O. v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v B.
Date: 2014-03-12
35. The Court has already had occasion to point out that Directive 2004/38 aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by Article 21(1) TFEU and that it aims in particular to strengthen that right (see, to that effect, Case C‑127/08 Metock and Others  [2008] ECR I‑6241, paragraphs 59 and 82; Case C‑162/09 Lassal  [2010] ECR I‑9217, paragraph 30; and McCarthy , paragraph 28).
36. Article 21(1) TFEU and Directive 2004/38 do not confer any autonomous right on third-country nationals (see, to that effect, Case C‑40/11 Iida  [2012] ECR, paragraph 66, and Case C‑87/12 Ymeraga and Ymeraga-Tafarshiku  [2013] ECR, paragraph 34). Any rights conferred on third-country nationals by provisions of EU law on Union citizenship are rights derived from the exercise of freedom of movement by a Union citizen (see Iida , paragraph 67; Ymeraga and Ymeraga-Tafarshiku , paragraph 35; and Case C‑86/12 Alokpa and Others  [2013] ECR, paragraph 22).
37. It follows from a literal, systematic and teleological interpretation of Directive 2004/38 that it does not establish a derived right of residence for third‑country nationals who are family members of a Union citizen in the Member State of which that citizen is a national.
38. Article 3(1) of Directive 2004/38, defines the ‘beneficiaries’ of the rights conferred by it as ‘all Union citizens who move to or reside in a Member State other than that of which they are a national, and … their family members as defined in [Article 2(2)] who accompany or join them’.
39. Accordingly, Directive 2004/38 establishes a derived right of residence for third-country nationals who are family members of a Union citizen, within the meaning of Article 2(2) of that directive, only where that citizen has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national (see, to that effect, Metock and Others , paragraph 73; Case C‑256/11 Dereci and Others  [2011] ECR I‑11315, paragraph 56; Iida , paragraph 51; and Joined Cases C‑356/11 and C‑357/11 O. and Others  [2012] ECR, paragraph 41).
40. Other provisions of Directive 2004/38, in particular Article 6, Article 7(1) and (2) and Article 16(1) and (2), refer to the right of residence of a Union citizen and to the derived right of residence conferred on the family members of that citizen either in ‘another Member State’ or in ‘the host Member State’ and thus confirm that a third-country national who is a family member of a Union citizen cannot invoke, on the basis of that directive, a derived right of residence in the Member State of which that citizen is a national (see McCarthy , paragraph 37, and Iida , paragraph 64).
41. As regards the teleological interpretation of Directive 2004/38, it should be borne in mind that whilst it is true that Directive 2004/38 aims to facilitate and strengthen the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on each citizen of the Union, the fact remains that the subject of the directive concerns, as is apparent from Article 1(a), the conditions governing the exercise of that right ( McCarthy , paragraph 33).
42. Since, under a principle of international law, a State cannot refuse its own nationals the right to enter its territory and remain there, Directive 2004/38 is intended only to govern the conditions of entry and residence of a Union citizen in a Member State other than the Member State of which he is a national (see McCarthy , paragraph 29).
43. In those circumstances and having regard to what is said in paragraph 36 above, Directive 2004/38 is therefore also not intended to confer a derived right of residence on third‑country nationals who are family members of a Union citizen residing in the Member State of which the latter is a national.
44. Since third‑country nationals in situations such as those of Mr O. and Mr B. are not entitled, on the basis of Directive 2004/38, to a derived right of residence in the Member State of which their sponsors are nationals, it must be examined whether a derived right of residence may, in some circumstances, be based on Article 21(1) TFEU.
45. In that regard, it should be borne in mind that the purpose and justification of that derived right of residence is based on the fact that a refusal to allow such a right would be such as to interfere with the Union citizen’s freedom of movement by discouraging him from exercising his rights of entry into and residence in the host Member State (see Iida , paragraph 68; Ymeraga and Ymeraga-Tafarshiku , paragraph 35; and Alokpa and Others , paragraph 22).
46. The Court has accordingly held that where a Union citizen has resided with a family member who is a third‑country national in a Member State other than the Member State of which he is a national for a period exceeding two and a half years and one and half years respectively, and was employed there, that third‑country national must, when the Union citizen returns to the Member State of which he is a national, be entitled, under Union law, to a derived right of residence in the latter State (see Singh , paragraph 25, and Eind , paragraph 45). If that third‑country national did not have such a right, a worker who is a Union citizen could be discouraged from leaving the Member State of which he is a national in order to pursue gainful employment in another Member State simply because of the prospect for that worker of not being able to continue, on returning to his Member State of origin, a way of family life which may have come into being in the host Member State as a result of marriage or family reunification (see Eind , paragraphs 35 and 36, and Iida , paragraph 70).
47. Therefore, an obstacle to leaving the Member State of which the worker is a national, as mentioned in Singh  and Eind , is created by the refusal to confer, when that worker returns to his Member State of origin, a derived right of residence on the family members of that worker who are third‑country nationals, where that worker resided with his family members in the host Member State pursuant to, and in conformity with, Union law.
48. It is therefore necessary to determine whether the case‑law resulting from Singh  and Eind  is capable of being applied generally to family members of Union citizens who, having availed themselves of the rights conferred on them by Article 21(1) TFEU, resided in a Member State other than that of which they are nationals, before returning to the Member State of origin.
49. That is indeed the case. The grant, when a Union citizen returns to the Member State of which he is a national, of a derived right of residence to a third‑country national who is a family member of that Union citizen and with whom that citizen has resided, solely by virtue of his being a Union citizen, pursuant to and in conformity with Union law in the host Member State, seeks to remove the same type of obstacle on leaving the Member State of origin as that referred to in paragraph 47 above, by guaranteeing that that citizen will be able, in his Member State of origin, to continue the family life which he created or strengthened in the host Member State.
50. So far as concerns the conditions for granting, when a Union citizen returns to the Member State of which he is a national, a derived right of residence, based on Article 21(1) TFEU, to a third‑country national who is a family member of that Union citizen with whom that citizen has resided, solely by virtue of his being a Union citizen, in the host Member State, those conditions should not, in principle, be more strict than those provided for by Directive 2004/38 for the grant of such a right of residence to a third‑country national who is a family member of a Union citizen in a case where that citizen has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national. Even though Directive 2004/38 does not cover such a return, it should be applied by analogy to the conditions for the residence of a Union citizen in a Member State other than that of which he is a national, given that in both cases it is the Union citizen who is the sponsor for the grant of a derived right of residence to a third‑country national who is a member of his family.
54. Where, during the genuine residence of the Union citizen in the host Member State, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) of Directive 2004/38, family life is created or strengthened in that Member State, the effectiveness of the rights conferred on the Union citizen by Article 21(1) TFEU requires that the citizen’s family life in the host Member State may continue on returning to the Member of State of which he is a national, through the grant of a derived right of residence to the family member who is a third‑country national. If no such derived right of residence were granted, that Union citizen could be discouraged from leaving the Member State of which he is a national in order to exercise his right of residence under Article 21(1) TFEU in another Member State because he is uncertain whether he will be able to continue in his Member State of origin a family life with his immediate family members which has been created or strengthened in the host Member State (see, to that effect, Eind , paragraphs 35 and 36, and Iida , paragraph 70).
58. It should be added that the scope of Union law cannot be extended to cover abuses (see, to that effect, Case C‑110/99 Emsland‑Stärke  [2000] ECR I‑11569, paragraph 51, and Case C‑303/08 Bozkurt  [2010] ECR I‑13445, paragraph 47). Proof of such an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it (Case C‑364/10 Hungary  v Slovakia  [2012] ECR, paragraph 58).
60. So far as concerns Mr O., who, according to the order for reference, holds a residence card as a family member of a Union citizen pursuant to Article 10 of Directive 2004/38, it should be borne in mind that Union law does not require the authorities of the Member State of which the Union citizen in question is a national to grant a derived right of residence to a third-country national who is a member of that citizen’s family because of the mere fact that, in the host Member State, that third-country national held a valid residence permit (see Eind , paragraph 26). A residence card issued on the basis of Article 10 of Directive 2004/38 has a declaratory, as opposed to a constitutive, character (see Case C‑325/09 Dias  [2011] ECR I‑6387, paragraph 49).
61. In the light of all the foregoing considerations, the answer to the first, second and third questions is that Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third‑country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38, in a Member State other than that of which he is a national, the provisions of that directive apply by analogy where that Union citizen returns, with the family member in question, to his Member State of origin. Therefore, the conditions for granting a derived right of residence to a third‑country national who is a family member of that Union citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those provided for by that directive for the grant of a derived right of residence to a third‑country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.
The fourth question