EN Official Journal of the European Union C 145/4

Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 28 January 2011 — Yoshikazu Iida v City of Ulm

(Case C-40/11)

2011/C 145/05

Language of the case: German

Referring court

Verwaltungsgerichtshof Baden-Württemberg

Parties to the main proceedings

Applicant: Yoshikazu Iida

Defendant: City of Ulm

Questions referred

A. Articles 2, 3 and 7 of Directive 2004/38/EC (1)

1. Does ‘family member’ include, in particular in the light of Articles 7 and 24 of the Charter of Fundamental Rights (‘the Charter’) and Article 8 of the ECHR on a broad interpretation of Article 2(2)(d) of Directive 2004/38/EC, a parent who is a third-country national and has custody of a non-dependent child who is a Union citizen enjoying freedom of movement?

2. If so, does Directive 2004/38/EC apply to that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR on a broad interpretation of Article 3(1) of the directive, even if he does not ‘accompany’ or ‘join’ the child who is a Union citizen and who has moved away from the Member State of origin?

3. If so, does that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, have a right of residence for more than three months in the Member State of origin of the child who is a Union citizen, on a broad interpretation of Article 7(2) of Directive 2004/38/EC, at least where a right of custody exists and is actually exercised?

B. Article 6(1) EU in conjunction with the Charter

1.(a) Is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter if the subject-matter of the dispute depends on a national law (or part of a law) which partly — but not only — transposed directives?

1.(b) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter because the applicant could enjoy a right of residence under Union law and could accordingly claim, under the first sentence of Paragraph 5(2) of the Freizügigkeitsgesetz/EU (Law on the Freedom of Movement of Union Citizens), a residence card of a family member of a Union citizen which has its legal basis in the first sentence of Article 10(1) of Directive 2004/38/EC?

1.(c) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter, in accordance with the ERT case-law (Case C-260/89, paragraphs 41-45), where a Member State restricts the right of residence of the father who is a third-country national and has custody of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation?

2.(a) If the Charter does apply, does Article 24(3) of the Charter directly accord a right of residence under European Union law to the father who is a third-country national, at least if he holds and actually exercises the right of custody of his child who is a Union citizen, even though the child resides predominantly in another EU Member State?

2.(b) If not, does it follow from the freedom of movement of the child who is a Union citizen that under Article 45(1) of the Charter, possibly in conjunction with Article 24(3) of the Charter, the father who is a third-country national has a right of residence under European Union law, at least if he holds and actually exercises the right of custody of his child who is a Union citizen, so that in particular the freedom of movement of the child who is a Union citizen is not deprived of its practical effect?

C. Article 6(3) EU in conjunction with the general principles of Union law

1. Can the ‘unwritten’ EU fundamental rights developed in the Court’s case-law from the Stuttgart Stauder case (Case 29/69, paragraph 7) to, for example, Mangold (Case C-144/04, paragraph 75) be fully applied even if the Charter is not applicable in the specific case? In other words, do the fundamental rights which continue to apply as general principles of Union law under Article 6(3) EU stand autonomously and independently alongside the new fundamental rights laid down in the Charter in accordance with Article 6(1) EU?

2. If so, can a right of residence under European Union law be inferred, with a view to the effective exercise of the right of custody, from the general principles of Union law, in particular in the light of the right to respect for family life under Article 8 of the ECHR, for a father, who is a third-country national, of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation?

D. Article 21(1) TFEU in conjunction with Article 8 of the ECHR

If Article 6(1) or (3) EU does not accord the applicant a right of residence under European Union law, in accordance with the ruling in Zhu and Chen (Case C-200/02, paragraphs 45-47) can a right of residence under European Union law be inferred, with a view to the effective exercise of the right of custody, from the freedom of movement enjoyed by a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation, for the father, who is a third-country national, in the Member State of origin of the child?

E. Article 10 of Directive 2004/38/EC

If a right of residence under European Union law is taken to exist, is a parent who is a third-country national in the applicant’s situation entitled to the issue of a ‘residence card of a family member of a Union citizen’, if necessary in accordance with the first sentence of Article 10(1) of the directive?

(1) 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 (Text with EEA relevance) (OJ 2004 L 158, p. 77).