Opinion of the Advocate General — ECLI:EU:C:2015:306
Date: 2015-05-07
Language of the case: English
Subject matter: Citizenship of the Union;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary — Judgment of the Court (Grand Chamber), 16 July 2015 1. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Retention of the right of residence of family members in the event of divorce — Third-country national divorced from a Union citizen who left the host Member State before the court proceedings for divorce were commenced — Not included (European Parliament and Council Directive 2004/38, Arts 2, point 3, 7(1) and 2, and 13(2)) 2. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Conditions for the right of residence under EU law — Condition requiring sufficient resources — Resources coming in part from the resources of the third-country national spouse — Condition fulfilled Directive 2001/37 of the European Parliament and of the Council, Art. 3(1)) (European Parliament and Council Directive 2004/38, Art. 7(1)(b)) 1. Article 13(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as meaning that a third-country national, divorced from a Union citizen, whose marriage lasted for at least three years before the commencement of divorce proceedings, including at least one year in the host Member State, cannot retain a right of residence in that Member State on the basis of that provision where the commencement of the divorce proceedings is preceded by the departure from that Member State of the spouse who is a Union citizen. The reference in that provision to, on the one hand, ‘the host Member State’, which is defined in Article 2(3) of Directive 2004/38 only by reference to the exercise of the Union citizen’s right of free movement and residence, and, on the other, ‘initiation of the divorce … proceedings’ necessarily implies that the right of residence of the Union citizen’s spouse who is a third-country national can be retained on the basis of Article 13(2)(a) of Directive 2004/38 only if the Member State in which that national resides is the ‘host Member State’ within the meaning of Article 2(3) of Directive 2004/38 on the date of commencement of the divorce proceedings. That is not the case, however, if, before the commencement of those proceedings, the Union citizen leaves the Member State in which his spouse resides for the purpose of settling in another Member State or a third country. In that event the third-country national’s derived right of residence based on Article 7(2) of Directive 2004/38 has come to an end with the departure of the Union citizen and can therefore no longer be retained on the basis of Article 13(2)(a) of that directive. Consequently, it is clear that the spouse who is a EU citizen of a third-country national must reside in the host Member State, in accordance with Article 7(1) of Directive 2004/38, up to the date of commencement of the divorce proceedings for that third-country national to be able to claim the retention of his right of residence in that Member State on the basis of Article 13(2) of the directive. (see paras 61, 62, 66, 70, operative part 1) 2. Article 7(1)(b) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as meaning that a Union citizen has sufficient resources for himself and his family members not to become a burden on the social assistance system of the host Member State during his period of residence even where those resources derive in part from those of his spouse who is a third-country national. (see para. 77, operative part 2)