Case C-551/07: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 11 December 2007 — Deniz Sahin v Bundesminister für Inneres
Date: 2007-12-11
Institutions: Court of Justice
Subjects: Austria, admission of aliens, free movement of persons, interpretation of the law, nationality, right of asylum

8.3.2008

EN

Official Journal of the European Union

C 64/19

Questions referred

Defendant: Bundesminister für Inneres

1. Are there extraordinary circumstances within the meaning of
Article 5(3) of Regulation (EC) No 261/2004 of the Euro-
pean Parliament and of the Council of 11 February 2004
establishing common rules on compensation and assistance
to passengers in the event of denied boarding and of cancel-
lation or long delay of flights, and repealing Regulation (EEC)
No 295/91 (1), having regard to the 14th recital
in the
preamble to the regulation, if a technical defect in the aero-
plane,
in particular damage to the engine, results in the
cancellation of the flight, and must the grounds of excuse
under Article 5(3) of the regulation be interpreted in accord-
ance with the provisions of Article 19 of
the Montreal
Convention?

2. If the answer to the first question is in the affirmative, are
there extraordinary circumstances within the meaning of
Article 5(3) of Regulation No 261/2004 where air carriers
cite technical defects as a reason for flight cancellations with
above average frequency,
their
frequency?

solely on the basis of

3. If the answer to the first question is in the affirmative, has
an air carrier taken all ‘reasonable measures’ in accordance
with Article 5(3) of Regulation No 261/2004 if it establishes
that the minimum legal requirements with regard to mainte-
nance work on the aeroplane have been met and is that suffi-
cient
the obligation to pay
compensation in accordance with Article 5 in conjunction
with Article 7 of the regulation?

to relieve the air carrier of

4. If the answer to the first question is in the negative, are
of
extraordinary
circumstances within
Article 5(3) of Regulation No 261/2004 cases of
force
majeure or natural disasters, which were not due to a tech-
nical defect and are thus unconnected with the air carrier?

the meaning

(1) OJ 2004 L 46, p. 1.

for

Reference
from the
preliminary
Verwaltungsgerichtshof (Austria) lodged on 11 December
2007 — Deniz Sahin v Bundesminister für Inneres

ruling

a

(Case C-551/07)

(2008/C 64/28)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Deniz Sahin

Questions referred

1.

64/221/EEC,

the European Parliament and of

(a) Must Articles 3(1), 6(2) and 7(1)(d) and (2) of Directive
2004/38/EC of
the
Council of 29 April 2004 on the right of citizens of the
Union and their family members to move and reside
freely within the
the Member States
territory of
amending Regulation (EEC) No 1612/68 and repealing
72/194/EEC,
Directives
73/148/EEC,
90/364/EEC,
90/365/EEC and 93/96/EEC (1) — ‘the Directive’ — be
interpreted as meaning that they also apply to family
members within the meaning of Article 2(2) of
the
Directive who arrived in the host Member State (Article
2(3) of the Directive) independently of the citizen of the
Union and only became a family member or took up
family life with the citizen of the Union in that Member
State?

68/360/EEC,
75/35/EEC,

75/34/EEC,

(b) If this is so, does it also depend on whether the family
member was lawfully resident in the host Member State
at the moment he became a family member or took up
family life? If the answer is in the affirmative, can resi-
dence be considered lawful
the family member is
entitled to stay solely on the basis of his status as an
asylum seeker?

if

(c) If the answer to Questions 1(a) and (b) is that a family
member who arrived in the host Member State indepen-
dently of the citizen of the Union and became a family
member or took up family life with the citizen of the
Union only in that Member State does not have a right
of residence under the Directive if he is entitled to stay
‘merely’ on the basis of his status as an asylum seeker:
irrespective of the above, do Articles 18 EC and 39 EC,
respectively, read in the light of the fundamental right to
respect for family life, give rise to a right to residence in
circumstances in which the family member has been
staying in the host Member State for nearly four years
and has been married for a year to a citizen of the Union
with whom he has been living for approximately three
and a half years and with whom he has a 20-month-old
child?

2. Do Articles 9(1) and 10(1) of

the Directive preclude a
national provision under which family members of a citizen
of the Union who are not nationals of a Member State and
who, in accordance with Community law, and in particular
Article 7(2) of
the Directive, have a right of residence,
cannot be issued with a residence card (‘Residence card of a
family member of a Union citizen’) only because they are
entitled (temporarily) to reside in the host Member State
under that State's asylum laws?

(1) OJ L 158, p. 77.