Case C-1/05: Reference for a preliminary ruling from the Utlänningsnämnden by order of that court of 30 December 2004, received at the Court Registry on 4 January 2005, in the case of Yunying Jia against Migrationsverket
Date: 2005-03-05
Institutions: Court of Justice
Subjects: admission of aliens, family migration, foreign national, free movement of workers, interpretation of the law, mixed marriage, residence permit

C 57/22

EN

Official Journal of the European Union

5.3.2005

9. As a matter of principle, can there be a direct causal link
(within the meaning of the judgment in Joined Cases C-46/
93 and C-48/93 Brasserie du Pecheur and Factortame)
between any breach of Articles 43, 49 and 56 EC and
losses falling into the categories identified in Question
5(a)-(h)
that are claimed to flow from it? If so, what
guidance, if any, does the Court of Justice think it appro-
priate to provide as to the circumstances which the
national court should take into account in determining
whether such a direct causal link exists?

10. In determining the loss or damage for which reparation
may be granted, is it open to the national court to have
regard to the question of whether injured persons showed
reasonable diligence in order to avoid or limit their loss, in
particular by availing themselves of legal remedies which
could have established that the national provisions did not
(by reason of the application of double taxation conven-
tions) have the effect of imposing the restrictions set out in
Question 1? Is the answer to this question affected by the
beliefs of the parties at the relevant times as to the effect
of the double taxation conventions?

Reference for a preliminary ruling from the Utlännings-
nämnden by order of that court of 30 December 2004,
received at the Court Registry on 4 January 2005, in the
case of Yunying Jia against Migrationsverket

(Case C-1/05)

(2005/C 57/36)

(Language of the case: Swedish)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Utlänningsnämnden (Alien
Appeals Board) (Sweden) of 30 December 2004, received at the
Court Registry on 4 January 2005, for a preliminary ruling in
the case of Yunying Jia against Migrationsverket (Immigration
Board) on the following questions:

1 a. In the light of the judgment in Case C-109/01, is Article
10 of Regulation (EEC) No 1612/68 to be interpreted as
meaning that a national of a non-Member State related to
a worker as specified therein must be lawfully within the
Community in order to have the right permanently to
reside with the worker – and, in the same way, is Article
1 of Directive 73/148/EEC to be interpreted as meaning
that the right to permanent residence of a relative of a

citizen of the Union, who is a national of a non-Member
State, presupposes that the national of a non-Member
State is lawfully resident in the Community?

b. If Directive 73/148/EEC is to be interpreted as meaning
that lawful residence within the Community is a require-
ment in order for a relative of a citizen of the Union,
who is a national of a non-Member State, to be able to
claim the right to permanent residence under the direc-
tive, does that then imply that the relative is to hold a
current residence permit valid for or intended to lead to
permanent residence in one of the Member States? If
there is no permanent residence permit is a residence
permit granted on other grounds for a shorter or longer
stay sufficient, or is it, as in the case pending before the
Utlänningsnämnden, sufficient if the relative applying for
a residence permit holds a valid visa?

c. If a relative of a citizen of the Union, who is a national of
a non-Member State, cannot benefit from the right to
permanent residence under Directive 73/148/EEC because
he is not lawfully resident in the Community, does a
refusal to grant a relative a residence permit for perma-
nent residence thus restrict the right of the citizen of the
Union to freedom of establishment under Article 43 EC?

d. If a relative of a citizen of the Union, who is a national of
a non-Member State, cannot benefit from the right to
permanent residence under Directive 73/148/EEC because
he is not lawfully resident in the Community, is the right
of the citizen of the Union to freedom of establishment
under Article 43 EC restricted if
the
citizen of the Union are deported because an application
for a national residence permit cannot be accepted after
entry into Sweden?

the relatives of

2 a. Is Article 1(d) of Directive 73/148/EEC to be interpreted
as meaning that ‘dependence’ means that a relative of a
citizen of the Union is economically dependent on the
citizen of the Union to attain the lowest acceptable stand-
ard of living in his country of origin or country where he
is normally resident?

b. Is Article 6(b) of Directive 73/148/EEC to be interpreted
as meaning that the Member States may require a relative
of a citizen of the Union who claims to be dependent on
the citizen of the Union or his/her spouse to produce
documents, in addition to the undertaking given by the
citizen of the Union, which prove that there is a factual
situation of dependence?