Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm).
Date: 2011-03-08
39. It should be observed at the outset that, under Article 3(1) of Directive 2004/38, entitled ‘[b]eneficiaries’, that directive applies to ‘all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members …’. Therefore, that directive does not apply to a situation such as that at issue in the main proceedings.
40. Article 20 TFEU confers the status of citizen of the Union on every person holding the nationality of a Member State (see, inter alia, Case C-224/98 D’Hoop  [2002] ECR I-6191, paragraph 27, and Case C‑148/02 Garcia Avello  [2003] ECR I‑11613, paragraph 21). Since Mr Ruiz Zambrano’s second and third children possess Belgian nationality, the conditions for the acquisition of which it is for the Member State in question to lay down (see, to that effect, inter alia, Case C‑135/08 Rottmann  [2010] ECR I-0000, paragraph 39), they undeniably enjoy that status (see, to that effect, Garcia Avello , paragraph 21, and Zhu and Chen , paragraph 20).
41. As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member States (see, inter alia, Case C‑184/99 Grzelczyk [2001] ECR I‑6193, paragraph 31; Case C‑413/99 Baumbast and R [2002] ECR I‑7091, paragraph 82; Garcia Avello , paragraph 22; Zhu and Chen , paragraph 25; and Rottmann , paragraph 43).
42. In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann , paragraph 42).
43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.
45. Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
Costs