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JUDGMENT OF
THE COURT (Grand Chamber)
11 December
2007 (*)
(Freedom of
movement for persons – Workers – Right of residence for a family
member who is a third-country national – Return of the worker to the
Member State of which he is a national – Obligation for the workerÕs
Member State of origin to grant a right of residence to the family member
– Whether there is such an obligation where the worker does not carry on
any effective and genuine activities)
In Case
C-291/05,
REFERENCE
for a preliminary ruling under Article 234 EC, by the Raad van State
(Netherlands), made by decision of 13 July 2005, received at the Court on 20
July 2005, in the proceedings
Minister
voor Vreemdelingenzaken en Integratie
v
R.N.G.
Eind,
THE COURT
(Grand Chamber),
composed of
V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts
and G. Arestis, Presidents of Chambers, J.N. Cunha Rodrigues (Rapporteur), R. Silva
de Lapuerta, K. Schiemann, J. Makarczyk and A. Borg Barthet, Judges,
Advocate
General: P. Mengozzi,
Registrar:
M. Ferreira, Principal Administrator,
having
regard to the written procedure and further to the hearing on 6 September 2006,
after
considering the observations submitted on behalf of:
– the
Minister voor Vreemdelingenzaken en Integratie, by A. van Leeuwen, advocaat,
– R.N.G.
Eind, by R. Ketwaru, advocaat,
– the
Netherlands Government, by H. G. Sevenster and C. Wissels and by M. de
Grave, acting as Agents,
– the
Czech Government, by T. Bo‹ek, acting as Agent,
– the
Danish Government, by A. Jacobsen, acting as Agent,
– the
German Government, by M. Lumma and C. Schulze-Bahr, acting as Agents,
– the
Greek Government, by K. Georgiadis and K. Boskovits, and by Z. Chatzipavlou,
acting as Agents,
– the
United Kingdom Government, by E. OÕNeill, acting as Agent, assisted by S.
Moore, Barrister,
– the
Commission of the European Communities, by G. Rozet and M. van Beek, acting as
Agents,
after
hearing the Opinion of the Advocate General at the sitting on 5 July 2007,
gives the
following
Judgment
1 This
reference for a preliminary ruling concerns the interpretation of Article 18
EC; Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of
movement for workers within the Community (OJ, English Special Edition 1968
(II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July
1992 (OJ 1992 L 245, p. 1) (ÔRegulation No 1612/68Õ); and Council Directive
90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180,
p. 26).
2 The
reference was made in the context of proceedings between Miss Eind, a national
of Surinam, and the Minister voor Vreemdelingenzaken en Integratie (Netherlands
Minister responsible for immigration, nationality and integration issues)
concerning a decision of the Staatssecretaris van Justitie (State Secretary for
Justice) refusing to grant her a residence permit.
Legislative
background
Community
provisions
3 Article
10 of Regulation No 1612/68 provides:
Ô1. The
following shall, irrespective of their nationality, have the right to instal
themselves with a worker who is a national of one Member State and who is
employed in the territory of another Member State:
(a) his
spouse and their descendants who are under the age of 21 years or are
dependants;
ÉÕ.
4 Article
1 of Directive 90/364 is worded as follows:
Ô1. Member
States shall grant the right of residence to nationals of Member States who do
not enjoy this right under other provisions of Community law and to members of
their families as defined in paragraph 2, provided that they themselves and the
members of their families are covered by sickness insurance in respect of all
risks in the host Member State and have sufficient resources to avoid becoming
a burden on the social assistance system of the host Member State during their
period of residence.
É
2. The
following shall, irrespective of their nationality, have the right to instal
themselves in another Member State with the holder of the right of residence:
(a) his
or her spouse and their descendants who are dependants;
ÉÕ.
National
provisions
5 Article
1(e) of the Law on Aliens (Vreemdelingenwet; Ôthe LawÕ) of 23 November 2000
(Stb. 2000, No 495) states that ÔCommunity nationalsÕ is to be understood as
meaning the following:
Ô1. nationals
of the Member States of the European Union who, under the Treaty establishing
the European Community, have the right to enter and reside on the territory of
another Member State;
2. members
of the families of the persons referred to in subparagraph 1 who are nationals
of a third country and who, on the basis of a decision taken in implementation
of the Treaty establishing the European Community, have the right to enter and
reside on the territory of a Member State ÉÕ.
6 Article
1(h) of the Law defines Ôtemporary residence permitÕ as a visa for a stay of
over three months which is issued, following a request in person, to a foreign
national by a diplomatic mission or consulate of the Netherlands in the country
of origin or permanent residence.
7 Article
14(1)(a) of the Law empowers the Minister for Justice to accept, to refuse or
not to consider an application for a residence permit for a fixed period. Under
Article 14(2), a residence permit for a fixed period is subject to restrictions
relating to the purpose for which the stay was authorised.
8 Article
16(1)(a) of the Law provides that an application for a residence permit for a
fixed period may be refused if the foreign national does not have a valid
temporary residence permit which was issued for the same purpose as that for
which the residence permit is being sought.
The
main proceedings and the questions referred for a preliminary ruling
9 In
February 2000, Mr Eind, a Netherlands national, went to the United Kingdom,
where he found employment. He was subsequently joined by his daughter Rachel,
born in 1989, who arrived direct from Surinam.
10 According
to the order for reference, the United Kingdom authorities informed Mr Eind on
4 June 2001 that he had a right to reside in the United Kingdom by virtue of
Regulation No 1612/68. By letter of the same date, his daughter was informed
that she also had a right to reside in the United Kingdom in her capacity as a
member of the family of a Community worker. Mr Eind accordingly received a
residence permit valid from 6 June 2001 to 6 June 2006.
11 On
17 October 2001, Mr Eind and his daughter entered the Netherlands. Miss
Eind registered with the Amsterdam police and applied for a residence permit
pursuant to Article 14 of the Law.
12 Before
the administrative committee assigned to deal with that request, Mr Eind stated
that, since his return to the Netherlands, he had been in receipt of social
assistance and that, because of ill health, he had not been employed, nor had
he sought employment. He also stated, however, that he had had an interview at
the Banenmarkt (Employment Office) with a view to his re-entering the
employment market and that he was awaiting a second interview. It also appears
from the case-file that Mr Eind is covered by sickness insurance in the
Netherlands.
13 By
decision of 2 January 2002, the Staatssecretaris van Justitie refused Miss
EindÕs application on the ground that she did not hold a temporary residence
permit. The decision further stated that she could not be granted a residence
permit on the basis of her status as a member of the family of a Community
national. Although her father had resided in a Member State other than the
Netherlands, he had not, since his return to the Netherlands, been engaged in
effective and genuine activities and was not economically non-active for the
purposes of the EC Treaty. In those circumstances, Mr Eind could no longer be
regarded as a Community national for the purposes of the Law.
14 The
objection lodged by Miss Eind against that decision was rejected by decision of
the Staatssecretaris van Justitie of 5 July 2002. However, by judgment of 20
October 2004, the Rechtbank te Ôs-Gravenhage (District Court of The Hague),
referring to the judgments in Case C-370/90 Singh [1992] ECR I-4265 and Case
C-292/89 Antonissen
[1991] ECR I-745, set aside the decision of the Staatssecretaris van Justitie
of 5 July 2002 and referred the case back to the Minister voor
Vreemdelingenzaken en Integratie for the objection to be reconsidered.
15 The
Minister voor Vreemdelingenzaken en Integratie appealed against that judgment
to the Raad van State (Council of State), which, on the view that Community law
does not give an unequivocal answer to the issues raised by the case before it,
decided to stay the proceedings and refer the following questions to the Court
for a preliminary ruling:
Ô(1) (a) If
a third-country national is regarded by a host Member State as a member of the
family of a worker, within the meaning of Article 10 of Regulation É
No 1612/68 of 15 October 1968 É and if the validity of the residence
permit granted by that Member State has not yet expired, does this mean that
the Member State of which the worker is a national may not, for that very
reason, deny the third-country national the right of entry and residence on the
return of the worker?
(b) If
the previous question has to be answered in the negative, is that Member State
itself permitted, where that third-country national arrives in its territory,
to determine on the basis of national law whether that person satisfies the
conditions for entry and residence, or must that Member State first determine
whether the third-country national still derives rights from Community law as a
member of the workerÕs family?
(2) Does
it make any difference to the answers to the two preceding questions if, prior
to his stay in the host Member State, the third-country national had no right
of residence, under national law, in the Member State of which the worker is a
national?
(3) (a) If
the Member State of which the worker (Òthe reference personÓ) is a national is
permitted, on the workerÕs return, to determine whether the conditions laid
down in Community law for the issue of a residence permit as a family member
are still fulfilled, does a third-country national who is a member of the
family of the reference person who has returned from the host Member State to
the Member State of which he is a national in order to seek employment there
have a right of residence in the latter Member State and, if so, for how long?
(b) Does
that right also exist if the reference person does not carry on any effective
and genuine activities in the É Member State [of which he is a national] and
cannot, or can no longer, be regarded as seeking employment, in the context of
É Directive 90/364 É, in view of the fact that the reference person is in
receipt of welfare benefit by virtue of his Netherlands nationality?
(4) What
significance for the answers to the previous questions is to be attached to the
fact that the third-country national is a member of the family of a citizen of
the Union who has exercised his right under Article 18 of the Treaty
establishing the European Community and who has returned to the Member State of
which he is a national?Õ
Preliminary
observations
16 In
its written observations and at the hearing, the United Kingdom Government
pointed out that the residence permit obtained by Miss Eind in the United
Kingdom was issued pursuant to national law and not on the basis of Article 10
of Regulation No 1612/68. The United Kingdom Government made it clear that that
residence permit did not reflect a Community law obligation but rather a policy
choice made in the light of the national legislation.
17 The
order for reference, by contrast, indicates that, by letter of 4 June 2001, the
United Kingdom authorities informed Miss Eind that, in her capacity as a member
of a Community workerÕs family, she had a right to reside in the United Kingdom
pursuant to Regulation No 1612/68.
18 In
that regard, it must be borne in mind that, in the procedure of cooperation
established by Article 234 EC, it is not for the Court of Justice but for the
national court to ascertain the facts which have given rise to the dispute and
to establish the consequences which they have for the judgment which it is
required to deliver (see, inter alia, Case C-435/97 WWF and Others [1999] ECR I-5613, paragraph
32, and Case C-510/99 Tridon [2001] ECR I-7777, paragraph 28).
19 Accordingly,
the answers to the questions referred by the national court must be predicated
on the same assumption as that on which that court based itself, namely that
Miss Eind resided in the United Kingdom on the basis of Article 10 of
Regulation No 1612/68.
The
questions referred for a preliminary ruling
Question
1(a)
20 By
this question, the national court asks, essentially, whether, in the event of a
Community worker returning to the Member State of which he is a national,
Community law requires the authorities of that State to grant a right of entry
and residence to a third-country national who is a member of that workerÕs
family, because of the mere fact that, in the Member State where the worker was
gainfully employed, that third-country national held a valid residence permit
issued on the basis of Article 10 of Regulation No 1612/68.
21 It
must be borne in mind that, according to the wording of Article 10(1)(a) of
Regulation No 1612/68, where a worker is a national of one Member State and is
employed in the territory of another Member State, his spouse and the
descendants who are under the age of 21 years or are dependants have the right,
irrespective of their nationality, to install themselves with that worker.
22 It
follows, inter alia, from the fifth recital in the preamble to Regulation No
1612/68 that that regulation is intended to eliminate barriers to the mobility
of workers, Ôin particular as regards the workerÕs right to be joined by his
family and the conditions for the integration of that family into the host
countryÕ.
23 The
right to family reunification under Article 10 of Regulation No 1612/68 does
not entail for members of the families of migrant workers any autonomous right
to free movement, since that provision benefits the migrant worker whose family
includes a national of a third country (see, in respect of Article 11 of
Regulation No 1612/68, Case C-10/05 Mattern and Cikotic [2006] ECR I-3145, paragraph
25).
24 It
follows that the right of a third-country national who is a member of the
family of a Community worker to install himself with that worker may be relied
on only in the Member State where that worker resides.
25 Under
Regulation No 1612/68, the effects of the residence permit issued by the
authorities of a Member State to a third-country national who is a member of a
Community workerÕs family are confined to the territory of that Member State.
26 In
the light of the foregoing, the answer to Question 1(a) must be that, in the
event of a Community worker returning to the Member State of which he is a
national, Community law does not require the authorities of that State to grant
a right of entry and residence to a third-country national who is a member of
that workerÕs family because of the mere fact that, in the host Member State where
that worker was gainfully employed, that third-country national held a valid
residence permit issued on the basis of Article 10 of Regulation No 1612/68.
Questions
2 and 3(b)
27 By
these questions, which it is appropriate to consider together, the national
court asks, essentially, whether, when a worker returns to the Member State of
which he is a national, after being gainfully employed in another Member State,
a third-country national who is a member of his family has a right under
Community law to reside in the Member State of which the worker is a national,
even where that worker does not carry on effective and genuine economic
activities. The national court also asks whether the fact that, before residing
in the host Member State where the worker was employed, the third-country
national did not have a right, under national law, to reside in the Member
State of which the worker is a national may have a bearing on that nationalÕs
right of residence.
28 As
a preliminary point, it must be borne in mind that the right of nationals of
one Member State to reside in the territory of another Member State without
being engaged in any activity, whether on an employed or a self-employed basis,
is not unconditional. Under Article 18(1) EC, the right of every citizen of the
Union to reside in the territory of the Member States is recognised subject to
the limitations and conditions imposed by the Treaty and by the measures
adopted for its implementation (see, to that effect, Case C-456/02 Trojani [2004] ECR I-7573, paragraphs
31 and 32, and Case C-200/02 Zhu and Chen [2004] ECR I-9925, paragraph 26).
29 Among
those limitations and conditions is the provision made in the first
subparagraph of Article 1(1) of Directive 90/364, under which the Member States
may require citizens of the Union who are not economically active and wish to
enjoy the right to reside in their territory, to ensure that they themselves
and the members of their families are covered by sickness insurance in respect
of all risks in the host Member State and have sufficient resources to avoid
becoming a burden on the social assistance system of the host Member State
during their period of residence.
30 The
right of residence enjoyed by the members of the family of an economically
non-active citizen of the Union under Article 1(2) of Directive 90/364 is
linked to the right enjoyed by that citizen under Community law.
31 In
the main proceedings, since Mr Eind is a Netherlands national, his right to
reside in the territory of the Netherlands cannot be refused or made
conditional.
32 As
was rightly pointed out by the Advocate General in points 101 to 106 of his
Opinion, the right of the migrant worker to return and reside in the Member
State of which he is a national, after being gainfully employed in another
Member State, is conferred by Community law, to the extent necessary to ensure
the useful effect of the right to free movement for workers under Article 39 EC
and the provisions adopted to give effect to that right, such as those laid
down in Regulation No 1612/68. That interpretation is substantiated by the
introduction of the status of citizen of the Union, which is intended to be the
fundamental status of nationals of the Member States.
33 In
their written observations, the Netherlands and Danish Governments contended
that a Community national is unlikely to be deterred from moving to the host
Member State in order to take up gainful employment there by the prospect of
not being able, on returning to his Member State of origin, to continue a
family life which may have been established in the host Member State. In
particular, the Netherlands Government emphasised the fact that Mr Eind
could not have been deterred from exercising that freedom, through moving to
the United Kingdom, by the fact that it would be impossible for his daughter to
reside with him once he returned to his Member State of origin, given that at
the time of the initial move Miss Eind did not have a right to reside in
the Netherlands.
34 That
approach cannot be accepted.
35 A
national of a Member State could be deterred from leaving that Member State in
order to pursue gainful employment in the territory of another Member State if
he does not have the certainty of being able to return to his Member State of
origin, irrespective of whether he is going to engage in economic activity in
the latter State.
36 That
deterrent effect would also derive simply from the prospect, for that same
national, of not being able, on returning to his Member State of origin, to
continue living together with close relatives, a way of life which may have
come into being in the host Member State as a result of marriage or family
reunification.
37 Barriers
to family reunification are therefore liable to undermine the right to free
movement which the nationals of the Member States have under Community law, as
the right of a Community worker to return to the Member State of which he is a
national cannot be considered to be a purely internal matter.
38 It
follows that, in circumstances such as those in the case before the referring
court, Miss Eind has the right to install herself with her father, Mr Eind, in
the Netherlands, even if the latter is not economically active.
39 That
right remains subject to the conditions laid down in Article 10(1)(a) of
Regulation No 1612/68, which apply by analogy.
40 Thus,
a person in the situation of Miss Eind may enjoy that right so long as she has
not reached the age of 21 years or remains a dependant of her father.
41 This
finding is not affected by the fact that, before residing in the host Member
State where her father was gainfully employed, Miss Eind did not have a right
of residence, under national law, in the Member State of which Mr Eind is a
national.
42 Contrary
to the contentions of the Netherlands, Danish and German Governments, the
inability to rely on such a right has no bearing on the recognition of a right
of entry and residence for such a child, in her capacity as a member of a
Community workerÕs family, in the Member State of which he is a national.
43 First
of all, the basis for requiring such a right is not laid down, expressly or by
implication, in any provision of Community law relating to the right of residence
in the Community of third-country nationals who are members of the families of
Community workers. According to settled case-law of the Court of Justice,
secondary Community legislation on movement and residence cannot be interpreted
restrictively (see, inter alia, in respect of Regulation No 1612/68, Case
267/83 Diatta
[1985] ECR 567, paragraphs 16 and 17, and Case C-413/99 Baumbast
and R [2002]
ECR I-7091, paragraph 74).
44 Secondly,
such a requirement would run counter to the objectives of the Community
legislature, which has recognised the importance of ensuring protection for the
family life of nationals of the Member States in order to eliminate obstacles
to the exercise of the fundamental freedoms guaranteed by the Treaty (Case
C-60/00 Carpenter
[2002] ECR I-6279, paragraph 38, and Case C-459/99 MRAX [2002] ECR I-6591, paragraph
53).
45 In
the light of all the above considerations, the answer to Questions 2 and 3(b)
must be that, when a worker returns to the Member State of which he is a national,
after being gainfully employed in another Member State, a third-country
national who is a member of his family has a right under Article 10(1)(a) of
Regulation No 1612/68, which applies by analogy, to reside in the Member State
of which the worker is a national, even where that worker does not carry on any
effective and genuine economic activities. The fact that a third-country
national who is a member of a Community workerÕs family did not, before
residing in the Member State where the worker was employed, have a right under
national law to reside in the Member State of which the worker is a national
has no bearing on the determination of that nationalÕs right to reside in the
latter State.
Question
1(b), Question 3(a) and Question 4
46 In
view of the answers given to Question 1(a), Question 2 and Question 3(b), there
is no need to answer the other questions referred by the national court.
Costs
47 Since
these proceedings are, for the parties to the main proceedings, a step in the
action pending before the national court, the decision on costs is a matter for
that court. Costs incurred in submitting observations to the Court, other than
the costs of those parties, are not recoverable.
On those
grounds, the Court (Grand Chamber) hereby rules:
1. In
the event of a Community worker returning to the Member State of which he is a
national, Community law does not require the authorities of that State to grant
a right of entry and residence to a third-country national who is a member of
that workerÕs family because of the mere fact that, in the host Member State
where that worker was gainfully employed, that third-country national held a
valid residence permit issued on the basis of Article 10 of Regulation (EEC) No
1612/68 of the Council of 15 October 1968 on freedom of movement for workers
within the Community, as amended by Council Regulation (EEC) No 2434/92 of
27 July 1992.
2. When
a worker returns to the Member State of which he is a national, after being
gainfully employed in another Member State, a third-country national who is a
member of his family has a right under Article 10(1)(a) of Regulation No
1612/68 as amended by Regulation No 2434/92, which applies by analogy, to
reside in the Member State of which the worker is a national, even where that
worker does not carry on any effective and genuine economic activities. The
fact that a third-country national who is a member of a Community workerÕs
family did not, before residing in the Member State where the worker was employed,
have a right under national law to reside in the Member State of which the
worker is a national has no bearing on the determination of that nationalÕs
right to reside in the latter State.
[Signatures]
------------------------------------------------------------------------
*
Language of the case: Dutch.