CELEX: C1997/228/10
Language: en
Date: 1997-07-26 00:00:00
Title: JUDGMENT OF THE COURT of 17 June 1997 in Joined Cases C-65/95 and C-111/95 (references for a preliminary ruling from the High Court of Justice, Queen's Bench Division): The Queen v. Secretary of State for the Home Department, ex parte: Mann Singh Shingara and The Queen v. Secretary of State for the Home Department, ex parte: Abbas Radiom (Free movement of persons - Derogations - Right of entry - Legal remedies - Articles 8 and 9 of Directive 64/221/EEC)

26 . 7 . 97             EN                  Official Journal of the European Communities                                No C 228/5
Member State being refused family benefits in respect of                     to remain in the territory of a Member State after
full calendar months falling within an extended period of                    having been employed in that State and Article 7 of
unpaid leave, where employed persons whose children are                      Council Directive 75/34/EEC of 17 December 1974
domiciled in the Member State concerned are entitled to                      concerning the right of nationals of a Member State to
such benefits.                                                               remain in the territory of another Member State after
                                                                             having pursued therein an activity in a self-employed
O OJ No C 248 , 23 . 9 . 1995 .
                                                                             capacity;
                                                                       2 . orders Ireland to pay the costs.
                                                                       (') OJ No C 197, 6 . 7. 1996 .
                  JUDGMENT OF THE COURT
                          ( Fifth Chamber)
                          of 12 June 1997
                                                                                       JUDGMENT OF THE COURT
in      Case    C-151/96: Commission of the            European
                     Communities v. Ireland (')                                                of 17 June 1997
 (Failure of a Member State to fulfil its obligations —                in Joined Cases C-65/95 and C-l 11/95 (references for a
Registration of vessels other than fishing vessels —                   preliminary ruling from the High Court of Justice,
              Nationality requirement for the owner)                   Queen's Bench Division): The Queen v. Secretary of State
                                                                       for the Home Department, ex parte: Mann Singh Shingara
                            ( 97/C 228/09 )                            and The Queen v. Secretary of State for the Home
                                                                                   Department, ex parte: Abbas Radiom ( 1 )
                   (Language of the case: English)                      (Free movement of persons — Derogations — Right of
                                                                       entry — Legal remedies — Articles 8 and 9 of Directive
                                                                                                 64/22 1/EEC)
 In Case C-151 /96 : Commission of the European                                                  97/C 228 / 10 )
 Communities ( Agents: Frank Benyon and Xavier Lewis ) v.
 Ireland ( Agent: Michael A. Buckley ) — application for a
 declaration that, by maintaining in force laws, regulations                            (Language of the case: English)
 and administrative provisions which limit the right to
 register a vessel other than a fishing vessel in the Irish            In Joined Cases C-65/95 and C-l 11 /95 : references to the
 shipping register to a vessel which is owned in whole or in            Court under Article 177 of the EC Treaty from the High
 part by the Government, a Minister of State, an Irish                  Court of Justice, Queen's Bench Division (United
 citizen or an Irish body corporate, Ireland has failed to             Kigndom ) for a preliminary ruling in the proceedings
 comply with Articles 6 , 48 , 52 and 58 of the EC Treaty,              pending before that court between The Queen and
 Article 7 of Commission Regulation ( EEC ) No 1251/70 of               Secretary of State for the Home Department, ex parte:
 29 June 1970 on the right of workers to remain in the                 Mann Singh Shingara ( C-65/95 ) and between The Queen
 territory of a Member State after having been employed in              and Secretary of State for the Home Department, ex parte:
 that State ( OJ No L 142 , 30 . 6 . 1970, p. 24 ) and Article 7        Abbas Radiom ( C-l 11/95 ) — on the interpretation of
 of Council Directive 75/34/EEC of 17 December 1974
                                                                        Articles 8 and 9 of Council Directive 64/22 1 /EEC of
 concerning the right of nationals of a Member State to                 25 February 1964 on the coordination of special measures
 remain in the territory of another Member State after                  concerning the movement and residence of foreign
 having pursued therein an activity in a self-employed                  nationals which are justified on grounds of public policy,
 capacity ( OJ No L 14, 20 . 1 . 1975 , p. 10 ) — the Court             public security or public health ( OJ, English Special
  ( Fifth Chamber ), composed of: J. C. Moitinho de                     Edition 1963—1964, p. 117) — the Court, composed of:
 Almeida, President of the Chamber, C. Gulmann, J.-R
                                                                        G. C. Rodriguez Iglesias, President, G. F. Mancini , J. L.
 Puissochet, P. Jann ( Rapporteur ) and M. Wathelet, Judges;            Murray and L. Sevon ( Rapporteur), Presidents of
  C. O. Lenz, Advocate-General; R. Grass, Registrar, has                Chambers, C. N. Kakouris, P. J. G. Kapteyn, C. Gulmann,
 given a judgment on 12 June 1997, in which it:                         D. A. O. Edward, J. -P. Puissochet, G. Hirsch and M.
                                                                        Wathelet, Judges; D. Ruiz-Jarabo Colomer, Advocate­
                                                                        General; R. Grass, Registrar, has given a judgment on
   1 . declares that, by maintaining in force laws, regulations          17 June 1997, in which it has ruled:
        and administrative provisions which limit the right to
        register a vessel other than a fishing vessel in the Irish
        shipping register to a vessel which is owned in whole            1 . On a proper construction of Article 8 of Council
        or in part by the Government, a Minister of State, an                 Directive 64/221 /EEC of 25 February 1964 on the
        Irish citizen or an Irish body corporate, Ireland has                 coordination of special measures concerning the
        failed to comply with Articles 6, 48, 52 and 58 of the                movement and residence of foreign nationals which
        EC Treaty, Article 7 of Commission Regulation (EEC)                   are justified on grounds of public policy, public
        No 1251 /70 of 29 June 1970 on the right of workers                   security or public health, where under the national
 ---pagebreak--- No C 228/6            EN                   Official Journal of the European Communities                                    26 . 7. 97
    legislation of a Member State remedies are available in           individual actions for enforcement from being taken
    respect of acts of the administration generally and               or pursued after the measure initiating the special
    different remedies are available in respect of decisions          administration procedure has been adopted ?
     concerning entry by nationals of that Member State,
     the obligation imposed on the Member State by that
    provision is satisfied if nationals of other Member
     States enjoy the same remedies as those available
     against acts of the administration generally in that             Action brought on 30 May 1997 by the Commission of
     Member State.                                                    the European Communities against the Kingdom of
                                                                                                      Belgium
                                                                                                 Case C-207/97 )
2 . On a proper construction of Article 9 of Directive 64/
     221 /EEC, the three cases mentioned in Article 9 (1 )                                        ( 97/C 228/ 12 )
     (namely 'where there is no right of appeal to a court
     of law, or where such appeal may be only in respect of           An action against the Kingdom of Belgium was brought
     the legal validity of the decision, or where the appeal          before the Court of Justice of the European Communities
     cannot have suspensory effect') apply equally as                 on 30 May 1997 by the Commission of the European
     regards Article 9 (2), that is to say, where the decision        Communities, represented by Richard B. Wainwright,
     challenged is a refusal to issue a first residence permit        Principal Legal Adviser, and Jean-Francis Pasquier, a
     or a decision ordering expulsion adopted before the              national civil servant on secondment to the Legal Service,
     issue of such a permit.                                          acting as Agents, with an address for service in
                                                                      Luxembourg at the office of Carlos Gomez de la Cruz,
3 . A national of a Member State against whom an initial              Wagner Centre, Kirchberg.
     decision refusing entry into another Member State has
     been made on grounds of public order or public                   The applicant claims that the Court should:
     security has a right of appeal under Article 8 of the            — declare that, by failing, in breach of Article 7 of
     directive and, if appropriate, a right to obtain the                   Directive 76/464/EEC ( x ), to adopt the programmes
      opinion of an independent competent authority in                      for the reduction of pollution incorporating quality
     accordance with Article 9 of the Directive, with                       objectives, at least as regards the 99 substances listed
      respect to a fresh decision taken by the administrative               in the annex to the application, or by failing to
     authorities on an application made by him after a                      communicate to the Commission summaries of the
      reasonable time has elapsed since the last decision                   programmes in question and the results of the
     prohibiting him from entering the country.                             application thereof, the Kingdom of Belgium has failed
                                                                            to fulfil its obligations under the EC Treaty,
(■) OJ No C 159 , 24 . 6 . 1995 .
                                                                       — order the Kingdom of Belgium to pay the costs .
                                                                       Pleas in law and main arguments adduced in support:
                                                                       The Directive, which entered into force on the date of its
                                                                       notification, that is to say, 5 May 1976, pursuant to
Reference for a preliminary ruling by the Corte Suprema                Article 191 of the EEC Treaty ( which applied at that
di Cassazione — Sezione Prima Civile by order of that                  time ), does not expressly prescribe the period within
court of 10 February 1997 in the case of Ecotrade Sri                  which the obligations therein set out were to be
       against AFS — Altiforni e Ferriere di Servola SpA               specifically implemented. However, as regards the national
                          ( Case C-200/97                              programmes for the reduction of pollution caused by the
                                                                       substances referred to in List II in the Annex to the
                            ( 97/C 228/ 11
                                                                       Directive, it is apparent from Articles 7 and 12 of the
                                                                       Directive that the Member States were obliged, in
 Reference has been made to the Court of Justice of the                principle, to draw up the programmes and to
 European Communities by order of the Corte Suprema di                 communicate summaries of them to the Commission by
 Cassazione — Sezione Prima Civile ( Supreme Court of                  5 August 1978 ; nevertheless, by letter dated 3 November
 Cassation, First Civil Division ) of 10 February 1997,                1976, the Commission proposed that the Member States
 which was received at the Court Registry on 26 May                    should act on the basis of the following dates :
 1997, for a preliminary ruling in the case of Ecotrade Sri            15 September 1981 for the programmes for the reduction
 against AFS — Altiforni e Ferriere di Servola SpA on the              of pollution caused by the substances referred to in List II
 following question :                                                  and 15 September 1986 for the implementation of those
                                                                       programmes .
 May a State measure adopted pursuant to Law No 95                     The Commission does not claim that the list of the 99
 which provides for the exemption of large enterprises in              priority substances annexed to the letter before action and
 difficulties from the usual insolvency proceedings and at             the reasoned opinion constitutes a legally binding
 the same time for the enterprise to continue trading be               measure; however, it considers that, so long as the Council
 regarded as aid within the meaning of Article 92 et seq. of           has not fixed emission limit values in respect of substances
 the Treaty, in view of the fact that Decree Law No 414 of             which ought to appear in List I, they must still be treated
 31 July 1981 ( converted into Law No 544/ 1981 ) precludes             as falling within List II .