Key facts of the case:
Reference for a preliminary ruling: Verwaltungsgerichtshof - Austria.
Citizenship of the Union - Right of residence of nationals of third countries who are family members of Union citizens - Refusal based on the citizen’s failure to exercise the right to freedom of movement - Possible difference in treatment compared with EU citizens who have exercised their right to freedom of movement - EEC-Turkey Association Agreement - Article 13 of Decision No 1/80 of the Association Council - Article 41 of the Additional Protocol - ‘Standstill’ clauses.
Outcome of the case:
In light of all these considerations, I propose that the Court answer the questions asked by the Verwaltungsgerichtshof as follows:
37) The foregoing considerations ultimately prove to be a simple application of the criteria adopted in the abovementioned judgments in Ruiz Zambrano and McCarthy. They are based on the premiss that ‘the substance of the rights attaching to the status of European Union citizen’ within the meaning of the abovementioned judgment in Ruiz Zambrano does not include the right to respect for family life enshrined in Article 7 of the Charter of Fundamental Rights of the European Union and in Article 8(1) of the ECHR.
39) This position can be explained less by respect for the wording of Article 20(2) TFEU, in which the list of rights enjoyed by Union citizens is clearly not exhaustive, (25) than by the concern that the Union’s powers and those of its institutions should not encroach on those of the Member States in the field of immigration or on those of the European Court of Human Rights in the field of protection of fundamental rights, in accordance with Article 6(1) TEU and Article 51(2) of the Charter of Fundamental Rights. (26)