Cases C-456/12 O. and B. and C-457/12 S. and G.: Clarifying the inter-state requirement for EU citizens?

By Nathan Cambien

It is common knowledge that, barring exceptional circumstances, only EU citizens who exercise their free movement rights can invoke the right to be joined or accompanied by close family members. An EU citizen who moves to another Member State can take his close family members along, even if the latter are not EU citizens themselves; the same is true when the EU citizen later returns to his home Member State. So far, everything is pretty much clear.

 However, there still remains a large degree of uncertainty as to how much ‘movement’ is in fact required in order to be able to invoke this right. Does it suffice to go on a daytrip to another Member State (e.g. to visit an amusement park)? Does it suffice to work in another Member State without moving there? Is it necessary to reside in the other Member State for a number of months or even years?

 In her recent Opinion in Cases C-456/12 and C-457/12, AG Sharpston urges the CJEU:

‘to take the opportunity afforded by these two references 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.’

 In what follows, I will briefly discuss the CJEU’s judgments and analyse their key points. As will become clear, the Court did in fact respond to the AG’s call, by providing further clarification on this point.

 Facts and judgments

The facts of Case C-456/12 and Case C-457/12 are rather similar. Both cases concern third-country family members of Netherlands nationals who have moved to other Member States. The Netherlands nationals in Case C-456/12 had in the past resided in another Member State; the Netherlands nationals in Case C-457/12 had always resided in the Netherlands, but were regularly travelling to another Member State for work purposes. The question arose whether their family members could derive a right of residence in the Netherlands from Directive 2004/38 and Article 21(1) TFEU.

 Rather unsurprisingly, the CJEU holds that Directive 2004/38 does not establish a residence right for third-country family members of an EU citizen in his home Member State. The Court infers this from both the wording of the Directive (which refers to ‘another Member State’) and the aim of the Directive (‘facilitating and strengthening the right to move and reside’).

 Interestingly, however, the Court considers that, in the circumstances of Case C-456/12, residence rights may be derived from Article 21(1) TFEU. The reason is that an EU citizen could be discouraged from moving to another Member State if he could not, on return to his home Member State, continue the family life he established in the host Member State. The Court refers to its famous judgments in Singh and Eind, which concerned obstacles to the free movement of workers, and makes it clear that the same reasoning also holds in cases where the general free movement right of Article 21(1) TFEU is at stake.

Consequently, Article 21(1) TFEU does confer a residence right on family members even in the EU citizen’s home Member State. The Court explains that, although Directive 2004/38 is not applicable to such residence, the directive should be applied by analogy and the conditions governing such residence should not be stricter than those provided for by the directive.

However, Article 21(1) TFEU can only be relied on ‘where the residence of the Union citizen in the host Member State has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that Member State’. This implies that the EU citizen must have lawfully resided in the host Member State for more than three months (in accordance with Article 7 of Directive 2004/38) or even have acquired a permanent residence right there (pursuant to Article 16 of the directive). Shorter periods of residence by the EU citizen in the host Member State (in accordance with Article 6 of Directive 2004/38) do not establish residence rights for his family members.

In Case C-457/12 the Dutch sponsors were living in the Netherlands, but working in Belgium at least one day every week. The question arose whether Article 45 TFEU could be relied on in order to derive a residence right for their third-country family members.

The CJEU points out that the situation falls within the scope of Article 45 TFEU and that Article 45 TFEU precludes refusing a residence right to a family member of an EU citizen where such would discourage the latter from exercising his free movement rights as a migrant worker.

One relevant factor in this regard is whether the family member takes care of the EU citizen’s child. In Carpenter, the CJEU considered that an EU national’s spouse should be granted a residence right if she takes care of the latter’s children, and as such enables him to provide cross-border services. The same reasoning applies, according to the Court where the EU citizen is employed in another Member State. However, the mere fact that it might be desirable that the child be cared for by a family member who is not the EU citizen’s spouse, is not sufficient in itself for that person to be able to derive a residence right from Article 45 TFEU.


So did the CJEU finally clarify the inter-state requirement? To a large extent it did. The Court made it clear that only longer periods of residence in another Member State (of at least three months) or regular cross-border work entitle family members of the EU citizen concerned to reside in the home Member State. Besides, it appears that ‘past’ movement is not immediately relevant: third-country nationals who only became family members after the EU citizen had stopped exercising his free movement rights, cannot rely on EU law to derive a residence right. Striking is that the Court, while explicitly stating that Directive 2004/38 does not apply, still uses the directive to a large extent as a ‘yardstick’ to determine both the extent of the ‘movement’ that is required and the conditions governing residence upon return to the home Member State.

The CJEU’s approach is rather formalistic. An EU citizen who lives a minimum of three months in another Member State, where he meets his wife, may be able to bring her back to his home Member State, while an EU citizen who visits another Member State every weekend for many years may not. The Court’s judgment on this point is remarkably different from AG Sharpston’s Opinion. The AG was not persuaded that a minimum period of continuous residence in another Member State could be required, although she considered the length of an EU citizen’s stay in another Member State as a relevant quantitative criterion. The Court’s approach appears to be less nuanced than the AG’s approach, but may be easier to apply for national courts.

In any event, some degree of uncertainty as to how much ‘movement’ is required, still remains after these judgments. On the one hand, national courts will be faced with the difficult task of determining whether a period of residence abroad was sufficiently ‘genuine’ and has enabled the EU citizen to ‘create or strengthen’ family life. Periods of residence that give rise to a permanent residence right (in principle, after five years) apparently suffice, but what about periods of residence of less than five years and more than three months? On the other hand, national courts are asked to apply the controversial Carpenter reasoning, which will generate a host of new questions. It is not clear, for instance, which family members can derive a right of residence as primary carer of an EU citizen’s children, or what conditions govern the carer’s residence right.

In sum, the judgments in cases C-456/12 and C-457/12 are a significant step towards clarifying the inter-state requirement, but further guidance will inevitably be needed from future judgments.