# C_2021502EN.01001502.xml

| 13.12.2021 | EN | Official Journal of the European Union | C 502/15 |
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13.12.2021

EN

Official Journal of the European Union

C 502/15

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Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 30 September 2021 — XXX v État belge

(Case C-607/21)

(2021/C 502/24)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Appellant: XXX

Respondent: État belge

Questions referred

| 1. | In the context of the examination of the concept of a dependant for the purposes of Article 2(2)(d) of Directive 2004/38/EC 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, (1) should account be taken of the situation of an applicant who is already in the territory of the State in which the sponsor is established? |
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1.

In the context of the examination of the concept of a dependant for the purposes of Article 2(2)(d) of Directive 2004/38/EC 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, (1) should account be taken of the situation of an applicant who is already in the territory of the State in which the sponsor is established?

| 2. | If the answer to the first question is in the affirmative, should an applicant who is lawfully in the territory of that State be treated differently from an applicant who is there unlawfully? |
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2.

If the answer to the first question is in the affirmative, should an applicant who is lawfully in the territory of that State be treated differently from an applicant who is there unlawfully?

| 3. | Is Article 2(2)(d) of Directive 2004/38/EC 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 to be interpreted as meaning that, in order to be regarded as a dependant and thus to fall within the definition of ‘family member’ referred to in that provision, a direct relative in the ascending line [may] rely on a situation of real material dependence in the country of origin established by documents which, at the time of lodging the application for a residence card as a family member of a Union citizen, were, however, issued several years previously, on the ground that the departure from the country of origin and the lodging of the application for a residence card in the host Member State did not occur at the same time? |
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3.

Is Article 2(2)(d) of Directive 2004/38/EC 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 to be interpreted as meaning that, in order to be regarded as a dependant and thus to fall within the definition of ‘family member’ referred to in that provision, a direct relative in the ascending line [may] rely on a situation of real material dependence in the country of origin established by documents which, at the time of lodging the application for a residence card as a family member of a Union citizen, were, however, issued several years previously, on the ground that the departure from the country of origin and the lodging of the application for a residence card in the host Member State did not occur at the same time?

| 4. | If the answer to the third question is in the negative, what are the criteria for assessing the situation of material dependence of an applicant seeking to join a European citizen or his or her partner, as a relative in the ascending line, without having been able to obtain a residence permit on the basis of an application lodged immediately after his or her departure from the country of origin? |
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4.

If the answer to the third question is in the negative, what are the criteria for assessing the situation of material dependence of an applicant seeking to join a European citizen or his or her partner, as a relative in the ascending line, without having been able to obtain a residence permit on the basis of an application lodged immediately after his or her departure from the country of origin?

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(1)  OJ 2004 L 158, p. 77.

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