Going Back to Basics: Re-embracing the Fundamentals of the Free Movement of Persons in Metock

Elaine L. Fahey, Dublin Institute of Technology

Document Type Article

Published version: Fahey, Elaine. ‘Going Back to Basics: Re-embracing the Fundamentals Metock’. Legal Issues of Economic Integration 36, no. 1 (2009): 83-89. © 2009 Kluwer Law International BV, The Netherlands


Case C-127/08, Metock & others v. Minister for Justice, Equality & Law Reform, Judgment of the European Court of Justice of 25 July 2008, nyr.

The ability of Member States to determine the rights of third country nationals to move, reside with and join their European Union (EU) citizen spouses might be thought to go to the heart of Member State sovereignty to control immigration matters. Despite the introduction of Directive 2004/38/EC,1 European Union law had been silent on key issues as to the entry and residence rights and the case law of the European Court of Justice (ECJ) had only recently began to shape the contours of the conditions of such entry. A major issue raised by the recent decision of the ECJ in Metock2 as to whether national law or secondary Community law governs such entry and residence requirements, in light of the Akrich3 and Jia4 decisions of the ECJ, where the requirement of having a ‘prior lawful residence’ in another State prior to entry to the host State for such individuals was fi rst introduced by the ECJ (Akrich) but then later refi ned (Jia). In Metock, the ECJ has dramatically recast its own case law, has re-embraced the fundamentals of the free movement of persons in a manner consistent with the protection of the individual and is the subject of consideration here.