Case C‑40/11

Yoshikazu Iida

v

Stadt Ulm

(Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg)

‛Articles 20 TFEU and 21 TFEU — Charter of Fundamental Rights of the European Union — Article 51 — Directive 2003/109/EC — Third-country nationals — Right of residence in a Member State — Directive 2004/38/EC — Third-country nationals who are family members of Union citizens — Third-country national neither accompanying nor joining a Union citizen in the host Member State and remaining in the citizen’s Member State of origin — Right of residence of a third-country national in the Member State of origin of a citizen residing in another Member State — Citizenship of the Union — Fundamental rights’

Summary – Judgment of the Court (Third Chamber), 8 November 2012

Citizenship of the Union — Provisions of the Treaty — Scope — Union citizen having made use of his right of freedom of movement — Condition of inclusion — Application of measures whose effect is to deny the genuine enjoyment of the substance of the rights conferred by the status of Union citizen — Refusal of the Member State of origin of a Union citizen to grant a right of residence under Directive 2004/38 to a family member who is a third-country national — Circumstance not sufficient to establish such a denial — Assessment from the point of view of Article 51 of the Charter of Fundamental Rights — Situation not covered by European Union law

See the text of the decision. (see paras 36-48)

Under Article 2(2)(d) 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, the status of ‘dependent’ family member of a Union citizen holding a right of residence is the result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence, so that, when the converse situation occurs and the holder of the right of residence is dependent on a third-country national, the third-country national cannot rely on being a ‘dependent’ relative in the ascending line of that right-holder with a view to having the benefit of a right of residence in the host Member State. (see para. 55)

Under Article 2(2)(a) 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, the spouse of a Union citizen who has exercised his right to freedom of movement is regarded as a ‘family member’ of that citizen. The person concerned does not have to satisfy any conditions other than that of being a spouse. Consequently, the spouse does not necessarily have to live permanently with the Union citizen in order to hold a derived right of residence. The marital relationship cannot be regarded as dissolved as long as it has not been terminated by the competent authority. That is not the case where the spouses merely live separately, even if they intend to divorce at a later date. (see paras 57, 58)

Article 3(1) 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 confers a derived right of residence only on family members of a Union citizen who accompany or join him. That requirement corresponds to the purpose of the derived rights of entry and residence provided for by Directive 2004/38 for family members of Union citizens, as otherwise the fact of its being impossible for the Union citizen to be accompanied or joined by his family in the host Member State would be such as to interfere with his freedom of movement by discouraging him from exercising his rights of entry into and residence in that Member State. Consequently, a right of residence cannot be granted on the basis of Directive 2004/38 to a third-country national who has neither accompanied to nor joined in the host Member State the member of his family who is a Union citizen who has made use of his freedom of movement. (see paras 61-63)