CGIL and INCA (Judgment) [2015] EUECJ C-309/14 (02 September 2015)

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(Reference for a preliminary ruling — Status of third-country nationals who are long-term residents — Directive 2003/109/EC — National legislation — Issue and renewal of a residence permit — Condition — Obligatory financial contribution — Amount eight times higher than that for obtaining a national identity card — Infringement of the principles of Directive 2003/109/EC)

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per il Lazio (Italy), made by decision of 17 December 2013, received at the Court on 30 June 2014, in the proceedings

composed of R. Silva de Lapuerta (Rapporteur), President of the Chamber, J.-C. Bonichot, A. Arabadjiev, J.L. da Cruz Vilaça and C. Lycourgos, Judges,

having regard to the written procedure and further to the hearing on 16 April 2015,

– the Confederazione Generale Italiana del Lavoro (CGIL), by V. Angiolini, L. Formilan and L. Santini, avvocati,

– the Istituto Nazionale Confederale Assistenza (INCA), by V. Angiolini, L. Formilan and L. Santini, avvocati,

– the Italian Government, by G. Palmieri, acting as Agent, and G. Palatiello, avvocato dello Stato,

– the European Commission, by M. Condou-Durande and A. Aresu, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation 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), as amended by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 (OJ 2011 L 132, p. 1), (‘Directive 2003/109’).

2 The request has been made in proceedings between the Confederazione Generale Italiana del Lavoro (‘CGIL’) and the Istituto Nazionale Confederale Assistenza (‘INCA’), on the one hand, and the Presidenza del Consiglio dei Ministri (Office of the Italian Prime Minister), the Ministero dell’Interno (Ministry of the Interior) and the Ministero dell’Economia e delle Finanze (Ministry of the Economy and Finance), on the other hand, seeking annulment of a decree adopted by those two ministries, on 6 October 2011, concerning the fee for the issue and renewal of a residence permit (GURI (Official Gazette) No 304 of 31 December 2011) (‘the ‘2011 decree’), and also annulment of any preparatory, consequent or connected act.

‘(9) Economic considerations should not be a ground for refusing to grant long-term resident status and shall not be considered as interfering with the relevant conditions.

(10) A set of rules governing the procedures for the examination of application for long-term resident status should be laid down. Those procedures should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as being transparent and fair, in order to offer appropriate legal certainty to those concerned. They should not constitute a means of hindering the exercise of the right of residence.

(18) Establishing the conditions subject to which the right to reside in another Member State may be acquired by third-country nationals who are long-term residents should contribute to the effective attainment of an internal market as an area in which the free movement of persons is ensured. It could also constitute a major factor of mobility, notably on the Union’s employment market.’

4 Under the heading ‘Long-term resident’s [EU] residence permit’, Article 8(2) of that directive provides:

‘Member States shall issue a long-term resident’s [EU] residence permit to long-term residents. The permit shall be valid at least for five years; it shall, upon application if required, be automatically renewable on expiry.’

5 Article 19 of Directive 2003/109, headed ‘Examination of applications and issue of a residence permit’, provides:

2. If the conditions provided for in Articles 14, 15 and 16 are met, then, subject to the provisions relating to public policy, public security and public health in Articles 17 and 18, the second Member State shall issue the long-term resident with a renewable residence permit. This residence permit shall, upon application, if required, be renewable on expiry. The second Member State shall inform the first Member State of its decision.

3 The second Member State shall issue members of the long-term resident’s family with renewable residence permits valid for the same period as the permit issued to the long-term resident.’

6 Article 5(2b) of Legislative Decree No 286/1998, of 25 July 1998, consolidating the provisions regulating immigration and the rules relating to the status of foreign nationals (Ordinary Supplement to GURI No 191 of 18 August 1998), inserted into that legislative decree by Article 1(22)(b) of Law No 94 of 15 July 2009 on public security (Ordinary Supplement to GURI No 170 of 24 July 2009), provides:

‘The application for the issue and renewal of the residence permit shall be subject to the payment of a fee, the amount of which shall be set at a minimum of EUR 80 and a maximum of EUR 200 by joint decree of the Ministry of the Economy and Finance and of the Ministry of the Interior, which shall also lay down the conditions for the payment and the arrangements for the implementation of the provision set out in Article 14a(2) of [Legislative Decree No 286/1998]. Payment of a fee shall not be required for the issue and renewal of a residence permit in respect of asylum, for an asylum application, for subsidiary protection, or for an authorisation to stay on humanitarian grounds.’

7 Article 14a of Legislative Decree No 286/1998 creates and regulates the Return Fund (‘Fondo rimpatri’) in the following terms:

‘1. A Return Fund shall be created, under the Ministry of the Interior, for the purpose of financing the costs of repatriating foreign nationals to their countries of origin or provenance.

2. Half of the proceeds received through the collection of the fee referred to in Article 5(2b) shall be paid into the fund referred to in paragraph 1 above, together with any funds provided by the European Union for the same fund. The remainder of the proceeds from the fee referred to in Article 5(2b) shall be allocated to the budget estimates of the Ministry of the Interior to cover the costs related to the investigative activities inherent in the issue and renewal of residence permits.’

8 The 2011 decree, adopted pursuant to Articles 5(2b) and 14a of Legislative Decree No 286/1998, sets out as follows the amounts of the fees payable for the issue and renewal of a residence permit:

‘(a) EUR 80 for residence permits issued for a period longer than three months and shorter than or equal to one year;

(b) EUR 100 for residence permits issued for a period longer than one year and shorter than or equal to two years;

(c) EUR 200 for the issue of a long-term resident’s EC residence permit and for those seeking a residence permit within the meaning of Article 27(1)(a) of Legislative Decree No [286/1998] … .’

9 Although the order for reference does not mention other national provisions establishing other amounts payable for the issue and renewal of residence permits, it appears from the observations submitted by the European Commission and by CGIL and INCA that under pre-existing Italian legislation, still in force, a total amount of EUR 73.50 must be paid for the issue and renewal of residence permits, regardless of the duration of the residence permit, in addition to the fees provided for by the 2011 decree.

10 In particular, it emerges from the Commission’s observations that, under Article 7v(1)(b) of Decree Law No 7 of 31 January 2005 concerning urgent provisions for university and research, heritage and cultural activities, the implementation of major strategic works, the mobility of civil servants and the simplification of formalities relating to stamp duties and registration charges, which was converted into law, with amendments, by Law No 43 of 31 March 2005, paper-based residence permits are to be replaced, at the time of the request for the first issue or renewal of those permits, by electronic residence permits in accordance with Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals (OJ 2002 L 157, p. 1), as from 1 January 2006.

11 In accordance with Article 1 of the Decree of the Minister for the Economy and Finance of 4 April 2006 fixing the amount of fees payable by applicants for electronic residence permits, the amount of those fees is fixed at EUR 27.50, including value added tax.

12 Pursuant to the single article of the Decree of the Minister for the Interior of 12 October 2005 fixing the amount chargeable to the applicant for the issue and renewal of permits and residence permits under the agreement concluded within the meaning of Article 39(4a) of Law No 3 of 16 December 2003, the cost of the service chargeable to the applicant for that type of procedure is set at EUR 30.

13 Finally, in accordance with Article 4, Part 1, of the tariff set out in Annex A to Decree No 642 of the President of the Republic of 26 October 1972 on stamp duty, in the version applicable to the main proceedings, the amount of the stamp duty for the issue or renewal of residence permits is set at a flat rate of EUR 16.

The dispute in the main proceedings and the question referred for a preliminary ruling

14 CGIL and INCA requested the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court of Lazio) to annul the 2011 decree, arguing that the fee which must be paid, pursuant to that decree, for the issue and renewal of a residence permit to third-country nationals is unfair and/or disproportionate.

15 The referring court considered it appropriate to examine of its own motion whether the national rules which impose the payment of a fee for the issue of a residence permit by fixing, in particular, maximum amounts in the implementing legislation are compatible with the provisions of the relevant EU law.

16 In that regard, the referring court, relying on the judgment in Commission v Netherlands (C‑508/10, EU:C:2012:243), notes that the legislation of the Member State concerned will be compatible with the principles laid down by Directive 2003/109 only where the fees charged — which may, however, vary within a range of values — do not amount to, at their lowest value, a sum which would be inordinately high and therefore disproportionate in relation to the amount which nationals of that State have to pay for a similar document, such as a national identity card.

17 In particular, the referring court points out that, in the judgment in Commission v Netherlands (C‑508/10, EU:C:2012:243), the provisions of the legal order of the Kingdom of the Netherlands which laid down, as the lowest amount for the fee charged for issuing a residence permit, a sum equal to approximately seven times that charged for issuing a national identity card to a national of the Member State concerned were considered incompatible with the principles laid down in Directive 2003/109.

18 Given that the cost of issue of the national identity card in Italy is currently about EUR 10, according to the referring court, and given that the lowest amount set by the 2011 decree is EUR 80, with the result that the financial burden placed on a third-country national in order to be issued with a residence permit in Italy is approximately eight times greater, that court expresses doubts as to whether the national provisions at issue are compatible with the principles of Directive 2003/109, in the light of the judgment in Commission v Netherlands (C‑508/10, EU:C:2012:243).

19 In those circumstances, the Tribunale amministrativo regionale per il Lazio decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Do the principles laid down in … Directive 2003/109 … preclude rules of national law, such as those laid down in Article 5(2b) of Legislative Decree No 286/1998, in that they provide that “the application for the issue and renewal of the residence permit shall be subject to the payment of a fee, the amount of which shall be set at a minimum of EUR 80 and a maximum of EUR 200 by joint decree of the Ministry of the Economy and Finance and of the Ministry of the Interior which shall also lay down the conditions for the payment …”, thereby fixing a minimum amount for the fee equal to around eight times the charge for the issue of a national identity card?’

20 By its question, the referring court asks, in essence, whether Directive 2003/109 precludes national legislation, such as that at issue in the main proceedings, which requires third-country nationals, applying for the issue or renewal of a residence permit in the Member State concerned, to pay a fee which varies in amount between EUR 80 and EUR 200.

21 At the outset, it must be recalled that, as is apparent from recitals 4, 6 and 12 in the preamble to Directive 2003/109, the principal purpose of that directive is the integration of third-country nationals who are settled on a long-term basis in the Member States (judgment in Commission v Netherlands, C‑508/10, EU:C:2012:243, paragraph 66).

22 It is important to recall that the Court has already recognised that Member States may make the issue of residence permits pursuant to Directive 2003/109 subject to the payment of charges and that, in fixing the amount of those charges, they enjoy a margin of discretion (judgment in Commission v Netherlands, C‑508/10, EU:C:2012:243, paragraph 64).

23 However, the Court has stated that the discretion granted to Member States in that respect is not unlimited and that they may not apply national rules which are liable to jeopardise the achievement of the objectives pursued by Directive 2003/109 and, therefore, deprive it of its effectiveness (see judgment in Commission v Netherlands, C‑508/10, EU:C:2012:243, paragraph 65).

24 Moreover, in accordance with the principle of proportionality, which is one of the general principles of EU law, the measures taken to transpose Directive 2003/109 must be suitable for achieving the objectives of that provision and must not go beyond what is necessary to attain them (see, to that effect, judgment in Commission v Netherlands, C‑508/10, EU:C:2012:243, paragraph 75).

25 Therefore, while it is open to Member States to make the issue of residence permits under Directive 2003/109 subject to the levying of charges, nevertheless, in accordance with the principle of proportionality, the level at which those charges are set must not have either the object or the effect of creating an obstacle to the obtaining of the long-term resident status conferred by that directive, and also of other rights which stem from the granting of that status, since both the objective and the spirit of that directive would otherwise be undermined (see, to that effect, judgment in Commission v Netherlands, C‑508/10, EU:C:2012:243, paragraph 69).

26 In that connection, according to the order for reference the amount of the fee at issue in the main proceedings is EUR 80 for the issue and renewal of residence permits for a period longer than three months and up to one year, EUR 100 for the issue and renewal of residence permits for a period longer than one year and up to two years, and EUR 200 for the issue of long-term resident’s EU residence permits.

27 The financial impact of such a fee may be significant for certain third-country nationals meeting the conditions laid down by Directive 2003/109 for the granting of residence permits covered by that directive, especially since, given the duration of such permits, those nationals are obliged to seek the renewal of their permits somewhat frequently and the amount of that fee may be in addition to other fees provided for under pre-existing national legislation, with the result that, in such circumstances, the obligation to pay the fee at issue in the main proceedings could constitute an obstacle to the exercise by those third-country nationals of the rights conferred on them by that directive.

28 In that regard, it should be noted that the applicants in the main proceedings and the Commission pointed out — both in their observations and at the hearing — that, under pre-existing Italian legislation, which is still in force, a separate fee amounting to EUR 73.50 must be paid in any event, for both the issue and the renewal of the residence permits, irrespective of the duration of the residence permit in question, with that amount being in addition to the fee at issue in the main proceedings.

29 Furthermore, it appears from the order for reference that, in accordance with Article 14a of Legislative Decree No 286/1998, half of the proceeds generated by the collection of the fee at issue is earmarked to finance the return to their country of origin or provenance of third-country nationals discovered to be illegally present in Italy, this being a fact which the Italian Government confirmed at the hearing.

30 Accordingly, the Italian Government’s argument that the fee at issue in the main proceedings cannot be disproportionate because the proceeds from that fee are linked to the investigative activity necessary to verify whether the conditions governing the issue of residence permits in accordance with Directive 2003/109 have been satisfied cannot be accepted.

31 In the light of the foregoing, the answer to the question is that Directive 2003/109 precludes national legislation, such as that at issue in the main proceedings, which requires third-country nationals, when applying for the issue or renewal of a residence permit in the Member State concerned, to pay a fee which varies in amount between EUR 80 and EUR 200, inasmuch as such a fee is disproportionate in the light of the objective pursued by that directive and is liable to create an obstacle to the exercise of the rights conferred by that directive.

32 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.

Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, as amended by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011, precludes national legislation, such as that at issue in the main proceedings, which requires third-country nationals, when applying for the issue or renewal of a residence permit in the Member State concerned, to pay a fee which varies in amount between EUR 80 and EUR 200, inasmuch as such a fee is disproportionate in the light of the objective pursued by that directive and is liable to create an obstacle to the exercise of the rights conferred by that directive.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> CGIL and INCA (Judgment) [2015] EUECJ C-309/14 (02 September 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/C30914.html Cite as: ECLI:EU:C:2015:523, [2015] EUECJ C-309/14, EU:C:2015:523

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