Opinion of the Advocate General — ECLI:EU:C:2022:194
Date: 2022-03-17
Language of the case: Dutch
Subject matter: Citizenship of the Union;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-624/20 – 1 
Case C-624/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
24 November 2020 
Referring court:  
Rechtbank Den Haag, zittingsplaats Amsterdam (Netherlands) 
Date of the decision to refer:  
24 November 2020 
Applicant:  
E.K. 
Defendant:  
Staatssecretaris van Justitie en Veiligheid 
  
Subject of the action in the main proceedings 
At issue in the main proceedings is whether a right of residence on the basis of 
Article 20 of the Treaty on the Functioning of the European Union is, by its 
nature, temporary and therefore precludes the acquisition of a long-term resident’s 
EU residence permit.  
Subject and legal basis of the request for a preliminary ruling 
Interpretation of Article 20 TFEU and Article 3(2)(e) of Directive 2003/109. 
Question whether the Member States are competent to determine for themselves 
whether a right of residence on the basis of Article 20 TFEU is temporary. If that 
question is governed by Union law, the questions arise 1) whether there is a 
difference between derived rights of residence on the basis of Directive 2004/38 
and on the basis of Article 20 TFEU; 2) whether a derived right of residence on 
the basis of Article 20 TFEU is temporary, and 3) whether Directive 2003/109 has 
been correctly transposed into Netherlands law.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-624/20 
 
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Questions referred 
1. Is it within the competence of the Member States to determine whether the 
right of residence on the basis of Article 20 TFEU is in itself of a temporary or a 
non-temporary nature, or should it be interpreted in conformity with Union law? 
2. If interpretation must be in conformity with Union law, does a distinction 
[then] exist, when applying Directive 2003/109/EC, between the various 
dependents’ residence rights to which third-country nationals are entitled on the 
basis of Union law, including the dependent’s right of residence granted to a 
family member of a Union citizen on the basis of the Residence Directive and the 
right of residence on the basis of Article 20 TFEU? 
3. Is the right of residence on the basis of Article 20 TFEU, which by its nature 
depends on the existence [of] a relationship of dependency between the third-
country national and the Union citizen and is therefore finite, of a temporary 
nature?  
4. If the right of residence on the basis of Article 20 TFEU is of a temporary 
nature, must Article 3(2)(e) of the Directive [then] be interpreted as precluding 
national legislation which only excludes residence permits issued under national 
law from acquiring long-term residence status within the meaning of the 
Directive? 
Provisions of Union law cited 
Treaty on the Functioning of the European Union: Article 20 
Council Directive 2003/109/EC of 25 November 2003 concerning the status of 
third-country nationals who are long-term residents (OJ 2004 L 16, p. 44): 
Article 3(2)(e). 
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 (OJ 2004 L 158, p. 77): Articles 7, 16.  
Provisions of national law cited 
Vreemdelingenwet 2000 (Law on Foreign Nationals of 2000; ‘Vw 2000’): 
Article 8(e), Article 14 and Article 45b. 
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Brief summary of the facts and the procedure in the main proceedings 
1 The applicant was born on 30 November 1960 and has Ghanaian nationality. Her 
son, born on 10 February 2002, has Netherlands nationality. 
2 On 9 September 2013, on the basis of Article 20 TFEU, the applicant was granted 
an EU residence document bearing the endorsement ‘Family member of a citizen 
of the Union’. Since 2017, this is also referred to in the Netherlands as a Chavez-
Vilchez right of residence. 1 
3 On 18 February 2019, the applicant submitted an application for a long-term 
resident’s EU residence permit.  
4 By decision of 30 August 2019, the defendant rejected the applicant’s application 
for a long-term resident’s EU residence permit and for an ordinary fixed-term 
residence permit. The objection lodged against that rejection was declared 
unfounded by decision of 12 December 2019.  
5 On 8 January 2020, the Rechtbank (District Court) received the applicant’s notice 
of appeal against that decision. 
Main submissions of the parties to the main proceedings 
6 According to the defendant, it follows from the Singh, 2 Chavez-Vilchez 3 and 
K.A. 4 judgments that it is within the competence of the Member States to 
determine the rights and conditions of legal residence in their territory. It is 
therefore for the Member State to determine whether or not the right of residence 
on the basis of Article 20 TFEU should be deemed to be temporary.  
7 The defendant further claims that the applicant does not fall within the scope of 
Directive 2003/109. A right of residence on the basis of Article 20 TFEU is, by its 
nature, temporary, since such a right of residence ceases as soon as the Union 
citizen’s dependence on the third-country national ceases. It therefore constitutes 
residence on temporary grounds within the meaning of Article 3(2)(e) of Directive 
2003/109.  
8 The Chavez-Vilchez right of residence is of a temporary nature because that right 
of residence does not concern the rights of the applicant, but the rights of her 
child. The aim is to ensure that the applicant’s child does not have to leave the 
 
1 Reference to the judgment of the Court of Justice of 10 May 2017, Chavez-Vilchez and Others, 
C-133/15, EU:C:2017:354. 
2 Judgment of 18 October 2012, C-502/10, EU:C:2012:636, paragraphs 39-42. 
3 Chavez-Vilchez judgment, paragraph 64. 
4 Judgment of 8 May 2018, C-82/16, EU:C:2018:308, paragraphs 53-54. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-624/20 
 
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European Union. The right of residence is based on the relationship of 
dependency between the applicant and her minor child, which is, by definition, of 
a temporary nature. As a result, the applicant does not qualify for a national 
ordinary fixed-period residence permit.  
9 The applicant claims, first, that it does not follow from the Chavez-Vilchez and 
K.A. judgments that it is for the Member States to determine the nature of the right 
of residence. The term ‘temporary right of residence’ must be interpreted 
uniformly within the Union. The applicant refers in that regard to the Singh 
judgment.  
10 The applicant further claims that it does not follow from Directive 2003/109 that 
her derived right of residence is temporary. Only rights of residence which are 
clearly defined in advance as being temporary, such as rights of residence of 
students and au pairs, are excluded from that Directive. It does not follow from 
Directive 2003/109 that it is only in the case of autonomous, independent 
residence permits that a long-term resident’s EU residence permit must be 
granted.  
11 In addition, she claims that the possible ending of the dependency relationship in 
the future does not make her right of residence temporary. After all, her intention 
is to settle permanently. She does therefore fall within the scope of Directive 
2003/109. In her view, the rejection of her application is contrary to Article 3 of 
that Directive.  
12 The applicant further argues that the defendant is not competent to refuse her a 
permit. According to Article 45b(1)(a) of the Vw 2000, a long-term resident’s EU 
residence permit can only be refused if the person concerned has a temporary 
residence permit on the basis of Article 14 of the Vw 2000. The applicant does not 
hold a national residence permit but has an EU right of residence. None of the 
grounds for refusal laid down in Article 45b Vw 2000 are present and the 
defendant was therefore not entitled to refuse the application.  
Brief summary of the reasons for the referral 
13 The answer to the question of whether the right of residence on the basis of 
Article 20 TFEU is of a temporary nature is important in determining whether the 
defendant was entitled to reject the applicant’s application for a long-term 
resident’s EU residence permit.  
14 According to the Rechtbank, that question cannot be answered without reasonable 
doubt. In the case-law of the Court of Justice, the Rechtbank has found indications 
that the right of residence on the basis of Article 20 TFEU is not of a temporary 
nature. By contrast, on 23 September 2020 (NL:RVS:2020:2272), the Afdeling 
bestuursrechtspaak (Administrative Jurisdiction Division) of the Raad van State 
(Council of State) held that a right of residence derived from a minor child 
terminates, in principle, as soon as the child reaches the age of majority or as soon 
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as the child is no longer dependent on the care of the third-country national. 
According to the Raad van State, it is thus established in advance that the right of 
residence is temporary.  
Do Member States have the competence to determine the nature of the right of 
residence? 
15 First of all, the parties are divided on the question of whether the nature of the 
right of residence on the basis of Article 20 TFEU is a national matter or whether 
it must be interpreted in conformity with Union law. The Rechtbank sees no 
indications in the judgments of the Court of Justice referred to by the defendant 
that the interpretation of the nature of that right of residence is a matter of national 
law. In fact, according to the Rechtbank, it follows from that case-law that the 
question of whether a right of residence on the basis of Article 20 TFEU is of a 
temporary nature, must be interpreted uniformly within the European Union. It 
follows from those judgments that the determination of the rules governing a right 
of residence on the basis of Article 20 TFEU is a national matter, but not that the 
determination of the nature of the right of residence is also a national matter. As 
the Court of Justice considered in paragraph 54 of the K.A. judgment, those are 
rules of a procedural nature, such as rules on the way in which a third-country 
national can show that he is entitled to a Chavez-Vilchez right of residence. 
However, the question of whether the right of residence is of a temporary nature 
goes to the heart of the matter. The Rechtbank therefore questions whether it 
would be desirable for this to be decided by the Member States. After all, that 
would mean that a right of residence on the basis of Article 20 TFEU could lead to 
a permit on the basis of Directive 2003/109 being granted in one Member State 
and not in another Member State. That would create undesirable legal inequality. 
That is why the Rechtbank raises question 1.  
16 If the Court of Justice were to determine that the nature of the right of residence is 
a question governed by Union law, the Rechtbank asks the Court of Justice to 
answer the following questions as well.  
Is the right of residence on the basis of Article 20 TFEU of a temporary nature? 
– Derived rights of residence 
17 The defendant has taken the position that the fact that the right of residence on the 
basis of Article 20 TFEU is derived from the rights of a Union citizen, means that 
such a right of residence can never lead to permanent residence. That right exists 
only in order to ensure that the Union citizen does not have to leave the territory 
of the Union. It does not create any autonomous rights. 
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18 The Rechtbank finds that the Court of Justice has held in various judgments 5 that 
European Union law does not confer any autonomous rights on third-country 
nationals. Any rights conferred on them by the Treaty provisions on citizenship of 
the Union are not autonomous rights, but rights derived from the exercise of the 
right of a citizen of the Union to move and reside in the Union. That applies not 
only to rights derived from Article 20 TFEU, but also to rights derived from 
Directive 2004/38 (judgments in Eind, 6 Dereci, 7 Lida, 8 O. and B. 9 and Rendón 
Marín 10). 
19 However, the derived rights conferred on the basis of Directive 2004/38 on a 
third-country national who is a member of the family of a citizen of the Union 
may lead to permanent residence (see Article 16 of that Directive). That is subject 
to the condition that the third-country national who is a family member of a Union 
citizen has, like the Union citizen himself, had five years of legal residence in the 
host Member State on the basis of article 7 of Directive 2004/38.  
20 The question is therefore whether a distinction can be made between derived 
rights on the basis of directives and derived rights on the basis of Article 20 
TFEU. In his Opinion in Rendón Marín and CS, 11 the Advocate General also 
referred to possible inconsistencies in the treatment of the derived right of 
residence, depending on whether that right flows from Directive 2004/38 or from 
Article 20 TFEU, as interpreted in Ruiz Zambrano . 12 
21 On the other hand, the Rechtbank notes that the Member States themselves 
created the derived right of residence on the basis of Directive 2004/38. 
Furthermore, they themselves also agreed that third-country nationals who are 
members of the family of a citizen of the Union may be eligible for permanent 
residence on the basis of Directive 2004/38. Those rights are in fact laid down in 
Directive 2004/38. However, the derived right of residence on the basis of 
Article 20 TFEU has been developed in the case-law of the Court of Justice. That 
could be indicative of a difference in treatment between those derived rights of 
residence. The Rechtbank questions whether that is desirable. Moreover, the fact 
 
5 Chavez-Vilchez judgment, paragraph 62; judgments of 13 September 2016, Rendón Marín, 
C-165/14, EU:C:2016:675, paragraphs 72 and 73, and 13 September 2016, CS, C-304/14, 
EU:C:2016:674, paragraphs 27 and 28. 
6 Judgment of 11 December 2007, C-291/05, EU:C:2007:771, paragraph 23. 
7 Judgment of 15 November 2011, C-256/11, EU:C:2011:734, paragraph 55. 
8 Judgment of 8 November 2012, C-40/11, EU:C:2012:691, paragraphs 66-68. 
9 Judgment of 12 March 2014, C-456/12, EU:C:2014:135, paragraph 36. 
10 Judgment of 13 September 2016, C-165/14, EU:C:2016:675, paragraph 36. 
11 Opinion of Advocate General Szpunar in the Rendón Marín and CS cases, C-165/14 and 
C-304/14, EU:C:2016:75, paragraph 152. 
12 Judgment of 8 March 2011, C-34/09, EU:C:2011:124. 
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that other derived rights of residence may lead to permanent residence is, in the 
view of the Rechtbank, an indication that the mere fact that the right of residence 
on the basis of Article 20 TFEU is a derived right of residence is not in itself 
sufficient to establish that it is, by its nature, a temporary right of residence.  
– Directive 2003/109 
22 It is settled case-law of the Court of Justice that the content of the concept of 
‘legal residence’ in Directive 2003/109 and the conditions or rights pertaining 
thereto may be determined by the Member States. 13 If a third-country national has 
had five years of continuous legal residence prior to the application, a permit may 
be granted on the basis of that Directive. According to Article 3(2)(e) of Directive 
2003/109, that Directive does not apply to third-country nationals who reside in a 
Member State solely on temporary grounds such as au pair or seasonal worker, or 
as workers posted by a service provider for the purposes of cross-border provision 
of services, or as cross-border providers of services or in cases where their 
residence permit has been formally limited.  
23 It follows from the Singh judgment (paragraphs 45-50) that, in order to determine 
the nature of the right of residence, it is important to assess whether the third-
country national has any intention to settle on a long-term basis in the Member 
State concerned. If that is the case, it is an indication that the right of residence is 
not of a temporary nature.  
24 The examples given in Directive 2003/109 have in common that the third-country 
national concerned does not have any intention to settle in the Member State on a 
long-term basis. In each of those cases, the residence is of limited duration, with 
no close links being established with the Member State and the links with the 
country of origin being maintained. 14  
25 In determining whether a right of residence is of a temporary nature, the intention 
of the third-country national to settle in a country is therefore important. The 
question is why that would be any different for a right of residence on the basis of 
Article 20 TFEU than for any other right of residence that could lead to an EU 
right of residence. 
26 Indeed, according to Directive 2003/109, the intention of the third-country 
national to establish himself permanently in the Member State must be taken into 
account. The aim of that Directive is, in fact, the integration of third-country 
nationals in the Member State of residence. In the case of a right of residence on 
the basis of Article 20 TFEU, the third-country national has acquired the right of 
residence in order to ensure that the Union citizen can effectively exercise his 
 
13 See, for example, the Singh judgment, paragraph 39. 
14 See also the Opinion of Advocate General Bot in the Singh case, C-502/10, EU:C:2012:294, 
paragraph 48. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-624/20 
 
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citizenship rights. In practice, however, the consequence of this is that the third-
country national also undertakes activities which enable him or her to participate 
in society on a long-term basis, such as entering into employment contracts of 
indefinite duration, purchasing a house and investing time in building up and 
maintaining a social network. Moreover, in the case of a right of residence on the 
basis of Article 20 TFEU, the third-country national who is the parent of a Union 
citizen will, precisely because of the child who is a Union citizen – who, inter alia, 
goes to school, makes friends and plays sport in the Member State – establish 
strong and lasting links with the Member State. The integration of the parent in 
the Member State is, in fact, an important part of the child’s upbringing there.  
27 Even in the defendant’s assertion that the relationship of dependency ends at some 
point in the future, namely, when the child who is a Union citizen reaches the age 
of eighteen, and the right of residence is therefore of a temporary nature, the 
Rechtbank does not at this stage see any basis for the conclusion that a right of 
residence on the basis of Article 20 TFEU is, by its nature, temporary. It is thus 
unclear whether the aforementioned right of residence does in fact end as soon as 
the child who is a Union citizen reaches the age of eighteen. It is conceivable that 
an eighteen-year-old child who is still attending school may still have a 
relationship of dependency with his or her carer parent. Furthermore, there are 
other grounds for residence that may cease to exist at some point. Not all of those 
grounds for residence are of a temporary nature.  
28 In view of the doubts that exist on the question of whether the right of residence 
on the basis of Article 20 TFEU is temporary in nature, the Rechtbank raises 
question 2 and question 3. 
Has Article 3(2)(e) of Directive 2003/109 been correctly transposed into 
Netherlands law?  
29 If the answer to the third question is in the affirmative, the following is important. 
30 Article 3(2)(e) of Directive 2003/109 was transposed into Netherlands law by 
Article 45b of the Vw 2000. According to that Article, a temporary right of 
residence on the basis of a residence permit for a fixed period as referred to in 
Article 14 of the Vw 2000 (i.e. a national residence permit for a fixed period) is a 
ground for refusal of an EU permit as a long-term resident. A right of residence on 
the basis of Article 20 TFEU is not covered by that provision; after all, it is a right 
of residence on the basis of EU law. According to the Rechtbank, that means that 
Article 3(2)(e) of Directive 2003/109 has not been correctly transposed. The 
Netherlands appears to have chosen to interpret Article 3(2)(e) of the Directive in 
a more restrictive manner than is permissible.  
31 The question is how the Rechtbank should deal with this. According to settled 
case-law of the Court of Justice, although a directive has been incorrectly 
transposed and the national court has to interpret it in conformity with the 
directive, that interpretation in conformity with the directive cannot serve as the 
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basis for an interpretation of national law contra legem. 15 In the present case, 
national law appears to be more favourable to the third-country national than 
Directive 2003/109. Under national law, rights of residence which are of a 
temporary nature but are based on Union law cannot result in the refusal of a long-
term resident’s EU permit, whereas on the basis of that Directive, those rights of 
residence in fact exclude the third-country national from the scope of application 
of that Directive. The Rechtbank therefore asks the Court of Justice to give a 
preliminary ruling on question 4 as well.  
 
15  Judgment of 24 January 2012, Dominguez, C-282/10, EU:C:2012:33, paragraph 25.