Opinion of the Advocate General — ECLI:EU:C:2018:171
Date: 2018-03-07
Language of the case: French
Subject matter: Asylum policy;Citizenship of the Union;Right of establishment;Justice and home affairs;Principles, objectives and tasks of the Treaties;Freedom to provide services;Free movement of workers;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (First Chamber), 27 June 2018 1. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Issuing of a residence card of a family member of a Union citizen — Time limit — Obligation to adopt and notify the decision on the application for a residence card within six months (European Parliament and Council Directive 2004/38, Art. 10(1)) 2. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Issuing of a residence card of a family member of a Union citizen — Time limit — Non-compliance — Consequences —National legislation requiring automatic issuance where the time period provided is exceeded — Not permissible/unlawful (European Parliament and Council Directive 2004/38, Art. 10(1)) 3. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Issuing of a residence card of a family member of a Union citizen —Declaratory character not creating rights — Effects (European Parliament and Council Directive 2004/38, Art. 10(1)) 4. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Issuing of a residence card of a family member of a Union citizen — Decision of refusal — Judicial annulment of that decision — Effects — No automatic opening of a new period of six months (European Parliament and Council Directive 2004/38, Art. 10(1) and (2)) 1. Article 10(1) 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, must be interpreted as meaning that the decision on the application for a residence card of a family member of a Union citizen must be adopted and notified within the period of six months laid down in that provision. As noted by the Advocate General in point 44 of his Opinion, the use of the words ‘no later than six months from the date on which they submit the application’ clearly indicates that the Member States must issue a residence card of a family member of a Union citizen to the person concerned within that period. The concept of ‘issuing’, referred to in Article 10(1) of Directive 2004/38, implies — as noted, in essence, by the Advocate General in points 45 and 46 of his Opinion — that, within the period of six months laid down in that provision, the competent national authorities must examine the application, adopt a decision and, in the case where the applicant qualifies for the right of residence on the basis of Directive 2004/38, issue that residence card to that applicant. Accordingly, the obligation for Member States to issue the residence card to a family member of a Union citizen within the mandatory period of six months provided for in Article 10(1) of Directive 2004/38 necessarily implies the adoption and notification of a decision to the person concerned before that period expires. The same applies when the competent national authorities refuse to issue the residence card of a family member of a Union citizen to the person concerned. (see paras 35, 36, 38, 39, 43, operative part 1) 2. Directive 2004/38 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which requires competent national authorities to issue automatically a residence card of a family member of a European Union citizen to the person concerned, where the period of six months, referred to in Article 10(1) of Directive 2004/38, is exceeded, without finding, beforehand, that the person concerned actually meets the conditions for residing in the host Member State in accordance with EU law. In that regard, it should be noted that Directive 2004/38 does not contain any provision governing the consequences of the period referred to in Article 10(1) of Directive 2004/38 being exceeded, as that issue comes, in principle, within the scope of the procedural autonomy of the Member States, subject to compliance with the principles of effectiveness and equivalence (see, to that effect, judgment of 17 March 2016, Bensada Benallal, C‑161/15, EU:C:2016:175, paragraph 24). On that basis, while EU law in no way precludes the Member States establishing rules on implicit acceptance or authorisation, such rules must nevertheless not impair the effectiveness of EU law. In those circumstances, while there is nothing to prevent national legislation from providing that silence on the part of the competent administration for a period of six months from the lodging of the application constitutes a refusal, the very terms of Directive 2004/38 preclude that silence from constituting an acceptance. (see paras 45, 46, 51, 56, operative part 2) 3. See the text of the decision. (see paras 48-50) 4. EU law must be interpreted as precluding national case-law, such as that at issue in the main proceedings, under which, following the judicial annulment of a decision refusing to issue a residence card of a family member of a Union citizen, the competent national authority automatically regains the full period of six months referred to in Article 10(1) of Directive 2004/38. In the first place, as recalled in paragraph 40 of the present judgment, the administrative procedure instituted in Article 10(1) of Directive 2004/38 is intended to verify the individual situation of third-country nationals in the light of the provisions of EU law within a mandatory time period of six months. In particular, national competent authorities must only verify, within that period, whether the third-country national is in a position to prove, through the submission of the documents stated in Article 10(2) of that directive, that he comes within the scope of the concept of ‘family member’ of a Union citizen, within the meaning of Directive 2004/38, in order to benefit from the residence card. In the second place, it is apparent from the settled case-law of the Court that the purpose of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States which is conferred directly on citizens of the Union by Article 21(1) TFEU. Recital 5 of the directive states that that right should, if it is to be exercised under objective conditions of dignity, be also granted to the family members of those citizens, irrespective of nationality (judgment of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 31 and the case-law cited). That purpose requires that a third-country national who submits proof that he comes within the scope of the concept of ‘family member’ of a Union citizen, within the meaning of Directive 2004/38, be issued with a residence card certifying that status at the earliest opportunity. Consequently, the automatic opening of a new period of six months, following the judicial annulment of a decision refusing to issue a residence card, appears disproportionate in the light of the ultimate purpose of the administrative procedure referred to in Article 10(1) of Directive 2004/38 and the objectives of that directive. It follows that the principle of effectiveness and the objective of rapid processing of applications inherent to Directive 2004/38 preclude national authorities automatically being allowed a new period of six months following the judicial annulment of an initial decision refusing to issue a residence card. They are required to adopt a new decision within a reasonable period of time, which cannot, in any case, exceed the period referred to in Article 10(1) of Directive 2004/38. (see paras 63-65, 68-70, operative part 3)