CJEU Case C-256/11 / View
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:

Article 20 TFEU must be interpreted to the effect that it does not apply to a Union citizen who is the spouse, parent or minor child of a national of a non-member country, where that Union citizen has never exercised his right to move freely between the Member States and has always resided in the Member State of which he is a national, in so far as the situation of that Union citizen is not accompanied by the application of national measures which have the effect of depriving him of the genuine enjoyment of the substance of the rights attaching to his status as a Union citizen or of impeding the exercise of his right to move and reside freely within the territory of the Member States.

Article 41(1) of the Additional Protocol, signed on 23 November 1970 and annexed to the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963, and Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, drawn up by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, must be interpreted to the effect that they preclude, in a case of a Turkish national such as Mr Dereci, the subjection of the initial entry of such a national to stricter national rules than those which previously applied to such entry, even though those national provisions which had relaxed the preceding initial entry regime did not enter into force until after the date on which the aforementioned articles concerning the association with the Republic of Turkey entered into force in the Member State in question.
Paragraphs referring to EU Charter

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)