CJEU - C-256/11 Murat Dereci and others v. Bundesministerium für Inneres

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Country of Applicant: 
Nigeria
Serbia
Sri Lanka
Turkey
Date of Decision: 
15-11-2011
Citation: 
C-256/11
Court Name: 
Grand Chamber of the CJEU
Relevant Legislative Provisions: 
European Union Law > EN - Permanent Residence Directive
Council of Europe Instruments
Headnote: 

The refusal to grant a right of residence to a third-country national who is a family member of a Union citizen must not lead in fact to the obligation for the latter to leave the territory not only of the Member State of which he is a national but also that of the Union as a whole.

Facts: 

This is a joint case of five Applicants, each of whom is a third country national wishing to reside in Austria with his/her Austrian family member. None of the Applicants’ family members have exercised their right to free movement within the Union.

All Applicants have had their applications for residence permits rejected by the Austrian Bundesministerium für Inneres, which refused to apply provisions under Directive 2004/38/EC for family members of EU citizens on the grounds that the Union citizen concerned has not exercised right of free movement. Three of the five Applicants have received expulsion orders and individual removal orders.

The referring court therefore asks whether the refusal to grant the Applicants a right of residence may be interpreted as leading, for their family members who are Union citizens, to a denial of the genuine enjoyment of the substance of the rights conferred on them by virtue of their status as citizens of the Union.

The questions referred to the CJEU can be summarised as follows:

1.       Does Art 20 TFEEU preclude Member States from refusing residence permits to the Applicants, notwithstanding that each respective Union citizen is not dependent upon his/her family member for their subsistence?

2.       If the answer to question one is yes, does this right of residence flow directly from Union Law, or is it sufficient for Member State to grant residence under national provisions?

3.       If a right of residence flows from Union law, under what exceptional conditions does a right of residence for such family members not exist under EU law, or under what conditions can a third country national family member be deprived of right of residence? If a right of residence can be satisfied under national provisions, under what conditions may a third country national family member be denied right of residence, notwithstanding the obligation in principle on Member States to enable that person to acquire residence?

The referring court also posed an additional question regarding the conditions of initial entry to be applied to Turkish citizens in light of the ‘standstill clause’ in the Association Agreement with Turkey which can be summarised as follows:

 Whether Article 13 of Decision No 1/80 or Article 41(1) of the Additional Protocol must be interpreted as meaning that they preclude a Member State from subjecting the initial entry of a Turkish national to stricter national rules than those which previously applied to such entry, even though those previous national rules, which had relaxed the initial entry regime, did not enter into force until after those articles were given effect in the Member State in question, following its accession to the Union.

Decision & Reasoning: 

With regard to the first question the Court found that that Directives 2003/86/EC and 2004/38/EC do not apply to the Applicants named above.  Article 3(3) of Directive 2003/86/EC stipulates that it does not apply to family members. With regard to Article 3(1) of Directive 2004/38/EC, it provides that a Union citizen, who has never exercised his right of free movement and has always resided in a Member State of which he is a national, is not covered by the concept of ‘beneficiary’ so that that directive is not applicable.

 As per Article 2(2) of Directing 2004/38, only family members of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national can derive rights of entry into and residence in a Member State (Metock and Others).

The Court then examined the relevance of the Treaty provisions concerning citizenship of the Union and noted that ‘the situation of a Union citizen…who has not made use of right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation’. It went on to state that ‘Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status’. With regard to ‘genuine enjoyment’ this ‘refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole’.

With regard to the right to respect for private and family life, the Court notes that the meaning and scope of Art 7 of the Charter are the same as those laid down in Art 8(1) of ECHR, but points out that the Charter is only applicable to Member States when they are implementing European law. It leaves the issue of whether the current situation falls within the scope of EU law to be determined by the referring court, in line with their evaluation of whether or not the family members of the Applicants were deprived of the genuine enjoyment of the substance of the rights by the decision of the referring Court. It also points out that if the court takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.

Therefore In the light of the foregoing observations, the answer to the first question is that European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.

Since the second and third questions were raised only in the event of the first question being answered in the negative, there is no need to provide an answer.

With regard to the fourth question and the issue of the limits of the Association Agreement with Turkey, the Court held that the standstill obligation extends to any new obstacle that imposes more stringent conditions at any given time. Therefore a Member State cannot depart from objective of standstill clauses by reversing measures that they have adopted in favour of the free movement of Turkish workers subsequent to the entry into force of the Additional Protocol.  The fact that Mr Dereci entered Austria irregularly does not prevent him from benefiting from the standstill clause, as at the time at which he made his application he had a right of establishment by reason of his marriage to an Austrian national.

Outcome: 

European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.

Article 41(1) of the Additional Protocol, signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, must be interpreted as meaning that the enactment of new legislation more restrictive that the previous legislation, which, for its part, relaxed earlier legislation concerning the conditions for the exercise of the freedom of establishment of Turkish nationals at the time of the entry into force of that protocol in the Member State concerned must be considered to be a ‘new restriction’ within the meaning of that provision.

Observations/Comments: 

By order of the President of the Court of 9 September 2011 the accelerated procedure was applied to the preliminary reference.  Advocate General Mengozzi did not offer an opnion, rather a view in this case.

A case commentary is available here

http://eutopialaw.com/2011/11/17/case-summary-and-comment-case-c-25611-dereci-and-others-v-bundesministerium-fur-inneres/

Case Law Cited: 

CJEU - C-34/09 Ruiz Zambrano [2011] ECR I-0000

CJEU - C-127/08 Metock and Others [2008] ECR I-6241

CJEU - C-434/09 McCarthy [2011] ECR I-0000
Authentic Language: 
German
Country of preliminary reference: 
Austria
National / Other Legislative Provisions: 
Association Council Decision No. 1/80 of 19.09.1980 on the Development of the Association
Council Regulation (EEC) No. 2760/72 of 19.12.1972
TFEU - Art 20
Austria - Asylgesetz (Asylum Act) 2005 idF BGBl I Nr. 100/2005