(Reference for a preliminary ruling — Citizens of the European Union — Directive 2004/38/EC — Article 10(1) — Application for a residence card as a family member — Issuance — Time limit — Adoption and notification of the decision — Consequences of non-compliance with the period — Procedural autonomy of Member States — Principle of effectiveness)
SOURCE: Court of Justice of the European Union, Annual report 2018
(…) in the judgment in Diallo delivered on 27 June 2018, the Court was required to provide guidance on the period within which a decision concerning the issue of a residence card of a family member of a Union citizen must be adopted and notified under Article 10(1) of Directive 2004/38, and the consequences of the prescribed period being exceeded. In the case in point, a Guinean national had applied, as a relative in the ascending line of a child of Netherlands nationality domiciled in Belgium, for a residence card of a family member of a Union citizen. The Belgian authorities refused that application, notifying him of their decision 6 months and 9 days after submission of the application. After the judicial annulment of that decision on the ground of failure to state reasons, the Belgian authorities adopted a new refusal decision, almost 1 year after submission of the application. According to national case-law, which the Belgian State claimed was applicable in this instance in the absence of specific rules under EU law in that regard, the authorities had, following the judicial annulment of its initial decision, a new period of 6 months for the purposes of Article 10(1) of Directive 2004/38 to deal with the application. The person concerned challenged that decision, arguing in particular that granting the competent national authority a further period of 6 months, following the annulment of an initial decision, rendered Article 10(1) of Directive 2004/38 redundant.
The Court made clear that the competent national authorities must, within the mandatory period of 6 months after the submission of the application for a residence card provided for in Article 10(1) of Directive 2004/38, examine the application, adopt a decision, notify that decision — in the positive or the negative — and, if it is positive, issue a residence card to the applicant. As regards the consequences of exceeding that sixth-month period, the Court pointed out that the residence card in question may not be issued to a third country national who does not meet the requirements set out in Directive 2004/38 for its allocation. In those circumstances, while there is nothing to prevent national legislation from providing that silence on the part of the competent administration for a period of 6 months from the lodging of the application constitutes a refusal, the very terms of Directive 2004/38 preclude that silence from constituting an acceptance. Accordingly, the competent national authorities may not be required to issue automatically a residence card of a family member of a Union citizen where the period of 6 months is exceeded, without finding beforehand that the person concerned actually meets the conditions for residing in the host Member State in accordance with EU law.
Lastly, concerning the effects of the judicial annulment of decisions refusing to issue a residence card, the Court held that, in such a situation, the authorities are required to adopt a new decision within a reasonable period of time, which cannot, in any case, exceed the period referred to in Article 10(1) of Directive 2004/38. The principle of effectiveness and the objective of rapid processing of applications inherent to Directive 2004/38 preclude national authorities automatically being allowed a new period of 6 months following the judicial annulment of an initial decision refusing to issue a residence card. The Court stated in that regard that the automatic opening of a new period of 6 months would render excessively difficult the exercise of the right of the family member of a Union citizen to obtain a decision on his application for a residence card.