Right of free movement for EU citizenship.pdf - Andreas Neocleous ...

Can the right of free movement deriving from Union citizenship be
invoked by EU citizens in order to regularise the residence of their
non-EU spouse
Under EU law, when a national of a Member State resides legally in another
Member State, his or her spouse is allowed to remain with him or her even when
the spouse is not a national of an EU Member State.
In a case referred to it by the Supreme Court of the United Kingdom, the
European Court recently decided that a national of a Member State who had
never made use of her right of free movement and had always resided in the
Member State of her nationality has no right to invoke the rules of EU law
designed to facilitate the movement of persons within the territory of the Member
States. In its judgment, the European Court stated that Directive 2004/38, which
relates to the right of free movement of persons, determines the way in which
European citizens can exercise their right to freedom of movement within the
territory of the Member States and the conditions attaching to the exercise of that
right. It regulates the rules governing an individual's right to travel and reside
within Member States other than that of which he or she is a national, not his or
her Member State of nationality.
According to the international law principle reaffirmed in the European
Convention on Human Rights and Fundamental Freedoms signed in Rome on 4
November 1950, EU citizens residing in the Member State of which they are
nationals enjoy the unconditional right of residence in that State. The fact that
an individual is a national of more than one Member State does not mean that he
or she has already used the right of free movement. Dual nationality does not
offer an automatic right to benefit from the freedom of movement and the rights
conferred by the directive.
In its decision the European Court notes that a person who is national of at least
one Member State enjoys the status of EU citizen and may therefore rely on the
rights pertaining to that status and, in particular, the right to move and reside
within the territory of the Member States. However, if the individual does not
exercise this right, his or her non-European spouse is not automatically entitled
to the same benefit.
According to the European Court’s ruling, this situation has no connection with
European Union law but is covered exclusively by national law. Under these
circumstances, the right of residence in a Member State cannot be based on the
rights of European citizenship.
The applicability of Directive 2004/38
According to article 3(1) of Directive 2004/38 all EU citizens who move to or
reside in an EU Member State other than that of which they are a national are

eneficiaries of the Directive. The Directive does not set out in detail the
conditions governing the exercise of this right.
The provisions of article 21 TFEU governing freedom of movement for persons
and the measures adopted to implement them cannot be applied to situations
which have no factor linking them with any of the situations governed by EU law
and which are confined in all relevant respects within a single Member State.
The European Court has already stated several times its view that citizenship of
the European Union is the fundamental status of nationals of its Member States.
A national of at least one Member State enjoys the status of a Union citizen under
article 20(1) TFEU and may, therefore, rely on the rights pertaining to that status,
including the right to move and reside freely within the territory of the Member
States. However, if there is no element indicating that the national measure at
issue in the main proceedings has the effect of depriving an individual of that
right, the article is not applicable.
The right to transfer the benefits of Union citizenship to a non-EU Member State
spouse must be applied within the Member State of which the Union citizen is
both a national and a resident.
Author:
Law Firm:
Website:
Christos Floridis
Andreas Neocleous & Co LLC
www.neocleous.com