Opinion of the Advocate-General

I – The facts in the main proceedings and the questions referred

II – Assessment

A – Compatibility of the requirement of prior lawful residence in another Member State with Directive 2004/38

5. Directive 2004/38 does not provide an explicit answer. It merely confers, in Articles 6, 7 and 16 thereof, a right of residence on a Union citizen’s family members who are not nationals of a Member State, ‘accompanying or joining the Union citizen’. Since an analysis of the text provides no assistance, it is necessary to refer to its objectives. Directive 2004/38 seeks to guarantee the ‘primary and individual right to move and reside freely within the territory of the Member States’ conferred on Union citizens directly by Article 18 EC. (3) It is therefore in the light of the fundamental right of Union citizens to move and reside that the provisions of that directive must be interpreted. The rights that it provides for must be understood in functional terms in such a way that they are given the full scope necessary to ensure the effectiveness of Union citizens’ right to move and reside, but no more. In other words, it is a question of determining whether full and complete enjoyment by a Union citizen of his right of residence means that the right of residence of non-EU national members of a Union citizen’s family, which is a right consequential to and dependent on that of the Union citizen, (4) includes a right to enter the territory of the Union.

6. The intervening Member States cannot validly invoke against this approach, and the response which may result from it, the vertical constitutional division of competences. Although it is true that in principle the Member States remain competent for immigration control, and thus the admission of nationals of non-member countries from outside the territory of the Community, it cannot consequently be deduced that Directive 2004/38 relates only to the movement between Member States of Union citizens and their family members and not to the access of those family members to the territory of the Union. It is established case-law that the Member States must exercise their national competences consistently with Community law and, in particular, the fundamental freedoms of movement. (5) It has thus been expressly ruled that requirements relating to compliance with Union citizens’ right to freedom of movement and residence could constrain the Member States’ exercise of their powers, (6) in particular those which they have in relation to immigration control. (7)

9. If this approach is followed, then it must be acknowledged that interpreting Directive 2004/38 as meaning that the right of residence which it confers on nationals of non-member countries, who are members of the family of a Union citizen in the host Member State, does not guarantee them a right of access to the territory of the Community, that is to say applies only if they have previously been lawfully resident in another Member State, would infringe the right of the Union citizen to lead a normal family life and, therefore, his right to reside in the host Member State. In the cases in the main proceedings, the fact that Union citizens established in Ireland are unable to have their spouses join them from outside the Community is such as to undermine their free choice to reside in that Member State since it will tend to induce them to leave Ireland and go to a State, whether a Member State or not, where they will be able to live together with their spouses. Consequently, the effectiveness of the right of a Union citizen to reside in a Member State other than his State of origin requires that the consequential right of residence conferred on non-EU national members of his family by Directive 2004/38 must be construed as entailing the right to join him, including directly from outside the Union. It follows that a Member State cannot legitimately require those family members to have previously been lawfully resident in another Member State in order to be able to rely on the provisions of that directive.

10. Such an interpretation of Directive 2004/38 is disputed by Ireland and the intervening Member States on the basis of the approach taken in Akrich , (16) according to which the benefit of the right of residence conferred by Article 10 of Regulation No 1612/68 on a national of a non-member country, who is the spouse of a Union citizen and moves to a Member State to which the Union citizen has migrated, is subject to the condition of prior lawful residence in another Member State, since that regulation relates solely to freedom of movement within the Community and says nothing about the rights of that national of a non-member country who is the spouse of a Union citizen as regards access to the territory of the Community.

13. Finally, account should be taken of the changes introduced by Directive 2004/38. Even if the approach in Akrich had a scope which was not limited to the specific circumstances of the case (abuse of rights), it was adopted under and in pursuance of Regulation No 1612/68. As stated in recital 3 in the preamble thereto, Directive 2004/38 seeks not only to codify but also to review the existing legislative instruments in order to ‘strengthen’ the right of free movement and residence of all Union citizens. Furthermore, whereas Regulation No 1612/68 concerned, to cite its title, only ‘freedom of movement’ for workers within the Community, Directive 2004/38 relates, in line with the right set out in Article 18 EC, to the right of Union citizens not only to ‘move’ but also to ‘reside’ freely within the territory of the Member States. In other words, freedom of movement for workers and the rules adopted pursuant thereto were essentially intended to remove obstacles to mobility for workers. Emphasis was therefore placed on the deterrent effect on leaving or entering a Member State which could be caused by the measures taken by the Member States. It is ultimately this view which inspired the ratio decidendi in Akrich. After pointing out that the scheme of the Community law provisions seeks to secure freedom of movement for workers within the Community, whose exercise must not penalise the migrant worker and his family, the Court in fact inferred from this that where a citizen of the Union, established in a Member State and married to a national of a non-member country without the right to remain in that Member State, moves to another Member State in order to work there as an employed person, the fact that that person’s spouse has no right under Article 10 of Regulation No 1612/68 to install himself with that person in the other Member State cannot constitute treatment which is less favourable than that which they enjoyed before the Union citizen made use of the opportunities afforded by the Treaty as regards movement of persons and, accordingly, is not such as to deter the citizen of the Union from exercising the rights in regard to freedom of movement conferred by Article 39 EC; conversely, where a citizen of the Union, established in a Member State and married to a national of a non-member country with a right to remain in that Member State, moves to another Member State in order to work there as an employed person, that move must not result in the loss of the opportunity lawfully to live together, which is the reason why Article 10 of Regulation No 1612/68 confers on such a spouse the right to install himself in that other Member State. (22) At present Directive 2004/38 places equal emphasis on the right to reside freely within the territory of the Member States. It is therefore no longer only the mobility but also the stability and permanence of residence in another Member State that is intended to be secured. From this new standpoint, it is easy to see how requiring nationals of non-member countries who are family members of a Union citizen to satisfy a condition of prior lawful residence in order to benefit from the right of residence conferred by Directive 2004/38 might affect continued residence in the Member State which a Union citizen has freely chosen. If his family life changes and a family member is unable to rely on Community law in order to join him because he has not been lawfully resident in another Member State, the Union citizen will be induced to leave the territory of the Member State in which he had chosen to establish himself in favour of a State, whether a Member State or not, in which he will be able to reunite the family unit. Thus, the infringement of the right to lead a normal family life that would be caused by the requirement of prior lawful residence in another Member State would, as can be seen, affect the effectiveness of the right of residence. There is no reason to treat infringements of family life differently depending on whether they hinder the freedom of a Union citizen to move to another Member State or the freedom to reside in another Member State. Therefore, since Directive 2004/38 must, like Regulation No 1612/68, (23) also be interpreted in the light of the fundamental right to respect for family life, it must be concluded that the benefit of the right of residence granted by Directive 2004/38 to nationals of non-member countries who are family members of a Union citizen cannot be made contingent on the prior lawful residence of those nationals in another Member State.

14. Finally, it hardly needs to be pointed out that the fact that the right of residence conferred by Directive 2004/38 on nationals of non-member countries who are family members of a Union citizen includes a right of access to the territory of the Community does not mean that that latter right may not be subject to limitations by the Member States. Those limitations are explicitly provided for. Article 27 of the directive refers to the traditional public policy restriction on the freedom of movement and residence of Union citizens and their family members, irrespective of nationality. Article 35 imposes restrictions in cases of abuse of rights or fraud. This is obviously aimed at the possibility of marriages of convenience, but abuse of rights may also be deemed to cover the Akrich case of seeking to evade national immigration legislation illicitly. It should be noted that these limitations permitted by Directive 2004/38 mirror those which the Court authorised the Member States to impose, in connection with the freedom to provide services, on the right to respect for family life within the meaning of Article 8 of the European Convention. (24)

15. Therefore, the answer to the first question should be that Directive 2004/38 does not authorise a Member State to make the benefit of the right of residence which it grants to nationals of non-member countries who are the family members of a Union citizen subject to the condition that those nationals must have previously been lawfully resident in another Member State.

B – Effect of the date of the marriage on the benefit of the right of residence conferred by Directive 2004/38

16. The second and third questions essentially ask the Court to rule on whether a national of a non-member country can rely on the provisions of Directive 2004/38 to obtain the right to reside in the host Member State with the Union citizen who is his spouse even if he entered the host Member State before marrying or even before the Union citizen came there. The question arises because Article 3(1) of the directive reserves the benefit of the directive to Union citizens and ‘to their family members … who accompany or join them’. Should this wording not be considered to require the national of a non-member country to have obtained the status of family member before coming to the host Member State? Ireland believes that it should. Otherwise, how could the national of a non-member country be regarded as accompanying or joining the Union citizen as a family member?

17. However, the wording of Article 3(1) of Directive 2004/38 does not really support the argument of the respondent in the main proceedings. The word ‘accompany’, in particular, can indicate a movement and be understood as meaning to go with but can also have a static connotation and mean to be with. This double meaning is to be found in the equivalent of the English term ‘accompany’ used in the other language versions, whether it be the French word ‘accompagner’, the Spanish word ‘acompañar’, the Italian word ‘accompagnare’, or the Portuguese word ‘acompanhar’. In order to remove the ambiguity in the wording it is therefore again necessary to develop a functional interpretation. In this regard, if the emphasis were placed solely on the mobility of EU nationals, that is to say on their freedom to move to another Member State, it could be claimed, quite aptly, that Community law does not guarantee a family member a right of residence in the host Member State of a migrant Union citizen where the family relationships are not established until after the freedom of movement was exercised. In that case the fact that family reunification was prevented could have had no deterrent effect on the EU national’s freedom of movement.

18. However, as is known, the rights attached to the status of Union citizen by Article 18 EC also include the right to reside freely within the Member States. Logically, Directive 2004/38, which seeks to regulate the exercise of Union citizens’ fundamental right of movement and residence, applies, by virtue of Article 3 thereof, to all Union citizens ‘who move to or reside’ in a Member State other than that of which they are nationals. As I have already pointed out in replying to the first question, the permanence of the Union citizen’s residence in the host Member State would be undermined if he were unable to live there with the members of his family. The point at which a person became a member of his family is of little importance as regards the effectiveness of his right of residence. The fact that the person who became a member of his family was already within the territory of the host Member State before the Union citizen arrived is likewise of little importance. Even if, as in the cases in the main proceedings, the national of a non-member country married the Union citizen only during the latter’s residence in the host Member State, and even if he had already entered the host Member State at the time of the marriage, the refusal by that Member State to grant him a residence card as the spouse of a Union citizen, in preventing family life, would not have any less of an effect on the Union citizen’s residence within its territory.

19. In the context of the right of residence attached to the fundamental freedom of movement for workers, the Court has ruled that a Member State is unable, without infringing the right of residence conferred on Community workers and, thus, the members of their families by Directives 68/360/EEC (25) and 73/148, to refuse to issue a residence permit to a national of a non-member country who has married a Community worker in the host country after entering it unlawfully. (26) What was true under the legislation prior to Directive 2004/38 is all the more true now. Again, that directive seeks to ‘strengthen’ the right of residence of all Union citizens. It must therefore be concluded that nationals of non-member countries can claim the benefit of the rights conferred by Directive 2004/38 on family members who ‘accompany’ the Union citizen within the meaning of Article 3 of that directive, irrespective of the date on which they became members of that citizen’s family.

III – Conclusion

21. In the light of the above considerations, I propose that the Court should give the following answers to the questions referred by the High Court:

(1) Directive 2004/38/EC does not authorise a Member State to make the benefit of the right of residence which it grants to nationals of non-member countries who are the family members of a Union citizen subject to the condition that those nationals must have previously been lawfully resident in another Member State.

(2) Article 3(1) of Directive 2004/38 applies to a national of a non-member country who is the spouse of a Union citizen residing in the host Member State, irrespective of when or where their marriage took place and irrespective of when or how the national of a non-member country entered the host Member State.

(1) .

(2) – 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 (OJ 2004 L 158, p. 77).

(3) – See Case C‑413/99 Baumbast and R [2002] ECR I-7091, paragraph 84.

(4) – See Case C‑291/05 Eind [2007] ECR I‑10719, paragraphs 23, 24 and 30.

(5) – See Case C‑446/03 Marks & Spencer [2005] ECR I‑10837, paragraph 29.

(6) – See Case C‑135/99 Elsen [2000] ECR I‑10409, paragraph 33; Case C‑148/02 Garcia Avello [2003] ECR I‑11613, paragraph 25; Case C‑224/02 Pusa [2004] ECR I‑5763, paragraph 22; Case C‑209/03 Bidar [2005] ECR I‑2119, paragraph 33; Case C‑192/05 Tas-Hagen and Tas [2006] ECR I‑10451, paragraph 22; and Case C‑499/06 Nerkowska [2008] ECR I‑3993, paragraph 24.

(7) – See Case C‑459/99 MRAX [2002] ECR I‑6591. See also Case C‑157/03 Commission v Spain [2005] ECR I‑2911.

(8) – For an example, see Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12), which confers a right to family reunification on nationals of non-member countries.

(9) – After pointing out, in the fifth recital in the preamble thereto, that ‘the right of freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires … that obstacles to the mobility of workers shall be eliminated, in particular as regards the worker’s right to be joined by his family’, 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), lays down, in Article 10 thereof, the right of family members, irrespective of their nationality, to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State. Recital 5 in the preamble to Directive 2004/38 points out, in very similar terms, that ‘[t]he right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality’.

(10) – See Case C‑60/00 Carpenter [2002] ECR I‑6279, paragraph 38; MRAX, paragraph 53; Case C‑157/03 Commission v Spain, paragraph 26; Case C‑503/03 Commission v Spain [2006] ECR I‑1097, paragraph 41; and Eind, paragraph 44.

(11) – Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973 L 172, p. 14).

(12) – See Case C‑370/90 Singh [1992] ECR I‑4265.

(13) – See Carpenter.

(14) – Case C‑109/01 [2003] ECR I‑9607.

(15) – European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.

(16) – Paragraphs 49 to 51.

(17) – See MRAX, paragraph 59.

(18) – See Case C-157/03 Commission v Spain, paragraph 28.

(19) – See MRAX, paragraphs 73 to 80.

(20) – See Case C-157/03 Commission v Spain, paragraph 28.

(21) – Case C‑1/05 [2007] ECR I‑1.

(22) – See Akrich, paragraphs 51 to 54.

(23) – See Case 249/86 Commission v Germany [1989] ECR 1263, paragraph 10, and Baumbast and R, paragraph 72.

(24) – See Carpenter.

(25) – Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485).

(26) – See MRAX, paragraphs 63 to 80.