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CJEU Case C-34/09 / Opinion

Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm)

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
30/09/2010

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:

  • Articles 20 and 21 TFEU (formerly Articles 17 and 18 EC) are to be interpreted as conferring a right of residence in the territory of the Member States, based on citizenship of the Union, that is independent of the right to move between Member States. Those provisions do not preclude a Member State from refusing to grant a derived right of residence to an ascendant relative of a citizen of the Union who is a national of the Member State concerned and who has not yet exercised rights of free movement, provided that that decision complies with the principle of proportionality.
  • Article 18 TFEU (formerly Article 12 EC) should be interpreted as prohibiting reverse discrimination caused by the interaction of Article 21 TFEU with national law that entails a violation of a fundamental right protected under EU law, where at least equivalent protection is not available under national law.
  • At the material time in the main proceedings, the fundamental right to family life under EU law could not be invoked as a free-standing right, independently of any other link with EU law, either by a non-Member State national or by a citizen of the Union, whether in the territory of the Member State of which that citizen was a national or elsewhere in the territory of the Member States.