2004/38/EC Rights of Family Members

[Rolfus]

When we discuss 2004/38/EC on this forum we are usually only interested in its immigration aspects. But the Directive also bestows many other rights on Family Members, eg

Article 24
Equal treatment
1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

My question is this:
Do -other family members- who are residing with the Union citizen thanks to Article 3.2 benefit from these additional rights?

For Article 3.2 other family members in the UK the answer will be yes, because as a more favourable national provision other family members will be treated as family members. But could an OFM use this to enforce Article 24 in, say, France?

[Obie]

Well if you look at Recital 6, you will see that memberstate are allowed to examined whether OFM can benefit from the provisions from the directive.

It follows that once the examination is concluded and it is accepted they meet all the requirement of Article 3(2), all the provisions of the directive shall apply.

[Rolfus]

An interesting point, but I think that recital 6 only applies to entry and residence, do you think it can be construed as applying to other rights as well?

6.In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discri- mination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legis- lation, in order to decide whether entry and residence could be granted to such persons, taking into considera- tion their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

[Obie]

I believe most memberstates provides for equal treatment for other family member in their national legislation.

I don't believe the wording of Article 24 precludes OFM.

In UK for Example, once an EEA family permit or a Residence card has been issued, these people by virtue of regulation 7(3) are treated as family members for the purpose of the EEA regulations, which was enacted to give effect to Directive 2004/38EC .

[EUsmileWEallsmile]

Does article 24 or equivalent appear in the 2006 regs?

[Obie]

No it doesn't the UKBA said it was not transposed as the EEA regulations is purely about free movement of EEA nationals and their family members. However it is hoped that other governmental departments will fully implement it.

[EUsmileWEallsmile]

No it doesn't the UKBA said it was not transposed as the EEA regulations is purely about free movement of EEA nationals and their family members. However it is hoped that other governmental departments will fully implement it.

Sorry about the delay in responding. I knew the UK hadn't bothered, which is in itself a non-conformance. The whole directive is to be implemented not just the bits they fancy.