16.1.2010

Official Journal of the European Union

C 11/11

(Case C-297/09)

2010/C 11/20

Language of the case: Dutch

Referring court

Party to the main proceedings

Respondent: X

Questions referred

1.Does a situation in which a person who is a citizen of the European Union, and against whom there are grave presumptions that the main purpose of his stay in a Member State of the European Community other than that of which he is a national is to engage in criminal activities, come within the scope or area of application of the EC Treaty, in particular of the provisions of Articles 12 EC, 18 EC, 43 EC et seq. and 49 EC et seq?

2.If the answer to Question 1 is in the affirmative in respect of Article 18 EC:

(a)Should a provision such as that contained in Article 67(2) of the Netherlands Code of Criminal Procedure, in so far as it makes possible the pre-trial detention of persons who come within the scope of Article 18 EC but who have a fixed place of abode or residence in a Member State other than the Netherlands, be regarded as constituting a restriction of the right to move and reside freely within the meaning of that provision?

(b)If that is the case, does that provision, in so far as it makes possible the pre-trial detention of citizens of the European Union who have a fixed place of abode or residence in a Member State other than the Netherlands, given the importance of the effective tracing of suspects, prosecution and dispensation of justice, constitute an acceptable justification based on objective considerations in the public interest which are unconnected to the person concerned and are proportionate to the legitimate aim pursued by the national law?

3.If the answer to Question 1 is in the affirmative in respect of Article 49 EC et seq.: should a provision such as that contained in Article 67(2) of the Netherlands Code of Criminal Procedure, in so far as it makes possible the pre-trial detention of nationals of a Member State who have a fixed place of abode or residence in a Member State other than the Netherlands, be regarded as a restriction of the freedom to provide services within the meaning of Article 49 EC et seq. in that it involves discrimination based on the fact that the provider of the services does not have a fixed place of abode or residence in the country where the services are provided but does have one in another Member State of the EC?

4.If the answer to either Question 2 or Question 3 is in the negative: should a provision such as that contained in Article 67(2) of the Netherlands Code of Criminal Procedure, in so far as it makes possible the pre-trial detention of nationals of a Member State who have a fixed place of abode or residence in a Member State other than the Netherlands, be regarded as a form of discrimination on grounds of nationality, as prohibited under Article 12 EC (general prohibition of discrimination within the scope of application of the EC Treaty), Article 43 EC et seq. (prohibition of discrimination on the basis of nationality in relation to the freedom of establishment) and Article 49 EC et seq. (prohibition of discrimination on the basis of nationality in relation to freedom to provide services)?

5.In so far as the answer to either Question 3 or Question 4 is in the affirmative: should a provision such as that contained in Article 67(2) of the Netherlands Code of Criminal Procedure, in so far as it makes possible the pre-trial detention of [nationals of] a Member State who have a fixed place of residence or abode in a Member State other than the Netherlands, given the importance of the effective tracing of suspects, prosecution and dispensation of justice, be regarded as legally valid on grounds of public policy, public security or public health within the terms of Articles 45 EC to 48 EC and Article 55 EC?