CELEX: C2002/180/22
Language: en
Date: 2002-07-27 00:00:00
Title: Case C-201/02: 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

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