Opinion of the Advocate General — ECLI:EU:C:2012:124
Date: 2012-03-06
Language of the case: Slovak
Subject matter: Citizenship of the Union;Right of entry and residence;External relations;Principles, objectives and tasks of the Treaties;External action by the Union
Procedure: Action for failure to fulfil obligations - unfounded;Action for failure to fulfil obligations - inadmissible
Origin: Slovakia

Summary — Judgment of the Court (Grand Chamber), 16 October 2012 1. Action for failure to fulfil obligations — Action brought by a Member State — Plea of lack of competence based on the alleged non-application of European Union law — Rejection — Matter within the sphere of competence of the Courts of the European Union (Art. 259 TFEU) 2. Citizenship of the European Union — Right to move and reside freely within the territory of the Member States — Person who carries out the functions of Head of State — Particular status governed by the rules of international law — Restrictions on the right of free movement based on those rules — Whether permissible (Art. 21 TFEU); (Directive 2004/38 of the European Parliament and of the Council) 3. Action for failure to fulfil obligations — Abuse of rights allegedly committed by a Member State — Evidence — Evidence having to show both objective circumstances and the intention to obtain an advantage (Art. 259 TFEU) 4. Action for failure to fulfil obligations — Action brought by a Member State — Complaint alleging risk of future beach of European Union law — Complaint seeking an interpretation of European Union law — Inadmissibility (Art. 259 TFEU) 1. See the text of the decision. (see paras 24-26) 2. A Head of State holding the nationality of a Member State unquestionably enjoys the status of citizen of the Union which confers, in accordance with Article 21 TFEU, a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaties and the measures adopted for their implementation. Such limitations may also be based on the relevant rules of international law, since international law is part of the European Union legal order. Thus, in so far as, on the basis of customary rules of general international law and those of multilateral agreements, the Head of State enjoys a particular status in international relations which entails, inter alia, privileges and immunities, such a specific character is capable of distinguishing the person who enjoys that status from all other Union citizens, with the result that that person’s access to the territory of another Member State is not governed by the same conditions as those applicable to other citizens. Accordingly, the specific character of Head of State is such as to justify a limitation, based on international law, on the exercise of the right of free movement conferred on that person by Article 21 TFEU. (see paras 42-44, 46, 50, 51) 3. See the text of the decision. (see paras 57, 58) 4. The procedure established under Article 259 TFEU is designed to obtain a declaration that the conduct of a Member State is in breach of European Union law and to terminate that conduct. Thus, as the aim of the Treaty is to achieve the practical elimination of infringements by Member States and the consequences thereof, an action under Article 259 TFEU concerning future possible infringements or limited to seeking an interpretation of European Union law is inadmissible. (see paras 67, 68)