View of the Advocate General — ECLI:EU:C:2011:626
Date: 2011-09-29
Language of the case: German
Subject matter: Association Agreement;Citizenship of the Union;Right of entry and residence;External relations;Immigration and asylum policy;Free movement of workers;Area of freedom, security and justice;International agreements;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Citizenship of the European Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Beneficiary – Family members of a citizen of the Union who are third country nationals – Condition – Citizen of the Union having exercised his right to freedom of movement (European Parliament and Council Directive 2004/38, Art. 2, pt. 2, and 3(1); Council Directive 2003/86, Art. 3(3)) 2. Citizens of the European Union – Provisions of the Treaty – Field of application – Citizen of the Union who has never made use of his right to freedom of movement – Condition of inclusion – Application of measures resulting in his being denied the genuine enjoyment of the substance of the rights conferred by virtue of the status of citizen of the Union (Arts 20 TFEU and 21 TFEU) 3. Fundamental rights – Respect for private and family life – Refusal of a right of residence for family members of a European Union citizen who are third country nationals (Charter of Fundamental Rights of the European Union, Art. 7) 4. Citizenship of the European Union – Provisions of the Treaty – Right to move and reside freely within the territory of the Member States – Refusal by a Member State to grant a right of residence to family members of a European Union citizen who are third country nationals (Arts 20 TFEU and 21 TFEU) 5. International agreements – EEC-Turkey Association Agreement – Freedom of movement for persons – Freedom of establishment – Standstill rule in Article 41(1) of the Additional Protocol – Scope (Additional Protocol to the EEC-Turkey Association Agreement, Art. 41(1)) 1. Directive 2003/86 on the right to family reunification and 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 are not applicable to third country nationals who apply for the right of residence in order to join their European Union citizen family members who have never exercised their right to free movement and who have always resided in the Member State of which they are nationals. In accordance with Article 3(3) of Directive 2003/86, that directive is not to apply to members of the family of a Union citizen. Moreover, not all third country nationals derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 of that directive, 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. (see paras 47, 56, 58) 2. The situation of a Union citizen who has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation. Indeed, as citizenship of the Union is intended to be the fundamental status of nationals of the Member States, 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. That criterion, relating to the denial of the substance of the rights conferred by virtue of European Union citizen status, 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. As regards the right of residence of family members of a citizen of the Union who are third country nationals, that criterion is therefore very specific inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a Member State national, lest the effectiveness of the citizenship of the Union enjoyed by that national be disregarded. The mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted. (see paras 61-62, 64, 66-68) 3. If a national court considers, in the light of the circumstances of a case before it, that the situation of the family members of a citizen of the Union is covered by Union law, it must examine whether refusing those family members a right of residence prejudices the right to respect for private and family life provided for in Article 7 of the Charter of Fundamental Rights of the European Union. On the other hand, if it takes the view that that situation does not fall within the ambit of Union law, it must undertake that examination in the light of Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. All the Member States are, after all, parties to that convention, which enshrines the right to respect for private and family life in Article 8. (see paras 72-73) 4. 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, when that third country national wishes to reside with a member of his family who is a citizen of the Union residing in that 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 it is a matter for the national court to verify. (see para. 74, operative part 1) 5. Article 41(1) of the Additional Protocol to the EEC-Turkey Association Agreement must be interpreted as meaning that the enactment of new legislation more restrictive than 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. The scope of the standstill obligation extends by analogy to any new obstacle to the exercise of freedom of establishment, freedom to provide services or freedom of movement for workers which makes more stringent the conditions existing at a given time, so that it is necessary to ensure that the Member States do not depart from the objective pursued by the standstill clauses by reversing measures which they have adopted in favour of those freedoms for Turkish workers after the Additional Protocol or Decision No 1/80 of the EEC-Turkey Association Council have entered into force within their territory. (see paras 94, 101, operative part 2)