1 This request for a preliminary ruling concerns the interpretation of Article 7(1)(e) Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (OJ 2016 L 132, p. 21), the principle of the primacy of EU law, Article 79 TFEU and Articles 45 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between a third-country national, OS, and the Országos Idegenrendészeti Főigazgatóság (National Directorate-General of the Immigration Police, Hungary; ‘the National Directorate’) concerning the rejection of his application for the renewal of a residence permit in Hungary for the purpose of carrying out voluntary work.
3 Article 5 of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), entitled ‘Conditions for acquiring long-term resident status’, provides, in paragraph 1: ‘Member States shall require third-country nationals to provide evidence that they have, for themselves and for dependent family members: (a) stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions prior to the application for long-term resident status; …’
4 Article 7 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77 and corrigendum OJ 2004 L 229, p. 35), entitled ‘Right of residence for more than three months’, provides, in paragraph 1: ‘All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: … (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State … …’
5 Recitals 2, 3, 20, 21, 41, 42, 54 and 61 of Directive 2016/801 state: ‘(2) This Directive should respond to the need identified in the implementation reports on [Council Directives 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L 375, p. 12) and 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJ 2005 L 289, p. 15)] to remedy the identified weaknesses, to ensure increased transparency and legal certainty and to offer a coherent legal framework for different categories of third-country nationals coming to the [European] Union. It should therefore simplify and streamline the existing provisions for those categories in a single instrument. Despite differences between the categories covered by this Directive, they also share a number of characteristics which makes it possible to address them through a common legal framework at Union level. (3) This Directive should contribute to the Stockholm Programme’s aim of approximating national legislation on the conditions for entry and residence of third-country nationals. Immigration from outside the Union is one source of highly skilled people, and students and researchers are in particular increasingly sought after. They play an important role in forming the Union’s key asset, human capital, and in ensuring smart, sustainable and inclusive growth, and therefore contribute to the achievement of the objectives of the Europe 2020 Strategy. … (20) This Directive should support the aims of the European Voluntary Service to develop solidarity, mutual understanding and tolerance among young people and the societies they live in, while contributing to strengthening social cohesion and promoting young people’s active [citizenship]. In order to ensure access to the European Voluntary Service in a consistent manner across the Union, Member States should apply the provisions of this Directive to third-country nationals applying for the purpose of European Voluntary Service. (21) Member States should have the possibility to apply the provisions of this Directive to school pupils, volunteers other than those under the European Voluntary Service and au pairs, in order to facilitate their entry and residence and ensure their rights. … (41) In case of doubts concerning the grounds of the application for admission, Member States should be able to carry out appropriate checks or require evidence in order to assess, on a [case-by-case] basis, the applicant’s intended research, studies, training, voluntary service, pupil exchange scheme or educational project or au pairing and fight against abuse and misuse of the procedure set out in this Directive. (42) Where the information provided is incomplete, Member States should inform the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. Where additional information has not been provided within that deadline, the application could be rejected. … (54) The fair treatment of third-country nationals covered by this Directive should be ensured in accordance with Article 79 TFEU. Researchers should enjoy equal treatment with nationals of the Member State concerned as regards Article 12(1) and (4) of [Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (OJ 2011 L 343, p. 1)] subject to the possibility for that Member State to limit equal treatment in the specific cases provided for in this Directive. … … (61) This Directive respects the fundamental rights and observes the principles recognised by the [Charter], in accordance with Article 6 [TEU].’
6 Article 1 of that directive, which is entitled ‘Subject matter’, is worded as follows: ‘This Directive lays down: (a) the conditions of entry to, and residence for a period exceeding 90 days in, the territory of the Member States, and the rights, of third-country nationals, and where applicable their family members, for the purpose of research, studies, training or voluntary service in the European Voluntary Service, and where Member States so decide, pupil exchange schemes or educational projects, voluntary service other than the European Voluntary Service or au pairing; …’
7 Article 2 of that directive, entitled ‘Scope’, provides, in paragraph 1: ‘This Directive shall apply to third-country nationals who apply to be admitted or who have been admitted to the territory of a Member State for the purpose of research, studies, training or voluntary service in the European Voluntary Service. Member States may also decide to apply the provisions of this Directive to third-country nationals who apply to be admitted for the purpose of a pupil exchange scheme or educational project, voluntary service other than the European Voluntary Service or au pairing.’
8 Article 4 of that directive, entitled ‘More favourable provisions’, states, in paragraph 1: ‘This Directive shall be without prejudice to more favourable provisions of: (a) bilateral or multilateral agreements concluded between the Union or the Union and its Member States and one or more third countries; or (b) bilateral or multilateral agreements concluded between one or more Member States and one or more third countries.’
9 Under Article 5(1) and (3) of Directive 2016/801: ‘1. The admission of a third-country national under this Directive shall be subject to the verification of documentary evidence attesting that the third-country national meets: (a) the general conditions laid down in Article 7; and (b) the relevant specific conditions in Article 8, 11, 12, 13, 14 or 16. … 3. Where all the general conditions and relevant specific conditions are fulfilled, the third-country national shall be entitled to an authorisation. Where a Member State issues residence permits only on its territory and all the admission conditions laid down in this Directive are fulfilled, the Member State concerned shall issue the third-country national with the requisite visa.’
10 Article 7 of that directive, entitled ‘General conditions’, provides, in paragraph 1: ‘As regards the admission of a third-country national under this Directive, the applicant shall: … (c) present evidence that the third-country national has or, if provided for in national law, has applied for sickness insurance for all risks normally covered for nationals of the Member State concerned; the insurance shall be valid for the duration of the planned stay; … (e) provide the evidence requested by the Member State concerned that during the planned stay the third-country national will have sufficient resources to cover subsistence costs without having recourse to the Member State’s social assistance system, and return travel costs. The assessment of the sufficient resources shall be based on an individual examination of the case and shall take into account resources that derive, inter alia, from a grant, a scholarship or a fellowship, a valid work contract or a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs.’
11 Article 14 of that directive, headed ‘Specific conditions for volunteers’, provides, in paragraph 1(a): ‘In addition to the general conditions laid down in Article 7, as regards the admission of a third-country national for the purpose of voluntary service, the applicant shall: (a) provide an agreement with the host entity or, in so far as provided for by national law, another body responsible in the Member State concerned for the voluntary service scheme in which the third-country national is participating. The agreement shall contain: … (v) the resources available to cover the third-country national’s subsistence and accommodation costs and a minimum sum of money as pocket money throughout the stay; and …’
12 Article 34 of that directive, entitled ‘Procedural guarantees and transparency’, provides, in paragraph 3: ‘Where the information or documentation supplied in support of the application is incomplete, the competent authorities shall notify the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. The period referred to in paragraphs 1 or 2 shall be suspended until the competent authorities have received the additional information required. If additional information or documents have not been provided within the deadline, the application may be rejected.’
13 Under Paragraph 2(d) of the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény (Law No II of 2007 on entry and residence of third-country nationals, Magyar Közlöny 2007/1), in the version applicable to the dispute in the main proceedings (‘Law No II of 2007’): ‘The following shall be regarded as family members: (da) the spouse of a third-country national or of a Hungarian national; (db) a minor child (including an adopted or fostered child) of a third-country national and his or her spouse; (dc) a minor child (including an adopted or fostered child) of a third-country national in respect of whom that third-country national has custody and for whom he or she has parental responsibility; (dd) a minor child (including an adopted or fostered child) of the spouse of a third-country national or of a Hungarian national in respect of whom that spouse has custody and for whom he or she has parental responsibility; (de) any person having parental responsibility for a Hungarian national who is a minor, who has custody and is a member of the household of that Hungarian national.’
14 Paragraph 13(1)(f) of Law No II of 2007 states: ‘A third-country national may enter Hungarian territory for a stay of more than 90 days in a single 180-day period … if he or she has, throughout the stay, sufficient resources to cover his or her subsistence and accommodation costs and his or her return costs.’
15 Paragraph 87(1) of that law is worded as follows: ‘If clarification of the facts so requires, the national immigration authority may invite the person concerned to make a statement. The statement may be made both orally and in writing. If the statement is made orally, the immigration authority shall draw up a report. …’
16 Paragraph 29(5) and (6) of the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény végrehajtásáról szóló 114/2007. (V. 24.) Korm. rendelet (Government Decree No 114/2007 implementing Law No II of 2007 on entry and residence of third-country nationals, Magyar Közlöny 2007/65; ‘Decree No 114/2007’) provides: ‘5. A third-country national shall have sufficient resources for a stay of more than 90 days if he or she is able to cover or a family member covers on his behalf his or her own costs in respect of subsistence, accommodation, return and, if necessary, medical care, using lawfully acquired income or assets which he or she has at his or her disposal. 6. In the context of the procedure for the issue of a visa for a stay of more than 90 days and a residence permit, the existence of means of subsistence may, inter alia, be proved by the following: (a) Hungarian means of payment or foreign means of payment that may be converted by a credit institution in Hungary; (b) an instrument (payment account agreement, deposit book, and so forth) recognising the right of the third-country national to withdraw cash from a payment service provider in Hungary, accompanied by a certificate from a credit institution concerning the available cash cover; (c) cash-alternative means of payment (cheque, credit card, and so forth) accepted commercially in Hungary, accompanied by a certificate from a credit institution concerning the available cash cover; (d) a valid invitation letter duly approved by the administration; (e) a document proving the booked and paid provision of accommodation and food; (f) an authentic instrument or a private instrument certifying the existence in Hungary of assets, property rights or values guaranteeing subsistence; (g) proof of income from a lawful paid activity which the applicant intends to pursue or pursues in Hungarian territory; (h) proof of regular income from abroad; (i) a declaration by a family member who is, in Hungarian territory, either in possession of a visa or residence permit, immigrant or settled status, or a residence card or permanent residence card provided for by a special law, or recognised as a refugee, which declaration has been received before a notary and attests to an undertaking to maintain the applicant as a dependant and to provide him or her with subsistence, and which must be accompanied by an instrument proving the ability of the person making the undertaking to carry it out, or (j) any other reliable means of proof.’
17 OS, a third-country national, held a residence permit for undertaking studies in Hungary which was valid until 30 June 2020. On 5 June 2020, he submitted an application to renew the residence permit (‘the application for renewal’) to the Országos Idegenrendészeti Főigazgatóság Budapesti és Pest megyei Regionális Igazgatósága (Budapest and Pest Regional Directorate of the National Directorate-General of the Immigration Police, Hungary; ‘the Regional Directorate’), in which he stated as the purpose for his stay, which was formally filed under ‘for other purposes’, the pursuit of voluntary work. In addition, he stated that his uncle, a British national, would guarantee him the necessary resources during his stay in Hungary.
18 In order to prove the purpose of his stay, OS attached to the application for renewal a contract issued, on 1 June 2020, by an association established in Hungary, ‘Mahatma Gandhi Emberi Jogi Egyesület’, under which he would carry out voluntary work for the latter for an indefinite period from 15 June 2020. Furthermore, statements of the bank account in his name showing six months’ worth of transactions showing OS’s name, a declaration of responsibility made by his uncle and documents providing evidence of his uncle’s income were attached to the application for renewal.
19 The Regional Directorate rejected the application for renewal and ordered that OS be deported to the third country of which he is a national, without account being taken of the documents produced by him in support of the application for renewal, on the ground that his uncle, who was supposed to provide him with his means of subsistence in Hungary, could not be regarded as a ‘family member’, within the meaning of Paragraph 2(d) of Law No II of 2007 and Paragraph 29(5) of Decree No 114/2007.
20 OS brought an administrative appeal against that rejection decision before the National Directorate. He claimed that, even if his uncle was not a ‘family member’ within the meaning of Paragraph 2(d) of Law No II of 2007, he could provide him with the financial support necessary for his subsistence in Hungarian territory on the basis of a loan agreement concluded between them. In that regard, OS attached to his appeal a declaration that his uncle guaranteed him a monthly payment of 200000 Hungarian forint (HUF) (approximately EUR 520) over the one-year period during which he would carry out his voluntary activity.
21 After the National Directorate confirmed the decision of the Regional Directorate, OS brought an action before the Fővárosi Törvényszék (Budapest High Court, Hungary). In support of that action, OS claimed that the National Directorate could not refuse to take into consideration the evidence which he had produced on the sole ground that his uncle was not a ‘family member’, within the meaning of Paragraph 2(d) of Law No II of 2007, in order to conclude that the payment of his subsistence and return costs was not guaranteed. Before that court, OS stated that his uncle would provide him with financial support in the form of a donation, and not in the form of a maintenance obligation, so that it would be OS himself who would have the necessary resources for his subsistence. Contrary to the interpretation of the National Directorate, any lawfully acquired income could constitute a resource for the purpose of covering subsistence costs in Hungary.
22 The referring court upheld OS’s action. It held, inter alia, that Paragraph 29(5) and (6) of Decree No 114/2007 had to be interpreted as meaning that the means of subsistence which the applicant for a residence permit concerned must have may derive from lawfully acquired income or assets, irrespective of whether the income in question is that applicant’s own income or income made available to him by a member of his family.
23 In that regard, that court also held that, since Law No II of 2007 does not define the concept of ‘income’, it was necessary to take into account the scope which that law covers in national tax law. In that field, there is no distinction based on the source of the income, with the result that it can be obtained not only from an employer, but also from another natural person in any capacity, as is the case, in the present case, in respect of the financial support that OS receives from his uncle. That court thus inferred that the National Directorate had acted unlawfully by not taking into consideration the income declared by OS on the sole ground that it did not come from a member of his family. Accordingly, that court annulled the decision of the National Directorate and ordered the Regional Directorate to re-examine the application for renewal.
24 That ruling was set aside by the Kúria (Supreme Court, Hungary), which decided that, although the resources necessary for the third-country national concerned to cover his or her subsistence during his or her stay could in fact be provided to him or her by a person who does not have the status of a ‘family member’ within the meaning of Paragraph 2(d) of Law No II of 2007, it was nevertheless necessary for that national to demonstrate that he or she would have those resources without restriction, as if they were income or an asset of his or her own. In the present case, OS’s statements in that regard varied, since he described the financial assistance provided by his uncle sometimes as a loan and sometimes as a gift.
25 According to the Kúria (Supreme Court), in such a case, in order to establish whether the criteria of Paragraph 29(5) are met, it is essential that the third-country national who has submitted an application for a residence permit specify whether he or she considers that sum to be income or an asset and establish, first, on what basis he or she permanently received that amount or asset and, second, that he or she has that amount or asset without restriction as if it belonged to him or her.
26 Thus, even though, in some cases, the financial support provided by a third party could be regarded as income or an asset of that applicant, this would nevertheless require systematically consistent evidence and statements, both from the third party providing the income and from the applicant, including as regards the legal basis of that income. Statements relating to the legal basis on which the resources are provided or to their nature cannot therefore be constantly altered in the course of the procedure, since otherwise the credibility both of those statements and of the applicant himself would be undermined.
27 The Kúria (Supreme Court) referred the case back to the Fővárosi Törvényszék (Budapest High Court), which is the referring court, ordering it to examine whether OS’s statements concerning the income or asset granted were consistent and sufficiently substantiated, failing which the amount provided could not be regarded as belonging to him alone.
28 The referring court has doubts as to whether those checks imposed by the Kúria (Supreme Court) are compatible with EU law. They constitute criteria in addition to those laid down in Directive 2016/801, in particular Article 7(1)(e) of that directive, without the applicant’s having the possibility, where appropriate, of correcting his statements or providing relevant evidence in relation to those criteria.
29 That court is of the opinion that although the applicant for a residence permit must, in accordance with the condition laid down in Article 7(1)(e), prove, in the manner required by the Member State concerned, that he or she will have, during the intended stay, sufficient resources to cover his or her subsistence costs without recourse to the social assistance system of the Member State concerned (‘the sufficient resources condition’), the discretion of the Member States in the implementation of that provision concerns above all the detailed rules for examining evidence and only exceptionally involves the addition of further criteria in addition to those laid down by that provision. In other words, that court is uncertain as to the extent of the discretion enjoyed by the Member States concerning the sufficient resources condition, and more specifically whether, for the purpose of examining that condition, they should have regard only to the provisions of Article 7(1) of that directive and to the relevant facts alone in order to ascertain whether the conditions arising from those provisions are satisfied, or whether it is possible for the national legislature to impose additional requirements, such as consistent statements relating to the legal basis on which the financial support is granted, or evidence of the possibility of future use, on a permanent and unrestricted basis, of a sum made available to the applicant by a third party.
30 In that context, the referring court also asks, first, whether the conditions set out by the Kúria (Supreme Court) preclude Article 7(1)(e) of Directive 2016/801 and, in particular, whether it is decisive, for the purpose of determining whether the conditions laid down by that provision are met, whether the acquisition of a sum of money by the applicant is permanent, that is to say, whether the applicant obtained it by way of gift or loan, or whether it is sufficient, in order to satisfy the sufficient resources condition, that the person providing that financial support makes a statement in which he or she asserts that he or she intends the sum of money to be used for the subsistence costs of that applicant. Second, that court is uncertain as to the effect, in the case before it, of the principle of the primacy of EU law, in view of the fact that all those additional requirements are imposed not by the national legislature, but result from the case-law of a supreme court whose decisions are binding and not open to appeal.
31 In that regard, the referring court, referring to the case-law of the Court of Justice, asks whether the imposition of additional conditions for admission over and above those laid down in Directive 2016/801 is liable to run counter to the objectives pursued by that directive, which are to promote the mobility of third-country nationals for the purpose of carrying out voluntary work in the European Union, and to the legal certainty emphasised by recital 2 of that directive, the fair treatment referred to in recital 54 thereof and, in addition, the freedom of movement and residence and the right to an effective remedy and to a fair trial, enshrined in Articles 45 and 47 of the Charter respectively, as referred to in recital 61 of that directive.
32 Lastly, the referring court raises the question whether the right to an effective remedy and the requirement of a fair trial, read in the light of recital 42 of Directive 2016/801, preclude a procedure for examining an application for a residence permit which requires the competent authorities to verify the statement made by the third-country national concerned concerning the legal basis on which the financial support was provided to him or her and the supporting documents attached to that statement, without that third-country national having been warned, during the administrative procedure, that it was necessary, in order for the sufficient resources condition to be considered to have been met, for his or her statements and those of the person accordingly providing financial support to him or her to be consistent or that, for the purposes of establishing that condition, he or she could be asked to produce additional statements and supporting documents in that regard.
33 In those circumstances the Fővárosi Törvényszék (Budapest High Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the practice of a Member State which establishes as additional requirements for accepting that an applicant for residency, who is a national of a third State and intends to carry out voluntary work, has means of subsistence - after he [or she] has proved that his [or her] relative who is not regarded as a family member can and does provide, from his [or her] lawfully acquired income and by means of regular transfer of the amount required for subsistence, sufficient income for the applicant’s subsistence and for his [or her] return travel - [and] that the applicant must state precisely whether the amount received is income or [assets] and, moreover, must provide documentary evidence of the legal basis on which he [or she] acquired that income or capital and must have the amount or the capital at his [or her] disposal, as his [or her] own, on a permanent and unrestricted basis, consistent with the discretion afforded to Member States by Article 7(1)(e) of [Directive 2016/801], having regard to the objectives set out in recitals 2 and 41 and Article 1(a) and Article 4(1) of that directive? (2) Having regard to the principle of the primacy of EU law, fair treatment in accordance with Article 79 TFEU, freedom of residence as enshrined in Article 45 of [the Charter] and the rights to an effective remedy and to a fair trial enshrined in Article 47 of the Charter, as well as recitals 54 and 61 of [Directive 2016/801], in particular the principle of legal certainty, does the fact that, as a whole, the national legislation relating to residence permits does not contain the requirements set out in the first question referred, such that those requirements have not been established by the legislature, but rather by the highest court of the Member State in its application of the law, which has to serve as precedent, have a bearing on the answer to the first question referred? (3) To the extent that, for the purpose of accepting that the applicant for residency has means of subsistence, the declaration and documentary evidence relating to the abovementioned requirements, as set out in the national case-law, are also necessary, must Article 7(1)(e) [of Directive 2016/801] be interpreted, having regard to the requirement for fair treatment laid down by Article 79 TFEU, the rights to an effective remedy and to a fair trial conferred by Article 47 of the Charter, the requirement for legal certainty referred to in recital 2 [of Directive 2016/801] and the content of recitals 41 and 42 [of that directive] with regard to procedural safeguards, as meaning that the practice of a Member State is consistent with the provisions of the legislation only if the invitation addressed to the applicant to state and prove coherently and consistently that he [or she] meets the additional requirements considered necessary is accompanied by a warning of the legal consequences, and the application for a residence permit can be refused on the ground that the applicant has failed to provide evidence relating to the requirements established in the case-law only if the rights of the person concerned and the procedural safeguards have thereby been observed?’
34 The Hungarian Government considers that the request for a preliminary ruling is inadmissible on the ground that the dispute in the main proceedings does not fall within the scope of Directive 2016/801.
35 First, according to the Hungarian Government, from a formal point of view, OS did not state that the purpose of the application for renewal was ‘the pursuit of voluntary work’. That application was formally submitted for a stay ‘for another purpose’.
36 Second, as provided for in Article 2(1) of that directive, read in the light of recital 21, the Hungarian legislature decided to apply that directive to third-country nationals who apply to be admitted to the territory of that Member State for the purpose of voluntary service outside the framework of the European Voluntary Service.
37 However, in that case, the Hungarian Government submits that, in accordance with the discretion afforded to Member States by Article 14(1)(a) of that directive, the national legislation requires the host entity within which the pursuit of voluntary work is to take place to comply with an obligation to make a declaration. In the present case, that was not the case in respect of the association within which OS carries out such work.
38 In that regard, it must be borne in mind that, in accordance with settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred 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 object, 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 12 September 2024, Sagrario, C‑63/23, EU:C:2024:739, paragraph 66 and the case-law cited).
39 In the present case, as is apparent from the request for a preliminary ruling and as the Hungarian Government acknowledged at the hearing before the Court, the dispute in the main proceedings concerns a decision by which the competent authorities rejected the application for renewal submitted by OS on the ground that the sufficient resources condition laid down by Directive 2016/801, as transposed into Hungarian law, was not satisfied and that condition is the subject of the questions which the referring court submits to the Court.
40 In those circumstances, it is not obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose.
41 Consequently, the request for a preliminary ruling is admissible.
42 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 7(1)(e) of Directive 2016/801 and the principle of primacy of EU law must be interpreted as meaning that: - first, Article 7(1)(e) of that directive precludes a national practice which, in the case of a third-country national who is an applicant for a residence permit for the purpose of voluntary service, requires, in order for the sufficient resources condition laid down in that provision to be regarded as satisfied, that, provided that the statements relating thereto are consistent, that national establish that certain specific criteria relating to (i) the identification of those resources as constituting income or an asset, (ii) the legal basis on which he or she has acquired those resources, and (iii) the fact that he or she will have them on a permanent and unrestricted basis as if they were his or her own, are satisfied, and - second, in the light of the principle of the primacy of EU law, that is also the case where those requirements arise from the case-law of a supreme national court whose decisions constitute a binding precedent.
43 In the first place, as regards the conditions associated with the issue of a residence permit on the basis of Directive 2016/801, it must be borne in mind that, under Article 5(3) of that directive, a third-country national who has applied for admission to the territory of a Member State is entitled to an authorisation to reside there if he or she meets, first, the general conditions laid down in Article 7 of that directive and, second, the specific conditions applicable depending on the type of application made, in the present case those laid down in Article 14 of that directive for applications for admission for the purpose of voluntary service.
44 It follows that, pursuant to Article 5(3) of that directive, Member States are required to issue a residence permit for the purpose of voluntary service to an applicant who has satisfied the requirements set out in Articles 7 and 14 of Directive 2016/801 (see, by analogy, judgment of 29 July 2024, Perle, C‑14/23, EU:C:2024:647, paragraph 35 and the case-law cited).
45 Member States are therefore not permitted to introduce, in relation to the admission of third-country nationals for the purpose of voluntary service, conditions additional to those laid down in Articles 7 and 14 (see, by analogy, judgment of 10 September 2014, Ben Alaya, C‑491/13, EU:C:2014:2187, paragraph 30).
46 It follows that, in order to answer the referring court’s questions, it is necessary to clarify what is covered by the concept of ‘resources’, within the meaning of Article 7(1)(e), and, in particular, to determine whether it depends on specific criteria relating to the nature of the resources concerned, their origin, the legal basis on which the third-country national relies on them or the manner in which they are at his or her disposal.
47 In the present case, Article 7(1)(e) provides that, at the request of the Member State concerned, the third-country national must provide evidence that he or she will have sufficient resources to cover subsistence costs without having recourse to the Member State’s social assistance system, and return travel costs. That provision also specifies that the assessment of the sufficient nature of the resources is to be based on an individual examination of the case and is to take into account resources that derive, inter alia, from a grant, a scholarship or a fellowship, a valid work contract or a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs.
48 Since Article 7(1)(e) does not contain any reference to the law of the Member States, the concept of ‘resources’, referred to in that provision, must thus be regarded as an autonomous concept of EU law and interpreted in a uniform manner throughout the European Union, irrespective of characterisation in the Member States, taking into account the wording of that provision and also its context and the purpose of the rules of which it forms part (see, by analogy, judgment of 3 October 2019, X (Long-term residents - stable, regular and sufficient resources), C‑302/18, EU:C:2019:830, paragraph 26 and the case-law cited).
49 First, as regards the wording of Article 7(1)(e) of Directive 2016/801, that provision mentions, as is apparent from paragraph 47 of the present judgment, a certain number of resources which may be taken into account, such as an allowance, a grant or a financial undertaking by a voluntary service scheme organisation. The non-exhaustive nature of that list, expressed by the words ‘inter alia’, indicates that the EU legislature intended to give the concept of ‘resources’ a broad scope and, consequently, did not consider that, in order to assess whether the sufficient resources condition is satisfied, certain resources should be excluded.
50 Such a finding is confirmed by the requirement that, under that provision, the assessment of the sufficient resources is to be based on an individual examination of the particular case. It follows that the purpose of such an assessment must be limited to verifying that the third-country national concerned is in a position to have, during the intended stay, sufficient resources to cover his or her subsistence costs without recourse to the social assistance system of the Member State concerned, as well as his or her return costs, without there being any need to ensure, moreover, that the resources in question meet specific criteria, in particular as regards their nature, their origin or the manner in which the third-country national concerned has them at his or her disposal.
51 Furthermore, in the context of that individual examination, Article 7(1)(e) of Directive 2016/801 envisages the taking into consideration of resources the existence of which is established by means of a financial undertaking from, inter alia, a voluntary service scheme organisation. It follows that that provision does not require the third-country national concerned to establish that he or she may have such resources on a permanent and unrestricted basis, as if they were income or an asset of his or her own.
52 Consequently, the wording of that provision tends to suggest that fulfilment of the sufficient resources condition does not depend on whether the resources which the third-country national concerned will have at the time of the intended stay constitute income or an asset, the legal basis on which he or she acquired those resources or on the fact that he or she have them on a permanent and unrestricted basis, as if they were his or her own. Such criteria constitute additional conditions which the Member States are not permitted to lay down, as has been pointed out in paragraph 45 of the present judgment.
53 Second, such an interpretation is supported by the context of Directive 2016/801, an integral part of which are the instruments of EU law which make the right to reside in the territory of a Member State subject to the fulfilment of a ‘resources’ condition similar to that laid down in Article 7(1)(e) of that directive.
54 In that regard, it should be noted that Article 7(1)(b) of Directive 2004/38 provides that all Union citizens are to have the right of residence on the territory of another Member State for a period of longer than three months, inter alia, if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence.
55 In that regard, as is apparent from the case-law of the Court, the words ‘have sufficient resources’, contained in Article 7(1)(b) of Directive 2004/38, must be interpreted as meaning that it suffices that such resources are available to the Union citizen, and that that provision lays down no requirement whatsoever as to their origin, since they could be provided inter alia by a third-country national (see, to that effect, judgment of 16 July 2015, Singh and Others, C‑218/14, EU:C:2015:476, paragraph 74 and the case-law cited).
56 In particular, the sufficient resources condition, laid down in Article 7(1)(b) of Directive 2004/38, does not require that the person concerned must him or herself have such resources, the Court having held, inter alia, that he or she may rely on the resources of an accompanying family member (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).
57 Similarly, Article 5(1)(a) of Directive 2003/109, which concerns the conditions relating to the acquisition of long-term resident status in the territory of a Member State, provides, inter alia, that that Member State must require third-country nationals to provide evidence that they have, for themselves and for dependent family members Member States stable and regular resources which are sufficient to maintain himself or herself and the members of his or her family, without recourse to the social assistance system of the Member State concerned.
58 It is apparent from the Court’s case-law that the origin of the resources referred to in that provision is not a decisive criterion for the Member State concerned for the purpose of ascertaining whether those resources satisfy the conditions laid down in that provision (see, to that effect, judgment of 3 October 2019, X (Long-term residents - stable, regular and sufficient resources), C‑302/18, EU:C:2019:830, paragraph 41).
59 In particular, the Court held that the concept of ‘resources’ referred to in Article 5(1)(a) of Directive 2003/109 does not concern solely the ‘own resources’ of the applicant for long-term resident status, but may also cover the resources made available to that applicant by a third party, provided that, in the light of the individual circumstances of the applicant concerned, they are considered to satisfy the conditions laid down in that provision (see, to that effect, judgment of 3 October 2019, X (Long-term residents - stable, regular and sufficient resources), C‑302/18, EU:C:2019:830, paragraph 44).
60 Consequently, Article 7(1)(b) of Directive 2004/38 and Article 5(1)(a) of Directive 2003/109, as interpreted by the Court, confirm that, in order to assess, by analogy, whether the sufficient resources condition, laid down in Article 7(1)(e) of Directive 2016/801, is satisfied, the relevant resources in that regard do not depend on the fulfilment of certain specific criteria relating to the identification of those resources as constituting income or an asset, the legal basis on which the third-country national concerned has acquired them and the fact that he or she has them on a permanent and unrestricted basis as if they were his or her own.
61 Third, the objectives pursued by Directive 2016/801 also support that interpretation of Article 7(1)(e) of that directive.
62 Recital 3 of that directive states, inter alia, that immigration from outside the European Union is one source of highly skilled people and that those people play an important role in forming the European Union’s key asset, human capital, and in ensuring smart, sustainable and inclusive growth.
63 Moreover, according to recital 20, Directive 2016/801 should support the aims of the European Voluntary Service to develop solidarity, mutual understanding and tolerance among young people and the societies they live in, while contributing to strengthening social cohesion and promoting young people’s active citizenship. In addition, recital 21 of that directive states that Member States should have the possibility to apply the provisions of that directive to school pupils, volunteers other than those under the European Voluntary Service and au pairs, in order to facilitate their entry and residence and ensure their rights.
64 It follows, as the Advocate General stated, in essence, in point 48 of his Opinion, that the purpose of Directive 2016/801 is to facilitate the entry and residence, in the present case, of volunteers, provided that those persons have the necessary resources not to become a burden on the Member State concerned and, in particular, on its social assistance system.
65 In order to achieve the latter objective, it is sufficient that a third-country national who has applied for a residence permit, in particular for the purpose of voluntary service, provides evidence that he or she will have sufficient resources during the planned stay. In that regard, specific criteria relating to the question whether those resources constitute income or an asset, the legal basis by virtue of which that national may rely on them or the fact that that national has them on a permanent and unrestricted basis as if they were his or her own, are not, as such, relevant. To make those resources subject to the fulfilment of such criteria for the purpose of assessing whether the sufficient resources condition is met would amount to introducing conditions additional to those laid down in Article 7(1)(e) of that directive, and, accordingly, would be liable to hinder the attainment of the objectives which that directive seeks to achieve.
66 In the present case, it is apparent from the documents before the Court that OS’s statements relating to the resources at issue in the main proceedings varied, since those resources were described by the interested party sometimes as a loan and sometimes as a gift. However, it should be noted that, subject to verification by the referring court, the fact that OS may have to reimburse the amounts provided by his uncle once the voluntary work has been completed has no bearing on whether he will have sufficient resources during the planned stay, for that purpose, in the territory of the Member State concerned.
67 It follows from all the foregoing considerations that the question whether the sufficient resources condition is satisfied cannot depend on whether the third-country national concerned establishes that certain specific criteria relating to the identification of those resources as constituting income or an asset, the legal basis on which he or she acquired those resources, and the fact that he or she has them on a permanent and unrestricted basis as if they were his or her own, are satisfied, since that would amount to making the sufficient resources condition subject to requirements which go beyond those laid down in Article 7(1)(e) of Directive 2016/801.
68 In the second place, the referring court’s questions also concern the probative value of the evidence intended to substantiate that the sufficient resources condition is satisfied and, in particular, the importance to be attached, in the assessment of that condition, to the consistency of the statements in that regard, where the third-country national concerned has not been informed that his application for a residence permit for the purpose of voluntary service could be rejected solely on the ground that those statements are inconsistent.
69 In that regard, as the Advocate General also observed in point 54 of his Opinion, compliance with the sufficient resources condition can be subject to the production of certain evidence by the third-country national concerned only in so far as that evidence relates to the requirements relating to that condition, and not to additional requirements which go beyond those required under Article 7(1)(e) of Directive 2016/801.
70 In the present case, it should be noted that, although the nature of the resources which the third-country national concerned has, the legal basis by virtue of which he or she relies on them and the conditions of such provision cannot constitute, as such, additional requirements to which fulfilment of the sufficient resources condition is subject, the fact remains that such considerations may constitute relevant evidence in the context of the assessment of whether that condition is satisfied.
71 In that context, it is also important to point out that the Court has held that, in the case of an applicant for a residence permit for study purposes, under Directive 2016/801, inconsistencies in the statements relating to his or her planned studies may constitute one of the objective circumstances contributing to the finding of an abusive practice, provided that they are sufficiently apparent and that they are assessed in the light of all the specific circumstances of the particular case (see, to that effect, judgment of 29 July 2024, Perle, C‑14/23, EU:C:2024:647, paragraph 53).
72 It follows from those considerations that, in the context of an application for admission under Directive 2016/801, inconsistencies in the statements relating to the resources which the third-country national concerned will have are capable of constituting evidence making it possible to identify a situation in which the conditions laid down by that directive, as regards, inter alia, the issue of a residence permit for the purpose of voluntary service, are not satisfied.
73 As regards such inconsistencies, Member States cannot, however, be required to warn, in advance, third-country nationals submitting an application for admission to their territory that a lack of consistency in the statements made in support of their application may lead to a refusal to grant the residence permit applied for.
74 That said, it should be borne in mind that Article 34(3) of Directive 2016/801 provides, inter alia, that where the information or documentation supplied in support of the application is incomplete, the competent authorities are to notify the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. Consequently, as the Advocate General observed, in essence, in point 63 of his Opinion, if, as a result of possible inconsistencies in the statements made during the examination procedure, it appears that the information necessary in order to assess whether the sufficient resources condition is satisfied is missing, a reasonable opportunity to submit such information must be given to the applicant.
75 In that regard, it must be stated that such inconsistencies cannot preclude the grant of a residence permit where it is apparent from the individual examination of the case, as required by Article 7(1)(e) of Directive 2016/801, that, despite those inconsistencies, the third-country national concerned will have sufficient resources during the planned stay, with the result that he or she satisfies the sufficient resources condition.
76 Accordingly, the finding of inconsistencies in the applicant’s statements concerning the resources he will have during the planned stay cannot, in principle, suffice to justify the refusal to grant the residence permit applied for, unless it is apparent from such inconsistencies that the sufficient resources condition is not satisfied.
77 To refuse to grant the residence permit applied for on the sole ground that the statements relating to the resources that the applicant will have during the planned stay varied in the course of the administrative procedure would amount, contrary to the requirements of Article 5(3) of Directive 2016/801, to making such a grant subject to compliance with conditions additional to those laid down by that directive, which Member States are not permitted to do, as recalled in paragraph 45 of the present judgment.
78 In the third place, the referring court is uncertain as to the effect, in the case in the main proceedings, of the principle of primacy of EU law, in so far as the requirements relating, on the one hand, to the identification of the resources declared by the third-country national concerned as constituting income or an asset, the legal basis on which he acquired those resources and the fact that he will have them on a permanent and unrestricted basis as if they were his own, and, on the other hand, to the consistency of his statements in those various respects stem from the case-law of a supreme national court whose decisions constitute a binding precedent.
79 According to settled case-law, the principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States. That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States. It follows that, by virtue of the principle of the primacy of EU law, a Member State’s reliance on provisions of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law (judgment of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 23 and the case-law cited).
80 In that context, the national court, having exercised the discretion conferred on it by Article 267 TFEU, is bound, for the purposes of the outcome of the dispute before it, by the interpretation of provisions of EU law provided by the Court and must therefore, if necessary, disregard the rulings of a higher national court if it considers, in the light of the interpretation provided by the Court, that those rulings are not consistent with EU law, if necessary refusing to apply the national rule requiring it to comply with the decisions of that higher court (judgment of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 24 and the case-law cited).
81 In those circumstances, the requirement to give full effect to EU law includes the obligation, on the national court in question, to alter established case-law, where necessary, if that case-law is based on an interpretation of national law that is incompatible with EU law (judgment of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 25 and the case-law cited).
82 In the present case, the referring court is therefore bound, for the purposes of resolving the dispute in the main proceedings, by the interpretation of EU law given by the Court and must, if necessary, disregard the assessment resulting from the case-law of the Kúria (Supreme Court), notwithstanding the fact that it is, in principle, required to comply with it under national law, if that court were to take the view, having regard to that interpretation, that that assessment is not consistent with EU law.
83 In the light of all the foregoing considerations, the answer to the questions referred is that Article 7(1)(e) of Directive 2016/801 and the principle of the primacy of EU law must be interpreted as meaning that: - first, Article 7(1)(e) of that directive precludes a national practice which, in the case of a third-country national applying for a residence permit for the purpose of voluntary service, requires, in order that the sufficient resources condition laid down in that provision be considered to be satisfied, that, provided that the statements relating thereto are consistent, that national establish that certain specific criteria relating to the identification of those resources as constituting income or an asset, the legal basis on which he or she has acquired those resources, and the fact that he or she will have them on a permanent and unrestricted basis as if they were his or her own, are satisfied, and - second, in the light of the principle of the primacy of EU law, that is also the case where those requirements arise from the case-law of a supreme national court whose decisions constitute a binding precedent.
84 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.