The background to the complaint

1. The complainant is a Nigerian citizen who is married to an Austrian citizen. They both reside in Austria.

2. In 2008, the complainant and his wife travelled to Spain on various occasions. His wife worked there as a cleaner from 27 April to 2 May 2008. In February 2009, the complainant unsuccessfully applied for a residence card to the competent Austrian authority. His appeal to the Austrian Ministry of the Interior was rejected. The Ministry essentially argued that the complainant did not establish that his spouse had exercised her right to free movement for more than three months, as laid down in Article 7 of Directive 2004/38[1].

3. On 22 January 2010, the complainant turned to the Austrian Supreme Administrative Court and requested the annulment of the decision not to grant him a residence card. On the same day, the complainant submitted an infringement complaint to the European Commission, alleging that Austria infringed Directive 2004/38 by not granting him a residence card, although his spouse had exercised her right to free movement. On 10 February 2010, the Commission acknowledged receipt of the complainant's infringement complaint.

4. On 4 January 2011, the Commission replied to the complainant and pointed out that, as a matter of principle, it cannot intervene in pending court proceedings. It also referred to its Communication on guidance for a better transposition and application of Directive 2004/38/EC[2] (hereinafter the 'Guidelines'). The Commission explained that the Guidelines require residence in the host Member State from which the Union citizen and his or her family members return to be "genuine and effective" in order for this citizen to invoke his or her right to free movement successfully. It also stated that the Guidelines provide for a number of criteria which national authorities could take into account when deciding whether the right to free movement has been exercised in a "genuine and effective" manner. Finally, the Commission informed the complainant of its intention to close the case if, within four weeks of its reply, he failed to submit any new evidence that could lead to a different assessment.

5. On 27 January 2011, the complainant wrote to the Commission in order to inform it of his view that points 4.3 ("Other forms of abuse") and 4.4 ("Measures and sanctions against abuse and fraud") of the Guidelines are not in line with the judgment of the Court of Justice in Case C-109/01 Akrich[3] which, in the complainant's view, rules out the possibility that the exercise of the right to free movement could be considered an abuse. Point 4.3 of the Guidelines states that the determination of the dividing line between a genuine and an abusive use of EU law is "based on an assessment of whether the exercise of Community rights in a Member State from which the EU citizens and their family return was genuine and effective". Point 4.4 of the Guidelines provides that "Article 35 entitles Member States to adopt the necessary measures in cases of abuse of rights or fraud. These measures can be taken at any point of time and may entail: (1) the refusal to confer rights under Community law on free movement (e.g. to issue an entry visa or a residence card); (2) the termination or withdrawal of rights under Community law on free movement (e.g. the decision to terminate validity of a residence card and to expel the person concerned who acquired rights by abuse or fraud)."

6. Also on 27 January 2011, the complainant submitted a complaint to the European Ombudsman (complaint 303/2011/NF), in which he essentially alleged that points 4.3 and 4.4 of the Guidelines infringe EU law. Article 2(4) of the Statute of the European Ombudsman requires complaints to be preceded by appropriate administrative approaches to the institution concerned. This requirement also means that the institution concerned must be given sufficient time to reply once a complainant has turned to it. Given that the Commission had not been given sufficient time to respond to the complainant's letter at the time when the latter submitted his complaint to the Ombudsman, the Ombudsman informed him on 8 February 2011 that his complaint was inadmissible.

7. On 4 July 2011, the Commission informed the complainant that it had decided to close his infringement complaint, given that it had not received any relevant new facts.

8. That same day, the complainant submitted the present complaint.

The subject matter of the inquiry

9. The Ombudsman opened an inquiry into the following allegation and claim:

Allegation

Points 4.3 and 4.4 of the Guidelines are not in conformity with EU law, as interpreted by the Court of Justice, in particular in Case C-109/01 Akrich.

Claim

The Commission should withdraw the aforesaid points of the Guidelines.

10. In his complaint, the complainant also claimed that the Commission should start infringement proceedings against Austria, should the practice of the Austrian administrative authorities, which is based on the Guidelines, not be abolished, once the Commission has withdrawn the aforesaid points. As regards that claim, the Ombudsman considered that it logically rested on the premise that the Commission should withdraw the aforesaid points of the Guidelines. However, this aspect was being considered in the present inquiry. In view of these circumstances, the Ombudsman decided that there were insufficient grounds to include this claim in the present inquiry (Article 228 TFEU).

The inquiry

11. On 28 July 2011, the Ombudsman asked the Commission for an opinion on the allegation and claim included in the inquiry.

12. On 19 October 2011, the Commission submitted its opinion, which was forwarded to the complainant with an invitation to submit observations.

13. On 26 April 2012, the Ombudsman made a proposal for a friendly solution of the complaint to the Commission. The Commission replied to that proposal on 12 July 2012. The Commission's reply was forwarded to the complainant with an invitation to submit observations by 31 August 2012. No observations were received by that date or a later date.

The Ombudsman's analysis and conclusions

A. Alleged non-conformity of the Guidelines with EU law, as interpreted in Case C-109/01 Akrich

Arguments presented to the Ombudsman

14. The complainant alleged that points 4.3 and 4.4 of the Guidelines are not in conformity with EU law, in particular with the Court of Justice's judgment in Case C-109/01 Akrich. He argued that this judgment rules out the possibility that the exercise of the right to free movement could be considered an abuse. He further submitted that, in light of the recent judgments in Cases C-34/09 Ruiz-Zambrano[4] and C-256/11 Dereci and others[5], the Guidelines had been deprived of their raison d'être.

15. In its opinion, the Commission submitted that points 4.3 and 4.4 of the Guidelines are in compliance with EU law, including the Akrich judgment.

16. As regards the conformity of point 4.3 with EU law, the Commission referred to paragraphs 55 and 56 of the Akrich judgment, according to which the motives of a worker "are of no account as regards his right to enter and reside in the territory" of a Member State, as well as his rights upon return to his home Member State, provided that he pursues or wishes to pursue an effective and genuine activity in the host Member State. The Commission pointed out that this legal situation is reflected in point 4.3 of the Guidelines which stipulates that the exercise of EU rights in a Member State, from which the EU citizen and his or her family members return, must have been genuine and effective. It goes on to state that, if the exercise of EU rights was genuine and effective, the Member State of origin should not inquire into the personal motives that triggered the move. In this regard, the Commission stressed that the Guidelines state that the fact that a person consciously places himself in a situation conferring rights does not in itself constitute a sufficient basis to assume that there is abuse. Moreover, the Commission explained that it did not consider convincing the complainant's view that abuse is limited to marriages of convenience. It referred to Article 35 of Directive 2004/38, which lists marriages of convenience as just one example of abuse of rights or fraud. An assessment of whether the exercise of the right to move and reside freely was genuine and effective may only be conducted on a case-by-case basis. The Commission emphasised that it is for the national authorities to carry out an examination of individual cases, while paying due attention to all circumstances of the case and not simply relying on a sole attribute.

17. As regards the conformity of point 4.4 with EU law, the Commission clarified that this text reiterates Article 35 of Directive 2004/38, which refers to marriages of convenience as one example of fraud. It further stated that it is thus for Member States to adopt the necessary measures in case of abuse or fraud. These could entail refusal, withdrawal or termination of the right to free movement. Given that EU law does not specify the applicable sanctions, Member States may adopt sanctions under national law, provided that these are non-discriminatory and proportionate.

18. In his observations, the complainant essentially submitted the following three arguments.

19. First, basing himself on the Advocate General's opinion in the Akrich case, he argued that the Court has given a wide interpretation to the right to free movement of workers[6]. In essence, he submitted that there is no minimum level or threshold below which the residence of a worker would not be subject to the free movement rules. In support of his argument, the complainant made reference to case-law on the freedom of establishment and services, where the Court considered even marginal economic activities as sufficient to render applicable the relevant rules[7].

20. Second, the complainant argued that the Court recognised that the enjoyment of a benefit resulting from the exercise of the right to free movement can never amount to an abuse of EU law. In support of his view, he again relied on the Advocate General's opinion in the Akrich Case[8].

21. Third, the complainant submitted that the current legal situation leaves no room for points 4.3 and 4.4 of the Guidelines, especially the reference to the motives, the degree and effectiveness of residence and activity or even the breaking of all ties with the home state. According to the complainant, this assessment is not called into doubt by the fact that Article 35 of Directive 2004/38 also refers to other abuses besides marriages of convenience.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

22. Point 1 of the Guidelines explains that they are intended to provide information and assistance to Member States and EU citizens as regards their rights under EU law. Citizens should therefore be able to rely on the information provided in the Guidelines. Thus, the Guidelines should be as clear as possible, in order to allow citizens to have a complete picture of their rights under Directive 2004/38 as well as of the relevant case-law. Moreover, given that the Guidelines could be taken into consideration by Member States' authorities when making decisions which might adversely affect Union citizens and their family members, it is of utmost importance that they clearly reflect applicable EU law.

As regards point 4.3 of the Guidelines

23. Point 4.3 of the Guidelines states that the determination of whether or not there is an abuse of the rights flowing from EU law is "based on an assessment of whether the exercise of Community rights in a Member State from which the EU citizens and their family return was genuine and effective". Furthermore, it provides that, if the exercise of those rights was genuine and effective, the motives for the move should not be examined by the home Member State. In paragraph 55 of its judgment in the Akrich case, the Court of Justice held that "the motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the latter State provided that he there pursues or wishes to pursue an effective and genuine activity". The Court added that the same held true for the Member State to which the person concerned returned after his or her stay in another Member State (paragraph 56 of the judgment).

24. The Ombudsman considered that there is a difference in the wording of point 4.3 of the Guidelines and paragraph 55 of the judgment in the Akrich case. In the Akrich judgment, the Court found that motives are of no account as regards the right to enter and reside freely, provided that the worker "pursues or wishes to pursue an effective and genuine activity"[9]. It thus followed from the Akrich judgment that even a short-term stay might be sufficient to constitute a genuine and effective exercise of EU rights, provided that the person concerned intended to pursue an effective and genuine activity. In contrast, point 4.3 of the Guidelines stipulates that it must be shown that the exercise of EU rights in a Member State from which the EU citizen and his or her family members return "was genuine and effective"[10].

25. The Ombudsman pointed out that it should be noted, however, that point 4.3 concerns a situation in which an EU citizen returns to his own Member State after a stay in another Member State. Given that the former Member State must assess actions or behaviour that occurred in the past, the use of the past tense in point 4.3 of the Guidelines was not surprising.

26. However, and as mentioned above, it followed from the Akrich judgment that a citizen can rely on his or her right to free movement in two situations, namely, (i) where he or she pursued an effective and genuine activity in another Member State; and (ii) where he or she wished to pursue an effective and genuine activity in another Member State (but this intention could not be realized for whatever reason). Given that point 4.3 of the Guidelines refers to cases where the exercise of the right to free movement (or other rights flowing from EU law) "was genuine and effective", the Ombudsman considered it possible that this passage may be misunderstood as only referring to the first of the two situations outlined above. As a consequence, citizens might be misled as to the precise scope of their rights under EU law.

27. In order to avoid any misunderstanding, the Ombudsman pointed out that the Commission might indeed have intended to cover both of the above-mentioned situations when drafting point 4.3 of its Guidelines. The fact remained, however, that the wording of this text is not as clear as it could and should be.

28. In his observations, the complainant also took the view that the current legal situation leaves no more room for point 4.3 of the Guidelines. According to the complainant, there is no minimum level or threshold below which the residence of a worker would not enable such person to rely on his right to free movement. The Ombudsman considered it to be true that the Court's case-law makes it clear that the threshold to trigger the application of free movement rules is low. However, the Ombudsman also considered that, as regards the rights of residence that third-country nationals may derive from the rights of EU citizens who have made use of their right to free movement, there is no indication that the Court has distanced itself from the requirement that the EU citizen's exercise of his or her right to free movement must, in order to be relevant, be "genuine and effective", within the meaning set out above. The Ombudsman considered that the more recent judgments of the Court of Justice in Ruiz-Zambrano and Dereci did not affect this conclusion. The complainant's views in this respect were therefore not convincing.

As regards point 4.4 of the Guidelines

29. The Ombudsman recalled that Article 35 of Directive 2004/38 provides that the "Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31".

30. The Ombudsman further noted that point 4.4 of the Guidelines reads as follows:

"Article 35 entitles Member States to adopt the necessary measures in cases of abuse of rights or fraud. These measures can be taken at any point of time and may entail:

• the refusal to confer rights under Community law on free movement (e.g. to issue an entry visa or a residence card);

• the termination or withdrawal of rights under Community law on free movement (e.g. the decision to terminate validity of a residence card and to expel the person concerned who acquired rights by abuse or fraud)."

Point 4.4. of the Guidelines goes on to state that, in the absence of specific sanctions provided by EU law, Member States may lay down effective, non-discriminatory and proportionate sanctions in their national law.

31. Against this background, the Ombudsman considered that point 4.4 of the Guidelines essentially paraphrases Article 35 of Directive 2004/38, without there appearing to be any difference between them as to the measures Member States may take in cases of abuse of rights or fraud. It followed that the complainant's view that point 4.4 of the Guidelines is not in line with EU law was not convincing.

Conclusion

32. In view of the above considerations, the Ombudsman made the following proposal for a friendly solution, in accordance with Article 3(5) of the Statute of the European Ombudsman:

"Taking into account the Ombudsman's considerations, the Commission could consider reviewing point 4.3 of the Guidelines."

The arguments presented to the Ombudsman after his friendly solution proposal

33. In its reply to the Ombudsman's friendly solution proposal, the Commission thanked the Ombudsman for his suggestion that was aimed at further enhancing the clarity of the Guidelines. The Commission stated that the Guidelines are intended to facilitate the implementation and application of Directive 2004/38, which, in Article 7, provides for the following three main categories of beneficiaries, with each category including family members: (i) workers and self-employed persons; (ii) persons who are not economically active; and (iii) students. The Commission submitted that the Guidelines are "not designed to be an exhaustive tool but to offer practical guidance as regards these categories of persons". According to the Commission, the Guidelines could not deal with all possible cases in extenso. Nevertheless, the guidance offered could also be of help in "similar cases which are not explicitly dealt with by the present guidelines".

34. The Commission went on to explain that it will issue its second report on the application of Directive 2004/38 in 2013. Based on this report, it would assess the added value of an update of the Guidelines. At the same time, the institution noted that, although not explicitly, the current version covers the case of Union citizens who wish to pursue an effective and genuine activity in another Member State but, as the Ombudsman had acknowledged in his friendly solution proposal, cannot, for whatever reason, realize this intention. As a consequence, the Commission stated that it does not envisage, at this stage, issuing a modified version of the Guidelines, with an eye to providing further clarification on the situation highlighted by the Ombudsman. The Commission also stated, however, that it would take this aspect into account in its second report on the application of Directive 2004/38.

35. The complainant did not submit any observations on the Commission's reply to the Ombudsman's friendly solution proposal.

The Ombudsman's assessment after his friendly solution proposal

36. The Ombudsman is pleased to note that, in its reply to his friendly solution proposal, the Commission acknowledged that the situation of a Union citizen who wishes to pursue an effective and genuine activity in another Member State but, for whatever reason, cannot realize this intention is not explicitly covered by the Guidelines. The Ombudsman moreover understands the Commission's position to be that point 4.3 of the Guidelines could indeed be clearer and more specific in this regard.

37. In its reply, the Commission also stated that the Guidelines cannot deal with all possible cases in an exhaustive manner. While this may be true, the Ombudsman is not convinced that this would rule out making point 4.3 of the Guidelines clearer, so as to better reflect the relevant passage of the Court of Justice's judgment in Akrich. The Ombudsman further takes into account the Commission's argument that the Guidelines aim at facilitating the implementation and application of Directive 2004/38. It would thus appear all the more warranted to rule out as much as possible any potential misunderstandings concerning the free movement rights of Union citizens and their family members which the Guidelines could - actually or potentially - create.

38. While the Commission stated that it does not intend to modify the Guidelines at this stage, the Ombudsman is pleased to note that it intends to assess the added value of an update of the Guidelines, in the framework and on the basis of the results of its second report on the application of Directive 2004/38. The Commission's report is due in 2013. In view of these circumstances, the Ombudsman concludes that the Commission has accepted his friendly solution proposal to consider reviewing point 4.3 of the Guidelines. The Ombudsman is confident that, even if it decides to modify the Guidelines for reasons other than those discussed in the present case, the Commission will still take into account the considerations set out in the Ombudsman's friendly solution proposal in modifying the Guidelines. Given the importance of the area of EU law covered by the Guidelines, the Ombudsman would appreciate it if the Commission were to keep him informed of its relevant considerations, once it has adopted its second report on the application of Directive 2004/38.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Commission has accepted the Ombudsman's friendly solution proposal.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 5 October 2012

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[1] Directive 2004/38/EC of the European Parliament and 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, OJ 2004 L 158, p. 77.

Article 7 of Directive 2004/38 reads as follows: "1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and

have comprehensive sickness insurance cover in the host Member State; or

(c) ...; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c). ..."

[2] Communication from the Commission to the European Parliament and the Council on guidance for a better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM (2009) 313 final.

[3] Case C-109/01 Akrich [2003] ECR I-9607.

[4] Case C-34/09 Ruiz Zambrano, judgment of 8 March 2011, not yet published in the ECR.

[5] Case C-256/11 Dereci and others, judgment of 15 November 2011, not yet published in the ECR. At the time the complainant submitted his complaint, this case was still pending.

[6] Paragraphs 68 to 71 and 109 to 122 of the opinion.

[7] The complainant referred, in particular, to the judgments in case C-71/02 Karner [2004] ECR I-3025, case C-384/93 Alpine Investments [1995] ECR I-1141, and joined cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549.

[8] Paragraphs 96 to 105 and 169 to 185 of the opinion.

[9] Emphasis added by the Ombudsman.

[10] Emphasis added by the Ombudsman.