Case Comment: C-423/12 Reyes


Re-posted from the Eutopia Law Blog


Adrienne Yong

PhD Candidate at King’s College London


The recent developments in EU citizenship have been admittedly fairly quiet in comparison to the uproar after the ever controversial Zambrano case where the interpretation of citizenship provisions under Article 21 TFEU went astray. In the case of Reyes, the question concerns a clarification on the Directive 2004/38 and the meaning of ‘dependant’ under Art 2(2)(c). The case concerns third country nationals (TCNs), the cases of which have dominated the scene since Zambrano. The persistence of claimants in this respect is thus admirable, suggesting that Zambrano and indeed, the Directive itself, left a lot to be desired. This persistent pattern is to be received positively, representing good opportunities to clarify confusing positions.


Ms. Reyes, a Filipina, was brought up by her grandmother in the Philippines when she was three years old after her mother left to work in Germany to support her family. Ms. Reyes’ mother is now a German citizen.

Throughout her life, Ms. Reyes never held a job but similarly never relied on the Philippines’ social benefits. Her mother periodically sent money to support her, her sisters and her grandmother. Ms. Reyes’ mother moved to Sweden to be with a Norwegian man in 2009, whom she married mid-2011. He received a retirement pension which was also sent to the Philippines for Ms. Reyes’ benefit. After moving, Ms. Reyes’ mother did not work, living on her husband’s retirement.

When Ms. Reyes entered the Schengen area early 2011, she was refused a residence permit as dependent family member by the Swedish Migrationsverket for being unable to prove the funds sent by her mother and her partner were to sustain her life in the Philippines (in the form of basic needs, lodging, healthcare) or that any home state public funds were supporting her. This was due to the fact that she was fully dependent on her grandmother and the Migrationsverket decided this indicated she was not dependent on her mother in Sweden.

The appeal by Ms. Reyes to the Migrationsverket was dismissed because whilst they agreed her basic needs were supported by her mother’s funds, there was not enough proof that she would be able to survive without dependence on her mother and partner if she were to remain in her home state. They argued that she was still young, had qualifications from there, lived there, and still had relatives there. Her mother’s choice to support her was not determinative in the decision that Ms. Reyes’ was not dependent.

The first question referred thus aims to clarify if Art 2(2)(c) Directive 2004/38 – the definition of a dependent family member – requires that those over 21 years old must prove that they had searched for employment and failed OR sought support from public funds and it was also not possible before being considered a family member. The second asks if this family member can still be considered a ‘dependant’ if they are considered to be fairly well qualified to get employment AND intends to find a job in that Member State. This would nullify the conditions under which they would be a dependent relative.

CJEU judgment

In 16 short paragraphs, the Court of Justice of the European Union makes a concise and very coherent decision on Ms. Reyes’ situation.

Seemingly considering the Opinion of AG Mengozzi, the Court referred to Jia, where the situation concerned the definition of a ‘dependant’ for over-21 year olds. The standard would be a situation of ‘real dependence’ which must be construed broadly. This is somewhat justified and explained by AG Mengozzi in that whilst the free movement of persons telos is not primarily to maintain family unity, this reasoning does not seem to have been totally ignored. It supports the broad position taken by the Court in its judgment, deciding that the situation where Ms. Reyes’ mother periodically and consistently sent money to support her daughter’s life in her home state would be one of sufficient dependence. This is, furthermore, absent of any necessity to prove they have tried to find work or seek support from public funds to support themselves. This requirement would place an extra burden on the citizen, which is against the spirit of the fundamental freedom to move and reside. The Court is clear in applying Jia that Sweden were in breach of their obligations under the Treaty.

Regarding the definition of ‘dependant’, the decision is fairly self-explanatory. To deny a citizen the status of a dependant purely on the grounds of their intention and chances to seek employment in the Member State would be against Art 23, Directive 2004/38 which expressly protects the right of family to seek employment if they have residence, Lebon also cited. Therefore, this should not interfere with its definition.


AG Mengozzi places a significant emphasis on the interpretation of Directive 2004/38 in a broad and generous manner in terms of protection of family members and the rights they should derive from it. He draws upon the teleological perspectives of the provisions, which favour the unity of a family whether all Union citizens or not. Though recognisably different conclusions have been reached by the Court in the past in regards to similar questions, it would appear that the CJEU were convinced in this case that Directive 2004/38 should not be considered narrowly for Ms. Reyes’ situation.

Certainly, the judgment is not a surprising decision. Considering the importance of the right to freely move and reside, which includes employment opportunities for family as codified by Directive 2004/38, the case represents a hammering home of the definition of a ‘dependant’. Indeed, it goes to show that Member States cannot arbitrarily try to avoid their obligations to Union citizens’ families by way of minor technicalities and additional requirements.



Case Comment: C-523/11 and C-585/11 Prinz and Seeberger – AG Sharpston strikes again


Re-posted from the Eutopia Law Blog


Adrienne Yong

PhD Candidate at King’s College London


Yet another chapter of the European citizenship saga sought clarification by AG Sharpston in the Prinz and Seeberger Opinion delivered last week on February 21, 2013. Concerning one of the most prevalent categories of citizens claiming rights under the Art 20 and 21 TFEU – students – Prinz and Seeberger discusses a classic situation that has pervaded the over 20 years of Union citizenship development. Effectively, AG Sharpston aims to explicate the notion of proportionality in citizenship, which has for years escaped valid clarification. She discusses the different strands of objectives of integration, with more substantial meaning than it would appear at first.



In Prinz, a German moved from Germany to Tunisia with her family for her father’s job, then returned years later for secondary school, subsequently deciding to attend university in Holland. She was granted funding from German authorities for her first year, but was rejected for the second as she failed to satisfy the ‘three-year rule’ residency requirement, which stated that a citizen had to be resident in Germany for three years prior to the start of their course.

In Seeberger, a German who attended school in Germany, then moved to Spain with his family for his father’s work in the middle of secondary school, completed his secondary education in Spain and after some time qualifying to university in Spain, sought a grant to fund his studies in Spain from the German authorities. This was denied again on the ‘three-year rule’.

Both argued that Art 20 and 21 TFEU were contravened for impeding free movement, and the Court of Justice of the European Union (CJEU) was asked to clarify whether this ‘three-year rule’ was contrary to EU law.


AG Opinion

In her Opinion, AG Sharpston sought to explicate her perspectives on the meaning and justification behind integration and proportionality, particularly referring to the justification behind residency requirements often being the protection of national resources. It is questioned by AG Sharpston whether the consistent invocation of the unreasonable burden reasoning requires reconsideration. Beginning by eliminating the provisions inapplicable in order to conclusively consider the effect of suitable criteria, she then delivers her insightful comments regarding justifications, proportionality and interpretation of the ‘three-year rule’.

Evidently, the three-year rule is a restriction. Germany thus submits two justification objectives, one under the economic rationale, the other socially related. She separates the two and considers the legitimacy and appropriateness of both restrictions in a detailed analysis of each objective’s interpretation.

It is evident that AG Sharpston is unconvinced that Member States should simply lay out economic objectives based on avoiding unreasonable burdens on the financial resources of Member States. This was discussed in Bidar and Morgan and Bucher. She believes it is apt for the CJEU to perhaps guide Member States as to what may constitute reasonable or unreasonable burdens, as this highly variable concept is subject to an element of potential exploitation on the part of the protectionist Member States. Suggested is a thorough analysis of whether the burden truly risks interfering with the balance of Member State resources to avoid invoking protectionism behind a veil of valid justification. She then continues to distinguish an economic objective from an integration objective, which brings into play the political elements of a proportionality assessment.

The interplay between integration and economics as objectives of justifications becomes a sticky situation, but ultimately AG Sharpston aims to clarify whether it suffices to consider integration an objective on its own. There is an inconsistency if integration objectives are cited to justify rendering an economic objective proportionate. This is because choosing to require a degree of integration simply to meet budgetary concerns actually ignores the notion of being integrated.

She goes onto state the ‘three-year rule’ is far too restrictive given it requires uninterrupted periods of residence immediately prior to education, and whilst there is no direct mention of nationality, the inherent connection a national has renders it a difficult factor to ignore when considering proportionality. This is particularly relevant here, as both claimants are German. She opines there are certainly less restrictive measures possible, though interestingly does not suggest any outwardly. Though the ‘three-year rule’ is transparent, efficient and legally certain – the rationales behind Germany’s choice of restriction – this does not translate to it being necessarily proportionate.

Under the social objective put forward by the Germans, solidarity is a feature. Ultimately, AG Sharpston considers that the ‘three-year rule’ has little to achieve by means of social objectives given that the link between requiring citizens to reside three years prior to education and them remaining after their studies is tenuous at best. Again legal certainty, transparency and efficiency did not outweigh proportionality.

AG Sharpston answers the CJEU’s question in the positive: Art 20 and 21 TFEU would preclude the ‘three-year rule’ from preventing the claimants from being granted the funding needed for education outside their own home States. Whilst a simple question in effect, AG Sharpston has managed to delve deeper into the meaning and notion of proportionality in terms of what Member States use as justifications, deconstructing their generic excuses of integrationist and economic objectives to uncover what their argument really insinuates and striking them down by use of the famous tool, proportionality.


Case Comment: C-40/11, Yoshikazu Iida [2012] – keeping father and daughter apart?

Adrienne Yong

LL.B (Hons), Dunelm; LL.M (Hons), Lond.

PhD Candidate, the Dickson Poon School of Law, King’s College London

8 November 2012 saw the judgment of an interesting case in the line of development of Union citizenship. Many cases in this area have been made relevant and indeed, been eagerly anticipated by scholars following the seminal C-34/09 Ruiz Zambrano case exactly 1 year and 8 months ago. The principles laid out in that case established an autonomous role for Article 21 TFEU, which sets out the right to free movement and residence. It appears that now it is no longer conditional upon proving a cross-border link with the Treaty but rather on a relatively vague ‘genuine enjoyment’ test. Iida could have played a potentially enlightening role in decrypting this elusive concept, but like its predecessors (see C-434/09 McCarthy and C-256/11 Dereci) the question was clearly distinguished from the facts at hand.

The facts

Mr. Iida is a Japanese national married to German national. They have a daughter who was born in America. She has German, Japanese and American nationality. The family moved to Germany from the USA, upon which Mr. Iida obtained a residence permit as spouse of a Union citizen. He works full-time on unlimited contract. Relations soured between Mr. Iida and his wife (though it is categorically noted not between Mr. Iida and his daughter) prompted by her move to Austria with their daughter where she worked full time. Currently, Mr. Iida and his wife enjoy joint custody though are permanently separated. After separation, however, Germany revoked Mr. Iida’s spousal residence permit. He currently has a work permit subject to discretionary renewal, but wants a residence card of family member of Union citizen. He applied for long-term residence as a third country national, but withdrew this application.

The questions referred relate to the meaning of ‘family member’ under the Citizenship Directive, 2004/38 especially where the applicant does not maintain the Union citizen, nor is the Union citizen accompanied or joined by him. The questions of applicability of the Charter of Fundamental Rights and the European Convention on Human Rights (ECHR) as regards to the national laws in question as well as interpretation of Art 21 TFEU are also in discussion.

The AG’s Opinion

AG Trstenjak provides a comprehensive review of this fairly unique situation, distinctive because the applicant is claiming rights not upon the Member State of his daughter’s residence, but rather her origin. Upon addressing first the application of the Directive, careful analysis of the wording suggests that the circumstances at hand do not, in fact, confer a right of residence on Mr. Iida. This also renders reliance on the Charter and ECHR inapplicable. Although Art 6 TEU guarantees Charter rights and accedes to the ECHR, Art 51(1) of the Charter does not allow recourse to these provisions if there is nothing to link EU law to the situation.

However, AG Trstenjak finds this link through the rights Mr. Iida’s daughter has under Art 20 and 21 TFEU (the citizenship provisions). Whilst it is ‘unclear’ that denial of the residence card would deprive Mr. Iida’s daughter of the genuine enjoyment of the substance of her free movement rights (the Zambrano test), AG Trstenjak states the it would interfere with her rights to free movement if her father were to move further away. This is supported by way of reliance of the rights under Art 8 ECHR and Article 7 Charter (right to privacy and family life) as well as Art 24(3) Charter (child’s rights to a personal relationship and contact with their parents). This interference with Mr. Iida’s daughter’s rights should allow him access to the residence card.

The judgment

The Court of Justice of the European Union (CJEU) is more comprehensive in their assessment of which provisions Mr. Iida cannot satisfy, beginning with rejecting the application of Directive 2003/109 on long-term residency for third country nationals because he withdrew his application.

They continue to then, like AG Trstenjak, to reject application of Directive 2004/38 clarifying that whilst his daughter and wife fall squarely within its remit having moved to Austria, Mr. Iida does not satisfy the definition of ‘dependent family member’ upon his daughter’s rights because she is not reliant on him, but he does come under the spouse definition because separation is not legally synonymous to divorce. However, as it is crucial for him to reside with the Union citizen to benefit, he may not rely on its provisions.

The Court then analyses the validity of the case under Arts 20 and 21 TFEU. It is held that despite not having the residence card Mr. Iida seeks, his family has not been discouraged from the genuine enjoyment of their rights to free movement – they have moved. Therefore, the Court finds that it is incorrect to rely on hypothetical situations of discouragement of movement and arbitrary links with EU law simply to find oneself within the scope of the Treaty. Without a link to the Treaty, there could be no recourse to fundamental rights under the Charter or the ECHR. The Court does not consider the daughter’s rights, thus holding that Mr. Iida did not have rights to the residence card.


The coherence between AG Trstenjak and the Court is striking, and fairly rational. The slightly unique situation because the dependent (Mr. Iida’s daughter) is not reliant on her father is dealt with in a reasonable manner interpreting the Directive’s provisions. The circumstances stand in contrast to previous case law, namely C-200/02 Zhu and Chen where a third country national mother did derive the right to reside from  her newborn Union citizen baby. However the distinction between this case and that is that Mr. Iida already has residency as a worker, and it is less imperative he “remain” with his daughter as she is not materially ‘dependent’  on him.

The Court also acknowledges there is an exceptional line of case law which allows third country nationals reliance on the rights conferred by the Treaty if the Union citizen would have to leave the EU territory altogether, the Dereci reasoning. The circumstances are not so severe here, thus no rights are conferred. It would insinuate a high threshold as to what constitutes deprivation of the genuine enjoyment of substance of Union citizenship rights.

However, most problematic would be the rejection of the application of fundamental rights because the Court failed to establish a link to EU law. Unlike AG Trstenjak, they refused to stretch their conferral to rights of Mr. Iida’s daughter. The judgment may have turned differently on reasoning in C-148/02 Garcia Avello where hypothetical situations of free movement were invoked as a valid application of the Treaty to allow mutual recognition of double-barrelled surnames, or the more far-reaching C-60/00 Carpenter case where a tenuous link with potential services to be provided overseas prevented a family from being deported.  It is that statement of the judgment which is most puzzling for followers of the developments thus far. Perhaps it suggests a diverging line of reasoning, though is limiting for the scope of Union citizenship’s ‘fundamental status’.


Note: This article was originally published on November 9th, 2012 on the EUtopia law blog (http://eutopialaw.com/2012/11/09/case-comment-c-4011-yoshikazu-iida-2012-keeping-father-and-daughter-apart/#more-1604).