CELEX: C1999/246/42
Language: en
Date: 1999-08-28 00:00:00
Title: Case C-256/99: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Crown Office), by order of that court of 14 April 1999, in the case of The Queen against Secretary of State for the Home Department, ex parte: Cheung Chiu Hung

28.8.1999               EN                   Official Journal of the European Communities                                        C 246/21
Pleas and main arguments                                                1. When determining whether the Applicant, as a British
                                                                           National (Overseas) not entitled (under United Kingdom
                                                                           law) to enter or remain in the United Kingdom, is a ‘person
Breach of Community law (Article 175 of the Treaty estab-                  holding the nationality of a Member State’ and therefore is
lishing the European Community) by misinterpretation thereof               ‘a citizen of the Union’ for the purpose of Article 8 of the
inasmuch as it does not take account of the social context in              EC Treaty:
which it to be applied and infringement of the fundamental
human rights enshrined in Article F(2) of the Treaty on                    (1) What is the effect (if any) as a master of Community
European Union and in general principles of law:                                law of
— right to judicial protection against an excessively formal-                   (a) the United Kingdom’s 1972 Declaration ‘on the
     istic interpretation of the procedural requirements which                      definition of the term “nationals”’ which was
     must be fulfilled prior to the bringing of an action for                       made at the time of Accession to the European
     failure to take action: the totally formalistic interpretation                 Communities and annexed to the Final Act of the
     by the Court of First Instance is incorrect, in view of the                    Accession Conference, and
     conclusions at which it arrives. The Commission knew
     that there was a vessel and crew which had been seized                     (b) the United Kingdom’s 1982 Declaration ‘on the
     under false accusations, since it had sufficient evidence of                   meaning of a UK national’, and
     it in its possession and, moreover, according to findings
     by its own experts, knew such detention to be illegal.                     (c) Declaration No. 2 to the Treaty on European Union
     Nevertheless, it took no action. It is impossible to adhere                    signed on 7 February 1992 that nationality is to be
     to a view so formal that it does not consider the appellant’s                  decided solely by reference to the national law of
     assumption that the Commission is dealing with com-                            the Member State concerned and Member States
     pliance with treaty requirements and taking steps to free                      may declare, for information, who are to be
     the persons illegally arrested to be, in itself, a request for                 considered to be their nationals for Community
     action.                                                                        purposes ?
— misapplication of the right to equal treatment inasmuch as               (2) If and to the extent that the United Kingdom is not
     different situations were treated alike                                    entitled, as a master of Community law, to rely on the
                                                                                Declarations referred to in (1) above, what are the
                                                                                relevant criteria for identifying whether a person has
— breach of the principle of legal certainty which governs the                  nationality of a Member State for the purposes of
     Community legal system and regulates the conduct of the                    Article 8 where domestic law identifies various
     Community institutions                                                     categories of nationality only some of which confer a
                                                                                right to enter and remain in that Member State ?
— right to freedom and safety, honour and moral integrity of
     the crew of the Albor Uno, which is the property of the               (3) In this context, what is the effect of the principle of
     applicant undertaking Pescados Congelados Jogamar SL.                      respect for fundamental human rights under Com-
                                                                                munity law claimed by the Applicant, in particular
                                                                                where the Applicant relies on Article 3(2) of the Fourth
                                                                                Protocol to the European Convention on Human
                                                                                Rights that no one shall be deprived of the right to
                                                                                enter the territory of the State of which he is a national,
                                                                                which has not been ratified by the United Kingdom?
                                                                        2. In the circumstances of the present case does Article 8a(1)
                                                                           of the EC Treaty:
Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Queen’s Bench Division                          (a) Confer rights on a citizen of the Union to enter and
(Crown Office), by order of that court of 14 April 1999,                        remain in the Member State of which he is a national
in the case of The Queen against Secretary of State for                         even where those rights are otherwise denied by
    the Home Department, ex parte: Cheung Chiu Hung                             national law.
                                                                           (b) Confer rights additional to those which existed under
                         (Case C-256/99)                                        the EC Treaty prior to its amendment by the Treaty on
                                                                                European Union.
                         (1999/C 246/42)                                   (c) Give rise to directly effective rights which citizens of
                                                                                the Union may invoke before national courts and
Reference has been made to the Court of Justice of the                          tribunals.
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division (Crown                   (d) Apply to situations which are wholly internal to a
Office), of 14 April 1999, which was received at the Court                      single Member State?
Registry on 9 July 1999, for a preliminary ruling in the case of
The Queen against Secretary of State for the Home Depart-
ment, ex parte: Cheung Chiu Hung, on the following questions: