Opinion of the Advocate General — ECLI:EU:C:2021:225
Date: 2021-03-22
Language of the case: French
Subject matter: Citizenship of the Union;Principles, objectives and tasks of the Treaties;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-930/19 — 1 
Case C-930/19 
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:  
20 December 2019 
Referring court:  
Conseil du contentieux des étrangers (Belgium) 
Date of the decision to refer:  
13 December 2019 
Applicant:  
X 
Defendant:  
Belgian State 
  
1. Subject matter and circumstances of the dispute 
1 X, an Algerian national, married S.K., a French national, in Algiers (Algeria) on 
26 September 2010. X arrived on Belgian territory on 22 February 2012 to rejoin 
his wife, who had permission to reside in Belgium. X was issued a residence 
permit as a family member of an EU citizen.  
2 X and S.K. have a child. 
3 After almost five years of marriage and two years of living together in Belgium, 
X, who had been subjected to attacks by his wife (verbal abuse, physical 
aggression and death threats), was forced to leave the family home. X moved to a 
different address from his wife and daughter on 22 May 2015. He has continued to 
live separately since that time. S.K. has been living in France with their daughter 
since 10 September 2015. 
4 On 14 December 2017, the defendant terminated X’s right of residence. It 
observes that X undoubtedly found himself in ‘particularly difficult 
circumstances’ (a violent marriage), but adds that he has not established that he 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-930/19 
 
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has appropriate means of subsistence at his disposal so as not to remain dependent 
on social security, as Belgian legislation requires. 
5 On 26 January 2018, X brought an action for annulment of that decision before 
the Conseil du contentieux des étrangers (Council for asylum and immigration 
proceedings, Belgium). 
2. Relevant provisions of EU law 
Charter of fundamental rights of the European Union 
6 Article 20 provides: 
‘Equality before the law 
Everyone is equal before the law.’ 
7 Article 21 provides: 
‘Non-discrimination 
1. Any discrimination based on any ground such as sex, race, colour, ethnic or 
social origin, genetic features, language, religion or belief, political or any other 
opinion, membership of a national minority, property, birth, disability, age or 
sexual orientation shall be prohibited. 
2. Within the scope of application of the Treaties and without prejudice to any 
of their special provisions, any discrimination on grounds of nationality shall be 
prohibited.’ 
Council Directive 2003/86/EC of 22 September 2003 on the right to family 
reunification  
8 Article 15 provides: 
‘1. Not later than after five years of residence, and provided that the family 
member has not been granted a residence permit for reasons other than family 
reunification, the spouse or unmarried partner and a child who has reached 
majority shall be entitled, upon application, if required, to an autonomous 
residence permit, independent of that of the sponsor. 
Member States may limit the granting of the residence permit referred to in the 
first subparagraph to the spouse or unmarried partner in cases of breakdown of the 
family relationship. 
2. The Member States may issue an autonomous residence permit to adult 
children and to relatives in the direct ascending line to whom Article 4(2) applies. 
X 
 
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3. In the event of widowhood, divorce, separation, or death of first-degree 
relatives in the direct ascending or descending line, an autonomous residence 
permit may be issued, upon application, if required, to persons who have entered 
by virtue of family reunification. Member States shall lay down provisions 
ensuring the granting of an autonomous residence permit in the event of 
particularly difficult circumstances. 
4. The conditions relating to the granting and duration of the autonomous 
residence permit are established by national law.’ 
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 
9 Article 13 provides: 
‘Retention of the right of residence by family members in the event of divorce, 
annulment of marriage or termination of registered partnership 
1. … 
2. Without prejudice to the second subparagraph, divorce, annulment of marriage 
or termination of the registered partnership referred to in point 2(b) of Article 2 
shall not entail loss of the right of residence of a Union citizen’s family members 
who are not nationals of a Member State where: 
…  
(c) this is warranted by particularly difficult circumstances, such as having been 
a victim of domestic violence while the marriage or registered partnership was 
subsisting; or 
… 
Before acquiring the right of permanent residence, the right of residence of the 
persons concerned shall remain subject to the requirement that they are able to 
show that they are workers or self-employed persons or that they have sufficient 
resources for themselves and their family members not to become a burden on the 
social assistance system of the host Member State during their period of residence 
and have comprehensive sickness insurance cover in the host Member State, or 
that they are members of the family, already constituted in the host Member State, 
of a person satisfying these requirements. … .’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-930/19 
 
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3. The parties’ positions 
3.1. X 
10 X objects to the unjustified unequal treatment which he has received as the spouse 
of an EU national, by comparison with the spouse of a third country national 
holding an indefinite right of residence, particularly in circumstances where the 
communal life of the family comes to an end following domestic violence. 
11 His right to continued residence is effectively conditional on working or 
possessing sufficient resources, which would not be the case for the spouse of 
such a third country national. 
12 X maintains that such discrimination is contrary, inter alia, to Articles 20 and 21 
of the Charter. 
3.2. The defendant 
13 In the present case, the applicant has not demonstrated how his situation (as a 
family member of an EU citizen) is comparable to that of a family member of a 
citizen who is a national of a third country and has an indefinite right of residence. 
14 The situation of EU citizens cannot be compared with that of third country 
nationals. The same applies to the situation of (former) members of their families. 
15 Even supposing the categories under comparison to be similar, which they are not, 
the difference in treatment relied on by the applicant is based on an objective 
criterion and cannot be regarded as disproportionate. 
16 Indeed, the legal provision at issue, imposing the requirement for resources, 
transposes Directive 2004/38, and in particular Article 13 of that directive, into 
national law. 
17 Furthermore, as regards the principle of non-discrimination contained in 
Article 21 of the Charter, paragraph 2 of that article corresponds to the first 
paragraph of Article 18 TFEU (formerly Article 12 EC) (see the Explanations 
relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 2)). The Court 
of Justice has held that ‘that provision … is not intended to apply to cases of a 
possible difference in treatment between nationals of Member States and nationals 
of non-member countries’ (judgment of 4 June 2009, Vatsouras and Koupatantze, 
C-22/08 and C-23/08, EU:C:2009:344, paragraph 52). It follows that Article 21(2) 
of the Charter only concerns situations in which a national of one Member State 
suffers discriminatory treatment in relation to nationals of another Member State 
solely on the basis of his nationality, which is not the position in the present case. 
Accordingly, there can be no finding of discrimination under Article 21 of the 
Charter in the present case. 
X 
 
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4. Assessment of the Conseil du contentieux des étrangers (Council for 
asylum and immigration proceedings)  
18 The Council for asylum and immigration proceedings observes that family 
members who are victims of domestic violence are indeed treated differently 
depending on whether family reunion has taken place with an EU citizen or with a 
third country national permitted to reside in Belgium. 
19 In both cases there is a right to continue in residence in the event that the 
communal life of the family comes to an end due to acts of violence, but unlike 
family members of an EU citizen, family members of a third country national are 
not required to produce evidence of anything beyond the fact that acts of violence 
have taken place. 
20 The Cour Constitutionnelle (Constitutional Court, Belgium) has held that the same 
difference in the treatment of family members of a Belgian national, as compared 
with family members of a third country national, is not justified, though it 
emphasised that the provisions at issue ‘are applicable to family members of a 
Belgian national who has not exercised his right of free movement. In such a case, 
the fact that family members of a Belgian national are subject to the [legal] 
requirements is not a result of the transposition of Directive 2004/38/EC, but is 
based on an autonomous decision of the Belgian legislature.’ (judgment 
No 17/2019 of 7 February 2019). 
21 In the present case, the defendant has applied a legal provision which transposes a 
provision of a directive (Article 13(2) of Directive 2004/38/EC). This system 
differs from that envisaged by another directive, concerning family members of 
nationals of third countries (Article 15 of Directive 2003/86/EC). 
22 It is well established in the case-law of the Court that national courts do not have 
the power to declare EU acts invalid (judgment of 22 October 1987, Foto-Frost, 
314/85, EU:C:1987:452, paragraph 15). Accordingly, the Council considers it 
necessary to refer the matter to the Court of Justice, for it to rule on the question 
of discrimination arising from the difference in treatment for which the EU 
legislature has provided, as between two categories of family members, in two 
different EU legislative instruments. 
23 It must always be possible for an EU legislative act to be examined in the light of 
the principle of equal treatment or that of non-discrimination, as enshrined in 
Articles 20 and 21 of the Charter. If such an act cannot be interpreted in such a 
way as to conform to those principles, it must be declared invalid and the national 
provisions implementing it must be set aside. 
24 Finally, the Council does not consider it necessary to address the argument 
advanced by the defendant in relation to the applicability of Article 21 of the 
Charter (see paragraph 17 above), as the Court will rule on the applicability of 
Article 20 or Article 21(1) or (2) of the Charter to the facts of present case. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-930/19 
 
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25 In the light of the foregoing, the Council considers it necessary to seek a 
preliminary ruling from the Court as to whether it is compatible with Articles 20 
and 21 of the Charter to lay down a general, supplementary condition in 
Article 13(2) of Directive 2004/38/EC, and thus as to whether that provision of 
EU law is valid. 
5. Question referred for a preliminary ruling 
26 The Conseil du contentieux des étrangers (Council for asylum and immigration 
proceedings) refers the following question to the Court of Justice pursuant to 
Article 267 TFEU: 
‘Does Article 13(2) 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 
infringe Articles 20 and 21 of the Charter of Fundamental Rights of the European 
Union, in that it provides that divorce, annulment of marriage or termination of a 
registered partnership does not entail loss of the right of residence of a Union 
citizen’s family members who are not nationals of a Member State where, inter 
alia, this is warranted by particularly difficult circumstances, such as having been 
a victim of domestic violence while the marriage or registered partnership was 
subsisting, but only on the condition that the persons concerned show that they are 
workers or self-employed persons or that they have sufficient resources for 
themselves and their family members not to become a burden on the social 
assistance system of the host Member State during their period of residence and 
have comprehensive sickness insurance cover in the host Member State, or that 
they are members of the family, already constituted in the host Member State, of a 
person satisfying these requirements, whereas Article 15(3) of Council Directive 
2003/86/EC of 22 September 2003 on the right to family reunification, which 
makes the same provision for the right of residence to continue, does not make its 
continuation subject to that condition?’