Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court ruled on the applicability of the Charter in a case touching upon family reunion. The complex situation described in the facts of the case gave rise to a request for a preliminary ruling on the application of EU law in general and more specifically of the rights enshrined in articles 7 CFR on respect for private and family life, and 24 CFR on the rights of the child.
In 1998 Mr Iida, a national of Japan, married Ms N.-I, a national of Germany, in the United States. Their daughter Mia was born in 2004 in the United States, and has German, American and Japanese nationality. In December 2005 the family moved to Germany. In January 2006 Mr Iida obtained a residence permit for family reunion. Since February 2006 he has worked full-time in Ulm under a contract of employment for an unlimited period, and receives gross monthly pay of EUR 4 850.
In summer 2007 Mr Iida’s spouse started full-time work in Vienna. At first the spouses maintained the marriage between Ulm and Vienna, but since January 2008 they have been permanently separated, although they have not divorced. Both spouses jointly hold and exercise parental responsibility for their daughter, even though the mother and daughter have since March 2008 been habitually resident in Vienna, where the daughter attends school. Mr Iida regularly visits his daughter in Vienna and the relationship between them is described as excellent.
Mr Iida could not be granted an autonomous right of residence on the basis of German law because the marital cohabitation of him and his spouse had not existed in Germany for at least two years and an exemption from that condition had not been sought. However, because of his employment in Ulm, Mr Iida obtained a residence permit which extended to 2012, subsequent extension being discretionary. Mr Iida asked the City of Ulm to issue him a ‘residence card of a family member of a Union citizen’ but his application was rejected on the ground that he had no claim to such a card under European Union law.
Mr Iida appealed that decision, and his case ultimately reached the Higher Administrative Court of Baden-Württemberg, which decided to stay the proceedings and submit a request for a preliminary ruling to the Court of Justice of the EU.
Does European Union law give a parent who has parental responsibility and is a third-country national, for the purpose of maintaining regular personal relations and direct parental contact, a right to remain in the Member State of origin of his child who is a Union citizen, to be documented by a “residence card of a family member of a Union citizen”, if the child moves from there to another Member State in exercise of the right of freedom of movement?
The Court began its assessment by establishing that Mr Iida had no legal claim to residence on the basis of secondary EU law. In particular, as regards the application of directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, the Court observed that neither Mr Iida’s relationship with his daughter, nor that with his spouse fall within the meaning of a “family member” relationship according to the relevant provisions. Specifically, he is not “dependent” on his daughter, which is a condition for family members of EU citizens in the ascending line for them to be able to benefit from the provisions of the directive. Furthermore, even though he still falls within the definition of a spouse of an EU citizen, since his marriage has not been officially dissolved, he cannot claim residence rights on the basis of his relationship with his spouse either, since he has not accompanied her or moved to join her in a member state other than that of which she is a national (paras 49-65).
The Court, then, moved on to examine the fundamental rights-related questions of the referring court. It first iterated that in accordance with Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing European Union law and does not extend the field of application of European Union law beyond the powers of the Union, nor does it establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the Court is called on to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it.
To determine whether the German authorities’ refusal to grant Mr Iida a ‘residence card of a family member of a Union citizen’ falls within the implementation of European Union law within the meaning of Article 51 of the Charter, the Court stated that it must be ascertained, among other things, whether the national legislation at issue is intended to implement a provision of European Union law, what the character of that legislation is, and whether it pursues objectives other than those covered by European Union law, even if it is capable of indirectly affecting that law, and also whether there are specific rules of European Union law on the matter or capable of affecting it. While the German legislation providing for the issue of a ‘residence card of a family member of a Union citizen’, is indeed intended to implement European Union law, it is none the less the case that the situation of the claimant in the main proceedings is not governed by European Union law, since he does not satisfy the conditions for the grant of that card in accordance with Article 10 of Directive 2004/38. Moreover, in the absence of an application by him for the status of long-term resident in accordance with Directive 2003/109, his situation shows no connection with European Union law.
In those circumstances, the Court found that the German authorities’ refusal to grant Mr Iida a ‘residence card of a family member of a Union citizen’ does not fall within the implementation of European Union law within the meaning of Article 51 of the Charter, so that its conformity with fundamental rights cannot be examined by reference to the rights established by the Charter (paras 78-81).
Free Movement Directive 2004/38/EC
Long-term residents Directive 2003/109/EC
Applicability – Yes or no? Residence permit
Case Study - Residence Rights of Third Country Nationals