Ermira Bajratari v Secretary of State for the Home Department.
Date: 2019-10-02
16


The referring court notes that this Court has previously held that the requirement imposed by Article 7(1)(b) of Directive 2004/38, according to which a Union citizen must have sufficient resources, is satisfied when those resources are at the disposal of that citizen, and that there is no requirement as to the origin of those resources (see, to that effect, judgments of 19 October 2004, Zhu and Chen, C‑200/02, EU:C:2004:639, paragraph 30, and of 10 October 2013, Alokpa and Moudoulou, C‑86/12, EU:C:2013:645, paragraph 27). Nevertheless, the referring court points out that this Court did not specifically rule on whether income deriving from employment which is unlawful under national law should be taken into account.
20


In that connection, it is solely for the national court hearing the case, which has the responsibility of taking the subsequent judicial decision, to determine, with regard to the particular aspects of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it refers to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 27 June 2019, Azienda Agricola Barausse Antonio e Gabriele, C‑348/18, EU:C:2019:545, paragraph 26 and the case-law cited).
26


As a preliminary matter, it should be noted that, as regards Union citizens who are born in the host Member State and have never made use of their right to freedom of movement, such as Mrs Bajratari’s first two children, the Court has previously held that such Union citizens are entitled to rely on Article 21(1) TFEU and the measures adopted to give it effect (see, to that effect, judgment of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraphs 42 and 43 and the case-law cited).
28


However, it should also be noted that, under Article 21 TFEU, the right to reside within the territory of the Member States is conferred on every citizen of the Union ‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’ (judgment of 30 June 2016, NA, C‑115/15, EU:C:2016:487, paragraph 75).
29


In particular, the limitations and conditions in question are those laid down in Article 7(1) of Directive 2004/38 and include the condition of having sufficient resources not to become a burden on the social assistance system of the host Member State during the period of residence, and having comprehensive sickness insurance cover within the meaning of Article 7(1)(b) of that directive (judgment of 30 June 2016, NA, C‑115/15, EU:C:2016:487, paragraph 76).
30


As regards, inter alia, the condition of sufficient resources provided for in Article 7(1)(b) of Directive 2004/38, the Court has previously held that, while the Union citizen must have sufficient resources, EU law does not, however, lay down any requirement whatsoever as to their origin, since they may be provided, inter alia, by a third-country national who is a parent of the Union citizens who are minors (judgment of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 48 and the case-law cited).
31


Thus, the fact that the resources available to a Union citizen minor, for the purposes of Article 7(1)(b) of Directive 2004/38, derive from income obtained by his third-State national parent from that parent’s employment in the host Member State does not preclude the condition concerning the sufficiency of resources in that provision, from being regarded as satisfied (see, to that effect, judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 76).
35


Furthermore, it should be noted that, as is clear from the Court’s case-law, since the right to freedom of movement is — as a fundamental principle of EU law — the general rule, the conditions laid down in Article 7(1)(b) of Directive 2004/38 must be construed in compliance with the limits imposed by EU law and the principle of proportionality (see, to that effect, judgment of 19 September 2013, Brey, C‑140/12, EU:C:2013:565, paragraph 70 and the case-law cited).
36


Compliance with that principle means that the national measures taken in applying the conditions and limitations laid down in that provision must be appropriate and necessary to attain the objective pursued (see, to that effect, as regards EU legislation prior to Directive 2004/38, judgment of 23 March 2006, Commission v Belgium, C‑408/03, EU:C:2006:192, paragraph 39 and the case-law cited), namely the protection of the public finances of the Member States (see, to that effect, judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 75 and the case-law cited).
40


In particular, under Article 14(2) of Directive 2004/38, the right of Union citizens and their family members to reside in the host Member State on the basis of Article 7 of that directive continues only as long as those citizens and family members meet the conditions laid down in that provision (judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 57).
47


Moreover, an interpretation of the condition of sufficient resources such as that referred to in paragraph 42 above would run contrary to the objective pursued by Directive 2004/38, namely, as is apparent from settled case-law, to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by Article 21(1) TFEU and to strengthen that right (judgment of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraph 31 and the case-law cited).
50


In that regard, it should be noted that, as a justification for derogating from the right of residence of Union citizens or members of their families, the concept of ‘public policy’ must be interpreted strictly, so that its scope cannot be determined unilaterally by the Member States without being subject to control by the EU institutions (judgment of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 37 and the case-law cited).
51


The Court has thus held that the concept of ‘public policy’ presupposes, in any event, the existence, in addition to the disturbance of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (judgment of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 38).