Opinion of the Advocate General — ECLI:EU:C:2020:131
Date: 2020-02-27
Language of the case: Hungarian
Subject matter: Citizenship of the Union;Right of establishment;Principles, objectives and tasks of the Treaties;Freedom to provide services;Free movement of workers;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary C-754/18 — 1 
Case C-754/18  
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 December 2018 
Referring court: 
Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest 
Administrative and Labour Court, Hungary) 
Date of the decision to refer: 
21 November 2018 
Applicant: 
Ryanair Designated Activity Company 
Defendant: 
Országos Rendőr-főkapitányság (Hungarian Directorate General of 
Police) 
  
Subject matter of the main proceedings 
Legal action challenging a fine imposed on an air carrier in a procedure relating to 
public order. 
Subject matter and legal basis of the request for a preliminary ruling 
Definition and scope of the permanent residence card referred to in Article 20 of 
Directive 2004/38; scope of the visa waiver derived from the Schengen acquis in 
relation to a permanent residence card issued by the United Kingdom to a third-
country family member under Article 20 of Directive 2004/38. 
Scope of the obligation to check travel documents incumbent on air carriers under 
Article 26 of the Convention implementing the Schengen Agreement. 
Legal basis: Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-754/18 
 
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Questions referred for a preliminary ruling 
(1) Must Article 5(2), on right of entry, 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 be interpreted as meaning that, for the purposes 
of that directive, both the holding of a valid residence card, as referred to in 
Article 10 thereof, and the holding of a permanent residence card, as referred 
to in Article 20 thereof, exempt a family member from the requirement to be 
in possession of a visa at the time of entry to the territory of a Member 
State? 
(2) If the answer to question 1 is in the affirmative, must Article 5 of Directive 
2004/38, and paragraph 2 thereof, be interpreted in the same way where the 
person who is a family member of an EU citizen and is not a national of 
another Member State has acquired the right of permanent residence in the 
United Kingdom and that is the State which issued the permanent residence 
card to that person? In other words, does the holding of the permanent 
residence card provided for in Article 20 of that directive, issued by the 
United Kingdom, exempt the holder of that card from the requirement to 
obtain a visa, regardless of the fact that neither Council Regulation (EC) 
No 539/2001 of 15 March 2001 listing the third countries whose nationals 
must be in possession of visas when crossing the external borders and those 
whose nationals are exempt from that requirement, to which Article 5(2) of 
Directive 2004/38 refers, nor Regulation (EU) 2016/399 of the European 
Parliament and of the Council of 9 March 2016 on a Union Code on the 
rules governing the movement of persons across borders (Schengen Borders 
Code) is applicable to that Member State? 
(3) If the answers to questions 1 and 2 are in the affirmative, is the holding of a 
residence card issued in accordance with Article 20 of Directive 2004/38 to 
be regarded by itself as sufficient proof that the holder of the card is a family 
member of an EU citizen and is, without the need for any further checking 
or certification, permitted — as a family member — to enter the territory of 
another Member State and is exempt from the requirement to obtain a visa 
pursuant to Article 5(2) of that directive? 
(4) If the Court of Justice should answer question 3 in the negative, must 
Article 26(1)(b) and (2) of the Convention implementing the Schengen 
Agreement be interpreted as meaning that an air carrier, in addition to 
checking travel documents, is required to check that a traveller who intends 
to travel with the permanent residence card referred to in Article 20 of 
Directive 2004/38 is in fact genuinely a family member of an EU citizen at 
the time of entry? 
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(5) If the Court of Justice should answer question 4 in the affirmative, 
(1) where an air carrier is unable to establish that a traveller who intends 
to travel with the permanent residence card referred to in Article 20 of 
Directive 2004/38 is actually a family member of an EU citizen at the 
time of entry, is that carrier required to deny boarding onto the aircraft 
and to refuse to transport that person to another Member State? 
(2) where an air carrier does not check that circumstance or does not 
refuse to transport a traveller who is unable to provide evidence that he 
is a family member — and who, moreover, holds a permanent 
residence card — is it possible to impose a fine on that carrier on that 
ground pursuant to Article 26(2) of the Convention implementing the 
Schengen Agreement? 
Provisions of EU law relied on 
Article 21(1) TFEU. 
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), recitals 5, 7 and 8, and Articles 5, 10, 16, 18 
and 20. 
Convention implementing the Schengen Agreement of 14 June 1985 between the 
Governments of the States of the Benelux Economic Union, the Federal Republic 
of Germany and the French Republic on the gradual abolition of checks at their 
common borders (OJ 2000 L 239, p. 19; ‘CISA’), Article 26. 
Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of 
Article 26 of the Convention implementing the Schengen Agreement of 14 June 
1985 (OJ 2001 L 187, p.45), Article 4. 
Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third 
countries whose nationals must be in possession of visas when crossing the 
external borders and those whose nationals are exempt from that requirement (OJ 
2001 L 81, p. 1), recital 4. 
Regulation (EU) 2016/399 of the European Parliament and of the Council of 
9 March 2016 on a Union Code on the rules governing the movement of persons 
across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1), recital 42. 
Judgment of the Court of Justice of 14 November 2017, Lounes (C-165/16, 
EU:C:2016:862), paragraphs 32 and 48. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-754/18 
 
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Provisions of national law relied on 
A szabad mozgás és tartózkodás jogával rendelkező személyek beutazásáról és 
tartózkodásáról szóló 2007. évi I. törvény (Law I of 2007 on the right of entry and 
residence of persons having the right of free movement and residence), 
Paragraph 3(2) to (4). 
A harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. 
évi II. törvény (Law II of 2007 on the entry and residence of third-country 
nationals), Paragraph 69(1) and (5). 
Brief summary of the facts and the procedure in the main proceedings 
1 On 9 October 2017, the airport police carried out checks at the Ferenc Liszt 
airport in Budapest, on passengers arriving on the London-Budapest flight 
operated by Ryanair (the applicant) and refused to grant entry to Hungarian 
territory to a Ukrainian citizen who was in possession of a permanent residence 
card issued by the United Kingdom under Article 20 of Directive 2004/38, which 
was referred to in his passport using the term ‘Permanent Residence Card’, but 
who did not have a visa. The Ukrainian citizen was travelling alone and did not 
present any document attesting to his family situation. 
2 The Hungarian Directorate General of Police imposed on Ryanair a public order 
related fine in the amount of EUR 3000 for infringement of Article 26 of the 
CISA, on the ground that, as an air carrier, it had failed to take the necessary 
measures to ensure that the foreign national it was transporting was in possession 
of the travel documents required for entry to Hungarian territory. 
Essential arguments of the parties in the main proceedings 
3 The applicant submits that the Ukrainian citizen had the right to move freely 
within the territory of the European Union and that since he was in possession of a 
permanent residence permit issued by the United Kingdom in accordance with 
Article 20 of Directive 2004/38, he was entitled to enter Hungary. The applicant 
maintains that the permanent residence card proves by itself that the Ukrainian 
citizen is a family member of an EU citizen and that, consequently, he could enter 
the territory of any other Member State without a visa pursuant to Article 5(2) of 
that directive. The applicant argues that only persons who already hold a 
‘residence card of a family member of a Union citizen’ have the right to obtain a 
permanent residence card. The applicant submits that this is the situation which 
occurred in the present case, for the Ukrainian citizen’s passport made clear that a 
prior residence card existed. For that reason, even in the absence of an actual 
statement to that effect, the permanent residence card unequivocally proves that 
the Ukrainian citizen is a family member. The applicant further submits that if that 
card does not itself prove that he has the status of family member, the applicant, as 
an air carrier, had neither the right nor the obligation to carry out an additional 
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check of the family relationship, and maintains that it cannot be penalised for not 
having conducted such a check. 
4 The defendant argues that the applicant should have known that the permanent 
residence card does not guarantee that the Ukrainian citizen does not need a visa 
and that it should have refused to transport him if he was not in possession of a 
travel document allowing him to enter the country. In the defendant’s submission, 
a literal interpretation is required of Article 5(2) of Directive 2004/38, pursuant to 
which only persons in possession of a residence card complying with Article 10 of 
that directive are exempt from the visa requirement and only that card is capable 
of attesting by itself to the status of family member. The defendant submits that 
the reason for that distinction lies in the fact that the residence card referred to in 
Article 10 of Directive 2004/38 is specifically called ‘residence card of a family 
member of a Union citizen’, so that it is possible to establish unequivocally from 
the document itself that the holder is a family member of an EU citizen. By 
contrast, a permanent residence card does not refer to the status of family member 
and, accordingly, does not prove that its holder is actually a family member of an 
EU citizen. The defendant also submits that since the United Kingdom is not part 
of the Schengen area, the permanent residence cards it issues do not exempt 
holders from the visa requirement. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 Question 1 asks whether Article 5(2) of Directive 2004/38 must be given a strict 
literal interpretation and be construed as meaning that it refers solely to the 
residence card referred to in Article 10 or whether that provision must be 
interpreted more broadly and it accepted that it also refers to the permanent 
residence card referred to in Article 20. In relation to this question, the referring 
court states that third-country nationals who have lawfully resided as a family 
member of an EU citizen for a continuous period of five years in the host Member 
State have the right to obtain a permanent residence card. It is apparent from a 
logical connection between Articles 10, 16(2) and 20 of Directive 2004/38 that the 
permanent residence card is issued to a family member of an EU citizen after that 
family member has previously held a residence card. Thus, the spirit of that 
directive implies that the right of permanent residence must be regarded as an 
enhancement of the right of residence and an extension of the rights conferred by 
that [earlier] right of residence. 
6 Although Directive 2004/38 governs the right of exit and entry, on the one hand, 
and the right of residence, on the other, in different chapters, it is apparent from 
the logical structure of the chapters governing the right of residence that the right 
of entry governed by Article 5 must be granted not only to persons having a right 
of residence but also to persons having a permanent right of residence and, where 
those persons have been granted that right, they must also be granted the benefit 
provided for in Article 5(2), namely exemption from the requirement to have a 
visa. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-754/18 
 
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7 Question 2. If the Court of Justice answers question 1 in the affirmative, it will be 
necessary, in order to adjudicate on the dispute, to answer the question of whether 
Article 5 of Directive 2004/38 — in conjunction with the Schengen Agreement 
and the provisions of EU law relating to the implementation of that agreement — 
can be interpreted as meaning that a permanent residence card issued by a 
Member State which is not part of the Schengen area (the United Kingdom) 
permits entry without a visa to the territory of another Member State.  
8 Question 3. If the Court of Justice answers questions 1 and 2 in the affirmative, 
the question arises of whether the permanent residence card by itself attests to the 
existence of a family relationship and the existence of the associated right of entry 
or whether it merely allows entry without a visa when it is accompanied by 
another certificate or other evidence (for example a civil status certificate or other 
document). According to the judgment of the Court of 14 November 2017, Lounes 
(C-165/16, EU:C:2017:862), paragraphs 32 and 48, a family member who is a 
third-country national does not have an autonomous right of entry and instead 
only enjoys that benefit as a right associated with the exercise of freedom of 
movement by the family member who has EU citizenship. 
9 The right of entry differs from the right of residence and Directive 2004/38 
governs the right in a specific chapter. That directive contains no provision 
pursuant to which all third-country nationals granted the right of residence under 
Directive 2004/38 also have the right of entry to the territory of another Member 
State. 
10 In addition, a third-country national who does not have a family relationship with 
an EU citizen — for example, as a result of death or dissolution of marriage — 
may also hold a permanent residence card (Articles 12 and 13 of Directive 
2004/38). Are those third-country nationals also granted the right of entry to the 
territory of another Member State and exemption from the visa requirement 
despite the fact that, in such cases, the exercise of those rights is not consistent 
with the practical effect of Article 21 TFEU? 
11 The answer given to those questions is relevant to the outcome of the proceedings 
because, if the permanent residence card by itself attests to the existence of the 
right of entry, the air carrier is not subject in any event to the requirement to carry 
out an additional check and, if it did confirm the validity of the travel document 
and the permanent residence card, it cannot be found to have committed an 
infringement, in which case it would not be necessary to answer questions 4 and 5. 
12 Question 4 is referred for a preliminary ruling in case the Court of Justice finds 
that it is necessary to draw a distinction, as regards the right of entry, between 
third-country nationals who actually have an existing family relationship and 
third-country nationals whose family relationship has been dissolved but who still 
have a right of residence under Directive 2004/38. In the main proceedings, this 
gives rise to the practical difficulty of determining whether the air carrier has the 
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duty and the power to check that the third-country national’s family relationship 
continues to exist at the time of travel. 
13 In accordance with the wording of Article 26 of the CISA, the carrier is obliged to 
check the travel documents required for entry [to a State]. In the context of the 
main proceedings, it is necessary to ascertain whether the term ‘travel documents’ 
in Article 26 must be interpreted strictly, so that the carrier’s obligation is 
confined to checking the passport and the permanent residence card contained 
therein, or whether it must be interpreted broadly in such a way that it also 
encompasses a check of every document serving to permit the journey or other 
certificates (for example, a civil status certificate). 
14 When answering that question, it must be borne in mind that an air carrier is not 
an authority and does not have official control instruments. Furthermore, nor do 
air carriers have a proper right of access to, and management of, the personal data 
relating to travellers’ family relationships and private lives. 
15 Question 5. If the obligation incumbent on the carrier to carry out checks involves 
the checking of additional documents and circumstances in addition to checking 
the travel documents, it will also be necessary to answer two further questions. 
First, it will be necessary to determine whether the fact that the traveller is unable 
to provide sufficient evidence of his family relationship but is at the same time 
permitted to enter in accordance with the travel document is a sufficient reason for 
the air carrier to refuse to transport the traveller. Secondly, it will be necessary to 
determine what the consequence is of the failure of the carrier to carry out such a 
check. 
16 In order to assess whether the fine imposed is lawful, the Court of Justice must 
also determine whether the carrier may be penalised pursuant to Article 26(2) of 
the CISA for failure to check other documents which attest to the right of entry 
when it did check that the travel documents and the permanent residence card 
existed.