OPINION OF ADVOCATE GENERAL

BOT

delivered on 19 January 2012 ( 1 )

Case C-508/10

European Commission

v

Kingdom of the Netherlands

‛Failure of a Member State to fulfil obligations — Directive 2003/109/EC — Status of third-country nationals who are long-term residents — Amounts of the charges levied for the acquisition of long-term resident status or the grant of a residence permit in another Member State — Excessive or unfair charges — Obstacle to the exercise of the right of residence’

1. The present action for failure to fulfil obligations concerns the application of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. ( 2 )

2. The European Commission seeks a declaration from the Court that, by requiring third-country nationals and members of their families who apply for long-term resident status to pay charges which it considers to be ‘high’ and ‘unfair’, the Kingdom of the Netherlands has failed to fulfil its obligations under the Directive.

3. In this Opinion, I shall ask the Court to find, first, that the action is admissible inasmuch as the Kingdom of the Netherlands is criticised for having undermined, through its national legislation, the objective pursued by the Directive, as interpreted in the light of the recitals in its preamble, and its effectiveness, and inasmuch as the complaint was identified with a sufficient degree of precision in the application made by the Commission.

4. Next, I shall set out the reasons why, in my view, the Member States cannot apply to third-country nationals who apply for the issue of residence documents pursuant to the Directive charges which are either excessive per se or disproportionate by comparison with those which nationals and citizens of the European Union (EU) exercising their right to freedom of movement must pay to obtain similar documents.

5. Finally, I shall submit that the Kingdom of the Netherlands has indeed failed to fulfil its obligations under Article 258 TFEU by levying excessive and disproportionate charges on third-country nationals.

I – Legal context

A – EU law

6. The Directive was adopted on the basis of Article 63, first paragraph, (3) and (4) EC with a view to clarifying the legal status of third-country nationals who are long-term residents in the Member States, whose integration, according to recital 4 in the preamble to the Directive, is considered to be a ‘key element in promoting economic and social cohesion, a fundamental objective of the Community’.

7. The subject-matter of the Directive is twofold. Under Article 1: ‘This Directive determines: (a) the terms for conferring and withdrawing long-term resident status granted by a Member State in relation to third-country nationals legally residing in its territory, and the rights pertaining thereto; and (b) the terms of residence in Member States other than the one which conferred long-term status on them for third-country nationals enjoying that status.

8. Recitals 2, 3, 6, 9, 10 and 18 in the preamble to the Directive are worded as follows: ‘2. The European Council, at its special meeting in Tampere on 15 and 16 October 1999, stated that the legal status of third-country nationals should be approximated to that of Member States’ nationals and that a person who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by citizens of the European Union. 3. This Directive respects the fundamental rights and observes the principles recognised in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union. … 6. The main criterion for acquiring the status of long-term resident should be the duration of residence in the territory of a Member State. … 9. Economic considerations should not be a ground for refusing to grant long-term resident status and shall not be considered as interfering with the relevant conditions. 10. A set of rules governing the procedures for the examination of application for long-term resident status should be laid down. Those procedures should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned. They should not constitute a means of hindering the exercise of the right of residence. … 18. Establishing the conditions subject to which the right to reside in another Member State may be acquired by third-country nationals who are long-term residents should contribute to the effective attainment of an internal market as an area in which the free movement of persons is ensured. It could also constitute a major factor of mobility, notably on the Union’s employment market.’

9. Chapter II of the Directive concerns long-term resident status in a first Member State, while Chapter III lays down the terms of residence of long-term residents or their family members in another Member State.

10. Articles 4 to 6 of the Directive define the substantive conditions governing the grant of long-term resident status and the cases in which that status may be refused. In particular, applicants must have resided legally and continuously within the territory of a Member State for five years immediately prior to the submission of their application. ( 3 ) They must also provide evidence that they have, for themselves and for dependent family members, stable, regular and sufficient resources and sickness insurance. ( 4 ) Finally, they may be required to comply with integration conditions laid down by the Member States in accordance with their national law. ( 5 ) Once applicants have fulfilled these conditions, they may be refused long-term resident status only on grounds of public policy or public security. ( 6 )

11. Articles 11 and 12 of the Directive define the effects of recognition of that status by providing for the principle of equal treatment with nationals in certain spheres and for protection against expulsion.

12. Articles 14 to 16 lay down the conditions under which long-term residents and their family members may exercise a right of residence of more than three months in another Member State. That right is made subject to the submission of a new application for a residence permit, the grant of which Member States may make subject to some of the conditions required for initial access to long-term resident status.

13. The Directive does not contain any provisions relating to the charges that may be levied by Member States in connection with the lodging of an application.

B – National law

14. Article 24(2) of the Law of 23 November 2000 providing for a comprehensive review of the Law on Foreign Nationals (Wet tot algehele herziening van de Vreemdelingenwet) ( 7 ) provides as follows: ‘In the cases determined by [the] Minister and in accordance with the rules which he lays down, a foreign national shall be liable to pay a charge for the processing of an application. To that end, [the] Minister may also provide that a foreign national is liable to pay a charge for the issue of a document evidencing his lawful residence. If payment is not made, the application shall not be considered or the document not issued.’

15. Articles 3.34 to 3.34i of the 2000 Regulation on Foreign Nationals (Voorschrift Vreemdelingen 2000) ( 8 ) fix the charges payable by third-country nationals, with the exception of Turkish nationals applying for a residence permit, as follows: Application type Amount in EUR Article of the 2000 Regulation on Foreign Nationals Long-term resident status 201 Article 3.34g(1) Residence permit for work or study 433 Article 3.34(2)(a) Residence permit for other reasons 331 Article 3.34(2) Residence permit for accompanying family members 188 Article 3.34(2(c) Residence permit for non-accompanying family members 830 (first family member) 188 (other family members) Article 3.34(2)(b)

II – Pre-litigation procedure

16. Taking the view that the Kingdom of the Netherlands had failed to fulfil its obligations, the Commission sent it a letter of formal notice on 27 June 2008, then a reasoned opinion on 23 March 2009, to which the Netherlands authorities replied on 25 August 2008 and 25 May 2009 respectively, disputing the assertion that there had been a failure to fulfil obligations.

17. Judging those responses to be unsatisfactory, the Commission decided to refer the matter to the Court under Article 258 TFEU.

III – The action

18. The Commission claims that the Court should: — declare that, by requiring third-country nationals and their family members applying for long-term resident status to pay high and unfair charges, the Kingdom of the Netherlands has failed to fulfil its obligations under the Directive and, accordingly, its obligations under Article 258 TFEU; and — order the Kingdom of the Netherlands to pay the costs of the proceedings.

IV – Arguments of the parties

A – Admissibility of the action

19. In its defence, the Kingdom of the Netherlands contends that the action is inadmissible for two reasons.

20. First, it submits that, in its application, the Commission does not refer to any binding provision of the Directive, but only to a recital, which has no binding legal value, and to Article 4(3) TEU, to which, however, it refers in a general way without explaining to what extent its complaints are based on that provision.

21. Secondly, it argues that the Commission limited the form of order sought in its application to the charges which third-country nationals are required to pay to obtain the long-term resident status provided for in Chapter II of the Directive, which means that the proceedings cannot relate to the charges imposed on long-term residents who submit an application for residence from a Member State, in accordance with Chapter III of the Directive.

22. In its rejoinder, the Kingdom of the Netherlands challenges the Commission’s entitlement to rely on the Court’s case-law to the effect that an application cannot be held to be inadmissible on the sole ground that the Commission submits that legislation is contrary to the system, scheme or spirit of a directive. ( 9 ) It submits that, in relying on that case-law, the Commission is formulating for the first time in its reply a new complaint which cannot be taken into account by the Court

B – Merits of the action

23. Without disputing the principle of levying charges for issuing long-term residence permits or the margin for manoeuvre which, in the absence of a specific provision in the Directive, the Member States have in determining the amount of those charges, the Commission considers, in the light of recital 10 in the preamble to that directive, that those charges must be ‘fair’ and must not prevent or deter third-country nationals satisfying the conditions laid down there from applying for a residence permit. It argues that the high amount of the charges in force in the Netherlands, which hinders the exercise of the rights enshrined in the EU legislation, compromises the effectiveness of that legislation.

24. The Commission also submits, on the basis of recital 2 in the preamble to the Directive, that the amount of the charges must be ‘comparable’ to that of the charges which EU citizens exercising their right to freedom of movement must pay to obtain similar documents. It considers that the sums charged by the Kingdom of the Netherlands, which are about 7 to 27 times higher than those laid down for EU citizens, are disproportionate and may discourage the persons concerned from exercising their rights.

25. Stating that the purpose of the Directive is similar to that of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, ( 10 ) the Commission argues that third-country nationals are in a situation comparable to that of EU citizens in the context of Directive 2004/38. Referring to Commission v Netherlands, ( 11 ) in which the Court found against the Kingdom of the Netherlands on the ground that it had introduced and maintained in being a system providing for disproportionate charges for the issue of residence permits to Turkish nationals, it considers that the amount of the charges in this case must also, a fortiori, be held to be disproportionate.

26. In its defence, the Kingdom of the Netherlands replies that Directive 2004/38 is irrelevant for the purposes of defining the scope of the concept of a ‘fair’ procedure in recital 10 in the preamble to the Directive, since the first of those directives is more recent than the second and the legal status of third-country nationals is different from that of EU citizens, whose fundamental right to move and reside freely within the territory of the Member States is recognised. Moreover, whereas the Proposal for a Council Directive concerning the status of third-country nationals who are long-term residents ( 12 ) contained a provision on charging for the issue of residence permits, the Directive does not contain any comparable provision. The Kingdom of the Netherlands takes the view therefore that the EU legislature chose to leave to the Member States the power to determine the amount of charges and infers from this that the administrative and judicial review must be confined to the question of whether or not the national legislation is manifestly unreasonable.

27. The Kingdom of the Netherlands goes on to say that the ruling given in Commission v Netherlands in favour of Turkish nationals who enjoy the rights conferred on them, on the one hand, by Article 13 of Association Council Decision No 1/80 ( 13 ) of 19 September 1980 on the development of the Association, ( 14 ) and, on the other hand, by Article 59 of the Additional Protocol, signed on 23 November 1970 in Brussels and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, ( 15 ) is not transposable to the present case, as the Directive contains no ‘standstill’ rule precluding the introduction of new restrictions nor any provision requiring a comparison between the amount of the charges levied on third-country nationals and the amount of the charges sought from EU citizens.

28. Finally, the Kingdom of the Netherlands considers that the Commission has not given a correct account of the scope of the charges payable, for obtaining a right of residence in the Netherlands, by third-country nationals who are long-term residents in another Member State and that it has not shown how the amount of EUR 201 payable for the acquisition of long-term resident status would prevent the rights conferred by the Directive from being exercised. Having stated that applications for the grant of long-term resident status increased rapidly between 2006 and 2009, it points out that that amount, which was fixed in accordance with the general policy of charging applicants the costs incurred by the competent authority in issuing a permit, in no way hinders the exercise of the rights conferred by the Directive.

29. In its reply, the Commission considers that, although, contrary to what it had initially envisaged in the Proposal for a Directive, the EU legislature did not lay down an explicit limit on any charges that may be payable, the margin for manoeuvre retained by the Member States in this respect is not unlimited. In its view, the rule relating to the fixing of charges for EU citizens may be regarded as a reasonable indicator of what third-country nationals can be charged. However, it considers the levying of charges which, in the present case, are 7 to 27 times higher than the amounts that EU citizens must pay to obtain comparable documents to be a measure which might result in third-country nationals choosing not to obtain administrative documents that are essential to the exercise of the rights conferred by the Directive.

30. The Commission also submits that the disproportionate nature of the charges alone justifies the adverse ruling given by the Court in Commission v Netherlands irrespective of the infringement of the special provisions applicable only to Turkish nationals.

31. In its rejoinder, the Kingdom of the Netherlands contends that it must be inferred from recital 10 in the preamble to the Directive, which provides that procedural rules cannot be used as a ‘means’ of hindering the exercise of the right of residence, that those rules may well have the effect of a hindrance, as long as they are not used as an instrument for preventing the exercise of the right of residence.

32. Ultimately, it considers that the situation of third-country nationals wishing to obtain long-term resident status is comparable to that of EU citizens seeking to obtain a permanent right of residence within the meaning of Article 16 of Directive 2004/38, although it points out, on the one hand, that the enquiries to be carried out are considerably more extensive in the case of third-country nationals and, on the other hand, that the document issued to EU citizens is merely declaratory, whereas the residence permit issued to long-term residents alters the law.

33. In its statement in intervention, the Hellenic Republic disputes the relevance of the proportionality criterion proposed by the Commission and considers that, for the purposes of fixing the charges levied for issuing residence permits to long-term residents, account must necessarily be taken of the cost of the administrative services provided in connection not only with the verification and certification of the right of residence but also with the integration of the persons concerned, such as training for migrants in the language, history and culture of the host country.

34. Relying on the Court’s case-law concerning the reimbursement of medical expenses incurred in another Member State, ( 16 ) it considers it necessary to ascertain whether the charges are a necessary and reasonable measure for the purposes of maintaining the financial balance of the national system of immigration administration as a whole.

V – My view

A – Admissibility of the action

35. According to the case-law, the purpose of the pre-litigation procedure in infringement proceedings is to give the Member State concerned the opportunity, on the one hand, to comply with its obligations under EU law and, on the other, to avail itself of its right to defend itself against the complaints formulated by the Commission. ( 17 )

36. Since the proper conduct of that procedure constitutes an essential guarantee not only that the rights of the Member State concerned are protected but also that the dispute forming the subject-matter of any contentious proceedings is clearly defined, it is important that the subject-matter of the complaint on which the Court is called upon to rule be determined precisely.

37. It follows, moreover, from Article 21 of the Statute of the Court of Justice of the European Union and from Article 38(1)(c) of its Rules of Procedure that, in any application lodged under Article 258 TFEU, the Commission is required to indicate in summary form the specific complaints on which the Court is called upon to rule and the legal and factual particulars on which those complaints are based.

38. The Court nevertheless held, in Case C-202/99 Commission v Italy that, where the Commission submits that national legislation is contrary to the system, scheme or spirit of a harmonisation directive, without relating the breach of EU law which results from it to any particular provisions of that directive, its application cannot, on that fact alone, be held to be inadmissible. ( 18 ) In my view, the Commission’s citation of that case-law in its reply is merely a defence against the plea of inadmissibility raised by the Kingdom of the Netherlands in its defence and cannot in any way be regarded as a new complaint which the Court cannot take into account. The Commission cannot, therefore, be criticised for having altered the subject-matter of the alleged failure to fulfil obligations in the course of the proceedings.

39. It is also clear from the Court’s case-law that a failure to fulfil obligations may be constituted by an infringement of the obligation of sincere cooperation between the EU and the Member States, which is laid down in Article 4(3) TEU. ( 19 )

40. An action under Article 258 TFEU may therefore be based on the infringement not only of a particular provision of EU legislation but also of the general obligation to cooperate, which includes the obligation to comply with the objective pursued by that legislation and to refrain from any action which might undermine its effectiveness.

41. It is common ground in this case that the Commission clearly stated in its letter of formal notice, in the operative part of the reasoned opinion and in the form of order sought in the application initiating the proceedings that its criticism was that the Kingdom of the Netherlands had failed to fulfil the obligations laid down by the Directive. Contrary to what that Member State submits, the Commission’s complaint was that it had infringed not the recitals in the preamble to the Directive but a provision of the Directive itself, as interpreted in the light of the recitals in its preamble, by depriving it of its effectiveness through the obstacle that it had placed in the way of the rights which it confers on third-country nationals. The Commission has, from the outset, criticised the Kingdom of the Netherlands for having infringed the general scheme, spirit and purpose of the Directive. The fact that the application refers incidentally to Article 4(3) TEU cannot render it inadmissible.

42. Moreover, the Commission expressly referred in its letter of formal notice, in the reasoned opinion and in the application initiating the proceedings not only to the situation of third-country nationals applying for long-term resident status but also to that of long-term residents in another Member State applying for the right to remain in the Netherlands for themselves or for their family members. It referred not only to the charge of EUR 201 levied on the former, but also to the charges of EUR 331, 433 and 830 levied on the latter and their family members.

43. While it is true that the form of order sought in the application is concerned only with the charges levied on ‘third-country nationals and their family members applying for long-term resident status’, and does not refer to the granting of residence permits to nationals who already enjoy long-term resident status in a first Member State, it would be excessively formalistic to penalise such imprecise drafting by declaring the action to be partially inadmissible when, on the one hand, ‘family members’, expressly mentioned in the form of order sought, are affected only by Chapter III of the Directive and, on the other hand, the form of order sought in the application lodged by the Commission enabled the Kingdom of the Netherlands to identify clearly the obligations which the Commission accused it of having failed to fulfil and, consequently, to submit its observations in defence in order to rebut the complaints raised.

44. I therefore propose that the objection of inadmissibility should be dismissed.

45. I shall now examine the merits of the action.

B – Merits of the action

46. In order to examine the merits of the action, we must, as a first step, determine whether the Member States have an obligation to limit the amount of the charges levied on third-country nationals for the issue of residence documents. In the event that the existence of such an obligation must be recognised, it is necessary, as a second step, to ascertain whether the Kingdom of the Netherlands infringed that obligation by applying to third-country nationals the charges listed in the table in point 15 of this Opinion.

1. The obligation on the Member States to limit the amount of the charges levied on third-country nationals for the issue of residence documents

47. The Proposal for a Directive stated that residence permits had to be issued free of charge or against payment of a sum not exceeding the charges levied on nationals for the issuing of identity cards. ( 20 )

48. That clarification was not reproduced in the Directive, which does not contain any provision limiting the right of the Member States to seek the payment of charges from third-country nationals or their family members. ( 21 ) The removal of that clarification reflects the desire of certain Member States to limit the scope of equal treatment as between third-country nationals, long-term residents and EU citizens. ( 22 )

49. In the absence of a specific provision in the Directive, it is established that the Member States have discretion to make the issue of residence documents subject to the payment of charges and to fix the amount of those charges. Thus, the Directive does not prohibit the Member States either from issuing those documents free of charge or, conversely, from seeking the payment of charges. It remains to be determined whether that discretion is unlimited or, on the contrary, restricted.

50. Since citizenship of the European Union is linked to possession of the nationality of a Member State, the legal status arising from it cannot be applied to third-country nationals. It therefore seems to me to be established that the scheme laid down in Directive 2004/38, which provides that charges must not be levied or, if they are, that they must be equivalent to those imposed on nationals, is not applicable to them. ( 23 )

51. It is also clear that it is not possible to apply to nationals of all third countries the specific protection regime applicable to nationals whose countries are linked to the European Union by an association agreement conferring a privileged status on them. In particular, it is not possible to infer from the Court’s case-law censuring, on the basis of specific provisions, the difference in treatment applied, in the context of charging for residence documents, as between Turkish nationals and citizens of the European Union a general principle to the effect that any third-country national who is a long-term resident qualifies for equal treatment. After all, it was on the basis of the specific ‘standstill’ rule laid down in Article 13 of Decision No 1/80, which prohibits the introduction of new restrictions on the conditions of access to employment applicable to workers and members of their families, that the Court held, in Sahin, ( 24 ) that Turkish nationals could not be subjected to new obligations which are disproportionate as compared with those established for citizens of the European Union. ( 25 ) The judgment in Commission v Netherlands is also based on the application of that condition of proportionality combined with the non-discrimination rule contained in Article 9 of the Association Agreement and Article 10(1) of Decision No 1/80.

52. For all that, I do not think that it is to be inferred from those differences in status that it is not possible to establish any equal treatment as between the rights of third-country nationals and those of EU citizens and that, while it limits the amount of the charges which the latter can be required to pay when applying for the issue of residence documents, the EU legislation leaves it to the discretion of the Member States to fix the amount of the charges that the former must pay when applying for similar documents.

53. On the contrary, I consider that the Member States’ margin for manoeuvre is restricted by two sets of limits.

54. First, the Member States must not use the margin for manoeuvre accorded to them in such a way as would undermine the Directive’s purpose and effectiveness.

55. The Directive, adopted on the basis of Article 63, first paragraph, (3) and (4) EC, creates a process for the gradual integration into the host Member State of third-country nationals who have lawfully settled there on a long-term basis. I would point out that recital 4 in the preamble to the Directive describes the integration of those nationals as a ‘key element in promoting economic and social cohesion, a fundamental objective of the Community stated in the Treaty’.

56. In order to achieve that objective, the Directive proceeds by approximating the situation of a long-term resident to that of an EU citizen, conferring on the former certain rights equivalent to those of the latter. That equivalence approach is apparent from recital 2 in the preamble to the Directive, which refers to the special meeting in Tampere on 15 and 16 October 1999, at the end of which the European Council stated that the legal status of third-country nationals should be approximated to that of Member States’ nationals and that a person who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit should be granted in that Member State a set of uniform rights which are ‘as near as possible to those enjoyed by citizens of the European Union’. Moreover, recital 12 in the preamble to the Directive provides that ‘[i]n order to constitute a genuine instrument for the integration of long-term residents into the society in which they live, long-term residents should enjoy equality of treatment with citizens of the Member State in a wide range of economic and social matters, under the relevant conditions defined by this Directive’. ( 26 )

57. The Directive also facilitates the free movement of third-country nationals who are long-term residents within the European Union. To that end, recital 18 in the preamble to the Directive states that ‘[e]stablishing the conditions subject to which the right to reside in another Member State may be acquired by third-country nationals who are long-term residents should contribute to the effective attainment of an internal market as an area in which the free movement of persons is ensured. It could also constitute a major factor of mobility, notably on the Union’s employment market’.

58. Reflecting that objective of equivalence, the Directive provides for equal treatment as between long-term residents and nationals in various spheres, which are listed in Article 11(1)(a) to (h), and establishes protection against expulsion in accordance with the rules laid down in Article 12. It confers on third-country nationals enjoying long-term resident status in a Member State the right to reside in another Member State, and to be accompanied or joined by their family members.

59. Those rights are conferred under certain substantive and procedural conditions which are set out in the Directive. Articles 4(1) and 5(1) of the Directive, concerning the conditions for acquiring long-term resident status, provide that such status is accorded to third-country nationals who have resided legally and continuously within the host Member State for five years immediately prior to the submission of the application and who have stable, regular and sufficient resources and sickness insurance. Moreover, Article 5(2) of the Directive allows Member States to require compliance with ‘integration conditions [ ( 27 )] in accordance with their national law’. Article 7(1) of the Directive provides that the application must be lodged with the competent authority and that it must be accompanied by documentary evidence, ‘to be determined by national law’, that the applicant meets the conditions set out in Articles 4 and 5 of the Directive and has appropriate accommodation, as well as, if required, a valid travel document or its certified copy. Articles 14 and 15 of the Directive lay down the conditions under which third-country nationals enjoying long-term resident status in a Member State may acquire the right to reside in another Member State and state, in particular, that Member States may require the applicant to provide evidence that he has stable, regular and sufficient resources and sickness insurance and that he complies with ‘integration measures [ ( 28 )], in accordance with national law’.

60. That list is exhaustive. Recital 17 in the preamble to the Directive, which states that ‘[h]armonisation of the terms for acquisition of long-term resident status promotes mutual confidence between Member States [and that] [t]he possibility of applying more favourable national provisions is not excluded by the Treaty’, by converse implication, rules out any right on the part of the Member States to lay down more restrictive provisions. I would point out that recital 10 in the preamble to the Directive also provides that the procedures for examining an application for long-term resident status ‘should not constitute a means of hindering the exercise of the right of residence’. Once they fulfil the conditions laid down, third-country nationals have the right to obtain long-term resident status. ( 29 )

61. Moreover, since the right to the recognition of such status is the general rule, once the condition relating to the duration of residence laid down in Article 4 of the Directive has been met, I consider, by analogy with the ruling given by the Court in Chakroun, ( 30 ) concerning Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, ( 31 ) that the conditions to which Member States may make the acquisition of long-term resident status subject must be interpreted strictly. ( 32 )

62. In those circumstances, I consider that, in order to comply with the provisions of the Directive, the levying of charges on third-country nationals must have neither the object nor the effect of imposing an additional condition for the acquisition of long-term resident status.

63. I infer from this that, in the context of applications for the acquisition of long-term resident status, it is not possible to levy charges which are so high that third-country nationals who do not have sufficient financial resources cannot pay them. Such a requirement would constitute an indirect means of limiting the exercise of the rights conferred by the Directive or of reserving it for the wealthiest third-country nationals, whereas the Directive does not lay down any financial condition other than that the applicant must have stable and regular resources which are sufficient for him to maintain himself and the members of his family without needing to rely on the social assistance system of the Member State concerned.

64. For the same reasons, the right of third-country nationals enjoying long-term resident status in a first Member State to reside in a second Member State cannot, in my view, be limited by excessive charges.

65. The same is true of the right of residence of family members. Article 16(1) of the Directive provides that long-term residents who exercise their right of residence in another Member State for a period of over three months may be accompanied or joined by the family members who resided with them in the first host Member State. Article 16(5) of that directive states that, where the family was not already constituted, Directive 2003/86 will apply. Before issuing the new residence permit, the authorities of the second Member State are entitled to check that the family member has a long-term residence permit or a valid travel document, that he/she has resided as a family member of a long-term resident in the first Member State and that he/she has stable, regular and sufficient resources and sickness insurance. In so far as the conditions exhaustively listed in the Directive are met, the second Member State can no longer refuse residence status other than on grounds of public policy, public security or public health. It follows that the right of the family members of long-term residents to accompany or join those residents cannot, in my view, be made subject to an additional condition relating to the payment of excessive charges without infringing the right to family reunification.

66. I also think that the objective pursued by the Directive of facilitating the integration of long-term residents by placing them, albeit only partly, on the same footing as EU citizens must have as its consequence that the former are treated under conditions comparable to those that govern the latter when applying for the issue of similar documents in similar circumstances under that directive. Even in the absence of any provision relating to the levying of charges, that objective seems to me to render unlawful a difference in treatment which is not justified by any objective reason.

67. Furthermore, the margin for manoeuvre accorded to Member States is restricted by a second set of limits based on respect for fundamental rights.

68. After all, it is clear from the settled case-law of the Court that the requirements flowing from the protection of the general principles recognised in the legal order of the European Union, including fundamental rights, are also binding on Member States when they implement EU rules, and that consequently they are bound, as far as possible, to apply the rules in accordance with those requirements. ( 33 ) Recital 3 in the preamble to the Directive states, moreover, that the Directive respects the fundamental rights and observes the principles recognised in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and by the Charter of Fundamental Rights of the European Union. It follows that the provisions implementing the Directive must be assessed in the light of the fundamental rights and, more specifically, the principle of non-discrimination.

69. Taking into account recital 5 in the preamble to the Directive, which states that ‘Member States should give effect to the provisions of th[e] Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation’, the principle of non-discrimination seems to me to preclude the establishment of charges the amounts of which have a deterrent effect on third-country nationals who do not have sufficient financial resources.

70. In the light of those considerations, I consider that the margin for manoeuvre available to Member States when it comes to fixing the amount of the charges that can be levied on third-country nationals is necessarily limited by the obligation not to prescribe charges which are either excessive per se or disproportionate by comparison with those levied on EU citizens for the issue of similar documents.

71. The Kingdom of the Netherlands and the Hellenic Republic raise two sets of objections to that conclusion. They contend, on the one hand, that the issue of a residence permit alters the law for third-country nationals, meaning that the national authorities have some discretion, whereas it is merely declaratory for EU citizens. On the other hand, they submit that the Member States must pass on to applicants the cost of issuing residence permits. In my view, those two objections must be dismissed for the following reasons.

72. The first objection is based on a theoretical distinction which, in my view, is questionable in terms of both its principle and the effects attaching to it.

73. First, I consider that, in terms of its principle, the distinction between the law-altering effect of issuing a residence permit to ‘aliens in general’ ( 34 ) and the declaratory effect of issuing a similar document to an EU citizen is no longer truly in line with the development of EU law. It is true that, in Sagulo and Others, the Court held, on the one hand, that the issue of a residence permit to an EU citizen who has a right to move and reside in the Member States which is directly conferred by EU law has only a declaratory effect and, on the other hand, that a document of that nature cannot be assimilated to a residence permit entailing a discretion on the part of the national authorities such as that prescribed for aliens in general. ( 35 ) However, in my view, although the first proposition still holds true, the second is no longer fully consistent with the current state of the law.

74. It is, after all, important to bear in mind that various provisions have been introduced which directly confer a right of residence on certain third-country nationals whether or not the authorities of the host Member State have issued a document to that effect. Relying on those provisions, the Court has, by analogy, transposed to those nationals the ruling it gave in relation to EU citizens. It thus held, in an initial series of judgments, that a residence permit issued to Turkish nationals under Decision No 1/80 can only have declaratory and probative value. ( 36 ) In a second series of judgments, it extended the merely declaratory effect of residence permits to third-country nationals who are family members of EU citizens. From the finding that ‘the right of entry into the territory of a Member State granted to a third-country national who is the spouse of a national of a Member State derives from the family relationship alone’ the Court inferred that the issue of a residence permit is to be regarded not as a measure giving rise to rights but as a measure serving to prove the individual position of a national of a third country with regard to EU law. ( 37 )

75. In the light of the rights now conferred on nationals of all third countries by the Directive, it is reasonable to ask, above all, whether the issue of residence permits to those nationals still has the effect of altering the law, in that it creates rights, or whether it is merely declaratory now, inasmuch as it simply recognises a pre-existing situation. It should be pointed out that Article 9(6) of the Directive provides that the expiry of a long-term resident’s residence permit must in no case entail withdrawal or loss of long-term resident status and that Article 7(3) of the Directive provides that, if the conditions provided for by Articles 4 and 5 are met and the person does not represent a threat within the meaning of Article 6, the Member State must ‘grant’ the national concerned long-term resident status. Without disregarding the margin for manoeuvre left to the Member States when it comes both to defining the conditions for acquiring long-term resident status and to determining the rights conferred on third-country nationals and defining the public policy or public security grounds on which that status may be refused, I consider that the use of the present indicative in [the French-language version of] Article 6, which, in the drafting practice usually adopted by the EU legislature, has the value of an imperative, implies the existence of an obligation, preclusive of any discretion, to grant that status once the conditions have been met, so that it is not possible, in my view, to classify the power conferred on the national authorities to issue residence permits under the Directive as discretionary. ( 38 )

76. Even if the view is none the less taken that the issue of a long-term residence permit alters the law, I do not consider that the case has been made for the existence of a relationship of proportionality or indeed of any correlation at all between the extent of the legal effects of an instrument and the cost of that instrument. In other words, it has not been shown that the greater the legal effects that an instrument issued by an authority produces, the more expensive it is for the authority issuing it.

77. Nor am I convinced by the second objection to the effect that the issue of a residence permit to a long-term resident or a member of his family should take into account what such applications actually cost the Member States.

78. It is not insignificant, first, that, although it does not reproduce the provision to the effect that charges should not apply or should be capped, as contained in the Proposal for a Directive, the Directive likewise does not reproduce the Parliament’s amendments which made the charges proportionate to the amount of the administrative costs. I do not therefore see what legal basis there is to support that argument, which cannot in my view, be inferred from a general principle. I must confess here that I am baffled by the parallel which the Kingdom of the Netherlands draws, albeit only in the context of allocating administrative costs, between the situation of third-country nationals applying for a residence permit and that of bovine animals and swine requiring certification for the purposes of their slaughter.

79. Secondly, the Kingdom of the Netherlands has not, in my view, shown that the checks which it makes are more extensive than in the case of an EU citizen. It bases its case on a comparison with the situation of an EU citizen applying for the permanent right of residence provided for in Article 16 of Directive 2004/38 and states that, where an application is submitted by a third-country national, checks must be carried out to ensure the following: that the charges have been paid; that the form has been completed in full; that there is evidence that the applicant resided in the territory of the Kingdom of the Netherlands continuously for five years and that that is still his principal place of residence; that the right of residence was not temporary or formally limited; that there is evidence that he has permanent, independent and sufficient means of subsistence; that he is affiliated to a sickness insurance fund; and that he has no criminal record. The objection may be raised to this argument that a number of the checks which the Kingdom of the Netherlands states that it carries out are identical to those that may be made under Directive 2004/38 where a registration certificate is issued to an EU citizen seeking to benefit from the right of residence for more than three months or where a residence card is issued to the members of his family. ( 39 ) I infer from this that there are no objective reasons capable of justifying a difference in treatment as between EU citizens and third-country nationals exercising their rights under the Directive.

80. Moreover, although the Hellenic Republic submits that the charges levied for issuing a residence permit cover the costs of the administrative services provided in connection not only with the verification and certification of the right of residence but also with the integration of the persons concerned, it should be noted that the Kingdom of the Netherlands has not submitted, in its pleadings, that the charges levied on third-country nationals cover the costs of integration measures. Furthermore, although the Directive makes it possible for the Member States to require third-country nationals to ‘comply with integration conditions, [ ( 40 )] in accordance with their national law’, and although it has been argued that that provision is capable of authorising those Member States to require third-country nationals to pay some or all of the cost of integration measures, ( 41 ) it seems to me that the margin for manoeuvre thus left to those Member States cannot justify undermining the purpose and effectiveness of the Directive by introducing excessive or disproportionate charges.

81. In the light of all the foregoing considerations, I am of the view that the Member States cannot apply to third-country nationals applying for the issue of residence documents under the Directive charges which are either excessive per se or disproportionate by comparison with the charges which nationals and EU citizens exercising their right to freedom of movement must pay to obtain similar documents.

82. It remains to be determined whether the Kingdom of the Netherlands failed to fulfil that obligation.

2. The excessive or disproportionate nature of the charges levied by the Kingdom of the Netherlands

83. Since I consider, for the reasons set out above, that the Directive imposes on the Member States an obligation not to apply charges which are disproportionate by comparison with those levied on nationals of Member States for the issue of similar documents, reference may usefully be made to the assessment of the relationship of proportionality carried out by the Court in Commission v Netherlands.

84. In that judgment, the Court considered charges which varied within a range in which the lowest value was more than two thirds higher than that of the charges applied to EU citizens for the issue of similar documents to be disproportionate.

85. The charges levied on third-country nationals and their family members, which the Kingdom of the Netherlands does not dispute are 7 to 27 times higher than the amounts charged to EU citizens, must, in my view, a fortiori, be considered to be excessive and disproportionate.

86. Consequently, the complaint must, in my view, be declared well founded.

VI – Conclusion

87. In the light of the foregoing considerations, I propose that the Court should rule as follows: (1) By applying to third-country nationals applying for long-term resident status in the Netherlands and to third-country nationals who, being long-term residents in another Member State, seek to exercise their right of residence in the Netherlands and to their family members requesting authorisation to accompany or join them charges which are excessive and disproportionate by comparison with those imposed on nationals of the Member States for issuing similar documents, the Kingdom of the Netherlands has failed to fulfil its obligations under Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. (2) The Kingdom of the Netherlands is ordered to pay the costs.

( 1 ) Original language: French.

( 2 ) OJ 2004 L 16, p. 44; the ‘Directive’.

( 3 ) Article 4(1) of the Directive.

( 4 ) Article 5(1) of the Directive.

( 5 ) Article 5(2) of the Directive.

( 6 ) Article 6(1) of the Directive.

( 7 ) Stb. 2000, No 495.

( 8 ) Stcrt. 2001, No 10.

( 9 ) See Case C-202/99 Commission v Italy [2001] ECR I-9319.

( 10 ) Directive 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 (OJ 2004 L 158, p. 77).

( 11 ) C-92/07 [2010] ECR I-3683.

( 12 ) Proposal presented by the Commission on 13 March 2001 (COM(2001) 127 final; the ‘Proposal for a Directive’).

( 13 ) The Association Council was set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, of the one part, and by the Member States of the EEC and the Community, of the other part (‘the Association Agreement’). That agreement was concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (OJ 1964 217, p. 3685 (not available in English)).

( 14 ) ‘Decision No 1/80’.

( 15 ) OJ 1972 L 293, p. 1 (not available in English).

( 16 ) See, in particular, Case C-512/08 Commission v France [2010] ECR I-8833 and Case C-173/09 Elchinov [2010] ECR I-8889.

( 17 ) See, in particular, Case C-456/03 Commission v Italy [2005] ECR I-5335, paragraph 36.

( 18 ) Paragraph 23.

( 19 ) See Case 240/86 Commission v Greece [1988] ECR 1835, paragraphs 27 and 28; Case 272/86 Commission v Greece [1988] ECR 4875, paragraphs 30 to 32; and Case C-441/06 Commission v France [2007] ECR I-8887, paragraphs 45 to 52.

( 20 ) Article 9(3) and Article 21(4) of the Proposal for a Directive. That wording was reproduced almost verbatim in Article 25(2) of Directive 2004/38, which provides that all residence documents ‘shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents’.

( 21 ) I note that the European Parliament, in its report on the proposal for a Council Directive concerning the status of third-country nationals who are long-term residents (A5-0436/2001), had proposed that Article 9(3) be worded as follows:

‘A long-term resident’s EC residence permit shall be issued against payment of a sum sufficient to cover the administrative costs and which does not exceed the charges required of nationals for the issuance of identity cards. Member States may stipulate that permits shall be issued free of charge.

Similarly, Article 21(4) was amended as follows:

‘Permits shall be issued against payment of a sum not exceeding the administrative costs, which should not exceed the charges required of nationals for the issuance of identity cards. Member States may provide for issue free of charge.’

( 22 ) See Peers, S. and Rogers, N., EU Immigration and Asylum Law, Leyde, p. 627.

( 23 ) See, to this effect, point 54 of my Opinion in Case C-371/08 Ziebell [2011] ECR I-12735.

( 24 ) Case C-242/06 [2009] ECR I-8465.

( 25 ) Paragraph 71.

( 26 ) As I pointed out in the footnote on page 36 of my Opinion of 13 December 2011 in Case C-571/10 Kamberaj, pending before the Court, the objective of integration is similarly affirmed in recitals 2, 3 and 6 in the preamble to Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Directive 2003/109 (OJ 2011 L 132, p. 1).

( 27 ) My emphasis.

( 28 ) Idem.

( 29 ) See to this effect Groenendijk, K., ‘The Long-Term Residents Directive, Denizenship and Integration’, Whose Freedom, Security and Justice?, Hart Publishing, 2007, p. 429, especially p. 440.

( 30 ) Case C-578/08 [2010] ECR I-1839.

( 31 ) OJ 2003 L 251, p. 12.

( 32 ) Chakroun, paragraph 43.

( 33 ) Case C-117/06 Möllendorf and Möllendorf-Niehuus [2007] ECR I-8361, paragraph 78.

( 34 ) The expression is taken from Case 8/77 Sagulo and Others [1977] ECR 1495, paragraph 8.

( 35 ) Idem.

( 36 ) See to this effect, in particular, Case C-329/97 Ergat [2000] ECR I-1487, paragraph 62 and the case-law cited.

( 37 ) See, in particular, Case C-157/03 Commission v Spain [2005] ECR I-2911, paragraph 28 and the case-law cited.

( 38 ) See, to this effect, Illamola Dausà, M., ‘Égalité et intégration’, La politique européenne d’immigration et d’asile: bilan critique cinq ans après le traité d’Amsterdam, Bruylant, Brussels, 2005, p. 175. This author describes the Member States’ power as ‘circumscribed’ (p. 187).

( 39 ) I would point out in particular that the right to reside for more than three months enjoyed by an EU citizen who is neither a worker nor a student is subject to two conditions which are almost identical to those that govern the grant of long-term resident status, since, under Article 7(1)(b) of Directive 2004/38, foreigners must show that they have comprehensive sickness insurance cover in the host Member State and 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.

( 40 ) My emphasis.

( 41 ) See, for the history of this wording, Groenendijk, K., ‘Legal concepts of integration in EU Migration Law’, European Journal of Migration and Law, No 2, Vol. 6, 2007, p. 111.