Minister voor Vreemdelingenzaken en Integratie v R. N. G. Eind.
Date: 2007-12-11
18. In that regard, it must be borne in mind that, in the procedure of cooperation established by Article 234 EC, it is not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see, inter alia, Case C‑435/97 WWF and Others  [1999] ECR I-5613, paragraph 32, and Case C-510/99 Tridon  [2001] ECR I-7777, paragraph 28).
23. The right to family reunification under Article 10 of Regulation No 1612/68 does not entail for members of the families of migrant workers any autonomous right to free movement, since that provision benefits the migrant worker whose family includes a national of a third country (see, in respect of Article 11 of Regulation No 1612/68, Case C‑10/05 Mattern and Cikotic  [2006] ECR I-3145, paragraph 25).
24. It follows that the right of a third-country national who is a member of the family of a Community worker to install himself with that worker may be relied on only in the Member State where that worker resides.
28. As a preliminary point, it must be borne in mind that the right of nationals of one Member State to reside in the territory of another Member State without being engaged in any activity, whether on an employed or a self-employed basis, is not unconditional. Under Article 18(1) EC, the right of every citizen of the Union to reside in the territory of the Member States is recognised subject to the limitations and conditions imposed by the Treaty and by the measures adopted for its implementation (see, to that effect, Case C-456/02 Trojani  [2004] ECR I-7573, paragraphs 31 and 32, and Case C-200/02 Zhu and Chen  [2004] ECR I-9925, paragraph 26).
29. Among those limitations and conditions is the provision made in the first subparagraph of Article 1(1) of Directive 90/364, under which the Member States may require citizens of the Union who are not economically active and wish to enjoy the right to reside in their territory, to ensure that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.
31. In the main proceedings, since Mr Eind is a Netherlands national, his right to reside in the territory of the Netherlands cannot be refused or made conditional.
35. A national of a Member State could be deterred from leaving that Member State in order to pursue gainful employment in the territory of another Member State if he does not have the certainty of being able to return to his Member State of origin, irrespective of whether he is going to engage in economic activity in the latter State.
36. That deterrent effect would also derive simply from the prospect, for that same national, of not being able, on returning to his Member State of origin, to continue living together with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family reunification.
43. First of all, the basis for requiring such a right is not laid down, expressly or by implication, in any provision of Community law relating to the right of residence in the Community of third-country nationals who are members of the families of Community workers. According to settled case-law of the Court of Justice, secondary Community legislation on movement and residence cannot be interpreted restrictively (see, inter alia, in respect of Regulation No 1612/68, Case 267/83 Diatta  [1985] ECR 567, paragraphs 16 and 17, and Case C-413/99 Baumbast and R  [2002] ECR I-7091, paragraph 74).
44. Secondly, such a requirement would run counter to the objectives of the Community legislature, which has recognised the importance of ensuring protection for the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty (Case C-60/00 Carpenter  [2002] ECR I‑6279, paragraph 38, and Case C-459/99 MRAX  [2002] ECR I-6591, paragraph 53).
45. In the light of all the above considerations, the answer to Questions 2 and 3(b) must be that, when a worker returns to the Member State of which he is a national, after being gainfully employed in another Member State, a third-country national who is a member of his family has a right under Article 10(1)(a) of Regulation No 1612/68, which applies by analogy, to reside in the Member State of which the worker is a national, even where that worker does not carry on any effective and genuine economic activities. The fact that a third-country national who is a member of a Community worker’s family did not, before residing in the Member State where the worker was employed, have a right under national law to reside in the Member State of which the worker is a national has no bearing on the determination of that national’s right to reside in the latter State.
Question 1(b), Question 3(a) and Question 4