ECJ Case C-157/03, Commission v Spain [2005]

ECJ Case C-157/03, Commission v Spain [2005], was about the visas that family members of EU citizens require for initial entry, and the timely processing of Residence Card applications.  The ruling applies to all member states, and make clear:

  1. A member state can not require long-term immigration visas for for family members accompanying or joining their EU family member. When they require a visa, they can only require [the equivalent of] a short term tourist visa.  Long-term immigration formalities are handled only during processing of the Residence Card.
  2. Residence [Cards] must be issued within the required maximum of 6 months.  No delay or extension is allowed.

The court’s ruling on this case is interesting because it is a useful tutorial on the strictly delimited requirements for the issue of visas and Residence Cards to non-EU family members of free-moving EU citizens.   Member states can not add requirements beyond this.

About the visa requirement for non-EU family members, the ruling says:

28      In that regard, the right of entry into the territory of a Member State granted to a third-country national who is the spouse of a national of a Member State derives from the family relationship alone. Therefore, issue of a residence permit to a third country national who is the spouse of a Member State 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 a national of a third country with regard to provisions of Community law (see MRAX, paragraph 74).

29      As regards the procedure for obtaining a residence permit, it must be pointed out that the conditions which may be required by a Member State for the issue of that permit are laid down in Article 4(3)(c), (d) and (e) of Directive 68/360, Article 6 of Directive 73/148 and Article 2 of Directive 90/365.

30      Those conditions [for a Residence Card] are exhaustive in nature (see, to that effect, Case 48/75 Royer [1976] ECR 497, paragraph 37; Case C-363/89 Roux [1991] ECR I-273, paragraphs 14 and 15; and Case C-376/89 Giagounidis [1991] ECR I-1069, paragraph 21).

31      In accordance with Article 3(1) of Directives 68/360 and 73/148, Member States are to allow nationals of those States and members of their family who are covered by those directives to enter their territory merely on production of a valid identity card or passport.

32      Nevertheless, in accordance with Article 3(2) of those directives, when a national of a Member State moves within the Community with a view to exercising the rights conferred on him by the Treaty and those directives, the Member States may demand an entry visa or an equivalent document from members of his family who are not nationals of one of those States. The list of third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States was determined by Council Regulation (EC) No 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States (OJ 1995 L 234, p. 1), replaced by Council Regulation (EC) No 574/1999 of 12 March 1999 (OJ 1999 L 72, p. 2), itself replaced by Regulation No 539/2001 (MRAX, paragraph 56).

33      However, those States must grant family members who are not nationals of one of the Member States every facility for obtaining any necessary visas. In that regard, the Court has held that if the provisions of Directives 68/360 and 73/148 are not to be denied their full effect, a visa must be issued without delay and, as far as possible, at the place of entry into national territory (MRAX, paragraph 60).

34      Article 2 of Regulation No 539/2001 defines a visa as an authorisation issued by a Member State which is required with a view to entry for a stay of no more than three months in total.

35      According to the Spanish rules on the conditions for obtaining a residence permit, members of the family of Community nationals who do not have the nationality of a Member State must submit, among other documents, a residence visa for family reunification stamped on their passport.

36      Therefore, those family members are required to carry out the formalities governing residence before entering Spanish territory, failing which the issue of the residence permit will be refused.

37      Moreover, no mention is made among the conditions governing the issue of a residence permit to family members of Community nationals laid down by Directives 68/360, 73/148 and 90/365 of the type of visa demanded by Spanish legislation (see, to that effect, MRAX, paragraph 56).

38      Consequently, the residence visa requirement laid down by the Spanish rules in order to obtain a residence permit and, consequently, the refusal to issue such a permit to a third-country national who is a member of the family of a Community national, on the ground that he or she should first have applied for a residence visa at the Spanish consulate in their last place of domicile thus constitutes a measure contrary to the provisions of Directives 68/360, 73/148 and 90/365.

39      It follows from the foregoing that the Commission’s first complaint is well founded.

About the requirement member states process Residence Cards within 6 months, the ruling says:

43      As a preliminary point it must be recalled that the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States (Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 12).

44      The Court has already held that the Commission may ask the Court to find that, in not having achieved, in a specific case, the result intended by a directive, a Member State has failed to fulfil its obligations (Joined Cases C-20/01 and C-28/01 Commission v Germany [2003] ECR I-3609, paragraph 30).

45      It must be pointed out that under Article 5(1) of Directive 64/221 the Member State must take a decision on whether to grant a residence permit as soon as possible and in any event not later than six months from the date on which the application was submitted.

47      It is of little importance in that regard that the applicant may provisionally reside in the national territory while awaiting the decision concerning the grant or refusal of the residence permit. As the Advocate General stated, in point 63 of her Opinion, the question whether the fact that the time-limit is exceeded constitutes an obstacle to taking up residence or exercising an activity is irrelevant.

48      Accordingly, the Commission’s second complaint is well founded.

The court concludes:

49      In the light of all the above considerations it must be held that:

–  by failing to transpose correctly into its national law Directives 68/360, 73/148 and 90/365, in particular, by requiring third-country nationals who are members of the family of a Community national who has exercised his right to freedom of movement to obtain a residence visa for the issue of a residence permit and,

–  by failing, in breach of the provisions of Directive 64/221, to issue a residence permit as soon as possible and in any event not later than six months from the date on which the application for that permit was submitted,

the Kingdom of Spain has failed to fulfil its obligations under those directives.

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