1. Charter of Fundamental Rights of the European Union

2. Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) – ‘Respect for private and family life’ – provides:

‘Everyone has the right to respect for his or her private and family life, home and communications.’

3. Article 24 of the Charter – ‘The rights of the child’ – provides:

‘1. Children shall have the right to such protection and care as is necessary for their well-being.

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3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’

4. The first sentence of Article 51(1) of the Charter is worded as follows:

‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.’

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25) The foregoing is the background against which the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg) has referred the following questions to the Court:

‘A. Articles 2, 3 and 7 of Directive 2004/38/EC

1. Does “family member” include, in particular in the light of Articles 7 and 24 of the Charter of Fundamental Rights (“the Charter”) and Article 8 of the ECHR on a broad interpretation of Article 2(2)(d) of Directive 2004/38, a parent who is a third-country national and has custody of a non-dependent child who is a Union citizen enjoying freedom of movement?

2. If so, does Directive 2004/38 apply to that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR on a broad interpretation of Article 3(1) of the directive, even if he does not “accompany” or “join” the child who is a Union citizen and who has moved away from the Member State of origin?

3. If so, does that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, have a right of residence for more than three months in the Member State of origin of the child who is a Union citizen, on a broad interpretation of Article 7(2) of Directive 2004/38, at least where a right of custody exists and is actually exercised?

B. Article 6(1) EU in conjunction with the Charter

1.(a) Is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter if the subject-matter of the dispute depends on a national law (or part of a law) which partly – but not only – transposed directives?

1.(b) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter because the applicant could enjoy a right of residence under Union law and could accordingly claim, under the first sentence of Paragraph 5(2) of the Freizügigkeitsgesetz/EU (Law on the Freedom of Movement of Union Citizens), a residence card of a family member of a Union citizen which has its legal basis in the first sentence of Article 10(1) of Directive 2004/38?

1.(c) If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter, in accordance with the ERT case‑law (Case C‑260/89, paragraphs 41-45), where a Member State restricts the right of residence of the father who is a third-country national and has custody of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation?

2.(a) If the Charter does apply, does Article 24(3) of the Charter directly accord a right of residence under European Union law to the father who is a third-country national, at least if he holds and actually exercises the right of custody of his child who is a Union citizen, even though the child resides predominantly in another EU Member State?

2.(b) If not, does it follow from the freedom of movement of the child who is a Union citizen that under Article 45(1) of the Charter, possibly in conjunction with Article 24(3) of the Charter, the father who is a third-country national has a right of residence under European Union law, at least if he holds and actually exercises the right of custody of his child who is a Union citizen, so that in particular the freedom of movement of the child who is a Union citizen is not deprived of its practical effect?

C. Article 6(3) EU in conjunction with the general principles of Union law

1. Can the “unwritten’ EU fundamental rights developed in the Court’s case‑law from the Stuttgart Stauder case (Case 29/69, paragraph 7) to, for example, Mangold (Case C‑144/04, paragraph 75) be fully applied even if the Charter is not applicable in the specific case? In other words, do the fundamental rights which continue to apply as general principles of Union law under Article 6(3) EU stand autonomously and independently alongside the new fundamental rights laid down in the Charter in accordance with Article 6(1) EU?

2. If so, can a right of residence under European Union law be inferred, with a view to the effective exercise of the right of custody, from the general principles of Union law, in particular in the light of the right to respect for family life under Article 8 of the ECHR, for a father, who is a third-country national, of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation?

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51) The referring court, however, has also raised the question whether a ‘broad interpretation’ of Directive 2004/38 might be possible in the light of Articles 7 and 24 of the Charter of Fundamental Rights, ( 15 ) under which family life must be respected and children must have the right to protection and care and to regular personal contact with their parents.

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53) Under Article 6 TEU, the Charter of Fundamental Rights forms part of primary law. Secondary Union law, such as Directive 2004/38, must, so far as possible, be interpreted in a manner consistent with primary law, and thus with fundamental rights. Where an act is open to more than one interpretation, it is necessary to take as a basis the interpretation which is not in conflict with the fundamental rights protected by the European Union’s legal order. ( 16 )

54) Under Article 51 thereof, the Charter of Fundamental Rights must be complied with in the implementation of Directive 2004/38. However, the question as to interpretation and application of a legal act in a manner consistent with fundamental rights cannot be raised outside the scope of that legal act. Since it has been established above that Directive 2004/38 does not at all cover the present case of the right of residence of the third-country national in the Member State of origin of the Union citizen, there is consequently also no need to examine the issue of assessment of the provisions of that directive in the light of the Charter of Fundamental Rights. ( 17 )

55) The same is true of the provisions of the ECHR, ( 18 ) which, for purposes of interpretation, could, like the Charter of Fundamental Rights, be relevant solely in relation to the scope of Directive 2004/38. Since the directive at issue governs only rights of residence in Member States other than that of which the Union citizen is a national, there is also no need to examine this aspect in greater detail.

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70) In Dereci the Court considered this possibility and ruled that: ‘Thus, … if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.’ ( 24 )

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72) This issue must be considered below and in this respect it is first necessary to examine whether the Charter of Fundamental Rights is at all applicable in the present case. Under Article 51(1) of that Charter, in order for this to be so, there must be a connection with the implementation of Union law.

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74) The contention that the Charter of Fundamental Rights is applicable in the context of restrictions on the fundamental rights is questioned by some legal writers with reference to Article 51 thereof, which takes ‘implementing Union law’ as a basis. ( 26 ) These concerns also apply to the right to freedom of movement enshrined in Article 21 TFEU. ( 27 ) However, the reference in the explanations relating to the Charter ( 28 ) to the case‑law of the Court in which the applicability of the fundamental rights to measures restricting fundamental freedoms is recognised ( 29 ) militates in favour of applying the fundamental rights enshrined in the Charter also to restrictions on freedom of movement under Article 21 TFEU.

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81) It follows from my foregoing observations that the Charter of Fundamental Rights applies, under the first sentence of Article 51(1) thereof, in so far as denial of the right of residence prejudices the daughter’s right to freedom of movement under Article 21 TFEU and thus the implementation of Union law is concerned.

82)The right of the child to maintain on a regular basis a personal relationship and direct contact with both parents (Article 24(3) of the Charter) and respect for family life (Article 7 of the Charter) are particularly relevant in the present case in terms of fundamental rights.

83) However, whether or not denial of the right of residence constitutes interference with a fundamental right in this regard is unclear and depends on the specific circumstances of each case, which must be assessed by the referring court. ( 33 )

84) If the father were denied the right of residence in Germany, this need not necessary impact on his opportunities to maintain regular contact with this child living in Austria. Rather, Article 24(3) of the Charter appears precisely to ensure that the father can also maintain contact with his child in Austria after she has exercised freedom of movement.

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86) In this case a right of residence, based on fundamental rights, of the third-country national within the meaning of the Dereci judgment might be inferred from Article 24(3) of the Charter of Fundamental Rights, in conjunction with Article 7 thereof. ( 34 )

87) It should also be pointed out that Article 8 of the ECHR, which is applicable to parent/child relationships even where the parents and the child no longer live permanently together under the same roof, ( 35 ) leads to a similar conclusion. Under Article 52(3) of the Charter of Fundamental Rights, the rights contained in the Charter which correspond to rights guaranteed by the ECHR have the same meaning and scope as the corresponding rights laid down by the ECHR. However, it is also expressly provided in Article 52(3) of the Charter of Fundamental Rights that that provision does not prevent EU law from providing more extensive protection. ( 36 )

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88) By way of interim conclusion, it must therefore be stated that, in the light of the fundamental rights guaranteed under Article 6(1) and (3) TEU, and in particular in the light of those enshrined in Articles 7 and 24 of the Charter of Fundamental Rights, a parent who has a right of custody and is a third-country national can, in order to maintain a personal relationship and direct parental contact on a regular basis, have a right of residence in the Member State of origin of his child who is a Union citizen under Articles 20 TFEU and 21 TFEU, if the child has moved from there to another Member State, exercising his right of free movement. For such a right of residence to exist, the denial thereof must have a restrictive effect on the child’s right to freedom of movement and must be regarded as amounting to a disproportionate interference with fundamental rights in the light of the abovementioned fundamental rights. This is a matter for assessment by the referring court.

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92) In the light of all of the foregoing considerations, I propose that the Court should answer as follows the questions which have been referred for a preliminary ruling:

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC does not confer on a parent who has custody rights and is a third-country national a right, in order to maintain a personal relationship and direct parental contact on a regular basis, to remain in the Member State of origin of his child, who is a Union citizen, to be documented by a residence card of a member of the family of a Union citizen, if the child, exercising his or her right of free movement, moves from there to another Member State.

In the light of the fundamental rights guaranteed under Article 6(1) and (3) TEU, and in particular those enshrined in Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, a parent who has custody rights and is a third-country national may, in order to maintain a personal relationship and direct parental contact on a regular basis, have a right of residence in the Member State of origin of his child who is a Union citizen under Articles 20 TFEU and 21 TFEU, if the child, exercising his or her right of free movement, has moved from there to another Member State. In order for such a right of residence to exist, the denial thereof must have a restrictive effect on the child’s right of free movement and must be regarded as constituting a disproportionate interference with fundamental rights in the light of the abovementioned fundamental rights. This is a matter which must be assessed by the referring court. There is no right under European Union law to the issue of a residence card for members of the family of a Union citizen as documentary proof of this right of residence.