Case C-457/12 S and G, judgment of 12 March 2014

Key point
  • A third‑country national can derive a right of residence in a Member State where their family member, a EU citizen, resides from their family member’s right to free movement as workers under Article 45 TFEU
Facts
  • In both cases, the claimant is a third‑country national and homemaker for a family member who is an EU citizen who frequently travels to another Member State for work
  • The claimants had their residency applications rejected by the Member States they reside in with their family
  • Issue arose as to whether the claimants can derive a right of residence from their family member’s right to free movement as workers under Article 45 TFEU, as an extension of Carpenter where it was held that a right of residence could be derived from a family member’s right to free movement to provide services under Article 56 TFEU
Held
  • Such a right of residence can indeed be derived under Article 45 TFEU
  • Whether to grant a right of residence in each case was referred back to the national courts to decide
Judgment

Does Article 45 apply?

  • ‘Union citizens in comparable situations to sponsor S and sponsor G fall within the scope of Article 45 TFEU. Any Union citizen who, under an employment contract, works in a Member State other than that of their place of residence falls within the scope of Article 45 TFEU’: [39]

Can a right of residence be derived?

  • ‘Admittedly, the Court’s interpretation of Article 56 TFEU in Carpenter is transposable to Article 45 TFEU. The effectiveness of the right to freedom of movement of workers may require that a derived right of residence be granted to a third‑country national who is a family member of the worker – a Union citizen – in the Member State of which the latter is a national.’: [40]
  • ‘However, the purpose and justification of such a derived right of residence is based on the fact that a refusal to allow it would be such as to interfere with the exercise of fundamental freedoms guaranteed by the FEU Treaty’: [40]
  • It is for the referring court in each case to decide whether the grant of a derived right of residence is necessary to guarantee the EU citizen’s fundamental freedom under Article 45 TFEU: [42]
  • The fact that the third‑country national takes care of the EU citizen’s children is a relevant factor but is not decisive: [43]
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