G.S. and V.G. v Staatssecretaris van Justitie en Veiligheid.
Date: 2019-12-12
39


It should be noted, first, that Article 2(c) of Directive 2003/86 specifies that the term ‘sponsor’ necessarily refers to a third-country national and, second, that Article 3(3) of that directive provides that the directive is not to apply to members of the family of a Union citizen (judgment of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 29).
40


The EU legislature did not therefore intend Directive 2003/86 to apply to a third-country national who is a member of the family a Union citizen who has not exercised his or her right to free movement, such as the applicant in the main proceedings, as is indeed confirmed by the travaux préparatoires for that directive (judgment of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 30 and the case-law cited).
41


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 main proceedings do not fall directly within the field of application of EU law, provisions of EU law have been rendered applicable by domestic law due to a reference made by the latter to the content of those provisions (judgment of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 31 and the case-law cited).
42


In such situations, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, the provisions taken from EU law should be interpreted uniformly (judgment of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 32 and the case-law cited).
43


Thus, an interpretation by the Court of provisions of EU law in situations not falling within their scope is warranted where such provisions have been made directly and unconditionally applicable to such situations by national law, in order to ensure that those situations and situations falling within the scope of those provisions are treated in the same way (judgment of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 33 and the case-law cited).
44


In the present instance, the referring court, which has exclusive jurisdiction to interpret national law under the system of judicial cooperation established in Article 267 TFEU (judgment of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 34 and the case-law cited), has explained that it follows from Netherlands law that, where, as in the main proceedings, the national legislature subjects one situation falling within the scope of EU law and another falling outside its scope to the same rule, those situations must be treated in the same way. The referring court has inferred from this that under Netherlands law it had to apply Article 6 of Directive 2003/86 in the main proceedings.
46


That conclusion cannot be affected by the fact that Article 3(3) of Directive 2003/86 expressly excludes situations such as that at issue in the main proceedings in Case C‑382/18 from the scope of that directive, since it is clear from the Court’s case-law that such a fact is not capable of calling into question the Court’s jurisdiction to give a preliminary ruling in the context defined in the Court’s settled case-law recalled in paragraphs 41 to 43 of the present judgment (see, to that effect, judgments of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraphs 36 to 43; of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 40; and of 13 March 2019, E., C‑635/17, EU:C:2019:192, paragraphs 40 to 42).
47


The case-law recalled in paragraphs 41 to 43 of the present judgment is intended specifically to allow the Court to rule on the interpretation of provisions of EU law, irrespective of the circumstances in which those provisions are applicable, in situations which the authors of the Treaties or the EU legislature did not consider it appropriate to include within the scope of those provisions. Thus, 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, paragraphs 38 and 39 and the case-law cited).
53


In that context, with a view to determining the scope of the concept of ‘grounds of public policy’, within the meaning of those provisions, it should be noted that it is apparent from the Court’s settled case-law that a Union citizen who has exercised his or her right to free movement and certain members of that citizen’s family can be regarded as posing a threat to public policy only if their individual conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned (see, to that effect, judgments of 29 April 2004, Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, EU:C:2004:262, paragraphs 66 and 67, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 44).
55


It is thus necessary, in order to define the scope of the concept of ‘grounds of public policy’, within the meaning of Article 6(1) and (2) of Directive 2003/86, to take into account the wording of those provisions, their context and the objectives pursued by the legislation of which they form part (see, to that effect, judgments of 24 June 2015, T., C‑373/13, EU:C:2015:413, paragraph 58, and of 4 April 2017, Fahimian, C‑544/15, EU:C:2017:255, paragraph 30). The origins of a provision of EU law may also provide information relevant to its interpretation (see, to that effect, judgment of 1 October 2019, Planet49, C‑673/17, EU:C:2019:801, paragraph 48 and the case-law cited).
60


In the fourth place, so far as concerns the objective pursued by Directive 2003/86, it is apparent from the Court’s case-law that that directive is intended to promote family reunification and to grant protection to third-country nationals, in particular minors (see, to that effect, judgments of 12 April 2018, A and S, C‑550/16, EU:C:2018:248, paragraph 44, and of 13 March 2019, E., C‑635/17, EU:C:2019:192, paragraph 45).
61


In order to achieve that objective, Article 4(1) of Directive 2003/86 imposes on the Member States precise positive obligations, with corresponding clearly defined individual rights. It thus requires them to authorise the family reunification of certain members of the sponsor’s family, without being left a margin of appreciation, provided that the conditions laid down in Chapter IV of the directive, which includes Article 6 thereof, are satisfied (see, to that effect, judgments of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraphs 45 and 46, and of 13 March 2019, E., C‑635/17, EU:C:2019:192, paragraph 46).
62


Accordingly, since authorisation of family reunification is the general rule, Article 6(1) and (2) of Directive 2003/86 must be interpreted strictly and the leeway given to the Member States must not be used by them in a manner which would undermine the objective and effectiveness of the directive (see, by analogy, judgments of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraph 50, and of 7 November 2018, C and A, C‑257/17, EU:C:2018:876, paragraph 51).
64


On the other hand, in accordance with the principle of proportionality, which is one of the general principles of EU law, the national practice applying those provisions cannot, in particular, go beyond what is necessary to ensure that public policy is safeguarded (see, by analogy, judgment of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraph 51).
68


Furthermore, before adopting a negative decision on the basis of Article 6 of Directive 2003/86, the competent authorities must carry out, in accordance with Article 17 of that directive, an individual assessment of the situation of the person concerned, taking due account of the nature and solidity of that person’s family relationships, of the duration of his or her residence in the Member State and of the existence of family, cultural and social ties with his or her country of origin (see, to that effect, judgment of 13 March 2019, E., C‑635/17, EU:C:2019:192, paragraph 58 and the case-law cited).