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EU law:Directive 2004/38/EC right of free movement of family members
Reed v Netherlands:
o Difference in treatment of registered partners and married couples
o Look at the autonomous definition of spouse It follows that an interpretation given by the Court to a
provision of that regulation has effects in all of the Member States, and that any interpretation of a legal term
on the basis of social developments must take into account the situation in the whole Community, not merely
in one Member State. However could be discrimination
o It must therefore be concluded that the Member State which grants such an advantage to its own nationals
cannot refuse to grant it to workers who are nationals of other Member States without being guilty of
discrimination on grounds of nationality, contrary to Articles 7 and 48 of the Treaty.
o Article 7 of the Treaty, in conjunction with Article 48 of the Treaty and Article 7 (2) of Regulation No 1612/68,
must be interpreted as meaning that a Member State which permits the unmarried companions of its
nationals, who are not themselves nationals of that Member State, to reside in its territory cannot refuse to
grant the same advantage to migrant workers who are nationals of other Member States.
Metock
o Four nationals of non-member countries – who had initially unsuccessfully applied for political asylum in
Ireland and then married EU citizens who were not Irish nationals but who resided in Ireland – had their
applications for residence cards as spouses of Union citizens refused by the Minister for Justice on the ground
that they did not satisfy the condition of prior lawful residence in another Member State laid down in Irish
law.
o Regarding the restriction of the freedom of movement of family members
Pursuant to the provisions of Chapter VI of the Directive, Member States may restrict the right of
entry and residence of Union citizens and their family members on grounds of public policy, public
security or public health.
A national of a non-member country, the spouse of a Union citizen, who accompanies that citizen to
or joins that citizen in the host Member State, may enjoy rights conferred by that directive
irrespective of when and where their marriage took place and of how the national of a non-member
country entered the host Member State.
Consequently, Directive 2004/38 confers on all nationals of non-member countries who are family
members of a Union citizen within the meaning of point 2 of Article 2 of that directive, and
accompany or join the Union citizen in a Member State other than that of which he is a national,
rights of entry into and residence in the host Member State, regardless of whether the national of a
non-member country has already been lawfully resident in another Member State.
o Regarding the benefit under art. 3 (1)
Whether the spouse of a Union citizen who has exercised his right of freedom of movement by
becoming established in a Member State whose nationality he does not possess accompanies or joins
that citizen within the meaning of Article 3(1) of Directive 2004/38, and consequently benefits from
the provisions of that directive, irrespective of when and where the marriage took place and of the
circumstances in which he entered the host Member State.
First, none of those provisions requires that the Union citizen must already have
founded a family at the time when he moves to the host Member State in order for
his family members who are nationals of non-member countries to be able to enjoy
the rights established by that directive.
Second it makes no difference whether nationals of non-member countries who are
family members of a Union citizen have entered the host Member State before or
after becoming family members of that Union citizen, since the refusal of the host
Member State to grant them a right of residence is equally liable to discourage that
Union citizen from continuing to reside in that Member State.
Therefore, in the light of the necessity of not interpreting the provisions of Directive 2004/38
restrictively and not depriving them of their effectiveness, the words ‘family members [of Union
citizens] who accompany … them’ in Article 3(1) of that directive must be interpreted as referring
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