen earlier in
           that regard does not preclude this. The decisive                —     Do the transportation and sale of the same quantity of
           point is that the full extent of the problem became                   drugs constitute different acts depending on whether
           apparent only after the adoption of the harmonis-                     these acts are committed in only one Member State or
           ation measure. Only on publication of the Müller                      from one Member State to another?
           study on 28 April 2002 was it possible to confirm
           the actual scope of the problem.                                —     Does the importation into a Member State of the same
                                                                                 quantity of drugs and its transportation shortly thereafter
     —     Proportionality                                                       to another Member State constitute a single act or
                                                                                 separate acts?
           The Oö. GTVG 2002 should be seen as a national
           provision which is necessary for the protection of              —     Does Article 54 of the Schengen Convention entitle a
           the environment and which, having regard to the                       Contracting State to which a request for extradition is
           fact that it is applicable for a limited period of three              addressed to accept a plea of ne bis in idem where the
           years, also falls to be classified as proportionate.                  requirements for the application of that principle are met,
                                                                                 but where the final conviction on the basis of which it
     —     The precautionary principle and the principle that                    is sought to have the prosecution discontinued was
           preventive action should be taken                                     pronounced not in that State but in another Contracting
                                                                                 State?
           The Oö. GTVG 2002 is a precautionary and preven-
           tive measure within the meaning of Article 174(2)
           EC. This provision states that Community policy on              —     Does the prohibition under Article 54 of the Schengen
           the environment is to aim at a high level of                          Convention preclude the enforcement of a judgment
           protection taking into account the diversity of                       imposing a penalty delivered in a Member State before
           situations in the various regions of the Community                    the coming into force of that Convention?
           and is to be based inter alia on the precautionary
           principle and the principle that preventive action              —     Does the offence of being a party to dealing in more than
           should be taken. The distinction drawn by the                         minimal quantities of drugs, laid down by and punishable
           Community legislature makes sense only if the                         under Paragraphs 30.I.4, 29.I(1), III(2)2 and 29.I.4, Para-
           terms ‘precaution’ and ‘prevention’ are each given a                  graph 3-I, 2-I, 1-I combined with Annex III of Para-
           separate meaning. ‘Precaution’ accordingly begins at                  graph 1-II of the German Law on drugs, in the version of
           a point in time at which a threat to the environment                  27 January 1987, and Paragraphs 25-II, 52 and 53 of the
           is not sufficiently precise for ‘preventive action’ to                Federal Criminal Code, protect the same legal interests as,
           be necessary in relation to it. The Oö. GTVG 2002                     or different legal interests from, those protected by the
           is clearly aimed at the avoidance of risks and is                     offence of the importation, unlawful possession and sale
           therefore justified by the precautionary principle.                   of more than minimal and partially substantial quantities
                                                                                 of drugs, laid down by and punishable under Articles 71,
                                                                                 72, 74(I)2, 74(II) and 75 of Italian Law No 685/75 of
(1) OJ L 230 of 16.9.2003, p. 34.                                                22 December 1975 and Articles 81, 56 and 110 of the
(2) OJ L 106 of 17.4.2001, p. 1.                                                 Italian Criminal Code?