TOLGYESI v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Antal Tolgyesi, is a Hungarian national who was born in Hungary and lives in Esztergom. He was represented before the Court by Mr C. Peters, a lawyer practising in Bocholt. In June 1999 the applicant, a Hungarian national and therefore, at the time of the events in question, a national of a State outside the European Community, commenced employment with a Netherlands company as a lorry driver. The contract was governed by Netherlands law and the lorry was registered in the Netherlands. The applicant was in possession of an employment certificate (Dienstbetrekkingsverklaring) issued by the Netherlands National Traffic Inspectorate (Rijksverkeersinspectie) which stated that his employer covered the transport risks and expenses and that the applicant was legally employed. He did not reside in the Netherlands, worked exclusively outside the Netherlands and, at the relevant time, had not (yet) been issued with a Netherlands work permit. On 29 January 2001 and 28 February 2001, on his way from Spain to Austria and Germany to Austria, he was subjected to checks by the German police. After both events criminal proceedings were instituted against the applicant. On 10 September 2001 the Rosenheim District Court convicted him of remaining in the country illegally in both cases and sentenced him to an overall fine of 3,300 German marks (equivalent to 1,687.26 euros (EUR)). The decision was based on sections 3(1) and 92(1) of the Aliens Act (Ausländergesetz, see “Relevant domestic law” below). The court found that the exception to the requirement to hold a residence permit provided for in section 12, subsection 2(2)(a) of the Order implementing the Aliens Act (Durchführungsverordnung zum Ausländergesetz, see “Relevant domestic law” below) did not apply as the applicant’s journeys from Spain and Germany to Austria did not have a direct connection with the Netherlands, the Community Member State where the company was established. That, however, the court pointed out, was an implicit condition of the provision in question, as demonstrated by its genesis and its aim of preventing bogus companies being set up and as further confirmed in a statement by the Ministry of the Interior addressed to the applicant’s legal counsel on 26 October 2000. On that ground the court found that the question whether the applicant was legally employed in the Netherlands was not decisive. It further established – referring also to the fact that information to that effect had been circulated by the authorities – that the applicant at least could have known that his actions were illegal. On 17 December 2001 the Netherlands employment agency (Arbeidsvoorziening) issued the applicant with a work permit (Tewerkstellingsvergunning) allowing him to load and unload goods in the Netherlands. Thereafter the applicant also transported goods from and to the Netherlands. On 20 March 2002 the Traunstein Regional Court, after hearing evidence from the executive director of the company which employed the applicant and obtaining a translation of the documents in Dutch, quashed his conviction as regards the first offence on the ground that the applicant could not have known that his stay was illegal given that he had been subjected to checks before without any consequences. However, it upheld his conviction as regards the second offence and reduced the fine to EUR 1,000. As regards the second conviction it found that the exception to the requirement to hold a residence permit, provided for in section 12, subsection 2(2)(a) of the Order implementing the Aliens Act, did not apply as at the time of the events in question the applicant had not been in possession of a Netherlands work permit (it found that the employment certificate could not be equated with a work permit, as it merely stated that the applicant’s employer covered the transport risks and expenses and that the applicant was legally employed) and had been working exclusively outside the Netherlands. In this latter respect it pointed out, referring also to a statement by the Ministry of the Interior, that section 12, subsection 2(2)(a) of the Order implementing the Aliens Act was clearly aimed at benefiting only those employees whose (legal) residence and employment were actually in the Community Member State where the company was established and not those who, like the applicant, worked exclusively outside that Member State. On 20 June 2002 the Bavarian Court of Appeal rejected the applicant’s appeal on points of law. It upheld the finding that, at the relevant time, the applicant had not been in possession of a Netherlands work permit. In this respect it also pointed out that only from December 2001 onwards had he been entitled to work as a lorry driver in the Netherlands. Furthermore, it found that the applicant’s case could not be compared to the case of Vander Elst (ECJ, see below) as, unlike Mr Vander Elst, the applicant was not in possession of a work permit issued by the State where the company was established. On 30 September 2002 the Federal Constitutional Court refused to admit the constitutional complaint, without indicating any reasons. 1. Relevant domestic law Section 3(1) of the Aliens Act provides: “Any person entering or remaining in Germany must have a residence permit. In order to facilitate the residence of non-nationals in Germany the Ministry of the Interior, with the consent of the Bundesrat, shall issue an order providing for exemptions.” Section 92(1) of the Aliens Act reads as follows: “Any person who, contrary to section 3(1), remains in Germany without a residence permit ... shall be liable to imprisonment for not more than one year or to payment of a fine.” Section 12, subsection 2(2)(a) of the Order implementing the Aliens Act provides for an exception to the requirement to hold a residence permit if a person employed by a company from another State and resident in that State does not remain in Germany for more than 3 months in the year, if he or she: “works in cross-border passenger or goods traffic, if the company employing him or her is established in a Member State of the Community, if the vehicle is registered in that country and if the employee has the residence and work permits required in that country.” 2. Judgment of the ECJ of 9 August 1994, Raymond Vander Elst v. Office des Migrations internationales, Case C-43/93 In this judgment the ECJ ruled that under the European Economic Community Treaty a Member State was precluded from requiring undertakings established in another Member State, and entering the first Member State in order to provide services, to obtain further work permits in the State where the services were to be carried out for those employees who were nationals of a non-member country but who had been issued with work permits in the Member State where the undertaking was established.