In his Opinion delivered on 27 June 2018 (C-230/17), Advocate General Wahl defends an interesting interpretation given by the Danish law, to the right to family reunification under the EU law.
The case in the main proceedings
The case concerns a third-country national who is a family member of a Union citizen (descendant of the EU citizen’s spouse).
The EU citizen returns to the Member State of which is national (Denmark), after having exercised his right of freedom of movement.
The application for a residence permit lodged by the third-country national was rejected, because the latter has not entered Denmark or has not applied for a residence permit, ‘as a natural consequence’ of the return of the Union citizen in question. Such grounds for rejection are provided for by the Danish law.
Question referred for a preliminary ruling
By its question, the referring court asks whether by restricting the right to family reunification only to third-country nationals that have entered the territory or have applied for a residence permit as a natural consequence of the EU citizen’ return, the Danish legislation is in breach of Article 21 TFEU.
Opinion delivered by Advocate General Wahl
Recalling settled case-law, the Advocate General underlines that based on Article 21(1) TFEU, third-country nationals who are family members of returning EU citizens, are beneficiaries of the Directive 2004/38 by analogy, and thus enjoy derived right of residence.
AG Wahl observes that “Article 21(1) TFEU aims to allow the continuation, in the Member State of which the Union citizen concerned is a national, of the family life which has been created or strengthened with a family member who is a third-country national in the host Member State”,
Following the detailed guidance provided by the Danish law in regard to the determination as to whether the family member’s application is submitted as a natural consequence of the Danish national’s return to Denmark, AG Wahl takes the view that the concept of “natural consequence” can be justified by the principle of” continuity of the family life” derived from Article 21(1) TFEU.
Lastly, such a criterion should be a relevant factor although not decisive in itself,
A different view
In Coman and Other (C-673/16), the ECJ underlines the overriding value of the concept of “spouse” under the EU law; We take the view that the same overriding value should be attached to the concept of “direct descendants or descendants of the spouse”.
The derived right of residence to a third-country national who is a family member of a returning EU citizen is from Article 21(1) TFEU. (see inter alia judgment of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 54, and of 5 June 2018, Coman and Others, C‑673/16 EU:C:2018:385, paragraph 24).
The conditions for granting such a right, are from Directive 2004/38 which should be applied by analogy. (judgment of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 50).
Whereas, Article 2(2)(b) of Directive 2004/38 (registered partners) refers to the conditions laid down in the relevant legislation of the host Member State, Article 2(2)(c)- “the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);”, does not contain any such reference.
Pursuant to Article 7.2 of the said directive, “The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph l(a), (b) or (c)”.
To allow the application by analogy of Directive 2004/38, the Danish law introduces a criterion which is in breach of the said directive, and as a consequence, impairs the effectiveness of the rights conferred on the Union citizen by Article 21(1) TFEU.