European Parliament v Council of the European Union.
Date: 2006-06-27
22. As to that argument, the fact that the contested provisions of the Directive afford the Member States a certain margin of appreciation and allow them in certain circumstances to apply national legislation derogating from the basic rules imposed by the Directive cannot have the effect of excluding those provisions from review by the Court of their legality as envisaged by Article 230 EC.
23. Furthermore, a provision of a Community act could, in itself, not respect fundamental rights if it required, or expressly or impliedly authorised, the Member States to adopt or retain national legislation not respecting those rights.
27. As follows from settled case-law, partial annulment of a Community act is possible only if the elements whose annulment is sought may be severed from the remainder of the act (see, inter alia, Case C-29/99 Commission  v Council  [2002] ECR I-11221, paragraphs 45 and 46; Case C-378/00 Commission  v Parliament and Council  [2003] ECR I-937, paragraph 29; Case C-239/01 Germany  v Commission  [2003] ECR I-10333, paragraph 33; Case C-244/03 France  v Parliament and Council  [2005] ECR I-4021, paragraph 12; and Case C‑36/04 Spain  v Council  [2006] ECR I-0000, paragraph 9).
28. The Court has also repeatedly ruled that that requirement of severability is not satisfied where the partial annulment of an act would have the effect of altering its substance (Joined Cases C-68/94 and C-30/95 France and Others  v Commission  [1998] ECR I-1375, paragraph 257; Commission  v Council , paragraph 46; Germany  v Commission , paragraph 34; France  v Parliament and Council , paragraph 13; and Spain  v Council , paragraph 13).
29. In the present case, review of whether the provisions whose annulment is sought are severable requires consideration of the substance of the case, that is to say of the scope of those provisions, in order to be able to assess whether their annulment would alter the Directive’s spirit and substance.
The action
The rules of law in whose light the Directive’s legality may be reviewed
35. Fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (see, inter alia, Case C-260/89 ERT  [1991] ECR I-2925, paragraph 41; Opinion 2/94 [1996] ECR I‑1759, paragraph 33; Case C-274/99 P Connolly  v Commission  [2001] ECR I‑1611, paragraph 37; Case C-94/00 Roquette Frères  [2002] ECR I-9011, paragraph 25; Case C-112/00 Schmidberger  [2003] ECR I-5659, paragraph 71; and Case C-36/02 Omega  [2004] ECR I-9609, paragraph 33).
36. In addition, Article 6(2) EU states that ‘the Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law’.
37. The Court has already had occasion to point out that the International Covenant on Civil and Political Rights is one of the international instruments for the protection of human rights of which it takes account in applying the general principles of Community law (see, inter alia, Case 374/87 Orkem  v Commission  [1989] ECR 3283, paragraph 31; Joined Cases C-297/88 and C-197/89 Dzodzi  [1990] ECR I‑3763, paragraph 68; and Case C-249/96 Grant  [1998] ECR I-621, paragraph 44). That is also true of the Convention on the Rights of the Child referred to above which, like the Covenant, binds each of the Member States.
52. The right to respect for family life within the meaning of Article 8 of the ECHR is among the fundamental rights which, according to the Court’s settled case-law, are protected in Community law ( Carpenter , paragraph 41, and Akrich , paragraphs 58 and 59). This right to live with one’s close family results in obligations for the Member States which may be negative, when a Member State is required not to deport a person, or positive, when it is required to let a person enter and reside in its territory.
53. Thus, the Court has held that, even though the ECHR does not guarantee as a fundamental right the right of an alien to enter or to reside in a particular country, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed by Article 8(1) of the ECHR ( Carpenter , paragraph 42, and Akrich , paragraph 59).
56. The European Court of Human Rights has stated that, in its analysis, it takes account of the age of the children concerned, their circumstances in the country of origin and the extent to which they are dependent on relatives ( Sen v. the Netherlands , § 37; see also Rodrigues da Silva and Hoogkamer v. the Netherlands , no. 50435/99, § 39, 31 January 2006).
58. The Charter likewise recognises, in Article 7, the right to respect for private or family life. This provision must be read in conjunction with the obligation to have regard to the child’s best interests, which are recognised in Article 24(2) of the Charter, and taking account of the need, expressed in Article 24(3), for a child to maintain on a regular basis a personal relationship with both his or her parents.
59. These various instruments stress the importance to a child of family life and recommend that States have regard to the child’s interests but they do not create for the members of a family an individual right to be allowed to enter the territory of a State and cannot be interpreted as denying States a certain margin of appreciation when they examine applications for family reunification.
60. Going beyond those provisions, Article 4(1) of the Directive imposes precise positive obligations, with corresponding clearly defined individual rights, on the Member States, since it requires them, in the cases determined by the Directive, to authorise family reunification of certain members of the sponsor’s family, without being left a margin of appreciation.
64. Note should also be taken of Article 17 of the Directive which requires Member States to 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. As is apparent from paragraph 56 of the present judgment, such criteria correspond to those taken into consideration by the European Court of Human Rights when it reviews whether a State which has refused an application for family reunification has correctly weighed the competing interests.
69. A condition for integration within the meaning of the final subparagraph of Article 4(1) of the Directive may therefore be taken into account when considering an application for family reunification and the Community legislature did not contradict itself by authorising Member States, in the specific circumstances envisaged by that provision, to consider applications in the light of such a condition in the context of a directive which, as is apparent from the fourth recital in its preamble, has the general objective of facilitating the integration of third country nationals in Member States by making family life possible through reunification.
104. In the final analysis, while the Directive leaves the Member States a margin of appreciation, it is sufficiently wide to enable them to apply the Directive’s rules in a manner consistent with the requirements flowing from the protection of fundamental rights (see, to this effect, Case 5/88 Wachauf  [1989] ECR 2609, paragraph 22).
105. It should be remembered that, in accordance with settled case-law, the requirements flowing from the protection of general principles recognised in the Community legal order, which include fundamental rights, are also binding on Member States when they implement Community rules, and that consequently they are bound, as far as possible, to apply the rules in accordance with those requirements (see Case C-2/92 Bostock  [1994] ECR I-955, paragraph 16; Case C‑107/97 Rombi and Arkopharma  [2000] ECR I-3367, paragraph 65; and, to this effect, ERT , paragraph 43).