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CJEU recently made a Judgment in Case C-754/18.

http://curia.europa.eu/juris/documents.jsf?num=C-754/18

What practical implications it may have to family members of EU citizens according to EU 2004/38/EC.

The first point made by CJEU is that a permanent residence card according to Article 20 is at least equivalent to residence card according to Article 10.

Honestly, to claim otherwise is very stupid and I remember that European Commision already said it years before. Finally, there is a final argument to this topic.

The second point, for me much more interesting, is that CJEU decided that once a status as a family member of EU citizen according to EU 2004/38/EC is proven in one member state then a border guard is not allowed to question the status (unless there is an misuse or fraud).

From my experience, the police is very restrictive regarding Article 3/1 Beneficiaries of EU 2004/38/EC "a family member who is accompanying or joining the EU citizen".

Firstly, the police does not even know the EU law. Then, they demand an absolute proof of accompanying or joining according to Article 3/1.

Do I understand right that this police practise is over? The CJEU said clearly that a residence card according to Article 10 or 20 proves the status and police cannot further question it.

From Judgement:"In the light of the foregoing considerations, the answer to the third question must be that Article 20 of Directive 2004/38 must be interpreted as meaning that possession of the residence card referred to in that article constitutes sufficient proof that the holder of that card is a family member of a Union citizen, so that the person concerned is entitled, without further verification or justification being necessary, to enter the territory of a Member State exempt from the visa requirement under Article 5(2) of that Directive."

Does the Judgement mean that border guards are forbidden to further question a status of a family member of EU citizen according to EU 2004/38/EC if such family member identifies itself with a residence card according to Article 10 or 20 of EU 2004/38/EC?

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    I would suggest that you discuss this with your lawyer... – Krist van Besien Jun 24 '20 at 18:31
  • was your wife visiting you or returning to where you both lived in Germany? This may be a better fit for Expatriates – Kate Gregory Jun 24 '20 at 18:43
  • I don't really want to go into details of my case. I rather wanted to discuss the Judgement, mainly this part: "Furthermore, this card is to be considered as proof, in itself, of the holder’s family member status" until now, there was always needed to prove "accompanying or joining EU citizen". It seems that this is over now. – user108860 Jun 24 '20 at 19:06
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    Although this question has a travel context it seems to me that questions about the implications of a court judgement would be better placed on Law. – user105640 Jun 24 '20 at 21:34
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    I’m voting to close this question because while there’s certainly a connection to travel, this is a legal question far more than it is a travel question. The discussions in the comments on both the question and answer demonstrate clearly that significant legal knowledge far beyond the scope of this website is required to provide a satisfactory answer. – Chris H Jun 26 '20 at 5:27
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I have read the decision a couple of times, although not very closely, and I do not think that it eliminates the possibility for border officers to seek to establish that the bearer of an Article 20 card (or an Article 10 card, for that matter) is traveling with or to join the EU family member.

That condition is more fundamental: it is established in Article 3(1), which provides that the directive applies to family members who "accompany or join" the Union citizen. If the family member is not accompanying or joining the Union citizen, the directive does not apply.

Unfortunately, that question seems not to have arisen in this case. Certainly, the court did not consider it. The most significant finding in this case is that an Article 20 card must be treated as equivalent to the purpose of an Article 10 card for the purpose of enabling the visa exemption. The directive is oddly ambiguous on that question: Article 5(2) establishes the visa exemption but mentions Article 10 only, which I presume was the result of a careless revision or some other drafting error.

Let us for the sake of argument assume a French person has moved to Ireland with a Senegalese spouse, who has obtained a residence card. There is certainly an argument to be made that the Senegalese spouse, having joined the French spouse in Ireland, is a beneficiary of the directive and should therefore be allowed to use that residence card to travel to any EU country without a visa. If this principle were firmly established, there would be no basis for questioning whether a third-country family member is joining the EU family member. However, I am not aware of that argument being made anywhere, so that practice will probably continue.

The UK certainly takes the opposite position, requiring the EU spouse to be in the UK or traveling with the third-country family member in order to qualify for a visa exemption.

Since the court did not consider this question directly, the ruling is not likely to have any impact on it.

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  • I have the impression that OP is actually talking about Article 6 (2), Right of residence for up to three months The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen. – Mark Johnson Jun 25 '20 at 6:42
  • It is a pity that CJEU did not consider Article 3/1 directly because it seems that the Ukrainian was travelling alone. The court basically stated that the status cannot be further questioned. "Furthermore, this card is to be considered as proof, in itself, of the holder’s family member status" In the "Opinion" from the Court there are even more details. AFAIK nobody ever asked whether Article 3/1 should be considered when the residence card is issued or it should be considered at every journey (this could be sometimes very difficult without e.g. properly translated marriage certificate) – user108860 Jun 25 '20 at 18:50
  • It is very frustrating that nearly 15 years after the EU 2004/38/EC came into force there are still so many opened questions. Moreover, every person/state/police is interpretting the Directive in a different way. My lawyer friend once told me that the basic mistake non-lawyers do is to interpret the law without context. That is exactly what I see all the time e.g. Article 20 vs. Article 10 card or Article 20/10 card issued by the same vs. other member state. Just imagine to travel together with non-EU spouse. Proof that your wife is your wife to a e.g Hungarian/Bulgarian police officer... – user108860 Jun 25 '20 at 19:03
  • "In the light of the foregoing considerations, the answer to the third question must be that Article 20 of Directive 2004/38 must be interpreted as meaning that possession of the residence card referred to in that article constitutes sufficient proof that the holder of that card is a family member of a Union citizen, so that the person concerned is entitled, without further verification or justification being necessary, to enter the territory of a Member State exempt from the visa requirement under Article 5(2) of that Directive." I don't see any "accompanying or joining the EU citizen" – user108860 Jun 25 '20 at 19:57
  • @MarkJohnson the question is about crossing the border, which is the subject of article 5 (concerning the right of entry), in particular 5(2), which establishes the conditions under which a visa may or may not be required. Whether the person intends to stay for three months or longer has no bearing on that. The court case that is the subject of the question explicitly concerns whether an Article 20 permanent residence card counts as a "residence card provided for in Article 10" for the purpose of Art. 5(3), so I don't understand why you would think that Art 6(2) is important here. – phoog Jun 25 '20 at 21:42

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