Opinion of the Advocate General — ECLI:EU:C:2005:638
Date: 2005-10-25
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

Summary of the Judgment 1. Citizens of the European Union – Right of freedom of movement and of residence – Directive 90/364 (Art. 18 EC; Council Directive 90/364, Art. 1(1), first subpara.) 2. Freedom of movement for persons – Right of entry and residence of nationals of Member States – Directives 68/360, 73/148, 90/364, 90/365 and 93/96 (Council Directives 68/360, Art. 4, 73/148, Art. 4, 90/364, Art. 2, 90/365, Art. 2, and 93/96, Art. 2) 1. A Member State fails to fulfil its obligations under Article 18 EC and Directive 90/364 on the right of residence if, when applying that directive to nationals of a Member State who wish to rely on their rights under that directive and on Article 18 EC, it excludes the income of a partner residing in the host Member State in the absence of an agreement concluded before a notary and containing an assistance clause in order to assess whether the person concerned has sufficient resources. According to the terms of the first subparagraph of Article 1(1) of Directive 90/364, it is sufficient for the nationals of Member States to ‘have’ the necessary resources, and that provision lays down no requirement whatsoever as to their origin. To add to the condition of sufficient resources a requirement as to the origin of the resources, particularly the requirement of a legal link between the provider and the recipient of the resources, not being necessary for the attainment of the objective pursued by Directive 90/364, namely the protection of the public finances of the host Member State, constitutes a disproportionate interference with the exercise of the fundamental right of freedom of movement and of residence upheld by Article 18 EC. (see paras 40-42, 46, 51, operative part 1(a)) 2. By making provision for automatic service of an order to leave its territory on citizens of the Union who do not produce within the prescribed period the documents required to obtain a residence permit, a Member State fails to fulfil its obligations under Article 2 of Directive 90/364 on the right of residence, Article 4 of Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, Article 4 of Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, Article 2 of Directive 93/96 on the right of residence for students and Article 2 of Directive 90/365 on the right of residence for employees and self-employed persons who have ceased their occupational activity. Such automatic deportation impairs the very substance of the right of residence directly conferred by Community law. Even if a Member State may, where necessary, decide to deport a national of another Member State where that person is unable to produce, within the required period, the documents proving that he fulfils the necessary financial conditions, where that deportation is automatic it is disproportionate. (see paras 68, 72, operative part 1(b))