The European Court of Justice can neither write nor adopt any new piece of European legislation because the EU respects closely the principle of separation of powers. But it does not mean the ECJ can not grant new rights to Europeans and non-Europeans living in the EU through audacious interpretations of the existing legislations and core principles of the Union. Like its American counterpart, the Luxembourg-based institution is often an important driver of the European integration. The most notorious case of its judicial activism is probably the ground-breaking Cassis de Dijon case, where the judges establish a clear primacy of EU law over national law. This principle is the very core of the European legal order, and yet it was not clearly stated in the treaties from the start. The ECJ had to use a fairly banal case to make this principle explicit.
The recent ruling (C – 133/15) on a Venezuelan mother of a Dutch child being refused welfare rights for her child because she was not a resident proved that the ECJ can still grant new rights to people. In this case, the Luxembourg judges extend the right of some third country nationals to reside in the EU when their children are European citizens to all parents, regardless of their situation. This ruling is here to complete the work of the Court to grant right to every non-European parent to stay with their European children on the European soil.
Only two declinations of this parental right were previously confirmed by the ECJ: if the non-European parent is married to a European that lives outside his country of nationality (the Surinder Singh cases in 2014), or if the removal of the non-European parents would effectively threaten the right of the European child to stay in the EU, including in his country of nationality (the crucial Ruiz Zembrano case in 2011). But one situation was still missing from the jurisprudence: when children are European because they have a European parent, but they only live with their non-European parents in their country of nationality. In that situation, nothing in the European legal order seemed to protect the non-European parent who takes care of a European children. This is why this Chavez-Vilchez and others case is important.
Following its rationale from the others related cases, the Luxembourg judges conferred a European right to parents to be residents in the country where their children live, as long as their presence is necessary for the children to stay in the country. In other words, no European children at all must be deported with their third country national parents. The fact that the other parent of the children, the one with a European passport, could potentially assume the whole responsibility for their day-to-day care is no longer a sufficient ground to expel the other parent. What really matters is the actual dependency of the child to the non-European parent, not the legal rights the other parent have on the children.
In practice, this ruling will bring stability to families in that situation. A genuine care of a European children give a right to every non-European parent to stay with them, regardless of the legal right for the other parent to also care for the children. Such a ruling might annoy some of Member States with very strict rules on residency, but it is definitely good news for children’s rights. The outcome of this case confirms that the European citizenship is not only useful to protect children’s rights, but it also helps to secure a stable environment for children to live and grow up in. The European citizenship gives out rights to people around European citizens so Europeans can fully enjoy their rights. EU law does not pursue the well-being of non-European citizens. But it can recognise when the well-being of a third country national is a condition for the well-being of a European, and act accordingly. This is not an act of generosity towards non-Europeans: it is a sign that the European Union can be willing to go the extra mile for the fulfilment of its own citizens.