Opinion of the Advocate General — ECLI:EU:C:2022:24
Date: 2022-01-13
Language of the case: Spanish
Subject matter: Citizenship of the Union
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of analysis of the first topic 124. It can be seen from the analysis of the first topic that, in the circumstances of these cases, it cannot a priori be ruled out that the third-country national has a derived right of residence under Article 20 TFEU. (62) Subject to the assessment which it is for the referring court to carry out in the light of the right to respect for private and family life and of the obligation to take account of the best interests of the child, it should be found that, in each of the cases in the main proceedings, the Union citizen appears to be in a relationship of dependency of such a kind that, should the third-country national be refused a right of residence, the dependent Union citizen would be compelled to leave the territory of the European Union and would thereby be deprived of effective enjoyment of the substance of the rights conferred by that status. C. Second topic: the requirements, under the case-law, that are applicable to examination of a relationship of dependency 1. Incompatibility of the Spanish administrative practice with the approach developed by the Court 125. The second topic concerns, in essence, whether the Spanish administrative practice is in conformity with the requirements, laid down in the case-law, that are applicable for an examination of a relationship of dependency for the purposes of Article 20 TFEU. 126. According to the information provided by the referring court, that practice typically consists of refusing to grant a residence permit to a third-country national who is a family member of a Union citizen, solely on the ground that the Union citizen does not have sufficient resources for himself or herself and that family member (or sickness insurance), without examining whether there is a relationship of dependency between them, for the purposes of Article 20 TFEU, that is to say, a relationship as a result of which, in practice, the Union citizen would be compelled to leave the territory of the European Union as a whole if that family member were deprived of a permit to reside on Spanish territory. 127. As I indicated in my analysis of the first topic, (63) the Court has already had an opportunity to clarify, in paragraphs 34 to 54 of the judgment in Subdelegación del Gobierno en Ciudad Real, that such a practice is incompatible with Article 20 TFEU. 128. The relevant criteria by which it can be established whether a third-country national is entitled to a derived right of residence under Article 20 TFEU have also been set out as part of that analysis. I explained in detail that one of the key aspects of the assessment to be carried out by the competent authorities is the need to establish whether there is a relationship involving a high degree of dependency between the third-country national who is a family member of a Union citizen, and that Union citizen. (64) While emphasising the importance of protecting young children and, in so far as possible, preserving family unity, I noted that it is not sufficient for the national authorities to take into account any material dependency between a child, who is a Union citizen, and his or her third-country national parent. It is also necessary to determine the extent of the emotional relationship with that third-country national and the consequences that his or her departure could have on the psychological equilibrium of that child. (65) 129. Notwithstanding the foregoing, it should be noted that, even where such a relationship of dependency exists, a third-country national who is a family member of a Union citizen may be refused a residence permit where that third-country national represents a genuine, present and sufficiently serious threat to public policy or public security, having regard, inter alia, to criminal offences committed by him or her. (66) As part of my analysis of the first topic and, particularly, of Case C‑532/19, in respect of QP’s criminal record, I provided some useful guidance for interpreting the terms ‘public policy’ and public security’. (67) Lastly, I noted that a person cannot automatically be classified as a threat to those public interests, but that such a classification can be established only after a specific assessment of all the current and relevant circumstances of the case, in the light of the principle of proportionality, the child’s best interests and the fundamental rights. (68) 2. Summary of analysis of the second topic 130. It should be noted that, since the Spanish administrative practice does not require any such analysis in order to establish whether there is a derived right of residence under Article 20 TFEU, that practice does not satisfy the requirements laid down by the Court’s case-law. Accordingly, that administrative practice cannot be found to be in conformity with EU law. 131. Having regard to the foregoing, my analysis of the second topic must be concluded by finding that Article 20 TFEU, as interpreted by the case-law of the Court, precludes the administrative practice described above. VI. Conclusion 132. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice of Castilla-La Mancha, Spain) as follows: (1) Article 20 TFEU must be interpreted as precluding a Member State from refusing a right of residence to a third-country national who is a family member of an adult Union citizen who is a national of that Member State and has never exercised his or her freedom of movement, on the sole ground that that Union citizen does not have, for the members of the family unit, sufficient resources so as not to become a burden on the national social assistance system, where within the family a Union citizen, in particular a minor, is in a relationship of dependency of such a kind that, if the third-country national were refused a right of residence, the dependent Union citizen would be compelled to leave the territory of the European Union as a whole and would thus be deprived of the effective enjoyment of the substance of the rights conferred by that status. (2) Article 20 TFEU must be interpreted as meaning that a relationship of dependency, such as to justify the grant of a derived right of residence under that provision, does not exist on the sole ground that the national of a Member State, who is of full age and has never exercised his or her freedom of movement, and his or her spouse, who is of full age and a third-country national, are required to live together, by virtue of the obligations arising out of the marriage under the law of the Member State of which the Union citizen is a national. 1 Original language: French. 2 Directive 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). 3 OJ 2003 L 251, p. 12. 4 BOE No 51 of 28 February 2007, p. 8558 (‘Royal Decree 240/2007’). 5 See point 41 et seq. of this Opinion. 6 See point 125 et seq. of this Opinion. 7 See points 124 and 130 of this Opinion. 8 The judgment in Subdelegación del Gobierno en Ciudad Real, paragraphs 48 and 49. 9 The judgment in Subdelegación del Gobierno en Ciudad Real, paragraph 30. 10 See point 45 et seq. of this Opinion. 11 See point 57 et seq. of this Opinion. 12 Judgment of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraphs 69 and 70), and the judgment in Subdelegación del Gobierno en Ciudad Real, paragraphs 35 and 36. 13 The judgment in Subdelegación del Gobierno en Ciudad Real, paragraphs 37 and 38. 14 The judgment in Subdelegación del Gobierno en Ciudad Real, paragraph 39. 15 The judgment in Subdelegación del Gobierno en Ciudad Real, paragraphs 40 and 41. 16 The judgment in Subdelegación del Gobierno en Ciudad Real, paragraph 42. 17 The judgment in K.A. and Others, paragraph 65. 18 K.A. and Others, paragraph 65. 19 Peyrl, J., ‘Kinderbetreuungsgeld für Drittstaatsangehörige, die aus der Kernbestandsdoktrin des EuGH ein Aufenthaltsrecht ableiten können’, Das Recht der Arbeit, 3/2018, p. 236, states that the requirements laid down by the case-law as regards proving the degree of dependency are less strict for minor children than for adults, on account of their vulnerability. 20 Judgments of 10 May 2017, Chavez-Vilchez and Others (C‑133/15, EU:C:2017:354, ‘the judgment in Chavez-Vilchez and Others’, paragraph 65), and of 11 March 2021, État belge (Return of the parent of a minor) (C‑112/20, EU:C:2021:197, paragraph 26). 21 K.A. and Others, paragraph 70, and Chavez-Vilchez and Others, paragraph 68. 22 Judgments in Chavez-Vilchez and Others, paragraph 70, and K.A. and Others, paragraph 71. 23 Judgments in Chavez-Vilchez and Others, paragraph 71, K.A. and Others, paragraph 72, and of 11 March 2021, État belge (return of the parent of a minor) (C‑112/20, EU:C:2021:197, paragraph 27). 24 Judgment of 8 May 2013, Ymeraga and Others (C‑87/12, EU:C:2013:291, paragraph 38), and the judgment in K.A. and Others, paragraphs 73 to 75). 25 See point 43 of this Opinion. 26 The judgment in Subdelegación del Gobierno en Ciudad Real, paragraph 33. 27 The judgment in Subdelegación del Gobierno en Ciudad Real, paragraph 34. 28 See points 52 to 56 of this Opinion. 29 See, to that effect, Neier, C., ‘Residence right under Article 20 TFEU not dependent on sufficient resources: Subdelegación del Gobierno en Ciudad Real’, Common Market Law Review, Vol. 58 (2021) No 2, p. 566. 30 See point 51 of this Opinion. 31 See point 53 of this Opinion. 32 See point 55 of this Opinion. 33 See point 56 of this Opinion. 34 Van Eijken, H. and Phoa, P., ‘The scope of Article 20 TFEU clarified in Chavez-Vilchez: Are the fundamental rights of minor EU citizens coming of age?’, European Law Review, 2018, Vol. 43, No 6, p. 969, note that the Court of Justice created a link between Union citizenship and the Charter, which may be interpreted as a new stage in the development of a more supranational and political status of citizen, going beyond the economic and transnational roots of that status. 35 Di Comite, V., ‘Derecho de residencia de los progenitores nacionales de terceros Estados e interés superior del niño “europeo”’, Revista de derecho comunitario europeo, 12/2017, No 58, takes the view that the reference to the fundamental rights enshrined in the Charter indicates the growing importance of the rights of the child in EU law and in the case-law of the Court of Justice in particular. 36 See, in that respect, Réveillère, V., ‘La protection statutaire du citoyen: demeurer sur le territoire de l’Union (dans son État de nationalité)’, Revue trimestrielle de droit européen, 11/2020, No 3, p. 721, who believes that when the Court found, in paragraph 48 of the judgment in Subdelegación del Gobierno en Ciudad Real, that the rights of the Union citizen take precedence over the interest in preserving the public finances of the Member State concerned, the Court of Justice undertook a balancing of interests in line with the model devised by the jurist and legal philosopher, Robert Alexy. 37 Judgments of 13 September 2016, CS (C‑304/14, EU:C:2016:674, paragraph 36); and of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 81); and the judgment in K.A. and Others, paragraph 90). 38 Judgments of 13 September 2016, CS (C‑304/14, EU:C:2016:674, paragraph 37 to 39); and of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraphs 82 to 83); and the judgment in K.A. and Others, paragraph 91). 39 Judgments of 13 September 2016, CS (C‑304/14, EU:C:2016:674, paragraph 40); and of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 85); and the judgment in K.A. and Others, paragraph 92). 40 Judgments of 13 September 2016, CS (C‑304/14, EU:C:2016:674, paragraph 41); and of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 85); and the judgment in K.A. and Others, paragraph 93). 41 Judgments of 13 September 2016, CS (C‑304/14, EU:C:2016:674, paragraph 42); and of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 86); and the judgment in K.A. and Others, paragraph 94). 42 See Opinion of Advocate General Trstenjak in Commission v Portugal (C‑265/06, EU:C:2007:784, points 55 and 56) in which the Advocate General states that protection of the health and life of humans ‘lies at the heart of the [Union]-wide prevention of road accidents’. 43 See Opinion of Advocate General Szpunar in Wiener Landesregierung and Others (Revocation of an assurance concerning naturalisation) (C‑118/20, EU:C:2021:530, points 111 to 113), in which the Advocate General considers road traffic offences not to constitute a genuine, present and sufficiently serious threat to public policy or public security. The Advocate General finds that, in any event, it would be disproportionate to deprive a Union citizen of enjoyment of the rights conferred by that status on the grounds that he or she has committed road traffic offences. See also, to that effect, Opinion of Advocate General Mengozzi in Tjebbes and Others (C‑221/17, EU:C:2018:572, point 88). 44 See point 19 of this Opinion. 45 In order better to understand the problem, it needs to be noted that this analysis is based on the premiss that the refusal by the Spanish authorities to grant XU a right of residence has the effect that he is obliged to leave the territory of the European Union. The order for reference contains no precise information about XU’s current legal status, merely indicating that he ‘was given permission to reside in Spain’ (see point 19 of this Opinion) at the time he emigrated with his mother from Venezuela to the Member State in question, that is to say, in 2004. However, several indications support that interpretation of the facts, including the reference to the need for XU to be recognised as having a right of residence in order to prevent his mother having to leave the territory of the European Union, followed by her younger son and husband, both Spanish nationals, even though she herself already has a right of residence in Spain. It is therefore reasonable to assume that XU’s current legal status is somewhat precarious. 46 Judgments in Chavez-Vilchez and Others, paragraph 63, K.A. and Others, paragraph 51, and in Subdelegación del Gobierno en Ciudad Real, paragraph 41. 47 Judgments of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 34), and of 5 December 2019, Centraal Justitieel Incassobureau (Recognition and enforcement of financial penalties) (C‑671/18, EU:C:2019:1054, paragraph 26). 48 Judgment of 15 November 2011 (C‑256/11, EU:C:2011:734). 49 Judgment of 15 November 2011, Dereci and Others (C‑256/11, EU:C:2011:734, paragraphs 48 and 49). 50 Judgment of 6 December 2012, O and Others (C‑356/11 and C‑357/11, EU:C:2012:776). 51 Judgment of 6 December 2012, O and Others (C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 69). My emphasis added. 52 See point 99 of this Opinion. 53 See point 102 of this Opinion. 54 See, in particular, in relation to those requirements and the individual examination they need, judgment of 3 October 2019, X (Long-term residents – Stable, regular and sufficient resources) (C‑302/18, EU:C:2019:830, paragraphs 40 to 44). 55 See point 62 of this Opinion. 56 As in Case C‑532/19, the referring court focused its attention solely on the relationship between the spouses, and did not explore the details of the relationship between the children and their parents. In any event, in point 65 of this Opinion, I have explained that a mere legal obligation to live together, such as that under Spanish law, is not sufficient to be regarded as a relationship of dependency capable of creating a right of residence under Article 20 TFEU. 57 See point 52 of this Opinion. 58 See point 94 of this Opinion. 59 Judgment of 8 March 2011, Ruiz Zambrano (C‑34/09, EU:C:2011:124). 60 See point 113 of this Opinion. 61 Judgment of 6 December 2012, O and Others (C‑356/11 and C‑357/11, EU:C:2012:776), paragraphs 51, 56 and 57. 62 See points 94 and 123 of this Opinion. 63 See point 42 of this Opinion. 64 See points 60 and 61 of this Opinion. 65 See point 68 of this Opinion. 66 See point 83 of this Opinion. 67 See points 87 to 93 of this Opinion. 68 See point 83 of this Opinion.