Opinion of the Advocate General — ECLI:EU:C:2016:75
Date: 2016-02-04
Language of the case: Spanish
Subject matter: Citizenship of the Union
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Grand Chamber), 13 September 2016 1. Questions referred for a preliminary ruling — Reference to the Court — Need for a dispute to be pending before the referring court — Claims set out in the context of the main action not fully satisfied — Reply from the Court remaining useful for deciding the dispute in the main proceedings (Art. 267 TFEU) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant aspects of EU law — Reformulation of the questions (Art. 267 TFEU) 3. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries —Union citizen who is a minor and who has never made use of his right of freedom of movement and has always resided in the Member State of which he is a national — Not included (European Parliament and Council Directive 2004/38, Art. 3(1)) 4. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Limitation on the right of entry and the right of residence on grounds of public policy or public security — National legislation precluding automatically, on account solely of his criminal record, the grant of a residence permit to a third-country national where he is the parent of a minor child who is a Union citizen and who is his dependant and resides with him in the host Member State — Not permissible (Art. 21 TFEU; Charter of Fundamental Rights of the European Union Arts 7 and 24(2); European Parliament and Council Directive 2004/38, Art. 28(1)) 5. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Limitation on the right of entry and the right of residence on grounds of public policy or public security — National legislation precluding automatically, on account solely of his criminal record, the grant of a residence permit to a third-country national where he is the parent of minor children who are Union citizens for whom he has sole responsibility — Refusal of residence capable of resulting in those children being obliged to leave the territory of the European Union — Not permissible (Art. 20 TFEU; Charter of Fundamental Rights of the European Union, Arts 7 and 24(2)) 1. See the text of the decision. (see paras 24-32) 2. See the text of the decision. (see paras 33, 34) 3. See the text of the decision. (see para. 40) 4. Article 21 TFEU and Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as precluding national legislation which requires a third-country national to be automatically refused the grant of a residence permit on the sole ground that he has a criminal record where he is the parent of a minor child who is a Union citizen and a national of a Member State other than the host Member State and who is his dependant and resides with him in the host Member State. EU law precludes a limitation on the right of residence that is founded on grounds of a general preventive nature and ordered for the purpose of deterring other foreign nationals, in particular where that measure has been adopted automatically following a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of public policy. Thus, in order to determine whether an expulsion measure is proportionate to the legitimate aim pursued, in the present instance protection of the requirements of public policy or public security, account should be taken of the criteria set out in Article 28(1) of Directive 2004/38, namely how long the individual concerned has resided on the territory of the host Member State, his age, his state of health, his family and economic situation, his social and cultural integration into the host Member State and the extent of his links with his country of origin. The degree of gravity of the offence must also be taken into consideration in the context of the principle of proportionality. In that regard, the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and the condition relating to the existence of a present threat must, in principle, be fulfilled at the time when the measure at issue is adopted. As regards, moreover, the possible expulsion of the third-country national concerned, it is necessary, first, to take account of the fundamental rights whose observance the Court ensures, in particular the right to respect for private and family life, as laid down in Article 7 of the Charter of Fundamental Rights of the European Union, and, secondly, to observe the principle of proportionality. Article 7 of the Charter must be read in conjunction with the obligation to take into consideration the child’s best interests, recognised in Article 24(2) thereof. (see paras 61, 62, 65-67, 88, operative part) 5. Article 20 TFEU must be interpreted as precluding national legislation which requires a third-country national who is a parent of minor children who are Union citizens in his sole care to be automatically refused the grant of a residence permit on the sole ground that he has a criminal record, where that refusal has the consequence of requiring those children to leave the territory of the European Union. Although Article 20 TFEU does not affect the possibility of Member States relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security, in so far as the situation of that third-country national falls within the scope of EU law assessment of his situation must take account of the right to respect for private and family life, as laid down in Article 7 of the Charter of Fundamental Rights of the European Union, an article which must be read in conjunction with the obligation to take into consideration the child’s best interests, recognised in Article 24(2) of the Charter. Furthermore, as a justification for derogating from the right of residence of Union citizens or members of their families, the concepts of ‘public policy’ and ‘public security’ must be interpreted strictly, so that their scope cannot be determined unilaterally by the Member States without being subject to control by the EU institutions. The concept of ‘public policy’ presupposes, in any event, the existence, in addition to the disturbance of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The concept of ‘public security’ covers both the internal security of a Member State and its external security; consequently, a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security. In this context, where refusal of the right of residence is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security, in view of the criminal offences committed by a third-country national who is the sole carer of children who are Union citizens, such refusal would be consistent with EU law. On the other hand, that conclusion cannot be drawn automatically on the basis solely of the criminal record of the person concerned. It can result, where appropriate, only from a specific assessment by the national court of all the current and relevant circumstances of the case, in the light of the principle of proportionality, of the child’s best interests and of the fundamental rights whose observance the Court ensures. That assessment must therefore take account, in particular, of the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the children at issue and their state of health, as well as their economic and family situation. (see paras 81-88, operative part)