Judgment;Summary — ECLI:EU:C:2019:993
Date: 2019-11-20
Language of the case: Dutch
Court formation: Sixth Chamber
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the relevant arguments of the parties 
2.1. The applicant alleges, in her first plea, an infringement of Article 10b of the 
wet van 15 december 1980 betreffende de toegang tot het grondgebied, het 
verblijf, de vestiging en de verwijdering van vreemdelingen (‘the 
Vreeemdelingenwet’), of the substantive obligation to state reasons and of the 
principle of the duty of care. The applicant explains that she submitted her 
application for a visa on 24 October 2013, whereas the contested decision was not 
taken until 16 June 2014 and notified on 7 July 2014. The applicant cites 
Article 10b, §2 of the Vreemdelingenwet, which states that ‘the decision in 
respect of an application to obtain a residence permit shall be taken and notified 
as quickly as possible and at the latest six months after the date on which the 
application was submitted, as determined in §1.’ [...] ‘If, after expiry of the six-
month period following the date on which the application was submitted, which 
may have been extended in accordance with paragraph 2, no decision has been 
taken at all, the residence permit must be granted.’ The applicant argues that the 
law is clear. In the absence of a decision within a period of six months, or of a 
reasoned decision to extend the period, quod in casu, the applicant must 
automatically be granted ‘a residence card for a member of the family of an EU 
citizen’.  
2.2. The defendant replies in a note with comments that, in accordance with 
Article 12a, §2, third and fifth paragraphs, of the Vreemdelingenwet, a decision to 
extend the deadline was taken on 24 April 2014. It states that that decision is in 
the administrative file. The defendant argues that there is therefore no question of 
the decision-making period being exceeded.  
The applicable national law and EU law 
X 
 
5 
2.3. Article 10, §1, first paragraph, 3°, first indent, of the Vreemdelingenwet — 
which is applicable to the applicant’s situation, rather than Article 10a of the latter 
law as cited by the applicant — reads as follows: 
‘§1 Subject to the provisions of Articles 9 and 12, the following are automatically 
permitted by law to stay in the Rijk [Kingdom of Belgium] for more than three 
months: 
1° [...] 
2° [...] 
3° [...]; 
4° the following members of the family of a foreign national [who, at least twelve 
months previously, was allowed or authorised to reside indefinitely in Belgium, or 
who, at least twelve months previously, was authorised to settle there.] That 
period of 12 months shall lapse if the marital bond or the registered partnership 
already existed before the arrival in Belgium of the foreign national who is 
seeking admission or if they have a common minor child. Those conditions with 
regard to the nature of the stay and the duration of the stay do not apply if it 
concerns the family members of a foreign national who, in accordance with 
Article 49, § 1, second or third paragraph, or Article 49/2, §1, second or third 
paragraph, was granted permission to reside in Belgium as a beneficiary of 
international protection status:  
– the foreign spouse or the foreign national with whom a registered partnership 
was concluded that is considered equivalent to marriage in Belgium, who is 
coming to live with him, provided that both are over the age of twenty-one. 
However, that minimum age shall be reduced to eighteen years if, as the case may 
be, the marital bond or registered partnership already existed before the foreign 
national who is seeking admission, arrived in Belgium [..]’  
2.4. Article 12a, §2, of the Vreemdelingenwet read as follows at the time when 
the contested decision was taken: 
‘If the foreign national referred to in §1 submits his application to the Belgian 
diplomatic or consular representative who has jurisdiction for his place of 
domicile or his place of residence abroad, documents must be submitted together 
with the application that show that he meets the conditions set out in Article 10, 
§§ 1 to 3, inter alia, a medical certificate showing that he is not suffering from 
one of the diseases listed in the annex to the present Law, and, if he is older than 
eighteen years, an extract from the criminal records or an equivalent document. 
[Or. 4] 
The date of submission of the application is that on which all evidence is 
submitted, in accordance with Article 30 of the wet van 16 juli 2004 houdende het 
Wetboek van internationaal privaatrecht (Law of 16 July 2004 laying down the 
REQUEST FOR A PRELIMINARY RULING OF 8. 11. 2018 — CASE C-706/18 
 
6  
Code of Private International Law) or international agreements on the same 
subject matter.  
The decision regarding the residence permit shall be taken and notified as soon as 
possible and no later than six months following the date of submission of the 
application, as stipulated in the second paragraph. The decision shall be taken 
with due consideration of all the elements of the file.  
If the condition relating to the adequacy of the means of subsistence referred to in 
Article 10, §5, is not met, the Minister or his authorised representative should 
determine, on the basis of the personal needs of the foreign national who is 
seeking admission and of his family members, what means of subsistence they 
require to meet their needs without being a burden on the public authorities. The 
minister or his authorised representative may require the foreign national to 
submit any documents and information which may be useful for determining that 
amount. 
In special circumstances related to the complex nature of the examination of the 
application, as well as in the context of an investigation into a marriage as 
referred to in Article 146a of the Burgerlijk Wetboek (Civil Code) or the 
conditions applicable to a partnership referred to in Article 10, §1, first 
paragraph, 5 °, the Minister or his authorised representative may extend that term 
twice, by a period of three months. This shall be done by means of a reasoned 
decision that must be brought to the attention of the applicant.  
If no decision has been taken after the expiry of the six-month period following the 
date on which the application was submitted, which may have been extended in 
accordance with paragraph 5, the residence permit must be issued.’  
That statutory provision is still in force today, except that the decision-making 
period has been extended from six to nine months, which can then be extended by 
two three-month periods.  
2.5. Article 10, §1, first paragraph, 3°, first indent, of the Vreemdelingenwet 
concerns a transposition of Article 4(1)(a) of Council Directive 2003/86/EC of 
22 September 2003 on the right to family reunification (‘Directive 2003/86/EC’), 
which reads as follows:  
‘The Member States shall authorise the entry and residence, pursuant to this 
Directive and subject to compliance with the conditions laid down in Chapter IV, 
as well as in Article 16, of the following family members: (a) the sponsor’s 
spouse’.  
2.6. Article 12a, §2, of the Vreemdelingenwet transposes Article 5(4) of 
Directive 2003/86/EC, which reads as follows: 
‘The competent authorities of the Member State shall give the person, who has 
submitted the application, written notification of the decision as soon as possible 
X 
 
7 
and in any event no later than nine months from the date on which the application 
was lodged.  
In exceptional circumstances linked to the complexity of the examination of the 
application, the time limit referred to in the first subparagraph may be extended.  
Reasons shall be given for the decision rejecting the application. Any 
consequences of no decision being taken by the end of the period provided for in 
the first subparagraph shall be determined by the national legislation of the 
relevant Member State.’  
2.7. Article 3(5) of Directive 2003/86/EC reads as follows: 
‘This Directive shall not affect the possibility for the Member States to adopt or 
maintain more favourable provisions.’ [Or. 5] 
Overview of the national case-law in the present case 
2.8. In its judgment of 13 March 2018 [...], the Raad van State annulled the 
judgment of the Raad of 15 July 2016 [...].  
[arguments of the parties in the previous proceedings before the Raad van State] 
[...] 
2.9. The Raad van State ruled as follows in its judgment: 
(a) Article 12a, §2, fifth paragraph, of the Vreemdelingenwet provides that the 
extension of the decision-making period should take place by means of ‘a 
reasoned decision that shall be brought to the attention of the applicant’. The 
mere fact that a decision to extend the decision-making period is included in the 
administrative file, as in the present case, is not sufficient evidence that the 
decision-making period has been lawfully extended. That requires that such a 
decision, which must be reasoned, be served on the applicant, something which 
did not happen in the present case. 
(b) Apart from the possibility of a decision to extend the period which is not 
applicable in the present case, the decision-making period and the consequences 
of exceeding it, as laid down in Article 12a, §2, of the Vreemdelingenwet, in 
particular the granting of the residence permit, apply without exception, even if 
there is doubt about the marriage. The Raad van State states in this regard that ‘the 
law does not make provision for any exceptions to the aforementioned obligation 
on the basis of any possible grounds for refusal’, relying in this regard on 
passages from two judgments of the Grondwettelijk Hof (Constitutional Court), 
namely:  
- the finding [...] of the judgment of the Constitutional Court of 4 November 2010 
[...] (‘Article 12a, § 2, third to fifth paragraph, of the Vreemdelingenwet provides 
REQUEST FOR A PRELIMINARY RULING OF 8. 11. 2018 — CASE C-706/18 
 
8  
a double guarantee for the foreign national concerned: on the one hand, the 
authority is obliged to decide on the application for family reunification within a 
set period, so that the person concerned is not left in a state of uncertainty for too 
long about the outcome of his application; on the other hand, the permit must be 
granted if no decision has been taken within the prescribed period, thus protecting 
the foreign national concerned if the public authorities do not respect the 
prescribed period or do not take any decision at all.’);  
- the finding [...] of the judgment of the Constitutional Court of 26 September 
2013 [...] (‘Pursuant to Article 12a, §2, of the wet van 15 december 1980, the 
decision on the application for a residence permit for a member of the family of a 
foreign national must be taken as quickly as possible and no later than six months 
after the date of application. In exceptionally complex cases, that period may be 
extended twice by a period of three months, so that in any event a decision must 
be taken within a period of one year from the date of the application’).  
2.10. On the basis of the foregoing, the Council of State decides as follows: ‘The 
Raad voor Vreemdelingenbetwistingen could not therefore, without infringing 
Article 12a, §2, third and sixth paragraphs, of the Vreemdelingenwet, rule that the 
period laid down in those provisions does not apply if the defendant were to 
determine, after the prescribed period has expired, that the required marriage 
bond has not been demonstrated, and were to reject the application.’ 
Reasons for the referral 
2.11. The main point of the current discussion concerns the question whether in 
the situation of a foreign national — who requests family reunification with a 
third-country national who has been recognised in Belgium as a refugee, but who 
does not demonstrably meet the prescribed conditions of residence — the Belgian 
authorities should proceed with the automatic issuing of a residence card, if a 
decision by the competent authority has not been taken within the prescribed 
decision-making period.  
2.12. As already stated above, the Raad van State has ruled in this regard that 
Article 12a, §2, of the Vreemdelingenwet means that the applicant — who has not 
provided adequate proof of the required marriage bond — should automatically be 
issued with a residence card, if a decision is not taken within the prescribed 
decision-making period. To that end, the Raad van State refers to the clear 
wording of the aforementioned legal provision, which does not make provision for 
exceptions based on the ground for refusal [Or. 6], basing itself rather on the 
interpretation given to the aforementioned statutory provision by the 
Grondwettelijk Hof in the judgments of 4 November 2010 [...] and of 
26 September 2013 [...].  
2.13. According to Article 15 of the gecoördineerde wetten van 12 januari 1973 
op de Raad van State (Coordinated Laws of 12 January 1973 on the Council of 
State), ‘the administrative courts to which the Raad van State has referred the 
X 
 
9 
case after a judgment in cassation, must act in accordance with that judgment 
with regard to the point of law settled therein’. Thus the Raad is bound by the 
resolution of the present point of law as set out in paragraph 2.10, namely, that 
Article 12a, §2, of the Vreemdelingenwet provides that, in the absence of a 
decision within the prescribed decision-making period, the applicant must be 
granted an automatic right of residence, notwithstanding that the marriage bond 
has not been demonstrated in the present case.  
2.14. As has already been stated above, Article 12a, §2, of the Vreemdelingenwet 
transposes Article 5(4) of Directive 2003/86/EC. In this respect, it should be noted 
that national provisions and regulations, in the context of the principles of the 
primacy and the full effectiveness of EU law, must be interpreted in conformity 
with EU law (Court of Justice, 5 October 2004, C-397/01 to C-403/01, Pfeiffer, 
paragraph 114; Court of Justice, 23 April 2009, C-378/07, RvV 204 065 — page 8 
Angelidaki and Others, paragraphs 197 and 198; Court of Justice, 19 January 
2010, C-555/07, Kücükdeveci, paragraph 48; Court of Justice, 13 November 1990, 
C-106/89, Marleasing, paragraph 8). In order to be able to resolve the current 
dispute, the Raad should ascertain whether the ruling set out in paragraph 2.10 — 
by which the Raad is bound — is in conformity with the Directive.  
2.15. The Raad points out in this regard that a similar, but not identical, dispute to 
the present case has already been submitted to the Court of Justice. A question 
was referred for a preliminary ruling on the interpretation of Article 10(1) of 
Directive 2004/38/EC, in which, inter alia, it was asked whether the latter 
provision precluded a residence card of a member of the family of a Union citizen 
from being automatically — i.e. without assessing whether the residence 
conditions are met — granted to an applicant if the decision-making period had 
been exceeded. In that regard, the Court of Justice ruled that ‘Directive 2004/38 
must be interpreted as precluding national legislation, such as that at issue in the 
main proceedings, which requires competent national authorities to issue 
automatically a residence card of a family member of a European Union citizen to 
the person concerned, where the period of six months, referred to in Article 10(1) 
of Directive 2004/38, is exceeded, without finding, beforehand, that the person 
concerned actually meets the conditions for residing in the host Member State in 
accordance with EU law.’ In addition, paragraphs 45 and 46 state that ‘In that 
regard, it should be noted that Directive 2004/38 does not contain any provision 
governing the consequences of the period referred to in Article 10(1) of Directive 
2004/38 being exceeded, as that issue comes, in principle, within the scope of the 
procedural autonomy of the Member States, subject to compliance with the 
principles of effectiveness and equivalence [...] On that basis, while EU law in no 
way precludes the Member States establishing rules on implicit acceptance or 
authorisation, such rules must nevertheless not impair the effectiveness of EU 
law.’ 
The Court of Justice continues in paragraphs 49 and 50 that ‘the declaratory 
character of residence permits means that those permits merely certify that a right 
already exists for the person concerned [...] It follows that Article 10(1) of 
REQUEST FOR A PRELIMINARY RULING OF 8. 11. 2018 — CASE C-706/18 
 
10  
Directive 2004/38 precludes the residence card of a family member of a Union 
citizen being issued to a third-country national who does not meet the 
requirements set out by that article for its allocation.’ 
In paragraph 55 the Court of Justice states that ‘Such a system, in so far as it 
allows residence cards to be issued to persons who do not qualify for them, is 
contrary to the objectives of Directive 2004/38.’ (Court of Justice, 27 June 2018, 
C-246/17, Diallo v Belgium). 
2.16. The abovementioned Diallo judgment of the Court of Justice was delivered 
after the judgment in cassation of the Raad van State of 13 March 2018 [...]. 
2.17. The Raad points out that ruling that members of the family of third-country 
nationals are entitled to the automatic issue of a residence permit if a decision has 
not been taken within the prescribed time limit — without it being established that 
that person actually complies with the conditions to be met in accordance with EU 
law in order to reside in Belgium — would mean that members of the family of 
third-country nationals would be treated more favourably than members of the 
family of Union citizens. After all, according to the Diallo judgment, the latter 
family members are not entitled to the automatic issue of a residence card. The 
Raad notes in this regard that the residence cards as referred to in Directive 
2003/86/EC, as well as the residence cards as referred to in Directive 2004/38/EC, 
are declaratory in nature [Or. 7]. It could also be pointed out here that Directive 
2003/86/EC — just like Directive 2004/38/EC — has the objective of determining 
the conditions for the exercise of the right to family reunification. The Raad 
reiterates in this regard that the Court of Justice has already held, in paragraph 55 
of the Diallo judgment, that the abovementioned objective would be undermined 
if national legislation permits a residence card to be issued even though the basic 
conditions are not met.  
2.18. In order to be able to deliver judgment in the present case, the Raad 
considers it necessary for the Court of Justice to rule on the question whether 
Directive 2003/86/EC — having regard to Articles 3(5) and 5(4), as well as the 
objective thereof — also precludes the automatic issue of a residence card.  
2.19. Having regard to all of those factors, the following question is referred to the 
Court of Justice for a preliminary ruling: 
‘Does Directive 2003/86/EC — having regard to Article 3(5), as well as the 
objective thereof, in particular, the determination of the conditions for the exercise 
of the right to family reunification — preclude national legislation which requires 
that Article 5(4) of Directive 2003/86/EC be interpreted as meaning that the 
consequence of no decision having been taken by the expiry of the prescribed 
period is that national authorities are under an obligation to grant, of their own 
motion, a residence permit to the person concerned, without first establishing that 
that person in fact satisfies the conditions for residence in Belgium in conformity 
with EU law?’  
X 
 
11 
2.20. [...]. [procedural information] 
3 [procedural information] 
[...] 
4 [procedural information] 
[...] [Or. 8] 
FOR THOSE REASONS, THE RAAD VOOR 
VREEMDELINGENBETWISTINGEN RULES AS FOLLOWS: 
Article 1 
[procedural information] 
[...] 
Article 2 
[procedural information] 
[...] 
Article 3 
The following question is referred to the Court of Justice of the European Union 
for a preliminary ruling: 
‘Does Directive 2003/86/EC — having regard to Article 3(5), as well as the 
objective thereof, in particular, the determination of the conditions for the exercise 
of the right to family reunification — preclude national legislation which requires 
that Article 5(4) of Directive 2003/86/EC be interpreted as meaning that the 
consequence of no decision having been taken by the expiry of the prescribed 
period is that national authorities are under an obligation to grant, of their own 
motion, a residence permit to the person concerned, without first establishing that 
that person in fact satisfies the conditions for residence in Belgium in conformity 
with EU law?’  
Article 4 
[costs and signature] 
[...]