# C_2017231EN.01001901.xml

| 17.7.2017 | EN | Official Journal of the European Union | C 231/19 |
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17.7.2017

EN

Official Journal of the European Union

C 231/19

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Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 10 May 2017 — Ibrahima Diallo v État belge

(Case C-246/17)

(2017/C 231/24)

Language of the case: French

Referring court

Referring court

Conseil d’État

Parties to the main proceedings

Parties to the main proceedings

Applicant: Ibrahima Diallo

Applicant:

Defendant: État belge

Defendant:

Questions referred

Questions referred

| (1) | Is Article 10(1) 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 (1) to be interpreted as requiring that the decision as to whether to recognise a right of residence must be taken and notified within a period of six months, or as permitting the decision to be taken within that period but notified subsequently? If such a decision may be notified subsequently, within what period must this be done? |
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(1)

Is Article 10(1) 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 (1) to be interpreted as requiring that the decision as to whether to recognise a right of residence must be taken and notified within a period of six months, or as permitting the decision to be taken within that period but notified subsequently? If such a decision may be notified subsequently, within what period must this be done?

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| (2) | Is Article 10(1) 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, read in conjunction with Article 5 of that directive, with Article 5(4) of [Council] Directive 2003/86/EC of 22 September 2003 on the right to family reunification, (2) and with Articles 7, 20, 21 and 41 of the Charter of Fundamental Rights of the European Union, to be interpreted and applied as meaning that the decision adopted on that basis need only be taken within the period of six months which it prescribes, without there being any period applicable to notification or any impact whatsoever on the right of residence where notification occurs after expiry of that period? |
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(2)

Is Article 10(1) 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, read in conjunction with Article 5 of that directive, with Article 5(4) of [Council] Directive 2003/86/EC of 22 September 2003 on the right to family reunification, (2) and with Articles 7, 20, 21 and 41 of the Charter of Fundamental Rights of the European Union, to be interpreted and applied as meaning that the decision adopted on that basis need only be taken within the period of six months which it prescribes, without there being any period applicable to notification or any impact whatsoever on the right of residence where notification occurs after expiry of that period?

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| (3) | For the purposes of guaranteeing the effectiveness of the right to residence of a member of the family of a Union citizen, would it be contrary to the principle of effectiveness for the national authority, following the annulment of a decision relating to such a right, once again to be allowed the full period of six months which had been available to it under Article 10(1) 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? If so, what further period is allowed to the national authority, following the annulment of a decision by which it refused to recognise the right at issue? |
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(3)

For the purposes of guaranteeing the effectiveness of the right to residence of a member of the family of a Union citizen, would it be contrary to the principle of effectiveness for the national authority, following the annulment of a decision relating to such a right, once again to be allowed the full period of six months which had been available to it under Article 10(1) 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? If so, what further period is allowed to the national authority, following the annulment of a decision by which it refused to recognise the right at issue?

| (4) | Are Articles 5, 10 and 31 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, read in conjunction with Articles 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, with Articles 7, 24, 41 and 47 of the Charter of Fundamental Rights of the European Union, and with Article 21 of the Treaty on the Functioning of the European Union, compatible with national case-law and provisions, such as Articles 39/2(2), 40, 40a, 42 and 43 of the Law of 15 December 1980 on entry into the territory, residence, establishment and removal of foreign nationals, and Article 52(4) of the Royal Decree of 8 October 1981 on entry into the territory, residence, establishment and removal of foreign nationals, under which a judgment delivered by the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) annulling a decision refusing residence on the basis of those provisions interrupts, and does not suspend, the mandatory period of six months prescribed by Article 10 of Directive 2004/38/EC, by Article 42 of the Law of 15 December 1980 and by Article 52 of the Royal Decree of 8 October 1981? |
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(4)

Are Articles 5, 10 and 31 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, read in conjunction with Articles 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, with Articles 7, 24, 41 and 47 of the Charter of Fundamental Rights of the European Union, and with Article 21 of the Treaty on the Functioning of the European Union, compatible with national case-law and provisions, such as Articles 39/2(2), 40, 40a, 42 and 43 of the Law of 15 December 1980 on entry into the territory, residence, establishment and removal of foreign nationals, and Article 52(4) of the Royal Decree of 8 October 1981 on entry into the territory, residence, establishment and removal of foreign nationals, under which a judgment delivered by the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) annulling a decision refusing residence on the basis of those provisions interrupts, and does not suspend, the mandatory period of six months prescribed by Article 10 of Directive 2004/38/EC, by Article 42 of the Law of 15 December 1980 and by Article 52 of the Royal Decree of 8 October 1981?

| (5) | Does 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 require that, where the period of six months laid down by Article 10(1) of that directive is exceeded, some consequence must follow, and if so, what consequence? Does that directive require or permit the consequence of exceeding the period to be the automatic grant of the residence card sought, without any finding having been made that the applicant does in fact satisfy the conditions for the enjoyment of the right which he claims? |
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(5)

Does 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 require that, where the period of six months laid down by Article 10(1) of that directive is exceeded, some consequence must follow, and if so, what consequence? Does that directive require or permit the consequence of exceeding the period to be the automatic grant of the residence card sought, without any finding having been made that the applicant does in fact satisfy the conditions for the enjoyment of the right which he claims?

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

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(2)  OJ 2003 L 251, p. 12.

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