Case C-127/08: Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 25 March 2008 — Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska v Minister for Justice, Equality and Law Reform
Date: 2008-03-25
Institutions: Court of Justice
Subjects: European citizenship, foreign national, freedom of movement, interpretation of the law, mixed marriage, residence permit

9.5.2008

EN

Official Journal of the European Union

C 116/19

5. Given that:

Parties to the main proceedings

— Article 6(2) and (5) OLW (2) lays down rules affording
persons who do not have Netherlands nationality, but
are in possession of a permanent Netherlands residence
permit, equal treatment with Netherlands nationals

Applicants: Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng,
Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal
Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke
Chinedu, Henry Igboanusi, Roksana Batkowska

and

— those rules require refusal to surrender such classes of
persons if the EAW concerns the enforcement of an
irreversible custodial sentence,

does Article 6(2) and (5) OLW result in discrimination prohib-
ited by Article 12 EC, in that the aforementioned equal treat-
ment does not apply equally to nationals of other Member
States with a right of residence under Article 18(1) EC who will
not forfeit that right of residence as a result of the imposition
on them of an irreversible custodial sentence, but who are not
in possession of a permanent Netherlands residence permit?

(1) Council Framework Decision 2002/584/JHA of 13 June 2002 on the
European arrest warrant and the surrender procedures between
Member States (OJ 2002 L 190, p. 1).

(2) Overleveringswet (Staatsblad 2004, 195, as subsequently amended).

Reference for a preliminary ruling from High Court of
Ireland (Ireland) made on 25 March 2008 — Blaise Baheten
Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten,
Samuel Zion Ikeng Baheten, Hencheal
Ikogho, Donna
Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry
for Justice,
Igboanusi, Roksana Batkowska v Minister

Equality and Law Reform

(Case C-127/08)

(2008/C 116/34)

Defendant: Minister for Justice, Equality and Law Reform

Questions referred

1. Does Directive 2004/38/EC (1) permit a Member State to
have a general requirement that a non-EU national spouse of
a Union citizen must have been lawfully resident in another
Member State prior to coming to the host Member State in
order that he or she be entitled to benefit from the provi-
sions of Directive 2004/38/EC.

2. Does article 3(1) of Directive 2004/38/EC include within its

scope of application a non-EU national who is:

(i) a spouse of a Union citizen who resides in the host
Member State and satisfies a condition in article 7(1)(a),
(b) or (c) and

(ii) is then residing in the host Member State with the Union

citizen as his/her spouse

irrespective of when or where their marriage took place or
when or how the non-EU national entered the host Member
State.

3. If the answer to the preceding question is in the negative
does article 3(1) of Directive 2004/38/EC include within its
scope of application a non-EU national spouse of a Union
citizen who is:

(i) a spouse of a Union citizen who resides in the host
Member State and satisfies a condition in article 7(1)(a),
(b) or (c); and

(ii) resides in the host Member State with the Union citizen

as his/her spouse; and

(iii) has entered the host Member State independently of the

Union citizen; and

Language of the case: English

(iv) subsequently married the Union citizen in the host

Referring court

High Court of Ireland

Member State.

(1) OJ L 158, p. 77.