23.2.2008

Official Journal of the European Union

C 51/8

(Case C-291/05)

(Freedom of movement for persons - Workers - Right of residence for a family member who is a third-country national - Return of the worker to the Member State of which he is a national - Obligation for the worker's Member State of origin to grant a right of residence to the family member - Whether there is such an obligation where the worker does not carry on any effective and genuine activities)

(2008/C 51/14)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: Minister voor Vreemdelingenzaken en Integratie

Defendant: R.N.G. Eind

Re:

Reference for a preliminary ruling — Nederlandse Raad van State — Interpretation of Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475) and of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26) — Interpretation of Article 18 EC — Right of residence of a family member who is a national of a non-member country — Existence of such a right in the absence of genuine and actual work on the part of the worker — Return of the worker to his or her State of origin — No right of residence in that State for the family member

Operative part of the judgment

1)In the event of a Community worker returning to the Member State of which he is a national, Community law does not require the authorities of that State to grant a right of entry and residence to a third-country national who is a member of that worker's family because of the mere fact that, in the host Member State where that worker was gainfully employed, that third-country national held a valid residence permit issued on the basis of Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992.

2)When a worker returns to the Member State of which he is a national, after being gainfully employed in another Member State, a third-country national who is a member of his family has a right under Article 10(1)(a) of Regulation No 1612/68 as amended by Regulation No 2434/92, which applies by analogy, to reside in the Member State of which the worker is a national, even where that worker does not carry on any effective and genuine economic activities. The fact that a third-country national who is a member of a Community worker's family did not, before residing in the Member State where the worker was employed, have a right under national law to reside in the Member State of which the worker is a national has no bearing on the determination of that national's right to reside in the latter State.

(1) OJ C 296, 26.11.2005.