This period around the end of summer breaks is probably a busy time for everyone, so I will keep it short; as always, readers of this blog are very much welcome to point out and discuss some points in more detail in the comments if so desired. In this case, the Court was asked about the content of the obligation to ‘facilitate’, in accordance with national legislation, entry and residence for ‘any other family members’ (set out in Article 3(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely) who are dependants of a Union citizen. For this wider circle of ‘other family members’ (as opposed to the narrow circle of family members set out in Article 2 (2) of the Directive), Member States enjoy a broader margin of discretion and do not have to grant an ‘automatic’ right of entry and residence (para 20). The Court also clarified some matters on the situation of dependence that must be given for such a family member under Article 3 (2), but I’ll focus on the first point for the purpose of this post.
The Court underlines that the
‘provision imposes an obligation on the Member States to confer a certain advantage, compared with applications for entry and residence of other nationals of third States, on applications submitted by persons who have a relationship of particular dependence with a Union citizen.’ (para 21)
Therefore, Member States must ensure that such persons receive a
‘decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons.’ (para 22)
The Court notes some examples for factors to be taken into account (‘the extent of economic or physical dependence and the degree of relationship between the family member and the Union citizen whom he wishes to accompany or join’, para 23), but insists on the discretion of the Member States in choosing criteria in national legislation and in applying them. Effectively, applicants are thus not entitled to rely on the provision directly, but to judicial review which verifies whether this discretion has been used within the limits the Directive prescribes (para 25).
A notable feature of the solution found by the Court seems to be once again the importance given to judicial review and the reliance on judges. It could be that the Court simply has generally unwavering trust in the judicial profession in the Member States. Or it is rather about keeping the door at least potentially open for future preliminary references…