Key facts of the case:
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 — Issuing — Time limit — Adoption and notification of the decision — Consequences of non-compliance with the period — Procedural autonomy of Member States — Principle of effectiveness.
Outcome of the case:
On those grounds, the Court (First Chamber) hereby rules:
23) It is in that context that the Conseil d’État (Council of State) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is Article 10(1) of Directive 2004/38 to be interpreted as requiring that the decision as to whether to recognise a right of residence must be taken and notified within a period of six months, or as permitting the decision to be taken within that period but notified subsequently? If such a decision may be notified subsequently, within what period must this be done?
(2) Is Article [10(1)] of [Directive 2004/38], read in conjunction with Article 5 [of that directive], Article [5(4)] of [Directive 2003/86] and Articles 7, 20, 21 and 41 of the Charter of Fundamental Rights of the [European] Union, to be interpreted and applied as meaning that the decision adopted on that basis need only be taken within the period of six months which it prescribes, without there being any period applicable to notification or any impact whatsoever on the right of residence where notification occurs after expiry of that period?
(3) For the purposes of guaranteeing the effectiveness of the right to residence of a member of the family of a Union citizen, would it be contrary to the principle of effectiveness for a national authority, following the annulment of a decision relating to such a right, once again to be allowed the full period of six months which had been available to it under Article [10(1)] of [Directive 2004/38]? If so, what further period is allowed to [that] national authority following the annulment of a decision by which it refused to recognise the right at issue?
(4) Are Articles 5, 10 and 31 of Directive [2004/38], read in conjunction with Articles 8 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950], with Articles 7, 24, 41 and 47 of the [Charter of Fundamental Rights] and Article [21 TFEU], compatible with national case-law and provisions, such as Article 39/2(2), [Articles] 40, 40a, 42 and 43 of the Law of 15 December 1980, and Article 52(4) of the Royal Decree of 8 October 1981, which under a judgment delivered by the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings annulling a decision refusing residence on the basis of those provisions interrupts, and does not suspend, the mandatory period of six months prescribed by Article 10 of Directive 2004/38, by Article 42 of the Law of 15 December 1980 and by Article 52 of the Royal Decree of 8 October 1981?
(5) Does Directive [2004/38] require that, where the period of six months laid down by Article 10(1) of that directive is exceeded, some consequence must follow and, if so, what consequence? Does that directive require or permit the consequence of exceeding the period to be the automatic grant of the residence card sought, without any finding having been made that the applicant does in fact satisfy the conditions for the enjoyment of the right which he claims?’
26) In that regard, it should be noted that, by the questions referred, the referring court is asking the Court of Justice to interpret Article 10(1) of Directive 2004/38, taking into account other provisions contained in that directive, Directive 2003/86, the TFEU and the Charter of Fundamental Rights.
28) In accordance with Article 267 TFEU, the Court has jurisdiction to give preliminary rulings concerning the interpretation, inter alia, of the Treaties, the Charter of Fundamental Rights, and the directives covered by the questions referred for a preliminary ruling.