Minister voor Vreemdelingenzaken en Integratie v R. N. G. Eind.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Cunha Rodrigues
• ECLI: ECLI:EU:C:2007:407
• Docket Number: C-291/05
• Date: 05 July 2007
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 5 July 2007 ¹(1)

Case C‑291/05

Minister voor Vreemdelingenzaken en Integratie

v

Rachel Nataly Geradina Eind

(Reference for a preliminary ruling from the Raad van State (Netherlands))

(Free movement of persons – Right of residence – Migrant worker returning to his State of origin – Right of a migrant worker’s daughter, who is a third-country national, to reside in her father’s State of origin when he returns to his home country – Regulation (EEC) No 1612/68, Directive 90/364/EEC and Article 18 EC)

I – Introduction

1. By order of 13 July 2005, the Raad van State (Council of State) Netherlands, referred to the Court of Justice under Article 234 EC for a preliminary ruling a number of questions on the interpretation of Community provisions on the free movement of persons, with particular reference to the right of residence of a third-country national who is a family member of a national of a Member State.

2. Those questions were raised in proceedings between the Minister voor Vreemdelingenzaken en Integratie (Netherlands Minister for Immigration and Integration) and Ms Rachel Nataly Geradina Eind, a national of Surinam and the daughter of a Netherlands national, concerning the lawfulness of a decision not to issue to Ms Eind a permit to reside in the Netherlands.

II – Legislative background

3. The Community legislation relevant to the questions submitted by the Raad van State is that which applied before the entry into force of Directive 2004/38/EC of the European Parliament and of the Council. (2)

4. Article 17 EC provides:

‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.’

According to Article 18(1) EC, ‘[e]very citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in [the EC] Treaty and by the measures adopted to give it effect.’

5. Article 39 EC provides as follows:

‘1. Freedom of movement for workers shall be secured within the Community.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

4. …’

6. Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, (3) provides as follows in Article 1, with regard to access to employment:

‘1. Any national of a Member State, shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State.

2. He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as nationals of that State.’

7. Article 10(1) of that regulation, (4) concerning workers’ families, provides as follows:

‘1. The following shall, irrespective of their nationality, have the right to instal themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a) his spouse and their descendants who are under the age of 21 years or are dependants;

(b) dependent relatives in the ascending line of the worker and his spouse.’

8. Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, (5) provides, in particular, as follows:

‘Article 1

1. Member States shall, acting as provided in this directive, abolish restrictions on the movement and residence of nationals of the said States and of members of their families to whom Regulation (EEC) No 1612/68 applies.

…

Article 3

1. Member States shall allow the persons referred to in Article 1 to enter their territory simply on production of a valid identity card or passport.

2. No entry visa or equivalent document may be demanded save from members of the family who are not nationals of a Member State. Member States shall accord to such persons every facility for obtaining any necessary visas.

Article 4

1. Member States shall grant the right of residence in their territory to the persons referred to in Article 1 who are able to produce the documents listed in paragraph 3.

…

4. A member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the worker on whom he is dependent.’

9. Article 1 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (6) provides as follows:

‘1. Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community law and to members of their families as defined in paragraph 2, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.

…

2. The following shall, irrespective of their nationality, have the right to instal themselves in another Member State with the holder of the right of residence:

(a) his or her spouse and their descendants who are dependants;

(b) dependent relatives in the ascending line of the holder of the right of residence and his or her spouse.’

III – The facts and the questions submitted to the Court

10. In February 2000, Mr Runaldo Ruben Leonard Eind moved from the Netherlands, of which he is a national, to the United Kingdom, where he worked as an employee and where, in December of that year, he was joined by his daughter Ms R. N. G. Eind (born on 29 April 1989), she having come direct from Surinam, of which State she is a national.

11. By letter of 4 June 2001, the United Kingdom authorities informed Mr Eind that he was entitled to reside in the United Kingdom by virtue of Regulation No 1612/68. By letter of the same date, Ms Eind was informed that she was entitled to reside in the United Kingdom in her capacity as a member of a Community worker’s family. Mr Eind received a residence permit valid from 6 June 2001 to 6 June 2006.

12. On 17 October 2001, Mr Eind and his daughter entered the Netherlands. On 9 November 2001, Ms Eind registered with the police authorities and asked them to issue a permit for a specified period to enable her to reside with her father in that State.

13. By decision of 2 January 2002, the Staatssecretaris van Justitie (State Secretary for Justice) (Netherlands) rejected Ms Eind’s application on the ground that she did not hold a temporary residence permit, adding that she could not be granted a residence permit on the basis of her status as a member of the family of a ‘Community national’, that is to say, under national law, a national of a Member State entitled, under the EC Treaty, to enter and reside in another Member State. On the latter point, it was stated in the decision that Mr Eind could no longer be regarded as a ‘Community national’ since, after residing in another Member State and returning to the Netherlands, he had not carried on any effective and genuine activities in the Netherlands and could not be considered to be economically non‑employed within the meaning of Community law.

14. Ms Eind lodged an objection against that decision. On 21 May 2002, before the administrative commission assigned to deal with Ms Eind’s objection, Mr Eind stated that he had been in receipt of social assistance since his return to the Netherlands and that from the same date, for reasons of illness, he had neither been engaged in nor sought any employment. He added that he had had an interview on 7 May 2002 at the Banenmarkt (Employment Office) with a view to his re-entering the employment market and was awaiting a second interview.

15. The objection submitted by Ms Eind against the decision of 2 January 2002 was rejected by decision of the Staatssecretaris van Justitie of 5 July 2002, in which among other things it was stated that Mr Eind could not be regarded as economically non-employed within the meaning of Community law since he did not personally have adequate resources but was in receipt of social assistance.

16. However, on 20 October 2004 the Rechtbank te ’s‑Gravenhage (Court of The Hague) (Netherlands), referring to the judgments of the Court of Justice in Antonissen (7) and Singh, (8) set aside the second decision and referred the case to the Minister voor Vreemdelingenzaken en Integratie for the objection to be reviewed.

17. The Minister appealed against the judgment of the Rechtbank te ’s‑Gravenhage to the Raad van State, which, by order of 13 June 2005 (‘the order for...