Opinion of the Advocate General — ECLI:EU:C:2009:776
Date: 2009-12-10
Language of the case: Dutch
Subject matter: Immigration and asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Visas, asylum, immigration – Immigration policy – Right to family reunification – Directive 2003/86 (Council Directive 2003/86, Art. 7(1)(c)) 2. Visas, asylum, immigration – Immigration policy – Right to family reunification – Directive 2003/86 (Council Directive 2003/86, Arts 2(d) and 7(1)(c)) 1. The phrase ‘recourse to the social assistance system’ in Article 7(1)(c) of Directive 2003/86 on the right to family reunification must be interpreted as precluding a Member State from adopting rules in respect of family reunification which result in such reunification being refused to a sponsor who has proved that he has stable and regular resources which are sufficient to maintain himself and the members of his family, but who, given the level of his resources, will nevertheless be entitled to claim special assistance in order to meet exceptional, individually determined, essential living costs, tax refunds granted by local authorities on the basis of his income, or income-support measures in the context of local-authority minimum-income policies. Since authorisation of family reunification is, under the directive, the general rule, the faculty provided for in Article 7(1)(c) thereof must be interpreted strictly. Furthermore, the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner that would undermine the objective of the directive, which is to promote family reunification, and the effectiveness thereof. (see paras 43, 52, operative part 1) 2. Directive 2003/86 on the right to family reunification, in particular Article 2(d) thereof, must be interpreted as precluding national legislation which, in applying the income requirement set out in Article 7(1)(c) of that directive, draws a distinction according to whether the family relationship arose before or after the sponsor entered the territory of the host Member State. Having regard to that lack of distinction, intended by the European Union legislature, based on the time at which the family is constituted, and taking account of the necessity of not interpreting the provisions of Directive 2003/86 restrictively and not depriving them of their effectiveness, the Member States do not have discretion to reintroduce that distinction in their national legislation transposing the directive. Furthermore, the capacity of a sponsor to have regular resources which are sufficient to maintain himself and the members of his family within the meaning of Article 7(1)(c) cannot in any way depend on the point in time at which he constitutes his family. (see paras 64, 66, operative part 2)