EN Official Journal of the European Union CE 70/102

(2004/C 70 E/103)

WRITTEN QUESTION E-2463/03

by Professor Sir Neil MacCormick (Verts/ALE) to the Commission

(23 July 2003)

Subject: Under-age EU citizens

Can the Commission comment on the rights of under-age EU citizens in respect of residence within the Union? If an under-age EU citizen has parents who are not themselves EU citizens, it appears that the under-age EU citizen has no right of residence within the Union. This is because the rights do not apply to non-EU parents of EU under-age citizens. Does the Commission consider that this is an accurate statement of the position, and if so does it not consider that current arrangements are in violation of the Charter of Fundamental Rights of the European Union, Article 24(3)?

Answer given by Mr Vitorino au nom de la Commission

(25 September 2003)

An under-age Union citizen has the right to reside in another Member State as long as he/she fulfils the conditions for exercising the right of residence under Community legislation, i.e. being a worker (salaried or self-employed), a student or somebody with enough financial resources and a medical insurance.

Under Community legislation the right of residence of a Union citizen, except in the case of students, extends to his/her parents, regardless of their nationality, if they are dependent on the Union citizen. In the case of an under-age child, this is in general not the case, as usually it is the child who is dependent on the parents.

Nevertheless, if the under-age child fulfilled the conditions of right of residence recalled above and his/her parents were financially dependent on him/her, the parents would enjoy a right of residence under Community law.

However, in the recent Judgement of the Court of Justice of 17 September 2002 in Case C-413/99 Baumbast and R, the Court of Justice confirmed the principle whereby the provisions of Community law concerning free movement of persons must be interpreted in the light of the requirement for respect for family life, provided for by Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR), this respect being one of the basic rights recognised by Community law.

Applying this principle, the Court held that where children enjoy a right of residence in a Member State to follow courses of general education there in accordance with Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (1), this provision, if it is not to be deprived of its useful effect, must be interpreted as allowing the parent who has actual care of the children, irrespective of nationality, to remain with them so as to facilitate the exercise of that right, even if the parents are divorced or the parent who has Union citizenship is no longer a migrant worker in the host Member State.

It follows from this judgement that the parent, irrespective of nationality, who has actual care of the child, even if he or she is not gainfully employed in the host Member State, has the right of residence and cannot be obliged to prove that he or she has sufficient resources or healthcare insurance, because the right of residence is based not on Council Directive 90/364/EEC of 28 June 1990 on the right of residence (2) but on Article 12 of Regulation (EEC) No 1612/68, which does not impose such conditions.

Another interesting case, addressing the issue of rights parents can derive from their underage children, is being currently examined by the Court of Justice (Case C-200/02 Chen). The case concerns the right of residence of a Chinese mother of a baby girl who is Irish. The Chinese mother went to give birth to her child in Ireland in order for the child to acquire Irish nationality. Mother and daughter then moved to the United Kingdom where the Chinese mother claimed right of residence under Community legislation. The Court will ascertain whether the mother can derive her right of residence from her child, even if the child does not fulfil the conditions of right of residence and her mother is not dependent on her (in this case the baby is dependent on the mother). The answer given by the Court will clarify the issue.

(1) OJ L 257, 19.10.1968.

(2) OJ L 180, 13.7.1990.