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Language of document : ECLI:EU:C:2013:390

Case C‑45/12

Office national d’allocations familiales pour travailleurs salariés (ONAFTS)

Radia Hadj Ahmed

(Request for a preliminary ruling from the Cour du travail de Bruxelles)

(Social security for migrant workers — Regulation (EEC) No 1408/71 — Scope ratione personae — Grant of family benefits to a third-country national with a right of residence in a Member State — Regulation (EC) No 859/2003 — Directive 2004/38/EC — Regulation (EEC) No 1612/68 — Length-of-residence requirement)

Summary — Judgment of the Court (Fourth Chamber), 13 June 2013

1. Social security — Migrant workers — Union legislation — Scope ratione personae — Family members of a migrant worker — Third-country national and her daughter, also a third-country national, who obtained, less than five years earlier, a permit to reside in a Member State in order to join, not in the context of marriage or registered partnership, a migrant worker who is a national of another Member State and father of her child also a national of that other Member State — Cohabitation which has come to an end in the meantime, both children members of their mother’s household — Not included — Conditions

(Council Regulation No 1408/71, Art. 1(f)(ii))

2. Citizenship of the Union — Right of free movement and residence in the territory of the Member States — Directive 2004/38 — Retention of the right of residence of family members in the event of divorce, annulment of marriage or termination of registered partnership — Third-country national and her daughter, also a third-country national, who obtained, less than five years earlier, a permit to reside in a Member State in order to join, not in the context of marriage or registered partnership, a migrant worker who is a national of another Member State and father of her child also a national of that other Member State — Cohabitation which has come to an end in the meantime, both children members of their mother’s household — Length-of-residence condition of five years for the grant of guaranteed family benefits — Whether lawfulness

(Art. 18 TFEU; European Parliament and Council Directive 2004/38, Arts 13(2) and 14)

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of relevant Union law

(Art. 267 TFEU)

4. Free movement of persons — Workers — Right of residence of family members — Parent who is the primary carer for a child of a migrant worker or of a former migrant worker — Requirement for the child to have entered the educational system in the host Member State

(Council Regulation No 1612/68, Art. 12)

1. Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community must be interpreted as meaning that a third-country national or her daughter, who is also a third-country national, while their situation is the following:

- that third-country national obtained, less than five years earlier, a permit to reside in a Member State in order to join, not in the context of marriage or registered partnership, a national of another Member State, by whom she has a child who has the nationality of the latter Member State;

- only that national of another Member State has the status of worker;

- in the meantime the cohabitation of the third-country national and the national of another Member State has come to an end; and

- both children are members of their mother’s household,

do not come within the scope ratione personae of that regulation, unless that third-country national or her daughter can be regarded, within the meaning of the national legislation and for its application, as ‘members of the family’ of the national of another Member State or, where that is not the case, unless they can be regarded as being ‘mainly dependent’ on him.

(see para. 34, operative part 1)

2. Articles 13(2) and 14 of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, read in conjunction with Article 18 TFEU, must be interpreted as not precluding the legislation of a Member State by which the latter subjects the grant of guaranteed family benefits to a third-country national, while her situation is the following:

- only that national of another Member State has the status of worker;

- in the meantime the cohabitation of the third-country national and the national of another Member State has come to an end; and

- both children are members of their mother’s household,

to a length of residence requirement of five years although its own nationals are not subject to that requirement.

It follows from the express wording of Article 13(2) of Directive 2004/38 that the right of residence of a Union citizen’s family members who are not nationals of a Member State is retained, by virtue of that provision and under certain conditions, only in the event of divorce, annulment of marriage or termination of a registered partnership. In the absence of a marriage or a registered partnership, a third-country national cannot rely on a right of residence under Article 13(2) of Directive 2004/38, or under Article 14 of that directive, which, in Article 14(2), merely refers to the need for the persons concerned to satisfy the conditions set out, inter alia, in Article 13 of that directive in order to be able to retain a right of residence. Take conclusion cannot be affect by the taking into consideration of Article 18 TFEU.

(see paras 36-38, 54, operative part 2)

3. See the text of the decision.

(see para. 42)

4. So that a third-country national, as the parent who is the primary carer of the child of a national of a Member State who is or has been employed in the territory of another Member State, may have a right of residence based on Article 12 of Regulation No 1612/68 on freedom of movement for workers within the Community, that child must have entered the educational system in the host Member State.

(see para. 52)