ABOUT THE (NON)MOVEMENT OF HEAVENLY BODIES – SOME REMARKS TO THE RECENT JURISPRUDENCE OF THE COURT OF JUSTICE IN THE AREA OF FREE MOVEMENT OF PERSONS AND TO THE FUTURE OF THE DIRECTIVE 2004/38

Abstract

Treaty provisions on the free movement of persons do not directly address free movement of family members. The right to move to and reside in another Member State for family members of the moving EU citizens is anchored in the secondary law, namely in the Directive 2004/38. However, the Court of Justice, under certain circumstances, grants the right of residence for family members-third country nationals outside the scope of the Directive, even in the Member State of the EU citizen’s nationality, by virtue of different Treaty provisions. That brings a lot of inconsistency, legal uncertainty and, in the end, risk of injustice. This article summarizes the different legal sources of residence right for family members-third country nationals in that internal situation as adjudicated by the Court of Justice until nowadays and assesses on that background whether the time is ripe for an amendment of the Directive 2004/38.