OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 27 June 2018 ( 1 )

Case C‑257/17

C

and

A

v

Staatssecretaris van Veiligheid en Justitie

(Request for a preliminary ruling

from the Raad van State (Council of State, Netherlands))

(Reference for a preliminary ruling — Exclusion from the scope of Directive 2003/86 — Provisions of EU law made directly and unconditionally applicable by national law — Jurisdiction of the Court — Right to family reunification — Article 15(1) and (4) — Refusal to grant an autonomous residence permit to a third country national after five years of residence in the Member State — National legislation providing for a requirement to pass a civic integration examination — Procedural condition — Date of submission of an application for autonomous residence as the date on which an autonomous residence permit takes effect)

I. Introduction

1. In the present reference for a preliminary ruling, made by the Raad van State (Council of State, Netherlands), the Court is, first, called upon to give a ruling on its own jurisdiction to interpret Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, ( 2 ) in a context in which the situations at issue in the case in the main proceedings are expressly excluded from the scope of that measure. The national law transposing that directive has unilaterally sought to extend the scope of the directive with a view to covering such situations.

2. Second, the Court is asked to answer the question whether EU law precludes a Member State from requiring third country nationals who have a right of residence by virtue of family reunification and wish to obtain an autonomous residence permit, independent of that of the sponsor, to pass a new civic integration examination beforehand, and, therefore, from which date that autonomous permit has effect.

3. Although the Court has already had to rule on the integration measure provided for in Article 7 of Directive 2003/86 and assess whether the civic integration examination which is required in the Netherlands is a permissible ‘integration measure’ which the Member State may impose under that provision on a third country national who wishes to benefit from family reunification, it has however never been asked whether, under Article 15(4) of that directive, an applicant for an autonomous residence permit may be required to submit to a second civic integration examination in order to obtain a right of residence which is independent of that of the sponsor.

II. Legal context

A. EU law

4. It follows from recital 2 of Directive 2003/86 that ‘measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law. This Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union’.

5. Under recital 4 of Directive 2003/86, ‘family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty’.

6. Recital 6 of Directive 2003/86 states that ‘to protect the family and establish or preserve family life, the material conditions for exercising the right to family reunification should be determined on the basis of common criteria’.

7. According to recital 15 of Directive 2003/86, ‘the integration of family members should be promoted. For that purpose, they should be granted a status independent of that of the sponsor, in particular in cases of breakup of marriages and partnerships, and access to education, employment and vocational training on the same terms as the person with whom they are reunited, under the relevant conditions’.

8. Article 1 of Directive 2003/86 reads as follows: ‘The purpose of this Directive is to determine the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States.’

9. Article 2(d) of Directive 2003/86 states that for the purposes of this Directive: ‘(d) “family reunification” means the entry into and residence in a Member State by family members of a third country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident’s entry.’

10. Article 3(3) of Directive 2003/86 provides that ‘this Directive shall not apply to members of the family of a Union citizen’.

11. Article 7(2) of Directive 2003/86 states that ‘Member States may require third country nationals to comply with integration measures, in accordance with national law’.

12. Under Article 15(1), (3) and (4) of Directive 2003/86: ‘1. Not later than after five years of residence, and provided that the family member has not been granted a residence permit for reasons other than family reunification, the spouse or unmarried partner and a child who has reached majority shall be entitled, upon application, if required, to an autonomous residence permit, independent of that of the sponsor. … 3. In the event of widowhood, divorce, separation, or death of first-degree relatives in the direct ascending or descending line, an autonomous residence permit may be issued, upon application, if required, to persons who have entered by virtue of family reunification. Member States shall lay down provisions ensuring the granting of an autonomous residence permit in the event of particularly difficult circumstances. 4. The conditions relating to the granting and duration of the autonomous residence permit are established by national law.’

B. Netherlands law

13. According to the referring court, the fixed-term residence permit accompanied by a restriction termed ‘non-temporary humanitarian grounds’ reproduces, in essence, the content of Article 15 of Directive 2003/86 concerning the conditions for the granting of an autonomous permit.

14. Article 26(1) of the Vreemdelingenwet 2000 (Law on Foreign Nationals, ‘the Vw 2000’), of 23 November 2000, provides that ‘the residence permit, which means — by operation of law — that the holder is lawfully resident, shall be granted with effect from the date on which the foreign national has shown that he has satisfied all the conditions, and at the earliest from the date on which the application is received’.

15. Article 3.51(1)(a) and (5) of the Vreemdelingenbesluit 2000 (Decree on Foreign Nationals 2000, ‘the Vb 2000’) provides that ‘the fixed-term residence permit within the meaning of Article 14 of the Vw 2000 may be made subject to a restriction relating to non-temporary humanitarian grounds on a foreign national who: (a) has resided for five years in the Netherlands as the holder of a residence permit subject to the restriction provided for in point 1o …: 1o residence as the family member of a person holding a permanent right of residence; … 5. Article 3.80a [of the Vb 2000] shall apply to the foreign nationals referred to in paragraph 1(a)(1) …’.

16. Article 3.80a(1), (2) and (4) of the Vb 2000 provides: ‘1. [An] application to change a residence permit … into a residence permit subject to a restriction relating to non-temporary humanitarian grounds shall be rejected where the application has been made by a foreign national within the meaning of Article 3.51(1)(a)(1), who has not passed the examination provided for in Article 7(2)(a) of the Wet inburgering [Law on Civic Integration, (‘the Wi’)] or has not obtained a diploma, certificate or another document within the meaning of Article 5(1)(c) of that law. 2. Paragraph 1 shall not apply if the foreign national: … e. has been exempted from the civic integration requirement on the basis of either Article 6(1)(a) or (b) of the Wi’ … … 4. In addition, the Minister may not apply paragraph 1 if he considers that the application of that provision leads to manifest situations of serious injustice.’

17. Pursuant to Article 6(1)(a) or (b) of the Wi: ‘1. The Minister shall exempt a person subject to the civic integration requirement from that requirement where: a. that person has shown that, owing to a psychological or physical disability or a mental deficiency, he is permanently incapable of passing the civic integration examination; b. on the basis of the demonstrable efforts of the person subject to the civic integration requirement, the Minister comes to the view that that person cannot reasonably satisfy the civic integration requirement ...’

III. The disputes in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

A. The facts in the main proceedings

18. The first appellant in the main proceedings, C (‘appellant C’ or ‘C’) is a national of a third country (China). Since 5 November 2008 she had held a residence permit to reside with a spouse, which was valid until 5 November 2014. On 2 February 2015, the rechtbank Den Haag (District Court, The Hague, Netherlands) pronounced the divorce of C and her spouse, a Netherlands national.

19. C submitted an application on the basis of Article 3.51(1)(a) of the Vb 2000 to change her residence permit to reside with a spouse to an autonomous residence permit to the Staatssecretaris van Veiligheid en Justitie (State Secretary for Security and Justice, Netherlands, ‘the State Secretary’). By an initial decision of 2 February 2015, the State Secretary rejected the application for an autonomous residence permit. He also withdrew the residence permit to reside with a spouse with retroactive effect to 10 February 2014, because from that date C was no longer registered at the same address as her spouse in the Basisregistratie Personen (‘the BRP register’). ( 3 ) In the State Secretary’s view, there was no longer any legal basis for the residence permit to reside with a spouse. By a second decision of 24 July 2015, the State Secretary granted C’s application for an autonomous residence permit since C had furnished proof establishing that she had been exempted from the condition relating to the civic integration examination on the basis of Article 3.80a of the Vb 2000. The State Secretary granted her the autonomous residence permit retroactively from the date on which C satisfied the condition relating to the civic integration requirement, that is 16 February 2015. C’s lawful residence was therefore interrupted for an interim period beginning on 10 February 2014 (the date on which joint residence with her spouse ceased according to the BRP register) and running until 16 February 2015 (the date from which the autonomous residence permit was issued). Accordingly, C’s interest in the case in the main proceedings lies in the legal interruption of her period of lawful residence.

20. Appellant C lodged an appeal against the decision to withdraw her residence permit to reside with a spouse with retroactive effect to 10 February 2014 before the rechtbank Den Haag zittingsplaats Rotterdam (District Court of The Hague sitting in Rotterdam, Netherlands, ‘the court of first instance’), which, by judgment of 5 January 2016, declared the appeal unfounded.

21. The second appellant in the main proceedings, A (‘appellant A’ or ‘A’) is also a national of a third country (Congo). From 20 December 1997 to 15 October 2016 he had held a residence permit to reside with a spouse. On 28 July 2015, the dissolution of the marriage of A and his spouse of Netherlands nationality was entered in the BRP register.

22. Appellant A submitted an application on the basis of Article 3.51(1)(a) of the Vb 2000 to change his residence permit to reside with a spouse into an autonomous residence permit. By decisions of 26 February and 21 September 2015, the State Secretary upheld the decision to reject the application for an autonomous residence permit on the ground that A had not furnished proof establishing that he had passed the second civic integration examination or that he had been exempted from that examination pursuant to Article 3.80a of the Vb 2000. On 8 February 2016, the State Secretary notified appellant A in writing of his intention to withdraw retroactively the residence permit to reside with a spouse with effect from 3 September 2014 on the ground that, since that date, A and his spouse had no longer been registered as residing at the same address in the BRP register. In the State Secretary’s view, there was therefore no legal basis for the residence permit to reside with a spouse.

23. Appellant A lodged an appeal before the court of first instance which, by judgment of 25 May 2016, dismissed the appeal.

B. The proceedings before the referring court and the questions referred for a preliminary ruling

24. Appellants C and A both lodged an appeal against the judgments given at first instance before the Raad van State (Council of State). First, in the view of appellants C and A, the possibility of making the acquisition of an autonomous residence permit subject to conditions established in national law, such as satisfying — in accordance with Article 3.80a(1) of the Vb 2000 — the condition relating to a second civic integration examination prior to the granting of an autonomous residence permit, does not follow from Article 15 of Directive 2003/86, paragraph 4 of which covers only procedural conditions and not substantive conditions. Secondly, C and A complain that the court of first instance wrongly relied on the judgment of 9 July 2015, K and A, (C‑153/14, ‘the judgment in K and A’, EU:C:2015:453) to justify the compatibility of the condition relating to the second civic integration examination with Directive 2003/86. In the view of appellants C and A, the judgment in K and A concerns the civic integration requirement of a third country national within the context of the right to family reunification on admission to the Netherlands. The judgment in K and A is different from the case in the main proceedings. In C’s view, the autonomous residence permit should have been issued, without her having to satisfy the condition linked to passing the second civic integration examination, on 10 February 2014, the date from which she had already been residing lawfully in the Netherlands for five years. Appellant A claims that Article 15(1) of Directive 2003/86 is specifically intended to limit to five years the period during which family members are dependent on the sponsor. Thirdly, appellant C submits that the residence permit to reside with a spouse ought to have been withdrawn on the date on which the divorce was pronounced, 2 February 2015, and not as the court of first instance held on 10 February 2014, the date from which C and her spouse were no longer registered as residing at the same address in the BRP register. In addition, C argues that the withdrawal of the residence permit to reside with a spouse with retroactive effect has the effect that she was not residing lawfully for an interim period.

25. First, the referring court observes that the jurisdiction of the Court is not clear because Article 3(3) of Directive 2003/86 excludes the ‘members of the family of a Union citizen’; the respective spouses of C and A are, however, Netherlands nationals. It is in the interest of the European Union that provisions taken from EU law should be interpreted uniformly. ( 4 ) However, it follows from the judgment of 18 October 2012, Nolan (C‑583/10, ‘the judgment in Nolan’, EU:C:2012:638) that the European Union has no interest in a uniform interpretation of a measure concerning a situation which is expressly excluded from that measure. Since that judgment has no longer been cited, in particular in the judgment of the Grand Chamber of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874), it is unclear to the referring court whether the judgment in Nolan still applies and could prompt the Court to find that it lacks jurisdiction to reply to the present reference for a preliminary ruling.

26. Second, the referring court states that it does not know to what the ‘conditions relating to the granting … of the autonomous residence permit’ within the meaning of Article 15(4) of Directive 2003/86, which are established in national law, relate. The referring court wonders whether those conditions may concern integration conditions and, therefore, substantive conditions. It also points out that the Court has given a partial ruling on the matter in two judgments — the judgment of 4 June 2015, P and S (C‑579/13, ‘the judgment in P and S’, EU:C:2015:369) and the judgment in K and A — but that those judgments do not however provide a complete response which may be applied to the disputes in the main proceedings.

27. Third, with regard to the interruption of C’s lawful residence, the referring court asks from which date the autonomous residence permit is effective. Where the application for the grant of an autonomous residence permit is submitted after five years of lawful residence and for the purposes of family reunification, the referring court is of the view that the wording of Article 15 of Directive 2003/86 does not clearly state the date from which an autonomous residence permit must be granted.

28. In those circumstances the Raad van State (Council of State) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: ‘(1) Having regard to Article 3(3) of [Directive 2003/86] and to the [judgment in Nolan], does the Court of Justice have jurisdiction to answer questions referred for a preliminary ruling by the courts of the Netherlands concerning the interpretation of certain provisions of that directive in proceedings relating to the right of residence of members of the family of sponsors who have Netherlands nationality, if that directive has been declared to be directly and unconditionally applicable under Netherlands law to those family members? (2) Should Article 15(1) and (4) of [Directive 2003/86] be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which an application for an autonomous residence permit on the part of a foreign national who has resided lawfully for more than five years on the territory of a Member State for family-reunification purposes may be rejected because of non-compliance with conditions relating to integration laid down in national law? (3) Should Article 15(1) and (4) of [Directive 2003/86] be interpreted as precluding national legislation, such as that at issue in the main proceedings, on the basis of which an autonomous residence permit cannot be granted earlier than the date on which it is applied for?’

29. Written observations were submitted in this case by appellants C and A, the Netherlands and Austrian Governments, and the European Commission.

30. At the joint hearing with connected Case C‑380/17, K and B, which was held before the Court on 19 March 2018, appellants C and A, and then appellants K and B, the Netherlands Government and the Commission presented their oral observations.

IV. Analysis

A. The jurisdiction of the Court

31. Appellants C and A obtained a residence permit to reside with a spouse by virtue of family reunification on the ground that they resided with their spouses, who were Netherlands nationals who had not exercised their freedom of movement.

32. The unambiguous wording of Article 3(3) of Directive 2003/86 makes clear that it ‘shall not apply to members of the family of a Union citizen’. ( 5 ) The appellants’ spouses, Netherlands citizens who have not exercised their freedom of movement, are therefore not covered ratione materiae by Directive 2003/86.

33. However, the Netherlands legislature unilaterally decided to extend the scope of the provisions of Directive 2003/86 to Netherlands sponsors who have not exercised their freedom of movement, ( 6 ) but who wish to benefit from the right to family reunification. ( 7 ) The situations in the case in the main proceedings are purely domestic situations, which is not disputed by the parties to the present case. In other words, this is a case of an extension of the scope ratione materiae of the Netherlands rules, Vb 2000, for the benefit of Netherlands citizens who have not exercised their freedom of movement. In those circumstances, it is necessary to examine whether an interpretation by the Court of the provisions mentioned in the questions referred is justified, and therefore whether the jurisdiction of the Court is established, as is claimed by the referring court, the Netherlands Government and the appellants in the main proceedings but is disputed by the Commission and the Austrian Government.

34. Under Article 267 TFUE, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and acts of the institutions of the Union. It follows that it is for the national courts alone to assess, in view of the special features of each case, both the necessity of a preliminary ruling in order to enable them to give their judgment and the relevance of the questions they put to the Court. ( 8 ) Consequently, when questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, obliged to give a ruling. ( 9 )

35. In this regard, it should be observed that the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations in which the facts of the main proceedings fell outside the scope of EU law. It is in fact in the interest of the European Union to ensure that a provision of an act of the Union and those provisions of national law transposing it and making it applicable beyond the scope of that act are interpreted uniformly.

36. In that context, the Court has clarified that an interpretation by it of provisions of EU law in situations which do not fall within the scope of EU law is justified where those provisions have been made applicable to such situations by national law directly and unconditionally, in order to ensure that such situations and situations falling within the scope of EU law are treated in the same way. ( 10 ) Accordingly, the Court is called upon to ascertain whether there are sufficiently precise indications to be able to establish whether the national law makes a direct and unconditional reference to EU law. It is essentially on the sole basis of the information provided by the referring court in its order for reference that the Court can ascertain whether it has jurisdiction to answer the questions raised before it. ( 11 )

37. It is true that, according to the judgment in Nolan, it cannot be stated or presumed that there is an interest of the European Union that, in an area excluded by the EU legislature from the scope of the measure which it adopted, there should be a uniform interpretation of the provisions of that measure. ( 12 ) Under that approach, ‘if the EU legislature states unequivocally that the measure which it has adopted does not apply to a precise area, it renounces, …, the objective seeking uniform interpretation and application of the rules of law in that excluded area’. ( 13 )

38. The judgment of 19 October 2017, Solar Electric Martinique (C‑303/16, ‘the judgment in Solar Electric Martinique’, EU:C:2017:773), which also concerned a case of express exclusion from the scope of an EU directive, ( 14 ) has however, in my view, modified some of the grounds of the judgment in Nolan. The Court made clear in paragraph 29 of the judgment in Solar Electric Martinique that ‘an EU interest in the uniform interpretation of [the concepts of the directive in question], in order to forestall future difficulties in interpretation, is indeed conceivable’. ( 15 ) Although the judgment in Nolan suggested that such an interest disappeared in a case of express exclusion by the EU legislature, the judgment in Solar Electric Martinique did not therefore confirm that reading. Also in relation to an express exclusion from the scope of a directive, the judgment of 27 June 2018, SGI and Valériane (C‑459/17 and C‑460/17), rejected, apparently definitively, the approach previously taken in the judgment in Nolan by stating that, notwithstanding that express exclusion, it is clearly in the interest of the European Union ( 16 ) that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply, where the national law makes a direct and unconditional reference to the provision of the directive of which the interpretation by the Court is sought. ( 17 )

39. That is also the situation in the present case.

40. The information provided by the referring court is sufficiently precise and demonstrates that the national law, which is consistent with EU law, makes a direct and unconditional reference to EU law. The referring court thus states that the Netherlands legislation and rules establish a common legal system applicable to family reunifications of third country nationals and family reunifications of Netherlands nationals who have not exercised their freedom of movement, and that it does not make a distinction between the two schemes. It is clear from the explanatory memorandum to the Vb 2000 that the period provided for in Article 3.51 of the Vb 2000, ( 18 ) within which the State Secretary may grant an autonomous residence permit, ( 19 ) has been tightened up and extended from three to five years of residence, and likewise applies to family reunifications of Netherlands nationals who have not exercised their freedom of movement. Both the condition relating to the second civic integration examination laid down in Article 3.80a(1) of the Vb 2000 and the extension of the relevant period are applied without distinction to family reunifications of third country nationals and of Netherlands nationals who have not exercised their freedom of movement.

41. In addition, the referring court adds that, if the Court were to lack jurisdiction in the present case to interpret Article 15 of Directive 2003/86, the referring court would be forced to interpret it itself in order to give final judgment in the matter. In practice, the interpretation of a provision of EU law by the national court could have an impact on the content of that law and give rise to an approach which is markedly different from that which the Court might adopt. In addition, it could discourage the national courts of the Member State in question from raising such a question before the Court in the future. In any event, the concepts in respect of which the referring court seeks interpretation do indeed come within the ambit of EU law and may indeed be applied in situations falling within the scope of the directive.

42. I am therefore of the view that the interest of the European Union in a uniform interpretation exists, first, in order to prevent a discrepancy in the application of EU law and, second, on account of the need to avoid different treatment of situations that a Member State has chosen to align with the solutions provided by EU law.

43. In those circumstances, I propose that the Court hold that it has jurisdiction to answer the questions submitted.

B. The interpretation of Article 15(1) and (4) of Directive 2003/86 and the compatibility of the condition relating to the second civic integration examination

44. I note that appellants C and A have a residence permit to reside with a spouse by virtue of family reunification. They each submitted an application to obtain an autonomous residence permit under Article 3.51(1)(a) of the Vb 2000. Their applications were rejected on the ground that appellants C and A had not passed the examination referred to in Article 7(2)(a) of the Wi, or had failed to furnish proof that they had passed that examination or had been exempted from it. ( 20 ) In those circumstances, appellants C and A were denied the autonomous residence permit if they failed.

45. The second question referred for a preliminary ruling therefore concerns the compatibility with Article 15(1) and (4) of Directive 2003/86 of the refusal of an application for an autonomous residence permit by a family member residing in the national territory for more than five years for the purposes of family reunification because of non-compliance with the conditions relating to integration laid down in national law. More specifically, the Court is called upon to rule on the meaning of the words ‘the conditions relating to the granting … of the autonomous residence permit’ contained in Article 15(4) of Directive 2003/86 and to determine whether those conditions include the requirement to sit a second civic integration examination.

46. Before addressing the interpretation of Article 15(4) of Directive 2003/86, it should be observed that, in the Netherlands, the integration process appears to take place in two stages.

47. The first stage is governed by Article 7(2) of Directive 2003/86, which states that Member States ‘may require third country nationals to comply with integration measures …’. The Court has held ( 21 ) that Member States could require third country nationals to pass a civic integration examination. That examination includes the assessment of the basic knowledge both of the language and the society of the Member State concerned and involves the payment of various fees. The Communication from the Commission to the Council and the European Parliament on guidance for application of Directive 2003/86/EC on the right to family reunification (‘the Commission guidance’) ( 22 ) defines the integration measures provided for in Article 7(2) of that directive as consisting in verifying ‘third country nationals’ willingness to integrate’ and which, for that purpose, may take the form of an examination on the basic skills deemed necessary. The integration measure which Member States may require ‘cannot result in a performance obligation’ which is in fact a measure that limits the possibility of family reunification. On the contrary, it must ‘contribute to the success of family reunification’. Basic knowledge of the host society’s language, history and institutions is indispensable to integration and is encouraged by the Commission. ( 23 ) With that in mind, the examination may take place prior to the admission to the territory of the European Union in embassies or consulates, or in the host Member State.

48. Netherlands law provides for a second stage of integration based on the provisions of Article 15(4) of Directive 2003/86. This new stage of integration requires that a new examination is passed if the family member wishes to obtain an autonomous status and no longer be dependent on the sponsor’s residence permit. According to the Netherlands Government, the granting of an autonomous residence permit consolidates the legal position of the third country national who has been lawfully residing for five years in the territory of a Member State and, for that reason, the applicant for the autonomous residence permit may be required to show that, in the intervening time, he has succeeded in integrating.

49. That being the case, I return to the interpretation sought by the referring court of the concept of ‘conditions’ provided for in Article 15(4) of Directive 2003/86 which, according to the Netherlands Government, may cover the second civic integration examination.

50. It must be pointed out that neither the wording of Article 15 of Directive 2003/86 nor the Commission guidance specifies whether, and to what extent, the imposition of a civic integration requirement is conceivable for the purposes of obtaining the autonomous residence permit.

51. However, I note that Article 15(4) of Directive 2003/86 uses the expression ‘conditions relating to the granting’ and not ‘integration conditions’, ( 24 ) as is the case in Article 5(2) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, ( 25 ) or ‘integration measures’, ( 26 ) which appears in Article 7(2) of Directive 2003/86.

52. ‘Integration measures’ and ‘integration conditions’ must be regarded as being quite separate, and certainly not as synonymous expressions, since integration measures must be deemed less onerous than integration conditions. ( 27 ) A systematic reading of Article 7(1) of Directive 2003/86 argues in the same vein. That article lists a series of conditions which the third country national must prove to be satisfied. By contrast, the integration measure is included in the following paragraph, whereas if the European legislature had intended to submit a third country national to, and to filter a third country national on the basis of, an integration measure, it would have included it in paragraph 1, for example in a fourth point. That is not the case. The integration measures referred to in Article 7(2) of Directive 2003/86 must not have a filtering function and must rather, on the contrary, be aimed primarily at facilitating integration in the Member States. ( 28 )

53. This terminological difference alone explains why, like the referring court, I take the view that neither the judgment in K and A, which concerned the classification of a civic integration examination as coming under the ‘integration measures’ within the meaning of Article 7(2) of Directive 2003/86, nor the judgment in P and S, which related to the interpretation of the concept of ‘integration conditions’ contained in Article 5(2) of Directive 2003/109, provide an answer to the interpretation of the expression ‘conditions relating to the granting … of the autonomous residence permit’ laid down in Article 15(4) of Directive 2003/86, in particular as regards whether that expression can cover a condition linked to passing a second civic integration examination, such as that applicable in the disputes in the main proceedings.

54. Beyond the differences in terminology set out above, in order to interpret Article 15 of Directive 2003/86, and in particular paragraph 4 thereof, it is also necessary to take into account the purposes, scheme and background of the provisions of that directive.

55. As regards the teleological interpretation of Directive 2003/86, it should be observed that the Court has, first, stated that, within the scheme of Directive 2003/86, authorisation of family reunification is the general rule and that the provisions which allow limitations to be placed on that rule must be interpreted strictly, and, second, clarified that the leeway given to the Member States by such provisions must not be used by them in a manner which would undermine the objective of the directive, which is to promote family reunification, and its effectiveness. ( 29 )

56. Within the scheme of Directive 2003/86, the autonomous status of the sponsor’s family members is a specific status which brings to an end the dependence on the sponsor. Thus, in difficult situations or if the sponsor’s residence permit were withdrawn or had just expired, the family member holding an autonomous residence permit would not be penalised as a result.

57. Interpreting the expression ‘conditions relating to the granting … of the autonomous residence permit’, contained in Article 15(4) of Directive 2003/86, as an opportunity afforded to Member States to provide for a second civic integration examination would amount to undermining the purpose and the effectiveness of that measure by unduly complicating the right to family reunification.

58. In the present case, it should be borne in mind that the applicable conditions under the Netherlands rules are particularly rigorous. As I have already set out, the third country national must satisfy civic integration conditions which go beyond those laid down at the time of first admission to the Netherlands by virtue of the right to family reunification. Article 7(2)(a) of the Wi specifies the conditions which the third country national must satisfy. He must firstly, within three years, acquire oral and written skills in Dutch equating to at least level A2 on the European Framework of Reference for Modern Foreign Languages. Those skills consist of speaking, listening, writing and reading skills. ( 30 ) Secondly, the third country national must acquire knowledge of Netherlands society over the course of those three years. Such knowledge consists, on the one hand, of knowledge of Netherlands society and, on the other hand, of Netherlands labour market orientation. ( 31 )

59. I am therefore of the view that the purpose of Directive 2003/86 cannot support the argument that the concept of ‘conditions relating to the granting … of an autonomous residence permit’ can encompass a substantive condition, such as passing a second civic integration examination. In my view, that expression should rather be interpreted as covering merely the Member States’ right to require the submission of an application for an autonomous residence permit and the specification of the information to be provided in support of such an application. In other words, it covers formal or administrative conditions and not substantive ones.

60. The scheme of Directive 2003/86, in particular the place occupied by Article 15 in the structure of that directive, supports the view that the condition provided for in Article 15(4) is not a substantive condition. In accordance with the wording of recital 6 which emphasises the need for ‘the material conditions for exercising the right to family reunification [to be] determined on the basis of common criteria’, Articles 6, 7, 8 and 12 of Directive 2003/86 lay down a series of criteria and rules concerning the examination of the application, its submission and the conditions relating to the issue of the residence permit. However, with the exception of Article 15(1) of Directive 2003/86, which establishes ratione personae the family members to whom the provision is addressed and who may be granted such an autonomous residence permit, ( 32 ) Article 15 does not lay down any common criterion or common substantive rule. Articles 6 to 8 are contained in Chapter IV of Directive 2003/86, entitled ‘Requirements for the exercise of the right to family reunification’, whereas Article 15 stands alone and is inserted into Chapter VI of the directive, entitled ‘Entry and residence of family members’. In addition, Article 15 does not make any reference to the provisions of Chapter IV, unlike Article 12(1) of that directive (on the reunification of refugees) which refers to them. It appears therefore that the EU legislature intended to make the granting of the autonomous residence permit subject not to material or substantive conditions, but merely to procedural conditions laid down by the Member States. The EU legislature envisaged the autonomous residence permit as being a consequence of the continued residence of the sponsor’s family member in the territory of the Member State.

61. Finally, I also concur with the interpretation advocated by the referring court that the background to Article 15 of Directive 2003/86 shows that the conditions relating to the granting of the autonomous residence permit are procedural conditions for the following reasons.

62. First, it is apparent from recital 15 of Directive 2003/86, from the explanatory memorandum to the proposal for Directive 2003/86, ( 33 ) and from a working document of the Council of Ministers of the European Union ( 34 ) of 9 August 2002 that the effect of the autonomous residence permit introduced by Article 15 of Directive 2003/86 is that family members are no longer dependent on the sponsor for their residence permit, for example if the sponsor leaves the Member State where he resides with the family member, dies or in the event of the breakup of the marriage or partnership between the sponsor and the family member. The autonomous residence permit is intended to consolidate the legal situation of the sponsor’s family member and to afford him greater legal certainty.

63. Secondly, the background to Article 15 of Directive 2003/86, taken as a whole, makes clear that the autonomous residence permit was originally acquired as of right, ( 35 ) but in the course of the legislative debate on that proposal it was observed that that permit should not be obtained automatically after a period of five years’ residence but on application. That comment prompted the drafting of a modified proposal in which provision was made for the possibility, now contained in Article 15(1) and (3) of Directive 2003/86, of making the acquisition of an autonomous residence permit dependent on the submission of an application to that effect. The addition of paragraph 4 of Article 15 is linked to the addition of the words ‘upon application, if required’ in the first subparagraph of Article 15(1) and Article 15(3) of Directive 2003/86. ( 36 ) A provision therefore had to be inserted, in paragraph 4, concerning the procedures for the submission of that application and the subsequent granting of the residence permit. Accordingly, Member States are entitled to transpose that provision in two ways: first, in the absence of a specific procedure, Member States may provide that the autonomous residence permit is acquired by operation of law at the end of five years of residence or, second, they may provide that the autonomous residence permit is acquired upon application and is subject to procedural rules.

64. Thirdly, the background to the concept of ‘conditions’ reveals that Article 15(4) of Directive 2003/86 was previously mentioned in the proposal for a directive before paragraph 2 of Article 7 was added. ( 37 ) As I have already pointed out, ( 38 ) that paragraph explicitly refers to ‘integration measures’. The addition of paragraph 2 to Article 7 of the proposal after Article 15(4) did not, however, entail the subsequent amendment of Article 15(4) with a view either to making a reference or to harmonising the wording used in Article 15(4) and Article 7(2) of Directive 2003/86. This concept must therefore be understood as being distinct from the concept of ‘integration measures’ used in Article 7(2) of Directive 2003/86.

65. I therefore conclude from the foregoing that the provisions of Article 15(1) and (4) of Directive 2003/86 must be interpreted as precluding national legislation which provides that an application for an autonomous residence permit on the part of a foreign national who has resided lawfully for more than five years in the territory of a Member State for the purposes of family reunification may be rejected because of non-compliance with conditions relating to integration laid down in national law, since such conditions are substantive conditions for which no provision is made in Article 15(1) and (4) of Directive 2003/86.

66. In any case, and in the event the Court were to consider that the ‘conditions’ provided for in Article 15(4) of Directive 2003/86 refer to substantive conditions, I observe that the Court has held that integration measures within the meaning of Article 7(2) of Directive 2003/86 introduced by a Member State are compatible with that directive only if the conditions governing the application of such a requirement do not render exercise of the right to family reunification impossible or excessively difficult. ( 39 )

67. In that regard, in accordance with the principle of proportionality, which is one of the general principles of EU law, the measures taken by national legislation transposing the first subparagraph of Article 7(2) of Directive 2003/86 must be suitable for achieving the objectives of that legislation and must not go beyond what is necessary to attain them. ( 40 )

68. The same would, in my view, be particularly true as regards the conditions relating to the granting of the autonomous residence permit within the meaning of Article 15(4) of Directive 2003/86.

69. In the present case, the condition relating to the civic integration examination laid down by the Netherlands legislation appears to me to be disproportionate for two reasons.

70. First, I note that the beneficiaries of the right to family reunification must satisfy civic integration measures prior to their residence, which enables them to acquire basic knowledge, in particular language skills, which is undeniably useful for establishing connections with the host Member State. ( 41 ) Requiring a second examination could call into question ‘the integrative efficiency’ and usefulness of the first civic integration examination for the purposes of Article 7(2) of Directive 2003/86. According to recital 15 of that directive, ‘the integration of family members should be promoted’. With that aim in mind, the sponsor’s close family members should be integrated so that nationals who so wish can obtain a status that is independent and autonomous of that of the sponsor and no longer be dependent on the latter’s residence permit. Such nationals should be integrated thanks to the basic knowledge of Dutch acquired at the time of the first examination, without it being necessary for the Netherlands authorities to undertake a second selection based on the progress made in the third country nationals’ language skills and cultural knowledge. In addition, according to appellants C and A, the pass rate of that examination is low. ( 42 ) Since this second civic integration examination could give rise to a lack of legal certainty for them if they fail to pass it, the examination dissuades third country nationals.

71. Next, the accessibility of the examination, and therefore passing that examination, make obtaining the right to an autonomous residence permit impossible or excessively difficult.

72. First, the financial accessibility of the civic integration examination may constitute an obstacle. According to appellants C and A, the cost of the training (language and civic integration course) and of the preparation for and sitting of the examination, which comes to between EUR 4000 and EUR 10000, is borne by the candidate and not financed by the State. The Netherlands Government did indeed state that a loan scheme was introduced which was accessible depending on the borrower’s capacity to make repayments. However, according to appellants C and A, this is not the case for the third country nationals referred to in the provisions of Article 15 of Directive 2003/86. In addition, it should be observed that the amount loaned will have to be repaid and that, in any case, it represents a significant sum of money, even for European citizens. Furthermore, according to appellants C and A, that cost includes the examination registration costs (EUR 350), ( 43 ) which must be paid again to be entitled to re-sit the examination if the candidate has failed at previous attempts. ( 44 ) Since, given its particularly onerous nature, that requirement is a deterrent to the submission of an application for an autonomous residence permit, it represents a condition capable of obstructing family reunification rather than facilitating it. It therefore constitutes a restriction liable to render Article 15 of Directive 2003/86 redundant.

73. Second, the accessibility of the examination itself is, in practice, an obstacle which complicates the achievement of the integration objective. Specific individual circumstances, such as the age, level of education, financial situation or health of the sponsor’s relevant family members must be taken into consideration in order to dispense those family members from the requirement to pass an examination such as the one at issue in the main proceedings when, due to those circumstances, they are unable to take or pass that examination. If that were not the case, in such circumstances such a requirement could be a difficult obstacle to overcome in making the right to obtain an autonomous residence permit recognised by Directive 2003/86 exercisable. ( 45 )

74. In addition, under the Netherlands system, it appears that the individual circumstances — for the purposes of Article 17 of Directive 2003/86 — of the third country national and sponsor’s family member are taken into account only once the applicant for the autonomous residence permit has unsuccessfully attempted to sit the examinations. Article 6(1)(b) of the Wi provides that a person subject to the requirement must furnish proof that his failure was reasonable as evidenced by his attendance of training sessions and that he has attempted to pass the civic integration examination several times before being able to obtain an exemption. ( 46 ) That exemption is granted by the State Secretary to the third country national, who must furnish proof of his demonstrable efforts. Before the examination is taken, that system should take into account the individual circumstances of the applicants for the autonomous residence permit, such as their cognitive abilities, their vulnerable position, ( 47 ) their age, their level of education, and their health. That system would therefore, in my view, be more proportionate.

75. It is for the competent national authorities (including the national courts), when implementing Directive 2003/86 and examining applications for family reunification, to make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned. ( 48 )

76. In my view, the second question referred for a preliminary ruling should therefore be answered as follows: Article 15(1) and (4) of Directive 2003/86 must be interpreted as precluding national legislation which provides that an application for an autonomous residence permit on the part of a foreign national who, for the purposes of family reunification, has been allowed to reside lawfully for more than five years in the territory of a Member State may be rejected because of non-compliance with conditions relating to integration laid down in national law, since such conditions are substantive conditions for which no provision is made in Article 15(1) and (4) of Directive 2003/86.

C. The date from which the application for an autonomous residence permit has effect for the purposes of Article 15(1) and (4) of Directive 2003/86

77. Appellant C had held a residence permit to reside with a spouse since 5 November 2008. From 10 February 2014, according to the Netherlands authorities, since C was no longer residing with her spouse, the State Secretary withdrew, retroactively, the residence permit to reside with a spouse since that permit had no legal basis. C’s lawful residence was therefore interrupted. ( 49 ) The State Secretary granted her the autonomous residence permit on the date on which C satisfied the condition relating to the civic integration requirement, that is on 16 February 2015. C submits that she satisfied the conditions to obtain an autonomous residence permit as early as the date on which she had been lawfully resident in the Netherlands for more than five years for the purposes of family reunification.

78. Where the submission of the application for the grant of the autonomous residence permit is made after five years of lawful residence and for the purposes of family reunification, the referring court wishes to ascertain whether national legislation ( 50 ) on the autonomous residence permit which provides that the autonomous residence permit must be granted from the date on which the third country national demonstrates that he satisfies all the integration conditions, including the condition relating to the integration examination, and/or, at the earliest, from the date on which the application is received, is compatible with Article 15(1) and (4) of Directive 2003/86.

79. According to the referring court, the wording of Article 15 of Directive 2003/86 does not unequivocally state the date from which that permit must be granted. The referring court puts forward two possible interpretations of Article 15(1) and (4) of the directive. First, it appears to follow from Article 15(4) that the Member States are to establish the procedural conditions relating to the granting and duration of the autonomous residence permit in national law. The Member States therefore determine the date on which that permit takes effect. Second, the referring court considers that the right to an autonomous residence permit may arise under Article 15(1) of Directive 2003/86 not later than after five years of lawful residence and is automatically acquired on the day of the application. Accordingly, even where a third country national applies for an autonomous residence permit after more than five years of residence, this does not prevent the right to an autonomous residence permit having arisen beforehand.

80. I take the view that if, in the national legislation, the right to an autonomous residence permit is made conditional upon a prior application, the effects of the right to an autonomous residence permit should begin, at the latest, on the date on which that application is made. That residence permit should be declaratory.

81. In that regard, I observe that Article 15(1) of Directive 2003/86 provides that, ‘not later than after five years of residence, and provided that the family member has not been granted a residence permit for reasons other than family reunification, [they] shall be entitled, upon application, if required, to an autonomous residence permit, independent of that of the sponsor’. ( 51 ) By using the expression ‘upon application, if required’, the wording of Article 15(1) of Directive 2003/86 makes the submission of an application for an autonomous residence permit optional. The requirement to make such an application is one of the ‘conditions relating to the granting … of the autonomous residence permit’ which the Member States may establish, pursuant to Article 15(4) of Directive 2003/86. Article 15(1) and (4) of that directive allows their application to differ between the Member States. In Member States in which the right to an autonomous residence permit is made subject to the submission of an application, the autonomous residence permit comes into existence and becomes effective on submission of that application to the competent national authorities. Thus, the effects of the autonomous residence permit will begin from the date on which that application is made; this is consistent with the content of Article 15(1) of Directive 2003/86, which provides that the right to the autonomous residence permit exists ‘not later than after five years of residence’.

82. In addition, the date of submission of the application should, in my view, be regarded as being the final date from which an autonomous residence permit becomes effective, because it makes it possible to guarantee that all applicants who are in the same situation chronologically are treated identically by ensuring that the success of the application depends principally on circumstances attributable to the applicant and not to the administration, such as the length of time taken considering the application. ( 52 ) Such a solution is consistent with the wording of Article 15(1) of Directive 2003/86.

83. In addition, interpreting Article 15(1) of Directive 2003/86 as proposed above also makes it possible to ensure greater legal certainty for applicants for an autonomous residence permit. In particularly difficult circumstances, such as those mentioned in Article 15(3) of that directive, a third country national who submits the application for an autonomous residence permit immediately after the breakdown of the marital, filial or family relationship would not risk interrupting his legal period of residence. In the case of third country nationals who do not fall within the scope of Article 15(3) of Directive 2003/86, fixing the date of submission of the application as the date from which the autonomous residence permit has effects enables such nationals to foresee a possible break in their lawful residence and therefore affords them greater legal certainty. If a formal condition, for example the requirement to produce a proof of identity or an administrative document, is satisfied only at a later stage, the right to an autonomous residence permit would be granted retroactively to the date on which the application was made.

84. On the basis of the foregoing, I propose that the Court find that Article 15(1) and (4) of Directive 2003/86 does not preclude an autonomous residence permit from being issued on the date of submission of the application for that permit and, if required, with retroactive effect from that date.

V. Conclusion

85. Having regard to all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Raad van State (Council of State, Netherlands) as follows: (1) The Court has jurisdiction to answer the questions referred for a preliminary ruling by the referring court which relate to the interpretation of the provisions of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification in disputes concerning the right of residence of family members of sponsors who are Netherlands nationals, since that directive has been declared directly and unconditionally applicable to such family members in Netherlands law. (2) Article 15(1) and (4) of Directive 2003/86 must be interpreted as precluding national legislation which provides that an application for an autonomous residence permit on the part of a foreign national who, for the purposes of family reunification, has been allowed to reside lawfully for more than five years in the territory of a Member State may be rejected because of non-compliance with conditions relating to integration laid down in national law, since such conditions are substantive conditions for which no provision is made in Article 15(1) and (4) of Directive 2003/86. (3) Article 15(1) and (4) of Directive 2003/86 does not preclude an autonomous residence permit from being issued on the date of submission of the application for that permit and, if required, with retroactive effect from that date.

( 1 ) Original language: French.

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

( 3 ) This is a Netherlands register containing the information of residents and non-residents who have a link with the Netherlands authorities.

( 4 ) The referring court mentions in this regard the judgments of 18 October 2012, Nolan (paragraph 46); of 7 November 2013, Romeo (C‑313/12, EU:C:2013:718, paragraph 22); and of 16 June 2016, Rodríguez Sánchez (C‑351/14, EU:C:2016:447, paragraphs 61 and 62).

( 5 ) Originally, Article 1 and Article 3(1)(c) of proposals for a Council Directive on family reunification of 1 December 1999 (COM(1999) 638 final) and of 10 October 2000 (COM(2000) 624 final) afforded to Union citizens who have not exercised their right to free movement a right to family reunification for members of their family. However, the Council sought a restriction of the scope of that proposal for a directive. The Commission amended it accordingly in its third proposal for a directive on family reunification of 2 May 2002 (COM(2002) 225 final), with a view to excluding Union citizens who have not exercised their right to free movement. The situation of Union citizens who have not exercised their right to free movement was to be dealt with at a later stage in a specific proposal once the recast of the right of free movement of persons has been adopted.

( 6 ) There is no question whatsoever of the applicable rules being those laid down in 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 (OJ 2004 L 158, p. 77).

( 7 ) According to the report from the Commission to the European Parliament and the Council of 8 October 2008, on the application of Directive [2003/86] (COM(2008) 610 final, p. 4).

If a Member State applies rules for citizens who have not exercised their freedom of movement that are less favourable than those of the directive, the legal status of third country nationals could deteriorate upon acquiring nationality in a Member State which has less favourable rules for its citizens in this area. This is the case in four countries: the Federal Republic of Germany, the Republic of Cyprus, the Republic of Lithuania and the Kingdom of the Netherlands.

( 8 ) See, to that effect, judgments of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraph 33); of 7 July 2011, Agafiţei and Others (C‑310/10, EU:C:2011:467, paragraphs 24 and 25); and of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraph 15).

( 9 ) See, to that effect, judgments of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraph 35); of 16 March 2006, Poseidon Chartering (C‑3/04, EU:C:2006:176, paragraph 15); of 28 October 2010, Volvo Car Germany (C‑203/09, EU:C:2010:647, paragraph 24); of 7 July 2011, Agafiţei and Others (C‑310/10, EU:C:2011:467, paragraph 26); and of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraph 16).

( 10 ) See, to that effect, judgments of 28 March 1995, Kleinwort Benson (C‑346/93, EU:C:1995:85, paragraph 16); of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraphs 17 and 19); of 18 October 2012, Nolan (paragraphs 45 and 47); and of 19 October 2017, Solar Electric Martinique (C‑303/16, EU:C:2017:773, paragraphs 25 and 27).

( 11 ) See, to that effect, order of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343, paragraphs 27 and 29) and my Opinion in Solar Electric Martinique (C‑303/16, EU:C:2017:507, point 33).

( 12 ) See, to that effect, the judgment in Nolan (paragraphs 53, 54 and 56).

( 13 ) See, to that effect, the judgment in Nolan (paragraph 55).

( 14 ) It concerned a case of exclusion ratione loci from the scope of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), but that difference from the exclusion ratione materiae in the judgment in Nolan is irrelevant: see my Opinion in Solar Electric Martinique (C‑303/16, EU:C:2017:507, point 49).

( 15 ) Emphasis added.

( 16 ) Emphasis added.

( 17 ) See, to that effect, judgment of 27 June 2018, SGI and Valériane (C‑459/17 and C‑460/17, EU:C:2018:501, paragraphs 27 and 28). That judgment, in common with the judgment in Solar Electric Martinique, concerned a situation of exclusion ratione loci of the scope of application of the VAT directive.

( 18 ) This article implements Article 15 of Directive 2003/86.

( 19 ) The referring court cites Article 3.51(1)(a) of the Vb 2000.

( 20 ) Pursuant to Article 6(1)(a) or (b) of the Wi, ‘the Minister shall exempt a person subject to the civic integration requirement from that requirement where that person has shown that, owing to a psychological or physical disability or a mental deficiency, he is permanently incapable of passing the civic integration examination or [where,] on the basis of the demonstrable efforts of the person subject to the civic integration requirement, the Minister comes to the view that that person cannot reasonably satisfy the civic integration requirement’.

( 21 ) See, to that effect, the judgment in P and S, (paragraph 38), and the judgment in K and A, (paragraphs 52 to 55).

( 22 ) COM(2014) 210 final of 3 April 2014, pp. 15 and 16.

( 23 ) See, to that effect, the Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions — A Common Agenda for Integration — Framework for the Integration of Third-Country Nationals in the European Union (COM(2005) 389 final, 1 September 2005, Basic Principle No 4).

( 24 ) This concept is developed by the Court in the judgment in P and S in paragraphs 34 to 38.

( 25 ) OJ 2004 L 16, p. 44.

( 26 ) This concept is developed by the Court in the judgment in K and A in paragraphs 52 to 55.

( 27 ) This distinction is particularly apparent in Directive 2003/109. See, to that effect, my Opinion in Dogan (C‑138/13, EU:C:2014:287, point 52).

( 28 ) See, to that effect, my Opinion in Dogan (C‑138/13, EU:C:2014:287, point 52) and the judgment in K and A (paragraphs 52 and 57), which confirm that integration measures are legitimate only if they facilitate the integration of family members. They must be aimed not at filtering those persons who will be able to exercise their right to family reunification, but at facilitating the integration of such persons within the Member States.

( 29 ) See, to that effect, judgments of 4 March 2010, Chakroun (C‑578/08, EU:C:2010:117, paragraph 43), and of 6 December 2012, O and Others (C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 74); and the judgment in K and A (paragraph 50).

( 30 ) According to the referring court, Article 2.9 of the Decree on Civic Integration provides that ‘the person subject to the civic integration requirement must acquire the skills [of oral expression and comprehension and written expression and comprehension] in Dutch which correspond with level A2 of the European Framework of Reference for Modern Foreign Languages’.

( 31 ) According to the referring court, that follows from Article 2.10, paragraph 1, of the Decree on Civic Integration, which provides that ‘the person subject to the civic integration requirement acquires a knowledge of Netherlands society the level of which corresponds with the objectives set by the Minister as regards the following elements: a. knowledge of Netherlands society; b. Netherlands labour market orientation’.

( 32 ) Article 15(1) of Directive 2003/86 provides that ‘after five years of residence, and provided that the family member has not been granted a residence permit for reasons other than family reunification, the spouse or unmarried partner and a child who has reached majority [shall be entitled to the autonomous residence permit]’.

( 33 ) Explanatory memorandum to the proposal for Directive 2003/86 presented by the European Commission (COM(1999) 638 final; pp. 22 to 23).

( 34 ) See the document of the Council of Ministers of the European Union (‘the document of the Council’) No 10857/02.

( 35 ) See, to that effect, the amended proposal for a Council Directive on the right to family reunification (COM(2002) 225 final).

( 36 ) See, to that effect, Council documents No 10857 of 9 August 2002, No 11787/02 of 30 September 2002, and No 13053/02 of 23 October 2002.

( 37 ) See Council document No 14272/02 of 26 November 2002. Article 7(2) of Directive 2003/86 provides that ‘Member States may require third country nationals to comply with integration measures, in accordance with national law …’

( 38 ) See points 51 and 52 of this Opinion.

( 39 ) See, by analogy, the judgment in P and S (paragraph 45 and the case-law cited).

( 40 ) See, by analogy, judgment of 26 April 2012, Commission v Netherlands (C‑508/10, EU:C:2012:243, paragraph 75) and, to that effect, the judgment in K and A (paragraph 51).

( 41 ) Judgment in P and S (paragraphs 47 and 48), and the judgment in K and A (paragraphs 54 and 55).

( 42 ) Only 49% of sponsors’ family members who became subject to the civic integration requirement at the beginning of 2013 passed the second civic integration examination three years later.

( 43 ) According to the report from the Commission to the European Parliament and the Council on the application of Directive 2003/86/EC on the right to family reunification (COM(2008) 610 final, 8 October 2008, pp. 10 and 11), the amount of the fees is fixed in the Netherlands at EUR 1368, EUR 830 for the family reunification visa, with the cost of the integration test fixed at EUR 350.

( 44 ) The examination can be re-taken up to four times.

( 45 ) See, by analogy, the judgment in P and S (paragraph 49), and the judgment in K and A (paragraphs 58 to 60).

( 46 ) C obtained an exemption because she had taken the examination four times and had provided a certificate from the educational establishment showing that she had completed the required 648 classroom hours.

( 47 ) Commission guidance, p. 16: ‘Special attention should also be paid to the fact that in several parts of the world women and girls have less access to education and might have a lower literacy level than men.’

( 48 ) See to that effect, judgment of 6 December 2012, O and Others (C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 81).

( 49 ) The interruption of lawful residence may have consequences as regards the ability to apply for a residence permit as a long-term resident and on the rights to Netherlands citizenship which require a period of legal and continuous residence in the territory of the Member State.

( 50 ) In the present case, Article 26(1) of the Vw 2000.

( 51 ) Emphasis added.

( 52 ) See, by analogy, judgments of 17 July 2014, Noorzia (C-338/13, EU:C:2014:2092, paragraph 17), and of 12 April 2018, A and S (C-550/16, EU:C:2018:248, paragraph 60).