Case C-25/08 P: Order of the Court of 13 November 2008 — Giuseppe Gargani v European Parliament (Appeal — Action brought by the Chairman of the Committee on Legal Affairs of the Parliament against the action of the President of the Parliament which led to the submission of observations in the name of the Parliament in a matter which related to a reference for a preliminary ruling — Time-limit for initiating proceedings)
Date: 2008-11-13
Institutions: Court of Justice
Subjects: European Parliament, President of the EP, appeal, appeal to the Court (EU), operation of the Institutions, rules of procedure

C 44/24

EN

Official Journal of the European Union

21.2.2009

Parties to the main proceedings

Applicant: Deniz Sahin

Defendant: Bundesminister für Inneres

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof
(Austria) — Interpretation of Articles 18 EC and 39 EC, as well
as Articles 3(1), 6(2), 7(1)(d) and (2), 9(1) and 10(1) of Directive
2004/38/EC of the European Parliament and 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 territory
of the Member States amending Regulation (EEC) No 1612/68
and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC,
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC
and 93/96/EEC (OJ 2004 L 158, p. 77) — Right of residence of
a national of a non-member country who entered the territory
of a Member State as an asylum seeker and subsequently
married a national of another Member State

Operative part of the order

68/360/EEC,

1. Articles 3(1), 6(2) and 7(1)(d) and (2) of Directive 2004/38/EC
of the European Parliament and 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 territory of the Member States
amending Regulation (EEC) No 1612/68 and repealing Directives
73/148/EEC,
64/221/EEC,
75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
93/96/EEC must be
interpreted as applying also to family
members who arrived in the host Member State independently of
the Union citizen and acquired the status of
family member or
started to lead a family life with that Union citizen only after
arriving in that State. In that regard, the fact that, at the time the
family member acquires that status or starts to lead a family life, he
resides temporarily in the host Member State pursuant to that
State's asylum laws has no bearing.

72/194/EEC,

Order of the Court of 13 November 2008 — Giuseppe
Gargani v European Parliament

(Case C-25/08 P) (1)

(Appeal — Action brought by the Chairman of the Committee
on Legal Affairs of the Parliament against the ‘action’ of the
President of the Parliament which led to the submission of
observations in the name of the Parliament in a matter which
related to a reference for a preliminary ruling — Time-limit
for initiating proceedings)

(2009/C 44/40)

Language of the case: German

Parties

Appellant: Giuseppe Gargani
Rechtsanwalt)

(represented by: W. Rothley,

Other party to the proceedings: European Parliament (represented
by: J. Schoo and H. Krück, agents)

Re:

Appeal brought against the Order of the Court of First Instance
(Third Chamber) of 21 November 2007, Gargani v Parliament
in which the Court of First Instance dismissed as
(T-94/06),
manifestly inadmissible the action brought by the Chairman of
the Committee on Legal Affairs of the European Parliament,
seeking a declaration of unlawfulness in relation to the decision
of the President of the European Parliament to submit written
observations in the name of the Parliament, in accordance with
the second paragraph of Article 23 of the Statute of the Court,
in the context of a reference for a preliminary ruling, contrary
to the advice of the Commission of Legal Affairs, and his refusal
to submit the issue to plenary

2. Articles 9(1) and 10 of Directive 2004/38 preclude a national
provision under which family members of a Union citizen who are
in accordance with
not nationals of a Member State and who,
Community law, and in particular Article 7(2) of the directive,
have a right of residence, cannot be issued with a residence card of
a family member of a Union citizen solely because they are entitled
temporarily to reside in the host Member State under that State's
asylum laws.

Operative part of the order

1. The appeal is dismissed.

2. Mr Gargani is ordered to pay the costs.

(1) OJ C 64, 8.3.2008.

(1) OJ C 79, 29.3.2008.