Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne.
Date: 2018-06-05
18


It is the Court’s established case-law that the purpose of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States, which is conferred directly on citizens of the Union by Article 21(1) TFEU, and that one of the objectives of that directive is to strengthen that right (judgments of 12 March 2014, O and B, C‑456/12, EU:C:2014:135, paragraph 35; of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraph 31; and of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 31).
20


In that regard, as the Court has held on a number of occasions, it follows from a literal, contextual and teleological interpretation of Directive 2004/38 that the directive governs only the conditions determining whether a Union citizen can enter and reside in Member States other than that of which he is a national and does not confer a derived right of residence on third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a national (see, to that effect, judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 37; of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 53; and of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 33).
22


Nonetheless, as the Court has repeatedly held, even if, formally, the referring court has limited its questions to the interpretation of the provisions of Directive 2004/38, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has specifically referred to them in the wording of its questions (see, to that effect, judgments of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 48, and of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 28 and the case-law cited).
23


In that regard, the Court has previously acknowledged, in certain cases, that third-country nationals, family members of a Union citizen, who were not eligible, on the basis of Directive 2004/38, for a derived right of residence in the Member State of which that citizen is a national, could, nevertheless, be accorded such a right on the basis of Article 21(1) TFEU (judgment of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 46).
24


In particular, the Court has held that, where, during the genuine residence of a Union citizen in a Member State other than that of which he is a national, pursuant to and in conformity with the conditions set out in 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 that citizen’s family life in that Member State may continue when he returns to the Member State of which he is a national, through the grant of a derived right of residence to the third-country national family member concerned. 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 which has been created or strengthened in the host Member State (see, to that effect, judgment of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 54 and the case-law cited).
25


As regards the conditions under which such a derived right of residence may be granted, the Court has stated that they must not be stricter than those laid down by Directive 2004/38 for the grant of a derived right of residence to a third-country national who is a family member of a Union citizen having exercised his right of freedom of movement by settling in a Member State other than that of which he is a national. That directive must be applied, by analogy, to the situation referred to in paragraph 24 above (see, to that effect, judgments of 12 March 2014, O. and B., C‑456/12,EU:C:2014:135, paragraphs 50 and 61; of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraphs 54 and 55; and of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 61).
30


In that regard, the Court has held on numerous occasions that citizenship of the Union is intended to be the fundamental status of nationals of the Member States (judgments of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31; of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraph 41; and of 2 June 2016, Bogendorff von Wolffersdorff, C‑438/14, EU:C:2016:401, paragraph 29).
39


To allow Member States the freedom to grant or refuse entry into and residence in their territory by a third-country national whose marriage to a Union citizen was concluded in a Member State in accordance with the law of that state, according to whether or not national law allows marriage by persons of the same sex, would have the effect that the freedom of movement of Union citizens who have already made use of that freedom would vary from one Member State to another, depending on whether such provisions of national law exist (see, by analogy, judgment of 25 July 2008, Metock and Others, C‑127/08, EU:C:2008:449, paragraph 67). Such a situation would be at odds with the Court’s case-law, cited by the Advocate General in point 73 of his Opinion, to the effect that, in the light of its context and objectives, the provisions of Directive 2004/38, applicable by analogy to the present case, may not be interpreted restrictively and, at all events, must not be deprived of their effectiveness (judgments of 25 July 2008, Metock and Others, C‑127/08, EU:C:2008:449, paragraph 84, and of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraph 32).
41


That said, it is established case-law that a restriction on the right to freedom of movement for persons, which, as in the main proceedings, is independent of the nationality of the persons concerned, may be justified if it is based on objective public-interest considerations and if it is proportionate to a legitimate objective pursued by national law (see, to that effect, judgments of 14 October 2008, Grunkin and Paul, C‑353/06, EU:C:2008:559, paragraph 29; of 26 February 2015, Martens, C‑359/13, EU:C:2015:118, paragraph 34; and of 2 June 2016, Bogendorff von Wolffersdorff, C‑438/14, EU:C:2016:401, paragraph 48). It is also apparent from the Court’s case-law that a measure is proportionate if, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain that objective (judgment of 26 February 2015, Martens, C‑359/13, EU:C:2015:118, paragraph 34 and the case-law cited).
44


Moreover, the Court has repeatedly held that the concept of public policy as justification for a derogation from a fundamental freedom must be interpreted strictly, with the result that its scope cannot be determined unilaterally by each Member State without any control by the EU institutions. It follows that public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (see, to that effect, judgment of 2 June 2016, Bogendorff von Wolffersdorff, C‑438/14, EU:C:2016:401, paragraph 67, and of 13 July 2017, E, C‑193/16, EU:C:2017:542, paragraph 18 and the case-law cited).
49


In that regard, as is apparent from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), in accordance with Article 52(3) of the Charter, the rights guaranteed by Article 7 thereof have the same meaning and the same scope as those guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.