DIRITTO DI SOGGIORNO DEI FAMILIARI DEL CITTADINO EUROPEO: EROSIONE DEL LIMITE DELLE SITUAZIONI PURAMENTE INTERNE E DELIMITAZIONE DEL NUCLEO ESSENZIALE DEL DIRITTO DI CITTADINANZA

The right to move and reside throughout the Union has been traditionally understood as the most important right of EU citizens. According to the Directive 2004/38/EC, which provides the fra- mework for almost all legal issues concerning the free movement of persons, the right to family reunion is accorded only to those citizens who exercise their right to move. The recent EUCJ case law has progressively detached the enjoyments of citizenship rights from the movement requirement set out in the Directive. In some recent cases (Chen, McCarthy, Dereci) the EUCJ has refined the concept of “internal situation”: the fact that the EU citizen has never exercised his/her movement and residence rights cannot prevent the EU law from granting a parallel right of residence to the person primarily responsible for his/her care, irrespective of the carer’s nationality. However, this right may be granted only in those cases where the denial of the right may force the EU citizen to leave the Union, thus infringing the core rights of EU citizenship. Therefore the right to family reunion has to be granted, according to the Court, only to the extent that is necessary to protect the essential core of EU citizenship rights.