Opinion of the Advocate General — ECLI:EU:C:2004:700
Date: 2004-11-09
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary of the Judgment 1. Freedom of movement for persons – Right of residence for third-country nationals who are members of the family of Community nationals – National law making the grant of a residence permit conditional on obtaining a residence visa before entry onto the national territory – Not permissible (Council Directives 68/360, 73/148 and 90/365) 2. Freedom of movement for persons – Derogations – Decisions concerning control of aliens – Failure to comply with the time-limit for taking a decision on whether to grant a residence permit – Not permissible – Right to reside provisionally in the national territory while awaiting the decision – No effect (Council Directive 64/221) 1. A Member State which requires third-country nationals, who are members of the family of a Community national who has exercised his right to freedom of movement, first to obtain a residence visa for a residence permit to be issued fails to fulfil its obligations under Directives 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services and 90/365 on the right of residence for employees and self-employed persons who have ceased their occupational activity. It is true that the Member States may, in accordance with Article 3(2) of those directives, when a national of a Member State moves within the Community with a view to exercising the rights conferred on him by the Treaty and those directives, demand an entry visa or an equivalent document from members of his family who are not nationals of one of those States. They must, however, grant every facility for obtaining any necessary visas. In that regard, the Court has held that if the provisions of Directives 68/360 and 73/148 are not to be denied their full effect, a visa must be issued without delay and, as far as possible, at the place of entry into national territory. (see paras 32-33, 36, 38, 49, operative part) 2. A Member State which fails to issue a residence permit as soon as possible, and in any event not later than six months from the date on which the application for that permit was submitted, to third-country nationals who are members of the family of a Community national who has exercised his right to freedom of movement fails to fulfil its obligations under Directive 64/221 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. It is of little importance in that regard that the persons concerned may provisionally reside in the national territory while awaiting the decision concerning the grant or refusal of the residence permit. The question whether the fact that the time-limit is exceeded constitutes an obstacle to taking up residence or exercising an activity is irrelevant. (see paras 47, 49, operative part)