In a series of cases titled O, B, S & G (cases C-456/12 and C-457/12), the grand chamber of the Court of Justice of the European Union recently returned to the difficult issue of the rights of residence of third-country nationals in the European Union in the context of their family relationships with EU citizens.
The Court of Justice confirmed that third-country nationals hold no autonomous rights of residence under EU citizenship rules and that such rights derive only from the exercise of the right of free movement by an EU citizen.
It held that even when considered together, short periods of residence together, such as weekends or holidays spent in a host member state, do not give rise to sufficiently genuine residence in the host member state to confer a residence right on third-country family members.
However, the court did recognise the right of residence of a third-country national in a member state, where the EU family member is travelling to another member state in exercise of his/her rights as a worker and refusal of a right of residence for the third-country national would dissuade the EU citizen from exercising EU rights, such as where the third- country national family member remains in the first member state to care for a dependent child.
Another interesting recent decision of the Court of Justice concerns a refusal of Poland and Lithuania to reregister second-hand-right hand drive cars on grounds of safety, which could affect any Polish or Lithuanian citizens who have purchased such cars in Ireland.
In a judgment delivered on March 20th (cases C-639/11 and C-61/12), the court held that the refusal to reregister interfered with free movement of goods and could not be justified on grounds of public safety, given that both countries tolerated risk by allowing tourists to drive right-hand drive cars and given that less restrictive measures, such as mirror and windscreen wiper alterations, could be adopted.
Digital rights
Also of interest of course is the ruling in the digital rights challenge to the Data Retention directive in which it was held that the directive gave rise to a disproportionate interference with articles 7 (privacy) and 8 (data protection) of the Charter of Fundamental Rights.
Although the directive pursued the objective of contributing to the fight against serious crime and public security, it affected “practically the entire European population”.
It said that it did not require a relationship between the data retained and serious crime, did not specify substantive or procedural conditions determining access to the data, and did not sufficiently identify the time period for which data could be retained.
Finally, the Court of Justice has published its annual report for 2013. Among the noteworthy statistics, the number of new cases lodged at the court is at an all-time high (699 new cases in 2013) but the court is disposing with cases more efficiently.
Also, 2013 saw no new action lodged against Ireland for failure to fulfil its obligations under EU law.
This is quite a remarkable statistic given that 202 such cases have been brought against Ireland since accession in 1973.
Catherine Donnelly BL and Declan Walsh are committee members of the Irish Society of European Law