Opinion of the Advocate General — ECLI:EU:C:2005:517
Date: 2005-09-08
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Immigration and asylum policy;Area of freedom, security and justice;Fundamental rights;European Convention on Human Rights;Charter of Fundamental Rights
Procedure: Action for annulment - unfounded

Summary 127. In summary, the application is inadmissible, since the provisions to which the Parliament objects cannot be challenged in isolation. Were the Court none the less to consider the merits, it should annul Article 4(6) of the Directive because of a failure to consult the Parliament, and Article 8 because it infringes the human right to the protection of family life. V – Costs 128. Article 69(2) of the Rules of Procedure states that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the application must be dismissed as inadmissible, the Parliament must be ordered to bear its own costs and those of the Council. 129. Pursuant to Article 69(4) of the Rules of Procedure, the Commission and the Federal Republic of Germany must bear the costs occasioned by their intervention. VI – Conclusion 130. I therefore propose that the Court should: (1) dismiss the application; (2) order the European Parliament to bear the costs incurred by the Council of the European Union and its own costs; (3) order the Federal Republic of Germany and the Commission of the European Communities to bear their own costs. 1 – Original language: German. 2 – OJ 2003 L 251, p. 12. 3 – In the European Parliament resolution containing the comments which form part of the decision on the discharge for implementing the general budget of the European Union for the financial year 2003, Section IV – Court of Justice (C6-0017/2005 – 2004/2043(DEC) of 12 April 2005, Document P6_TA-PROV(2005)0095, Report A6-0066/2005, not yet published in the Official Journal), the Parliament welcomes as an improvement the fact that fewer Opinions were presented by the Advocates General. 4 – ETS No 35. 5 – ETS No 163 – the Directive wrongly gives the year as 1987. 6 – ETS No 93. 7 – COM (2002) 225, p. 19. 8 – Opened for signature on 20 November 1989 (UN Treaty Series, Volume 1577, p. 43). All Member States have ratified it. In addition, the Treaty establishing a Constitution for Europe provides expressly in the second subparagraph of Article I-3(3) that the Union is to promote protection of the rights of the child; these rights are recognised as fundamental rights through their inclusion in the Charter of Fundamental Rights of the Union (Article 24 of the Charter; Article II-84 of the Treaty establishing a Constitution for Europe). 9 – Cited in footnote 4. 10 – Consultation of the Treaty Office website (http://conventions.coe.int) on 14 April 2005 revealed this provision to be recognised by Austria, Belgium, Portugal, Estonia, France, Ireland, Italy, Luxembourg, Slovenia, Spain, Germany, Greece, Finland, the Netherlands, Poland, Sweden, the United Kingdom and Cyprus, but not by Latvia, Malta, Slovakia, the Czech Republic and Hungary. Denmark appears to have accepted Article 19(6) when ratifying the revised Charter in 1996. When Lithuania ratified the revised Charter, it declined to be bound by Article 19(6). 11 – Cited in footnote 5. 12 – Cited in footnote 6. To date, this has been ratified by eight States, including Spain, France, Italy, the Netherlands, Portugal and Sweden. 13 – UN Treaty Series, Volume 999, p. 171. 14 – Cited in footnote 8. 15 – New York, 18 December 1990, UN Treaty Series, Volume 2220, I-39481. 16 – Ratified by 18 States, including Cyprus, Italy, Portugal, Slovenia and Sweden. 17 – See my Opinion in Joined Cases C-138/03, C-324/03 and C-431/03 Italy v Commission [2005] ECR I-10043, point 45, with further citations. 18 – Fungueiriño-Lorenzo, Visa-, Asyl- und Einwanderungspolitik vor und nach dem Amsterdamer Vertrag, p. 81 et seq. Röben, too, writing on Article 63 EC in Grabitz/Hilf, Das Recht der Europäischen Union, as at May 1999, paragraph 43, proceeds, I think, along similar lines. 19 – See, on Article 176 EC, Case C-318/98 Fornasar and Others [2000] ECR I‑4785, paragraph 46, and Case C-6/03 Deponiezweckverband Eiterköpfe [2005] ECR I-2753, paragraph 27 et seq. 20 – See, for example, Weiß in: Streinz, EUV/EGV, 2003, Article 63 EC, paragraph 68, and Brechmann in: Callies and Ruffert, Kommentar zum EU-Vertrag und EG-Vertrag, 2nd edition 2002, Article 63 EC, paragraph 42. 21 – Such a swingeing abridgement of the binding legal force of measures would not be confined to the present Directive, but would extend at least to the following measures, which were similarly based exclusively on points 3 and 4 of the first paragraph of Article 63 EC: Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L 375, p. 12); Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third country nationals who are subjects of individual removal orders (OJ 2004 L 261, p. 28); Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (OJ 2004 L 261, p. 19); Council Decision 2004/191/EC of 23 February 2004 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third country nationals (OJ 2004 L 60, p. 55); Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ 2003 L 321, p. 26); Council Directive 2003/109/EC of 25 November 2003 concerning the status of third country nationals who are long-term residents (OJ 2004 L 16, p. 44); Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality (OJ 2003 L 124, p. 1); Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third country nationals (OJ 2002 L 157, p. 1); and Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals (OJ 2001 L 149, p. 34). 22 – See the Irish Presidency Document ‘The European Union Today and Tomorrow’, CONF/2500/96 of 5 December 1996, Part A, Section I, Chapter 2. Although the Treaty amendments proposed at that time included the power to legislate, no provision comparable to the second paragraph was as yet included. 23 – The Treaty on European Union, as it applied at the time, empowered Member States to draw up not only common positions and common measures, but also legally binding agreements. 24 – The fact that these problems of interpretation have arisen is itself an argument in favour of following Article III-267 of the Treaty establishing a Constitution for Europe and dispensing with a rule comparable to that contained in the second paragraph of Article 63 EC. 25 – See the judgment of the Bundesverfassungsgericht of 16 May 1995 in Case 1 BvR 1087/91 Kruzifix BVerfGE 93, 1, 21, with further references. 26 – Thus, for example, Hailbronner, ‘European Immigration and Asylum Law under the Treaty’, Common Market Law Review, 1998, 1047 (1051). The Commission appears to agree: it has already brought four Treaty infringement actions before the Court for failure to transpose Directive 2001/40, against Luxembourg (Case C-448/04, OJ 2004 C 314, p. 6), France (Case C‑450/04, OJ 2004 C 314, p. 7), Italy (Case C‑462/04, OJ 2005 C 6, p. 30) and Greece (Case C‑474/04, OJ 2004 C 314, p. 10). The defendant Member States are similarly not seeking to rely on the second paragraph of Article 63 EC; they state that transposition of the directive is under preparation. 27 – When the Council took the – unanimous – decision on 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty, it introduced qualified-majority voting only for point 3(b) (OJ 2004 L 396, p. 45). 28 – See my Opinion in Case C-117/03 Dragaggi [2005] ECR I-167, point 24 et seq. 29 – See, to that effect, Case C-475/01 Commission v Greece (the Ouzo case) [2004] ECR I-8923, paragraph 15 et seq. 30 – Case 37/71 Jamet v Commission [1972] ECR 483, paragraphs 10 to 12; Case 17/74 Transocean MarinePaint v Commission [1974] ECR 1063, paragraph 21; Joined Cases C‑68/94 and C‑30/95 France and Others v Commission (the Potash and Salt case) [1998] ECR I-1375, paragraph 256; Case C-29/99 Commission v Council (the Nuclear Safety Convention case) [2002] ECR I‑11221, paragraph 45; and Case C‑244/03 France v Parliament and Council (the Testing on Animals case) [2005] ECR I-4021, paragraphs 12 and 21. 31 – See the ‘Testing on Animals’ judgment, cited in footnote 30, paragraph 15. 32 – See Case C-376/98 Germany v Parliament and Council (the Tobacco case) [2000] ECR I-8419, paragraph 117. 33 – We need not ponder whether, in a preliminary ruling, the Court could annul only the impugned provisions if it found these to be unlawful. However, there are strong reasons for concluding that here it would be the Directive as a whole, and not only a part of it, which would fall to be annulled. 34 – Case 1/54 France v High Authority [1954‑56] ECR 1, at 15, and Case 19/58 Germany v High Authority [1960] ECR 225, at 233. 35 – Opinions in Joined Cases C-346/03 and C-529/03 Atzeni and Others [2006] ECR I-0000, point 70, and Case C-110/03 Belgium v Commission [2005] ECR I-2801, point 29. 36 – Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 56, a judgment in which the Court found in favour of the Commission. 37 – Case C-65/90 Parliament v Council [1992] ECR I-4593, concerning road haulage, paragraph 16; Joined Cases C-13/92 to C-16/92 Driessen and Others [1993] ECR I-4751, paragraph 23; and Case C-280/93 Germany v Council [1994] ECR I-4973, concerning the common organisation of the market in bananas, paragraph 38. 38 – Note from the Presidency, Council Document 6585/03, p. 9, footnote 3. 39 – European Parliament legislative resolution on the amended proposal for a Council directive on the right to family reunification of 9 April 2003 (OJ 2004 C 64E, pp. 283 and 373). The statement of reasons stems from the report by Mrs Cerdeira Morterero MEP of 24 March 2003, document A5-0086/2003. 40 – See in particular Amendments 22 to 25 contained in the legislative resolution cited in footnote 39. 41 – See Amendment 26 contained in the legislative resolution cited in footnote 39. 42 – Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 41, and Case C-109/01 Akrich [2003] ECR I-9607, paragraph 58. 43 – See Carpenter, paragraph 42, and Akrich, paragraph 59 (both cited in footnote 42). 44 – See my Opinion in Case C-503/03 Commission v Spain [2006] ECR I-0000, point 37, with further references. 45 – Here EEA law is particularly relevant. 46 – Eur. Court H.R., Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156, § 58. 47 – Elsholzv.Germany, no. 25735/94, § 44, ECHR 2000‑VIII. 48 – Eur. Court HR, Mehemiv.France, judgment of 26 September 1997, Reports of Judgments and Decisions 1997-VI, § 27. 49 – Eur. Court H. R., Abdulaziz, Cabales and Balkandaliv.the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 67 et seq.; Gülv.Switzerland, judgment of 19 February 1996, Reports of Judgment and Decisions 1996-I, § 38; Ahmutv.the Netherlands, judgment of 28 November 1996, Reports of Judgment and Decisions 1996-VI, § 63 and 67; and Senv.the Netherlands, no. 31465/96, § 31 and 36, 21 December 2001. 50 – The judgments in Abdulaziz (§ 68), Gül (§ 39) and Ahmut (§ 70), all cited in footnote 49. Abdulaziz was unanimous; Gül (7 votes to 2) and Ahmut (5 votes to 4) were majority decisions. 51 – See, for example, the decisions of the European Court of Human Rights of 23 March 2003 in I.M.v. the Netherlands; of 13 May 2003 in Chandrav. theNetherlands; of 6 July 2004 in Ramos Andradev.the Netherlands; and of 5 April 2005 in Benamar v. the Netherlands. 52 – Sen, cited in footnote 49, § 40. 53 – See the decisions of the European Court of Human Rights on admissibility of 19 October 2004 in Tuquabo-Tekle v. the Netherlands and of 14 September 2004 in Rodrigues da Silva and Hoogkamer v.the Netherlands. 54– It is therefore logical that Article 10(1) of the Directive should also exclude the application of the final subparagraph of Article 4(1) to refugees. 55– Communication No 930/2000: Australia, of 16 August 2001, CCPR/C/72/D/930/2000, paragraphs 7.1 to 7.3 (Jurisprudence), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/488b0273fa4febfbc1256ab7002e5395?Opendocument. 56 – But see the dissenting opinion of Judge Martens, approved by Judge Russo, in Gül (cited in footnote 49, §6 et seq.), which does not cast doubt on the classification as a positive right, but none the less applies the classical justification test. See also the separate concurring opinions of Judges Thór Vilhjálmsson und Bernhardt in Abdulaziz (cited in footnote 49), based on justification under Article 8(2) of the ECHR. 57 – See above, point 61. 58– It is here that the real difference of opinion is to be found between the minority view of Judge Martens and the view of the European Court of Human Rights (cited in footnote 56): Judge Martens is considerably more generous than the majority of the European Court of Human Rights in discerning a claim to family reunification. 59– The Bundesverfassungsgericht (Federal Constitutional Court, Germany) ruled to this effect in regard to the Social Charter, BVerfGE 76, 1 (82 et seq.), family reunification. Note the reticence with which other provisions of the European Social Charter have been addressed in Case 149/77 Defrenne III [1978] ECR 1365, paragraphs 26 to 29, Case 24/86 Blaizot [1988] ECR 379, paragraph 17, the Opinion of Advocate General Jacobs in Case C-67/96 Albany [1999] ECR I‑5751, point 146, and that of Advocate General Lenz in Case 236/87 Bergemann [1988] ECR 5125, point 28. 60– See above, point 21. 61– Digest of the Case Law of the ECSR, as at March 2005, p. 84, http://www.coe.int/T/F/Droits_de_l’Homme/Cse/Digest_bil_mars_05.pdf. See also Conclusions 2004 Volume 1, Section 89/174, on Estonia, and Conclusions XVI-1 vol. 2, Section 72/257, on the Netherlands, referring to Conclusions I, p. 216 (probably Section 363/374, on Germany), all accessible via http://hudoc.esc.coe.int/esc/search/default.asp. 62– Sidabras and Dziautas v. Lithuania, nos 55480/00 and 59330/00, § 47, ECHR 2004‑VIII (prohibitions on exercising a specific professional activity); Koua Poirrez v. France, no. 40892/98, § 39 and 29, ECHR 2003‑X, on claims arising under social legislation; and Wilson, National Union of Journalists and Others v. United Kingdom, nos 30668/96, 30671/96 and 30678/96, § 40, 32 et seq., and 37, ECHR 2002‑V, on discrimination against members of trade unions. By contrast, the Court of Justice has to date only pronounced once on the rulings of a non-judicial supervisory body – this was in Case C‑249/96 Grant [1998] ECR I-621, paragraph 46 et seq., where it declined to follow an observation made by the Human Rights Committee of the International Covenant on Civil and Political Rights. 63– Perhaps that is why Article 3(4)(b) of the Directive makes it clear that those Member States which are parties to the European Social Charter and/or the European Convention on the legal status of migrant workers may have, in regard to family reunification, obligations to migrant workers from other States that are parties which go beyond those arising solely under the Directive (and Article 8 of the ECHR). 64– An analogous view was taken by the Verfassungsgerichtshof (Constitutional Court, Austria) with regard to what is required of Austrian law by human rights in its judgment of 8 October 2003 in Case G119, 120/03-13 (http://www.vfgh.gv.at/presse/G119_13_03.pdf, p. 20 et seq.). 65– Case 5/88 Wachauf [1989] ECR 2609, paragraph 19. 66– Case C-101/01 Lindqvist [2003] ECR I-12971, paragraph 87; see also Case C‑376/02 Stichting ‘Goed Wonen’ [2005] ECR I-3445, paragraph 32. 67– Similar thinking informed the critical views (cited by the Parliament) expressed by the network of experts on fundamental rights set up by the Commission, in the network’s annual report for 2003 – see http://europa.eu.int/comm/justice_home/cfr_cdf/doc/report_eu_2003_en.pdf, p. 55. 68– The Council has stated that such an age-limit is to be found only in Austrian law. 69– See above, point 86. 70– See the judgment of the Austrian Verfassungsgerichtshof of 8 October 2003, cited in footnote 64, at III.2(c). 71– Case 203/86 Spain v Council [1988] ECR 4563, paragraph 25; Joined Cases C‑248/95 and C‑249/95 SAM Schiffahrt and Stapf [1997] ECR I-4475, paragraph 50; Case C-292/97 Karlsson and Others [2000] ECR I-2737, paragraph 39; Joined Cases C-27/00 and C-122/00 Omega Air and Others [2002] ECR I-2569, paragraph 79; Case C-137/00 Milk Marque and National Farmers’ Union [2003] ECR I-7975, paragraph 126; Case C-304/01 Spain v Commission [2004] ECR I‑7655, paragraph 31; and Case C-210/03 Swedish Match [2004] ECR I-11893, paragraph 70). 72– Case T-8/93 Huet [1994] ECR II-103, paragraph 45; Case T-14/03 Di Marzio v Commission [2004] ECR‑SC I‑A‑43 and II-167, paragraph 83; and Case T-256/01 Pyres [2005] ECR‑SC I‑A‑000 and II‑0000, paragraph 61. See also, on ‘positive discrimination’, Case C-407/98 Abrahamsson and Anderson [2000] ECR I-5539, paragraph 55, and Case C-319/03 Briheche [2004] ECR I‑8807, paragraph 31. 73– This was emphasised by the Court of First Instance in Joined Cases T-219/02 and T-337/02 Lutz Herrera v Commission [2004] ECR‑SC I‑A-319 and II-1407, paragraph 88, and in Pyres, cited in footnote 72, paragraph 66; the Court was considering age‑limits, but did not discuss how these were affected by the general principle of non-discrimination. 74– See, to that effect, the Opinion of Advocate General Tizzano in Case C-173/99 BECTU [2001] ECR I-4881, point 28; the Opinion of Advocate General Léger in Case C-353/99 P Council v Hautala [2001] ECR I-9565, points 82 and 83; the Opinion of Advocate General Mischo in Joined Cases C-20/00 and C-64/00 BookerAquaculture and Hydro Seafood [2003] ECR I-7411, point 126; the Opinion of Advocate General Poiares Maduro in Case C-181/03 P Nardone v Commission [2005] ECR I‑199, point 51; also my own Opinions in Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565, footnote 83, and in Case C-186/04 Housieaux [2005] ECR I‑3299, footnote 11. 75– Indeed, the absence of an age-limit (admittedly where the Staff Regulations contemplated that such a limit would normally apply) has led the Court to annul a competition (Case 78/71 Costacurta v Commission [1972] ECR 163, paragraph 9 et seq.). 76– The European Court of Human Rights has consistently held that the removal of a person from a country where close members of his family are living may amount to an infringement of the right of respect for family life. See Radovanovic v. Austria, no. 42703/98, §30, 16 December 2004; Boultif v. Switzerland, no 54273/00, § 39, ECHR 2001-IX; and Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 18, § 36. 77– See above, point 94. 78– See above, point 41. 79– See, to that effect, Case C-127/00 Hässle [2003] ECR I-14781, paragraph 35 et seq.