CJEU Case C-930/19 / Judgment

1) This request for a preliminary ruling concerns the validity of Article 13(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34), in the light of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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21) In those circumstances, the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does Article 13(2) of [Directive 2004/38] infringe Articles 20 and 21 of the [Charter], in that it provides that divorce, annulment of marriage or termination of a registered partnership does not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where, inter alia, this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting, but only on the condition that the persons concerned show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements, whereas Article 15(3) of [Directive 2003/86], which makes the same provision for the right of residence to continue, does not make its continuation subject to that condition?’

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23) The Belgian Government submits that the Court does not have jurisdiction to answer the question referred, on the grounds that, first, the referring court expresses doubts as to the validity of Article 13(2) of Directive 2004/38 in the light not of a rule of EU law but of a rule of law established by the national legislature in the context of the power conferred on it by Article 15(2) and (3) of Directive 2003/86, second, failure to comply with the conditions laid down in Article 13(2) of Directive 2004/38 undermines the rules on the division of powers between the Union and the Member States, and, third, the provisions of the Charter cannot result in alteration of the powers of the Union and, therefore, in encroachment on the powers which, as EU law currently stands, belong to the Member States, such as those relating to the conditions of residence of third-country nationals who do not satisfy the condition of being family members of a Union citizen.

24) In that regard, it follows from Article 19(3)(b) TEU and point (b) of the first paragraph of Article 267 TFEU that the Court has jurisdiction to give preliminary rulings on the interpretation and the validity of acts adopted by the EU institutions, without exception, as those acts must be entirely compatible with the Treaties, the constitutional principles stemming therefrom, and the Charter (judgment of 14 May 2019, M and Others (Revocation of refugee status), C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 71 and the case-law cited).

25) In the present case, taking the view that, as regards the conditions for the retention, inter alia, in the event of divorce, of the right of residence by third-country nationals who have been the victims of acts of domestic violence committed by their spouses, the regime laid down in Article 13(2) of Directive 2004/38 concerning third-country nationals whose spouses are Union citizens is less favourable than that laid down in Article 15(3) of Directive 2003/86 as regards third-country nationals whose spouses are also third-country nationals, the referring court asks the Court of Justice to rule on the validity of Article 13(2) of Directive 2004/38, in the light of Articles 20 and 21 of the Charter, which enshrine the principle of equal treatment and of non-discrimination.

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27) By its question, the referring court asks, in essence, whether Article 13(2) of Directive 2004/38 is valid in the light of Articles 20 and 21 of the Charter.

28) In particular, the referring court seeks to ascertain whether by making, in the event of divorce, the retention of the right of residence by third-country nationals who have been the victims of acts of domestic violence committed by their spouses who are Union citizens subject to the conditions laid down in the second subparagraph of Article 13(2) of Directive 2004/38, including, in particular, the condition relating to the sufficiency of resources, whereas Article 15(3) of Directive 2003/86 does not impose such conditions for the purpose of granting, in the same circumstances, an autonomous residence permit to third-country nationals who have been the victims of acts of violence committed by their spouses who are also third-country nationals, the EU legislature has introduced a difference in treatment between those two categories of third-country nationals who have been the victims of acts of domestic violence, to the detriment of the first category, in breach of Articles 20 and 21 of the Charter.

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49) It is necessary to ascertain at the outset whether Articles 20 and 21 of the Charter are relevant when examining, as the referring court asks, whether Article 13(2) of Directive 2004/38 may lead to discrimination against third-country nationals who are victims of acts of domestic violence and whose spouses are Union citizens, compared with those whose spouses are also third-country nationals.

50) As regards, in the first place, Article 21 of the Charter, since the difference in treatment which Article 13(2) of Directive 2004/38 establishes is based on the nationality of the spouse who committed acts of domestic violence, it must be noted that Article 21(2) of the Charter, which provides that ‘within the scope of application of the Treaties and without prejudice to any special provisions, any discrimination on grounds of nationality shall be prohibited’, corresponds, according to the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), to the first paragraph of Article 18 TFEU and must be applied in accordance with that latter provision.

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53) It follows that Article 21 of the Charter is irrelevant for the purposes of the examination of validity requested by the referring court.

54) As far as concerns, in the second place, Article 20 of the Charter, that article, which provides that ‘everyone is equal before the law’, does not contain any express limitation on its scope and is therefore applicable to all situations governed by EU law, such as those falling within the scope of Directives 2004/38 and 2003/86 (see, to that effect, Opinion 1/17 (EU-Canada CET Agreement) of 30 April 2019, EU:C:2019:341, paragraph 171 and the case-law cited).

55) Accordingly, Article 20 of the Charter is relevant for the purposes of the examination of validity requested by the referring court.

56) In those circumstances, the validity of Article 13(2) of Directive 2004/38 must be assessed in the light of Article 20 of the Charter only.

57) As is apparent from the settled case-law of the Court, equality before the law, set out in Article 20 of the Charter, is a general principle of EU law which requires that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such different treatment is objectively justified (judgment of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 76 and the case-law cited).

58) The requirement that situations must be comparable, for the purpose of determining whether there is a breach of the principle of equal treatment, must be assessed in the light of all the elements that characterise them and, in particular, in the light of the subject matter and purpose of the act that makes the distinction in question, while the principles and objectives of the field to which the act relates must also be taken into account. If the situations are not comparable, a difference in the treatment of the situations concerned is not in breach of equality before the law as enshrined in Article 20 of the Charter (Opinion 1/17 (EU-Canada CET Agreement) of 30 April 2019, EU:C:2019:341, paragraph 177 and the case-law cited).

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72) It must be noted that it is apparent from recitals 1 and 2 of Directive 2004/38 that citizenship of the Union confers on each Union citizen a primary and individual right to move and to reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaties and the measures adopted to give them effect, freedom of movement for persons being, moreover, one of the fundamental freedoms of the internal market, as affirmed in Article 45 of the Charter (judgment of 22 June 2021, Ordre des barreaux francophones et germanophone and Others (Preventive measures for removal), C‑718/19, EU:C:2021:505, paragraph 54 and the case-law cited).

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90) It must therefore be held that, as regards the retention of their right of residence on the territory of the Member State concerned, third-country nationals who are spouses of Union citizens, have been the victims of acts of domestic violence committed by their spouses, and fall within the scope of Directive 2004/38, on the one hand, and third-country nationals who are spouses of other third-country nationals, have been the victims of acts of domestic violence committed by their spouses, and fall within the scope of Directive 2003/86, on the other, are not in a comparable situation for the purposes of the possible application of the principle of equal treatment, observance of which is ensured by European Union law and, in particular, by Article 20 of the Charter.

91) In the light of all the foregoing considerations, it must be held that the consideration of the question referred by the national court has disclosed no factor of a kind such as to affect the validity of Article 13(2) of Directive 2004/38, in the light of Article 20 of the Charter.