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FRANCE: Change in EU Court of Justice to Status of French Spouse or Partner

A judgment of the EU Court of Justice aligns the status of a French national's spouse or partner with that of a family member of an EU citizen when back in France after the couple's effective movement from another member state.

A judgment of the Court of Justice of the European Union (EU) on March 12, 2014, aligns the status of the spouse or partner of a French national with that of a family member of an EU citizen when back in France after the couple's "effective movement" from another member state.

An effective movement or stay occurs when the French national returns to France after having spent at least 3 consecutive months in another member state. Shorter stays, such as weekends and vacation periods that total 3 months or more are not considered an effective movement or stay.

Directive 2004/38/EC2 provides a derived right to reside in France for third-country family members of an EU citizen who has exercised his or her right to free movement. Conversely, the spouse or civil partner of a French national who is sedentary (i.e., has not exercised the right to free movement) is not covered by the Directive. Consequently, such spouse or partner receives less favorable treatment under French national law. This discrimination, called "reverse discrimination," is an obstacle to the free movement prohibited by EU law when it discourages an EU citizen from returning to his or her country of nationality when his or her third-country spouse or partner may encounter difficulties in obtaining resident status.

The EU Court of Justice deepened this reasoning in its judgment of March 12, 2014. It held that any EU citizen having developed or strengthened a family tie with a third-country national on the occasion of an effective stay in a host member state may obtain a derivative right to stay for his or her third-country family members when he or she returns to settle in the member state of his or her nationality. Such latter state cannot then apply a less favorable regime to the third-country spouse or civil partner as would have been permitted under Directive 2004/38/CE.

Although in practice it is too early to comment on the practical application of this case law at the Prefectures, this case makes the point that third-country spouse or civil partner of a French citizen returning to France enjoys the same benefits as the family member of any EU citizen moving to France. While the third-country spouse/partner of a French national currently must obtain a long-stay visa before entering France, he or she should be exempt. Such spouse/partner, currently receiving a residence permit of 1 year, should receive a residence permit of 5 years, renewable.


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