Case C-87/12

Kreshnik Ymeraga and Others

v

Ministre du Travail, de l’Emploi et de l’Immigration

(Request for a preliminary ruling from the Cour administrative)

‛Citizenship of the Union — Article 20 TFEU — Right of residence of third-country nationals who are family members of a Union citizen who has not exercised his right of freedom of movement — Fundamental rights’

Summary — Judgment of the Court (Second Chamber), 8 May 2013

Fundamental rights — Charter of Fundamental Rights of the European Union — Respect for private and family life — Refusal of right of residence to family members of a Union citizen who are nationals of third countries — Situation not coming within the field of application of European Union law — Assessment with regard to the European Convention for the Protection of Human Rights — Responsibility for assessment lies with the national court

Citizenship of the Union — Provisions of the Treaty — Scope — Union citizen who has never exercised his right of freedom of movement — Condition of inclusion — Application of measures which have the effect of denying him the genuine enjoyment of the substance of the rights conferred by virtue of his status as citizen of the Union — Criterion for appraisal — Measures having the effect of obliging the citizen to leave the territory of the European Union — Refusal of right of residence to members of his family who are third-country nationals — Insufficient circumstances to establish that denial

Citizenship of the Union — Right to move and reside freely on the territory of the Member States — Directive 2004/38 — Beneficiaries — Family members of a Union citizen who are third-country nationals — Condition — Union citizen who has exercised his right of freedom of movement — Application of Directive 2003/86 to family members of a Union citizen — Not included

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 a family member who is a Union citizen and has never exercised his right of freedom of movement as a Union citizen, always having resided as such in the Member State of which he holds the nationality. (see para. 33)

Article 20 TFEU must be interpreted as not precluding a Member State from refusing to allow a third-country national to reside in its territory, where that third-country national wishes to reside with a family member who is a European Union citizen residing in the Member State of which he holds the nationality and has never exercised his right of freedom of movement as a Union citizen, provided 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 Union citizen. In this respect, 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 38, 45, operative part)