On 12 March 2014 the Grand Chamber of the Court of Justice (“CoJ”) delivered two judgments in preliminary reference cases upon request by the Raad van State (Council of State, Netherlands). In both cases, namely Case C-456/12 O. and B. v Minister voor Immigratie, Integratie en Asiel and Case C-457/12 S. and G. v Minister voor Immigratie, Integratie en Asiel, the Netherlands’ authorities had refused to grant a right of residence to a third-country national who is a family member of an EU citizen of Netherlands nationality.

I will keep this post short as I will mention only the findings of the CoJ concerning the interpretation of the Citizenship Directive (Directive 2004/38/EC) and Articles 21 and 45 TFEU that I consider important. For those interested in the facts or further details, pls have a look at the judgments or the press release by the CoJ.

In my view the most important statements of the CoJ concern the creation of a derived right of residence for third-country nationals in a Member State directly on the basis of Articles 21 and 45 TFEU and they are the following:

1. Article 21(1) TFEU and Directive 2004/38 do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals by provisions of EU law on Union citizenship are rights derived from the exercise of freedom of movement by a Union citizen.

2. However, Directive 2004/38 does not establish a derived right of residence for third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a national.

3. The question arising is whether in such circumstances a derived right of residence may be based on Article 21(1) TFEU. The CoJ recalls that the purpose and justification of that derived right of residence is based on the fact that a refusal to allow such a right 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. For instance, if a Union citizen has resided with a third-country family member in another Member State (i.e. not the Member State of which he is a national) for a certain period of time, and was employed there, the third-country national must, when the Union citizen returns to the Member State of which he is a national, be entitled, under Union law, to a derived right of residence in the latter State. If that is not the case, a worker who is a Union citizen could be discouraged from leaving his home Member State in order to pursue gainful employment in another Member State simply because of the prospect for that worker of not being able to continue, on returning to his Member State, a way of family life which may have come into being in the host Member State as a result of marriage or family reunification. The grant of a derived right of residence to a third-country national who is a family member of that Union citizen and with whom that citizen has resided, solely by virtue of his being a Union citizen, seeks to remove such obstacle by guaranteeing that that citizen will be able, in his home Member State, to continue the family life which he created or strengthened in the host Member State.

4. The conditions for granting such derived right of residence to the third-country family member should not in principle be stricter than the grant of a derived right of residence under Directive 2004/38 which applies by analogy even though this Directive does not cover the return of the Union citizen to his home Member State.

5. The effectiveness of the right to freedom of movement of workers (Article 45 TFEU) may require that a derived right of residence be granted to a third-country national who is a family member of the worker (Union citizen) in the Member State in which the latter is a national. However, the purpose of such a derived right of residence is based on the fact that a refusal to allow it would be such as to interfere with the exercise of fundamental freedoms guaranteed by the TFEU. In order to reach this conclusion the CoJ recalled the Carpenter case-law.