Context
Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely grants qualifying Union citizens rights of residence in Member States other than their own, and allows family members to derive rights of residence from the Union citizen. As McCarthy showed, this does not apply within a Union citizen's home state. It is possible for family members to derive rights of residence from the Treaty within a Union citizen's home state, and this is what the Court considered in C-456/12 O and B and C-457/12 S and G.
Background
These cases attempt to derive rights of residence for TCN family members within a Union citizen's home state under EU law based on different links to EU law. O and B concerned TCN family members living with their Dutch sponsors in the Netherlands, where the sponsors had no current links to another Member State, but where they had previously lived in another Member State with the TCN family member. This is in contrast to S and G, where the TCN family members claimed rights of residence based upon their familial relationship with Dutch citizens currently working within another Member State, as frontier workers.
AG Sharpston's Opinion
Advocate General Sharpston delivered her joint Opinion for both cases on 12 December 2013. In this, she urged the Court to take the opportunity to "give clear and structured guidance as to the circumstances in which the third country national family member of an EU citizen who is residing in his home Member State but who is exercising his rights of free movement can claim a derived right of residence in the home Member State under EU law."
Judgment of the Court
In both cases, the CJEU agreed with the referring court that Directive 2004/38 establishes no derived right of residence for TCN family members in the Member State of which the Union citizen is a national (O and B para 37-43; S and G para 34). This meant that the Treaty became the only potential source of residence rights under EU law.
O and B and Article 21(1) TFEU
The Court emphasised that the reason for which residence rights of TCNs may be derived from Article 21(1) TFEU was the fact that a refusal to allow such a right of residence would interfere with the Union citizen's freedom of movement by discouraging him from exercising rights of entry into and residence within the host Member State. The Court discussed the principle applied in Singh and Eind whereby Union citizen workers returning to their Member State of origin after a period working within another Member State can have the residence rights of their family members recognised within their home Member State.
The Court determined that the principle developed in relation to workers was capable of general application to family members of Union citizens who had resided in another Member State exercising rights under Article 21(1) TFEU (para 49), as the obstacle to be removed (genuine deterrence of a Union citizen exercising their rights to free movement) was the same. In determining when this could apply, the Court suggested that the conditions to be fulfilled to grant TCN family members rights of residence within a returning Union citizen's state of origin should not be more strict than those applied by Directive 2004/38 under the circumstances where a Union citizen and family member live in a host Member State: the Directive should be applied by analogy.
The Court emphasised that the Union citizen and TCN family member's residence in the host Member State must have been 'sufficiently genuine' so as to count as family life, and the length of and reason for residence in the host state is relevant. The Court observed that residence under Article 6(1) of Directive 2004/38 (residence for up to three months) does not demonstrate an attempt to create or strengthen family life in the host Member State, so would not have to be granted in the home Member State.
Residence under Article 7(1)-(2) of Directive 2004/38 would be, in principle, genuine and capable of developing family life, so Article 21(1) TFEU can require that family life to continue within the home Member State through the grant of a derived right of residence to the TCN family member. The Court found that where a right of permanent residence had been granted within the host Member State, a Union citizen returning to their Member State of origin is entitled to be accompanied by a TCN family member who had also been granted the right of permanent residence within the host state (para 59).
S and G and Article 45 TFEU
In S and G, the Court had a somewhat simpler job: the Union citizen family members had a current link to another Member State in that they travelled to Belgium regularly for work. The Court referred to Carpenter, in which Article 56 TFEU had given rise to the right to reside of a TCN spouse within the service provider's state of origin, and found that the interpretation of Article 56 TFEU was transposable to Article 45 TFEU (para 40). As such, Article 45 TFEU must be interpreted as conferring rights of residence on TCN family members within a Union citizen's home Member State where that Union citizen regularly travels to another Member State as a worker if the refusal to grant such a right of residence discourages the worker from effectively exercising his rights under Article 45 TFEU, which would be for the national court to determine.
Comment
In S and G, the Court took a logical step and extended Carpenter from protecting the freedom to provide services to another Member State, to protecting the freedom to work within another Member State. The TCN family members relying upon interference with Article 45 TFEU as a source of residence rights need to convince the domestic court that the worker would be discouraged from working within another Member State without their residence within the worker's home Member State.
O and B builds upon the principles developed in Singh and Eind, and demonstrates the applicability of these principles since the introduction of Directive 2004/38. This decision is of more interest than S and G: it takes up AG Sharpston's call to provide clear clarification as to the circumstances in which rights of residence may be derived from Article 21(1) TFEU, and bases its approach very much upon Directive 2004/38. The CJEU established the idea that residence of a Union citizen and family member under Articles 7 or 16 of the Directive can give rise to residence rights under Article 21(1) TFEU upon return to the home Member State. As such, the Court potentially tackles some injustices caused by reverse discrimination due to restrictive national immigration law. It referred to the periods of residence in Singh and Eind (2.5 years and 1.5 years respectively), but did not suggest a minimum period of residence in a host Member State for a TCN family member to qualify for residence rights in reliance upon Article 21(1) TFEU within the Union citizen's home state.
The focus in O and B is to protect genuine family life which has been 'created or strengthened' within the host Member State and to prevent the refusal of residence rights for a family member restricting a Union citizen's exercise of free movement rights. While the assessment in relation to family life in the host Member State is left to the national court, the CJEU has made clear that temporary, intermittent residence does not qualify for TCN residence rights upon return under Article 21(1) TFEU, that a right of permanent residence in the host Member State definitely does, and that residence under Article 7 can also qualify. The CJEU emphasised that residence within the host state to create or strengthen family life must have been as family members, and followed Directive 2004/38's definition of family member – so Mr B, who married his Dutch wife after she had resided in the host state with him, had not been residing as a family member during that time, due to not yet being the spouse of a Union citizen. The efforts the Court took in mapping out when reliance upon this derived right from the Treaty are applicable are commendable, and far from its approach to reliance upon the Treaty as a source of residence rights in Zambrano.
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