Article 45 - Freedom of movement and of residence
Article 15 - Freedom to choose an occupation and right to engage in work
n light of the foregoing considerations, I suggest that the Court should answer the request for a preliminary ruling as follows:
Where a Union citizen is a national of two Member States of the European Union but has always lived in only one of those two States, she cannot claim a right of residence under Directive 2004/38/EC in that State.
22) It is nevertheless open to question whether EU law can apply rationemateriae to the present case since Mrs McCarthy has never exercised her right of free movement as resulting from Article 21(1) TFEU, Article 45 TFEU, Article 49 TFEU and Article 56 TFEU (12) and reaffirmed in Articles 15(2) and 45(1) of the Charter of Fundamental Rights of the European Union. (13) The only possible connecting factor with EU law here is Mrs McCarthy’s status as a person with dual nationality, since she is not only a British but also an Irish national.
31) The right of free movement of Union citizens which is enshrined in primary law (Article 21(1) TFEU and Article 45(1) of the Charter of Fundamental Rights) does not alter this in my view. It is true that provisions of secondary law are to be interpreted and applied consistently with primary law, for example the fundamental freedoms in the Treaty. (25) I consider, however, that Directive 2004/38 is consistent with the requirements of primary law. In particular, I am not of the view that Union citizens can derive from Article 21(1) TFEU a right of residence vis-à-vis the Member State of which they are a national even where – as in the case of Mrs McCarthy – there is no cross-border element . (26)