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Flashcards in Citizenship II: Rights of Family Members Deck (11)
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Art.7(1)(d) Directive 2004/38

This grants the same rights of residence to family members accompanying or joining an EU citizen to an EU citizen who complies with the conditions in Art.7


Art.2(2) Directive 2004/38

This defines family members for the purposes of the Directive. This includes:

- Spouse
- Civil partner
- Direct descendants under 21 or dependants of the spouse
- Dependant direct relatives in the ascending line of the citizen and their spouse


Art.3(1) Directive 2004/38

Right and benefits set out under Directive ALSO apply to family members set out under Art.2(2)



CJEU held that where an EU citizen's rights to one of the freedoms guaranteed under the Treaties (e.g. Art.49 - freedom to provide services) would NOT be fully effective due to a restriction on the rights of their family members due a particular measure/action, that measure needs to strike a fair balance between this and the competing interest of the MS aim.

Court connected Carpenter's Art.49 TFEU rights with the effect that deporting his wife would have on exercising these - would prevent him from exercising his rights and therefore did NOT strike a fair balance.



Non-EU citizens who were parents caring for EU citizens of child age should have the right to remain in an EU MS as non-EU family members of that child.

It does NOT matter that it seemed like this was planned to grant residence rights to the non-EU parent, or the fact that the child's citizenship was chosen for it.


Akrich (Overruled in Metock)

CJEU originally held that the right of a non-EU spouse to join a moving EU citizen was contingent upon the spouse having lawfully resided with the EU citizen in the home MS BEFORE moving.



CJEU reversed the decision in Akrich and held that the rights of a non-EU spouse joining a moving EU citizen in the new MS is NOT contingent upon the spouse having lawfully resided with them in the original MS.

CJEU held that Art.2(2) makes no such distinction and also argued that EU citizenship is important and should be protected, and also argued that the non-EU spouse should be able to join the citizen due to respect for family life.


Ruiz Zambrano

This concerned a purely internal situation where a Colombian national in Belgium was denied subsistence benefits on grounds that he was an illegal resident, even though he argued that his children (who were EU citizens) needed his parents to have money to provide for them.

CJEU held that Art.20 TFEU precludes national measure which have the effect of depriving citizens of the EU of the genuine enjoyment of the substance of the rights conferred upon them by virtue of their citizenship of the EU. Court said that refusal by Beglium to grant the welfare payment would deprive the children of this right because it would require them having to leave the MS with both of their parents.

Note the high threshold given to the genuine substance of the rights conferred upon them as EU citizens - here it was that they would be forced to leave the EU with both of their parents.



UK woman wanted Jamaican husband to reside with her in the UK, which was prevented by UK immigration laws. CJEU held that Ruiz Zambrano did NOT apply here because it did not deprive McCarthy of the genuine enjoyment of the substance of the rights conferred upon her by virtue of her EU citizenship because it did not have the effect of forcing her to leave the EU.

Shows high threshold in Ruiz Zambrano - only applies where the citizen would be forced to leave EU territory due to the measure



Case concerning Austrian children - one of the parents was a Turkish national without residence rights, whereas one parent DID have residence rights - also a purely internal situation.

CJEU held that the mere fact it is more desirable to an EU citizen to keep their family together does NOT amount to depriving the citizen of he genuine enjoyment of the substance of the rights conferred upon them by Art.20 TFEU as EU citizens.

So where there is one parent who can remain a lawful resident in the EU territory, Ruiz Zambrano does NOT apply - shows how the CJEU has tried to constrain its application (for purely internal situations) in both McCarthy and Derci since the CJEU has maintained the very high threshold set in Ruiz Zambrano for it to apply. I.e. it must force the whole family (inc. EU citizens children) to leave the territory of the EU.


Garcia Avello

CJEU held that the Belgian law not allowing the EU citizens to register double surnames (unlike in Spanish law) would result in them not being able to properly exercise their EU citizenship rights as it would result in serious inconvenience for them both professionally and personally.