E. v Staatssecretaris van Veiligheid en Justitie.
Date: 2019-03-13
27


Nevertheless, the referring court is uncertain, in the light of the judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraphs 53 to 56), whether the Court of Justice has jurisdiction to answer such a question in the case in the main proceedings, observing that, although the situation of A., in so far as she is merely the beneficiary of subsidiary protection, does not fall within the scope of the provisions of that directive, those provisions have been made directly and unconditionally applicable to such a situation by Netherlands law.
34


It follows that Directive 2003/86 must be interpreted as not applying to third country national family members of a beneficiary of subsidiary protection, such as A. (judgment of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 33).
35


It is clear, however, from the Court’s settled case-law that the Court has jurisdiction to give a preliminary ruling on questions concerning provisions of EU law in situations in which, even if the facts of the case in the main proceedings do not fall within the field of application of EU law directly, provisions of EU law have been rendered applicable by domestic law due to a reference made by that law to the content of those provisions (judgment of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 34 and the case-law cited).
36


In such a situation, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from EU law should be interpreted uniformly (judgment of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 35 and the case-law cited).
37


Thus, an interpretation by the Court of provisions of EU law in situations not falling within the scope of EU law is warranted where such provisions have been made applicable to such situations by national law directly and unconditionally, in order to ensure that those situations and situations falling within the scope of EU law are treated in the same way (judgment of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 36 and the case-law cited).
38


In the present case, the referring court, with exclusive jurisdiction to interpret national law under the framework of the system of judicial cooperation enshrined in Article 267 TFEU (see, by analogy, judgment of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 37 and the case-law cited), has made clear that the Netherlands legislature has chosen to ensure that beneficiaries of subsidiary protection are treated more favourably than provided for in Directive 2003/86 by applying the rules applicable to refugees under that directive to beneficiaries of subsidiary protection. The referring court infers that it was, under Netherlands law, required to apply Article 11(2) of that directive to the case in the main proceedings.
39


In those circumstances, it must be held that in Dutch law that provision is directly and unconditionally applicable to situations such as that at issue in the main proceedings and that it is therefore clearly in the interest of the European Union that the Court rule on the request for a preliminary ruling (see, by analogy, judgment of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 38).
40


The Court has previously held that, where the condition stated in paragraph 37 above is satisfied, it may also have jurisdiction in situations covered by an express exclusion from the scope of EU legislation (judgment of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 37 and the case-law cited).
41


In that context, it cannot be justified for the Court’s jurisdiction to vary depending on whether the scope of the relevant provision was limited by a definition of the cases to which it refers or by means of certain exclusions from its scope, since both legislative techniques may be used interchangeably (judgment of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 39).
42


In addition, although the referring court has expressed doubts as to the jurisdiction of the Court according to the judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638), it should be noted that the case which gave rise to that judgment was characterised by particularities which do not apply to the case in the main proceedings (see, by analogy, judgment of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraphs 41 to 43).
45


In that regard, it must be recalled that the objective pursued by Directive 2003/86 is to promote family reunification and that that directive also aims to give protection to third country nationals, in particular minors (see, to that effect, judgment of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 69).
46


In that context, Article 4(1) of that directive imposes on the Member States precise positive obligations, with corresponding clearly defined individual rights. It requires them, in the cases determined by that directive, to authorise the family reunification of certain members of the sponsor’s family, without being left a margin of appreciation (judgments of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 60, and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 70).
52


As regards the examination to be carried out by the competent national authorities, it is apparent both from Article 5(2) and Article 11(2) of Directive 2003/86 that those authorities have a margin of discretion, inter alia, when examining whether there is a family relationship, that discretion being used in accordance with national law (see, to that effect, judgments of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 59, and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 74).
53


Nevertheless, the margin of discretion afforded to the Member States must not be used by them in a manner which would undermine the objective of Directive 2003/86 or the effectiveness thereof. Moreover, as is apparent from recital 2 of that directive, it respects the fundamental rights and observes the principles enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, judgment of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 74 and 75).
54


Accordingly, the Member States must not only interpret their national law in a manner consistent with EU law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the legal order of the European Union (see, to that effect, judgments of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 105; of 23 December 2009, Detiček, C‑403/09 PPU, EU:C:2009:810, paragraph 34, and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 78).
55


Article 7 of the Charter, which recognises the right to respect for private or family life, must be read in conjunction with the obligation to have regard to the child’s best interests, recognised in Article 24(2) of the Charter, and with account being taken of the need, expressed in Article 24(3) of the Charter, for a child to maintain on a regular basis a personal relationship with both parents (judgment of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 58).
56


It follows that the provisions of Directive 2003/86 must be interpreted and applied in the light of Article 7 and Article 24(2) and (3) of the Charter, as is moreover apparent from recital 2 and Article 5(5) of that directive, which require the Member States to examine the applications for reunification in question in the interests of the children concerned and with a view to promoting family life (judgment of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 80).
57


In that regard, it is for the competent national authorities to make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned (judgment of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 81).
58


Regard must also be had to Article 17 of Directive 2003/86, which requires applications for family reunification to be examined on a case-by-case basis (judgments of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraph 60, and of 21 April 2016, Khachab, C‑558/14, EU:C:2016:285, paragraph 43), which must 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 country of origin (judgment of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 64).
59


Consequently, it is for the competent national authorities, when implementing Directive 2003/86 and examining applications for family reunification, to make, inter alia, a case-by-case assessment which takes account of all the relevant aspects of the particular case and, where appropriate, pays particular attention to the interests of the children concerned and with a view to promoting family life. In particular, circumstances such as the age of the children concerned, their circumstances in the country of origin and the extent to which they are dependent on relatives are liable to influence the extent and intensity of the examination required (see, to that effect, judgment of 27 June 2006, Parliament v Council, C‑540/03, EU:C:2006:429, paragraph 56). In any event, as stated in paragraph 6.1 of the Guidelines, no factor taken separately may automatically lead to a decision.
61


As the Advocate General noted in points 57 and 71 of his Opinion, it follows from those provisions that the sponsor and the member of her family concerned by the application for family reunification are obliged to cooperate with the competent national authorities, in particular for the purpose of determining their identity, the existence of their family relationship and the grounds justifying their application, which amounts to supplying, as far as possible, the required supporting documents and, where appropriate, the explanations and information requested (see, by analogy, judgment of 14 September 2017, K., C‑18/16, EU:C:2017:680, paragraph 38).
66


According to recital 8 of Directive 2003/86, special attention must be paid to the situation of refugees on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there. As paragraph 6.1.2 of the Guidelines also states, the particular situation of refugees implies that it is often impossible or dangerous for refugees or their family members to produce official documents, or to get in touch with diplomatic or consular authorities of their country of origin.