Minister van Buitenlandse Zaken v K and A.
Date: 2015-07-09
45. Under Article 4(1) of Directive 2003/86, the Member States are to authorise the entry and residence of the sponsor’s spouse for the purposes of family reunification, provided that the conditions laid down in Chapter IV of that directive, entitled ‘Requirements for the exercise of the right to family reunification’, are complied with.
46. The Court has already held that that provision imposes specific positive obligations, with corresponding clearly defined individual rights, on the Member States, since it requires them, in the cases determined by that directive, to authorise family reunification of certain members of the sponsor’s family, without being left a margin of appreciation (judgment in Chakroun , C‑578/08, EU:C:2010:117, paragraph 41).
50. However, since authorisation of family reunification is the general rule, the first subparagraph of Article 7(2) of Directive 2003/86 must be interpreted strictly. Furthermore, the leeway given to the Member States must not be used by them in a manner which would undermine the objective and effectiveness of that directive, which is to promote family reunification (see, to that effect, judgment in Chakroun , C‑578/08, EU:C:2010:117, paragraph 43).
51. In that regard, in accordance with the principle of proportionality, which is one of the general principles of EU law, the measures implemented by the 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 (see, by analogy, judgment in Commission  v Netherlands , C‑508/10, EU:C:2012:243, paragraph 75).
53. Against that background, it cannot be disputed that the acquisition of knowledge of the language and society of the host Member State greatly facilitates communication between third country nationals and nationals of the Member State concerned and, moreover, encourages interaction and the development of social relations between them. Nor can it be contested that the acquisition of knowledge of the language of the host Member State makes it less difficult for third country nationals to access the labour market and vocational training (see, concerning the interpretation of 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), judgment in P and S (C‑579/13, EU:C:2015:369, paragraph 47)).
54. From that perspective, the requirement to pass a civic integration examination at a basic level is capable of ensuring that the nationals of third countries acquire knowledge which is undeniably useful for establishing connections with the host Member State.
55. Furthermore, in the light of the level of knowledge required to pass the civic integration examination at issue in the main proceedings, it must be considered, in principle, that the requirement to pass such an examination does not undermine the aims of family reunification pursued by Directive 2003/86.
56. However, in any event, the principle of proportionality requires the conditions of application of such a requirement not to exceed what is necessary to achieve those aims. That would, in particular, be the case if the application of that requirement were systematically to prevent family reunification of a sponsor’s family members where, despite having failed the integration examination, they have demonstrated their willingness to pass the examination and they have made every effort to achieve that objective.
57. The integration measures referred to in the first subparagraph of Article 7(2) of Directive 2003/86 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.
58. Moreover, specific individual circumstances, such as the age, illiteracy, level of education, economic situation or health of a 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.
59. Were that not the case, in such circumstances such a requirement could form a difficult obstacle to overcome in making the right to family reunification recognised by Directive 2003/86 exercisable.
60. That interpretation is supported by Article 17 of Directive 2003/86, which requires applications for family reunification to be examined on a case-by-case basis.
61. However, in this case, according to the order for reference, leaving aside the case in which a family member shows that, due to a mental or physical disability, he is permanently unable to take the civic integration examination at issue in the main proceedings, it is only in the case where the hardship clause provided for in Article 3.71a(2)(d) of the Vb 2000 applies that the request for authorisation of entry and residence cannot be rejected.
62. Also according to the order for reference, it is only if, as a result of a set of very special individual circumstances, the third country national is permanently unable to pass that examination that the hardship clause is to apply.
63. It therefore appears that the hardship clause provided for in Article 3.71a(2)(d) of the Vb 2000 is not capable of dispensing the members of the sponsors’ family concerned, in the light of the individual circumstances of their situations, from the requirement to pass the civic integration examination in all possible cases where maintaining that requirement would make family reunification impossible or excessively difficult.
64. Finally, concerning in particular the various costs relating to the civic integration examination at issue in the main proceedings, it must be pointed out that, whilst the Member States are free to require third country nationals to pay various fees related to integration measures adopted under Article 7(2) of Directive 2003/86 as well as to determine the amount of those fees, the fact remains that, in accordance with the principle of proportionality, the level at which those costs are determined must not aim, nor have the effect of, making family reunification impossible or excessively difficult if it is not to undermine the objective of Directive 2003/86 and render it redundant.
65. That would in particular be the case if the amount of the fees required to be paid to take the civic integration examination at issue in the main proceedings were excessive in the light of its significant financial impact on the third country nationals concerned (see, by analogy, judgment in Commission  v Netherlands , C‑508/10, EU:C:2012:243, paragraph 74).
66. In that regard, it must be noted that, as is clear from the order for reference, under the national legislation at issue in the main proceedings, both the course fees for taking the civic integration examination at issue in the main proceedings and the fees relating to its preparation must be paid by the relevant family members of the sponsor.
67. It must also be noted that the cost of the examination preparation pack, charged as a single payment, is EUR 110 and the course fees are EUR 350. The relevant family members of the sponsor incur the course fees every time that they take the examination.
68. It is also clear from the order for reference that a relevant family member of the sponsor who has not paid the course fees is not allowed to take the civic integration examination at issue in the main proceedings.
69. In those circumstances, as the Advocate General stated in point 53 of her Opinion, the inevitable conclusion is that the amount of the fees relating to the civic integration examination at issue in the main proceedings is, in circumstances such as those at issue in the main proceedings, capable of making family reunification impossible or extremely difficult.
70. It is a fortiori  thus where the course fees must be paid every time the examination is taken and by each of the sponsor’s family members wishing to join the sponsor in the host Member State and, in addition to those fees, there are those costs which the relevant family members of the sponsor must incur in order to travel to the closest Netherlands mission to take the examination.