JUDGMENT OF THE COURT
11 July 2002 (1)
(Freedom to provide services - Article 49 EC - Directive 73/148/EEC - National of a Member State established in that State and providing services to persons established in other Member States - Right of residence in that State of a spouse who is a national of a third country)
In Case C-60/00,
REFERENCE to the Court under Article 234 EC by the Immigration Appeal Tribunal (United Kingdom) for a preliminary ruling in the proceedings pending before that court between
Secretary of State for the Home Department,
on the interpretation of Article 49 EC and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973 L 172, p. 14),
composed of: G.C. Rodríguez Iglesias, President, N. Colneric and S. von Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward, J.-P. Puissochet, M. Wathelet, R. Schintgen and J.N. Cunha Rodrigues (Rapporteur), Judges,
Advocate General: C. Stix-Hackl,
Registrar: H.A. Rühl, Principal Administrator,
after considering the written observations submitted on behalf of:
- Mrs Carpenter, by J. Walsh, Barrister, instructed by J. Wyman, Solicitor,
- the United Kingdom Government, by G. Amodeo, acting as Agent, and by D. Wyatt QC,
- the Commission of the European Communities, by N. Yerrell, acting as Agent,
having regard to the Report for the Hearing,
after hearing the oral observations of Mrs Carpenter, represented by J. Walsh, of the United Kingdom Government, represented by R. Magrill, acting as Agent, and by D. Wyatt QC, and of the Commission, represented by N. Yerrell and H. Michard, acting as Agent, at the hearing on 29 May 2001,
after hearing the Opinion of the Advocate General at the sitting on 13 September 2001,
gives the following
'Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.'
'Whereas freedom of movement of persons as provided for in the Treaty and the General Programmes for the abolition of restrictions on freedom of establishment and on freedom to provide services entails the abolition of restrictions on movement and residence within the Community for nationals of Member States wishing to establish themselves or to provide services within the territory of another Member State'.
'The Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of:
(a) nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that State;
(b) nationals of Member States wishing to go to another Member State as recipients of services;
(c) the spouse and the children under 21 years of age of such nationals, irrespective of their nationality;
(d) the relatives in the ascending and descending lines of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality.'
'The right of residence for persons providing and receiving services shall be of equal duration with the period during which the services are provided.'
United Kingdom legislation
'A person shall not under the [Immigration Act 1971] require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.'
'A person who is not a British Citizen shall be liable to deportation from the United Kingdom -
(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave ...'.
The dispute in the main proceedings
'In circumstances where:
(a) a national of a Member State, who is established in that Member State and who provides services to persons in other Member States; and
(b) has a spouse who is not a national of a Member State;
can the non-national spouse rely on
(i) Article 49 EC and/or
(ii) Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community fornationals of Member States with regard to establishment and the provision of services,
to provide the non-national spouse with the right to reside with his or her spouse in his or her spouse's Member State of origin?
Is the answer to the question referred different if the non-national spouse indirectly assists the national of a Member State in carrying on the provision of services in other Member States by carrying out childcare?'
The question referred
Observations submitted to the Court
Findings of the Court
47. The costs incurred by the United Kingdom Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
in answer to the question referred to it by the Immigration Appeal Tribunal by order of 16 December 1999, hereby rules:
Article 49 EC, read in the light of the fundamental right to respect for family life, is to be interpreted as precluding, in circumstances such as those in the main proceedings, a refusal, by the Member State of origin of a provider of services established in that Member State who provides services to recipients established in other Member States, of the right to reside in its territory to that provider's spouse, who is a national of a third country.
Delivered in open court in Luxembourg on 11 July 2002.
R. Grass G.C. Rodríguez Iglesias
1: Language of the case: English.