Ibrahima Diallo v État belge.
Date: 2018-06-27
27


Furthermore, the issue of whether a third-country national comes within the scope of Directives 2003/86 and/or 2004/38 necessitates the interpretation of EU law, particularly of the conditions laid down in Article 4 of Directive 2003/86 and in Articles 2 and 3 of Directive 2004/38 (see, to that effect, judgments of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 22, and of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 44).
29


In so far as, by its line of argument, the Belgian Government seeks in reality to challenge the admissibility of the questions referred for a preliminary ruling, it should be recalled that, according to settled case-law, 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 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 (see, to that effect, inter alia, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 23).
37


That interpretation is, moreover, as noted by the Advocate General in point 49 of his Opinion, confirmed by the case-law of the Court, which has ruled, with regard to the issuing of the residence card referred to in Directive 2004/38, that the EU legislature essentially confined itself to listing, in Article 10 of that directive, the documents to be presented in order to obtain such a card, which is then to be furnished within six months from the date on which the application was submitted (judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 42).
45


In that regard, it should be noted that Directive 2004/38 does not contain any provision governing the consequences of the period referred to in Article 10(1) of Directive 2004/38 being exceeded, as that issue comes, in principle, within the scope of the procedural autonomy of the Member States, subject to compliance with the principles of effectiveness and equivalence (see, to that effect, judgment of 17 March 2016, Bensada Benallal, C‑161/15, EU:C:2016:175, paragraph 24).
46


On that basis, while EU law in no way precludes the Member States establishing rules on implicit acceptance or authorisation, such rules must nevertheless not impair the effectiveness of EU law.
48


As is apparent from the settled case-law of the Court, the issuing of a residence card, such as that referred to in Article 10(1) of Directive 2004/38, to a third-country national, must be regarded not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of such a national in light of the provisions of EU law (see, to that effect, judgments of 21 July 2011, Dias, C‑325/09, EU:C:2011:498, paragraph 48, and of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 60).
49


The declaratory character of residence permits means that those permits merely certify that a right already exists for the person concerned (judgments of 25 July 2008, Metock and Others, C‑127/08, EU:C:2008:449, paragraph 52, and of 21 July 2011, Dias, C‑325/09, EU:C:2011:498, paragraph 54).
50


It follows that Article 10(1) of Directive 2004/38 precludes the residence card of a family member of a Union citizen being issued to a third-country national who does not meet the requirements set out by that article for its allocation.
52


However, in the case in the main proceedings, first, it is apparent from the file submitted to the Court that the applicant in the main proceedings cannot rely on his standing as ‘dependent direct relative in the ascending line’ of the Union citizen concerned, within the meaning of Article 2(2)(d) of Directive 2004/38 and of Article 4(2)(a) of Directive 2003/86, so that he cannot be considered a ‘family member’ within the meaning of those provisions (see, to that effect, judgment of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 54).
53


According to settled case-law of the Court, not all third-country nationals derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are a ‘family member’, within the meaning of Article 2(2) of that directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national (judgment of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraph 51).
55


Such a system, in so far as it allows residence cards to be issued to persons who do not qualify for them, is contrary to the objectives of Directive 2004/38.
58


In that regard, it should be noted that Directive 2004/38 does not contain any provisions concerning the effects of the judicial annulment of decisions adopted by competent national authorities refusing to issue a residence card of a family member of a Union citizen, and in particular the issue of what time period those authorities have for the purposes of adopting a new decision following such an annulment.
59


Thus, according to the Court’s settled case-law, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish them in accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgments of 17 March 2016, Bensada Benallal, C‑161/15, EU:C:2016:175, paragraph 24, and of 13 December 2017, El Hassani, C‑403/16, EU:C:2017:960, paragraph 26).
64


In the second place, it is apparent from the settled case-law of the Court that the purpose of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States which is conferred directly on citizens of the Union by Article 21(1) TFEU. Recital 5 of the directive states that that right should, if it is to be exercised under objective conditions of dignity, be also granted to the family members of those citizens, irrespective of nationality (judgment of 14 November 2017Lounes, C‑165/16, EU:C:2017:862, paragraph 31 and the case-law cited).
67


Secondly, it should be noted that, in accordance with Article 5(2) of Directive 2004/38, only the possession of a valid residence card is to exempt the family members of a Union citizen, who are not nationals of a Member State, from the obligation to obtain a visa to enter the territory of the Member States. As is apparent from recital 8 of that directive, that exemption aims to facilitate the free movement of third-country nationals who are family members of a Union citizen (judgment of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraphs 40 and 41).
69


It follows that the principle of effectiveness and the objective of rapid processing of applications inherent to Directive 2004/38 preclude national authorities automatically being allowed a new period of six months following the judicial annulment of an initial decision refusing to issue a residence card. They are required to adopt a new decision within a reasonable period of time, which cannot, in any case, exceed the period referred to in Article 10(1) of Directive 2004/38.