TB v Bevándorlási és Menekültügyi Hivatal.
Date: 2019-12-12
23


In that regard, the Court notes that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances 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 submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26).
24


It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of a rule 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 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27).
25


In the present case, it must be pointed out that, according to the referring court, in adopting Paragraph 19(4)(b) of the 2007 Law, the Hungarian legislature did indeed seek to implement Article 10(2) of Directive 2003/86, that latter provision granting Member States a freedom of choice which forms an integral part of the system established by that directive (see, in that regard, by analogy, judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 65 to 68).
26


The Court must take into account, under the division of jurisdiction between the Courts of the European Union and the national courts, the factual and legal context, as set out in the order for reference, of the questions referred for a preliminary ruling. Consequently, whatever criticism the Hungarian Government may have made of the interpretation of national law adopted by the referring court, the present reference for a preliminary ruling must be examined in the light of the referring court’s interpretation of that law (see, to that effect, judgment of 21 June 2016, New Valmar, C‑15/15, EU:C:2016:464, paragraph 25).
31


The mere fact that, in the context of the implementation of Article 10(2) of Directive 2003/86, the Hungarian legislature used analogous language to that referred to in Article 4(2) and (3) of that directive is not sufficient to justify a request for interpretation of those provisions. The referring court did not assert, in its request for a preliminary ruling, that the Hungarian legislature had intended to make a direct and unconditional reference to such provisions in adopting Paragraph 19(4)(b) of the 2007 Law (see, in that regard, judgments of 18 October 2012, Nolan, C‑583/10, EU:C:2012:638, paragraph 47, and of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 33).
36


Recital 8 of that directive states, however, that the directive provides more favourable conditions for refugees to exercise their right to family reunification, since special attention should be paid to their situation on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there (judgment of 12 April 2018, A and S, C‑550/16, EU:C:2018:248, paragraph 32).
42


First, if that condition is not to be rendered entirely ineffective, Article 10(2) of Directive 2003/86 must be interpreted as precluding a Member State from authorising the reunification of a member of a refugee’s family, who is not referred to in Article 4 of that directive, where that family member is not dependent on the refugee. National legislation which does not comply with that condition would be contrary to the objectives of Directive 2003/86 inasmuch as it would allow the status arising from that directive to be granted to persons who do not meet the conditions for obtaining it (see, by analogy, judgments of 27 June 2018, Diallo, C‑246/17, EU:C:2018:499, paragraph 55, and of 23 May 2019, Bilali, C‑720/17, EU:C:2019:448, paragraph 44).
44


Secondly, as regards the meaning to be given to the condition of being ‘dependent’ on the refugee, it must be borne in mind that the need to ensure a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union (judgment of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraph 62 and the case-law cited).
47


According to that case-law, the status of ‘dependent’ family member of a Union citizen holding a right of residence presupposes that the existence of a situation of real dependence is established. That dependent status is the result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence (judgments of 19 October 2004, Zhu and Chen, C‑200/02, EU:C:2004:639, paragraph 43; of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 55; of 16 January 2014, Reyes, C‑423/12, EU:C:2014:16, paragraphs 20 and 21; and of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 50).
48


In order to determine the existence of such dependence, the host Member State must assess whether, having regard to his or her financial and social conditions, the family member is not in a position to support himself or herself. The need for material support must exist in the State of origin of the family member or the country whence he or she came at the time when he or she applies to join the EU citizen (see, to that effect, judgments of 9 January 2007, Jia, C‑1/05, EU:C:2007:1, paragraph 37, and of 16 January 2014, Reyes, C‑423/12, EU:C:2014:16, paragraphs 22 and 30).
50


However, regard must also be had to the fact that, as stated in recital 8 of Directive 2003/86, and is apparent from paragraph 35 of the present judgment, special attention should be paid to the situation of refugees, since they have been obliged to flee their country and cannot conceivably lead a normal family life there, they may have been separated from their family for a long period of time before being granted refugee status, and it is often impossible or dangerous for refugees or their family members to produce official documents, or to contact the authorities of their country of origin (see, to that effect, judgments of 7 November 2018, K and B, C‑380/17, EU:C:2018:877 paragraph 53, and of 13 March 2019, E., C‑635/17, EU:C:2019:192, paragraph 66).
53


That interpretation is reinforced by Article 17 of Directive 2003/86 which requires applications for family reunification to be examined on a case-by-case basis, according to which, as is apparent from recital 8 of that directive, account must be taken, inter alia, of the specificities related to the sponsor’s refugee status (see, to that effect, judgment of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 53).
57


In that regard, the Court points out, first, that the disparities which may follow from the fact that each Member State is thereby free to define the nature of the relationship of dependence which, in accordance with its national law, enables a refugee’s family members, other than those referred to in Article 4 of Directive 2003/86, to enjoy a right to family reunification within the meaning of that directive, are perfectly reconcilable with the nature and purpose of Article 10(2) of that directive. It is apparent from paragraphs 38 to 40 above that Article 10(2) was conceived by the EU legislature as an optional provision the implementation of which leaves the Member States a discretion, so that disparities in the national laws implementing such an option flow naturally from that legislature’s choice (see, by analogy, judgment of 12 April 2018, A and S, C‑550/16, EU:C:2018:248, paragraph 47).
62


Consequently, the discretion afforded to the Member States by Article 10(2) must, first of all, not be used by them in a manner which would undermine the objective of Directive 2003/86 and the effectiveness of that directive (see, to that effect, judgment of 13 March 2019, E., C‑635/17, EU:C:2019:192, paragraph 53).
65


Admittedly, the provisions of the Charter cannot be interpreted so as to deprive the Member States of the discretion available to them when they decide to implement Article 10(2) of Directive 2003/86 and examine the applications for family reunification made under that provision. However, the provisions of Directive 2003/86 must, in the course of such an examination, be interpreted and applied in particular in the light of Article 7 of the Charter, which enshrines, inter alia, the right to respect for family life (see, to that effect, judgment of 21 April 2016, Khachab, C‑558/14, EU:C:2016:285, paragraph 28).
66


Lastly, 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 Article 10(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 (judgment of 21 April 2016, Khachab, C‑558/14, EU:C:2016:285, paragraph 42).
75


Specifically, the examination on a case-by-case basis of the application must take into account, in a balanced and reasonable manner, all the relevant aspects of the personal situation of a refugee’s sister, such as her age, level of education, professional and financial situation, and state of health. The national authorities must also take account of the fact that the extent of needs can vary greatly depending on the individual (see, to that effect, judgment of 4 March 2010, Chakroun, C‑578/08, EU:C:2010:117, paragraph 48), and also of the special situation of refugees, in particular the specific difficulties faced by them as regards obtaining evidence in their countries of origin.