Kreshnik Ymeraga and Others v Ministre du Travail, de l’Emploi et de l’Immigration.
Date: 2013-05-08
28. Second, 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 the FEU Treaty and that it aims in particular to strengthen that right (see Case C‑256/11 Dereci and Others  [2011] ECR I‑0000, paragraph 50 and the case-law cited).
30. The Court has already had occasion to state that a Union citizen who has never exercised his right of freedom of movement and has always resided in a Member State of which he is a national, is not covered by the concept of ‘beneficiary’ for the purposes of that provision, so that Directive 2004/38 is not applicable to him (Case C‑434/09 McCarthy  [2011] ECR I‑3375, paragraphs 31 and 39, and Dereci and Others , paragraph 54).
31. Similarly, it has been held that, in so far as a Union citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, their family member is not covered by that concept either, given that the rights conferred by that directive on the family members of a beneficiary of that directive are not autonomous rights of those family members, but derived rights, acquired through their status as members of the beneficiary’s family (see McCarthy , paragraph 42, and Dereci and Others , paragraph 55).
33. It follows that Directives 2003/86 and 2004/38 are not applicable to third-country nationals who apply for the right of residence in order to join a family member who is a Union citizen and has never exercised his right of freedom of movement as a Union citizen, always having resided as such in the Member State of which he holds the nationality (see, to that effect, Dereci and Others , paragraph 58).
Article 20 TFEU
34. As regards Article 20 TFEU, the Treaty provisions on citizenship of the Union do not confer any autonomous right on third-country nationals (Case C‑40/11 Iida [2012] ECR I‑0000, paragraph 66).
35. Any rights conferred on third-country nationals by the Treaty provisions on Union citizenship are not autonomous rights of those nationals but rights derived from the exercise of freedom of movement by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow them 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 ( Iida , paragraphs 67 and 68).
36. In this respect, the Court has already held that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence cannot, exceptionally, without undermining the effectiveness of the Union citizenship that citizen enjoys, be refused to a third-country national who is a family member of his if, as a consequence of refusal, that citizen would be obliged in practice to leave the territory of the European Union altogether, thus denying him the genuine enjoyment of the substance of the rights conferred by virtue of his status (see Dereci and Others , paragraphs 64, 66 and 67, and Iida , paragraph 71).
37. The common element in the above situations is that, although they are governed by legislation which falls a priori within the competence of the Member States, namely legislation on the right of entry and stay of third-country nationals outside the scope of provisions of secondary legislation which, under certain conditions, provide for the attribution of such a right, they none the less have an intrinsic connection with the freedom of movement of a Union citizen, which prevents the right of entry and residence being refused to those nationals in the Member State of residence of that citizen, in order not to interfere with that freedom (see, to that effect, Iida , paragraph 72).
38. The Court has also found, in this respect, that the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted ( Dereci and Others , paragraph 68).
40. As to the fundamental rights mentioned by the referring court, it must be borne in mind that, in accordance with Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing European Union law. Under Article 51(2) thereof, the Charter does not extend the field of application of European Union law beyond the powers of the Union, and it does not establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the Court is called on to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it (see Dereci and Others , paragraph 71, and Iida , paragraph 78).
41. To determine whether the Luxembourg authorities’ refusal to grant Mr Kreshnik Ymeraga’s family members a right of residence as family members of a Union citizen is a situation involving the implementation of European Union law within the meaning of Article 51 of the Charter, it must be ascertained among other things whether the national legislation at issue is intended to implement a provision of European Union law, what the character of that legislation is, and whether it pursues objectives other than those covered by European Union law, even if it is capable of indirectly affecting that law, and also whether there are specific rules of European Union law on the matter or capable of affecting it (see Case C‑309/96 Annibaldi [1997] ECR I‑7493, paragraphs 21 to 23, and Iida , paragraph 79).