Yoshikazu Iida v Stadt Ulm.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Silva de Lapuerta
• ECLI: ECLI:EU:C:2012:691
• Docket Number: C‑40/11
• Date: 08 November 2012
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Third Chamber)

8 November 2012 ( *1 )

‛Articles 20 TFEU and 21 TFEU — Charter of Fundamental Rights of the European Union — Article 51 — Directive 2003/109/EC — Third-country nationals — Right of residence in a Member State — Directive 2004/38/EC — Third-country nationals who are family members of Union citizens — Third-country national neither accompanying nor joining a Union citizen in the host Member State and remaining in the citizen’s Member State of origin — Right of residence of a third-country national in the Member State of origin of a citizen residing in another Member State — Citizenship of the Union — Fundamental rights’

In Case C‑40/11,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Verwaltungsgerichtshof Baden-Württemberg (Germany), made by decision of 20 January 2011, received at the Court on 28 January 2011, in the proceedings

Yoshikazu Iida

v

Stadt Ulm,

THE COURT (Third Chamber),

composed of R. Silva de Lapuerta (Rapporteur), acting as President of the Third Chamber, K. Lenaerts, E. Juhász, T. von Danwitz and D. Šváby, Judges,

Advocate General: V. Trstenjak,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 22 March 2012,

after considering the observations submitted on behalf of:

— Mr Y. Iida, by T. Oberhäuser and W. Weh, Rechtsanwälte,

— the German Government, by T. Henze and A. Wiedmann, acting as Agents,

— the Belgian Government, by L. Van den Broeck and C. Pochet, acting as Agents,

— the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

— the Danish Government, by C.H. Vang, acting as Agent,

— the Italian Government, by G. Palmieri, acting as Agent, and L. D’Ascia, avvocato dello Stato,

— the Netherlands Government, by C. Wissels, K. Bulterman and J. Langer, acting as Agents,

— the Polish Government, by M. Szpunar, acting as Agent,

— the United Kingdom Government, by S. Hathaway, and subsequently by A. Robinson, acting as Agents, and R. Palmer, barrister,

— the European Commission, by C. Tufvesson and H. Krämer, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 May 2012,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of the provisions of European Union law on the right of residence in a Member State of third-country nationals and on citizenship of the Union.

2 The reference has been made in proceedings between Mr Iida and Stadt Ulm (City of Ulm) concerning its refusal to grant him a right of residence in Germany on the basis of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34) and to issue him a residence card on that basis.

Legal context

European Union law

Directive 2003/109/EC

3 Under the heading ‘Subject matter’, Article 1(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third‑country nationals who are long-term residents (OJ 2003 L 16, p. 44) provides: ‘This Directive determines: (a) the terms for conferring and withdrawing long-term resident status granted by a Member State in relation to third-country nationals legally residing in its territory, and the rights pertaining thereto …’

4 In accordance with Article 3(1) and (2) of Directive 2003/109, ‘Scope’: ‘1. This Directive applies to third-country nationals residing legally in the territory of a Member State. 2. This Directive does not apply to third-country nationals who: (a) reside in order to pursue studies or vocational training; (b) are authorised to reside in a Member State on the basis of temporary protection or have applied for authorisation to reside on that basis and are awaiting a decision on their status; (c) are authorised to reside in a Member State on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States or have applied for authorisation to reside on that basis and are awaiting a decision on their status; (d) are refugees or have applied for recognition as refugees and whose application has not yet given rise to a final decision; (e) reside solely on temporary grounds such as au pair or seasonal worker, or as workers posted by a service provider for the purposes of cross-border provision of services, or as cross-border providers of services or in cases where their residence permit has been formally limited; (f) enjoy a legal status governed by the Vienna Convention on Diplomatic Relations of 1961, the Vienna Convention on Consular Relations of 1963, the Convention of 1969 on Special Missions or the Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character of 1975.’

5 Article 4(1) of that directive provides: ‘Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within [their] territory for five years immediately prior to the submission of the relevant application.’

6 Article 5 of that directive, ‘Conditions for acquiring long-term resident status’, provides: ‘1. Member States shall require third-country nationals to provide evidence that they have, for themselves and for dependent family members: (a) stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions prior to the application for long-term resident status; (b) sickness insurance in respect of all risks normally covered for [its] own nationals in the Member State concerned. 2. Member States may require third-country nationals to comply with integration conditions, in accordance with national law.’

7 Under the heading ‘Acquisition of long-term resident status’, Article 7(1) and (3) of the directive provides: ‘1. To acquire long-term resident status, the third-country national concerned shall lodge an application with the competent authorities of the Member State in which he/she resides. The application shall be accompanied by documentary evidence to be determined by national law that he/she meets the conditions set out in Articles 4 and 5 as well as, if required, by a valid travel document or its certified copy. The evidence referred to in the first subparagraph may also include documentation with regard to appropriate accommodation. … 3. If the conditions provided for by Articles 4 and 5 are met, and the person does not represent a threat within the meaning of Article 6, the Member State concerned shall grant the third-country national concerned long-term resident status.’

8 Under the heading ‘Long-term resident’s EC residence permit’, Article 8(1) and (2) of the directive provides: ‘1. The status as long-term resident shall be permanent, subject to Article 9. 2. Member States shall issue a long-term resident’s EC residence permit to long-term residents. The permit shall be valid at least for five years; it shall, upon application if required, be automatically renewable on expiry.’

Directive 2004/38

9 Chapter I of Directive 2004/38, ‘General provisions’, comprises Articles 1 to 3.

10 Article 2 of Directive 2004/38, ‘Definitions’, provides: ‘For the purposes of this Directive: 1. “Union citizen” means any person having the nationality of a Member State; 2. “family member” means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b); 3. “host Member State” means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.’

11 Article 3 of the directive, ‘Beneficiaries’, provides: ‘1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them. 2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in...