Case C-200/02: Reference for a preliminary ruling by the Immigration Appellate Authority, by order of that court dated 27 May 2002, in the case of Man Lavette Chen and Kunqian Catherine Zhu against Secretary of State for the Home Department
Date: 2002-07-27
Institutions: Court of Justice
Subjects: EU national, free movement of persons, interpretation of the law, provision of services, residence permit

C 180/12

EN

Official Journal of the European Communities

27.7.2002

Action brought on 23 May 2002 by Commission of
the European Communities against Federal Republic of
Germany

(Case C-191/02)

(2002/C 180/20)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 23 May 2002 by Commission of
the European
Communities, represented by Götz zur Hausen, legal advisor
of the Commission, acting as Agent, with an address for service
in Luxembourg at the office of Luis Escobar Guerrero, of the
Legal Service, Wagner Centre C 254, Kirchberg, Luxembourg.

The applicant claims that the Court should:

1. Declare that, by failing to ensure equivalence of the
monitoring methods in accordance with Annex I Part D.1
of Council Directive 91/271/EEC (1) of 21 May 1991
concerning urban waste water treatment, the Federal
Republic of Germany has failed to fulfil its obligations
under the directive and in particular under Article 15(1)
thereof.

2. Order the Federal Republic of Germany to pay the costs

of the proceedings.

Pleas in law and main arguments

The application of the monitoring methods used in Germany
(‘2-hours-mixed sample’ and ‘qualified random sample’) (2)
instead of the methods required by the directive in Annex I
part D, numbers 2, 3 and 4, has the result that the limits laid
down by the Directive can be exceeded without objection. This
is proved by the results of a study commissioned by the
Umweltbundesamt
in 1996:
‘Expert opinion as to the equivalence of the requirements of
the Framework Waste Water Regulations and the EU Directive
as regards the discharge concentration of urban waste water
treatment plants and the degree of nitrogen elimination’.

(Federal Environment Office)

the overall reduction of 75 % to which the Federal Republic
refers with regard to the nitrogen load must have been
measured according to the monitoring methods applied in
Germany. That level of nitrogen reduction cannot therefore
substantiate the equivalence of monitoring method applied in
Germany.

(1) OJ L 135 of 30.5.1971, p. 40. Annex I of the Directive was
amended by Commission Directive 98/15/EC of 27 February
1998, OJ L 67 of 7.3.98, p. 29.

(2) Verordnung über Anforderungen an das Einleiten von Abwasser
in Gewässer of 21 March 1991, BGBl. 1997 I-566, as amended
by the notice of 20.9.2001, BGBl. 2001 I-2240.

Reference for a preliminary ruling by the Immigration
Appellate Authority, by order of that court dated 27 May
2002, in the case of Man Lavette Chen and Kunqian
Catherine Zhu against Secretary of State for the Home
Department

(Case C-200/02)

(2002/C 180/21)

Reference has been made to the Court of Justice of the
European Communities by an order of
the Immigration
Appellate Authority dated 27 May 2002, which was received
at the Court Registry on 30 May 2002, for a preliminary ruling
in the case of Man Lavette Chen and Kunqian Catherine Zhu
against Secretary of State for the Home Department, on the
following questions:

1. On the facts of the present case, does Article 1 of Council
Directive 73/148/EEC (1) or in the alternative of Article 1
of Council Directive 90/364/EEC(2):

a)

b)

confer the right on the First Appellant, who is a
minor and a citizen of the Union, to enter and reside
in the host Member State?

and if so, does it consequently confer the right on
the Second Appellant, a third country national who
is the First Appellant’s mother and primary carer, to
reside with the First Appellant (i) as her dependent
relative, or (ii) because she lived with the First
Appellant in her country of origin, or (iii) on any
other special basis?

The Commission rejects the objection that, on account of
Article 5(4) of the directive, it is not necessary to appraise the
equivalence of the monitoring methods for individual plants.
Article 5 governs an area different from Article 15 and Annex I
part D. Article 5 governs quality requirements, exceptions from
which are admitted subject to a quite specific requirement.
Article 15 and Annex I part D govern monitoring methods by
which compliance with limits is reviewed. It is quite clear that

2.

If and to the extent that the First Appellant is not a
‘national of a member state’ for purposes of exercising
Community Rights pursuant to Council Directive 73/
148/EEC or Article 1 of Council Directive 90/364/EEC,
what then are the relevant criteria for identifying whether
a child, who is a citizen of the Union, is a national of a
member state for purposes of exercising Community
rights?

27.7.2002

EN

Official Journal of the European Communities

C 180/13

3.

4.

In the circumstances of the present case, does the receipt
of child care by the First Appellant constitute services for
purposes of Council Directive 73/148/EEC?

In the circumstances of the present case,
is the First
Appellant precluded from residing in the host state
pursuant to Article 1 of Council Directive 90/364/EEC
because her resources are provided exclusively by her
third country national parent who accompanies her?

5. On the special facts of this case does Article 18(1) EC
give the First Appellant the right to enter and reside in
the host member state even when she does not qualify
for residence in the host state under any other provision
of EU law?

6.

7.

If so, does the Second Appellant consequently enjoy the
right to remain with the First Appellant, during that time
in the host state?

In this context, what is the effect of the principle of
respect for fundamental human rights under Community
law claimed by the Appellants, in particular where the
Appellants rely on Article 8 ECHR that everyone has the
right to respect for his private and family life and his
home in conjunction with Art 14 ECHR given that the
First Appellant cannot live in China with the Second
Appellant and her father and brother?

(1) Council Directive 73/148/EEC of 21 May 1973 on the abolition
of restrictions on movement and residence within the Community
for nationals of Member States with regard to establishment and
the provision of services, OJ L 172, 28.6.1973, p. 14.

(2) Council Directive 90/364/EEC of 28 June 1990 on the right of

residence. OJ L 180, 13.7.1990, p. 26.

Reference for a preliminary ruling by the High Court of
Justice (England and Wales), Queen’s Bench Division
(Administrative Court), by order of that court dated
28 March 2002, in the case of The Queen against Secretary
of State for Transport, Local Government and the
Regions, Ex parte: Delena Wells

of
Justice (England and Wales), Queen’s Bench Division
(Administrative Court) dated 28 March 2002, which was
received at the Court Registry on 6 May 2002, for a preliminary
ruling in the case of The Queen against Secretary of State for
Transport, Local Government and the Regions, Ex parte:
Delena Wells, on the following questions:

(a) Whether an approval of a new set of conditions on an
existing permission granted by an Interim Development
Order (‘old mining permission’) pursuant to section 22
and Schedule 2 of the Planning and Compensation Act
1991 is a ‘development consent’ for the purposes of the
EIA Directive (1)?

(b) Whether, following the approval of a new scheme of
conditions on an IDO ‘old mining permission’ under the
Planning and Compensation Act 1991, the approval of
further matters required under the new scheme of
conditions is itself capable of being a ‘development
consent’ for the purposes of the EIA Directive?

(c)

If the answer to (a) is ‘yes’ but (b) is ‘no’, is the member
state nevertheless under a continuing duty to remedy its
failure to require EIA, and if so, how?

(d) Whether (i) it is open to individual citizens to challenge
the state’s failure to require EIA, or whether (ii) that may
be prohibited under the limitations imposed by the Court
on the doctrine of direct effect e.g. by ‘horizontal direct
effect’ or by the imposition of burdens or obligations on
individuals by an emanation of the state?

(e)

If the answer to (d)(ii) is ‘yes’ what are the limits of such
prohibitions on direct effect in the present circumstances
and what steps may the UK lawfully take consistently
with the EIA Directive?

(Case C-201/02)

(2002/C 180/22)

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment
of the effects of certain public and private projects on the
environment. OJ L 175, 5.7.1985, p. 40.

Reference has been made to the Court of Justice of the
the High Court
European Communities by an order of