Commission of the European Communities v Kingdom of Belgium.

• Jurisdiction: European Union
• Celex Number: 62003CC0408
• ECLI: ECLI:EU:C:2005:638
• Court: Court of Justice (European Union)
• Date: 25 October 2005
• Procedure Type: Recurso por incumplimiento – fundado
• Docket Number: C-408/03

OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER

delivered on 25 October 2005 ¹(1)

Case C-408/03

Commission of the European Communities

v

Kingdom of Belgium

(Failure of a Member State to fulfil its obligations – Belgium – Citizenship of the European Union – Freedom of movement for persons – Right of residence – Availability of sufficient resources – Portuguese national who moves to Belgium to live with her partner, who undertakes to maintain her – Refusal of right of residence on the ground that resources must be ‘personal’ – Residence permit – Procedure for grant of the permit – Failure to submit required documents within the time-limit – Automatic deportation order)

1. In this action, brought under the second paragraph of Article 226 EC, the Commission alleges that the Kingdom of Belgium:

1) failed to comply with Article 18 EC and with Directive 90/364/EEC on the right of residence; (2)

2) infringed:

a) Article 4 of Council Directive 68/360/EEC (3) on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, and Article 4 of Council Directive 73/148/EEC (4) on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services; and

b) Article 2 of Council Directives 93/96/EC (5) and 90/365/EEC, (6) on the right of residence for students and of employees and self-employed persons who have ceased their occupational activity.

2. The first allegation of failure to fulfil obligations relates to the fact that the nationals of other Member States who wish to establish themselves in Belgium are required to possess sufficient ‘personal’ resources. The second relates to the practice of automatically issuing a deportation order to European Union citizens who fail, within a given time-limit, to submit the documents required to obtain a residence permit.

I – The legal framework

A –Community law

1. Primary law

3. Article 18(1) EC recognises the right of all citizens of the Union ‘to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect’.

2. Secondary law

a) The requirement of sufficient resources

4. According to the first subparagraph of Article 1(1) of Directive 90/634:

‘Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community law and to members of their families as defined in paragraph 2, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.’

b) Residence permits

5.Article 2(1) of Directive 90/364 provides:

‘Exercise of the right of residence shall be evidenced by means of the issue of a document known as a “residence permit for a national of a Member State of the EEC” … .

For the purpose of issuing the residence permit or document, the Member State may require only that the applicant present a valid identity card or passport and provide proof that he or she meets the conditions laid down in Article 1.’

6.Article 4 of Directive 68/360 provides:

‘1. Member States shall grant the right of residence in their territory to the persons referred to in Article 1 [employed persons] who are able to produce the documents listed in paragraph 3.

…

3. For the issue of a residence permit for a national of a Member State of the EEC, Member States may require only the production of the following documents … .’

7.Article 4(1) of Directive 73/148 provides:

‘Each Member State shall grant the right of permanent residence to nationals of other Member States who establish themselves within its territory in order to pursue activities as self-employed persons, when the restrictions on these activities have been abolished pursuant to the Treaty.

As proof of the right of residence, a document entitled “residence permit for a national of a Member State of the European Communities” shall be issued …’

8.Directive 93/96, which relates to students, states in Article 2(1) that:

‘… The right of residence shall be evidenced by means of the issue of a document known as a “Residence permit for a national of a Member State of the Community” …

For the purpose of issuing the residence permit or document, the Member State may require only that the applicant present a valid identity card or passport and provide proof that he or she meets the conditions laid down in Article 1.’

9. Lastly, Article 2(1) of Directive 90/365, which concerns retired persons, provides:

‘Exercise of the right of residence shall be evidenced by means of the issue of a document known as a “Residence permit for a national of a Member State of the EEC” …

For the purposes of issuing the residence permit or document, the Member State may require only that the applicant present a valid identity card or passport and provide proof that he or she meets the conditions laid down in Article 1.’ (7)

B –The Belgian legislation

1. Possession of sufficient resources

10. According to Article 53(1) of the Royal Decree of 8 October 1981 (8) on foreigners’ entry into residence and establishment in, and expulsion from Belgian territory, Community citizens enjoy a right to live in the Kingdom, provided they have ‘sufficient resources’ not to become a burden on the public authorities.

2. The issue of residence permits

11. Paragraphs (2) to (6) of Article 53, as worded in the Royal Decree of 12 June 1998, (9) govern the issue of residence permits.

12. A Community citizen who produces the documents necessary to enter Belgium is registered in a foreigners’ register and a certificate is issued, valid for five months from the date of its issue. As from that moment, the citizen has to apply for residence (the first and second subparagraphs of Article 53(2)).

13. During that period, the person concerned must provide evidence that he satisfies the conditions of Article 53(1) (third subparagraph of Article 53(2)). If he does not satisfy them, or fails to provide the required proof, the right of residence is refused, which means he has to leave Belgian territory (Article 53(4)).

14. However, if that five month period has not elapsed and the applicant is in possession of the registration certificate referred to above, he is asked to produce the necessary documents before the period expires, and the stay is extended by one month (Article 53(5)).

15. When the application is refused after expiry of those time-limits, it is accompanied by an order to leave Belgian territory, which becomes enforceable in 15 days (Article 53(6)). (10)

16. Articles 45, (11) 55 and 51 lay down similar arrangements for employed and self-employed workers, students (12) and retired persons from other Member States.

II – Pre-litigation procedure

17. The Commission received various complaints about Belgian legislation and practice relating to residence permits and deportation orders for Community nationals.

18. In particular, it was struck by the situation of Mrs Mamade De Figueiredo, a Portuguese citizen who, in August 1999, together with her three children, joined her long-standing partner, a Belgian national. The municipal authorities of Waterloo requested authorisation from her husband for her to establish residence in that country, since they had not yet divorced in Portugal, where the couple had its marital home. It would appear that no such authorisation ever arrived.

19. Even though she had completed the entry declaration, accompanied by a document in which her partner undertook to maintain her and her children, on 16 December 1999 the authorities notified her of the refusal of the application and served a deportation order.

20. On 7 January 2000, the Commission conveyed to the authorities of the defendant Member State its misgivings as to whether the requirements which they were imposing for the issue of a residence permit were compatible with Community law, and with regard to Mrs Mamade De Figueiredo, stressed that there was nothing whatsoever to prevent the grant of the permit, since she had provided evidence that her partner would be responsible for feeding her. On 8 March 2000, they responded that the undertaking in question did not amount to proof that the applicant had her own means of subsistence.

21. Dissatisfied with the stance taken by the Kingdom of Belgium, on 8 May 2001 the Commission, whose departments had received a number of further complaints, put the State on formal notice on two grounds. The first was that, in its view, Directive 90/364 does not make the grant of a residence permit conditional on the applicant’s resources being personal, and the second was that to issue an automatic deportation order if the appropriate supporting documents for obtaining such a permit are not available contravenes the principle of proportionality.

22. On 6 July 2001, Belgium again asserted...