Diallo (Citizenship of the Union - Rights of citizens of the Union to move and reside freely - Opinion) [2018] EUECJ C-246/17

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(Request for a preliminary ruling from the Conseil d’État (Council of State, Belgium))

(Reference for a preliminary ruling — Rights of citizens of the Union to move and reside freely within the territory of a Member State — Application for a residence card as a family member — Directive 2004/38/EC — Article 10(1) — Six-month period — Adoption and notification of the decision — Consequences of non-compliance with the period — Interruption and suspension of the period)

1. This request for a preliminary ruling gives the Court the opportunity to rule on the scope of Article 10(1) 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. (2)

2. The request has been made in the course of proceedings between Mr Ibrahima Diallo, a Guinean national and relative in the ascending line of a child of Netherlands nationality residing in Belgium, and the État belge (Belgian State) concerning a decision by the latter refusing to issue a residence card of a family member of a European Union citizen to Mr Diallo, accompanied by an order to leave the territory.

3. This request calls on the Court in particular to provide significant clarifications, first, regarding the period within which decisions under Article 10(1) of Directive 2004/38 must be adopted and notified and any consequences arising from the failure to adopt or notify those decisions. Second, the Court must determine whether, following the judicial annulment of a decision adopted pursuant to that provision, the six-month period available to the competent national authority under that provision is interrupted or suspended.

4. In this Opinion, I shall set out the reasons why I take the view that Article 10(1) of that directive must be interpreted as meaning that a residence card of a family member of a Union citizen must be issued within the six-month period provided for by that provision, and that the decisions adopted under that provision must also be adopted within that period, whereas the notification of a decision to refuse to issue a residence card of a family member of a Union citizen may occur after that period. I shall also explain why I think that the failure to adopt or notify a decision adopted under Article 10(1) of Directive 2004/38 cannot automatically result in the issue of a residence card of a family member of a Union citizen and, finally, that the judicial annulment of such a decision has the effect of interrupting the six-month period available to the administration and, therefore, of causing the six-month period to start to run afresh.

1. “Union citizen” means any person having the nationality of a Member State;

‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.’

‘The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.’

8. Article 15 of Directive 2004/38, headed ‘Procedural safeguards’, provides in paragraph 1:

‘The procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health.’

9. Article 30 of that directive, headed ‘Notification of decisions’, provides:

‘1. The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.

3. The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification.’

10. Under Article 42(1) of the loi sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law on entry into the territory, residence, establishment and removal of foreign nationals) (3) of 15 December 1980:

‘The right of residence for more than three months in the Kingdom shall be granted as soon as possible and no later than six months from the date of the application as provided for in [paragraph] 4, subparagraph 2 to Union citizens and their family members who are in the circumstances and for the period determined by the King, in accordance with European regulations and directives. In granting that right, account shall be taken of all elements of the case.’

11. The second subparagraph of Article 52(4) of the arrêté royal sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Royal Decree on entry into the territory, residence, establishment and removal of foreign nationals) (4) of 8 October 1981 provides:

‘If the Minister or his authorised representative grants a right of residence, or if no decision is taken within the period specified in Article 42 of the Law [of 15 December 1980], the mayor or his authorised representative shall issue the foreign national a “residence card of a family member of a Union citizen” in accordance with the model contained in Annex 9.’

II. Facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

12. Mr Diallo is a Guinean national and the father of a child of Netherlands nationality residing in Belgium.

13. It was in that capacity that, on 25 November 2014, he applied for a residence card of a family member of a Union citizen in that Member State.

14. On 22 May 2015, the Belgian authorities adopted a decision refusing to grant residence, accompanied by an order to leave the territory, and notified him of that decision on 3 June 2015, that is to say six months and nine days after the application was submitted.

15. After Mr Diallo brought an action for annulment of that decision before the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium), that body, by judgment of 29 September 2015, annulled the decision refusing to grant residence, accompanied by an order to leave the territory, on the ground that it was vitiated by a failure to state reasons.

16. Subsequently, on 9 November 2015, the Belgian authorities adopted a new decision refusing to grant residence, accompanied by an order to leave the territory. That decision was notified to Mr Diallo on 26 November 2015.

17. According to that decision, Mr Diallo did not satisfy the conditions to enjoy the right of residence for more than three months as a family member of a Union citizen because he had not proven that he had sufficient resources or demonstrated that his child, who has Netherlands nationality, was his dependant or that he had actual custody of the child.

18. On 11 December 2015, Mr Diallo brought an action for annulment of that decision before the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) which, by judgment of 23 February 2016, dismissed that action.

19. On 25 March 2016, Mr Diallo brought an administrative appeal on a point of law against that judgment before the referring court, the Conseil d’État (Council of State, Belgium).

20. In support of that appeal, he claims, in essence, that, under Article 10(1) of Directive 2004/38, the decision on the application for a residence card must be notified to the applicant within six months of the date of the application’s submission, and that national law must be interpreted in accordance with that requirement. He adds that granting the competent national authority a further period of six months, following the annulment of a first decision, undermines the effectiveness of Article 10(1) of Directive 2004/38.

21. For their part, the Belgian authorities take the view that, since a period for notification is not laid down in any provision, the competent authority is required simply to adopt a decision on an application for a residence card within the six-month period. They add that the period available to that authority following the judicial annulment of a first decision is a matter of national law, and that it has not been demonstrated that opening a new six-month period would be unreasonable.

22. The referring court states, first, that, since national law does not specify whether the decision on the grant of the right of residence must be adopted and notified within the six-month period, interpretation of Article 10(1) of Directive 2004/38 is required.

23. Second, it has doubts about the period available to the national authority, following the annulment of a decision refusing to issue a residence card, to adopt a new decision, and states that it is necessary to determine whether it is contrary to the principle of effectiveness for that authority once again to be allowed the full period of six months provided for by Article 10(1) of Directive 2004/38.

24. Third, the referring court asks about the consequences following from the six-month period laid down in Article 10(1) of Directive 2004/38 being exceeded for the purposes of its determining whether that provision precludes a residence card being issued automatically on account of the exceeding of the six-month period, even where the applicant does not satisfy the necessary conditions.

25. In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Is Article 10(1) of Directive 2004/38 to be interpreted as requiring that the decision as to whether to recognise a right of residence must be taken and notified within a period of six months, or as permitting the decision to be taken within that period but notified subsequently? If such a decision may be notified subsequently, within what period must this be done?

(2) Is Article 10(1) of Directive 2004/38, read in conjunction with Article 5(4) of Directive 2003/86/EC of 22 September 2003 on the right to family reunification, [(5)] and with Articles 7, 20, 21 and 41 of the Charter of Fundamental Rights of the European Union, to be interpreted and applied as meaning that the decision adopted on that basis need only be taken within the period of six months which it prescribes, without there being any period applicable to notification or any impact whatsoever on the right of residence where notification occurs after expiry of that period?

(3) For the purposes of guaranteeing the effectiveness of the right to residence of a member of the family of a Union citizen, would it be contrary to the principle of effectiveness for the national authority, following the annulment of a decision relating to such a right, once again to be allowed the full period of six months which had been available to it under Article 10(1) of Directive 2004/38? If so, what further period is allowed to the national authority, following the annulment of a decision by which it refused to recognise the right at issue?

(4) Are Articles 5, 10 and 31 of Directive 2004/38, read in conjunction with Articles 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, [(6)] with Articles 7, 24, 41 and 47 of the Charter of Fundamental Rights …, and with Article 21 [TFEU], compatible with national case-law and provisions, such as Articles 39/2(2), 40, 4a, 42 and 43 of the Law of 15 December 1980 …, and Article 52(4) of the Royal Decree of 8 October 1981 …, under which a judgment delivered by the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) annulling a decision refusing residence on the basis of those provisions interrupts, and does not suspend, the mandatory period of six months prescribed by Article 10 of Directive 2004/38, by Article 42 of the Law of 15 December 1980 and by Article 52 of the Royal Decree of 8 October 1981?

(5) Does Directive 2004/38 require that, where the period of six months laid down by Article 10(1) of that directive is exceeded, some consequence must follow, and if so, what consequence? Does that directive require or permit the consequence of exceeding the period to be the automatic grant of the residence card sought, without any finding having been made that the applicant does in fact satisfy the conditions for the enjoyment of the right which he claims?’

26. The Belgian Government submits, primarily, that the Court has no jurisdiction to answer the questions referred for a preliminary ruling because EU law does not apply to the situation at issue in the main proceedings. Thus, Mr Diallo does not fall within the scope of Directive 2004/38 and he cannot benefit from the provisions of that directive, since he is not a ‘family member’ within the meaning of point 2 of Article 2 of that directive. Furthermore, the facts of the dispute in the main proceedings are not covered by Directive 2003/86 because Mr Diallo’s application for a residence card is based solely on his capacity as a relative in the ascending line of a Union citizen. Finally, the Belgian Government submits that Mr Diallo cannot be granted a right of residence on the basis of Articles 20 and 21 TFEU.

28. It must be stated that it is apparent from the order for reference that the referring court set out the reasons why it considers that the interpretation sought is necessary in order to resolve the dispute in the main proceedings and, in particular, clarified that that interpretation of EU law will have a direct bearing on the assessment of Mr Diallo’s situation.

29. Thus, the referring court stated, first, that, if it were to follow from the Court’s answer that the six-month period laid down in Article 10(1) of Directive 2004/38 required, or did not preclude, the automatic issuing of the residence card sought as a result of that period being exceeded, that residence card should be issued to Mr Diallo.

30. Second, the referring court asks the Court, in essence, whether EU law precludes national case-law according to which, following the judicial annulment of a decision refusing to issue a residence card, the competent national authority is once again allowed the full period of six months laid down in Article 10(1) of Directive 2004/38.

31. Given the wording of the Belgian legislation and the facts of the dispute in the main proceedings, the impact of the requested interpretation on Mr Diallo’s situation is undeniable.

32. It is common ground that Mr Diallo submitted an application for a residence card of a family member of a Union citizen in his capacity as a relative in the ascending line of a child of Netherlands nationality residing in Belgium, that the refusal decision was notified to him more than six months after the submission of that application, and that, following the annulment of that decision, a second decision was adopted and notified to him.

33. It is also common ground that, under Belgian law, if no decision is adopted within the six-month period, a residence card is to be issued automatically to the applicant.

34. Accordingly, the interpretation provided by the Court will enable the referring court to determine whether, in the present case, the national authorities should have issued a residence card to Mr Diallo since the first decision was notified to him after the six-month period had expired and since, depending on the period that was available to the competent national authority to adopt a second decision following the annulment of the first, it cannot be ruled out that that second decision was adopted after that period had expired.

35. In those circumstances, the Belgian Government cannot claim that Mr Diallo’s situation does not fall within the scope of Directive 2004/38.

36. In the light of all those factors, I am of the view that the Court has jurisdiction to give the interpretation sought.

37. By its first, second and fifth questions referred for a preliminary ruling, which — in my view — should be examined together, the referring court asks, in essence, whether Article 10(1) of Directive 2004/38 must be interpreted as meaning that the decision on an application for a residence card of a family member of a Union citizen must be adopted and notified within the six-month period laid down by that provision.

38. If that decision could be notified subsequently, the referring court asks the Court about the period within which notification must take place.

39. Finally, the referring court asks the Court about the consequences of exceeding the six-month period laid down in Article 10(1) of Directive 2004/38, in particular as regards the issuing of the residence card.

40. Those questions raise, in my view, two separate issues: first, the period within which the decision taken following an application for a residence card of a family member of a Union citizen must be adopted and notified and, second, any consequence which must follow from the six-month period laid down by Article 10(1) of Directive 2004/38 being exceeded.

(a) The periods for adoption and notification of the decisions covered by Article 10(1) of Directive 2004/38

41. After demonstrating the mandatory nature of the six-month period provided for in Article 10(1) of Directive 2004/38, I will set out the obligations on the competent national authorities as regards the notification of decisions issuing and refusing a residence card.

42. First, with regard to the nature of the period provided for in Article 10(1) of Directive 2004/38, it must be pointed out that, under that provision, the right of residence of family members of a Union citizen who are not nationals of a Member State is to be evidenced by the issuing of a residence card of a family member of a Union citizen no later than six months from the date on which they submit the application.

43. It must therefore be observed, first, that the provisions of that article expressly govern only the situation in which the application for a residence card has been recognised as being well founded and the existence of the right of residence has therefore been established, and, second, that the words chosen and the tenses of the verbs used make the article unquestionably mandatory in nature.

44. I therefore take the view that the use of both the present indicative and the words ‘no later than’, which clearly indicate that that period constitutes the maximum amount of time to be spent examining the application, (7) argue in favour of such a conclusion. (8)

45. In addition, by using the term ‘issuing’, the legislature clearly expressed its intention to fix a time limit for the competent national authorities. By providing that Member States must issue a residence card to applicants ‘no later than six months from the date on which they submit the application’, Article 10(1) of Directive 2004/38 requires that, within that six-month period, the competent national authorities are to examine the application, adopt a decision and, if they find that the applicant has a right of residence, issue a residence card. Accordingly, the issuing of that document gives tangible form to the positive decision previously adopted by the competent national authorities following their examination of the application.

46. Thus, as the European Commission has rightly pointed out, the use of the term ‘issuing’ and of corresponding terms in other language versions of Directive 2004/38 (9) requires not only that the decision be adopted within the six-month period, but also that the residence card be made available to the applicant within that period.

47. Furthermore, any other interpretation of Article 10(1) of Directive 2004/38 would cast doubt on the effectiveness of the right of residence and, ultimately, undermine the practical effect of that provision since that practical effect can be brought to bear fully only once the applicant has that card in his possession.

48. Indeed, as the Commission rightly points out, the possession of a document of a permanent nature rather than a temporary certificate, issued by the national authorities when the application is submitted, unquestionably makes it easier to exercise the right of residence on a day-to-day basis, and the temporary nature of the certificate precludes the benefit of the provisions laid down in Article 5(2) of Directive 2004/38, which exempt family members from visa requirements.

49. Finally, this interpretation is supported by the case-law of the Court which, when asked not about the nature of the period in question but about the conditions of issue of the residence card, stated that the card evidencing the right of residence had to be ‘furnished’ within six months from the date on which the application was submitted. (10)

50. It therefore follows, in my view, that the merits of the application must be recognised and concrete expression given to that recognition in the form of a permit within that period, since such official recognition affords the beneficiary the entitlement to certain advantages.

51. Since the concept of ‘issuing’ covers only those cases in which the competent national authorities find that the applicant satisfies the conditions for the right of residence, the question therefore arises whether, in the light of the silence of Directive 2004/38, the fact that the decision is negative and the issuing of the residence card is refused alters the duration or nature of the period at issue.

52. It is my view that that is not the case. The nature of the period cannot change and be reduced merely to an indicative period where, as in the present case with respect to Mr Diallo’s situation, the national authorities refuse to issue the residence card.

53. It is clear that the spirit of Directive 2004/38 requires that the circumstances of people who are in Mr Diallo’s situation be examined as soon as possible.

54. In addition, if, as I propose, the authorities are required to issue the residence card within the six-month period and adopt a decision to that effect, the examination of the application prior to that decision necessarily is to take place within that period. Consequently, taking the view that the six-month period is also mandatory in cases in which a residence card is refused does not create any additional obligation in terms of speed on the competent national authorities.

55. In those circumstances, I see no reason why a decision refusing to grant a residence card could be adopted after the six-month period, or even be continuously delayed.

56. Secondly, turning to the referring court’s questions regarding the notification of the decision, I take the view that, from a procedural perspective, a distinction must be drawn between situations giving rise to the issuing of a residence card and, as is the case here, situations in which that card is refused.

57. Where the right of residence is established, it is my view that the decision must be adopted and the card issued within the six-month period for the reasons set out in points 44 to 50 of this Opinion.

58. However, although the binding nature of the period laid down by that provision requires that the decision refusing a residence card be adopted within that period, I am nevertheless of the opinion that the notification of such a decision may occur after that period.

59. It is true that, in accordance with Directive 2004/38 (11) and with the right to effective judicial protection, (12) the notification of a decision refusing to grant a residence card is mandatory. (13)

60. However, like the Belgian Government, I take the view that notification is fundamentally different from examination of the conditions for the right of residence, and therefore that the six-month period does not concern notification.

61. Notification has no impact on the right of residence, but is rather a condition for the review of the decisions finding that such a right does or does not exist.

62. In addition, in the light of the legislature’s silence regarding the notification of decisions refusing to grant a residence card and of the differing scopes of Directives 2003/86 and 2004/38, Article 5(4) of Directive 2003/86, which requires that the competent national authorities give the person concerned written notification of the decision granting or refusing an application for family reunification within a period of nine months from the date on which that application was lodged, is of no assistance as regards the interpretation of the national authorities’ obligations under Directive 2004/38.

63. That said, notification must, in my view, take place as soon as possible after the adoption of the decision by the competent national authorities, specifically to enable the person concerned to contest it as soon as possible.

64. Thus, the interpretation which I propose does not affect the rights of applicants for a residence card.

65. Accordingly, when the application is submitted, a certificate is issued immediately to the applicant; that certificate remains valid until notification of the decision refusing the residence card occurs and provides temporary protection for the applicant.

66. Furthermore, since the time limit for lodging an appeal begins to run only once the decision has been notified, (14) and not when that decision is adopted, notification of the decision after the six-month period does not undermine the right to effective judicial protection.

(b) The consequences of exceeding the six-month period provided for in Article 10(1) of Directive 2004/38

67. The referring court asks the Court about the consequences of exceeding the six-month period laid down by Article 10(1) of Directive 2004/38. In particular, it asks the Court whether that directive requires or permits the consequence of exceeding that period to be the automatic grant of the residence card, without it having been established beforehand that the applicant satisfied the conditions for entitlement.

68. In this regard, it is true that, since Directive 2004/38 does not specify what consequences follow from the six-month period being exceeded, that question is, in principle, a matter falling within the procedural autonomy of the Member States, subject to compliance with the principles of effectiveness and equivalence. (15)

69. However, in the light of the objective of Directive 2004/38 and of the impact of the automatic issuing of the residence card, I am convinced that Article 10(1) of that directive does not allow such a consequence to follow from the six-month period being exceeded.

70. First, the Belgian legislation gives rise to situations which, in my view, are contrary to the objective pursued by Directive 2004/38.

71. Indeed, both the wording and the spirit of Directive 2004/38 presuppose that the response given to an application for a residence card be consistent with the applicant’s circumstances and founded on an extensive and individual examination of his situation. (16)

72. However, in the present case, Mr Diallo’s situation perfectly illustrates the — at the very least incongruous — outcome to which the Belgian legislation may lead.

73. For example, notification of a decision recognising a right of residence after the six-month period has no effect, whereas, in a situation such as that in the main proceedings, where the application for a residence card is refused, the failure to comply with the six-month period entails the automatic issuing of an unwarranted residence permit establishing a right which, in reality, is at odds with the decision which was not notified in time.

74. I have, admittedly, taken the reasoning to its extreme here in order to make my point. However, the consequences of that reasoning demonstrate, in my view, that the provisions of Belgian law lead, in any event, to an outcome which is contrary to the objective pursued by Directive 2004/38, which is quite clearly that the response given to an application for a residence card be consistent with the applicant’s circumstances.

75. Second, it is my view that the system of automatically issuing residence cards is a source of legal uncertainty.

76. I agree that the Belgian Government’s desire to prevent the denial of administrative action is commendable and that the Belgian legislation allows the applicant to have his situation clarified despite the inaction or the slowness of the competent national authorities.

77. However, since residence cards which are issued automatically can be withdrawn at a later date, such cards are, in reality, only temporary in nature. The Belgian legislation therefore creates considerable legal uncertainty, if not unfair situations, for the holders of those cards because several years after having issued a residence card without any real examination of the applicant’s circumstances, the Belgian authorities may withdraw the card on the ground that the holder, despite acting in good faith, never satisfied the conditions to be issued such a card.

78. In addition, unlike the temporary certificate issued to the applicant pending the adoption of a decision, a residence card of a family member of a Union citizen is in no way temporary in nature.

79. Moreover, given the automatic nature of the issuing of the card, it is paradoxical for the Belgian Government to seek to rely on the right to make a mistake to justify the option of withdrawing that card.

80. Although is clear that the authorities cannot be denied the possibility of correcting errors, it must be observed that the automatic issuing of residence cards is the result neither of an error nor of the inaction or slowness of the authority which failed to adopted a decision within the prescribed period.

81. Third, the issuing of a residence permit to a third-country national is to 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. (17)

82. However, as a result of the (in reality) temporary nature that the Belgian legislation confers on that card — a card which may subsequently be withdrawn — that legislation, which requires that the card applied for be issued automatically as a consequence of slowness or inaction on the part of the authorities, assigns that document the status of a rebuttable presumption vis-à-vis the existence of a right and renders it non-declaratory in relation to that right.

83. In the light of all those factors, I am convinced that the exceeding of the six-month period laid down in Article 10(1) of Directive 2004/38 cannot result in the residence card being issued automatically, that is to say in the automatic — and potentially erroneous — finding that the applicant enjoys that right.

84. Indeed, although exceeding that period must have some effect, the fact that the applicant does or does not satisfy the conditions to obtain the residence card is independent of inaction on the part of the administration, since such circumstances in no way alter the objective situation of the applicant for a residence card or the finding that he does or does not satisfy the conditions to be granted a residence card.

85. However, an action to establish the non-contractual liability of the Member State in question for breach of EU law is an appropriate way of determining the consequences of exceeding the mandatory six-month period in each individual case. (18)

86. If the delay by the Member State were, in and of itself, to entail specific harm, an action seeking compensation for such harm, whatever the nature of that action, should afford the applicant for a residence card a right to damages. (19)

87. In the light of all those considerations, I take the view, first, that the decision refusing to grant a residence card under Article 10(1) of Directive 2004/38 must be adopted within the six-month period laid down by that provision, but may be notified subsequently.

88. Second, in my opinion, that directive precludes national legislation under which, where a decision is not taken within the six-month period, the residence card is automatically granted, even where the applicant does not satisfy the necessary conditions.

89. By its third and fourth questions referred for a preliminary ruling, which I propose that the Court examine jointly, the referring court asks whether EU law precludes national case-law according to which, following the judicial annulment of a decision refusing to issue a residence card of a family member of a Union citizen, the competent national authority is once again allowed the full period of six months provided for in Article 10(1) of Directive 2004/38.

90. It must be stated that, since Directive 2004/38 does not govern the question of the period available to the authorities to adopt a decision following the annulment of a first decision, that question is a matter falling within the procedural autonomy of the Member States. (20)

91. Accordingly, it will be for the referring court to verify that the principle of equivalence is observed. In that connection, the rule that, following the judicial annulment of a decision refusing to issue a residence card of a family member of a Union citizen, the competent national authority is once again allowed the full period is, as is made clear in the order for reference, a rule of case-law and therefore applies to procedures governing similar situations subject to domestic law.

92. As for compliance with the principle of effectiveness, it is necessary to verify that the national procedural rules do not render the exercise of rights conferred by EU law impossible in practice or excessively difficult.

93. I understand Mr Diallo’s position and the scope of his arguments. In his specific case, to require the administration to come to a decision and to notify that second decision in the few days remaining before the expiry of the six-month period is tantamount to imposing on it a virtually impossible task, thus entailing — in view of the automatic nature of the issuing of the residence card if that period is exceeded — the certainty of him being granted a residence permit to which he is perhaps not entitled.

94. Effective judicial protection does, of course, require that a person whose application for a residence card was rejected by a decision which was subsequently annulled has the right for a new decision to be taken (21) within a period that does not exceed the period that was available to the authorities for the adoption of the first decision, that is to say — in the present case — a period of six months. (22)

95. However, the retroactive nature of the annulment means that the decision annulled must be deemed never to have existed, that the administration is in the same position as before and, consequently, that a period of six months is available to it. As the Belgian Government rightly points out, the annulment gives rise to the obligation to resume ab initio the procedure now deemed never to have existed.

96. That view is by no means called into question by the necessary protection of the rights of applicants for residence cards.

97. It is clear that the authorities cannot be required to act within such short periods of time that it would make it impossible in practice to conduct any serious, adversarial and diligent examination of the applications submitted to them, even though such examination is necessary given the annulment of the first decision.

98. In addition, if, as the Commission stated during the legislative procedure, ‘the deadline of six months seems more realistic if Member States are to be able to carry out the necessary checks and issue the residence card’, (23) such a period is a fortiori necessary where the first decision has been annulled.

99. Accordingly, to take the view — as the applicant in the main proceedings proposes — that the national authorities have only the remainder of the six-month period at their disposal to adopt a second decision runs counter, in my opinion, to the right of applicants for a residence card to have their application examined seriously and diligently.

100. In addition, the interpretation advocated by the Commission, namely that the new period must be determined on a case-by-case basis, is, in my view, problematic for two reasons.

101. First, since that approach is dependent on the degree of care taken by the authority in question as well as the ground for annulment, it is by no means easy to determine the new period of time available to the competent national authority. There is also a risk of it giving rise to new litigation and prolonging decision-making and procedural time limits, since the Commission proposes that the national authority must set out the reasons for the new period available to it.

102. Second, with regard to mass litigation, this view is unrealistic and would also result in decision-making time limits being extended.

103. In any event, although it is true that the fact that, following the judicial annulment of a decision refusing to issue a residence card, the competent national authority is once again allowed the full period of six months provided for in Article 10(1) of Directive 2004/38 may have the result of prolonging the procedure, the applicant is temporarily protected by the certificate issued to him when he submitted his application.

104. In the light of all those considerations, I take the view that, following the judicial annulment of a decision refusing to issue a residence card of a family member of a Union citizen, the competent national authority is once again allowed the full period of six months provided for in Article 10(1) of Directive 2004/38.

105. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Conseil d’État (Council of State, Belgium) as follows:

(1) The decision refusing to grant a residence card pursuant to Article 10(1) 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 must be adopted within the six-month period laid down by that provision, but may be notified subsequently.

(2) Article 10(1) of Directive 2004/38 does not permit the consequence of exceeding the six-month period to be the automatic grant of the residence card, without it having been established that the applicant does in fact satisfy the conditions required to enjoy the right of residence.

(3) Following the judicial annulment of a decision refusing to issue a residence card of a family member of a Union citizen pursuant to Article 10(1) of Directive 2004/38, the competent national authority has at its disposal the full period of six months laid down by that provision to adopt a new decision.

2 OJ 2004 L 158, p. 77, and corrigenda in OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34.

3 Moniteur belge of 31 December 1980, p. 14584, ‘the Law of 15 December 1980’.

4 Moniteur belge of 27 October 1981, p. 13740, ‘the Royal Decree of 8 October 1981’.

7 See, by analogy, Opinion of Advocate General Kokott in Housieaux (C‑186/04, EU:C:2005:70, point 23).

8 In this regard, a parallel may be drawn with Article 5(1) of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117), in relation to which it follows from case-law and, in particular, from the judgment of 14 April 2005, Commission v Spain (C‑157/03, EU:C:2005:225, paragraphs 45 and 46) that that period was mandatory. Furthermore, point 2.2.2 of the Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38 (COM(2009) 313 final) unambiguously states that ‘the residence card must be issued within six months from the date of application. The deadline must be interpreted in the light of Article 10 of the EC Treaty and the maximum period of six months is justified only in cases where examination of the application involves public policy considerations’.

9 For example, the Spanish, [French] and Italian language versions of that directive refer, respectively, to the ‘expedición de un documento’, the [‘délivrance d’un document’] and the ‘rilascio di un documento’.

10 See judgment of 5 September 2012, Rahman and Others (C‑83/11, EU:C:2012:519, paragraph 42).

12 In the sense that, in order for review by the courts to be effective, the interested party must be able to obtain the reasons for the decision taken in relation to him so as to assert and defend his rights, see judgments of 17 November 2011, Gaydarov (C‑430/10, EU:C:2011:749, paragraph 41 and the case-law cited), and of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 53). With regard to the significance and scope of the obligation on national authorities to state reasons for their decisions, see Opinion of Advocate General Mengozzi in CO Sociedad de Gestión y Participación and Others (C‑18/14, EU:C:2015:95, footnote 40).

13 In so far as is relevant here, I would point out that notification cannot be dependent on a request from the person concerned since, first, such an interpretation would run counter to Article 30(1) of Directive 2004/38, which states that ‘the persons concerned shall be notified … of any decision’, and, second, it is illogical to require a person to request notification of a decision of which he is not aware. In this regard, a distinction must be drawn between requests for notification of a decision and requests for notification of the grounds forming the basis of a decision. In relation to that second situation, case-law accepts that the grounds can be notified only once a request to that effect has been made, see judgment of 17 November 2011, Gaydarov (C‑430/10, EU:C:2011:749, paragraph 41).

15 In a relatively similar situation, in which a directive did not state the consequences of the national authorities exceeding the prescribed time limit for responding, the Court has already held that, subject to compliance with the principles of equivalence and effectiveness, it was for the Member States to determine the effects of exceeding the time limit and that, therefore, the directive did not require the adoption of an implicit decision of acceptance, see judgment of 20 January 2005, Merck, Sharp & Dohme (C‑245/03, EU:C:2005:41, paragraphs 25 to 34). More generally, on the issue of administrative silence in EU law, see Bonichot, J.-C., ‘Le silence de l’administration communautaire: le silence est-il d’or en droit de l’Union?’, La Cour de justice de l’Union européenne sous la présidence de Vassilios Skouris (2003-2015): liber amicorum Vassilios Skouris, Bruylant, Brussels, 2015, pp. 117 to 129.

16 See judgment of 5 September 2012, Rahman and Others (C‑83/11, EU:C:2012:519, paragraphs 22 and 26). In this regard, it should be observed, first, that an applicant for a residence card must, pursuant to Article 10(2) of Directive 2004/38 and Article 52(2) of the Royal Decree of 8 October 1981, submit a file to the administration containing, in addition to proof of his identity, documents on the basis of which it can be duly established that he satisfies the necessary conditions to be issued that card. Second, it is not, in my view, the potentially implicit nature of the decision which is problematic, but rather the fact that it follows from the wording of the Belgian legislation that the residence card is issued where a decision has not been taken and without it having been established that the applicant does in fact satisfy the necessary conditions to enjoy the right of residence.

17 See the solution adopted in the judgments of 21 July 2011, Dias (C‑325/09, EU:C:2011:498, paragraph 48 and the case-law cited), and of 14 September 2017, Petrea (C‑184/16, EU:C:2017:684, paragraph 32), as expanded by the judgment of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 60) to Article 10 of Directive 2004/38.

18 In this regard, in point 78 of her Opinion in Commission v Moravia Gas Storage (C‑596/13 P, EU:C:2014:2438), Advocate General Kokott had taken the view the Commission was not prevented from adopting a decision because the relevant time limit had been exceeded, and that the exceeding of a given time limit by the Commission could, if there were no justified reason for it so doing, trigger the non-contractual liability of the European Union.

19 In the light of the wording of the question referred for a preliminary ruling, only the consequences for the applicant of the six-month period being exceeded are envisaged here. If the consequences of failing to comply with the six-month period were to be viewed from the perspective of the imposition of penalties on the Member State, then such a delay could constitute a failure to fulfil obligations when implementing the directive, see, by analogy, judgment of 14 April 2005, Commission v Spain (C‑157/03, EU:C:2005:225).

20 In a different context, the Court has already held, first, that it is for the Member States to determine whether the fact that the time limit laid down in a directive is exceeded precludes the competent authorities from adopting a new decision when the previous decision has been annulled in court proceedings, and, second, that such a possibility can be exercised only within a reasonable time which may not exceed the time limit laid down in that article, see judgment of 20 January 2005, Glaxosmithkline (C‑296/03, EU:C:2005:42, paragraph 39).

21 See judgment of 20 January 2005, Glaxosmithkline (C‑296/03, EU:C:2005:42, paragraph 35).

22 See judgment of 20 January 2005, Glaxosmithkline (C-296/03, EU:C:2005:42, paragraph 37).

23 Amended proposal for a Directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (presented by the Commission pursuant to Article 250(2) of the EC Treaty) (COM(2003) 199 final).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Diallo (Citizenship of the Union - Rights of citizens of the Union to move and reside freely - Opinion) [2018] EUECJ C-246/17_O (07 March 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/C24617_O.html Cite as: EU:C:2018:171, ECLI:EU:C:2018:171, [2018] EUECJ C-246/17_O

Court of Justice of the European Communities (including Court of First Instance Decisions)