# C_2011186EN.01000501.xml

| 25.6.2011 | EN | Official Journal of the European Union | C 186/5 |
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25.6.2011

EN

Official Journal of the European Union

C 186/5

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Judgment of the Court (Third Chamber) of 5 May 2011 (reference for a preliminary ruling from the Supreme Court of the United Kingdom (United Kingdom)) — Shirley McCarthy v Secretary of State for the Home Department

(Case C-434/09) (1)

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(Freedom of movement for persons - Article 21 TFEU - Directive 2004/38/EC - ‘Beneficiary’ - Article 3(1) - National who has never made use of his right of free movement and has always resided in the Member State of his nationality - Effect of being a national of another Member State - Purely internal situation)

2011/C 186/08

Language of the case: English

Referring court

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Parties to the main proceedings

Applicant: Shirley McCarthy

Applicant:

Defendant: Secretary of State for the Home Department

Defendant:

Re:

Re:

Reference for a preliminary ruling — Supreme Court of the United Kingdom — Interpretation of Articles 3 and 16 of Directive 2004/58/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) — Concepts of ‘beneficiary’ and ‘legal residence’ — British citizen who also has Irish nationality and has always lived in the United Kingdom

Operative part of the judgment

Operative part of the judgment

| 1. | Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State. |
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1.

Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.

| 2. | Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States. |
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2.

Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.

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(1)  OJ C 11, 16.1.2010.

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