Case C‑423/12

Flora May Reyes

v

Migrationsverket

(Request for a preliminary ruling from the Kammarrätten i Stockholm — Migrationsöverdomstolen)

‛Request for a preliminary ruling — Directive 2004/38/EC — Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Right of residence in a Member State of a third-country national who is a direct descendant of a person having the right of residence in that Member State — Concept of ‘dependant’’

Summary — Judgment of the Court (Fourth Chamber), 16 January 2014

1. Citizenship of the Union — Right to move and reside freely in the territory of the Member State — Directive 2004/38 — Beneficiaries — Dependent family member — Concept — Form of evidence

   (European Parliament and Council Directive 2004/38, Art. 2(2)(c))

2. Citizenship of the Union — Right to move and reside freely in the territory of the Member State — Directive 2004/38 — Beneficiaries — Dependent family member — Concept — Personal circumstances of age, professional qualifications and state of health offering reasonable chances of obtaining employment in the host Member State — No effect

   (European Parliament and Council Directive 2004/37, Art. 2(2)(c))

1.  Article 2(2)(c) 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 must be interpreted as meaning that a Member State cannot require a direct descendant who is 21 years old or older, in circumstances where a Union citizen regularly, for a significant period, pays a sum of money to that descendant, necessary in order for him to support himself in the State of origin, in order to be regarded as dependent and thus come within the definition of a family member under that provision, to have tried unsuccessfully to obtain employment or to obtain subsistence support from the authorities of his country of origin and/or otherwise to support himself.

   The requirement for such evidence, which is not easy to provide in practice, is likely to make it excessively difficult for that descendant to obtain the right of residence in the host Member State. Accordingly, that requirement is likely to deprive Articles 2(2)(c) and 7 of Directive 2004/38 of their proper effect.

   (see paras 22, 24, 26, 28, operative part 1)

2.  Article 2(2)(c) 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 must be interpreted as meaning that the fact that a relative — due to personal circumstances such as age, education and health — is deemed to be well placed to obtain employment and in addition intends to start work in the Member State does not affect the interpretation of the requirement in that provision that he be a ‘dependant’.

   The opposite solution would, in practice, prohibit that descendant from looking for employment in the host Member State and would accordingly infringe Article 23 of that directive, which expressly authorises such a descendant, if he has the right of residence, to take up employment or self-employment.

   (see paras 32, 33, operative part 2)

Case C‑423/12

Flora May Reyes

v

Migrationsverket

(Request for a preliminary ruling from the Kammarrätten i Stockholm — Migrationsöverdomstolen)

‛Request for a preliminary ruling — Directive 2004/38/EC — Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Right of residence in a Member State of a third-country national who is a direct descendant of a person having the right of residence in that Member State — Concept of ‘dependant’’

Summary — Judgment of the Court (Fourth Chamber), 16 January 2014

1. Citizenship of the Union — Right to move and reside freely in the territory of the Member State — Directive 2004/38 — Beneficiaries — Dependent family member — Concept — Form of evidence

   (European Parliament and Council Directive 2004/38, Art. 2(2)(c))

2. Citizenship of the Union — Right to move and reside freely in the territory of the Member State — Directive 2004/38 — Beneficiaries — Dependent family member — Concept — Personal circumstances of age, professional qualifications and state of health offering reasonable chances of obtaining employment in the host Member State — No effect

   (European Parliament and Council Directive 2004/37, Art. 2(2)(c))

1.  Article 2(2)(c) 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 must be interpreted as meaning that a Member State cannot require a direct descendant who is 21 years old or older, in circumstances where a Union citizen regularly, for a significant period, pays a sum of money to that descendant, necessary in order for him to support himself in the State of origin, in order to be regarded as dependent and thus come within the definition of a family member under that provision, to have tried unsuccessfully to obtain employment or to obtain subsistence support from the authorities of his country of origin and/or otherwise to support himself.

   The requirement for such evidence, which is not easy to provide in practice, is likely to make it excessively difficult for that descendant to obtain the right of residence in the host Member State. Accordingly, that requirement is likely to deprive Articles 2(2)(c) and 7 of Directive 2004/38 of their proper effect.

   (see paras 22, 24, 26, 28, operative part 1)

2.  Article 2(2)(c) 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 must be interpreted as meaning that the fact that a relative — due to personal circumstances such as age, education and health — is deemed to be well placed to obtain employment and in addition intends to start work in the Member State does not affect the interpretation of the requirement in that provision that he be a ‘dependant’.

   The opposite solution would, in practice, prohibit that descendant from looking for employment in the host Member State and would accordingly infringe Article 23 of that directive, which expressly authorises such a descendant, if he has the right of residence, to take up employment or self-employment.

   (see paras 32, 33, operative part 2)