Araceli Turmo , 18 mars 2014

On 12 March 2014, the Grand Chamber of the Court of Justice gave two much-anticipated rulings in Cases O (C-456/12) and S. (C-457/12), both of which concerned the right of residence which third-country nationals may derive from their Dutch relatives in the Netherlands. The existence of such a derived right of residence is well-known in cases where the Union citizen is established in a different Member State from that of which he is a national. However, the case-law concerning the ability to derive any such rights in the Union citizen’s State of origin was much less clear. These rulings therefore provide a welcome clarification, moving the Court’s case-law towards better protection of bi-national families.

The questions in Case O. arose from proceedings in which the Union citizens have previously exercised their right to freedom of movement but currently reside in the Netherlands. Mr O. married his sponsor in Spain for two months, and resided there as a family member of a Union citizen, and sought to obtain a residence permit in the Netherlands when she returned to her Member State of origin. Mr B. lived in Belgium for two years after having been denied residence in the Netherlands, a period during which his sponsor spent every weekend with him, but he was subsequently forced to return to Morocco. After marrying his sponsor, Mr B. returned to the Netherlands and renewed his application for a residence permit.

The Court of Justice confirmed that neither third-country national could rely on Directive 2004/38, since their sponsors are not currently exercising their right to free movement. However, it held that Article 21(1) TFEU may form the basis for a derived right of residence in cases where the Union citizen is returning to her State of origin. Referring to its Singh and Eind case-law concerning the free movement of workers, the Court extended it to cover cases where the Union citizen merely availed herself of the rights conferred by Article 21(1) TFEU. Indeed, the same type of obstacle to leaving one’s Member State of origin would be created if such situations were admissible under EU law.

The conditions for granting a derived right of residence are determined by analogy to Directive 2004/38: a right will therefore only arise where the Union citizen has genuinely resided in another Member State with the third-country national, pursuant to Article 7(1) of the Directive, or, a fortiori, where they have been granted a permanent right of residence in the host State pursuant to Article 16 of the Directive. Short-term residence, pursuant to Article 6, is not sufficient to create or strengthen family life and will therefore not confer any derived right when the Union citizen returns to their State of origin. Accordingly, short periods such as weekends or holidays cannot have a cumulative effect creating a derived right of residence. Moreover, only third-country nationals who had the status of a family member during their stay in the host Member State may rely on Article 21(1) TFEU in their sponsor’s State of origin.

In the national proceedings which gave rise to Case S., the third-country nationals are relying on their spouses’s exercise of the rights conferred by Article 45 TFEU. One of the sponsors makes weekly business trips to Belgium, the other is a frontier worker who goes there to work every day: both fall within the scope of the provision. Here too, the Court held that Directive 2004/38 cannot be relied upon in the Union citizen’s Member State of origin. However, it chose to transpose its Carpenter case-law to free movement of workers.

The same justification based on the effectiveness of freedom of movement applies: a derived right of residence must therefore be granted where it is necessary to guarantee the citizen’s effective exercise of his fundamental freedom. The criteria applicable in order to determine whether such a dissuasive effect exists depend on the circumstances of the case, and may, as in Carpenter, depend on the third-country national’s role in taking care of the Union citizen’s children.

Cases O. and S. are both major steps in the evolution of the law concerning the derived rights of residence of Union citizens’s family members. Although the Court did not follow Advocate General Sharpston’s bold proposals concerning the rights of Union citizens returning to their Member State of origin, the extension of the Singh-Eind and Carpenter precedents to other areas increases the protection granted by EU law to Union citizens and their family members in their own Member States. The ability to rely on the Treaties, rendered all the more necessary by the current context of immigration restrictions, and contributes to the construction of the “fundamental status”announced in Grzelczyk.

Araceli Turmo, "The Court extends third-country nationals' derived right of residence under Articles 21 and 45 TFEU", www.unige.ch/ceje, Actualité du 18 mars 2014.