Opinion of the Advocate General — ECLI:EU:C:2018:503
Date: 2018-06-27
Language of the case: Dutch
Subject matter: Immigration and asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Third Chamber), 7 November 2018 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Provisions of EU law made directly and unconditionally applicable by national legislation to situations falling outside of their scope of application — Included — Provisions of EU law expressly excluding certain situations from their scope — Irrelevant (Art. 267 TFEU; Council Directive 2003/86, Arts 3(3) and 15) 2. Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86 — Entry and residence of family members — Entitlement to autonomous residence after five years of residence –National legislation permitting an application for an autonomous residence permit to be rejected on the ground that a civic integration test not been shown to have been passed — Lawfulness — Condition — Proportionality (Council Directive 2003/86, Arts 15(1) and (4)) 3. Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86 –Entry and residence of family members — Entitlement to autonomous residence after five years of residence — Issuing a residence permit — National legislation permitting issue only from the date on which the application for an autonomous residence permit was submitted — Lawfulness (Council Directive 2003/86, Art. 15(1) and (4)) 1. The Court of Justice has jurisdiction, on the basis of Article 267 TFEU, to interpret Article 15 of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification in situations such as those at issue in the main proceedings, where a national court is called upon to rule on the grant of an autonomous residence permit to a third country national, who is a family member of an EU citizen who has not exercised his right of free movement, if that provision was made directly and unconditionally applicable to such situations under national law. In such circumstances, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from EU law should be interpreted uniformly (see, to that effect, judgments of 18 October 2012, Nolan, C‑583/10, EU:C:2012:638, paragraph 46, and of 22 March 2018, Jacob and Lassus, C‑327/16 and C‑421/16, EU:C:2018:210, paragraph 34). That conclusion cannot be called into question by the fact that Article 3(3) of Directive 2003/86 expressly excludes situations such as those at issue in the main proceedings from the scope of that directive. (see paras 32, 36, 44, operative part 1) 2. Article 15(1) and (4) of Directive 2003/86 does not preclude national legislation which permits an application for an autonomous residence permit, lodged by a third country national who has resided over five years in a Member State by virtue of family reunification, to be rejected on the ground that he has not shown that he has passed a civic integration test on the language and society of that Member State provided that the detailed rules for the requirement to pass that examination do not go beyond what is necessary to attain the objective of facilitating the integration of those third country nationals. It follows from a combined reading of those two provisions that, although issuing an autonomous residence permit is, in principle, an entitlement arising from five years of residence in a Member State by virtue of family reunification, the EU legislature nevertheless authorised the Member States to subject the grant of such a permit to certain conditions, which it left to be defined by the Member States. Nevertheless, since the grant of an autonomous permit at the end of the period referred to in Article 15(1) of that directive is a general rule, the latitude left to the Member States by Article 15(4) of the directive must not be used by them in a manner which would undermine the objective and effectiveness of that article, which is, as stated in recital 15 thereof, to allow family members to be granted a status independent of that of the sponsor (see, by analogy, judgment of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraph 50). Therefore, further conditions to which a Member State subjects the grant of an autonomous residence permit cannot be so onerous as to constitute a difficult obstacle to overcome, preventing, in practice, the third country nationals referred to in Article 15(1) of Directive 2003/86 from validly obtaining such a permit at the end of the period referred to in that provision (see, by analogy, judgment of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraph 59). That implies, in particular, that the knowledge required to pass the civic integration examination is at a basic level, that the condition imposed by the national legislation does not lead to an autonomous residence permit not being granted to third country nationals who have demonstrated their willingness to pass the examination and have made every effort to achieve that objective, that due account is taken of specific individual circumstances and that the fees relating to that examination are not excessive (see, to that effect, judgment of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraphs 54 to 70). In that regard, it should be noted, in particular, that circumstances, such as the age, level of education, economic situation or health of a sponsor’s relevant family members, must lead the competent authorities not to subject the grant of an autonomous residence permit to passing a civic integration examination, when, due to those circumstances, they are unable to take or pass that examination (see, to that effect, judgment of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraph 58). (see paras 48, 51, 52, 63-65, operative part 2) 3. Article 15(1) and (4) of Directive 2003/86 does not preclude national legislation which provides that an autonomous residence permit cannot be issued earlier than the date on which it was applied for. (see para. 71, operative part 3)