Article 24 - The rights of the child
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling — Area of freedom, security and justice — Immigration policy — Right to family reunification — Directive 2003/86/EC — Article 4(1) — Concept of a ‘minor child’ — Article 24(2) of the Charter of Fundamental Rights of the European Union — Best interests of the child — Article 47 of the Charter of Fundamental Rights — Right to an effective remedy — Children of the sponsor who have reached majority during the decision-making procedure or court proceedings against the decision refusing the family reunification application.
Outcome of the case:
On those grounds, the Court (Third Chamber) hereby rules:
1) These requests for a preliminary ruling concern the interpretation of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
3) Recitals 2, 4, 6, 9 and 13 of Directive 2003/86 read as follows:
‘(2) Measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law. This Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950] and in the [Charter]. …
22) In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
In Cases C‑133/19 and C‑136/19:
‘1. In order to ensure the effectiveness of EU law and not to render it impossible to benefit from the right to family reunification which, in the … applicant’s submission, is conferred on her by Article 4 of [Directive 2003/86], must that provision be interpreted as meaning that the sponsor’s child may enjoy the right to family reunification when he attains his majority during the judicial proceedings against the decision which refuses him that right and which was taken when he was still a minor?
2. Must Article 47 of the [Charter] and Article 18 of [Directive 2003/86] be interpreted as precluding an action for annulment, brought against the refusal of a right to family reunification of a minor child, being held to be inadmissible on the ground that the child has attained his majority during the judicial proceedings, since he would be deprived of the possibility of securing a determination of his action against that decision and there would be a breach of his right to an effective remedy?’
32) Moreover, as is apparent from recital 2 of that directive, the directive respects the fundamental rights and observes the principles enshrined in the Charter.
34) In particular, Article 7 of the Charter, which contains rights corresponding to those guaranteed by Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, recognises the right to respect for private and family life. That provision of the Charter must also be read in conjunction with the obligation to have regard to the child’s best interests, recognised in Article 24(2) of the Charter, and with account being taken of the need, expressed in Article 24(3), for a child to maintain on a regular basis a personal relationship with his or her parents (judgment of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 76).
35) It follows that the provisions of Directive 2003/86 must be interpreted and applied in the light of Article 7 and Article 24(2) and (3) of the Charter, as is moreover apparent from recital 2 and Article 5(5) of that directive, which require the Member States to examine applications for family reunification in the interests of the children concerned and with a view to promoting family life (judgment of 13 March 2019, E, C‑635/17, EU:C:2019:192, paragraph 56 and the case-law cited).
36) However, it must be held, in the first place, that to consider the date on which the competent authority of the Member State concerned decided on the application for entry and residence in the territory of that State for the purposes of family reunification as the date which must be referred to in order to assess the age of the applicant for the purposes of applying point (c) of the first subparagraph of Article 4(1) of Directive 2003/86 would not be consistent with the objectives pursued by that directive or the requirements arising from Article 7 and Article 24(2) of the Charter, the latter provision requiring that in all actions relating to children, in particular those taken by Member States when applying that directive, the child’s best interests must be a primary consideration.
41) The circumstances referred to in the above paragraph thus illustrate the fact that an interpretation of point (c) of the first subparagraph of Article 4(1) of Directive 2003/86 according to which the date on which the competent administration of the Member State concerned decides on the application for entry into and residence in the territory of that State is the date to be used as the basis for assessing the age of the applicant for the purposes of that provision would not make it possible to ensure that, in accordance with Article 24(2) of the Charter, the interests of the child remain, in all circumstances, a primary consideration for Member States in the context of the application of Directive 2003/86.
48) By the second question in Cases C‑133/19 and C‑136/19, the national court asks, in essence, whether Article 18 of Directive 2003/86, read in the light of Article 47 of the Charter, must be interpreted as precluding an action brought against a decision rejecting an application for entry and residence for the purposes of family reunification for the benefit of a minor child from being dismissed as inadmissible on the sole ground that the child has reached majority in the course of the court proceedings.
53) While that provision thus affords Member States some discretion, inter alia in the determination of rules for dealing with an action against a decision rejecting an application for family reunification, it is important to note that, notwithstanding such discretion, Member States are required, when implementing Directive 2003/86, to comply with Article 47 of the Charter, which enshrines the right to an effective remedy before a tribunal for everyone whose rights and freedoms guaranteed by EU law are infringed (judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 55).
54) However, as the Advocate General noted in essence in paragraphs 42 and 44 of his Opinion, Article 18 of Directive 2003/86, read in the light of Article 47 of the Charter, requires that domestic actions enabling a sponsor and his or her family members to exercise their right to mount a legal challenge against decisions rejecting an application for family reunification be effective and real.
58) In the light of the foregoing considerations, the answer to the second question in Cases C‑133/19 and C‑136/19 is that Article 18 of Directive 2003/86, read in the light of Article 47 of the Charter, must be interpreted as precluding an action against the rejection of an application for family reunification of a minor child from being dismissed as inadmissible on the sole ground that the child has reached majority during the court proceedings.
59) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules: