O and S v Maahanmuuttovirasto and Maahanmuuttovirasto v L.
Date: 2012-12-06
41. With respect, first, to Directive 2004/38, it must be recalled that it is not all third country nationals who are family members of a Union citizen who derive rights of entry into and residence in a Member State from that directive, but only those who are family members of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national (Case C-127/08 Metock and Others  [2008] ECR I-6241, paragraph 73, and Case C-256/11 Dereci and Others  [2011] ECR I-11315, paragraph 56).
42. In the present case, as the Union citizens concerned, both of whom are minors, have never made use of their right of freedom of movement and have always lived in the Member State of which they are nationals, they are not covered by the concept of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38, so that that directive does not apply either to them or to their family members ( Dereci and Others , paragraph 57).
43. With respect, next, to Article 20 TFEU, the Court has previously had occasion to hold that the situation of a Union citizen who, like the children of Finnish nationality concerned in the main proceedings, has not made use of the right of freedom of movement cannot for that reason alone be assimilated to a purely internal situation, that is, a situation which has no factor linking it with any of the situations governed by European Union law (see Ruiz Zambrano ; Case C-434/09 McCarthy  [2011] ECR I-3375, paragraph 46; and Dereci and Others , paragraph 61).
44. Since citizenship of the Union is intended to be the fundamental status of nationals of the Member States, the children of the previous marriages of Ms S and Ms L, as nationals of a Member State, enjoy the status of Union citizens under Article 20(1) TFEU and may therefore rely on the rights pertaining to that status, including against the Member State of which they are nationals (see McCarthy , paragraph 48, and Dereci and Others , paragraph 63).
45. On that basis the Court has held that Article 20 TFEU precludes national measures, including refusals to grant rights of residence to family members of a Union citizen, which have the effect of denying Union citizens the genuine enjoyment of the substance of the rights conferred by their status (see Ruiz Zambrano , paragraph 42).
46. With respect, finally, to the right of residence of a person who is a third country national in the Member State of residence of his minor children, nationals of that Member State, who are dependant on him and of whom he and his spouse have joint custody, the Court has held that the refusal to grant a right of residence would have the consequence that those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents, and that those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred by their status ( Ruiz Zambrano , paragraphs 43 and 44).
48. That criterion is therefore specific in character inasmuch as it relates to situations in which a right of residence, exceptionally, may not be refused to a third country national who is a family member of a national of a Member State, as the effectiveness of the Union citizenship enjoyed by that national would otherwise be undermined ( Dereci and Others , paragraph 67).
51. For the purpose of examining whether the Union citizens concerned would be unable, in fact, to exercise the substance of the rights conferred by their status, the question of the custody of the sponsors’ children and the fact that the children are part of reconstituted families are also relevant. First, since Ms S and Ms L have sole custody of the Union citizens concerned who are minors, a decision by them to leave the territory of the Member State of which those children are nationals, in order to preserve the family unit, would have the effect of depriving those Union citizens of all contact with their biological fathers, should such contact have been maintained up to the present. Secondly, any decision to stay in the territory of that Member State in order to preserve the relationship, if any, of the Union citizens who are minors with their biological fathers would have the effect of harming the relationship of the other children, who are third country nationals, with their biological fathers.
52. However, the mere fact that it might appear desirable, for economic reasons or in order to preserve the family unit in the territory of the Union, for members of a family consisting of third country nationals and a Union citizen who is a minor to be able to reside with that citizen in the territory of the Union in the Member State of which he is a national is not sufficient in itself to support the view that the Union citizen would be forced to leave the territory of the Union if such a right of residence were not granted (see, to that effect, Dereci and Others , paragraph 68).
56. On the other hand, both the permanent right of residence of the mothers of the Union citizens concerned who are minors and the fact that the third country nationals for whom a right of residence is sought are not persons on whom those citizens are legally, financially or emotionally dependent must be taken into consideration when examining the question whether, as a result of the refusal of a right of residence, those citizens would be unable to exercise the substance of the rights conferred by their status. As the Advocate General observes in point 44 of his Opinion, it is the relationship of dependency between the Union citizen who is a minor and the third country national who is refused a right of residence that is liable to jeopardise the effectiveness of Union citizenship, since it is that dependency that would lead to the Union citizen being obliged, in fact, to leave not only the territory of the Member State of which he is a national but also that of the European Union as a whole, as a consequence of such a refusal (see Ruiz Zambrano , paragraphs 43 and 45, and Dereci and Others , paragraphs 65 to 67).
59. Should that court find that, in the circumstances of the cases before it, such a denial does not follow from the refusals of residence permits at issue in the main proceedings, that would be without prejudice to the question whether, on the basis of other criteria, inter alia by virtue of the right to the protection of family life, Mr O and Mr M could not be refused a right of residence. That question must be addressed in the framework of the provisions on the protection of fundamental rights which are applicable in each case (see Dereci and Others , paragraph 69).
60. In this respect, it must be recalled that, in accordance with the case-law of the Court, the Court may find it necessary to consider rules of European Union law which the national court has not referred to in its question but which may be of use in giving judgment in the case pending before it (see, inter alia, Case C-392/05 Alevizos  [2007] ECR I-3505, paragraph 64).
Directive 2003/86
67. In paragraph 48 of the judgment in Dereci and Others , the Court took the view that, in so far as the disputes in the main proceedings concerned Union citizens who resided in a Member State and their family members who were third country nationals who wished to enter and reside in that Member State for the purposes of living as a family with those citizens, Directive 2003/86 was not applicable to those third country nationals.
69. In view of the purpose of Directive 2003/86, which is to promote family reunification (Case C-578/08 Chakroun  [2010] ECR I-1839, paragraph 43), and the protection it aims to give to third country nationals, in particular minors, the application of that directive cannot be excluded solely because one of the parents of a minor third country national is also the parent of a Union citizen, born of a previous marriage.
70. Article 4(1) of Directive 2003/86 imposes on the Member States precise positive obligations, with corresponding clearly defined individual rights. It requires them, in the cases determined by that directive, to authorise the family reunification of certain members of the sponsor’s family, without being left a margin of appreciation (see Case C-540/03 Parliament  v Council  [2006] ECR I-5769, paragraph 60).
71. That provision is, however, subject to compliance with the conditions laid down in particular in Chapter IV of Directive 2003/86. Article 7(1)(c) of that directive forms part of those conditions and allows the Member States to require evidence that the sponsor has stable and regular resources which are sufficient to maintain himself and the members of his family without recourse to the social assistance system of the Member State concerned. That provision also states that Member States are to evaluate those resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members ( Chakroun , paragraph 42).
72. With respect to Article 4(1) of Directive 2003/86, it must be stressed, first, that, in principle, it is the resources of the sponsor that are the subject of the individual examination of applications for reunification required by that directive, not the resources of the third country national for whom a right of residence is sought on the basis of family reunification (see Chakroun , paragraphs 46 and 47).
73. Moreover, as regards those resources, the expression ‘recourse to the social assistance system’ in Article 7(1)(c) of Directive 2003/86 does not allow a Member State to refuse family reunification to a sponsor who proves that he has stable and regular resources which are sufficient to maintain himself and the members of his family, but who, given the level of his resources, will nevertheless be entitled to claim special assistance in order to meet exceptional, individually determined, essential living costs or income support measures (see Chakroun , paragraph 52).
74. Next, since authorisation of family reunification is the general rule, the Court has held that the faculty provided for in Article 7(1)(c) of Directive 2003/86 must be interpreted strictly. The margin which the Member States are recognised as having must therefore not be used by them in a manner which would undermine the objective and the effectiveness of that directive ( Chakroun , paragraph 43).
75. Finally, it must be recalled that, as may be seen from recital 2 in the preamble to Directive 2003/86, the directive respects the fundamental rights and observes the principles enshrined in the Charter.
76. Article 7 of the Charter, which contains rights corresponding to those guaranteed by Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, recognises the right to respect for private and family life. That provision of the Charter must also be read in conjunction with the obligation to have regard to the child’s best interests, recognised in Article 24(2) of the Charter, and with account being taken of the need, expressed in Article 24(3), for a child to maintain on a regular basis a personal relationship with both parents (see Parliament  v Council , paragraph 58, and Case C-403/09 PPU Detiček  [2009] ECR I-12193, paragraph 54).
77. Article 7(1)(c) of Directive 2003/86 cannot be interpreted and applied in such a manner that its application would disregard the fundamental rights set out in those provisions of the Charter.
78. The Member States must not only interpret their national law in a manner consistent with European Union law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the legal order of the European Union (see Parliament  v Council , paragraph 105, and Detiček , paragraph 34).
79. It is true that Articles 7 and 24 of the Charter, while emphasising the importance for children of family life, cannot be interpreted as depriving the Member States of their margin of appreciation when examining applications for family reunification (see, to that effect, Parliament  v Council , paragraph 59).
80. However, in the course of such an examination and when determining in particular whether the conditions laid down in Article 7(1) of Directive 2003/86 are satisfied, the provisions of that directive must be interpreted and applied in the light of Articles 7 and 24(2) and (3) of the Charter, as is moreover apparent from recital 2 in the preamble to and Article 5(5) of that directive, which require the Member States to examine the applications for reunification in question in the interests of the children concerned and with a view to promoting family life.
81. It is for the competent national authorities, when implementing Directive 2003/86 and examining applications for family reunification, to make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned.