OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 5 July 2007 1( )

Case C‑291/05

Minister voor Vreemdelingenzaken en Integratie

v

Rachel Nataly Geradina Eind

(Reference for a preliminary ruling from the Raad van State (Netherlands))

(Free movement of persons – Right of residence – Migrant worker returning to his State of origin – Right of a migrant worker’s daughter, who is a third-country national, to reside in her father’s State of origin when he returns to his home country – Regulation (EEC) No 1612/68, Directive 90/364/EEC and Article 18 EC)

I – Introduction

1. By order of 13 July 2005, the Raad van State (Council of State) Netherlands, referred to the Court of Justice under Article 234 EC for a preliminary ruling a number of questions on the interpretation of Community provisions on the free movement of persons, with particular reference to the right of residence of a third-country national who is a family member of a national of a Member State.

2. Those questions were raised in proceedings between the Minister voor Vreemdelingenzaken en Integratie (Netherlands Minister for Immigration and Integration) and Ms Rachel Nataly Geradina Eind, a national of Surinam and the daughter of a Netherlands national, concerning the lawfulness of a decision not to issue to Ms Eind a permit to reside in the Netherlands.

II – Legislative background

3. The Community legislation relevant to the questions submitted by the Raad van State is that which applied before the entry into force of Directive 2004/38/EC of the European Parliament and of the Council. ( )

4. Article 17 EC provides:

‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.’

According to Article 18(1) EC, ‘[e]very citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in [the EC] Treaty and by the measures adopted to give it effect.’

5. Article 39 EC provides as follows:

‘1. Freedom of movement for workers shall be secured within the Community.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

4. …’

6. Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, ( ) provides as follows in Article 1, with regard to access to employment:

‘1. Any national of a Member State, shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State.

2. He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as nationals of that State.’

7. Article 10(1) of that regulation, ( ) concerning workers’ families, provides as follows:

‘1. The following shall, irrespective of their nationality, have the right to instal themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a) his spouse and their descendants who are under the age of 21 years or are dependants;

(b) dependent relatives in the ascending line of the worker and his spouse.’

8. Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, ( ) provides, in particular, as follows:

‘Article 1

1. Member States shall, acting as provided in this directive, abolish restrictions on the movement and residence of nationals of the said States and of members of their families to whom Regulation (EEC) No 1612/68 applies.

…

Article 3

1. Member States shall allow the persons referred to in Article 1 to enter their territory simply on production of a valid identity card or passport.

2. No entry visa or equivalent document may be demanded save from members of the family who are not nationals of a Member State. Member States shall accord to such persons every facility for obtaining any necessary visas.

Article 4

1. Member States shall grant the right of residence in their territory to the persons referred to in Article 1 who are able to produce the documents listed in paragraph 3.

…

4. A member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the worker on whom he is dependent.’

9. Article 1 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence ( ) provides as follows:

‘1. Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community law and to members of their families as defined in paragraph 2, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.

…

2. The following shall, irrespective of their nationality, have the right to instal themselves in another Member State with the holder of the right of residence:

(a) his or her spouse and their descendants who are dependants;

(b) dependent relatives in the ascending line of the holder of the right of residence and his or her spouse.’

III – The facts and the questions submitted to the Court

10. In February 2000, Mr Runaldo Ruben Leonard Eind moved from the Netherlands, of which he is a national, to the United Kingdom, where he worked as an employee and where, in December of that year, he was joined by his daughter Ms R. N. G. Eind (born on 29 April 1989), she having come direct from Surinam, of which State she is a national.

11. By letter of 4 June 2001, the United Kingdom authorities informed Mr Eind that he was entitled to reside in the United Kingdom by virtue of Regulation No 1612/68. By letter of the same date, Ms Eind was informed that she was entitled to reside in the United Kingdom in her capacity as a member of a Community worker’s family. Mr Eind received a residence permit valid from 6 June 2001 to 6 June 2006.

12. On 17 October 2001, Mr Eind and his daughter entered the Netherlands. On 9 November 2001, Ms Eind registered with the police authorities and asked them to issue a permit for a specified period to enable her to reside with her father in that State.

13. By decision of 2 January 2002, the Staatssecretaris van Justitie (State Secretary for Justice) (Netherlands) rejected Ms Eind’s application on the ground that she did not hold a temporary residence permit, adding that she could not be granted a residence permit on the basis of her status as a member of the family of a ‘Community national’, that is to say, under national law, a national of a Member State entitled, under the EC Treaty, to enter and reside in another Member State. On the latter point, it was stated in the decision that Mr Eind could no longer be regarded as a ‘Community national’ since, after residing in another Member State and returning to the Netherlands, he had not carried on any effective and genuine activities in the Netherlands and could not be considered to be economically non‑employed within the meaning of Community law.

14. Ms Eind lodged an objection against that decision. On 21 May 2002, before the administrative commission assigned to deal with Ms Eind’s objection, Mr Eind stated that he had been in receipt of social assistance since his return to the Netherlands and that from the same date, for reasons of illness, he had neither been engaged in nor sought any employment. He added that he had had an interview on 7 May 2002 at the Banenmarkt (Employment Office) with a view to his re-entering the employment market and was awaiting a second interview.

15. The objection submitted by Ms Eind against the decision of 2 January 2002 was rejected by decision of the Staatssecretaris van Justitie of 5 July 2002, in which among other things it was stated that Mr Eind could not be regarded as economically non-employed within the meaning of Community law since he did not personally have adequate resources but was in receipt of social assistance.

16. However, on 20 October 2004 the Rechtbank te ’s‑Gravenhage (Court of The Hague) (Netherlands), referring to the judgments of the Court of Justice in Antonissen ( ) and Singh, ( ) set aside the second decision and referred the case to the Minister voor Vreemdelingenzaken en Integratie for the objection to be reviewed.

17. The Minister appealed against the judgment of the Rechtbank te ’s‑Gravenhage to the Raad van State, which, by order of 13 June 2005 (‘the order for reference’), stayed its proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) (a) If a national of a non-member State is regarded by a host Member State as a family member of a worker as referred to in Article 10 of Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community and if the validity of the residence permit granted by that Member State has not yet lapsed, does this mean that the Member State of which the worker is a national may not, for that very reason, deny the national of a non-member State the right of entry and residence on the return of the worker?

(1) (b) If the previous question has to be answered in the negative, is the Member State itself permitted to determine whether the national of the non-member State satisfies the conditions for entry and residence based on national law on his or her entry, or should that Member State first determine whether the national of the non-member State may still derive rights from Community law as a family member of the worker?

(2) Does it make any difference to the answers to the two preceding questions if, prior to his or her stay in the host Member State, the national of the non-member State has had no right of residence based on national law in the Member State of which the worker is a national?

(3) (a) If the Member State of which a worker (the reference person) is a national is permitted, on the worker’s return, to determine whether the conditions laid down in Community law for the issue of a residence permit as a family member are still fulfilled, does a national of a non-member State who is a family member of the reference person, who returns from the host Member State to the Member State of which he is a national in order to seek employment there, have a right of residence in the latter Member State and, if so, for how long?

(3) (b) Does that right also exist if the reference person does not [carry on any effective and genuine activities] in the latter Member State and cannot, or can no longer, be regarded as seeking employment, in the context of Council Directive 90/364/EEC of 28 June 1990 on the right of residence, given inter alia that the reference person is in receipt of a welfare benefit by virtue of his Dutch nationality?

(4) What significance for the answers to the previous questions is to be attached to the fact that the national of a non-member State is a family member of a citizen of the Union who has exercised the right he enjoys under Article 18 of the Treaty establishing the European Community and returned to the Member State of which he is a national?’

IV – Legal analysis

A – Questions 1 and 2

18. Questions 1 and 2 are stated to be based on the premiss that Ms Eind obtained in the United Kingdom a residence permit based on Article 10 of Regulation No 1612/68. The factual summary in the order for reference indicates that, by letter of 4 June 2001, Ms Eind was informed that she was entitled to reside in the United Kingdom as a family member of Mr Eind ‘on the same ground’ as that on which the latter’s right of residence was granted, namely ‘under Regulation [No 1612]’. ( )

19. By Question 1(a), the national court seeks essentially to ascertain whether the holding of such a permit, which has not yet lapsed, confers on the holder, a national of a non-member country, a right to enter and reside in the Member State of which her father is a national and to which he had returned (also referred to hereinafter as ‘the Member State in question’) after having carried on in the Member State which issued that permit (hereinafter also referred to as ‘the host Member State’) an activity as an employed person.

20. By Question 1(b), the referring court asks whether, if Question 1(a) is answered in the negative, the authorities of the Member State in question, when examining the application for entry and residence submitted by the national of the non-member country, must, before verifying whether the latter meets the conditions laid down by national law for entry into and residence in that State, assess whether that person, as a family member of the national of that State who has taken advantage of the freedom of movement for workers, derives from Community law a right to enter and reside in that State.

21. By Question 2, the Court is called on to clarify whether, for the purpose of answering the two preceding questions, it is of importance that the national of the non-member country, before residing in the host Member State, had not enjoyed in the Member State in question a right of residence based on national law.

22. The literal wording of those questions does not make their scope very clear. This explains the extremely differing ways in which the Commission and the governments which have submitted observations to the Court ( ) have understood, dealt with and suggested answers for those questions. In order better to understand their scope, it must be emphasised that, as is apparent from the grounds of the order for reference, ( ) they were raised by the national court to enable it to take a position on a defence argument which, in his appeal, the Minister based on the judgment given by the Court of Justice in Akrich. ( )

23. Stating that it follows from that judgment that a third-country national, married to a citizen of the Union, must lawfully reside in a Member State in order to be able to invoke, as a family member, the right to enter and reside in another Member State, ( ) the national court indicates that, according to the appellant Minister, Ms Eind, not having legally resided in the Netherlands before entering the United Kingdom, could not have acquired any right of residence in the United Kingdom under Article 10 of Regulation No 1612/68. ( )

24. That court states that ‘the Minister’s argument reveals that he believes he is not bound by the ruling [of the United Kingdom authorities] that the alien must be regarded as a family member of a Community national, since, prior to her stay in the United Kingdom, she had not had a right to reside in the Netherlands based on national law, there thus being no question of lawful residence, as referred to in the judgment in Akrich’. ( )

25. According to the national court, the appellant Minister’s argument thus ‘raises the question of the importance to be attached to the fact that [Ms Eind] was granted a residence permit in the United Kingdom under Article 10 of [Regulation No 1612/68]’ ( ) and means, in short, that Community law does not prevent the Member State in question from determining independently whether a family member of its national who took advantage of freedom of movement for workers – that family member having been able to reside in the host Member State on the basis of Community law – can also derive from Community law the right of entry to and residence in the first State. ( )

26. Essentially, in view of the Minister’s objection to the validity, from the Community law standpoint, of the residence permit issued in the United Kingdom to Ms Eind, in that it was based on Article 10 of Regulation No 1612/68, the national court seeks, by Questions 1 and 2, to ascertain whether the issue and continuing validity of that permit mean that the Netherlands authorities are required to allow Ms Eind to enter and reside in the territory of the Netherlands upon the return of her father to his home country, even if it were to be concluded that the permit in question, in the light of the circumstances referred to in Question 2 and of the Akrich judgment, was issued without the conditions for the application of the said Article 10 being fulfilled.

27. In that connection, it must immediately be observed that doubts exist as to the merits of the assumption made by the national court in submitting those questions, namely that the residence permit issued to Ms Eind by the United Kingdom authorities was based on Article 10 of Regulation No 1612/68.

28. In its written observations, the United Kingdom indicated that Ms Eind obtained a residence permit in the United Kingdom on the basis not of Article 10 of Regulation No 1612/68 but of United Kingdom law, more specifically of the Immigration (European Economic Area) Regulations 2000/2326, as a member of a family of a person who met the conditions for residence in the United Kingdom. In the same written observations and also at the hearing, the United Kingdom made it clear that Ms Eind was granted a right to reside in the United Kingdom on the basis of domestic provisions which reflected not a Community law obligation but rather a policy choice made by the national legislature. ( ) At the hearing, the United Kingdom representative indicated that the letter of 4 June 2001 sent by the United Kingdom authorities to Ms Eind on 4 June 2001 contains no express reference to Regulation No 1612/68 but only a reference to the relevant national provisions.

29. If those indications, which conflict with the order for reference, should be confirmed, Questions 1 and 2 would become devoid of purpose. However, it is incumbent on the national court to undertake a more comprehensive examination regarding the legal basis on which the United Kingdom authorities granted Ms Eind a residence permit.

30. In these preliminary-ruling proceedings, there is no alternative but to go along with the assumption made by the national court, namely that the residence permit in question was based on Article 10 of Regulation No 1612/68.

31. However, did the existence of such a permit mean that the Netherlands authorities were required to allow Ms Eind to enter and reside in the Netherlands, or not?

32. In my opinion, the answer to that question can only be negative.

33. It is not, in fact, the existence in itself of an unexpired residence permit issued by a host Member State to a third-country national as a family member of a Community worker who has moved there which bestows on that national, when the worker returns to the Member State of which he is a national, a right to enter that State and reside there with him.

34. In other words, when a Community worker returns to the State of which he is a national, the authorities of that State are not obliged to grant a residence permit to a third-country national who is a family member of that worker on the sole ground that, in the host State from which both have moved, the third-country national had obtained a residence permit under Article 10 of Regulation No 1612/68 and that permit has not yet expired.

35. The effect of a residence permit issued under Article 10 of Regulation No 1612/68 is clearly limited to the territory of the issuing Member State. That article deals with the right of certain family members ‘to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State’. That right derives, by virtue of kinship, from the Community worker’s right to move from one Member State to another in order to ‘take up an activity as an employed person’ and ‘to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State’ (Article 1(1) of Regulation No 1612/68). ( ) The territorial nature of residence permits issued for purposes of family reunification thus reflects the territorial nature of residence permits issued for the purpose of taking up activities as employed persons. ( )

36. A residence permit issued by one Member State is therefore valid for its own territory but not throughout the Community.

37. Moreover, as the Court of Justice has emphasised, the issue of a residence permit to a third-country national who is a family member of a Member-State national is to be regarded not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of a third country with regard to the provisions of Community law. ( ) I would add that that finding relates more specifically to the individual position of such a person in relation to the provisions of Community law regarding residence in the Member State which makes that finding.

38. It thus seems to me to be clear that a Member State of which the worker is a national will not, when the worker returns from the host Member State, be obliged to grant a family member of that worker who is a third-country national the right to enter and reside in its territory merely because the host State granted that family member a residence permit under Article 10 of Regulation No 1612/68. ( ) Furthermore, no Community law provision or principle requires that, once a Member State has, under that article, granted a right of family reunification in its territory for a worker who is a national of another Member State and a member of his family who is a national of a third country, the same right must thereafter be granted, irrespective of the specific circumstances and merely as a result of the first grant, by another Member State in which those two persons wish to instal themselves.

39. The authorities of the Member State of which the worker is a national will, rather, be authorised, and indeed even required, to assess independently whether the family member of the worker enjoys a right to enter and reside in the territory of that State, when the worker returns to that territory, on the basis of Community law, and in particular Article 10 of Regulation No 1612/68. ( )

40. The direct applicability of that regulation and the principle of the primacy of Community law over national law imply, in my view, that such an assessment must necessarily precede examination of the fulfilment of the conditions imposed by national law, outside the scope of Community law, for the grant of a right of entry to and residence in the territory of the State in question. And this, I believe, answers Question 1(b), posed by the national court in the event of a negative answer to Question 1(a).

41. The circumstance referred to in Question 2, whereby the third-country national who is a family member of the worker did not, before residing in the host Member State, enjoy any right of residence based on the national law of the Member State of which the worker is a national, clearly does not have any adverse impact on the conclusions which I have reached in points 38 to 40 above. That circumstance could only, if at all, militate against the binding nature, in the sense put forward in Question 1(a), of a residence permit under Article 10 of Regulation No 1612/68 issued by the host Member State to a family member of the worker. However, I have already ruled out in general terms, and therefore irrespective of the circumstance referred to, any possibility that such a permit could in itself oblige the Member State of which the worker is a national, when the latter returns from the host State, to grant that family member, if he or she is a third-country national, a right to enter and reside in its own territory. For the purpose of the answer to be given to Questions 1(a) and 1(b), it is not therefore relevant that the third-country national who is a family member of the worker did not, before residing in the host Member State, enjoy any right of residence based on national law in the Member State of which the worker is a national.

42. That said, the nature of that circumstance and the observations in the order for reference preceding Questions 1 and 2, in particular the reference to the Akrich judgment, make it appropriate to set out a number of further considerations in order to dispel any doubts which the national court might harbour, beyond the scope of the literal wording of those questions, regarding the relevance and applicability to this case of the principles deriving from that judgment.

43. In the Akrich judgment ( ) the Court, after noting that Regulation No 1612/68 covers only freedom of movement within the Community and that it ‘is silent as to the rights of a national of a non-member State, who is the spouse of a citizen of the Union, in regard to access to the territory of the Community’, held that ‘[i]n order to benefit in a situation such as that at issue in the main proceedings from the rights provided for in Article 10 of Regulation No 1612/68, the national of a non-Member State, who is the spouse of a citizen of the Union, must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated’.

44. Because Ms Eind came to the United Kingdom directly from the non-member country of which she is a national, and not from another Member State of the Community, it might initially be thought, on the basis of Akrich, that the United Kingdom authorities should not have issued her with a residence permit on the basis of Article 10 of Regulation No 1612/68. ( )

45. In that regard, Question 1(a), as to whether that residence permit is binding on the Netherlands authorities, could also be construed as seeking to ascertain whether the Netherlands authorities must necessarily, in view of that permit, consider that Ms Eind, when applying for residence in the Netherlands, satisfied the condition of prior legal residence in a Member State of the Community, as referred to in Akrich, or whether they were entitled, notwithstanding that permit, to regard that condition as unfulfilled, in view of the fact that, since Ms Eind did not, before reunification with her father in the United Kingdom, enjoy any right of residence based on domestic law either in the Netherlands or in any other Member State of the Community, the conditions for the issue of that permit were not satisfied.

46. In its recent judgment in Jia ( ) the Court clarified the scope of the Akrich judgment, regarding which Advocate General Geelhoed ( ) had drawn attention to an – at least apparent – conflict with other decisions, both earlier and later, in which the Court held that the right to enter and reside in the territory of the Member States enjoyed by nationals of a non-member country married to nationals of a Member State derived from the family ties alone. ( ) In the Jia judgment, the Court disaffirmed that the abovementioned condition of prior lawful residence mentioned in the Akrich judgment was generally applicable. ( ) The Court made it clear that ‘having regard to the judgment in Akrich, Community law does not require Member States to make the grant of a residence permit to nationals of a non-Member State, who are members of the family of a Community national who has exercised his or her right of freedom of movement, subject to the condition that those family members have previously been residing lawfully in another Member State.’ ( ) In other words, the Court considered that such a condition was closely linked to the particular facts of the Akrich case ( ) and could not be transposed to a case in which ‘it is not alleged that the family member in question was residing unlawfully in a Member State or that she was seeking to evade national immigration legislation illicitly’. ( )

47. As regards the position in the present case, in which there is no mention by the national court of any unlawful conduct on the part of the persons concerned, it must be conceded, given that Ms Eind was not residing unlawfully in a Member State before joining her father in the United Kingdom, that the principles deriving from the Akrich judgment did not prevent the United Kingdom authorities from issuing her with a residence permit based on Article 10 of Regulation No 1612/68. ( )

48. In the same way, because Ms Eind, before entering the Netherlands with her father, resided in the United Kingdom on the basis of a residence permit validly issued by the British authorities and was not therefore unlawfully resident in a Member State, the abovementioned principles did not prevent the Netherlands authorities from granting her a right to enter and reside in the Netherlands under Community law. ( )

49. A fortiori, the fact that Ms Eind, before her stay in the United Kingdom, enjoyed no right of residence in the Netherlands, whether based on Community law or on domestic law, cannot be a valid reason for denying her a residence permit in the Netherlands on the basis of Article 10 of Regulation No 1612/68 or other provisions of Community law that might be relevant.

50. I therefore suggest that the Court of Justice give the following answers to Questions 1 and 2 from the national court:

‘(1)(a) The fact that a national of a non-Member State is regarded by a host Member State as a family member of a worker, within the meaning of Article 10 of Regulation No 1612/68, and has as a result received from that State a residence permit under that article does not in itself, even if that permit is unexpired, oblige the Member State of which the worker is a national to grant the said third-country national, on the worker’s return to his home country, a right to enter and reside in its territory.

(1)(b) The Member State of which the worker is a national is required to assess whether the third-country national who is a family member of that worker enjoys, upon the latter’s return to his home country, a right to enter and reside in the territory of that State on the basis of Community law, before verifying whether or not such a right might be granted to that person on the basis of national law outside the scope of Community law.

(2) For the purpose of the answers to Questions I(a) and I(b), no importance attaches to the fact that the third-country national in question, before residing in the host Member State, enjoyed no right of residence based on the domestic law of the Member State of which the worker is a national. That fact does not preclude the issue by the latter State to the third-country national of a residence permit based on Community law.’

B – Questions 3 and 4

1. Preliminary considerations

51. The points raised by the national court in connection with Questions 3 and 4 are raised in case it is concluded – as, in my opinion, it should be concluded – that it is permissible for the authorities of the Member State of which the worker is a national to assess whether the third-country national who is a family member of the worker is to enjoy, when the latter returns to his home country, a right to reside in the territory of that State on the basis of Community law. The aim is to ascertain whether the conditions for the grant of such a right are satisfied in the case of a person whose circumstances are those of Ms Eind.

52. By Question 3(a), the national court seeks in essence to ascertain whether that right should be granted – and, if so, until when – if it can be concluded that the worker has returned to the Member State of which he is a national in order to seek work there.

53. By Question 3(b), the national court seeks essentially to ascertain whether the right in question may exist, on the basis of Article 1 of Directive 90/364 and notwithstanding the fact that the worker is in receipt of a social benefit in the Member State in question by virtue of his citizenship, even where the worker, after returning to his home country, has been unable to find work and can no longer be regarded as seeking work.

54. The purpose of Question 4 is essentially to ascertain whether it may be important, for the purpose of granting such a right, that the person concerned is a family member of a citizen of the Union who has exercised his right of movement and residence under Article 18 EC and returns to the Member State of which he is a national.

55. Before considering the merits of those questions, I would observe that the right of residence conferred by Community law on family members of a person who takes advantage of freedom of movement for persons is intended to remove any obstacle to the exercise of that right by such a person deriving from the inability of members of his family to accompany him or join him in the host Member State and the consequent adverse impact on family life. On the positive side, that right is intended to allow such a person better to integrate into the host Member State, thereby favouring the exercise of that freedom.

56. To that effect, the fifth recital in the preamble to Regulation No 1612/68 states that ‘the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires that … obstacles to the mobility of workers shall be eliminated, in particular as regards the worker’s right to be joined by his family and the conditions for the integration of that family into the host country’. ( ) The Court of Justice has observed that ‘the aim of Regulation No 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker’s family in the society of the host Member State’. ( ) For its part, the fifth recital in the preamble to Directive 90/364 indicates that ‘this right can only be genuinely exercised if it is also granted to members of the family’.

57. The right to family reunification provided for by Community law within the scope of the EC Treaty provisions on the free movement of persons within the Community therefore aims at guaranteeing the effective exercise of that freedom, ( ) and presupposes the existence of a situation in which it can be said that that freedom has been exercised.

2. Question 3(a): A family member’s right of residence under the provisions on the free movement of workers

58. Referring as it does to the return home of a ‘worker’ seeking ‘employment’, Question 3(a) concerns the possibility of granting a third-country national who is a family member of a worker returning to his State of origin a right of residence in the territory of that State (hereinafter also referred to as a ‘right of family reunification’) on the basis of the Community legislation on the free movement of workers.

59. Within that legislation, it is Article 10 of Regulation No 1612/68 that provides for and governs the right of family reunification. Therefore, the first question to be asked is whether in the present case the conditions are fulfilled for the application of that article, it being common ground that Mr Eind did not return to the Netherlands in order to respond to an actual offer of employment and did not work in that State between the time of his return (17 October 2001) and the date of the decision rejecting the objection submitted by his daughter against the refusal to grant the residence permit requested by her (5 July 2002), and whether it may nevertheless be concluded, as hypothesised in the order for reference, that he ‘returned to the Member State of which he is a national in order to seek employment there’. ( )

a) Conditions for the application of Article 10 of Regulation No 1612/68

60. The existence of a right of family reunification within the meaning of Article 10 of Regulation No 1612/68 presupposes, as correctly observed by the Commission in its written observations, not only that there is a recognised family relationship with a Community national but also that the latter can be classified as an employed person for the purposes of Article 39 EC and Article 1 of the same regulation.

61. Therefore, for Ms Eind to be entitled under Article 10 of Regulation No 1612/68 to reside in the Netherlands with her father on the latter’s return from the United Kingdom, it must first be possible to recognise that Mr Eind, after his return to his home country, is an employed person within the meaning of Article 39 EC and Article 1 of that regulation, with a right to reside in the Netherlands on that basis.

62. It must first be asked whether the recognition of such status for Mr Eind might be impeded by the fact that he is a national of the Netherlands. In other words, the question arises of the applicability of those provisions to the situation of a worker who returns to and intends residing in the Member State of which he is a national.

63. Article 1 of Regulation No 1612/68 refers, in terms, to the right of every national of a Member State to take up an activity as an employed person ‘within the territory of another Member State’ ( ) (a right which obviously carries with it the right to reside in that State), which could give the impression that that article does not grant a similar right with regard to the territory of the Member State of which the person concerned is a national.

64. Similarly, the literal wording of Article 10 of Regulation No 1612/68 might give the impression that it confers on specific family members of a worker a right to reside in a Member State other than that of which the worker is a national.

65. In another respect, the same literal wording of Articles 1 and 10 of that regulation might give the impression that the right to reside in a Member State contemplated by those articles attaches to a person and his family members only if that person is ‘employed’ in that State.

66. An analysis of the case-law of the Court shows, however, that the scope of those articles far exceeds what might be inferred from their literal wording.

i) May Articles 1 and 10 of Regulation No 1612/68 be relied on in order to claim a right of residence in the Member State of which the person concerned is a national?

67. In my opinion, the provisions of Regulation No 1612/68 may be invoked by such a person, provided that he is a ‘worker’ within the meaning of that regulation, also vis-à-vis the Member State of which he is a national, to ensure that both he himself and his family members are granted the right to reside in the territory of that State under conditions at least equivalent to those guaranteed to him by Community law in the territory of another Member State. ( )

68. First, no provision of Article 39 EC – in the light of which must be interpreted the provisions of Regulation No 1612/68, adopted, according to Article 49 of the EEC Treaty (now Article 40 EC), in order to clarify those provisions – ( ) limits the scope of workers’ freedom of movement to the territory of the Member States of which the worker is not a national. ( )

69. Second, according to the case-law of the Court, whilst the Treaty provisions on the free movement of persons and measures enacted in implementation of those provisions cannot be applied to activities that have no connection with any of the situations contemplated by Community law and of which all aspects are confined within a single Member State, it is also true that the provisions in question apply to any Community national, irrespective of his place of origin and nationality, who has exercised the right of free movement for workers and has worked in another Member State. The Court has therefore taken the view that Article 39 EC and Article 7 of Regulation No 1612/68 ( ) may also be relied on by a worker vis-à-vis the Member State of which he is a national in those cases where he has resided and been employed in another Member State. ( )

70. In particular, although in principle a national of a Member State enters and resides in the territory of that State by virtue of rights inherent in his citizenship and not those conferred on him by Community law, that does not change the fact that, in circumstances in which that national has gone to the territory of another Member State to be employed there, within the meaning of Article 39 EC, and returns to instal himself, for the purpose of working as an employee or self-employed person, in the territory of the Member State of which he is a national, the right to enter and reside in the latter State is also guaranteed to him by Article 39 EC and Article 43 EC respectively. As the Court of Justice observed in the Singh judgment, ‘a national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State’. ( )

71. Those considerations prompted the Court, again in its judgment in Singh, to conclude, among other things, that the spouse of a Community national who has availed himself or herself of the rights of movement and establishment conferred by Articles 48 and 52 of the EEC Treaty (now Articles 39 EC and 43 EC) ‘must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State’. ( )

72. Therefore, the fact that Mr Eind is a Netherlands national and can therefore claim a right of residence in that State under national law does not in itself convert his return to his home country into a purely internal situation which, as such, is not subject to the application of Community law. Indeed, it is necessary to verify, in order to determine whether Article 10 of Regulation No 1612/68 might be applicable to this case, whether or not his return home itself involves exercise of the freedom of movement of workers guaranteed by Article 39 EC and the abovementioned regulation.

ii) May Articles 1 and 10 of Regulation No 1612/68 be invoked even if the person concerned is not employed in the Member State in which he claims the right of residence?

73. In accordance with the Court’s case-law, the concept of ‘worker’, within the meaning of Article 39 EC and Regulation No 1612/68, has a specific Community meaning and must not be interpreted narrowly. A ‘worker’ must be considered to be any person who pursues activities which are effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. ( )

74. Moreover, that concept extends not only to a person moving to another Member State to respond to an actual offer of employment but also to a person who does so in order to seek employment there. ( )

75. As properly observed by the referring court itself, ( ) in Antonissen the Court took the view that ‘Article 48(3) [of the EC Treaty (now Article 39(3) EC)] must be interpreted as enumerating, in a non-exhaustive way, certain rights benefiting nationals of Member States in the context of the free movement of workers’ and that ‘that freedom also entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment’. The Court emphasised that ‘that interpretation of the Treaty [moreover] corresponds to that of the Community legislature, as appears from the provisions adopted in order to implement the principle of free movement, in particular Articles 1 and 5 of Regulation [No 1612/68], which presuppose that Community nationals are entitled to move in order to look for employment, and hence to stay, in another Member State’. ( )

76. If, therefore, a Community national may invoke Article 39 EC and Article 1 of Regulation No 1612/68 to claim the right to move to and reside in another Member State, including the one of which he is a national, to seek employment there, it remains to be seen whether his family members, falling within the categories mentioned in Article 10 of that regulation, may rely on the latter provision in order to claim the right to reside with him in the host Member State.

77. The Danish Government answered that question in the negative in its written observations. It considers that a Community national who goes to another Member State or returns to his State of origin to find employment there is indeed exercising freedom of movement for workers but cannot rely on Article 10 of Regulation No 1612/68 as regards members of his family. That article, it points out, was included in Title II of Part I of that regulation and, as the Court made clear in Collins, ( ) within that title the term ‘worker’ refers only to a person who is actually employed.

78. It is indeed true that in Collins the Court observed that ‘[t]he concept of “worker” is … not used in Regulation No 1612/68 in a uniform manner’ and that, ‘[w]hile in Title II of Part I of the regulation this term covers only persons who have already entered the employment market, in other parts of the same regulation the concept of “worker” must be understood in a broader sense’. ( ) Moreover, the Title II in question relates to ‘Employment …’ and the application of the relevant provisions would therefore appear to presuppose that ‘Eligibility for employment’, which is a matter governed by the preceding Title I, has already been achieved. ( )

79. Nevertheless, in my opinion that observation by the Court must be placed in context and nuanced.

80. First, it appears in the context of reasoning that essentially seeks to rule out the possibility that a national of a Member State who moves in search of employment to another Member State might be entitled to benefit, under Article 7(2) of Regulation No 1612/68, from the same social and tax advantages as national workers (that case concerned an allowance for persons seeking employment). The Collins judgment is not in any way concerned with the right of family members to accompany or join in the host Member State a Community national seeking work there.

81. Second, I would observe that Article 7(4) of Regulation No 1612/68, also in the abovementioned Title II, declares automatically void, where they lay down or authorise discriminatory conditions in respect of workers who are nationals of other Member States, clauses of collective or individual agreements or other collective regulations concerning, inter alia, ‘eligibility for employment’. This shows that in reality the question of access to employment is not wholly alien to Title II and that the distinction between the subject-matter of Title I and that of Title II is not as rigid as might at first sight appear.

82. The Court has observed that Article 10 of Regulation No 1612/68 is to be interpreted ‘in the context of the overall structure and purpose of that regulation’. ( ) It is one of the various provisions designed to facilitate pursuit of the aims laid down in Article 39 EC and must therefore, inter alia, allow a worker to move freely within the territory of the other Member States and to reside there in order to work or seek employment. According to the Court, ‘[i]t is apparent from the provisions of the regulation, taken as a whole, that in order to facilitate the movement of members of workers’ families the Council took into account, first, the importance for the worker, from a human point of view, of having his entire family with him and, secondly, the importance, from all points of view, of the integration of the worker and his family into the host Member State without any difference in treatment in relation to nationals of that Member State’. ( ) The Court has also indicated that, having regard to its context and the objectives it pursues, Article 10 of Regulation No 1612/68 cannot be interpreted restrictively. ( )

83. More generally, the Court has made it clear that it follows from the Council regulations and directives on free movement for employed and self-employed workers within the Community that, in particular, the Community legislature has recognised the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty. ( )

84. Now, it must be recognised that if it is impossible for family members of a person exercising the right to move to and reside in another Member State to seek employment, to accompany or join a close relative in the territory of that State, there is a risk that the effectiveness of that right will be compromised. It is not difficult to imagine a situation in which, where family members were not recognised as entitled to accompany the person concerned to the host State or join him there, the freedom of movement for the purpose of seeking employment would not in reality be exercised (for example, in the case of a person bringing up a young child alone). It must be borne in mind that residence in another Member State for the purpose of seeking employment may be legitimately extended for a considerable period (see in that regard points 109 to 115 below).

85. The need, when interpreting provisions of a Community regulation, to consider the requirements concerning general Community principles and in particular fundamental rights must also be borne in mind. ( ) Of importance in this case is the right to respect for family life, protected both under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (hereinafter the ‘ECHR’) and, in the case of minor children, under the Convention on the Rights of the Child signed in New York on 20 November 1989.

86. On the one hand, the Court of Justice has expressly affirmed that the right to respect for family life provided for in Article 8 of the ECHR forms part of the fundamental rights which, according to settled case-law that was reaffirmed in the preamble to the Single European Act and in Article 6(2) EU, are protected by Community law, ( ) and observed that, even though the ECHR does not grant the right to any alien to enter or reside in a particular country, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed by Article 8(1) of the ECHR. ( )

87. The Court has also emphasised the need to interpret Regulation No 1612/68 in the light of the requirement of respect for family life referred to in Article 8 of the ECHR. ( )

88. On the other hand, the Court recognised in its judgment in Parliament v Council that the Convention on the Rights of the Child binds each of the Member States and is one of the international instruments for the protection of human rights of which it takes account in applying general principles of Community law. ( ) In that regard, the Court found that the said convention ‘also recognises the principle of respect for family life’ and ‘is founded on the recognition, expressed in the sixth recital in its preamble, that children, for the full and harmonious development of their personality, should grow up in a family environment’. ( )

89. Article 9(1) of that convention thus provides that States Parties are to ensure that children are not separated from their parents against their will; from that obligation it follows, under Article 10(1), that applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification are to be dealt with by the States Parties in a positive, humane and expeditious manner. ( )

90. All the above interpretative factors prompt me to conclude that, notwithstanding its wording (in so far as it refers to family members of a ‘worker who is a national of a Member State and who is employed in the territory of another Member State’) ( ) and its inclusion in Title II of Part I of Regulation No 1612/68, Article 10 of that regulation is the basis for a right of family reunification in the host Member State not only for a Community national who has moved there to respond to an offer of actual employment but also for a Community national who has gone there to seek work.

91. In the alternative, in case it should be concluded that it is not possible to uphold the existence of a right of family reunification in the second case as well on the basis of an extensive interpretation of Article 10, I consider that it is possible to do so by the analogous application of that same provision, the rationale of which is such that it is perfectly acceptable to extend to the case of a person seeking employment the rules laid down by that provision for cases where the worker is actually employed.

92. Only as a further alternative would I observe that the right in question might in any event be inferred, on the basis of the principle of effectiveness or useful effect, from the provisions themselves – namely Article 39 EC and Article 1 of Regulation No 1612/68 – which confer on Community nationals the right to move to and reside in a Member State in order to seek employment there. ( ) The case-law of the Court of Justice on free movement of persons provides similar examples of rights of residence granted to family members, in the absence of a specific underlying provision, on the basis of the principle that the rights of residence granted to their spouses should be effective. ( )

93. From the foregoing considerations, it is apparent that the first part of Question 3(a) could be answered straight away to the effect that a third-country national who is a family member of a worker who returns from the host Member State to the State of which he is a national to seek employment there is entitled to reside in the latter State.

94. Before examining the second part of Question 3(a), which seeks clarification regarding the period for which such a right endures, I consider it necessary, however, to clear up a matter of great importance which was not taken into consideration by the national court when drafting the questions on which it seeks a preliminary ruling. ( )

iii) Does the right to family reunification under Article 10 of Regulation No 1612/68 continue to exist even where the worker returns to his home country for a purpose other than to work or seek work?

95. As the Commission has, in essence, submitted, a national of a Member State who has taken advantage of the freedom of movement for workers provided for in Article 39 EC and Article 1 of Regulation No 1612/68 in order to be employed in another Member State derives from those same provisions a right to re-enter and reside in the first State even where he does not intend or is not in a position to work or seek work. ( )

96. It is quite true that the right of a national of a Member State to return, with his spouse, to the Member State of which he is a national after being employed in the territory of another Member State has been recognised by the Court, in the abovementioned judgment in Singh, by virtue of Article 52 of the EEC Treaty (now Article 43 EC) and in consideration of the fact that the national in question was returning to instal himself in his own State in order to work on a self-employed basis.

97. However, that does not mean that in that judgment the Court made the existence, in Community law, of a person’s right to re-enter and reside in the Member State of which he is a national, after being employed in another Member State, conditional upon the performance, upon his return to the first State, of an economic activity on either an employed or a self-employed basis.

98. The Commission has rightly pointed out in its written observations that, on the basis of the case-law of the Court of Justice, although under Article 39 EC and Regulation No 1612/68 a worker is to be considered to be someone who, for a certain period of time, works for or under the direction of another person in return for remuneration and although, once the employment relationship has ended, the person concerned as a rule loses the status of worker, that status may nevertheless produce certain effects even after the employment relationship has ended. ( ) The rights enjoyed by a Community worker and his family members by virtue of Regulation No 1612/68, in the same way as the status of migrant worker, may continue to exist, in certain circumstances, even after the employment relationship has ended. ( )

99. Those rights include, in my opinion, the right of a migrant worker to re-enter and reside in the Member State of which he is a national after the employment relationship in the host Member State has come to an end.

100. It is true that such a right is generally recognised by national law as an inherent part of citizenship, inter alia in compliance with Article 3(2) of Protocol No 4 to the ECHR, signed in Strasbourg on 16 September 1963, according to which ‘[n]o-one shall be deprived of the right to enter the territory of the State of which he is a national’.

101. Nevertheless, it must be admitted that that right is also conferred by Community law, to the extent necessary to ensure the useful effect of the provisions guaranteeing free movement for workers. It is clear that a citizen of a Member State might be dissuaded from leaving his country of origin to take up employment in the territory of another Member State if he was not sure that he could one day return to the Member State of which he was a national, irrespective of any economic activity or efforts to find employment in the latter State.

102. The return of a Community worker from the host Member State to his State of origin, even if not for the purpose of seeking or performing work in the latter State, is therefore a situation which, far from being purely internal, is governed and provided for by Community law, more specifically by Article 39 EC and by Article 1 of Regulation No 1612/68.

103. Consequently, as I observed in points 76 to 90 above, since the family relationship required by Article 10 of that regulation exists, family workers of that worker can in my opinion also claim, on the basis of that article and irrespective of whether or not the worker is taking up or seeking employment in the State of which he is a national, a right to reside in the territory of that State when that worker returns there after having been employed in the host State. It is clear, in particular, that the Community right of the worker to return to his State of origin would not be effective if he could be dissuaded from exercising it by obstacles raised in that State to the residence of his closest family members.

104. Nor can it be contended, in contrast to the approach which I take, but as has been contended by the Netherlands and Danish Governments in their written observations, that the prospect of not being able to continue, on returning to one’s State of origin, family life together which may have started in the host State is not liable to dissuade a Community national from going to the host State in order to be employed there. In particular, the Netherlands Government asserted that Mr Eind could not see as a deterrent to the exercise of that freedom, by his going to the United Kingdom, the fact that it would be impossible for his daughter to reside with him once he returned home, since at the time of that move Ms Eind did not have a right to reside in the Netherlands.

105. I consider that the deterrent effect concerned derives simply from the prospect, for a national of a Member State who wishes to accept an offer of work in another Member State, of not being able, on returning to his State of origin, to continue living together with close relatives, ( ) a situation which may come into being – as a result of marriage, affiliation or, as in this case, family reunification – in the host State.

106. Take for example the case of a Community worker who has gone to another member State to be employed there, who has there married a national of a non-member State who is residing there lawfully and had a child with that person, to whom neither the worker’s State of origin nor the host State grants citizenship. Could one seriously tell such a worker that, on returning to his home country, he was not entitled to be accompanied by his spouse and child, who were third-country nationals, because, when he took the decision to go to the host State, no such relationships existed and therefore he could not have been dissuaded from going to that State by the impossibility of subsequent family reunification in the State of origin?

b) Conclusion regarding the application of Article 10 of Regulation No 1612/68 in a case such as this one

107. I consider therefore that, in reply to Question 3(a), it must be stated that a third-country national, who is a family member of a national of a Member State who returns to that State after being employed in another Member State, enjoys, under Article 10 of Regulation No 1612/68, a right to reside in the first State irrespective of whether or not the national of the Member State in question works or is seeking work in that State.

108. That right, as observed by the Commission, is vested in its holder without any time-limits other than those which might be inferred from the conditions in Article 10(a) and (b). In the case, as here, of a descendant of the worker, that right is available until the child reaches 21 years of age and, beyond that time, for so long as the descendant is dependent on the worker.

c) Duration of the right of residence under Article 10 of Regulation No 1612/68 for the family members of a person seeking employment

109. If the Court does not accept the solution I have outlined in point 107 above, but at least recognises that a third-country national, who is a family member of a national of a Member State who is returning to his home country from a host Member State to seek work there, is entitled to reside in the first State by virtue of Article 10 of Regulation No 1612/68, it is still necessary to define, in order to give a complete answer to Question 3(a), the period of time for which that right is available.

110. The Court has observed that Article 10 of Regulation No 1612/68 and Articles 1 and 4 of Directive 68/360/EEC ‘provide that the Member States must grant the spouse and children of such a person a right of residence equivalent to that granted to the person himself’. ( ) In particular, Article 4(4) of that directive provides that a family member who is not a national of a Member State is entitled to be issued with a residence document having the same validity as that issued to the worker on whom he is dependent. It follows that the Community rules confer on the spouses of migrant workers who are nationals of other Member States a right of residence ‘coextensive with that accorded to those workers’. ( )

111. It is therefore necessary to establish what time-limits apply to the right of residence granted for the purposes of seeking employment by Article 39 EC and Article 1 of Regulation No 1612/68.

112. This matter has been examined in the case-law of the Court. Since the judgment in Antonissen, the Court has observed that ‘the effectiveness of Article 48 [of the EEC Treaty (now Article 39 EC)] is secured in so far as Community legislation or, in its absence, the legislation of a Member State gives persons concerned a reasonable time in which to apprise themselves, in the territory of the Member State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged’. ( )

113. In the absence of any Community provision setting a time-limit for the residence of Community nationals seeking employment in a Member State, the Member States are therefore entitled to lay down a reasonable period for that purpose. ( ) The Court has already indicated that a period of six months is not, in principle, insufficient for that purpose, making it clear that ‘if after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State’. ( ) Therefore, national legislation requiring Community nationals seeking work automatically to leave national territory after expiry of the period laid down would be contrary to Community law. ( )

114. The period within which a Community national’s right to reside in a Member State may be exercised in order to seek employment there is therefore, in the absence of a Community provision specifying a period, the period determined by each Member State in compliance with the requirements imposed by Community law in that regard. In other words, it must be a reasonable period, the expiry of which cannot in any event be invoked against a Community national who proves that he is continuing to seek employment and has genuine chances of being engaged.

115. For so long as such a national is entitled to reside in a Member State in order to seek employment there, his family members within the categories listed in Article 10 of Regulation No 1612/68 will also be able, under that article, to avail themselves of a right to reside in that State.

116. The Netherlands legislation, as set out in the order for reference, ( ) conforms entirely with the requirements laid down by the case-law of the Court of Justice, in that it provides that the duration of the residence permit issued to an alien seeking employment is six months (a period which the Court considers, in principle, to be reasonable) and that that period is from time to time extended by three months where the alien shows that he is still seeking work and has a real possibility of finding work.

b) Suggested answer to Question 3(a)

117. I therefore suggest that the Court give the following answer to Question 3(a):

‘A third-country national who is a family member of a national of a Member State who is returning to that State after being employed in another Member State has, by virtue of Article 10 of Regulation No 1612/68 and provided that the required family relationship exists, a right to reside in the first State irrespective of whether the national of the Member State in question is working or seeking work in that State. That right attaches to its holder without any time-limits other than those which may be inferred from the conditions in Article 10(a) and (b) of that regulation.’

3. Questions 3(b) and 4: The family member’s right of entry and residence under Article 18 EC and Directive 90/364

118. The answer which I suggest for Question 3(a) – from which flows recognition in this case of Ms Eind’s right to reside with her father in the Netherlands by virtue of Article 10 of Regulation No 1612/68 – makes any analysis of Questions 3(b) and 4 superfluous. It is therefore only for the sake of completeness that I shall examine the point briefly.

119. Starting with Article 18 EC, I consider that it cannot, in itself, provide the foundation for a right on the part of Ms Eind to reside with her father in the Netherlands. I am of the opinion that, at least as regards the conditions for recognition of a right of residence in a Member State, the assertion of a legal writer to the effect that ‘a paradox of European citizenship in relation to the free movement of persons is the fact that much is announced but nothing beyond what exists is allowed’ is correct. ( )

120. Even if I disregard the fact that Ms Eind is not a citizen of the Union and confine myself to considering, first of all, the position of Mr Eind, who on the other hand is a citizen of the Union, I consider that the possibility of his being granted a right to reside in the territory of the Netherlands, on the basis of Article 18(1) EC alone, must be excluded.

121. Article 18(1) recognises that ‘every citizen of the Union shall have the right to move and reside freely within the territory of the Member States’, but this is ‘subject to the limitations and conditions laid down in [the EC] Treaty and by the measures adopted to give it effect’. This clearly implies, in my opinion, that such a right exists only when those ‘conditions’ are fulfilled and that its scope is also defined by those ‘limitations’.

122. The case-law of the Court of Justice seems to me, essentially, to exclude the possibility of granting a citizen of the Union a right to reside in the territory of any Member State on the basis of Article 18(1) EC alone.

123. Admittedly, the case-law is not short of statements displaying a degree of ambiguity and capable of leading to some confusion, such as the one to the effect that ‘the right to reside within the territory of the Member States under Article 18(1) EC … is conferred directly on every citizen of the Union by a clear and precise provision of the … Treaty’, for which reason it is possible to invoke Article 18(1) EC ‘[p]urely as a national of a Member State, and consequently a citizen of the Union’. ( ) In that regard, there has been mention in the legal literature of recognition by the Court, on the basis of suggestions to that effect made by its Advocates General, ( ) of the direct effect of that provision. In its judgment in Baumbast and R, the Court emphasised in particular that ‘the application of the limitations and conditions acknowledged in Article 18(1) EC in respect of the exercise of that right of residence is subject to judicial review’, and therefore ‘any limitations and conditions imposed on that right do not prevent the provisions of Article 18(1) EC from conferring on individuals rights which are enforceable by them and which the national courts must protect’. ( )

124. However, it emerges clearly from the case-law of the Court, and indeed from that referred to in the foregoing point, that the right of a citizen of the Union to move between and reside in the territory of the Member States, as provided for in Article 18(1) EC, is not unconditional but is granted only subject to the conditions laid down by the EC Treaty and by the relevant implementing provisions, ( ) to such an extent that ‘it is for the citizens of the Union to adduce the necessary evidence that they meet the conditions laid down in that regard by the relevant Community provisions’. ( )

125. It would therefore be better, in my opinion, to speak of the direct effect not of Article 18(1) EC as such, but rather of that provision combined with each of the other provisions of the EC Treaty or of secondary law that lay down the conditions for the existence of the right in question, which cannot therefore, as Community law stands at present, be regarded as conferred solely by virtue of European citizenship.

126. As the Court made clear in its judgment in Commission v Belgium ( ) regarding the legislation existing before the entry into force of Directive 2004/38, ‘[t]he conditions for the grant of a residence permit are governed, as regards employed persons, by Directive 68/360, as regards self-employed persons, by Directive 73/148, as regards students, by Directive 93/96, as regards employees and self-employed persons who have ceased their occupational activity, by Directive 90/365, and, as regards nationals of Member States who do not enjoy a right of residence under other provisions of Community law, by Directive 90/364’.

127. For the purpose of the proceedings before the national court, importance attaches not only to the legislation on employed workers already examined in relation to Question 3(a), but also to the provisions of Directive 90/364, to which Question 3(b) relates.

128. The right of residence within its territory which each Member State must grant to nationals of another Member State in accordance with the first subparagraph of Article 1(1) of that directive presupposes that those nationals have, for themselves and their family members, sickness insurance covering all risks in the host Member State and sufficient resources to avoid becoming a burden on the social assistance system of that State during their period of residence. ( )

129. Those conditions, read in the light of the fourth recital in the preamble to that directive, according to which beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State, are based on the idea that the exercise of the right of residence of citizens of the Union can be subordinated to the legitimate interests of the Member States. ( )

130. In the present case, Article 1 of Directive 90/364 is taken into consideration by the national court as a possible legal basis for the grant to Ms Eind, as a ‘dependent descendant’ of the holder of the right of residence under paragraph 2 of that article, of a right to reside in the Netherlands deriving from the right which, in theory, her father derives from the same article.

131. Therefore, in order for her to be able to take advantage of those provisions, it must be shown, specifically, that Mr Eind may claim a right to enter and reside in the Netherlands not only by virtue of Netherlands law and of his nationality but also by virtue of Article 1(1) of the directive in question.

132. In that connection, I would observe first of all that Directive 90/364 does not appear to be intended to grant Community nationals rights vis-à-vis the Member State of their nationality. From the third recital in its preamble, it is clear that it is intended to harmonise ‘national provisions on the right of nationals of the Member States to reside in a Member State other than their own’. It therefore seeks essentially to favour the movement of Community citizens towards Member States of which they are not nationals. That is explained by the fact that the right to reside in the Member State of which they are nationals is, as I have pointed out (see point 100 above), generally granted by national law, inter alia in compliance with obligations of international law.

133. Nevertheless, in the light of the objective which the directive, adopted on the basis of Article 235 EC, purports to pursue – as provided for in Article 3(c) of the EC Treaty and referred to in the first recital in the preamble to that directive, namely the abolition, as between Member States, of obstacles to freedom of movement for persons – and in the light of the requirement of respecting the general principle of equality, I consider it possible to adopt an extensive interpretation of the provisions of the directive such as to render it applicable also to persons who – residing in a Member State other than that of which they are nationals or because they were born there or moved there – wish to go to the Member State of which they are nationals, but cannot for that purpose rely on national law or other provisions of Community law.

134. For the purposes of an extensive interpretation of that kind, it is necessary to verify whether Mr Eind, and consequently his daughter, satisfy the conditions for them to enjoy a right of residence in the Netherlands under Directive 90/364.

135. The right of residence contemplated in Article 1(1) of that directive is conditional upon in particular the availability of ‘sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence’. Such availability, being a precondition for the right of residence at issue to exist, must logically antedate the exercise of that right. In other words, the person concerned must, when preparing to apply for permission to reside in the host Member State, demonstrate that he need not rely on economic assistance from that State in order to live there. His residence must not, essentially, give rise to excessive burdens for the finances of the State in which he wishes to reside (see the fourth recital in the preamble to the directive).

136. As the Court has observed, according to the literal wording of that provision ‘it is sufficient for the nationals of Member States to “have” the necessary resources, and that provision lays down no requirement whatsoever as to their origin’. ( ) Therefore, even a social security benefit may, in the abstract, represent a source of ‘sufficient resources’ within the meaning of Article 1 of Directive 90/364.

137. A Community national who receives from a Member State a social security benefit which is ‘exportable’ if he moves to another Member State, because no conditions of residence are attached to it, could of course rely, as against the latter State, on that benefit for the purposes of Article 1(1) of the directive in question, in order to demonstrate that he would not have to receive social security benefits from that host State.

138. A similar right would be available to such a national even against the State actually paying the benefit if it was to that State that he wished to go or to return. Indeed, if the right to receive that benefit does not presuppose residence of the national in that State, such residence would not give rise to additional burdens to the social security system of the State in question, which would in any event be required to pay the benefit even if its national were not residing in its territory.

139. In my opinion, therefore, the conditions for granting social security benefits are decisive. In the present case, the Court does not have sufficiently precise information regarding the conditions for the grant of the benefit paid by the Netherlands authorities to Mr Eind. Admittedly, the order for reference, in addition to mentioning that Mr Eind receives the benefit in question and has done so since he returned to the Netherlands, ( ) states that he ‘derives a right to a Netherlands welfare benefit from his Netherlands nationality’. ( ) However, given that the national court may not have been aware of the relevance of the conditions for the grant of the benefit for the purposes of this case, the possibility cannot be excluded that Mr Eind also obtained that benefit by virtue of his residence in the Netherlands.

140. If it should be found that that Netherlands State benefit accrues to Mr Eind by virtue of his Netherlands nationality, irrespective of the fact of his residence in the Netherlands, he could rely on that benefit to claim a right of residence in that State under Directive 90/364, and for his daughter with him. On the other hand, they could not do so if that benefit was granted to Mr Eind as a citizen residing in the Netherlands and was therefore dependent upon his being resident in that State.

141. Questions 3(b) and 4 should therefore be answered as follows, if the Court does not consider it superfluous to consider them:

‘3.(b) For the purposes of applying Article 1 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence, it is not in principle prohibited to take account, when verifying the availability of “sufficient resources” within the meaning of that article, of a welfare benefit paid in a Member State. In the case of a benefit paid to one of its nationals by the State from which, under the same article, a right of residence is claimed, that benefit cannot be taken into consideration in the abovementioned context if the grant of it presupposes that the beneficiary is resident in the territory of that State.

4. Article 18(1) EC does not grant Union citizens a right to enter and reside in the territory of the Member States on any basis other than the conditions laid down by the other provisions of the EC Treaty and the relevant implementing provisions. The fact that the third-country national is a family member of a person having the status of a Union citizen does not change the answer to be given to the foregoing questions.’

V – Conclusion

142. In the light of the foregoing considerations, I propose that the Court of Justice give the following answers to the questions submitted to it by the Raad van State:

1.(a) The fact that a national of a non-Member State is regarded by a host Member State as a family member of a worker, within the meaning of Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, and has as a result received from that State a residence permit under that article does not in itself, even if that permit is unexpired, oblige the Member State of which the worker is a national to grant the said third-country national, on the worker’s return to his home country, a right to enter and reside in its territory.

1.(b) The Member State of which the worker is a national is required to assess whether the third-country national who is a family member of that worker enjoys, upon the latter’s return to his home country, a right to enter and reside in the territory of that State on the basis of Community law, before verifying whether or not such a right might be granted to that person on the basis of national law outside the scope of Community law.

2. For the purpose of the answers to Questions 1(a) and 1(b), no importance attaches to the fact that the third-country national in question, before residing in the host Member State, enjoyed no right of residence based on the domestic law of the Member State of which the worker is a national. That fact does not preclude the issue by the latter State to the third-country national of a residence permit based on Community law.

3.(a) A third-country national who is a family member of a national of a Member State who is returning to that State after being employed in another Member State has, by virtue of Article 10 of Regulation No 1612/68 and provided that the required family relationship exists, a right to reside in the first State irrespective of whether the national of the Member State in question is working or seeking work in that State. That right attaches to its holder without any time-limits other than those which may be inferred from the conditions in Article 10(a) and (b) of that regulation.

3.(b) For the purposes of applying Article 1 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence, it is not in principle prohibited to take account, when verifying the availability of ‘sufficient resources’ within the meaning of that article, of a welfare benefit paid in a Member State. In the case of a benefit paid to one of its nationals by the State from which, under the same article, a right of residence is claimed, that benefit cannot be taken into consideration in the abovementioned context if the grant of it presupposes that the beneficiary is resident in the territory of that State.

4. Article 18(1) EC does not grant Union citizens a right to enter and reside in the territory of the Member States on any basis other than the conditions laid down by the other provisions of the EC Treaty and the relevant implementing provisions. The fact that the third-country national is a family member of a person having the status of a Union citizen does not change the answer to be given to the foregoing questions.