Order — ECLI:EU:C:2008:755
Date: 2008-12-19
Language of the case: German
Court formation: Seventh Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Free movement of workers
Concepts: Detailed rules governing the exercise of the right of entry and of residence
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Order 1. Citizenship of the European Union – Right of free movement and residence in the territory of the Member States – Directive 2004/38 – Beneficiaries (European Parliament and Council Directive 2004/38, Arts 3(1), 6(2), and 7(1)(d) and (2)) 2. Citizenship of the European Union – Right of free movement and residence in the territory of the Member States – Directive 2004/38 – Right of entry and residence of nationals of non-member countries who are family members of Community nationals (European Parliament and Council Directive 2004/38, Arts 7(2), 9(1), and 10) 1. Articles 3(1), 6(2) and 7(1)(d) and (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 amending Regulation No 1612/68 and repealing Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96 must be interpreted as applying also to family members who arrived in the host Member State independently of the Union citizen and acquired the status of family member or started to lead a family life with that Union citizen only after arriving in that State. In that regard, the fact that, at the time the family member acquires that status or starts to lead a family life, he resides temporarily in the host Member State pursuant to that State’s asylum laws has no bearing. None of those provisions requires that the Union citizen must already have founded a family at the time when he moves to the host Member State in order for his family members who are nationals of non-member countries to be able to enjoy the rights established by Directive 2004/38, and, by providing that the family members of the Union citizen can join him in the host Member State, the Community legislature, on the contrary, accepted the possibility of the Union citizen not founding a family until after exercising his right of freedom of movement. Furthermore, the words ‘family members [of Union citizens] who accompany … them’ in Article 3(1) of that directive refer both to the family members of a Union citizen who entered the host Member State with him and to those who reside with him in that Member State, without it being necessary, in the latter case, to distinguish according to whether the nationals of non-member countries entered that Member State before or after the Union citizen or before or after becoming his family members. Moreover, from the time when the national of a non-member country who is a family member of a Union citizen derives rights of entry and residence in the host Member State from the directive, that State may restrict that right only in compliance with Articles 27 and 35 of Directive 2004/38. Compliance with Article 27 of that directive is required in particular where the Member State wishes to penalise the national of a non-member country for entering into and/or residing in its territory in breach of the national rules on immigration before becoming a family member of a Union citizen. However, a person who, before acquiring the status of a family member of a Union citizen, was entitled to reside temporarily in the territory of a Member State pursuant to the legislation of that Member State pending a decision on an asylum application, cannot have Article 27 of the directive invoked against him on that ground alone. Finally, a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State. (see paras 27-33, operative part 1) 2. Articles 9(1) and 10 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 amending Regulation No 1612/68 and repealing Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96 preclude a national provision under which family members of a Union citizen who are not nationals of a Member State, and who, in accordance with Community law, and in particular Article 7(2) of that directive, have a right of residence, cannot be issued with a residence card of a family member of a Union citizen solely because they are entitled temporarily to reside in the host Member State under that State’s asylum laws. Article 10(2) of Directive 2004/38 lists exhaustively the documents which nationals of non-member countries who are family members of a Union citizen may have to present to the host Member State in order to have a residence card issued. To deny a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess, who accompanies or joins that Union citizen and who benefits from a right of residence under Article 7(2) of that directive, the benefit of the residence card of a family member of a Union citizen solely because the person concerned is only temporarily entitled to reside in the host Member State under that State’s asylum laws would amount to the addition of a condition which is supplementary to those which are exhaustively listed in Article 10(2) of that directive. (see paras 38-40, operative part 2)