Case C‑246/17

Ibrahima Diallo

v

État belge

(Request for a preliminary ruling from the Conseil d’État (Belgium))

(Reference for a preliminary ruling — Citizens of the European Union — Directive 2004/38/EC — Article 10(1) — Application for a residence card as a family member — Issuing — Time limit — Adoption and notification of the decision — Consequences of non-compliance with the period — Procedural autonomy of Member States — Principle of effectiveness)

Summary — Judgment of the Court (First Chamber), 27 June 2018

Citizenship of the Union—Right to move and reside freely in the territory of the Member States—Directive 2004/38—Issuing of a residence card of a family member of a Union citizen—Decision of refusal—Judicial annulment of that decision—Effects—No automatic opening of a new period of six months

Citizenship of the Union—Right to move and reside freely in the territory of the Member States—Directive 2004/38—Issuing of a residence card of a family member of a Union citizen—Declaratory character not creating rights—Effects

Citizenship of the Union—Right to move and reside freely in the territory of the Member States—Directive 2004/38—Issuing of a residence card of a family member of a Union citizen—Time limit—Non-compliance—Consequences—National legislation requiring automatic issuance where the time period provided is exceeded—Not permissible/unlawful

Citizenship of the Union—Right to move and reside freely in the territory of the Member States—Directive 2004/38—Issuing of a residence card of a family member of a Union citizen—Time limit—Obligation to adopt and notify the decision on the application for a residence card within six months

Article 10(1) 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 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, must be interpreted as meaning that the decision on the application for a residence card of a family member of a Union citizen must be adopted and notified within the period of six months laid down in that provision. As noted by the Advocate General in point 44 of his Opinion, the use of the words ‘no later than six months from the date on which they submit the application’ clearly indicates that the Member States must issue a residence card of a family member of a Union citizen to the person concerned within that period. The concept of ‘issuing’, referred to in Article 10(1) of Directive 2004/38, implies — as noted, in essence, by the Advocate General in points 45 and 46 of his Opinion — that, within the period of six months laid down in that provision, the competent national authorities must examine the application, adopt a decision and, in the case where the applicant qualifies for the right of residence on the basis of Directive 2004/38, issue that residence card to that applicant. Accordingly, the obligation for Member States to issue the residence card to a family member of a Union citizen within the mandatory period of six months provided for in Article 10(1) of Directive 2004/38 necessarily implies the adoption and notification of a decision to the person concerned before that period expires. The same applies when the competent national authorities refuse to issue the residence card of a family member of a Union citizen to the person concerned. (see paras 35, 36, 38, 39, 43, operative part 1)

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 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 (see, to that effect, judgment of 17 March 2016, Bensada Benallal, C‑161/15, EU:C:2016:175, paragraph 24). 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. In those circumstances, while there is nothing to prevent national legislation from providing that silence on the part of the competent administration for a period of six months from the lodging of the application constitutes a refusal, the very terms of Directive 2004/38 preclude that silence from constituting an acceptance. (see paras 45, 46, 51, 56, operative part 2)

See the text of the decision. (see paras 48-50)