Opinion of the Advocate General — ECLI:EU:C:2018:504
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. Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86 — Scope — Third country national family members of a beneficiary of subsidiary protection — Not included (Council Directive 2003/86, Art. 3(2)(c)) 2. 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(2)(c) and 12(1)) 3. Border controls, asylum and immigration — Immigration policy — Right to family reunification — Directive 2003/86 — Family reunification of refugees — Application for family reunification submitted under the more favourable provisions of Chapter V of that directive — National legislation permitting such an application to be rejected for the sole reason of failure to comply with the time limit of three months after granting the sponsor subsidiary protection — Lawfulness — Conditions (Council Directive 2003/86, Arts 5(5), 7(1), 10, 11, 12(1) and (2) and 17) 1. See the text of the decision. (see paras 26-33) 2. The Court of Justice has jurisdiction, on the basis of Article 267 TFEU, to interpret Article 12(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification in a situation such as that at issue in the main proceedings, where a national court is called upon to rule on a beneficiary of subsidiary protection’s right to family reunification, if that provision was made directly and unconditionally applicable to such a situation 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(2)(c) of Directive 2003/86 expressly excludes situations such as that at issue in the main proceedings from the scope of that directive. (see paras 35, 39, 41, operative part 1) 3. Article 12(1) of Directive 2003/86 does not preclude national legislation which permits an application for family reunification lodged on behalf of a member of a refugee’s family, on the basis of the more favourable provisions for refugees of Chapter V of that directive, to be rejected on the ground that that application was lodged more than three months after the sponsor was granted refugee status, whilst affording the possibility of lodging a fresh application under a different set of rules provided that that legislation: – lays down that such a ground of refusal cannot apply to situations in which particular circumstances render the late submission of the initial application objectively excusable; – lays down that the persons concerned are to be fully informed of the consequences of the decision rejecting their initial application and of the measures which they can take to assert their rights to family reunification effectively; and – ensures that sponsors recognised as refugees continue to benefit from the more favourable conditions for the exercise of the right to family reunification applicable to refugees, specified in Articles 10 and 11 or in Article 12(2) of the directive. The third subparagraph of Article 12(1) of Directive 2003/86 cannot be interpreted as requiring the Member States to regard failure, without any valid reason, to comply with the time limit for lodging an application for family reunification submitted on the basis of the more favourable rules set out in the first subparagraph of Article 12(1) of that directive as forming only one factor to be taken into consideration for the overall assessment of the merits of that application and as capable of being offset by other factors. First, to accept that interpretation, which is not supported by the wording of Article 12 of the directive, would mean that the rule for distinguishing between the respective scopes of the rules applying to applications for family reunification lodged by refugees, which the Member States are entitled to introduce on the basis of the time limit stipulated in the third subparagraph of Article 12(1) of the directive, would be deprived of its effectiveness and clarity. Second, failure to comply with the time limit for lodging an application for family reunification referred to in the third subparagraph of Article 12(1) of Directive 2003/86 has no direct impact on the authorisation of the entry or stay of the sponsor’s family members, but merely determines the context in which that application must be examined. Article 5(5) and Article 17 of Directive 2003/86 do not justify any other conclusion. However, whilst the EU legislature has allowed the Member States to require that the conditions set out in Article 7(1) of that directive in the case referred to in the third subparagraph of Article 12(1) thereof are satisfied, it did not determine how an application made under the more favourable rules in the first subparagraph of Article 12(1) of the directive should be regarded procedurally if lodged out of time. In those circumstances, in the absence of EU rules in that regard, it is, according to the Court’s settled case-law, for the domestic legal system of the Member State in question to determine those requirements in accordance with the principle of procedural autonomy provided, however, that those requirements are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (see, to that effect, judgment of 22 February 2018, INEOS Köln, C‑572/16, EU:C:2018:100, paragraph 42 and the case-law cited).. (see paras 48-51, 55, 56, 66, operative part 2)