Office national d’allocations familiales pour travailleurs salariés (ONAFTS) v Radia Hadj Ahmed.
Date: 2013-06-13
23. Thus, first of all, that provision makes express reference to national legislation, defining a ‘member of the family’ as ‘any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided’ (Case C‑363/08 Slanina  [2009] ECR I‑11111, paragraph 25).
24. Secondly, Article 1(f)(i) of Regulation No 1408/71 introduces the proviso ‘where, however, the said [national] legislation regard[s] as a member of the family or a member of the household only a person living under the same roof as the employed or self-employed person, this condition shall be considered satisfied if the person in question is mainly dependent on that person’ ( Slanina , paragraph 26).
25. The condition laid down in Article 1(f)(i) of Regulation No 1408/71 is therefore met, as the Czech Government and the European Commission rightly point out, if, in the circumstances of the main proceedings, the mother and daughter can be regarded for the purposes of national law as ‘members of the family’ of the national of another Member State and, where that is not the case, if they can be regarded as being ‘mainly dependent’ on him (see, to that effect, Slanina , paragraph 27).
30. Moreover, under Article 1 of Regulation No 859/2003, a third-country national must fulfil two conditions in order for the provisions of Regulation No 1408/71 to be applicable to that person and also to the members of his family. Thus, the third‑country national must, first, be legally resident in a Member State and, secondly, not be in a situation which is confined in all respects within a single Member State. This concerns inter alia the situation of a third-country national who has links only with a third country and a single Member State (see, to that effect, Case C‑247/09 Xhymshiti [2010] ECR I‑11845, paragraph 28).
31. As concerns the first of those conditions, it must be noted that, having regard to the information contained in the order for reference, both the mother and the daughter, at the material time for the purposes of the main proceedings, were legally resident in Belgium.
40. It is admittedly true that, in paragraph 46 of its judgment in Trojani , the Court held in essence that, provided that a Union citizen is in possession of a permit for residence in a Member State, he may rely on Article 18 TFEU in order to be granted a social security benefit under the same conditions as nationals of that Member State.
41. However, that interpretation of Article 18 TFEU, the background to which concerns Union citizenship (see, to that effect, Case C‑209/03 Bidar  [2005] ECR I-2119, paragraphs 37 and 39), cannot be applied as it stands to a situation where a third-country national is in possession of a permit for residence in a Member State.
42. That said, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. Consequently, even if, formally, the referring court has limited its third question to the interpretation of Directive 2004/38, that does not prevent the Court from providing the referring court with all the elements of interpretation of European Union law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of European Union law which require interpretation in view of the subject-matter of the dispute (see Case C‑243/09 Fuß [2010] ECR I‑9849, paragraphs 39 and 40 and case-law cited).
44. In that regard, it must be observed that the aim of Regulation No 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the migrant worker’s family in the society of the host Member State (see Case C‑308/89 di Leo  [1990] ECR I‑4185, paragraph 13, and Case C‑413/99 Baumbast and R [2002] ECR I‑7091, paragraph 50).
45. For such integration to come about, a child of a migrant worker must have the possibility of going to school and continuing his or her education in the host Member State, as is expressly provided in Article 12 of Regulation No 1612/68, in order to be able to complete that education successfully (Joined Cases 389/87 and 390/87 Echternach and Moritz [1989] ECR 723, paragraph 21, and Baumbast and R , paragraph 51).
46. According to case-law, that right of access to education implies that the child of a migrant worker or former migrant worker has an independent right of residence when that child wishes to continue his or her education in the host Member State, and that the parent who is the child’s primary carer has a corresponding right of residence (see Case C-480/08 Teixeira  [2010] ECR I-1107, paragraphs 36 and 53).
50. Secondly, it is admittedly true, as the Commission contends, that the right of ‘his spouse and their descendants who are under the age of 21 years or are dependants’ to install themselves with the migrant worker, pursuant to Article 10(1)(a) of Regulation No 1612/68, must be interpreted as meaning that the benefit of that right extends both to the descendants of that worker and to those of his spouse ( Baumbast and R , paragraph 57).
51. However, suffice it to state that, in circumstances such as those of the main proceedings, the mother is not, and has never been, the spouse of the national of another Member State, and a mere cohabiting partner cannot be considered to be a ‘spouse’ for the purposes of Article 10(1)(a) of Regulation No 1612/68 (see, to that effect, Case 59/85 Reed [1986] ECR 1283, paragraph 16). Therefore, the daughter cannot be regarded as the child of the spouse of a migrant worker or former migrant worker.
52. On the other hand, as regards the child of both parents, it must be observed that, as is clear from the documents before the Court, this child is indeed the child of a national of a Member State who is or has been employed in the territory of another Member State, within the meaning of Article 12 of Regulation No 1612/68. However, so that the mother, as the parent who is that child’s primary carer, may have a right of residence based on that provision, the child of both parents must have entered the educational system in the host Member State (see, to that effect, Joined Cases C‑147/11 and C‑148/11 Czop and Punakova [2012] ECR I‑0000, paragraph 29).
56. It must be recalled that the fundamental rights guaranteed in the legal order of the European Union, including the Charter, are applicable in all situations governed by European Union law, but not outside such situations (see, to that effect, Case C‑617/10 Åkerberg Fransson  [2013] ECR I‑0000, paragraph 19 and case-law cited).