The CJEU gave its judgments in O and B and S and G on 12 March 2014. The decisions concern four third-country nationals who each are family members of a Dutch national (and therefore Union citizen) and seek a residence permit in the Netherlands upon the return of said Union citizen from residing in another Member State. The Court is asked to consider what type of movement is sufficient to establish that EU law applies and whether a derived right of residence in the Netherlands is generated for the third-country nationals. The difference between O and B and S and G is that in the latter, both citizens travel to Belgium solely for work purposes and in the first decision they have spent time in other Member States for reasons other than work.
O and B
The Court first ascertained in this case that Directive 2004/38 does not establish a derived right of residence for third-country national family members of Union citizens in the citizen’s Member State of origin, instead such a right is only derived where the citizen has exercised his free movement right by residing in another Member State. Since a State cannot refuse its own nationals the right to enter and reside in its territory, the Citizenship Directive is intended to cover only the conditions of entry and residence of Union citizen in host Member States. The Court therefore moved on to examine whether such a derived right could be based on Art.21 TFEU. It considers that a refusal of such a right could interfere with the Union citizen’s free movement right by discouraging him from exercising his rights of entry and residence in the host Member State and is seen as an obstacle to the Union citizen leaving its Member State of origin. Subsequently, the Court held that whilst the Directive does not directly cover the return of a Union citizen to his Member State of origin, it can be applied analogously.
Furthermore, the Court ruled that residence in the host Member State must be sufficiently genuine, meaning that it must create and strengthen a family life there, as not every residence in a host Member State with a family member necessarily confers a derived residency right to the family member upon the return to the home Member State. However, evidence of settling in the host Member State with the family member is enough to convince the Court of a genuine residence. Short periods, such as weekends and holidays, spent in another Member State it was held would not fulfil the conditions of the Directive. This means that it is very likely that both O and B will be refused a residence right by the referring national court.
The Court concluded that where a Union citizen has created and strengthened a family life with a third-country national during a genuine residence in a Member State other than that of his nationality, the provisions of the Directive apply by analogy where that Union citizen returns with his family member to his home Member State.
S and G
In this case the Court held that the Directive must be interpreted as not precluding the refusal by a Member State to grant a residence right to third-country national family member of a national, where the latter resides in that Member States but regularly travels to another Member State. This means that under the Directive, S does not have to be granted a residence right under EU law.
Art.45 TFEU (freedom of movement of workers) however must be interpreted as conferring on a third-country national family member such a derived residence right, where the Union citizen resides in his Member State of origin but regularly travels to another Member State as a work, if such a refusal to grant a residency right discourages a worker from effectively exercising his rights under Art.45 TFEU. As both the son-in-law and the husband are considered to fall within the scope of Art.45, S and G could be granted a residence right. It is however for the referring Court to decide whether the refusal of such a grant would be an obstacle to the EU citizens’ exercise of free movement rights. A relevant factor to consider is that the third-country national takes care of the citizen’s child, however the mere fact that it might seem desirable for the child to be cared for by a direct relative is not sufficient in itself to grant such a residence right. The referring court could therefore very easily decide that refusing to grant grandmother S a residence right is not an obstacle to the son-in-law’s free movement rights.
It appears that the Court wants to clear up the recent confusion about the residency rights of third-country national family members of Union citizens in their home Member State. Both are Grand Chamber decisions and in comparison to, for example, Ruiz Zambrano are quite lengthy evaluations with thorough explanations. It is clear that, as AG Sharpston states in her Opinion, ‘[i]n the current state of EU law, derived rights of residence in principle only exist where these are necessary to ensure that EU citizens can exercise their free movement and residence rights effectively.’ The Court emphasises this repeatedly, and therefore reinforces the ‘wholly internal’-rule. In all four cases the Court is able to establish a cross-border link, which thus differentiates these from the Ruiz Zambrano-McCarthy–Dereci case law and the application of Art.20 TFEU.
The decision confirms that right of residence of the third-country national family member of a Union citizen in the home Member State, can be derived not only from Art.20 TFEU in specific cases, but also from the Directive 2004/38 conditional on the cross-border link and the genuine residence element. The Union citizen and his third-country national family member must have resided together in a host Member State for the purpose of creating and strengthening their family life before their return to the home State.
It is not surprising that such a right can also be derived on the basis of Art.45 TFEU. In Carpenter such a right was granted on the basis of Art.56 TFEU (free movement of services) and it follows therefore the right to free movement of workers (Art.45) also incorporates this. The interesting point to consider here is however whether the refusal of a residence permit to their family members actually discourages a frontier worker from working in a country other than that of his home State. It should be considered that if the home State were to deny such residence rights, then it would be more desirable for the frontier worker to move to the Member State, where he is employed. His family there would automatically be covered by EU law, as he would now be working and residing in a Member State other than that of his nationality. It could thus be argued that this scenario is not an obstacle to the internal market. Potential confusions therefore remain.
LLB Student, Durham Law School