• Third-country nationals (individuals not from a Member State) can have a right of residence under Community law, in a Member State, if they have a family member who is an EU citizen who lives in that Member State.

Facts of the case:

  • This was a joint case. Both cases involved a third country national.
  •  In each case, the third country national had a family member, an EU citizen, who visited other Member States often for work purposes.
  • The applicants in both cases applied to become a resident in the Member States, and it was refused.
  • They alleged that they could derive a right of residence from their EU family members’ rights, under Article 45 Treaty on the Functioning of the European Union (TFEU).

Issue for the Court of Justice of the European Union (CJEU) in C-457/12 S and G:

  • The CJEU was tasked with whether Article 45 TFEU applied to third country nationals, and therefore whether they could derive a right of residence from a family member who was an EU citizen.

The CJEU held:

  • Article 45 TFEU does give third country nationals a right of residence within the EU, so long as their family member is a EU citizen.
  • This right is in principle, and essentially, it is for the national courts to decide on the facts.

The CJEU specifically stated:

  • [38] “With regard to the situations at issue in the main proceedings, it should be noted that the Union citizen, in the action concerning Ms G, works for a company established in a Member State other than the Member State which he resides. The Union citizen, in the action concerning Ms S, regularly travels, in the course of his professional activities, to a Member state other than the Member State in which he resides even though the company employing him is established in the Member State in which he resides” [pg 8]
  • [39] “Any Union citizen who, under an employment contract, works in a Member State other than that of their place of residence falls within the scope of Article 45 TFEU” [pg 8]
  • [46] “Article 45 TFEU must be interpreted as conferring on a third-country national who is the family member of a Union citizen a derived right of residence in the Member State of which that citizen is a national, where the citizen resides in that Member State but regularly travels to another Member State as a worker within the meaning of that provision, if the refusal to grant such a right of residence discourages the worker from effectively exercising his rights under Article 45 TFEU, which it is for the national court to determine” [pg 9]

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