Odbor kompatibility s právem ES Úřad vlády ČR	I S A P Informační Systém pro Aproximaci Práva
	Databáze č. 17 : Databáze judikatury

ă Odbor kompatibility s právem ES, Úřad vlády ČR - určeno pouze pro potřebu ministerstev a ostatních ústředních orgánů


	Číslo (Kód CELEX): Number (CELEX Code):		61988J0297

	Název: Title:		JUDGMENT OF THE COURT OF 18 OCTOBER 1990. MASSAM DZODZI V ETAT BELGE. REFERENCE FOR A PRELIMINARY RULING: TRIBUNAL DE PREMIERE INSTANCE DE BRUXELLES AND COUR D' APPEL DE BRUXELLES - BELGIUM. PRELIMINARY RULINGS - JURISDICTION OF THE COURT - REFERENCE BY NATIONAL LAW TO COMMUNITY PROVISIONS - RIGHT OF RESIDENCE - RIGHT TO REMAIN - DIRECTIVE 64/221. JOINED CASES 297/88 AND C-197/89.

	Publikace: Publication:		REPORTS OF CASES 1990 PAGES I-3763

	Předmět (klíčová slova): Keywords		FREE MOVEMENT OF WORKERS;

	Související předpisy: Corresponding acts:		368R1612;368L0360;370R1251;364L0221;364L0221;364L0221

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Moser Case 180/83 Moser v Land Baden-Württemberg [1984] ECR 2539 · [207] Pecastaing Case 98/79 Pecastaing v Belgium [1980] ECR 691 · [270] Adoui Joined Cases 115 and 116/81 Adoui and Cournaille v Belgium [1982] ECR 1665 · Gmurzynska-Bscher Cases C-231/89 Gmurcynska-Bscher v Oberfinanzdirektion Köln [1990] ECR I-4003


	Plný text: Fulltext:		Ne

Fakta:
Mrs Massam Dzodzi, a Togolese national, entered Belgium in early 1987 and, on 14 February 1987, married Mr Julien Herman. As the spouse of a Belgian national, she then applied to the administrative authorities for permission to remain in Belgian territory by virtue of a right which she maintained was conferred by Community directives and regulations. There was no response on that application. The couple left for Togo and resided there from April to July 1987 without informing the Belgian authorities. Mr Herman died on 28 July 1987, shortly after returning to Belgium. Subsequent applications by Mrs Dzodzi for the issue of a permit for an extended period of residence were rejected. Having been ordered to leave Belgian territory, Mrs Dzodzi applied to the Tribunal de premičre instance, Brussels, for interim relief in the form of the suspension of the execution of that decision and an order that the Belgian State should issue her with a residence permit valid for five years.
The Tribunal de premičre instance stayed the proceedings and under Article 177 of the Treaty referred a number of questions to the Court of Justice. Mrs Dzodzi apealed against that order on the grounds that the court considering the application for interim relief had not first ruled on the admissibility of the application before it and had refused to take provisional measures so as to safeguard her rights. Upon this appeal, the Cour d’appel in turn stayed the proceedings and under Article 177 referred to the Court of Justice additional question. The questions essentially sought to establish whether, and in what circumstances, the Community provisions - in particular of Council Directive 68/360/EEC
Of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485).
, Regulation No 1251/70
Of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, English Special Edition 1970 (II), p. 402).
, and Council Directive 64/221/EEC
Of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117).
- confer a right of residence or a right to remain in the territory of a Member State on a national of a non-member country solely in the capacity as the spouse of a Community national under the alternative assumptions (1) that the relevant provisions of Community law were directly applicable and (2) that they were made applicable by the Belgian law on admission to the territory of the State for aliens which transformed the provisions of Community legislation in that field.

Názor soudu a komentář:
Apart from confirming a number of issues on the right of spouses of Community nationals to enter into and remain in the territory of a Member State, the Court elaborates on some questions concerning the admissibility of a reference for a preliminary ruling and the scope of the Treaty in relation to “purely internal matters”.
The first set of questions concerned the interpretation of Community law regarded as being directly applicable. The Court had been asked to reject the reference on the ground that it had not jurisdiction over “purely internal” disputes. The Court does not follow this approach, taking the view that the question whether or not a dispute was purely internal and, if so, whether it fell within the scope of Community law, relates to the substance of the questions referred (see also
Moser
). Turning to the substance of the questions, the Court, however, confirms that the case underlying the main proceedings were of “purely internal” nature and did not have any factor linking it to any situations governed by the directives and regulations in issue. It was thus outside scope of the Community regulations mentioned in the order for reference.
The Court’s jurisdiction was also challenged with regard to the second set of questions on the ground that it concerned only the application of domestic Belgian law. However, the Court points out that it is, in principle, for the national courts to determine whether a preliminary ruling is necessary. If the questions submitted concern the interpretation of a provision of Community law, the Court is, in principle, obliged to give a ruling. A preliminary reference may also be made where a provision of national law is based on or refers to Community law, such as the Belgian law in the present case: “It does not appear either from the wording of Article 177 or from the aim of the procedure introduced by that article that the authors of the Treaty intended to exclude from the jurisdiction of the Court requests for a preliminary ruling of Community provisions in the specific case where the national law of a Member State refers to the content of that provision in order to determine the rules applicable to a situation which is purely internal to that State. On the contrary, it is manifestly in the interest of the Community legal order that, in order to forestall future differences of interpretation, every Community provision should be given a uniform interpretation irrespective of the circumstances in which it is to be applied.” “Where Community law is made applicable by national provisions, it is for the national court alone to assess the precise scope of that reference to Community law. If it takes the view that the content of a provision of Community law is applicable, by virtue of that reference, to the purely internal situation underlying the dispute brought before it, the national court is entitled to request the Court for a preliminary ruling on the terms laid down by the provisions of Article 177 as a whole, as they have been interpreted in the case-law of the Court of Justice.”
While the Court does not have jurisdiction to rule on national law, it may well give advice in a preliminary ruling concerning the interpretation on which national law is based or to which it refers if such interpretation is, from the point of view of the national court, necessary ( see also
Gmurzynska-Bscher
).
With regard to the substance of the questions thus referred, the Court goes on to confirm a number of issues established in its case-law, in particular in its judgements in
Pecastaing
( [207]) and
Adoui
( [270]). See there.

Shrnutí (Summary of the Judgment):
1. THE PROVISIONS OF COMMUNITY LAW GOVERNING THE FREE MOVEMENT OF WORKERS DO NOT APPLY TO PURELY INTERNAL SITUATIONS OF A MEMBER STATE, SUCH AS THE SITUATION OF A NATIONAL OF A NON-MEMBER COUNTRY WHO, SOLELY IN THE CAPACITY AS THE SPOUSE OF A NATIONAL OF A MEMBER STATE, CLAIMS A RIGHT TO RESIDE OR TO REMAIN IN THE TERRITORY OF THAT MEMBER STATE.

2. IN ACCORDANCE WITH THE DIVISION OF JUDICIAL TASKS BETWEEN THE NATIONAL COURTS AND THE COURT OF JUSTICE PURSUANT TO ARTICLE 177 OF THE TREATY, THE COURT GIVES ITS PRELIMINARY RULING WITHOUT, IN PRINCIPLE, HAVING TO LOOK INTO THE CIRCUMSTANCES IN WHICH THE NATIONAL COURTS WERE PROMPTED TO SUBMIT THE QUESTIONS AND ENVISAGE APPLYING THE PROVISION OF COMMUNITY LAW WHICH THEY HAVE ASKED THE COURT TO INTERPRET. THE MATTER WOULD BE DIFFERENT ONLY IF IT WERE APPARENT EITHER THAT THE PROCEDURE PROVIDED FOR IN ARTICLE 177 HAD BEEN DIVERTED FROM ITS TRUE PURPOSE AND SOUGHT IN FACT TO LEAD THE COURT TO GIVE A RULING WITHOUT THERE BEING ANY GENUINE DISPUTE, OR THAT THE PROVISION OF COMMUNITY LAW REFERRED TO THE COURT FOR INTERPRETATION WAS INCAPABLE OF APPLYING. WHERE COMMUNITY LAW IS MADE APPLICABLE BY NATIONAL PROVISIONS, IT IS FOR THE NATIONAL COURT ALONE TO ASSESS THE PRECISE SCOPE OF THAT REFERENCE TO COMMUNITY LAW. IF IT TAKES THE VIEW THAT THE CONTENT OF A PROVISION OF COMMUNITY LAW IS APPLICABLE, BY VIRTUE OF TH
AT REFERENCE, TO THE PURELY INTERNAL SITUATION UNDERLYING THE DISPUTE BROUGHT BEFORE IT, THE NATIONAL COURT IS ENTITLED TO REQUEST THE COURT FOR A PRELIMINARY RULING ON THE TERMS LAID DOWN BY THE PROVISIONS OF ARTICLE 177 AS A WHOLE, AS THEY HAVE BEEN INTERPRETED IN THE CASE-LAW OF THE COURT OF JUSTICE. NEVERTHELESS, THE JURISDICTION OF THE COURT IS CONFINED TO CONSIDERING PROVISIONS OF COMMUNITY LAW ONLY. IN ITS REPLY TO THE NATIONAL COURT, THE COURT OF JUSTICE CANNOT TAKE ACCOUNT OF THE GENERAL SCHEME OF THE PROVISIONS OF DOMESTIC LAW WHICH, WHILE REFERRING TO COMMUNITY LAW, DEFINE THE EXTENT OF THAT REFERENCE. CONSIDERATION OF THE LIMITS WHICH THE NATIONAL LEGISLATURE MAY HAVE PLACED ON THE APPLICATION OF COMMUNITY LAW TO PURELY INTERNAL SITUATIONS, TO WHICH IT IS APPLICABLE ONLY THROUGH THE OPERATION OF THE NATIONAL LEGISLATION, IS A MATTER FOR DOMESTIC LAW AND HENCE FALLS WITHIN THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE MEMBER STATE.

3. ARTICLE 8 OF DIRECTIVE 64/221 IMPOSES UPON THE MEMBER STATES THE OBLIGATION TO MAKE AVAILABLE TO ANY NATIONAL OF A MEMBER STATE AFFECTED BY A MEASURE CONCERNING ENTRY, A REFUSAL TO ISSUE OR RENEW A RESIDENCE PERMIT, OR AN EXPULSION ORDER, THE SAME LEGAL REMEDIES AS ARE AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION. A MEMBER STATE CANNOT, WITHOUT BEING IN BREACH OF THAT OBLIGATION, ORGANIZE, FOR PERSONS COVERED BY THE DIRECTIVE, LEGAL REMEDIES GOVERNED BY SPECIAL PROCEDURES AFFORDING LESSER SAFEGUARDS THAN THOSE PERTAINING TO REMEDIES AVAILABLE TO NATIONALS IN RESPECT OF ACTS OF THE ADMINISTRATION. IT FOLLOWS THAT IF, IN A MEMBER STATE, THE ADMINISTRATIVE COURTS ARE NOT EMPOWERED TO GRANT A STAY OF EXECUTION OF AN ADMINISTRATIVE DECISION OR INTERIM PROTECTIVE MEASURES WITH REGARD TO THE EXECUTION OF SUCH A DECISION, BUT SUCH POWER IS VESTED IN THE ORDINARY COURTS, THAT STATE IS OBLIGED TO PERMIT PERSONS COVERED BY THE DIRECTIVE TO APPLY TO THOSE COURTS ON THE SAME TERMS AS NATIONALS.

4. ARTICLE 9 OF DIRECTIVE 64/221 DOES NOT REQUIRE THE MEMBER STATES TO MAKE AVAILABLE TO PERSONS COVERED BY THE DIRECTIVE A RIGHT OF APPEAL, PRIOR TO THE EXECUTION OF A DECISION REFUSING A RESIDENCE PERMIT OR ORDERING EXPULSION FROM THE TERRITORY, TO A COURT EMPOWERED, UNDER AN URGENCY PROCEDURE, TO ADOPT INTERIM PROTECTIVE MEASURES IN CONNECTION WITH RIGHTS OF RESIDENCE.

Plný text judikátu (Entire text of the Judgment):