CJEU Case C-133/15 / Opinion
Key facts of the case:

Reference for a preliminary ruling — Union citizenship — Article 20 TFEU — Access to social assistance and child benefit conditional on right of residence in a Member State — Third-country national responsible for the primary day-to-day care of her minor child, a national of that Member State — Obligation on the third-country national to establish that the other parent, a national of that Member State, is not capable of caring for the child — Refusal of residence possibly obliging the child to leave the territory of the Member State, or the territory of the European Union.

Outcome of the case:

In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Centrale Raad van Beroep (Higher Social Security Court, Netherlands) as follows:

Article 20 TFEU must be interpreted as precluding a Member State from depriving a third-country national parent, who is responsible for the primary care of his/her young child who is a Union citizen, of residence in the child’s Member State of residence, of which that child is a national, in so far as such a decision would deny that child the genuine enjoyment of the substance of the rights attaching to the status of Union citizen, where it has not been demonstrated that the other parent, who is a citizen of that same Member State, might be able to assume alone the primary care of the child. It is not sufficient, in that regard, to demonstrate that it cannot be excluded that the other parent might in fact be able to care for the child.

It is for the competent authorities of the Member State to raise the issue ex officio and establish whether the other parent is able to assume responsibility for the primary care of the child. Those authorities must take into account all the circumstances of the case, whilst observing the principles of proportionality and the best interests of the child.
Paragraphs referring to EU Charter

2) The Charter of Fundamental Rights of the European Union 6. Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), entitled ‘Respect for private and family life’, provides that ‘everyone has the right to respect for his or her private and family life, home and communications’.

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44). Secondly, Article 3(3) TEU, the first subparagraph of which provides that ‘the Union shall establish an internal market’, provides in the second subparagraph that the Union ‘shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child’. The rights of the child are also enshrined in the Charter. ( 13 ) Article 24 of the Charter recognises that children are independent and autonomous holders of rights. That article also makes the child’s best interests a primary consideration for public authorities and private institutions. ( 14 )

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100) In addition, when weighing up the interests at stake and in so far as the situations at issue in the main proceedings come within the scope of EU law, the referring court must also take into account fundamental rights, observance of which is ensured by the Court, in particular the right to respect for family life, as laid down in Article 7 of the Charter; that article should be read in conjunction with the obligation to take into consideration the best interests of the child, laid down in Article 24(2) of the Charter. ( 79 )

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