Judgment of the Court (Grand Chamber) of 15 November 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof, Austria) — Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike, Dragica Stevic v Bundesministerium für Inneres

(Case C-256/11) (1)

(Citizenship of the Union - Right of residence of nationals of third countries who are family members of Union citizens - Refusal based on the citizen’s failure to exercise the right to freedom of movement - Possible difference in treatment compared with EU citizens who have exercised their right to freedom of movement - EEC-Turkey Association Agreement - Article 13 of Decision No 1/80 of the Association Council - Article 41 of the Additional Protocol - ‘Standstill’ clauses)

(2012/C 25/33)

Language of the case: German

Referring court

Verwaltungsgerichtshof, Austria

Parties to the main proceedings

Applicants: Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike, Dragica Stevic

Defendant: Bundesministerium für Inneres

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Article 20 TFEU, Article 41(1) of the Additional Protocol of 23 November 1970 annexed to the Agreement establishing an Association between the European Economic Community and Turkey and on measures to be taken for their entry into force (JO 1972 L 293, p. 4), and Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, drawn up by of the Association Council set up by the aforementioned Agreement — Citizenship of the Union — Right of citizens of the Union and members of their families to reside freely in the territory of a Member State — Situation in which the citizen of the Union resides in the Member State of which he or she is a national — Conditions governing the granting of a residence permit to family members who are nationals of non-member countries.

Operative part of the judgment

1. European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that 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 citizen of the Union, which is a matter for the referring court to verify.

2. Article 41(1) of the Additional Protocol, signed in Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, must be interpreted as meaning that the enactment of new legislation more restrictive that the previous legislation, which, for its part, relaxed earlier legislation concerning the conditions for the exercise of the freedom of establishment of Turkish nationals at the time of the entry into force of that protocol in the Member State concerned must be considered to be a ‘new restriction’ within the meaning of that provision.

(1) OJ C 219, 23.07.2011.