Key facts of the case:
Reference for a preliminary ruling: tribunal du travail de Bruxelles - Belgium.
Citizenship of the Union - Article 20 TFEU - Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the previous exercise by him of his right of free movement in the territory of the Member States - Grant, in the same circumstances, of a derived right of residence, to an ascendant relative, a third country national, upon whom the minor child is dependent - Consequences of the right of residence of the minor child on the employment law requirements to be fulfilled by the third-country national ascendant relative of that minor.
Outcome of the case:
In the light of all the above considerations, I am of the opinion that the Court should answer the matters raised by the Tribunal du travail de Bruxelles as follows:
4) Article 6 TEU (former Article 6 EU) provides:
‘1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
33) In the proceedings brought against the two decisions of the National Employment Office refusing Mr Ruiz Zambrano’s claim to temporary and full unemployment benefit, the Tribunal du travail de Bruxelles (Employment Tribunal, Brussels) referred the following questions for a preliminary ruling:
‘(1) Do Articles 12 [EC], 17 [EC] and 18 [EC], or one or more of them when read separately or in conjunction, confer a right of residence upon a citizen of the Union in the territory of the Member State of which that citizen is a national, irrespective of whether he has previously exercised his right to move within the territory of the Member States?
(2) Must Articles 12 [EC], 17 [EC] and 18 [EC], in conjunction with the provisions of Articles 21, 24 and 34 of the Charter of Fundamental Rights, be interpreted as meaning that the right which they recognise, without discrimination on the grounds of nationality, in favour of any citizen of the Union to move and reside freely in the territory of the Member States means that, where that citizen is an infant dependent on a relative in the ascending line who is a national of a non-member State, the infant’s enjoyment of the right of residence in the Member State in which he resides and of which he is a national must be safeguarded, irrespective of whether the right to move freely has been previously exercised by the child or through his legal representative, by coupling that right of residence with the useful effect whose necessity is recognised by Community case-law (Case C-200/02 Zhu and Chen), and granting the relative in the ascending line who is a national of a non-member State, upon whom the child is dependent and who has sufficient resources and sickness insurance, the secondary right of residence which that same national of a non-member State would have if the child who is dependent upon him were a Union citizen who is not a national of the Member State in which he resides?
(3) Must Articles 12 [EC], 17 [EC] and 18 [EC], in conjunction with the provisions of Articles 21, 24 and 34 of the Charter of Fundamental Rights, be interpreted as meaning that the right of a minor child who is a national of a Member State to reside in the territory of the State in which he resides must entail the grant of an exemption from the requirement to hold a work permit to the relative in the ascending line who is a national of a non-member State, upon whom the child is dependent and who, were it not for the requirement to hold a work permit under the national law of the Member State in which he resides, fulfils the condition of sufficient resources and the possession of sickness insurance by virtue of paid employment making him subject to the social security system of that State, so that the child’s right of residence is coupled with the useful effect recognised by Community case-law (Case C-200/02 Zhu and Chen) in favour of a minor child who is a European citizen with a nationality other than that of the Member State in which he resides and is dependent upon a relative in the ascending line who is a national of a non-member State?’
61) These and other features of the fundamental rights at issue here – the right to family life and the rights of the child – are reflected, respectively, in Articles 7 and 24(3) of the Charter. At the material time the Charter was ‘soft’ law and did not bind the Belgian authorities. However, it was already being relied upon by the Court as an aid to interpretation, including in cases involving the right to family life. (35) Since the entry into force of the Treaty of Lisbon, the Charter has acquired the status of primary law. (36)
84) It would be paradoxical (to say the least) if a citizen of the Union could rely on fundamental rights under EU law when exercising an economic right to free movement as a worker, or when national law comes within the scope of the Treaty (for example, the provisions on equal pay) or when invoking EU secondary legislation (such as the services directive), but could not do so when merely ‘residing’ in that Member State. Setting aside, for the purposes of the illustration, any protection to be derived within the national legal order itself from invoking Article 8 of the ECHR, let us suppose (rather implausibly) that a national rule in Member State A grants enhanced protection for freedom of religious expression only to persons who have resided there continuously for 20 years. A national of Member State A (like Marie-Nathalie D’Hoop) who had in the past exercised rights to freedom of movement by going to the neighbouring Member State B and who had only recently returned to Member State A would be able to rely on his fundamental rights against his Member State of nationality in the context of his citizenship of the Union (invoking both Article 9 of the ECHR and Article 10 of the Charter). Would an 18 year old citizen of the Union who was a national of Member State B, but who had been born and had always lived in Member State A, be able to do likewise? (There is no discrimination in the contested national rule that is based directly or indirectly on nationality, so Article 18 TFEU [formerly Article 12 EC] cannot be invoked.) On the basis of Garcia Avello, the answer is surely ‘yes’ – but giving that answer implies that the ‘right to reside’ is a free-standing right, rather than a right that is linked by some legal umbilical cord to the right to move. What, finally (and here I also foreshadow the discussion of reverse discrimination) of the 18 year old citizen of the Union who is a national of Member State A, who resides there and who cannot point to some further link with EU law that has arisen either by accident or design (for example, that he has travelled to Member State B on a school visit)?
154) Over succeeding years, the EU has reinforced its policy on fundamental rights through (for example) setting up a Fundamental Rights Agency, (121) creating an independent portfolio within the Commission responsible for fundamental rights, (122) supporting humanitarian projects throughout the world (123) and transforming the Charter of Fundamental Rights of the EU, first proclaimed in 2000, from a non-binding text (‘soft law’) into primary law. (124) Fundamental rights have thus become a core element in the development of the Union as a process of economic, legal and social integration aimed at providing peace and prosperity to all its citizens.
175) At that stage, the Treaty on European Union had remained essentially unchanged since Maastricht. The Court had clearly stated in Opinion 2/94 that the European Community had, at that point, no powers to ratify the European Convention of Human Rights. (152) The Charter was still soft law, with no direct effect or Treaty recognition. The Lisbon Treaty was not even on the horizon. Against that background, I simply do not think that the necessary constitutional evolution in the foundations of the EU, such as would justify saying that fundamental rights under EU law were capable of being relied upon independently as free-standing rights, had yet taken place.