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CJEU Case C-40/11 / Opinion

Yoshikazu Iida v Stadt Ulm

Policy area:
Justice, freedom and security
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
15/05/2012

Key facts of the case:

Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden‑Württemberg (Germany)

‛Article 6 TEU — Articles 20 TFEU and 21 TFEU — Articles 7, 24 and 51 of the Charter of Fundamental Rights of the European Union — Articles 2, 3, 7(2), 10 and 12 of Directive 2004/38/EC — Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms — A national of a Member State who is a minor and who has moved with her mother to another Member State — Right of a third-country national having custody rights to reside in his child’s State of origin — Scope of the Charter of Fundamental Rights of the European Union — Implementation of European Union law’

Outcome of the case:

In the light of all of the foregoing considerations, I propose that the Court should answer as follows the questions which have been referred for a preliminary ruling:

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC does not confer on a parent who has custody rights and is a third-country national a right, in order to maintain a personal relationship and direct parental contact on a regular basis, to remain in the Member State of origin of his child, who is a Union citizen, to be documented by a residence card of a member of the family of a Union citizen, if the child, exercising his or her right of free movement, moves from there to another Member State. In the light of the fundamental rights guaranteed under Article 6(1) and (3) TEU, and in particular those enshrined in Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, a parent who has custody rights and is a third-country national may, in order to maintain a personal relationship and direct parental contact on a regular basis, have a right of residence in the Member State of origin of his child who is a Union citizen under Articles 20 TFEU and 21 TFEU, if the child, exercising his or her right of free movement, has moved from there to another Member State. In order for such a right of residence to exist, the denial thereof must have a restrictive effect on the child’s right of free movement and must be regarded as constituting a disproportionate interference with fundamental rights in the light of the abovementioned fundamental rights. This is a matter which must be assessed by the referring court. There is no right under European Union law to the issue of a residence card for members of the family of a Union citizen as documentary proof of this right of residence.