Shirley McCarthy v Secretary of State for the Home Department.

• Jurisdiction: European Union
• Celex Number: 62009CJ0434
• ECLI: ECLI:EU:C:2011:277
• Date: 05 May 2011
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-434/09

Case C-434/09

Shirley McCarthy

v

Secretary of State for the Home Department

(Reference for a preliminary ruling from the Supreme Court

of the United Kingdom, formerly the House of Lords)

(Freedom of movement for persons – Article 21 TFEU – Directive 2004/38/EC – ‘Beneficiary’ – Article 3(1) – National who has never made use of his right of free movement and has always resided in the Member State of his nationality – Effect of being a national of another Member State – Purely internal situation)

Summary of the Judgment

1. Citizenship of the European Union – Right to move and reside freely in the territory of the Member States – Directive 2004/38 – Beneficiary – Meaning

(European Parliament and Council Directive 2004/38, Art. 3(1))

2. Citizenship of the European Union – Treaty provisions – Not applicable in a situation purely internal to a Member State – Citizen of the Union who has never made use of his right of free movement, having always resided in the Member State of his nationality and possessing the nationality of another Member State

(Art. 21 TFEU)

1.Article 3(1) 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 that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.

First, according to that provision of Directive 2004/38, all Union citizens who ‘move to’ or reside in a Member State ‘other’ than that of which they are a national are beneficiaries of that directive. Second, since the residence of a person residing in the Member State of which he is a national cannot be made subject to conditions, Directive 2004/38, concerning the conditions governing the exercise of the right to move and reside freely within the territory of the Member States, cannot apply to a Union citizen who enjoys an unconditional right of residence due to the fact that he resides in the Member State of which he is a national. Third, it is apparent from that directive, taken as a whole, that the residence to which it refers is linked to the exercise of the freedom of movement for persons.

Hence, a citizen in the situation described above is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that directive is not applicable to him. That finding cannot be influenced by the fact that the citizen concerned is also a national of a Member State other than that where he resides. Indeed, the fact that a Union citizen is a national of more than one Member State does not mean that he has made use of his right of freedom of movement.

(see paras 32, 34-35, 39-41, 57, operative part 1)

2. Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.

The situation of a Union citizen who has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation. As a national of at least one Member State, a person enjoys the status of a Union citizen under Article 20(1) TFEU and may therefore rely on the rights pertaining to that status, including against his Member State of origin, in particular the right conferred by Article 21 TFEU to move and reside freely within the territory of the Member States.

However, the failure, by the authorities of the Member State of which a citizen has nationality and residence, to take into account the nationality of another Member State which that citizen also holds, when deciding on an application for a right of residence under European Union law brought by that citizen, does not mean that measures have been applied that have the effect of depriving the interested party of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States. Accordingly, in such a context, the factor that a national possesses, in addition to the nationality of the Member State where he resides, the nationality of another Member State is not sufficient, in itself, for a finding that the situation of the person concerned is covered by Article 21 TFEU, as that situation has no factor linking it with any of the situations governed by Union law and the situation is confined in all relevant respects within a single Member State.

(see paras 46, 48-49, 54-55, 57, operative part 2)

JUDGMENT OF THE COURT (Third Chamber)

5 May 2011 (*)

(Freedom of movement for persons – Article 21 TFEU – Directive 2004/38/EC – ‘Beneficiary’ – Article 3(1) – National who has never made use of his right of free movement and has always resided in the Member State of his nationality – Effect of being a national of another Member State – Purely internal situation)

In Case C‑434/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Supreme Court of the United Kingdom, formerly the House of Lords (United Kingdom), made by decision of 5 May 2009, received at the Court on 5 November 2009, in the proceedings

Shirley McCarthy

v

Secretary of State for the Home Department,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, D. Šváby, R. Silva de Lapuerta (Rapporteur), E. Juhász and J. Malenovský, Judges,

Advocate General: J. Kokott,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 28 October 2010,

after considering the observations submitted on behalf of:

– Mrs McCarthy, by S. Cox, Barrister, and K. Lewis, Solicitor,

– the United Kingdom Government, by S. Ossowski, acting as Agent, and by T. Ward, Barrister,

– the Danish Government, by C. Vang, acting as Agent,

– the Estonian Government, by M. Linntam, acting as Agent,

– Ireland, by D. O’Hagan and D. Conlan Smyth, acting as Agents, and by B. Lennon, Barrister,

– the Netherlands Government, by C. Wissels and M. de Ree, acting as Agents,

– the European Commission, by D. Maidani and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 November 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 3(1) and Article 16 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 corrigendum OJ 2004 L 229, p. 35).

2 The reference was made in the course of proceedings between Mrs McCarthy and the Secretary of State for the Home Department (‘the Secretary of State’) concerning an application for a residence permit made by Mrs McCarthy.

Legal context

European Union law

3 According to recitals 1 to 3 in the preamble to Directive 2004/38:

‘(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.’

4 Chapter I of Directive 2004/38, entitled ‘General provisions’, comprises Articles 1 to 3 of the directive.

5 Article 1, entitled ‘Subject’, states:

‘This Directive lays down:

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.’

6Article 2 of Directive 2004/38, entitled ‘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...