CELEX: C2002/180/21
Language: en
Date: 2002-07-27 00:00:00
Title: 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

C 180/12              EN                      Official Journal of the European Communities                                      27.7.2002
Action brought on 23 May 2002 by Commission of                           the overall reduction of 75 % to which the Federal Republic
the European Communities against Federal Republic of                     refers with regard to the nitrogen load must have been
                            Germany                                      measured according to the monitoring methods applied in
                                                                         Germany. That level of nitrogen reduction cannot therefore
                                                                         substantiate the equivalence of monitoring method applied in
                        (Case C-191/02)                                  Germany.
                        (2002/C 180/20)                                  (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.
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.
                                                                         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
The applicant claims that the Court should:                              Catherine Zhu against Secretary of State for the Home
                                                                                                     Department
1.    Declare that, by failing to ensure equivalence of the
      monitoring methods in accordance with Annex I Part D.1                                       (Case C-200/02)
      of Council Directive 91/271/EEC (1) of 21 May 1991
      concerning urban waste water treatment, the Federal
                                                                                                   (2002/C 180/21)
      Republic of Germany has failed to fulfil its obligations
      under the directive and in particular under Article 15(1)
      thereof.
                                                                         Reference has been made to the Court of Justice of the
2.    Order the Federal Republic of Germany to pay the costs             European Communities by an order of the Immigration
      of the proceedings.                                                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:
Pleas in law and main arguments
                                                                         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):
The application of the monitoring methods used in Germany
(‘2-hours-mixed sample’ and ‘qualified random sample’) (2)                     a)    confer the right on the First Appellant, who is a
instead of the methods required by the directive in Annex I                          minor and a citizen of the Union, to enter and reside
part D, numbers 2, 3 and 4, has the result that the limits laid                      in the host Member State?
down by the Directive can be exceeded without objection. This
is proved by the results of a study commissioned by the                        b)    and if so, does it consequently confer the right on
Umweltbundesamt (Federal Environment Office) in 1996:
                                                                                     the Second Appellant, a third country national who
‘Expert opinion as to the equivalence of the requirements of                         is the First Appellant’s mother and primary carer, to
the Framework Waste Water Regulations and the EU Directive                           reside with the First Appellant (i) as her dependent
as regards the discharge concentration of urban waste water
                                                                                     relative, or (ii) because she lived with the First
treatment plants and the degree of nitrogen elimination’.                            Appellant in her country of origin, or (iii) on any
                                                                                     other special basis?
The Commission rejects the objection that, on account of                 2.    If and to the extent that the First Appellant is not a
Article 5(4) of the directive, it is not necessary to appraise the             ‘national of a member state’ for purposes of exercising
equivalence of the monitoring methods for individual plants.                   Community Rights pursuant to Council Directive 73/
Article 5 governs an area different from Article 15 and Annex I                148/EEC or Article 1 of Council Directive 90/364/EEC,
part D. Article 5 governs quality requirements, exceptions from                what then are the relevant criteria for identifying whether
which are admitted subject to a quite specific requirement.                    a child, who is a citizen of the Union, is a national of a
Article 15 and Annex I part D govern monitoring methods by                     member state for purposes of exercising Community
which compliance with limits is reviewed. It is quite clear that               rights?
 ---pagebreak--- 27.7.2002               EN                      Official Journal of the European Communities                                         C 180/13
3.    In the circumstances of the present case, does the receipt           of Justice (England and Wales), Queen’s Bench Division
      of child care by the First Appellant constitute services for         (Administrative Court) dated 28 March 2002, which was
      purposes of Council Directive 73/148/EEC?                            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:
4.    In the circumstances of the present case, is the First
                                                                           Delena Wells, on the following questions:
      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?
                                                                           (a)   Whether an approval of a new set of conditions on an
5.    On the special facts of this case does Article 18(1) EC                    existing permission granted by an Interim Development
      give the First Appellant the right to enter and reside in                  Order (‘old mining permission’) pursuant to section 22
      the host member state even when she does not qualify                       and Schedule 2 of the Planning and Compensation Act
      for residence in the host state under any other provision                  1991 is a ‘development consent’ for the purposes of the
      of EU law?                                                                 EIA Directive (1)?
6.    If so, does the Second Appellant consequently enjoy the
      right to remain with the First Appellant, during that time
      in the host state?                                                   (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
7.    In this context, what is the effect of the principle of                    further matters required under the new scheme of
      respect for fundamental human rights under Community                       conditions is itself capable of being a ‘development
      law claimed by the Appellants, in particular where the                     consent’ for the purposes of the EIA Directive?
      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?                                (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?
(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           (d) Whether (i) it is open to individual citizens to challenge
    residence. OJ L 180, 13.7.1990, p. 26.                                       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
Reference for a preliminary ruling by the High Court of                          and what steps may the UK lawfully take consistently
Justice (England and Wales), Queen’s Bench Division                              with the EIA Directive?
(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
                          (Case C-201/02)                                  (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.
                          (2002/C 180/22)
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court