CELEX: 62012CC0086
Language: en
Date: 2013-03-21
Title: Opinion of Mr Advocate General Mengozzi delivered on 21 March 2013. # Adzo Domenyo Alokpa and Others v Ministre du Travail, de l'Emploi et de l'Immigration. # Reference for a preliminary ruling: Cour administrative - Luxembourg. # Citizenship of the Union - Articles 20 TFEU and 21 TFEU - Directive 2004/38/EC - Right of residence of a third-country national who is a direct relative in the ascending line of Union citizens who are minor children - Union citizens born in a Member State other than that of which they are nationals and who have not made use of their right of freedom of movement - Fundamental rights. # Case C-86/12.

OPINION OF ADVOCATE GENERAL
      MENGOZZI
      delivered on 21 March 2013 (
            1
         )
      
         Case C‑86/12
      
      
         Adzo Domenyo Alokpa
      
      
         Jarel Moudoulou
      
      
         Eja Moudoulou
      
      
         v
      
      
         Ministre du Travail, de l’Emploi et de l’Immigration
      
      
         (Request for a preliminary ruling from the Cour administrative (Luxembourg))
      
      ‛Citizenship of the Union — Articles 20 TFEU and 21 TFEU — Directive 2004/38 — Right of residence — Minor children with the nationality of one of the Member States and dependent on a relative in the ascending line who is a national of a non-Member State — Refusal of a Member State to grant a right of residence, to grant a residence permit and to issue a work permit — Implications for the effective enjoyment of the rights attaching to the status of citizen of the Union’
      
         I – Introduction
      
      
               1.
            
            
               This request for a preliminary ruling, made by the Cour administrative (Luxembourg) (Higher Administrative Court, Luxembourg), relates to the interpretation of Article 20 TFEU, potentially undertaken in the light of fundamental rights, although it is primarily concerned with the satisfaction of the conditions laid down by Directive 2004/38/EC. (
                     2
                  )
            
         
               2.
            
            
               The question referred to the Court for a preliminary ruling has been raised in the context of a dispute between Ms Alokpa, a Togolese national, and her two children, born in Luxembourg and holding French nationality, and the Ministre du Travail, de l’Emploi et de l’Immigration (Minister for Labour, Employment and Immigration) of the Grand Duchy of Luxembourg concerning the latter’s decision, first, to refuse to grant Ms Alokpa a right of residence in Luxembourg and, second, ordering her to leave the country.
            
         
               3.
            
            
               More specifically, after her application for international protection was rejected by the Luxembourg authorities and courts, Ms Alokpa applied for discretionary leave to remain, which was initially likewise refused. However, in view of the premature birth of her twins in Luxembourg (Luxembourg) on 17 August 2008, Ms Alokpa was granted such leave to remain until 31 December 2008. Some days after their birth, Mr Moudoulou, a French national, acknowledged paternity of the twins and they were issued with French passports and national identity cards on 15 May and 4 June 2009 respectively.
            
         
               4.
            
            
               In order to regularise her status, on 6 May 2010 the applicant in the main proceedings applied to the Luxembourg authorities for a residence permit as a family member of European Union citizens. After receiving supplementary information from Ms Alokpa concerning the reasons which prevented her from settling with her children in France, where the children’s father resides, by decision of 14 October 2010 those authorities rejected that application, stating that neither Ms Alokpa nor the twins satisfied the conditions laid down by the Luxembourg law which transposes Directive 2004/38. Furthermore, the authorities held in their decision that the children could easily receive follow-up medical treatment in France.
            
         
               5.
            
            
               After the action brought by Ms Alokpa on her own behalf and on that of her children seeking the annulment of the abovementioned decisions was declared unfounded by the Tribunal administratif (Administrative Court) on 21 September 2011, the applicants in the main proceedings lodged an appeal against that decision before the Cour administrative.
            
         
               6.
            
            
               The referring court observes, first, that Ms Alokpa and her children have lived together as a family in a Luxembourg hostel and are therefore dependent on the State, and that no contact has been maintained with the children’s father. It does, however, state that Ms Alokpa has been offered a job for an indefinite period in Luxembourg and that it is only her lack of a residence permit and work permit that is standing in her way.
            
         
               7.
            
            
               Secondly, the Cour administrative notes that the situation of the twins has elements in common with the case which gave rise to the judgment in Ruiz Zambrano, (
                     3
                  ) but does however observe that Ms Alokpa’s children do not reside in the territory of the Member State of which they are nationals.
            
         
               8.
            
            
               Against that background, the referring court decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
               ‘Is Article 20 TFEU – if necessary, read in conjunction with Articles 20, 21, 24, 33 and 34 of the Charter of Fundamental Rights, or with one or more of those provisions read separately or in conjunction – to be interpreted as precluding a Member State from refusing a third-country national, with sole responsibility for his or her minor children who are citizens of the European Union, residence in the Member State of residence of the children, where they have been living with that person since birth, without having that nationality, while refusing the third-country national a residence permit, or even a work permit?
               Are such decisions to be regarded as being in the nature of decisions depriving those children, in their country of residence, in which they have lived since birth, of effective enjoyment of the substance of the rights attaching to the status of citizen of the European Union also in the situation where their other direct ascendant, with whom they have never shared family life, is resident in another Member State of the European Union, of which that person is a national?’
            
         
               9.
            
            
               Written observations have been submitted by Ms Alokpa and the Belgian, Czech, German, Greek, Lithuanian, Luxembourg, Netherlands and Polish Governments, as well as by the European Commission. Those parties presented oral argument at the hearing on 17 January 2013, with the exception of the Belgium, Czech, Greek, Lithuanian and Polish Governments, which were not represented at the hearing.
            
         
         II – Legal analysis
      
      A – Preliminary remarks
      
      
               10.
            
            
               The referring court is essentially asking, first, whether a third‑country national who has sole responsibility for his or her minor children, who are citizens of the European Union, were born in a Member State other than that of which they are a national and have never exercised their right to freedom of movement, may obtain from that right a derived right of residence for the purposes of Article 20 TFEU, and, second, whether a decision refusing such residence and ordering that national to leave the territory of Luxembourg would have the effect of depriving those children of the effective enjoyment of the substance of the rights attaching to the status of citizen of the European Union.
            
         
               11.
            
            
               With a view to providing a useful answer to the first part of the question put by the referring court, it is my view that the statement made by that court, a view also expressed by the German and Belgian Governments in their written observations, that the situation at issue, like that at the origin of Ruiz Zambrano, is ‘purely internal’ must be rejected from the outset.
            
         
               12.
            
            
               It is clear from Ruiz Zambrano and from McCarthy and Dereci and Others, (
                     4
                  ) that Article 20 TFEU, to which reference is made in the question referred for a preliminary ruling, is to be taken into account in the absence of any kind of current cross-border factor, in the situation of citizens of the European Union who reside in the Member State of which they are a national and have never exercised their right to freedom of movement.
            
         
               13.
            
            
               However, in the present case, Ms Alokpa’s children, who are both citizens of the European Union, reside in a Member State without holding the nationality of that Member State.
            
         
               14.
            
            
               Such a situation can therefore be likened to that underlying Zhu and Chen, (
                     5
                  ) in which the Court held that the situation of a minor child, a citizen of the Union, who resided in a Member State other than that of which he was a national and had not exercised his right to freedom of movement, was nevertheless covered by the scope of the provisions of European Union law concerning the free movement of persons, (
                     6
                  ) in particular those contained in Directive 90/364/EEC, (
                     7
                  ) which was repealed and replaced by Directive 2004/38.
            
         
               15.
            
            
               Furthermore, Article 3(1) of Directive 2004/38 provides that that directive is to apply inter alia to all Union citizens who reside in a Member State other than that of which they are a national, which is precisely the situation in which Ms Alokpa’s children find themselves.
            
         
               16.
            
            
               Consideration must therefore be given first to whether, having regard to the facts of the main proceedings, minor children who are citizens of the Union residing in a Member State of which they are not a national satisfy the conditions laid down by Directive 2004/38, in particular those contained in Article 7(1)(b) of that directive. Secondly, it will be necessary to ascertain whether their mother, as a direct relative in the ascending line who is a national of a non-Member State may rely on a derived right of residence. (
                     8
                  )
            
         
               17.
            
            
               In order to provide a useful answer to the referring court, and as is allowed by case-law, the first part of the question referred for a preliminary ruling must be reformulated so as to refer to the interpretation of Directive 2004/38, which is, moreover, mentioned in the request for a preliminary ruling and forms the substance of the observations of the Czech, Greek, Lithuanian, Luxembourg, Netherlands and Polish Governments and of the Commission. (
                     9
                  )
            
         B – First part of the question referred for a preliminary ruling: satisfaction of the conditions laid down in Directive 2004/38
      
      
               18.
            
            
               In order to answer the question as reformulated, it must be noted first of all that Article 7(1)(b) of Directive 2004/38 provides that all Union citizens are to have the right of residence on the territory of another Member State for a period of longer than three months if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.
            
         
               19.
            
            
               As the Court held in Zhu and Chen in relation to the provision contained in Directive 90/364 which is essentially identical to Article 7(1)(b) of Directive 2004/38, it is sufficient for the nationals of Member States to ‘have’ the necessary resources, and that provision lays down no requirement whatsoever as to their origin. (
                     10
                  )
            
         
               20.
            
            
               Accordingly, in order to satisfy the condition of ‘sufficient resources’ laid down in Article 7(1)(b) of Directive 2004/38, it is not necessary for the Union citizen himself to have such resources, since he may rely on a right of residence even where the resources in question originate from a member of his family, a direct relative in the ascending line who is that citizen’s carer.
            
         
               21.
            
            
               However, it is clear from the order for reference that, unlike the situation underlying Zhu and Chen, (
                     11
                  ) Ms Alokpa’s children do not have any means of subsistence, a matter which led to the Grand Duchy of Luxembourg ? on the territory of which the three applicants in the main proceedings are residing in a hostel ? taking full responsibility for them and for their mother.
            
         
               22.
            
            
               As has been stated by several of the parties participating in the procedure before the Court, Ms Alokpa’s children do not therefore appear to satisfy the conditions of having sufficient resources and comprehensive sickness insurance cover in the host Member State within the meaning of Article 7(1)(b) of Directive 2004/38.
            
         
               23.
            
            
               However, it is also clear from the order for reference that Ms Alokpa never intended to become a burden on the Luxembourg State and that she has been offered a job for an indefinite period in Luxembourg, subject to the sole condition that she obtain a residence permit and a work permit in Luxembourg. It should be noted in this connection that Ms Alokpa produced a copy of that job offer in the course of proceedings before the referring court.
            
         
               24.
            
            
               At this stage, consideration must be given to the relevance of that job offer, and therefore to the possibility of taking into account resources which are not current but rather future or potential, for the purposes of satisfying the condition of ‘sufficient resources’ laid down in Article 7(1)(b) of Directive 2004/38.
            
         
               25.
            
            
               That question was debated at quite considerable length by the participants at the hearing before the Court.
            
         
               26.
            
            
               At the hearing, the Luxembourg and Netherlands Governments adopted a strict interpretation of the condition laid down in Article 7(1)(b) of Directive 2004/38, taking the view that a mere job offer represented nothing more than a hypothetical possibility of obtaining the resources required, which is not covered by the wording of that provision. According to those governments, the means of subsistence must have already been acquired when the application for residence is made and any interpretation to the contrary would have the result of rendering the requirement laid down in Article 7(1)(b) of that directive meaningless and redundant.
            
         
               27.
            
            
               As a matter of principle, I am not convinced by that view.
            
         
               28.
            
            
               Like the German Government and the Commission, I consider that the condition of ‘sufficient resources’ is capable of being satisfied by the definite prospect of future resources which would stem from a job offer to which a Union citizen or a member of his family responded successfully in another Member State. A different interpretation would deprive the freedom of movement enjoyed by citizens of the Union of its practical effect, whereas the objective of Directive 2004/38 is precisely to strengthen the right to freedom of movement.
            
         
               29.
            
            
               In addition, with regard to the amount of sufficient resources, Article 8(4) of Directive 2004/38 requires Member States to take into account the personal situation of the person concerned. Accordingly, when taking into account the specific situation of a person, the fact that he has been offered a job from which he will be able to derive income enabling him to satisfy the condition laid down in Article 7(1)(b) of Directive 2004/38 cannot be overlooked. Any interpretation to the contrary would lead to the individual situations of Union citizens and their family members being treated unfairly, thus rendering Article 8(4) of that directive meaningless.
            
         
               30.
            
            
               The referring court should therefore, in principle, examine the job offer for an indefinite period made to Ms Alokpa with a view to determining whether her children, who are citizens of the European Union, have ‘sufficient resources’ within the meaning of Directive 2004/38.
            
         
               31.
            
            
               Such examination could, however, fall foul of national procedural rules to the extent that, as I have already observed, that offer was produced only in the course of proceedings in the context of the action for annulment brought by Ms Alokpa and her children before the Luxembourg administrative courts. In order to carry out that examination, the referring court should therefore be authorised to review the legality of the decisions contested before it in the light of facts subsequent to the adoption of those decisions. (
                     12
                  )
            
         
               32.
            
            
               Furthermore, as the German Government rightly pointed out at the hearing, Directive 2004/38 does not contain any specific provision which allows national procedural rules to be set aside.
            
         
               33.
            
            
               It is therefore for the referring court to assess whether those rules afford it the possibility of taking into account the job offer produced in the course of proceedings by Ms Alokpa, having regard to the well-established principles of equivalence and effectiveness. (
                     13
                  )
            
         
               34.
            
            
               If that is not the case and, as a result, the conditions laid down in Article 7(1)(b) of Directive 2004/38 are not satisfied, consideration could nevertheless be given to the possibility that the provisions of the Charter of Fundamental Rights ? to which the national court makes reference ? might result in those conditions being relaxed or even disregarded, in particular with a view to ensuring that account is taken of the child’s best interests (Article 24 of the Charter) and respect for family life (Articles 7 and 33 of the Charter).
            
         
               35.
            
            
               Nevertheless, it appears difficult to envisage such a possibility, since this would mean disregarding the limits laid down by Article 21 TFEU on the right of citizens of the Union to move and reside freely within the territory of the Member States, (
                     14
                  ) and would therefore, in my opinion, result in the modification of the powers and tasks defined in the Treaties, in breach of Article 51(2) of the Charter.
            
         
               36.
            
            
               In those circumstances, it would no longer be necessary to give consideration to a possible derived right of residence on the part of Ms Alokpa in Luxembourg, since her children, citizens of the European Union, would not satisfy the conditions laid down by Directive 2004/38.
            
         
               37.
            
            
               If the referring court were to be able to take into account the job offer made to Ms Alokpa, and therefore the future or potential resources of her children, and nevertheless were to entertain doubts as to the sufficient nature of those resources, consideration would have to be given to the provisions of the Charter when evaluating the personal situation of those children, in particular having regard to the ties which they may have formed with Luxembourg since their birth in the territory of that Member State.
            
         
               38.
            
            
               If the referring court were to take the view that Ms Alokpa’s children satisfy the conditions laid down in Article 7(1)(b) of Directive 2004/38, the question of the derived right enjoyed by their mother would then arise.
            
         
               39.
            
            
               With regard to the family members of Union citizens, Article 2(2)(d) of Directive 2004/38 applies only to ‘the dependent direct relatives in the ascending line …’ of the Union citizen, which Ms Alokpa is most certainly not.
            
         
               40.
            
            
               In Zhu and Chen, a judgment given a few months after the adoption of Directive 2004/38 in a situation very similar to that at issue in the main proceedings, the Court held that the mother of the Union citizen, a minor child, could not claim to be a ‘dependent’ relative in the ascending line within the meaning of Directive 90/364 with a view to having the benefit of a derived right of residence in the host Member State. (
                     15
                  )
            
         
               41.
            
            
               However, the Court went beyond the stringency of that condition, which was already present in the text of Directive 90/364, (
                     16
                  ) upon which it was called to give its view, by finding that ‘where … Article 18 EC [now Article 21 TFEU] and Directive 90/364 grant a right to reside for an indefinite period in the host Member State to a young minor who is a national of another Member State, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State’. (
                     17
                  )
            
         
               42.
            
            
               On the basis of that judgment, Ms Alokpa could therefore have the benefit of a derived right of residence in Luxembourg, based both on Article 21 TFEU and on the provisions of Directive 2004/38.
            
         
               43.
            
            
               However, in Iida, the Court interpreted the right derived by a national of a non-Member State who is a non-dependent direct relative in the ascending line of a Union citizen who is a minor, as covered by Zhu and Chen, as falling outside the scope of Directive 2004/38 and being based solely on Article 21 TFEU. (
                     18
                  )
            
         
               44.
            
            
               In my opinion, that approach makes more consistent the legal framework applicable to nationals of non-Member States who are non‑dependent, direct relatives in the ascending line of Union citizens who are minors and beneficiaries of the provisions of Directive 2004/38. Indeed, if it is ruled out that such direct relatives in the ascending line satisfy the condition of being ‘dependent’ on the Union citizen and they therefore fall outside the scope of persons covered by Directive 2004/38, it is unclear why the derived right of residence from which they may benefit in the host Member State should be based on the provisions of that directive.
            
         
               45.
            
            
               It is therefore more logical, as the Court acknowledged in Iida, to base such a derived right of residence directly and exclusively on primary European Union law, that is to say, Article 21 TFEU.
            
         
               46.
            
            
               It may therefore be concluded that, if the referring court were to take the view that, by being able to rely on new information produced in the course of the proceedings before it, Ms Alokpa’s children satisfy the conditions laid down in Article 7(1)(b) of Directive 2004/38, their mother could enjoy, on the basis of Article 21 TFEU, a derived right of residence in Luxembourg as a direct relative in the ascending line who is the primary carer of her children, citizens of the European Union.
            
         
               47.
            
            
               In the light of the foregoing, I propose that the first part of the question referred for a preliminary ruling be answered to the effect that a minor child who is a citizen of the European Union and dependent on a non-dependent direct relative in the ascending line who is the primary carer of that child may be able to rely on the provisions of Directive 2004/38 to allow that relative, a national of a non-Member State, to have the benefit of a derived right of residence on the territory of a Member State of which that child is not a national. It is for the referring court to establish whether the conditions laid down in Article 7(1)(b) of that directive are satisfied, taking into account the personal situation of the Union citizens concerned, including ? as the case may be ? future or potential resources stemming from an offer of employment made to that direct relative in the ascending line, such as the offer at issue in the dispute in the main proceedings, having regard to the limits imposed by national procedural rules and the requirements which follow from the principles of equivalence and effectiveness.
            
         C – Second part of the question referred for a preliminary ruling: the loss of enjoyment of the substance of the rights attaching to citizenship of the Union
      
      
               48.
            
            
               In the second part of its question, the referring court is essentially seeking to ascertain whether the case-law in Ruiz Zambrano may apply in the event that Ms Alokpa and her children, who are both French citizens, are required to leave Luxembourg, even though the father of those children, with whom they have never lived together as a family, resides in France and is also a French national.
            
         
               49.
            
            
               As has already been stated above, Ms Alokpa’s children’s situation falls within the scope of European Union law, in particular the provisions of Directive 2004/38.
            
         
               50.
            
            
               Accordingly, Article 20 TFEU, as interpreted by the Court in Ruiz Zambrano, does not apply in a situation such as that in the main proceedings, particularly since from the time the two minors, who are citizens of the European Union, move to another Member State, including the Member State of which they are a national, the view must be taken that they are also exercising their freedom of movement, the result of which is that their situation is covered a fortiori by the scope of Directive 2004/38.
            
         
               51.
            
            
               Even though Article 20 TFEU does not apply, that by no means renders the second part of the question referred by the national court irrelevant, since one of the decisions forming the basis of the main proceedings orders Ms Alokpa and (de facto) her children to leave Luxembourg and gives rise to at least a potential risk of Union citizens being removed from the territory of the Union.
            
         
               52.
            
            
               Consideration should therefore be given to whether the execution of such a decision would have the effect, in fact, of requiring Union citizens to leave the territory of the Union as a whole, within the meaning of the case-law in Ruiz Zambrano and Dereci and Others, (
                     19
                  ) thus depriving them of the effective enjoyment of the substance of the rights conferred by virtue of their status. (
                     20
                  )
            
         
               53.
            
            
               In this regard, the claim made by the applicants in the main proceedings, and repeated at the hearing, to the effect that Ms Alokpa would be unable to go to France and reside there with her children and would therefore be required to return to Togo ? which probably prompted the referring court to make reference in its question to the situation of the twins’ father ? confuses me.
            
         
               54.
            
            
               It must be borne in mind that, as French nationals, Ms Alokpa’s children enjoy the unconditional right to enter the territory of France and to remain there, in particular on the basis of Article 21 TFEU and a principle of international law reaffirmed in Article 3 of Protocol No 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. (
                     21
                  )
            
         
               55.
            
            
               Accordingly, the decision of the Luxembourg authorities requiring Ms Alokpa and (de facto) her children to leave the territory of the Grand Duchy of Luxembourg cannot require those children to leave the territory of the Union as a whole. As the mother and primary carer of the children since their birth, Ms Alokpa can herself therefore have the benefit of a derived right to reside in France.
            
         
               56.
            
            
               In those circumstances, it is inconceivable that the French authorities might refuse to allow Ms Alokpa to accompany her children to the Member State of which they are nationals and to reside there with them, a fortiori because she is the only person with whom they have had a family life since their birth. (
                     22
                  ) Any other outcome would render redundant the rights linked to the full enjoyment of the fundamental status of citizen of the Union.
            
         
               57.
            
            
               Furthermore, in view of the geographical proximity of the two Member States concerned, a decision to remove the persons concerned from Luxembourg would not call into question Ms Alokpa’s ability to accept the job offer made by a Luxembourg employer, since she could ? for example ? carry out her paid employment as a frontier worker, like thousands of other French residents.
            
         
               58.
            
            
               It follows that a decision made by the Luxembourg administrative authorities ordering Ms Alokpa and (de facto) her children to leave the territory of Luxembourg cannot be regarded as being capable of requiring those children to leave the territory of the Union as a whole, thus depriving them of the effective enjoyment of the substance of the rights conferred by their status as citizens of the Union, since it is established that they enjoy an unconditional right to enter and reside in the territory of the Member State of which they are a national, a right which requires ? in order to remain effective ? that a derived right of residence in France be granted to Ms Alokpa as their primary carer and the person with whom they have had a shared family life since their birth.
            
         
         III – Conclusion
      
      
               59.
            
            
               In the light of the foregoing considerations, I suggest that the answer to the question referred for a preliminary ruling by the Cour administrative should be as follows:
               A minor child who is a citizen of the European Union and dependent on a non‑dependent direct relative in the ascending line who is the primary carer of that child may be able to rely on the provisions 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, to allow that relative, a national of a non-Member State, to have the benefit of a derived right of residence in the territory of a Member State of which that child is not a national. It is for the referring court to establish whether the conditions laid down in Article 7(1)(b) of that directive are satisfied, taking into account the personal situation of the Union citizens concerned, including ? as the case may be ? future or potential resources stemming from an offer of employment made to that direct relative in the ascending line, such as the offer at issue in the dispute in the main proceedings, having regard to the limits imposed by national procedural rules and the requirements which follow from the principles of equivalence and effectiveness.
               A decision of a Member State ordering a national of a non-Member State who is a direct relative in the ascending line and the primary carer of minor children, who are citizens of the Union and nationals of another Member State, to leave its territory cannot be regarded as being capable of requiring those citizens to leave the territory of the Union as a whole, thus depriving them of the effective enjoyment of the substance of the rights conferred by their status, since those citizens enjoy an unconditional right to enter and reside in the territory of the Member State of which they are nationals, a right which requires ? in order to remain effective ? that a derived right of residence in the latter Member State be granted to that direct relative in the ascending line as their sole carer and the person with whom they have had a shared family life since their birth.
            
         (
            1
         )	Original language: French.
      (
            2
         )	Directive 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).
      (
            3
         )	Case C-34/09 Ruiz Zambrano [2011] ECR I-1177.
      (
            4
         )	See, respectively, Ruiz Zambrano, paragraphs 36, 38 and 39; Case C-434/09 McCarthy [2011] ECR I-3375, paragraph 48; and Case C-256/11 Dereci and Others [2011] ECR I-11315, paragraph 63.
      (
            5
         )	Case C-200/02 Zhu and Chen [2004] ECR I-9925.
      (
            6
         )	Ibid., paragraphs 19, 20 and 25 to 27.
      (
            7
         )	Council Directive of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26).
      (
            8
         )	The Court has consistently held that the rights conferred by Directive 2004/38 on third-country nationals who are family members of a Union citizen who is a beneficiary of that directive are not autonomous rights of those nationals but rights derived from the exercise of freedom of movement by a Union citizen: see, to that effect, McCarthy, paragraph 42; Dereci and Others, paragraph 55; and Case C‑40/11 Iida [2012] ECR, paragraph 67.
      (
            9
         )	It is clear from settled case-law that the Court may provide the referring court with the elements of interpretation of European Union law which it deems to be of assistance in adjudicating on the case before that court, whether or not the national court has specifically referred to them in its questions (see, inter alia, Case C-251/06 ING. AUER [2007] ECR I-9689, paragraph 38 and the case-law cited). Thus, applying that case-law, in McCarthy, whereas the referring court had simply requested an interpretation of the provisions of Directive 2004/38, the Court, having held that the main proceedings fell outside the scope of that directive, based its answer on Article 21 TFEU. Furthermore, again with reference to that same case-law, in Joined Cases C‑356/11 and C‑357/11 O and Others [2012] ECR, in its answer to the national court, the Court took into account the provisions of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12), even though in its questions the national court had referred to Article 20 TFEU only.
      (
            10
         )	Zhu and Chen, paragraph 30.
      (
            11
         )	Zhu and Chen, paragraph 28.
      (
            12
         )	In so far as is relevant here, and as stated at the hearing by the lawyer for the applicants in the main proceedings and by the Luxembourg Government, this consideration has no bearing on the ongoing administrative procedure relating to the application for residence made by Ms Alokpa as a paid employee at the beginning of 2012 to the Luxembourg authorities.
      (
            13
         )	These two principles limit the procedural autonomy of the Member States so that national procedural rules apply to situations falling under European Union law, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the European Union legal order (principle of effectiveness): see, inter alia, to that effect, Case C‑41/11 Inter-Environnement Wallonie and Terre wallonne [2012] ECR, paragraph 45 and the case-law cited.
      (
            14
         )	By way of a reminder, I would point out that Article 21(1) TFEU provides that that right exists ‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’ and, therefore, to those laid down in Directive 2004/38.
      (
            15
         )	Zhu and Chen, paragraph 44.
      (
            16
         )	See Article 1(2)(b) of Directive 90/364.
      (
            17
         )	Zhu and Chen, paragraph 46 (emphasis added).
      (
            18
         )	Iida, paragraphs 55, 69 and 72.
      (
            19
         )	See, to that effect, Dereci and Others, paragraph 66.
      (
            20
         )	Ruiz Zambrano, paragraphs 43 and 44, and Dereci and Others, paragraph 65.
      (
            21
         )	See, to that effect, McCarthy, paragraph 29 and the case-law cited.
      (
            22
         )	Furthermore, the residence of the children in France could potentially make it easier for them to become closer to their father such that they could maintain, on a regular basis, a personal relationship with him, a fact which should be taken into account in the children’s best interests in accordance with the Charter: see, to that effect, O and Others, paragraph 76.