OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 19 March 2015 ( 1 )

Case C‑153/14

Minister van Buitenlandse Zaken

v

K and A

(Request for a preliminary ruling from the Raad van State (Netherlands))

‛Directive 2003/86/EC — Family reunification — Third-country nationals — Article 7(2) — Integration measures — Proof of basic knowledge of the official language and of knowledge of the country’

I – Introduction

1. The present case concerns the question whether a third-country national can be required to pass an examination in the language of a Member State and its culture and society before he can be granted entry, in the context of family reunification, into that Member State in which his spouse, who is also a third-country national, is already residing lawfully.

2. In that context the Court is called upon to interpret Article 7 of Directive 2003/86 ( 2 ) on the right to family reunification (‘the Family Reunification Directive’), and to assess whether the examination in question is a permissible ‘integration measure’ which the Member State may, under that provision, apply to a third-country national who is intending to join his family.

II – Legal context

A – EU law

3. The concept of an ‘integration measure’ is used not only in the Family Reunification Directive, but also in Directive 2003/109 ( 3 ) concerning the status of third-country nationals who are long-term residents (‘the Directive on long-term residents’) and in Directive 2009/50 ( 4 ) on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (‘the Highly Qualified Employment Directive’).

1. The Family Reunification Directive

4. According to Article 1, the purpose of the Family Reunification Directive is to determine ‘the conditions for the exercise of the right to family reunification by third-country nationals’.

5. Chapter IV of that directive is entitled ‘Requirements for the exercise of the right to family reunification’. The rules on integration measures are contained in Article 7(2) thereof which provides: ‘Member States may require third-country nationals to comply with integration measures, in accordance with national law. With regard to the refugees and/or family members of refugees referred to in Article 12 the integration measures referred to in the first subparagraph may only be applied once the persons concerned have been granted family reunification.’

6. In Chapter VII (‘Penalties and redress’), Article 17 of the directive provides: ‘Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family.’

2. The Directive on long-term residents

7. Under Article 5(2) of the Directive on long-term residents, a Member State may require a third-country national seeking long-term resident status to comply with ‘integration conditions’, in accordance with national law.

8. If a person who is a long-term resident in one Member State applies for a residence permit in a second Member State, the second Member State may, under Article 15(3) of the Directive on long-term residents, require the person concerned to comply with integration measures, in accordance with national law, provided he has not already been required to comply with integration conditions in order to be granted long-term resident status, in accordance with the provisions of Article 5(2) of the Directive on long-term residents.

3. The Highly Qualified Employment Directive

9. The Highly Qualified Employment Directive favours certain third-country nationals in order to encourage their immigration. Article 15(3) of that directive reads as follows: ‘By way of derogation from … Article 7(2) of [the Family Reunification Directive], the integration conditions and measures referred to therein may only be applied after the persons concerned have been granted family reunification.’

B – Netherlands law

10. Under Netherlands law, a spouse who is intending to join his family is required to prove, prior to entry, that he has a basic knowledge of the Dutch language to the standard of Level A1 ( 5 ) of the Common European Framework of Reference for Languages ( 6 ) and basic knowledge of the Netherlands.

11. In order to produce such proof, he must pass a civic integration examination for which a fee is payable. Anyone who does not pay the costs of the civic integration examination (EUR 350) is not allowed to take the examination.

12. An exemption from the civic integration examination may be granted in the case of a serious mental or physical disability.

13. Furthermore, the person intending to join his family can rely on a hardship clause if, as a result of very special individual circumstances, he is permanently unable to pass the examination, and demonstrates that he has made every effort to pass the examination that he could reasonably have been expected to make.

14. Lastly, nationals of certain third countries are also exempt from the obligation to pass the examination.

III – Facts of the main proceedings and the questions referred for a preliminary ruling

15. Ms K, an Azerbaijani national, and Ms A, a Nigerian national, wish to enter the Netherlands, where their respective spouses, also third-country nationals, ( 7 ) are already residing.

16. In order to be granted exemption from the civic integration examination requirement, they pleaded physical or mental difficulties. The competent authority did not, however, consider these to be sufficiently serious and accordingly refused the applications of Ms K and Ms A.

17. The Raad van State, which is now seised of the dispute, has doubts as to the compatibility of the Netherlands rules on the civic integration examination with the Family Reunification Directive. It requests the Court of Justice to give a preliminary ruling on the following questions: ‘(1) (a) Can the term “integration measures” — contained in Article 7(2) of [the Family Reunification Directive] — be interpreted as meaning that the competent authorities of the Member States may require a member of a sponsor’s family to demonstrate that he or she has knowledge of the official language of the Member State concerned at a level corresponding to level A1 of the Common European Framework of Reference for Languages, as well as a basic knowledge of the society of that Member State, before those authorities authorise that family member’s entry and residence? (1) (b) Is it relevant to the answer to that question that, also in the context of the proportionality test as described in the European Commission’s Green Paper of 15 November 2011 on the right to family reunification, [ ( 8 )] the national legislation containing the requirement referred to in Question 1(a) provides that, leaving aside the case in which the family member has shown that, due to a mental or physical disability, he/she is permanently unable to take the civic integration examination, it is only in the case where there is a combination of very special individual circumstances which justifies the assumption that the family member will be permanently unable to comply with the integration measures that the request for authorisation of entry and residence cannot be rejected? (2) Does the purpose of [the Family Reunification Directive], and in particular Article 7(2) thereof, given the proportionality test as described in the abovementioned Green Paper, preclude costs of EUR 350 per attempt for the examination which assesses whether the family member complies with the aforementioned integration measures, and costs of EUR 110 as a single payment for the pack to prepare for the examination?’

IV – Legal assessment

A – The first question

18. The first question referred is in two parts. First, the referring court asks whether the Netherlands civic integration examination may be regarded as an ‘integration measure’ within the meaning of Article 7(2) of the Family Reunification Directive. Secondly, the referring court asks whether the Netherlands authorities are acting in breach of the principle of proportionality by applying strict conditions to any exemption from that examination requirement for family members intending to join their families.

1. The Netherlands civic integration examination as an ‘integration measure’ within the meaning of Article 7(2) of the Family Reunification Directive

19. As a concept of EU law, ‘integration measure’ must be interpreted autonomously.

20. Whilst there is no definition of ‘integration measure’ in EU law that would make it possible to assess whether it can also cover civic integration examinations such as that which exists in the Netherlands, the term ‘measure’ is sufficiently broad to encompass an integration test. ( 9 )

21. This is not called into question by the fact that not all language versions of Article 7(2) of the Family Reunification Directive use the same wording. While the majority of the language versions ( 10 ) refer to ‘integration measures’, the term used in the Dutch version is ‘integratievoorwarden’ (integration conditions).

22. The actual wording of the Dutch version can be understood as meaning that a civic integration examination can be required as a prerequisite for family reunification.

23. Moreover, ‘integration measures’ within the meaning of Article 7(2) of the Family Reunification Directive are, irrespective of the wording of the particular language version, conceived as a ‘requirement’ for family reunification, as indicated by the title of Chapter IV of the Family Reunification Directive. The fact that the integration measure in question has been satisfactorily complied with, and therefore the ‘requirement for the exercise of the right to family reunification’ within the meaning of Chapter IV has been met, must accordingly be verifiable by the Member State concerned, particularly as the integration of third-country nationals represents one of the aims of the directive.

24. Against that background it is not inconceivable, either conceptually, systematically or teleologically, that an integration measure within the meaning of the Family Reunification Directive should encompass an examination that is used in order to demonstrate that an integration-related condition of family reunification has been met.

25. The fact that a person who is intending to join his family can, moreover, generally be required to pass such an examination in advance is also demonstrated by the second subparagraph of Article 7(2) of the Family Reunification Directive, which rules out integration measures prior to family reunification only in the case of refugees, and Article 15(3) of the Highly Qualified Employment Directive, which makes similar provision in the case of family members of this privileged category of immigrants.

26. Nor can any compelling arguments be derived from the Directive on long-term residents — on which consultation took place at the same time as on the Family Reunification Directive — as to why integration measures within the meaning of the Family Reunification Directive should not be associated with the passing of an examination.

27. In accordance with the Directive on long-term residents, a third-country national may be subject to ‘integration conditions’ in one Member State, but if he satisfies those, he does not need to comply with any further ‘integration measures’ in a second Member State when applying for a residence permit in that second Member State.

28. The conceptual distinction between ‘integration condition’ and ‘integration measure’ leads Advocate General Szpunar to conclude, in respect of the Directive on long-term residents, that mere integration measures may not impose any ‘conditions’; in particular they may ‘not establish a de jure or a de facto instrument for the selection of persons or for the control of migration’. ( 11 )

29. It remains to be seen whether the Court of Justice takes the same view. Regardless of that, however, it is not essential that the concept of integration measure be interpreted in the same way in the Family Reunification Directive and in the Directive on long-term residents. ( 12 ) This is because the circumstances governed by those directives differ.

30. The conceptual distinction between measures and conditions in the Directive on long-term residents is explained by the fact that the intention is to ensure that third-country nationals having a right of permanent residence who have already passed an integration examination in one Member State, and who have thus satisfied an integration condition in that State, are not required to take further integration examinations in another Member State. The first entry of family members into the European Union, which is what the Family Reunification Directive is concerned with, has a different quality however: there was no reason to draw the same conceptual distinction in the Family Reunification Directive as that drawn in the Directive on long-term residents, because the Family Reunification Directive concerns family members joining a person in the territory of the European Union, and there was no danger of integration measures having to be complied with afresh after integration conditions had already been complied with elsewhere.

31. As a condition of entry, the Netherlands civic integration examination can therefore be construed as an ‘integration measure’ within the meaning of Article 7(2) of the Family Reunification Directive, notwithstanding the terminology of the Directive on long-term residents. ( 13 )

32. However, the Netherlands measure in question must also be proportionate to the objective of integration laid down, and may not undermine the effectiveness of the Family Reunification Directive, ( 14 ) which must be examined below in the context of an assessment of proportionality.

2. Whether the Netherlands civic integration examination is proportionate

33. According to the Kingdom of the Netherlands, the civic integration examination is intended to improve the starting-point of those coming to join their families in the Netherlands, and thereby foster their integration in Netherlands society.

34. The Netherlands legislation thus pursues legitimate objectives aimed at integrating the person coming to join the family, ( 15 ) and uses appropriate means to do so, since learning the language of the country is an essential prerequisite for integration. ( 16 ) Language proficiency not only improves the prospects of third-country nationals in the labour market, ( 17 ) but also enables them to seek help in the host country independently in emergencies. ( 18 ) Basic knowledge of a country also ensures that the person coming to join the family is familiar with important fundamental rules of co-existence, ( 19 ) which can help to avoid misunderstandings and breaches of the law.

35. It may well be the case that language and integration courses run in the host Member State itself could have a greater effect than tuition completed abroad. This does not, however, detract from the necessity of the integration measure chosen by the Netherlands and applied prior to family reunification. This is because the Netherlands’ concern is precisely to help to improve the starting-point of the person joining his family. Tuition which starts only after entry into the country would not, therefore, be equally effective.

36. The civic integration examination is fundamentally appropriate also in terms of its structure: knowledge of the language at A1 level of the European Framework of Reference, as required in the civic integration examination, is basic knowledge which can normally be acquired — particularly with the help of appropriate preparatory material ( 20 ) — without a great deal of effort.

37. If one also takes into consideration the fact that the decision to come to the European Union from a third country in order to join the family is a very significant personal decision, it is, moreover, logical that the person intending to join his family should be required to have studied essential aspects of the host State and its rules in advance, particularly since this is not only in the interests of the host State but also in the interests of the person coming to join his family.

38. The fact that nationals of certain third countries, such as Canada and the United States of America, are not required to take the civic integration examination does not have to mean that the Netherlands legislation is inconsistent, since it is open to the Kingdom of the Netherlands to accord certain third countries favourable treatment with regard to the provisions of the directive on the basis of bilateral agreements, pursuant to Article 3(4)(a) of the Family Reunification Directive. That is all the more reason why a similar principle must apply in respect of national integration measures, the adoption of which has been left by the EU legislature to the discretion of the Member States.

39. The Netherlands legislation is not appropriate, however, if individual circumstances are not taken sufficiently into account when the legislation is being applied. ( 21 ) The fact that an application for family reunification is to be determined largely on the basis of a case-by-case assessment follows from Article 17 of the Family Reunification Directive, according to which, inter alia, due account is to be taken of the nature and solidity of the family relationships.

40. According to the referring court, severely disabled applicants as well as privileged third-country nationals are entirely exempt from the obligation to pass the civic integration examination. Moreover, the referring court has drawn attention to a hardship clause, which applies where an applicant is permanently unable to pass the examination on account of very special individual circumstances and demonstrates that he has made every effort to pass the examination that he could reasonably be expected to make.

41. It is for the referring court to determine which situations may be covered by that hardship clause under Netherlands law.

42. In the light of the objectives of the Family Reunification Directive, the hardship clause — along with the Netherlands legislation on the civic integration examination — is, however, appropriate only if it takes account of the individual situation of the applicant, particularly his language proficiency and educational horizons, and exempts him from the examination obligations where unreasonableness is established.

43. In addition to the state of health, cognitive abilities and level of education of the person concerned, factors such as the availability of preparatory material in a form that he can understand, the costs payable and the burden in terms of time may also be significant.

44. A person intending to join his family who does not command any of the 18 languages in which the study materials that can be used to prepare for the examination have been made available cannot, for example, always be expected to start by learning one of those languages in order then to go on, with the aid of those materials, to start his actual preparation for the examination.

45. Furthermore, failure to pass the civic integration examination ought not to lead automatically to family reunification being refused if there are grounds on which it should be granted in a particular case. In so far as the Netherlands legislation enables those specific matters to be taken into account, particularly through the hardship clause, it is not incompatible with the Family Reunification Directive.

46. It is for the referring court to establish whether that is so.

47. The Family Reunification Directive and the principle of proportionality do not, therefore, preclude the application of an integration measure, such as that at issue in the main proceedings, if the examination obligation which that measure incorporates is inapplicable where that obligation is unreasonable for persons intending to join their families, taking into account the person’s individual circumstances, or if, on account of the special circumstances of an individual case, there are grounds on which family reunification should be granted notwithstanding the failure to pass the examination. It is for the referring court to make that assessment.

B – The second question referred

48. By its second question, the referring court asks whether the Family Reunification Directive precludes national legislation under which an examination fee of EUR 350 per attempt is imposed for taking the civic integration examination, together with a one-off charge of EUR 110 for study materials to prepare for the examination.

49. According to the Kingdom of the Netherlands, the fees correspond to actual costs incurred and are thus proportionate. If an applicant does not have sufficient funds to pay the fees, the situation can be considered through the application of the hardship clause.

50. The Family Reunification Directive does not govern whether and to what extent the Member States may charge fees when they act pursuant to the authorisation given to them by Article 7(2) of the directive and impose integration measures on third-country nationals. Accordingly the national legislature has a certain latitude within the context of its procedural autonomy.

51. Fees must not, however, have either the object or the effect of creating an obstacle to the exercise of the right to family reunification, as otherwise the objective of that directive would be undermined. ( 22 ) If the fees would have a significant financial impact on the persons concerned, they could prevent third-country nationals from claiming the right to family reunification conferred by that directive. ( 23 )

52. That risk exists in the present case.

53. Fees in the amounts stated can represent a significant financial burden in many parts of the world, in view of the per capita income there. They could, therefore, in individual cases, create a disproportionate obstacle that undermines the objective of the Family Reunification Directive and its effectiveness, particularly as the examination fee is payable every time the examination is taken. In such cases, a solution could lie, inter alia, in measures for the granting of a dispensation or deferral. Whether and to what extent that is possible under Netherlands law will be a matter for the referring court to assess.

54. The answer to the second question is therefore that the Family Reunification Directive precludes national provisions which attach fees to a civic integration examination such as that at issue in the main proceedings, where those fees and the charging of them are liable to prevent the person intending to join his family from exercising the right to family reunification.

V – Conclusion

55. In the light of the above considerations, I propose that the Court answer the questions referred as follows: (1) Article 7(2) of Directive 2003/86/EC on the right to family reunification and the principle of proportionality do not, therefore, preclude the application of an integration measure, such as that at issue in the main proceedings, if the examination obligation which that measure incorporates is inapplicable where that obligation is unreasonable for persons intending to join their families, taking into account the person’s individual circumstances, or if, on account of the special circumstances of an individual case, there are grounds on which family reunification should be granted notwithstanding the failure to pass the examination. It is for the referring court to make that assessment. (2) Directive 2003/86/EC precludes national provisions which attach fees to a civic integration examination such as that at issue in the main proceedings, where those fees and the charging of them are liable to prevent the person intending to join his family from exercising the right to family reunification.

( 1 ) Original language: German.

( 2 ) Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).

( 3 ) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).

( 4 ) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJ 2009 L 155, p. 17).

( 5 ) Level A1 (Breakthrough) is described as follows at http://www.coe.int/t/dg4/linguistic/Cadre1_en.asp: ‘Can understand and use familiar everyday expressions and very basic phrases aimed at the satisfaction of needs of a concrete type. Can introduce him/herself and others and can ask and answer questions about personal details such as where he/she lives, people he/she knows and things he/she has. Can interact in a simple way provided the other person talks slowly and clearly and is prepared to help.’

( 6 ) See http://www.coe.int/t/dg4/linguistic/source/framework_en.pdf.

( 7 ) It is not clear from the request for a preliminary ruling which nationality each of the spouses holds. In the absence of relevant information, it is hereinafter assumed, however, that they are not persons whose legal status is affected by special agreements between the European Union and third countries (see judgment in Dogan, C‑138/13, EU:C:2014:2066).

( 8 ) COM(2011) 735 final.

( 9 ) On proof of appropriate language knowledge as a prerequisite for family reunification, see the opinion of the Republic of Austria (Council Document 10857/02 of 9 August 2002, p. 12, footnote 3, and Council Document 14272/02 of 26 November 2002, p. 12, footnote 1).

( 10 ) See, for example, the Bulgarian, Danish, German, English, Estonian, Finnish, French, Greek, Italian, Polish, Portuguese, Swedish, Slovak, Spanish, Czech and Hungarian versions of the directive.

( 11 ) Opinion in P and S (C‑579/13, EU:C:2015:39, point 47).

( 12 ) See, however, Opinion in P and S (C‑579/13, EU:C:2015:39, point 46).

( 13 ) Neither primary law considerations nor the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) — reference to Article 8 of which is made in recital 2 in the preamble to the Family Reunification Directive — preclude this interpretation. Thus Article 8 of the ECHR does not grant married couples any unconditional right of entry or residence in a particular State; see, in that regard, points 63 to 67 of my Opinion of 8 September 2005 in Parliament v Council (C‑540/03, EU:C:2005:517), and the judgments of the European Court of Human Rights (ECtHR) in Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001-IX, and in Gül v. Switzerland, 19 February 1996, § 38, Reports of Judgments and Decisions 1996-I, the ECtHR emphasising in the latter case that: ‘Article 8 … cannot be considered to impose on a State a general obligation to … authorise family reunion in its territory’. See also more recently the judgment of the ECtHR in Biao v. Denmark, no. 38590/10, § 53, 25 March 2014.

( 14 ) See point 56 of the Opinion of Advocate General Mengozzi in Dogan (EU:C:2014:287), according to which ‘the term “integration measures” is sufficiently broad to encompass “obligations to achieve a certain result” as well, provided that they are proportionate to the objective of integration laid down in Article 7(2) of [the Family Reunification Directive] … and the effectiveness of the directive is not undermined’.

( 15 ) See recital 15 and Article 4(5) of the Family Reunification Directive.

( 16 ) See point 4 of the Common Basic Principles for Immigrant Integration Policy in the European Union (Council Document 14615/04 of 19 November 2004, p. 16), according to which basic knowledge of the host society’s language, history, and institutions is indispensable to integration.

( 17 ) See European Commission, European Agenda for the Integration of Third-Country Nationals, COM(2011) 455 final, p. 5.

( 18 ) The German Government stated at the hearing that this is an important consideration, for example, in the case of women who have been forced into marriage, because if the women concerned already had a basic knowledge of the language of the country when they entered it, they would be better able to help themselves in an emergency.

( 19 ) The part of the examination that covers basic knowledge of Netherlands society contains questions of practical importance, such as whether men and women have equal rights in the Netherlands, whether the separation of church and State applies in the Netherlands, or at what age children are required to attend school.

( 20 ) The Kingdom of the Netherlands provides a self-study pack for use in preparing for the examination. It is available in 18 languages and should therefore, according to submissions made by the Netherlands Government at the hearing, be immediately comprehensible to approximately 75% of candidates.

( 21 ) See judgment in Dogan (C‑138/13, EU:C:2014:2066, paragraph 38).

( 22 ) See judgments in Commission v Ireland (C‑216/05, EU:C:2006:706, paragraph 43) and Commission v Netherlands (C‑508/10, EU:C:2012:243, paragraph 69).

( 23 ) See judgments in Commission v Ireland (C‑216/05, EU:C:2006:706, paragraph 44) and Commission v Netherlands (C‑508/10, EU:C:2012:243, paragraph 70).