Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Utrecht (Netherlands) lodged on 15 September 2020 – X v Staatssecretaris van Justitie en Veiligheid
(Case C-459/20)
Language of the case: Dutch
Referring court
Rechtbank Den Haag, zittingsplaats Utrecht
Parties to the main proceedings
Applicant: X
Defendant: Staatssecretaris van Justitie en Veiligheid
Questions referred
Is Article 20 TFEU to be interpreted as precluding a Member State from denying a third-country national, who has a dependent minor child, a Union citizen, where that minor is in an actual relationship of dependency in respect of that third-country national, a right of residence in the Member State of which the minor Union citizen is a national, where the minor Union citizen is located outside the territory of that Member State or of the Union and/or has never been in the territory of the Union, with the result that the minor Union citizen is effectively denied access to the territory of the Union?
(a) Should (minor) Union citizens declare or demonstrate an interest in exercising the rights conferred on them by citizenship of the Union?
(b) In that regard, could a relevant factor be that, as a rule, minor Union citizens cannot independently assert their rights and have no say over their place of residence, but are dependent on their parent(s) in that respect, and that this could involve a claim being made on behalf of a minor Union citizen for the right to exercise his rights as a Union citizen, whereas that might possibly be contrary to their other interests as referred to, for example, in the Chavez-Vilchez judgment? 1
(c) Are those rights absolute, in the sense that no obstacles may be placed in their way or that the Member State of which the (minor) Union citizen is a national might even have a positive obligation to enable that citizen to exercise those rights?
(a) In assessing whether there is a relationship of dependency as referred to in I. above, is the decisive factor whether or not the third-country national parent, prior to the application or prior to the decision refusing a right of residence, or prior to the time when a (national) court has to make a decision in legal proceedings brought because of that refusal, was responsible for the day-to-day care of the minor Union citizen, and whether there are others who were responsible for such care in the past and/or can (continue to) be responsible for it?
(b) In that connection, can the minor Union citizen, in order to be able to exercise his Union rights effectively, be required to settle on Union territory with his other parent, who is a citizen of the Union, who may no longer have parental responsibility for the minor?
(c) If so, does it make a difference whether or not that parent has or had parental responsibility and/or whether the minor is or was legally, financially or emotionally dependent on that parent and whether or not that parent is willing to take on those responsibilities and/or the care of the minor?
(d) If it were to be established that the third-country national parent has sole parental responsibility for the minor Union citizen, does that then mean that less weight should be attached to the question of the legal, financial and/or emotional dependence?
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1 C-133/15, EU:C:2017:354.