ECLI:EU:C:2026:570

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OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 9 July 2026 (1)

Case C‑279/25

Land Baden-Württemberg

other party:

Vertreterin des Bundesinteresses beim Bundesverwaltungsgericht

(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Germany))

( Reference for a preliminary ruling – Citizenship of the Union – Article 21(1) TFEU – Right to move and reside freely within the territory of the Member States – Citizen of the Union holding the nationality of two Member States from birth – Citizen of the Union moving between the Member States of which he or she is a national – Right of residence of a third-country national who is a family member )

I. Introduction

1. Can a person holding the nationality of two Member States between which he or she has moved rely on the nationality of Member State of origin A before the authorities of Member State of origin B, arguing that he or she has exercised the right to move and reside freely within the territory of the Member States conferred on him or her by EU law and claim the legal status arising therefrom? (2)

2. That question is of crucial importance. While dual nationality was once viewed with suspicion by the States because the link of nationality was deemed to be exclusive, dual nationality status is now widely accepted (3) and the number of EU citizens holding the nationality of two Member States from birth is constantly increasing. That situation stems from the increase in cross-border movements of people within the European Union, the emergence of binational families and the adoption of national legislation by which Member States recognise the principle of gender equality as regards the transmission of nationality and authorise the holding of more than one passport. (4)

3. In 2025, 3 612 000 German citizens held dual nationality. Owing to geographical proximity, historical ties and closer cooperation between the Federal Republic of Germany and the Republic of Poland, German nationals also possessing Polish nationality accounted for the highest proportion of dual nationals on German territory, at 458 000 individuals, far ahead of German-Italian, German-Romanian, German-Greek and German-French nationals. (5) The Gesetz zur Modernisierung des Staatsangehörigkeitsrechts (Law on the modernisation of citizenship law) (6) of 22 March 2024, which entered into force on 27 June 2024, is expected to amplify this phenomenon in the future, in so far as that law now permits dual nationality from birth and permits naturalisation after five years’ residence. (7)

4. The present reference for a preliminary ruling has arisen in the context of a dispute between IC, an Algerian national, and the German authorities concerning the lawfulness of a decision by which those authorities refused to grant him the benefit of a derived right of residence which he had sought in his capacity as the spouse of a Union citizen with dual German and Polish nationality (‘the person concerned’). They took the view that that Union citizen had not exercised her right to move and reside freely within the territory of the Member States within the meaning of Article 21(1) TFEU by moving from Poland to Germany.

5. At a time when dual nationality is regarded as the Achilles heel of EU citizenship, (8) the Court is asked to clarify its case-law and, in particular, to determine whether EU citizens holding the nationality of two Member States and present on the territory of one of those Member States are residing there on the basis of national or EU law and, consequently, what rules apply to the residence of third-country nationals who are members of their families.

6. In the present Opinion, I shall set out the reasons why I consider that a Union citizen who, like the person concerned, has left the Member State in which he or she was born and of which he or she has been a national since birth in order to travel to the territory of another Member State, of which he or she has also been a national since birth and in which he or she has established and built his or her family life, has not exercised his or her right to move and reside freely within the territory of the Member States within the meaning of Article 21(1) TFEU, despite having crossed the border between those two States. In particular, I shall explain that the solution arrived at by the Court of Justice in the judgment of 14 November 2017, Lounes, (9) does not appear to be applicable by analogy, since such a citizen cannot claim the benefit of rights previously acquired on the basis of Directive 2004/38/EC. (10)

II. The facts in the main proceedings and the question referred for a preliminary ruling

7. The applicant is an Algerian national who has resided in Germany since 2009. As his application for international protection was rejected, his continued residence is unlawful, but he has nevertheless been permitted to stay under a number of temporary leaves to remain. He is the father of three children who were born in Germany in 2012, 2016 and 2018 , and who reside in Germany. The mother of his children, whom he married in 2017, holds both German and Polish nationality. After living in Poland until 2008, she moved to Germany at the age of twelve, with a residence permit of unlimited duration before it was established that she had held German nationality since birth, by descent. With the exception of occasional visits to Poland, she has been permanently resident in Germany ever since.

8. The applicant has been the subject of criminal proceedings on various occasions and has been detained on several occasions, either on remand or following conviction, as well as in the context of compulsory admission to a psychiatric institution. (11) The applicant and the person concerned were divorced on 18 June 2021.

9. During that period, in 2018, the applicant applied for a residence card pursuant to the first sentence of Paragraph 5(1) of the Gesetz über die allgemeine Freizügigkeit von Unionsbürgern (Law on the general freedom of movement for Union citizens (12)) of 30 July 2004. (13) Following the refusal of his application for a residence card, the applicant lodged an appeal against that refusal with the Verwaltungsgericht Sigmaringen (Administrative Court of Sigmaringen, Germany), which was dismissed. The applicant appealed against that decision before the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg, Germany). That appeal was also dismissed by decision of 5 July 2023. In essence, the judicial authorities took the view that the person concerned, namely the applicant’s spouse, had not exercised her right to move and reside freely within the territory of the Member States within the meaning of Article 21(1) TFEU by moving from Poland to Germany. (14)

10. Consequently, the applicant brought an appeal on a point of law before the Bundesverwaltungsgericht (Federal Administrative Court, Germany), claiming, in essence, that, since the person concerned had, at the age of 12, exercised her right to move and reside freely within the territory of the Member States by moving to Germany, he was entitled to a derived right of residence stemming from her status as a Union citizen.

11. Since it had doubts as to the scope of Article 21(1) TFEU, and in particular as to the applicability of the principles laid down by the Court of Justice in the judgment in Lounes, the referring court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is Article 21(1) TFEU applicable to a Union citizen who has held the nationality of two Member States since birth and has resided for the first 12 years of his or her life in one and then in the other of the two Member States of which that citizen is a national, so that that Union citizen can confer a derived right of residence on a third-country national with whom that citizen was temporarily married and with whom that citizen resided in the second Member State of which that citizen is a national?’

12. Written observations were submitted by the applicant, the German Government and the European Commission. Those parties, together with the interested parties, participated in the hearing held on 22 April 2026, at which they also replied to questions for oral answer put by the Court of Justice.

13. It emerged from the proceedings at that hearing that the applicant is still residing illegally on German territory, but that his residence is still tolerated. He has remarried and become the father of a fourth child.

III. Analysis

A. Preliminary observations

14. Before turning to the examination of the question referred for a preliminary ruling, I shall make two preliminary observations.

15. The first observation concerns the question of the legal status of the person concerned, who is a Union citizen, at the time of crossing the German-Polish border. That observation is essential, since the applicability of Directive 2004/38 follows from the answer to that question.

16. In its order for reference, the Bundesverwaltungsgericht (Federal Administrative Court) assumes that the person concerned – a Union citizen – was granted the nationality of two Member States at birth. That is reflected in the wording of the question referred for a preliminary ruling. However, it asks whether the fact that the applicant’s German nationality was revealed only after she moved to German territory is capable of affecting the assessment of her exercise of her right to move and reside freely within the territory of the Member States within the meaning of Article 21(1) TFEU.

17. I consider that that circumstance should not be taken into account for the purposes of examining the question referred for a preliminary ruling. In so far as the recognition of a bond of nationality is a declaratory act, that recognition produced its effects retroactively as from the birth of the Union citizen, with the result that the person concerned cannot be regarded as having been ‘solely Polish’ at the time she crossed the border into the Federal Republic of Germany, contrary to what the applicant claims. Therefore, and in so far as the person concerned – a Union citizen – has lived successively in the two Member States of which she is a national, Directive 2004/38, which lays down the limitations and conditions on the exercise by Union citizens of their right to move and reside freely within the territory of the Member States provided for in Article 21(1) TFEU, (15) has never been applicable. That point is not disputed in the main proceedings. I would point out that, according to Article 3(1) of Directive 2004/38, the directive applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them. In accordance with the Court’s case-law, that directive is therefore not intended to govern the derived rights of the family members of that Union citizen within a Member State of which he or she is a national. (16)

18. The second observation concerns the relevance of the Court’s case-law on obstacles to the right of a Union citizen to move and reside freely within the territory of the Member States arising from the refusal by the national authorities to recognise or amend his or her surname.

19. The order for reference and the observations of the applicant and the Commission refer to the principles established by the Court of Justice in the judgments of 2 October 2003, Garcia Avello; (17) of 8 June 2017, Freitag; (18) and of 25 November 2025, Wojewoda Mazowiecki. (19) However, the aims pursued by those involved in the proceedings are different: while the referring court seeks to establish the existence of a connection with EU law, the applicant and the Commission seek, for their part, to demonstrate the applicability of Article 21 TFEU and the benefit of the rights attaching thereto vis-à-vis Union citizens who hold the nationality of two Member States whilst residing in the territory of one of those Member States.

20. I do not believe that this case-law can be applied by analogy. While the rules governing the recognition and transcription of, or changes to, the civil status data of a Union citizen, such as surname, gender or even marital status, and those governing the right of residence of third-country nationals who are members of his or her family all contribute to the creation of an area of free movement and residence within the European Union, they serve distinct objectives and have specific features structured around particular principles.

21. Consequently, I shall focus my analysis on the principles which the Court of Justice has developed with regard to the scope of Article 21(1) TFEU solely in the context of the grant of derived rights of residence to third-country nationals who are family members of Union citizens.

B. Examination of the scope of Article 21(1) TFEU

22. By its question, the referring court asks the Court, in essence, whether a Union citizen who has moved between two Member States of which he or she has been a national since birth in order to settle permanently in one of those States has exercised his or her right to move and reside freely within the territory of the Member States conferred on him or her by Article 21(1) TFEU, so that a third-country national with whom he or she has created and developed his or her family life in the second State may rely, before the competent national authorities, on a derived right of residence based on the provisions of EU law.

23. For the reasons which I shall now set out, I consider that Article 21(1) TFEU does not apply to such a situation. While the applicant and the Commission seek to show that the approach adopted by the Court of Justice in the judgment in Lounes concerning a Union citizen who has acquired a second nationality following naturalisation in the host Member State may be extended to a Union citizen who has held the nationality of two Member States since birth, I shall demonstrate that there are substantial differences between those two situations which, in my view, preclude the Court from accepting such a proposal.

1. The principles laid down in the judgment in McCarthy

24. I recall that, in the judgment of 5 May 2011, McCarthy, (20) the Court of Justice held, in essence, that Article 21 TFEU is not applicable to a Union citizen who has never exercised his or her right to freedom of movement, who has always resided in a Member State of which he or she is a national and who is also a national of another Member State. In the case which gave rise to that judgment, Mrs Shirley McCarthy – a Union citizen – had applied for a right of residence on the basis of EU law in the United Kingdom, of which she was a national and where she had always resided. She also held Irish nationality. That application was intended to confer on Mr McCarthy, a third-country national, a right of residence under Directive 2004/38 as a member of Mrs McCarthy’s family, given that a comparable right of residence did not arise under the immigration rules of the United Kingdom. (21)

25. In its judgment, the Court began by pointing out that the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by EU law and which are confined in all relevant respects within a single Member State. (22) On that point, it also noted that the fact that the Union citizen is a national of two Member States is not sufficient, in itself, for a finding that his or her situation is covered by Article 21 TFEU. (23) In order to assess the existence of a connection with EU law in a situation in which Mrs McCarthy had not made use of her freedom of movement, the Court examined whether the refusal to grant her spouse a right of residence affected her in her right to move and reside freely within the territory of the Member States and, more broadly, in the rights attaching to her status as a Union citizen. (24) In the absence of any such detrimental impact, the Court concluded that her situation had no factor linking it with any of the situations governed by Union law and that the situation was confined in all relevant respects within a single Member State. (25)

26. In the present case, does the fact that the person concerned moved between the two Member States of which she is a national alter that conclusion? I do not believe so.

27. It is not disputed that the person concerned, in so far as she is a national of two Member States – namely the Republic of Poland, in whose territory she was born and resided until the age of 12, and the Federal Republic of Germany, to whose territory she moved and where she established her family life – enjoys the status of citizen of the Union. Article 20(1) TFEU provides that every person holding the nationality of a Member State is a citizen of the Union, and that such citizenship is additional to national citizenship, and does not replace it. (26) According to settled case-law, citizenship of the Union is intended to be the fundamental status of nationals of the Member States. (27) As such, the person concerned may therefore rely, both with respect to the Federal Republic of Germany and with respect to the Republic of Poland, on the rights conferred on those having that status, such as the right to move and reside freely within the territory of the Member States, as conferred by Article 21(1) TFEU. (28)

28. However, although the person concerned has demonstrated a certain degree of mobility within the European Union, I am not convinced that that cross-border movement between Member States whose nationality she has held since birth is, in itself, sufficient to support the view that she has exercised the right conferred on her by Article 21(1) TFEU, since there is nothing in the case file to indicate that she has moved or resided within the territory of a Member State other than the Republic of Poland and the Federal Republic of Germany.

29. One of the fundamental rules of EU law on freedom of movement and residence is that that freedom may, in principle, be relied on only by a national of a Member State who, as a Union citizen, has moved and resided in a Member State other than his or her Member State of origin, in accordance with Article 21 TFEU and under the conditions set out in Directive 2004/38. The Court has thus expressly held that ‘the right of freedom of movement includes … the right for citizens of the … Union to enter a Member State other than the one of origin’. (29) That is consistent with the principle that citizenship of the Union is derived from nationality, which refers to a legal and political status conferred on the nationals of a Member State beyond their State body politic. (30) The Court has also held that that right may be subject to the limitations and restrictions imposed by the Treaty on the Functioning of the European Union and by the measures adopted to give it effect, expressly stating in the judgment of 17 November 2011, Gaydarov, (31) that the right ‘is not unconditional’. (32)

30. Consequently, as EU law currently stands, Article 21 TFEU does not include the right of Union citizens to enter and reside in the territory of their Member State of origin, since that right derives from their status as nationals of that Member State. They derive that right not from EU law but from their national law. Unlike the right to move and reside freely within the territory of the Member States attaching to the status of Union citizen, the right to enter and reside in their own Member State cannot be subject to any limitation or restriction. The Court has thus repeatedly held that, under a principle of international law, a Member State cannot refuse its own nationals the right to enter its territory and remain there and that those nationals thus enjoy an unconditional right of residence. (33)

31. In the judgment in McCarthy, the Court of Justice therefore concluded that, since the residence of a person residing in the Member State of which he or she is a national cannot be made subject to conditions, Directive 2004/38, concerning the conditions governing the exercise of the right to move and reside freely within the territory of the Member States, cannot apply to a Union citizen who enjoys an unconditional right of residence due to the fact that he or she resides in the Member State of which he or she is a national. (34) I believe that that reasoning is applicable to Article 21(1) TFEU, which forms the basis for it.

32. In the present case, the person concerned – a Union citizen – left the territory of the Republic of Poland, of which she is a national, to travel to and reside in the territory of the Federal Republic of Germany, of which she is also a national, not in the exercise of her right to move and reside freely within the territory of the Member States, as recognised by Article 21(1) TFEU, but on the basis of the autonomous and unconditional right to enter and remain conferred on her by her nationality. (35) In the absence of such a premiss, and because any rights conferred on third-country nationals are not rights specific to them, but rights derived from those enjoyed by Union citizens, (36) the Federal Republic of Germany cannot be required to grant the applicant, in his capacity as a family member of a Union citizen, a right of residence directly based on Article 21(1) TFEU, when all the relevant factors are confined within that Member State, the couple having met and established their family life on German territory before continuing it and bringing it to an end there.

33. Thus, despite her cross-border movement, I consider that the Union citizen in question who moved between the Member States of which she has been a national since birth and in whose territory she has always resided did not exercise her right to move and reside freely within the territory of the Member States within the meaning of Article 21(1) TFEU, with the result that the applicant cannot derive a right of residence directly based on that provision.

34. Nor, in my view, can the applicant enjoy a derived right of residence under Article 20 TFEU. As the Court of Justice points out, the purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere with the Union citizen’s freedom of movement and residence. (37) I do not think that the situation at issue is comparable to the very specific situations in which Member States, despite the absence of cross-border movement by Union citizens, are required to recognise such a right of residence, since to do otherwise would deprive such citizens of the genuine enjoyment of the substance of the rights conferred on them by virtue of their status as Union citizens. (38)

35. In accordance with settled case-law, developed by the Court of Justice in the judgment of 8 March 2011, Ruiz Zambrano, (39) there are situations in which, ‘despite the fact that secondary legislation on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his or her freedom of movement and of residence, a derived right of residence under Article 20 TFEU must be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus depriving him or her of the genuine enjoyment of the substance of the rights conferred by virtue of [his or her status as a Union citizen]’. (40)

36. As the Court of Justice pointed out in the judgment in Safi, such situations have the common feature that, although they are governed by legislation which fall, a priori, within the competence of the Member States, namely legislation on the right of entry and residence of third-country nationals outside the scope of provisions of EU secondary legislation, those situations nonetheless have an intrinsic connection with the freedom of movement and residence of a Union citizen, which precludes the right of entry and residence being refused to those nationals in the Member State of residence of that citizen, in order to avoid interference with that freedom. (41) However, a refusal to grant such a right of residence is liable to undermine the effectiveness of Union citizenship only if there exists, between the third-country national concerned and the Union citizen who is a family member, a relationship of dependency of such a nature that it would lead to the Union citizen being compelled to accompany the third-country national concerned and to leave the territory of the European Union as a whole. (42)

37. Unlike the situation at issue in the cases which gave rise to the judgment of 8 March 2011, Ruiz Zambrano, (43) or the judgments of 10 May 2017, Chavez-Vilchez and Others, (44) and of 8 May 2018, K.A. and Others (Family reunification in Belgium), (45) there is nothing in the situation of the person concerned, as set out in the order for reference, to suggest that the refusal to grant the applicant a right of residence would risk depriving her or her minor children of the genuine enjoyment of the substance of the rights conferred on them by their status as Union citizens. (46) There is nothing to indicate that, as a result of that refusal, they have been compelled to leave the territory of the Union or that their right to move and reside freely within the territory of other Member States of which they are not nationals has been impeded. The applicant has always benefited from an arrangement of administrative tolerance on German territory and, despite the rejection of his application for a residence permit, his family members have always resided on German territory. Furthermore, that risk can reasonably be ruled out at present in so far as (i) it is apparent from the order for reference that the couple were divorced in 2021, (ii) it is apparent from the findings of the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg) that there is no actual dependency between the applicant and the children born of his union with the person concerned, (47) and (iii) the applicant’s representative stated at the hearing that the applicant had now established a new household.

38. Consequently, the situation at issue cannot be classified as a ‘very specific situation’ justifying the Federal Republic of Germany exceptionally granting a derived right of residence to a third-country national who is a family member of a Union citizen, on the basis of Article 20 TFEU, in order to ensure the effectiveness of Union citizenship.

2. The principles laid down in the judgment in Lounes

39. The approach adopted by the Court in the judgment in Lounes, (48) subsequently confirmed in the judgment in Chief Appeals Officer and Others, does not, in my view, apply to a situation such as that at issue.

40. I must acknowledge that the idea of extending that solution springs quite naturally to mind because of a factual analogy. That analogy arises from the fact that, in the case which gave rise to the judgment in Lounes, as in the case in the main proceedings, the Union citizen moved between two Member States whose nationality she held at the time when she created and built her family life with a third-country national.

41. The case which gave rise to the judgment in Lounes concerned, more specifically, the situation of a Spanish national, Ms Ormazabal. Having, in the exercise of her freedom of movement, travelled to and resided for several years in the territory of the United Kingdom – of which she was not a national – pursuant to and in compliance with Article 7(1) or Article 16(1) of Directive 2004/38, she acquired the nationality of that State by naturalisation without renouncing her Spanish nationality. Several years later, she married a third-country national, who applied to the United Kingdom authorities for a derived residence permit on the basis of Article 21 TFEU.

42. In that case, the Court of Justice held that the Union citizen must be able to ‘continue to enjoy, in the host Member State, the rights arising under [Article 21(1) TFEU], after they have acquired the nationality of that Member State’ (49) for three reasons: ensuring the consistency of the system, which is based on a philosophy of integrating Union citizens, ensuring the effectiveness of Article 21 TFEU and promoting equal treatment of Union citizens.

43. More specifically, the Court held that it would be contrary to the underlying logic of gradual integration that informs Article 21 TFEU for such citizens, who had acquired rights under that provision as a result of having exercised their freedom of movement, to be obliged to forego those rights – in particular the right to family life in the host Member State – because they had sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State. (50) The Court thus emphasised that the rights conferred on Union citizens in the host Member State, particularly the right to a family life with a third-country national, would thus be reduced in line with their increasing degree of integration in the society of that Member State and according to the number of nationalities that they hold. (51)

44. The Court also stated that if the rights conferred on Union citizens by Article 21(1) TFEU are to be effective, citizens in such a situation must be able to continue to enjoy, in the host Member State, the rights arising under that provision, after they have acquired the nationality of that Member State in addition to their nationality of origin and, in particular, must be able to build a family life with their third-country-national spouse, by means of the grant of a derived right of residence to that spouse. (52) Thus, whereas the Court requires of Union citizens returning to their countries of origin that they be accompanied by the third-country national, in the situation under consideration, by contrast, it dispenses with such a requirement, with Union citizens being able to benefit from the rights conferred by Directive 2004/38 even if they create and build their family lives after having arrived on the territory of the Member State of which they have acquired the nationality. (53)

45. Lastly, the Court noted that, otherwise, Union citizens who have exercised their freedom of movement and acquired the nationality of the host Member State in addition to their nationality of origin would, so far as their family life is concerned, be treated less favourably than Union citizens who have also exercised that freedom but who hold only their nationality of origin. (54)

46. That case-law does not, in my view, apply by analogy to the situation of a Union citizen who has, since birth, held the nationality of the Member State on whose territory he or she resides.

47. First, such an extension would require us to accept that the right to move and reside freely within the territory of the Member States referred to in Article 21 TFEU also includes the right for Union citizens to enter and reside in their Member State of origin. However, I would point out that, in view of the nature and scope of the bond of nationality, the right to enter and reside in one’s own Member State cannot be subject to the ‘limitations and conditions’ to which both Article 20(2) and Article 21(1) TFEU expressly refer. (55)

48. Second, such an interpretation would amount to limiting even further the competence of the Member States as regards the conditions of residence of third-country nationals who are family members of a Union citizen, and would ultimately result in unlimited recognition of rights deriving from Union citizenship, which is nowhere expressly provided for in the Treaties, since citizenship of the Union is derived from and complementary to the nationality of a Member State, as is clear from the wording of Article 20(1) TFEU. Indeed, under such an interpretation, on the sole basis of Article 21(1) TFEU, even read in the light of Article 7 of the Charter of Fundamental Rights of the European Union, Member States would be required to grant their nationals who also hold the nationality of another Member State the rights and benefits attached to the exercise of the right to move and reside freely within the territory of the Member States, including the derived right of residence, even where Directive 2004/38 has never been applicable.

49. In my view, that is the most significant difference between the present case and the cases giving rise to the judgments in Lounes and in Chief Appeals Officer and Others; here lies the main difficulty in accepting the extension of the approach adopted by the Court in those judgments.

50. In each of those cases, the national of a Member State ‘activated’ citizenship of the Union by exercising his or her right to move and reside freely within the territory of the Member States under the conditions laid down by Directive 2004/38, prior to naturalisation in the host Member State. That had the effect of bringing his or her legal status, in particular his or her personal and family circumstances, ab initio within the scope of EU law, since the person concerned became the holder of new rights under EU law. (56) According to the legal literature, citizenship of the Union thus creates an additional set of rights for Member State nationals. It adds to the first group of nationality rights enjoyed by the Member State national a second set of new rights enjoyed by nationals of all Member States in accordance with the provisions laid down in the Treaties. (57) Thus, it was precisely through the exercise of her right to move and reside freely within the territory of the Member States under the conditions laid down by Directive 2004/38 and the resulting ‘gradual integration’ in the host Member State that Ms Ormazabal acquired her British nationality and it was only in connection with the rights acquired previously that the Court accepted that that directive applied ‘by analogy’ to her residence in the United Kingdom. (58) It was therefore essential for the Court that the rights which she had previously acquired under that directive, in particular her right to family reunification, should be maintained in the territory of the United Kingdom through the lens of Article 21(1) TFEU. It was irrelevant whether the applicant’s Spanish or British citizenship was considered, since she was seen primarily as a Union citizen who had exercised her right to move and reside freely within the territory of the Member States and whose recognised right to family reunification had to be protected. (59) The issue at stake was not only the effectiveness of Article 21(1) TFEU but also the autonomy and authority of the EU legal order.

51. However, in a situation such as that at issue in the main proceedings, a Union citizen can never claim the benefit of rights previously acquired as a result of the ‘activation’ of Directive 2004/38 since, as the Court has repeatedly held, that directive is never applicable to a Union citizen when moving or residing in the territory of Member States of which he or she is a national. Since it is impossible for such a Union citizen to acquire those rights, it follows that those rights cannot be maintained. (60)

52. As EU law currently stands and unless the scope of Article 21(1) TFEU is to be extended, the person concerned is therefore, as regards the conditions of residence of a family member who is a third-country national, in a legal situation comparable to that of a ‘static’ German citizen who has always lived in Germany and who has created and built his or her family life in that State.

53. It is true that such a solution results in a difference in treatment between Union citizens who are nationals of two Member States, depending on how they acquired that dual nationality. On the one hand, there are Union citizens who, like the person concerned, have held the nationality of two Member States since birth and who must be regarded as ‘static’ because they have always moved and always resided in the Member States of which they are nationals. On the other hand, there are Union citizens who, like Ms Ormazabal, have acquired the nationality of a second Member State by naturalisation and who are to be regarded as ‘mobile’. A second nationality has been added to their first, which they were able to acquire because they exercised their right to move and reside freely within the territory of the Member States. (61)

54. However, the legal situation of the person concerned must be distinguished from that of Ms Ormazabal, since only Ms Ormazabal has exercised rights derived from Directive 2004/38.

55. That difference in treatment therefore seems to me to be comparable to that accepted between ‘static’ nationals, who have always resided in their Member State of origin, and ‘mobile’ nationals who have exercised their right to move and reside freely within the territory of the Member States by moving to a Member State other than their Member State of origin.

56. In that regard, it is important to note that extending the approach adopted by the Court in the judgment in Lounes would result in a difference in treatment between Member State nationals, depending on whether or not they hold another nationality. A ‘static’ Member State national who holds only the nationality of the Member State in whose territory he or she has always resided with his or her family is subject only to national immigration legislation, whereas a national who holds the nationality of two Member States and, like the person concerned, has also established and built his or her family life in that territory would be able to rely on more generous rules on the right of entry and residence. However, from the point of view of the rules on the right of entry and residence of members of their family who are third-country nationals, their personal and family circumstances seem to me to be entirely comparable. Such an interpretation could then be contrary to the wording of Article 17(1) of the European Convention on Nationality, according to which ‘nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party’.

57. In the light of all those factors, I consider that Article 21(1) TFEU is not applicable to the situation of a Union citizen who has not exercised his or her right to move and reside freely within the territory of the Member States under the conditions laid down by Directive 2004/38 by moving between two Member States of which he or she has been a national since birth and who has built a family life with a third-country national while he or she was already permanently settled in the territory of one of those States. In the present case, that article does not therefore preclude the German administrative authorities from examining the application for a right of residence submitted by the applicant in accordance with the provisions of national law governing the right of residence of the family member – a third-country national – of the person concerned.

58. I will therefore propose that the Court of Justice rule that Article 21(1) TFEU is not applicable to a Union citizen who has always resided in one or other of the Member States of which he or she has been a national since birth and has thus not exercised his or her right to move and reside freely within the territory of the Member States, provided that the situation of that citizen does not entail the application of measures by a Member State that would have the effect of depriving him or her of the genuine enjoyment of the substance of the rights conferred by virtue of his or her status as a Union citizen or of impeding the exercise of that right.

IV. Conclusion

59. In the light of all the foregoing considerations, I propose that the Court of Justice answer the question referred for a preliminary ruling by the Bundesverwaltungsgericht (Federal Administrative Court, Germany) as follows:

Article 21(1) TFEU is not applicable to a Union citizen who has always resided in one or other of the Member States of which he or she has been a national since birth and has thus not exercised his or her right to move and reside freely within the territory of the Member States, provided that the situation of that citizen does not entail the application of measures by a Member State that would have the effect of depriving him or her of the genuine enjoyment of the substance of the rights conferred by virtue of his or her status as a Union citizen or of impeding the exercise of that right.

1 Original language: French.

2 There is an expression in French law according to which ‘no one can rely on their foreign nationality’. That means that a French national cannot rely on another nationality in order to evade their legal obligations in France.

3 For a historical approach, see Kochenov, D., ‘Double Nationality in the EU: An Argument for Tolerance’, European Law Journal, No 3, Blackwell, Oxford, 2011, pp. 323-343, in particular p. 326 et seq.

4 See de Groot, D., ‘Free Movement of Dual EU Citizens’, in Cambien, N., Kochenov, D. and Muir, E., European Citizenship under Stress: Social Justice, Brexit and Other Challenges, Brill Nijhoff, Leyde, 2020, pp. 67-109.

5 See document entitled ‘Population in private households by migrant background and dual citizenship’ by Destatis, Statistisches Bundesamt (German Federal Statistical Office), available at https://www.destatis.de/EN/Themes/Society-Environment/Population/Migration-Integration/Tables/migrant-status-dual-citizenships.html The number of German-Italian nationals stood at 194 000, German-Romanian nationals at 151 000, German-Greek nationals at 104 000 and German-French nationals at 91 000.

6 BGBl. 2024 I, No 104, and corrigendum BGBl. 2025 I, No 98.

7 On the key points of that reform, see details available at: https://www.bundesregierung.de/breg-de/aktuelles/modernisation-citizenship-law-2254382.

8 See Szpunar, M. and Blas López, M.E., ‘Some reflections on Member State nationality: A prerequisite of EU citizenship and an obstacle to its enjoyment’, in Kochenov, D., EU Citizenship and Federalism: The Role of Rights, Cambridge University Press, Cambridge, 2017, pp. 107-124, in particular pp. 108 and 122. On the relationship between nationality of a Member State and Union citizenship, see the Opinion of Advocate General Poiares Maduro in Rottmann (C‑135/08, EU:C:2009:588, point 23).

9 C‑165/16, ‘the judgment in Lounes’, EU:C:2017:862.

10 Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34).

11 It is apparent from the documents in the national file that the applicant served various prison sentences between June 2012 and September 2022, on account of seven criminal convictions for offences of damage to property, theft, intentional physical assault and injury, fraud, aiding and abetting sexual assault, illicit drug trafficking and driving without a licence. Deportation proceedings initiated by the German authorities in May 2016 were suspended on family grounds in February 2020.

12 BGBl. 2004 I, p. 1986.

13 In the version introduced by the Law of 20 April 2023 (BGBl. I 2023, p. 106). The first sentence of Paragraph 5(1) of that law provides that ‘within six months after they have provided the necessary information, family members entitled to freedom of movement who are not Union citizens are automatically issued with a residence card of a family member of a Union citizen, valid for five years’.

14 In its decision of 5 July 2023, the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court, Baden-Württemberg) found that there was no real relationship of dependency between the applicant and his children (paragraph 25).

15 See judgment of 22 February 2024, Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date (C‑491/21, EU:C:2024:143, paragraph 27).

16 See judgment of 21 December 2023, Chief Appeals Officer and Others (C‑488/21, ‘the judgment in Chief Appeals Officer and Others’, EU:C:2023:1013, paragraph 43 and the case-law cited).

17 C‑148/02, EU:C:2003:539.

18 C‑541/15, EU:C:2017:432.

19 C‑713/23, EU:C:2025:917.

20 C‑434/09, ‘the judgment in McCarthy’, EU:C:2011:277.

21 See the judgment in McCarthy (paragraph 23).

22 See the judgment in McCarthy (paragraph 45 and the case-law cited).

23 See the judgment in McCarthy (paragraph 54).

24 See the judgment in McCarthy (paragraphs 46 and 48 to 54).

25 See the judgment in McCarthy, paragraph 55.

26 See, also, Article 9 TEU.

27 See judgment of 4 June 2026, Safi (C‑147/24, ‘the judgment in Safi’, EU:C:2026:442, paragraph 32 and the case-law cited).

28 See the judgment in Lounes (paragraph 51). More recently, that principle has been reaffirmed by the Court of Justice in the specific context of the recognition, transcription or amendment of civil status data relating to a Union citizen. See, in particular, judgment of 12 March 2026, Shipova (C‑43/24, EU:C:2026:183, paragraph 33 and the case-law cited).

29 See judgment of 17 November 2011, Gaydarov (C‑430/10, EU:C:2011:749, paragraph 25 and the case-law cited). Emphasis added.

30 See, on that point, the observations of Szpunar, M. and Blas López, M. E., op. cit., as well as the Opinion of Advocate General Poiares Maduro in Rottmann (C‑135/08, EU:C:2009:588, point 23).

31 C‑430/10, EU:C:2011:749.

32 See judgment of 17 November 2011, Gaydarov (C‑430/10, EU:C:2011:749, paragraph 29 and the case-law cited). See also, to that effect, the judgment in Safi (paragraph 33).

33 See judgments of 22 June 2023, Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child) (C‑459/20, EU:C:2023:499, paragraph 41 and the case-law cited), and in Chief Appeals Officer and Others (paragraph 43). See, also, the judgment in Safi (paragraph 47 and the case-law cited).

34 See the judgment in McCarthy (paragraph 34).

35 In its judgment of 29 April 2025, Commission v Malta (Citizenship by investment) (C‑181/23, EU:C:2025:283), the Court recalled the basis of the bond of nationality of a Member State, which resides in ‘the special relationship of solidarity and good faith between that State and its nationals and the reciprocity of rights and duties’ (paragraph 96 and the case-law cited). See, also, Kochenov, D., footnote 3, op. cit., pp. 323-343, in particular p. 326 et seq.

36 See the judgment in Safi (paragraph 35 and the case-law cited).

37 See the judgment in Safi (paragraph 35 and the case-law cited).

38 See the judgment in Safi (paragraph 34 and the case-law cited).

39 C‑34/09, EU:C:2011:124. In the case which gave rise to that judgment, the parent of Belgian nationals who were minors was the subject of an order to leave Belgium and the competent authorities had rejected his application for a work permit. The Court held that those decisions would have the effect of depriving Mr Gerardo Ruiz Zambrano’s children of the genuine enjoyment of the rights deriving from Article 20 TFEU. The decisions at issue in that case would have had the effect of obliging the children, who are Union citizens, to leave the territory of the Union (paragraphs 43 and 44).

40 The judgment in Safi (paragraph 41). See, also, judgment of 8 May 2025, Stadt Wuppertal (C‑130/24, EU:C:2025:340, paragraph 27 and the case-law cited).

41 See the judgment in Safi (paragraph 42 and the case-law cited).

42 See the judgment in Safi (paragraphs 43 to 47). See, also, judgment of 8 May 2025, Stadt Wuppertal (C‑130/24, EU:C:2025:340, paragraph 28 and the case-law cited).

43 C‑34/09, EU:C:2011:124.

44 C‑133/15, EU:C:2017:354.

45 C‑82/16, EU:C:2018:308.

46 See, also, judgments of 8 November 2012, Iida (C‑40/11, EU:C:2012:691, paragraph 71); of 8 May 2013, Ymeraga and Others (C‑87/12, EU:C:2013:291, paragraph 36); of 10 October 2013, Alokpa and Moudoulou (C‑86/12, EU:C:2013:645, paragraph 32); of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 74); and of 13 September 2016, CS (C‑304/14, EU:C:2016:674, paragraph 29).

47 See footnote 14 of the present Opinion.

48 For comments on that judgment, see, inter alia, Benlolo Carabot, M., ‘Cour de justice, gde ch., 14 novembre 2017, Toufik Lounes c/ Secretary of State for the Home Department, aff. C‑165/16, ECLI:EU:C:2017:862’, Jurisprudence de la CJUE 2017: décisions et commentaires, Bruylant, Brussels, 2018, pp. 255-266.

49 See the judgment in Lounes (paragraph 60). Emphasis added.

50 See the judgment in Lounes (paragraph 58).

51 See the judgment in Lounes (paragraph 59).

52 See the judgment in Lounes (paragraph 60). See, also, the judgment in Chief Appeals Officer and Others (paragraph 45).

53 As regards the case-law on the return of Union citizens to their country of origin, see, inter alia, the situations referred to in the judgments of 11 December 2007, Eind (C‑291/05, EU:C:2007:771); of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135); and of 27 June 2018, Altiner and Ravn (C‑230/17, EU:C:2018:497). The cases which gave rise to those judgments concerned the situation of a Union citizen who returned to his or her Member State of origin after having genuinely resided in a Member State whose nationality he or she did not possess under the conditions laid down in Directive 2004/38 and in which he or she had created or strengthened a family life with a third-country national. In such cases, the Court has held that the effectiveness of the rights conferred on the Union citizen by Article 21(1) TFEU required that that family life, which developed during the exercise of freedom of movement and residence in the host Member State, may continue on his or her return to the Member State of which he or she was a national, thus requiring that Member State to grant a derived right of residence to the family member concerned who is a third-country national. The Court held that, if no such right of residence were granted, that Union citizen could be discouraged from leaving his or her Member State of origin in order to exercise his or her right of residence in another Member State or from returning to that Member State of origin after having exercised that right, because of the lack of certainty that he or she would be able to pursue in that Member State the family life created or strengthened in the host Member State.

54 See the judgment in Lounes (paragraph 59).

55 See point 29 of the present Opinion.

56 See Closa, C., ‘Citizenship of the Union and nationality of Member States’, Common Market Law Review, No 2, Wolters Kluwer, Leyde, 1995, pp. 487-518, in particular p. 487.

57 See Closa, C., footnote 56, op. cit., pp. 487-518, in particular pp. 493 and 494.

58 See the judgment in Lounes (paragraphs 56 and 57).

59 Heymann, J., ‘Citoyenneté de l’Union et conflit positif de nationalités’, Revue Trimestrielle de Droit européen, No 3, Dalloz, Paris, 2018, pp. 587-596, in particular paragraph 13.

60 See the briefing prepared by David de Groot in November 2024 for the European Parliament, entitled ‘Right to return and dual EU citizens in free movement case law’.

61 Article 5(2) of the European Convention on Nationality, signed in Strasbourg on 6 November 1997 within the framework of the Council of Europe and which entered into force on 1 March 2000, to which many Member States are parties, provides that ‘each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently’. However, as is apparent from its explanatory report, that article concerns only the application of the rules on nationality between nationals at birth and other nationals, including naturalised persons (paragraph 46 of that report).

Opinion of Advocate General Richard de la Tour delivered on 9 July 2026.###

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