Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)
Judgment of the Court (Grand Chamber) of 7 September 2022, Staatssecretaris van Justitie en Veiligheid (Nature of the right of residence under Article 20 TFEU), Case C‑624/20, EU:C:2022:639
Reference for a preliminary ruling – Directive 2003/109/EC – Status of third-country nationals who are long-term residents – Scope – Third-country national with a right of residence under Article 20 TFEU – Article 3(2)(e) – Residence solely on temporary grounds – Autonomous concept of EU law
In 2013, E. K., a Ghanaian national, obtained, under Article 20 TFEU, a residence permit in the Netherlands as a family member of a Union citizen, on account of the existence of a relationship of dependency between herself and her son, who holds Netherlands nationality. In 2019, on the basis of the national legislation transposing Directive 2003/109 into domestic law, she submitted an application for a long-term resident’s EU residence permit. However, the Netherlands authorities refused her application, on the ground that the right of residence obtained under Article 20 TFEU is temporary in nature, within the meaning of that directive, and therefore excluded from its scope of application.
E. K. brought an action against that refusal decision before the Rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting in Amsterdam, Netherlands) which decided to make a reference to the ECJ on the subject of whether Article 3(2)(e) of Directive 2003/109 must be interpreted as meaning that the concept of residence ‘solely on temporary grounds’, which is referred to therein, covers the residence of a third-country national under Article 20 TFEU within the territory of the Member State of which the Union citizen concerned is a national.
Findings of the ECJ
In its judgment, the ECJ emphasizes, in the first place, that the concept of residence ‘solely on temporary grounds’, within the meaning of Article 3(2)(e) of Directive 2003/109, is an autonomous concept of EU law, which must be interpreted uniformly throughout the Member States.
In the second place, the ECJ takes the view that that provision excludes from the scope of application of Directive 2003/109 third-country nationals who reside solely on temporary grounds, for example as au pairs or seasonal workers, or as posted workers, and recalls its case-law according to which “the common objective characteristic of such residences is that they are strictly limited in time and are intended to be of short duration, meaning that they do not permit the long-term residence of a third-country national in the territory of the Member State concerned.”
According to the ECJ, a third-country national’s residence within the territory of a Member State under Article 20 TFEU does not have such an objective characteristic. The ECJ holds that “the right of residence of a third-country national under Article 20 TFEU, in his or her capacity as a family member of a Union citizen, is justified on the ground that such residence is necessary in order for that Union citizen to be able genuinely to enjoy the substance of the rights conferred by that status for as long as the relationship of dependency with that national persists. Although, admittedly, such a relationship of dependency disappears, as a rule, with the passage of time, it is not, in principle, intended to be of short duration” and “may extend over a considerable period and as regards, more specifically, a third-country national who is the parent of a child who is a citizen of the Union, in principle, until the child reaches the age of majority, or even beyond that age if the conditions are met.” Moreover, a third-country national who enjoys such a right of residence must be granted a work permit in order to enable him or her to support his or her child who is a Union citizen, as otherwise that child will be deprived of the genuine enjoyment of the substance of the rights attaching to that status. Therefore, the exercise of an employment in the territory of the Member State concerned over a prolonged period is such as to ingrain that national’s roots there even further.
In those circumstances, the ECJ concludes that the residence of a third-country national in the territory of a Member State under Article 20 TFEU cannot be regarded as constituting residence ‘solely on temporary grounds’ within the meaning of Article 3(2)(e) of Directive 2003/109.
Lastly, the ECJ notes that a third-country national who enjoys a right of residence, under Article 20 TFEU, as a family member of a Union citizen must satisfy the conditions laid down by Articles 4 and 5 of that directive in order to acquire long-term resident status. Thus, in addition to having resided legally and continuously within the territory of the Member State concerned for five years immediately prior to the submission of the relevant application, he or she must provide evidence that he or she has, for himself or herself and for dependent family members, 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, and sickness insurance in respect of all risks normally covered for its own nationals in that Member State. Likewise, the Member State concerned may also require third-country nationals to comply with integration conditions in accordance with their national law.
Judgment of the Court (Grand Chamber) of 15 November 2022 , Senatsverwaltung für Inneres und Sport, Case C‑646/20, EU:C:2022:879
Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility – Divorce – Regulation (EC) No 2201/2003 – Article 2(4) and Article 21 – Concept of ‘judgment’ – Recognition, in a Member State, of the dissolution of a marriage agreed in an agreement between spouses and pronounced by a civil registrar of another Member State – Criterion for determining the existence of a ‘judgment’
In 2013, TB, who has dual German and Italian nationality, married RD, an Italian national, in Germany. In 2018, at the end of divorce proceedings through extrajudicial means, laid down in Italian law, the civil registrar of the Italian civil registrar issued a divorce certificate under Article 39 Regulation No 2201/2003.
The German civil status services refused the registration of that divorce on the ground that there had not been any prior recognition of that divorce by the competent German judicial authority. The matter having been brought before it, the Bundesgerichtshof (German Federal Court of Justice) asked the ECJ whether the concept of ‘judgment’, within the meaning of Regulation No 2201/2003, covers an extrajudicial divorce stemming from an agreement concluded by the spouses and pronounced by a civil registrar of a Member State in accordance with the legislation of that Member State.
Findings of the ECJ
In its judgment, the CJ answers the question in the affirmative.
First of all, the ECJ points out that, concerning divorce, the concept of ‘judgment’, within the meaning of Article 2(4) of Regulation No 2201/2003, covers any divorce, whatever the judgment may be called, pronounced by a competent authority of a Member State (with the exception of the authorities of the Kingdom of Denmark) at the end of judicial or extrajudicial proceedings, provided that the law of the Member States also confers jurisdiction in relation to divorce on extrajudicial authorities. Thus, any judgment given by such extrajudicial authorities with jurisdiction in relation to divorce in a Member State must, pursuant to Article 21 of Regulation No 2201/2003, be automatically recognised in the other Member States (with the exception of the Kingdom of Denmark), without prejudice, first, to the application of Article 22 of that regulation as regards the grounds for non-recognition and, second, to the fact that, for the purposes of updating civil-status records in the Member State in which recognition is sought, no further appeal lies against that judgment.
The ECJ further recalls its case-law according to which Regulation No 2201/2003 “covers only a divorce which is pronounced either by a national court or by, or under the supervision of, a public authority, thereby excluding mere private divorces, such as a divorce resulting from a unilateraldeclaration of one of the spouses before a religious court”. Therefore, any public authority called upon to pronounce a ‘judgment’, within the meaning of Article 2(4) of Regulation No 2201/2003, must retain control over the grant of the divorce, which means, in the context of divorces by mutual consent, that it examines the conditions of the divorce in the light of national law and the actual existence and validity of the spouses’ consent to divorce. The ECJ explains that that requirement for an examination is the criterion which allows a distinction to be drawn between the concept of ‘judgment’ and those of ‘authentic instrument’ and ‘agreement between the parties’ which also appear in both Regulation No 2201/2003 and Regulation (EU) 2019/1111, which replaced it as from 1 August 2022.
With regard to the case at issue, according to the documents before the ECJ, it notes that, the civil registrar is, in Italy, a legally established authority which, under the law of that Member State, has jurisdiction to pronounce the divorce in a legally binding manner by recording, in writing, the divorce agreement drawn up by the spouses, after having carried out such an examination. That registrar ensures that the divorcing spouses’ consent to divorce is valid, free and informed and checks the content of the divorce agreement in the light of the legal provisions in force, by ensuring that that agreement relates only to the dissolution or termination of the civil effects of the marriage, to the exclusion of any transfer of assets or the involvement of children other than financially independent adult children. Therefore, the ECJ finds that this is a ‘judgment’ within the meaning of Article 2(4) of Regulation No 2201/2003.