The applicants in this case are all from Kosovo (not member states of the EU yet, see a previous post on this blog). In 1999, Mr Kreshnik Ymeraga arrived to Luxembourg to live with his uncle, a Luxembourg national, who became his legal guardian. At first, the Luxembourg authorities rejected his application for asylum. Nevertheless, his application was finally approved in 2001. After, he went on to study and found regular employment. Between 2006 and 2008, the Ymeraga family arrived to Luxembourg. The same day, they all applied for international protection in accordance with the law on the right of asylum and complementary forms of protection. However, the Luxembourg authorities rejected their applications. Accordingly, Mr Ymeraga’s family applied, on 8 May 2008, for residence permit on grounds of family reunification with Mr Kreshnik Ymeraga. This application was rejected by the Tribunal administratif (Administrative Court) on 9 March 2010, and the decision was not appealed. Meanwhile, on 16 March 2009, Mr Kreshnik Ymeraga acquired Luxembourg nationality. On 14 August 2009, Mr and Mrs Ymeraga applied to the Minister for a residence permit as family members of a citizen of the Union. On 17 May 2010 the application was renewed, whilst Mr and Mrs Ymeraga also sought a residence permit or, in the alternative, a residence authorization, for Mr Kreshnik Ymeraga’s two brothers. Both the Minister and the Tribunal administratif rejected those applications.
Question for preliminary ruling
‘To what extent does the fact of being a citizen of the Union and the related right to reside in the country of which a Union citizen is a national, as provided for by Article 20 of the TFEU, along with the rights, guarantees and obligations laid down in the Charter … and in particular and insofar as is relevant, … Articles 20, 21, 24, 33 and 34 [thereof], confer a right to family reunification upon a sponsor who is a citizen of the Union and wishes to bring about, in the country in which he resides and of which he holds the nationality, the reunification with himself of his mother and father and two of his brothers, all of whom are third-country nationals, where he has not exercised his right to freedom of movement and has not resided in a Member State other than that of which he holds the nationality?’ (par. 22).
Judgment of the European Court of Justice
In the judgment, the Court finds that Mr Kreshnik Ymeraga is not deprived of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union. In this sense, the ECJ argues on three main legal basis: Directives 2003/86 (purpose here) and 2004/38 (purpose here), article 20 TFEU (Principal legal base), and article 51 par. 1 of the EU Charter.
Concerning the Directives involved in this case, neither of them could be applied in the situation of Mr Kreshnik Ymeraga. Indeed, the first Directive does not apply to the applicants in the main proceedings since art. 3, par. 3 stipulates that it does not apply to family members of a Union citizen. Furthermore, the second Directive focuses on the concept of ‘beneficiary’. Indeed, the Directive applies to citizens travelling to another Member State than their own and to family members accompanying or joining them. In this case, Mr Kreshnik Ymeraga and his family made a request in the country of residence of the former and not for circulation in another Member State.In addition, in its previous jurisprudence (McCarthy, C-434/09, par. 31 and 39, and Dereci and Others, C-256/11, par. 54), the Court stated that “a Union citizen who has never exercised His right of freedom of movement and has always resided in a Member State of All which he is a national is not covered by the concept of ‘beneficiary’ for the Purposes of That provision” (Par 30). Here, the ECJ argues that Mr Kreshnik Ymeraga is thus not a beneficiary, and by consequence, neither is his family. In this situation, the family of Mr Kreshnik Ymeraga cannot benefit from this status since he did not benefit from it himself. In conclusion, the Directives 2003/86 and 2004/38 are not applicable (par. 33).
Article 20 TFEU is the most relevant legal base in this case. The case mainly demonstrates that Mr Kreshnik Ymeraga is not deprived of is citizenship right as EU citizen by the refusal of the authorities of Luxembourg. The court principally argues that Mr Ymeraga is not constrained to leave Luxembourg. However, for economic reason, health or other, it considers that the refusal at issue is not a real constraint for Mr Kreshnik Ymeraga. Another interesting example is par. 39 of the reasoning which states: “In the main proceedings, according to the referring court, the only factor which could justify a right of residence being conferred on the family members of the citizen concerned is Mr Kreshnik Ymeraga’s intention to bring about, in the Member State in which he resides and of which he holds the nationality, reunification with those family members, which is not sufficient to support the view that a refusal to grant such a right of residence may have the effect of denying Mr Kreshnik Ymeraga the genuine enjoyment of the substance of the rights conferred by virtue of his status as citizen of the Union.” The court here emphasizes a counter-argument. However, it is not relevant in the situation of Mr Ymeraga because the desire of family reunification is not sufficient for article 20 TFEU and the application of the Dereci decision. The will of the applicant is not a true argument in this case. Finally, as explained later, the Court highlights two major points in its conclusion. The first is that Article 20 is opposed in any case that a Member State has refused a third country national to live within its own territory. Secondly, it highlights the fact that this refusal does not deprive the citizen of enjoying the rights conferred by the status of citizen of the Union.
Analysis of the case
Article 20 to 25 TFEU regulate the EU citizenship. Article 20(1) TFEU states that “Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship”.
The first relevant point in this case is about the substance of the solution given by the ECJ. In its ruling the Court states:
“Article 20 TFEU must be interpreted as not precluding a Member State from refusing to allow a third-country national to reside in its territory, where that third-country national wishes to reside with a family member who is a European Union citizen residing in the Member State of which he holds the nationality and has never exercised his right of freedom of movement as a Union citizen, provided such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen.”
Indeed, the central point of the solution focuses on the rights accorded to EU citizens by Article 20 TFEU. Here, the Court pays particular attention to the fact that Mr Ymeraga is not in any way deprived of his rights. Article 20 TFEU embodies the rights accorded to a European citizen but it does not mention anything about third country nationals willing to join a European citizen. In fact, Ymeraga’s family is not within the scope of application of this article since they come from Kosovo, even though a family member of theirs, Mr Ymeraga, is a citizen of the EU. The Court therefore cannot, as mentioned above, reverse the denial issued by the Luxembourg authorities. However, if Mr Ymeraga had been deprived of his rights as a European citizen the Court would have come to the opposite conclusion. Moreover, in this case a relevant comparison is made to the Dereci case which also concerned the right to reside in an EU Member State as well as the question of enjoying citizenship rights. Therefore, the Court based a large part of its argumentation on this precedent. Even if the decision follows the interpretation of the Directives and article 20 TFEU applied in Dereci the court arrives to different conclusions in the present case. Furthermore, it cannot be forgotten that the rights conferred to the European citizens are complementary to their national rights and it is therefore important to emphasize that the EU, just like any country, has the right to set up limits to the acceptance residence about nationals without affecting their citizens. If the limits are not set border can then be deleted.
The second point that is worth attention is the role of the Advocate General (AG) in this case. As mentioned in the beginning of the post, AG Paolo Mengozzi was involved in the decision of this case. However, after hearing the AG, the ECJ chose to proceed to judgment without his opinion. Therefore, there is no publication of the opinion of the AG. One important question here is why the ECJ chose not to take the opinion of the AG into account. Why did it miss this opportunity? According to the article “The role of the advocate general in the development of community law: some reflections” by Takis Tridimas (available here), the main function of the AG is “to deliver an opinion advising the Court on how, in his view, the case in issue should be resolved”. However, this opinion is not binding on the Court and it is up to the ECJ to determine whether it wants to follow it. In this case, many assumptions about the fact that the ECJ does not take the opinion of the AG into account can be made. The most plausible explanation is that it is not considered as raising a new point of law. In such a case the Court can decide, after hearing the AG, that the case shall be determined without his opinion. However, a democratic aspect and the concept of transparency can also be discussed. As regards dissenting opinions, we cannot know really if there are any. Indeed, the concept of dissenting opinion within the EU has led to discussion. Some argue that the ECJ should publish dissenting opinions whilst others argue that the AG opinion is a substitute for this. The fact that the ECJ can proceed without an AG Opinion leaves the discretion to the Court to determine which cases do not raise a new point of law. And we cannot know if all members of the adjudicating panel of the ECJ agreed on this choice.
To conclude, the central points of this judgment are the rights of European citizens and their families and the role of the AG in the ECJ citizens. In this judgment, the opinion of the AG has not been requested, which seemed essential to mention. In addition, the judgment applies to European citizens and their non-European families. A fundamental goal is not to deprive European citizens of their rights under certain conditions. However, it can be seen from this judgment that even though the rights of EU citizens are quite large and can be defended from several angles, there are limitations.