1.

This case concerns the arrangements implementing the derived right of residence which is required to be recognised in a Member State, on the basis of Article 20 TFEU, on the part of a third-country national who is a family member of a Union citizen who has never exercised the right of free movement.

2.

It provides an opportunity for the Court to restate the principles identified in that regard in its judgments of 10 May 2017, Chavez-Vilchez and Others, ( 2 ) and of 8 May 2018, K.A. and Others (Family reunification in Belgium), ( 3 ) in a context in which the application for a residence permit has been made by a third-country national who is the spouse of a Union citizen, and has been rejected without any assessment of whether a relationship of dependency exists between those two individuals.

3.

Article 1 of Directive 2004/38/EC ( 4 ) provides:

‘This Directive lays down:

…’

4.

Article 3 of Directive 2004/38, headed ‘Beneficiaries’, provides in paragraph 1:

‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.’

5.

Article 7(1) and (2) of that directive provides:

‘1.   All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

…

…

2.   The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).’

6.

By Article 68 of the Código Civil (Civil Code):

‘Spouses shall be obliged to live together and shall owe each other loyalty and mutual assistance. In addition, they must share domestic responsibilities and care for ascendants and descendants and their other dependants.’

7.

Article 1 of Real Decreto 240/2007, sobre entrada, libre circulación y residencia en España de ciudadanos de los Estados miembros de la Unión Europea y de otros Estados parte en el Acuerdo sobre el Espacio Económico Europeo (Royal Decree 240/2007 on the entry, free movement and residence in Spain of citizens of Member States of the European Union and of other States parties to the Agreement on the European Economic Area), ( 5 ) of 16 February 2007, provides:

‘1.   This Royal Decree shall govern the conditions for the exercise of the rights of entry and exit, free movement, stay, residence, and work in Spain for nationals of other Member States of the European Union and other States parties to the Agreement on the European Economic Area, as well as the limits imposed on those rights for reasons of public policy, public safety or public health.

2.   The provisions of this Royal Decree shall be without prejudice to those of specific laws and international treaties to which Spain is party.’

8.

Article 2 of that Royal Decree provides:

‘This Royal Decree also applies, in accordance with its provisions, to the following family members of a national of another Member State of the European Union or another State party to the Agreement on the European Economic Area, regardless of their nationality, where they are accompanying or joining that national:

…’

9.

Under Article 7 of that Royal Decree:

‘1.   All Union citizens and nationals of other States parties to the Agreement on the European Economic Area have the right to reside within Spanish national territory for a period of more than three months:

…

…

2.   The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State accompanying or joining the citizen of the Union or of another State party to the Agreement on the Economic Area in Spain, provided that that citizen satisfies the conditions set out in paragraph 1(a), (b) or (c).

…

7.   As to sufficient means of subsistence, no fixed amount can be established; regard shall be had to the personal situation of the nationals of a Member State of the European Union or of another State party to the Agreement on the European Economic Area. In any event, the amount shall not exceed the level of financial resources below which Spanish nationals receive social assistance or the amount of the minimum social security pension.’

10.

RH, who is a Moroccan national, married a Spanish national on 13 November 2015 in Ciudad Real (Spain). As a Spanish national, she is a Union citizen. However, she has never exercised her freedom of movement within the European Union. It is apparent from the order for reference that no issue has been raised by the administration as regards the validity or legality of the marriage and that RH is not subject to any prohibition of entry into the national territory.

11.

The spouses live together in Ciudad Real, with the father of the Spanish national.

12.

On 23 November 2015, RH submitted an application for a residence permit to the competent national authority on the basis that he is a family member of a Union citizen.

13.

On 20 January 2016, the competent authority rejected his application under Article 7(1)(b) of Royal Decree 240/2007, taking the view that RH’s wife had not demonstrated that her personal financial resources were sufficient to meet the needs of her husband, as required by that provision.

14.

The decision of the competent authority was affirmed by the Subdelegado del Gobierno de Ciudad Real (Governmental sub-delegation of Ciudad Real, Spain) on 10 March 2016.

15.

RH then brought an action before the Juzgado de lo Contencioso-Administrativo No 2 de Ciudad Real (Administrative Court No 2 of Ciudad Real, Spain), arguing that Article 7 of Royal Decree 240/2007 was not applicable in a situation such as his, where the Spanish national had never exercised the right of free movement. The court accepted that argument and the action succeeded.

16.

The Spanish Government brought an appeal against the judgment before the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice of Castilla-La Mancha, Spain), which decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

17.

Written observations were lodged by RH, the Danish, German, Spanish and Netherlands Governments, and the European Commission.

18.

Before proceeding to examine the questions referred by the national court to the Court of Justice, I would like to make a preliminary remark concerning the scope of those questions and the jurisdiction of the Court.

19.

It is apparent from the order for reference that the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice of Castilla-La Mancha) has serious doubts as to the criteria used by the competent national authority, pursuant to Article 7(1)(b) of Royal Decree 240/2007, for the purposes of determining whether the Union citizen had sufficient resources. The referring court points out, in fact, that the competent national authority limited its assessment to the economic situation of the Spanish national, taking the view that the requirement to have sufficient resources related exclusively to her. Thus, the authority took no account of the resources made available by the father of the Spanish national, even though (the referring court indicates) it had been established that he was able and willing to make those resources available.

20.

While the referring court has not asked the Court directly about that issue, the Commission considers it appropriate to refer to the case-law of the Court on the interpretation of the requirement for sufficient resources in Article 7(1)(b) of Directive 2004/38. That reference is not entirely misplaced. Nonetheless, I am not convinced that the Court has jurisdiction to interpret that provision in circumstances such as those of the main proceedings, for reasons which I will now set out.

21.

Under Article 7(1)(b) of Royal Decree 240/2007, a third-country national who is a family member of a Union citizen can obtain a right of residence in Spain only if the Union citizen has, amongst other things, sufficient resources for him or herself and his or her family members not to become a burden on the Spanish social assistance system.

22.

That provision is intended to transpose the requirements of Article 7(1)(b) of Directive 2004/38 into national law.

23.

However, as the Court has recently reiterated, Directive 2004/38 is applicable only to the conditions governing whether a Union citizen can enter and stay in Member States other than that of which he or she is a national. ( 6 ) It therefore does not cover a situation such as that at issue, in which the Union citizen has not exercised the freedom of movement and is resident in the Member State of which he or she is a national. ( 7 )

24.

There is no argument on that point in the present case. It is common ground between all the parties that RH’s right of entry and residence does not fall within the provisions of the secondary EU legislation or, in particular, those of Directive 2004/38.

25.

Nevertheless, it was by reference to Article 7(1)(b) of Royal Decree 240/2007 that RH’s application for a residence permit based on family reunification was rejected, the competent national authority taking the view that his wife had not established that her personal financial resources were sufficient to meet her husband’s needs.

26.

It is apparent from the information provided by the referring court that, under the case-law developed by the Tribunal Supremo (Supreme Court, Spain), that provision must also apply to an application for family reunification made by a third-country national who is a family member of a Spanish national who has never exercised the freedom of movement.

27.

On the basis of that information, therefore, the competent national authorities have an obligation to apply the requirements of Article 7(1)(b) of Royal Decree 240/2007 to an application for family reunification made by a third-country national in the same way, whether the situation to which it relates is that of a Union citizen who, having exercised the freedom of movement, falls within the scope of Directive 2004/38, or that of a Spanish national who, never having exercised the freedom of movement, does not.

28.

It might seem, therefore, that it would be appropriate and helpful to set out the principles which the Court has identified with regard to the determination of whether the requirement for resources set out in Article 7(1)(b) of Directive 2004/38 is met.

29.

However, I do not believe that that would be compatible with the Court’s case-law. It is not apparent from the order for reference that Spanish law makes a ‘direct and unconditional reference’ to Article 7(1)(b) of Directive 2004/38 or, consequently, that it would make the Court’s interpretation of that directive binding as regards the resolution of the main proceedings by the referring court.

30.

I would point out that, according to the settled case-law of the Court, it is justified for the Court to interpret provisions of EU law in situations which do not fall within its scope ‘where such provisions have been made directly and unconditionally applicable to such situations by national law’, in order to ensure that such situations and situations falling within the scope of EU law are treated in the same way. ( 8 )

31.

In the present case, however, I do not believe that the information provided by the referring court is sufficient to confirm that the provisions of EU law referred to have been made directly and unconditionally applicable by Spanish law in order to ensure that the same rule applies to domestic situations as to situations governed by EU law.

32.

Indeed, I note that neither the national court nor the Spanish Government, in its observations, has referred the Court to any specific provisions of Spanish law making the provisions of Directive 2004/38 directly and unconditionally applicable to a situation such as that at issue, which the EU legislature has excluded from the scope of that directive because it relates to a family member of a Spanish national who has never exercised the freedom of movement.

33.

I acknowledge that the referring court refers to the interpretation given by the Tribunal Supremo (Supreme Court), describing this as ‘the Spanish national practice on the basis of which it would be appropriate to proceed’, and stating that it was also adopted in Orden PRE/1490/2012, por la que se dictan normas para la aplicación del artículo 7 del Real Decreto 240/2007, de 16 de febrero, sobre entrada, libre circulación y residencia en España de ciudadanos de los Estados miembros de la Unión Europea y de otros Estados parte en el Acuerdo sobre el Espacio Económico Europeo (Ministerial Decree PRE/1490/2012, laying down rules for the implementation of Article 7 of Royal Decree 240/2007 of 16 February 2007 on the entry, free movement and residence in Spain of nationals of Member States of the European Union and other States party to the Agreement on the European Economic Area), ( 9 ) of 9 July 2012. The Spanish Government also refers to the relevant case-law of the Tribunal Supremo (Supreme Court), which held that it was legitimate to have recourse to Directive 2004/38 by way of transposition by analogy, inasmuch as that directive was the European normative instrument which, in terms of purpose and content, came closest to the situation before it.

34.

However, it is clear, in my view, that a rule laid down by the Tribunal Supremo (Supreme Court), under which provisions of EU law may be applied by analogy, is not, albeit laid down by a supreme court, equivalent to a legislative act by which the national legislature specifically indicates an intention to make the content of those provisions applicable, as required by the case-law of the Court.

35.

In those circumstances, and subject to the matters to be verified by the referring court, I do not think that the Court has jurisdiction, a priori, to interpret Article 7(1)(b) of Directive 2004/38 in a situation such as that at issue, which does not fall within the scope of that directive.

36.

It is thus in the alternative, should the referring court, having verified those matters, conclude that national law does make Article 7(1)(b) of Directive 2004/38 directly and unconditionally applicable for the purposes of examining an application for family reunification such as that at issue, that I proceed to set out the principles which have been identified by the Court as regards the interpretation of that provision.

37.

I would point out that, under Article 7(1)(b) of Directive 2004/38, where a host Member State receives an application for family reunification from a third-country national who is a family member of a Union citizen, it can require evidence to be provided showing that the Union citizen has sufficient resources for him or herself and his or her family members not to become a burden on the social assistance system of that State during their period of residence.

38.

In the main proceedings, the referring court questions the legality of refusing RH a residence permit on the basis that, in applying Article 7(1)(b) of Royal Decree 240/2007, the competent national authority had regard only to the personal resources of the Union citizen, and not the financial resources made available by her father. ( 10 )

39.

The doubts expressed by the referring court can readily be dispelled in the light of the extensive case-law of the Court. ( 11 )

40.

First of all, the Court considers that, since authorisation of family reunification is the general rule, provisions enabling limitations to be imposed on it must be interpreted strictly. While the host Member State has a degree of flexibility, it must not use it in a manner which would undermine the objective of Directive 2004/38, which is to promote family reunification, and the effectiveness thereof. ( 12 )

41.

Next, in relation to the requirement for the resources to be sufficient, the Court observed in its judgment of 2 October 2019, Bajratari, ( 13 ) that ‘EU law does not … lay down any requirement whatsoever as to their origin’. ( 14 ) It thus regards the requirement of sufficient resources as met, not only where the financial resources are provided by a family member of the Union citizen, but also where they come from another source, including a person who does not have a legal link with the beneficiary which carries an obligation to meet the beneficiary’s needs. ( 15 )

42.

Lastly, as it recently reiterated in its judgment of 3 October 2019, X (Long-term residents — Stable, regular and sufficient resources), ( 16 ) the Court considers ‘that an interpretation of the condition concerning the sufficiency of resources laid down in Article 7(1)(b) of Directive 2004/38 as meaning that the person concerned must have such resources himself, without being able to use for that purpose the resources of an accompanying family member, would add to that condition, as formulated in Directive 2004/38, a requirement as to the origin of the resources which, not being necessary for the attainment of the objective pursued by Article 7(1)(b) of Directive 2004/38, namely the protection of the public finances of the Member States, would constitute a disproportionate interference with the exercise of the fundamental right of freedom of movement and residence guaranteed by Article 21 TFEU’. ( 17 ) That reasoning is applicable, by analogy, in the context of Article 20 TFEU.

43.

Those considerations having been set out in the alternative, it is now appropriate to proceed with an examination of the questions referred.

44.

The two questions which the referring court puts to the Court concern the way in which it is to be determined, in circumstances such as those of the present case, whether a derived right of residence arises from Article 20 TFEU, which is capable of being relied on by a third-country national who is a family member of a Union citizen who has never exercised the freedom of movement.

45.

My suggestion to the Court would be to consider the second question first. From the perspective of an examination of an application for a residence permit made by a third-country national who is a family member of a Union citizen, conducted in the established manner, that question relates to an aspect of the process that is prior to the examination of the substantive requirements arising from Article 20 TFEU (a relationship of dependency), which the referring court addresses to a greater extent in its first question.

46.

By its second question, the referring court asks the Court, in essence, whether Article 20 TFEU precludes a national practice under which the right of residence of a third-country national who is a family member of a Union citizen is automatically refused on the sole ground that the Union citizen does not satisfy the requirement for sufficient resources laid down by national legislation.

47.

In my view, the answer to this question is clear from the judgment in K.A. and Others (Family reunification in Belgium), to which, moreover, the referring court makes express reference in its question.

48.

It is common ground in the present case that the situation of RH and his wife is governed by legislation which, a priori, falls within the competence of the Kingdom of Spain; more specifically, that concerning the right of entry and residence of third-country nationals which is outside the scope of the secondary EU legislation.

49.

Nevertheless, as a national of a Member State, RH’s wife enjoys the status of Union citizen under Article 20(1) TFEU and may therefore rely on the rights pertaining to that status, including against the Member State of which she is a national, amongst which is the fundamental and individual right to move and reside freely within the territory of the Member States. ( 18 )

50.

It is on the basis of that provision that the Court rejects any national measure, including a decision refusing the right of residence to family members of a Union citizen, which has the effect of undermining that citizen’s freedom of movement and residence ( 19 ) and depriving him or her, as the Court has put it, ‘of the genuine enjoyment of the substance of the rights conferred by virtue of [his or her] status’. ( 20 )

51.

Thus, to quote from the Court’s reasoning, ‘there are very specific situations in which, despite the fact that secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus depriving him of the genuine enjoyment of the substance of the rights conferred by that status’. ( 21 )

52.

It is this intrinsic link with the freedom of movement and residence enjoyed by the Union citizen that justifies the position that an application for a residence permit made by a third-country national who is a member of that citizen’s family is not to be refused automatically, simply on the basis of national provisions such as those at issue, laying down a requirement for sufficient resources. The decision to refuse can be reached, where appropriate, only after a specific assessment of all the current and relevant circumstances of the case. ( 22 )

53.

That specific assessment must enable it to be determined whether there is a relationship of dependency between the third-country national and the Union citizen.

54.

I would point out that the grounds based on departure of the Union citizen from the territory of the European Union as a result of the rejection of the third-country national’s application have been closely circumscribed in the case-law of the Court.

55.

In that regard, the Court considers that ‘a refusal to grant a right of residence to a third-country national is liable to undermine the effectiveness of Union citizenship only if there exists, between that third-country national and the Union citizen who is a family member, a relationship of dependency of such a nature that it would lead to the Union citizen being compelled to accompany the third-country national concerned and to leave the territory of the European Union as a whole’. ( 23 )

56.

The very specific situations referred to by the Court are those in which the Union citizen has no choice but to accompany the person who has been refused the right of residence, because he or she is in the care of the person who has been refused that right and depends entirely on that person to maintain him or her and provide for his or her needs.

57.

First and foremost, those situations concern parents who are third-country nationals and have custody of a child — a minor — who is a Union citizen, or have the legal, financial or emotional care of that child. That was the situation in the case which gave rise to the judgment of 8 March 2011, Ruiz Zambrano. ( 24 )

58.

In rarer instances, those specific situations concern adult third-country nationals who have a family relationship with another adult who is a Union citizen.

59.

In the judgment in K.A. and Others (Family reunification in Belgium), the Court establishes a clear distinction based on whether or not the Union citizen is a minor. ( 25 )

60.

It thus observes that ‘unlike minors and a fortiori minors who are young children …, an adult is, as a general rule, capable of living an independent existence apart from the members of his family’. ( 26 ) It adds that a relationship of dependency between two adult members of the same family ‘is conceivable only in exceptional cases, where, in the light of all the relevant circumstances, any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible’. ( 27 )

61.

In the present case, it is apparent from the information provided by the referring court that the competent national authority rejected RH’s application for a residence permit on the sole ground that his wife did not have the resources required under Article 7(1)(b) of Royal Decree 240/2007 and thus it did not consider whether, having regard to all the particular circumstances of the case, there was a relationship of dependency between them such as to justify the grant of a derived right of residence on the basis of Article 20 TFEU.

62.

In the light of the considerations developed above, and of the principles identified by the Court, it is clear that Article 20 TFEU precludes such a practice.

63.

In the order for reference, the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice of Castilla-La Mancha) points out, moreover, that the Union citizen has not had the opportunity of explaining those particular circumstances and thus of arguing that a relationship of dependency exists, which the Spanish administration does not seem to accept.

64.

It is not for the Court to ascertain whether, and to what extent, Spanish legislation enables the persons concerned to provide the competent national authority with all the information that is relevant to the assessment of whether there is a relationship of dependency. However, I think it may assist the referring court to set out the principles which have been established by the Court with regard to proof of a relationship of dependency capable of giving rise to a derived right of residence based on Article 20 TFEU.

65.

While the Court recognises that, in principle, the burden of proof rests on the third-country national seeking recognition of such a right of residence, it nevertheless imposes two obligations on Member States. First, they must adopt procedural rules on the burden of proof which do not undermine the effectiveness of Article 20 TFEU. ( 28 ) Second, Member States are required to undertake, on the basis of the evidence provided by the third-country national, the necessary inquiries to determine whether there is, or is not, a relationship of dependency between the third-country national and the Union citizen of such a kind that the Union citizen would be obliged to leave the territory of the European Union. ( 29 )

66.

Consequently, in the light of all those considerations, my view is that Article 20 TFEU precludes a national practice, such as that at issue in the main proceedings, under which a third-country national who is a family member of a Union citizen is automatically refused the right of residence, on the sole ground that the Union citizen does not satisfy the requirement for sufficient resources laid down by national legislation. The competent national authorities are required to make a concrete assessment of all the current and relevant circumstances of the case, in order to determine whether there is a relationship of dependency between the persons concerned such as to justify the grant of a derived right of residence on the basis of that provision.

67.

By its first question, the referring court essentially asks the Court whether, in a situation such as that at issue, where a third-country national who is the spouse of a Union citizen has been refused the right of residence, national legislation requiring the spouses to live together is a relevant matter to be taken into account in determining whether there is a relationship of dependency between them and, if appropriate, granting a derived right of residence on the basis of Article 20 TFEU.

68.

As I have noted, ( 30 ) the Court considers that a relationship of dependency between two adult members of the same family is only conceivable ‘in exceptional cases, where, in the light of all the relevant circumstances, any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible’. ( 31 ) It has held that ‘unlike minors and a fortiori minors who are young children …, an adult is, as a general rule, capable of living an independent existence apart from the members of his family’. ( 32 ) In order to obtain a derived right of residence based on Article 20 TFEU, therefore, it is necessary to show that the Union citizen has no choice but to accompany the third-country national who has been refused the right of residence, because he or she is in the care of the third-country national, by reason, for example, of serious illness or disability, and/or depends entirely on the third-country national to maintain him or her and provide for his or her needs.

69.

However, that is not the background to the main proceedings.

70.

As has been noted by all the parties that submitted observations, there is nothing in the file submitted to the Court to suggest that there is such a relationship of dependency between RH and his wife as to justify the third-country national being granted a derived right of residence based on Article 20 TFEU.

71.

In the first place, as is apparent from the information provided by the referring court, RH does not take any financial responsibility for his wife, the Union citizen. In reality, it is apparent from the order for reference that husband and wife are financially supported by the father of the Union citizen.

72.

In the second place, it is apparent from the case-law of the Court that the existence of a family tie, whether biological or legal in nature, does not in itself establish a relationship of dependency for the purposes of Article 20 TFEU. ( 33 ) The simple fact of the marital tie which exists, in the present case, between the third-country national and the Union citizen, is thus not sufficient to establish that the Union citizen cannot be separated from her husband at any time, and would ultimately have no choice but to leave the European Union and accompany him if the right of residence were refused. As to the obligation to live together expressed in Article 68 of the Civil Code, I do not consider that this constitutes circumstances such as to create a relationship of dependency, given that, according to the information provided by the referring court, this provision does not prevent the couple from living apart, and they would thus be able to live in different States.

73.

Of course, it is conceivable that the Union citizen may choose to accompany her husband to his country of origin in order to preserve the unity of their family life. In that case, I would regard leaving the territory of the European Union as a free choice made by the Union citizen for reasons connected with maintaining family life, which the Court considers to be insufficient to establish a relationship of dependency. ( 34 )

74.

Given that RH does not fall within the scope of the secondary EU legislation, in particular Directive 2004/38, and that he does not appear to have the benefit of a derived right of residence based directly on Article 20 TFEU — since, prima facie, there is no relationship of dependency, between the third-country national and the Union citizen who is a member of his family, of such a kind that the Union citizen would be compelled to leave the territory of the European Union as a whole in order to accompany him — his situation is governed by provisions falling within the exclusive competence of the Member State concerned.

75.

In the light of the foregoing considerations, I suggest that the Court should answer the questions referred for a preliminary ruling by the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice of Castilla-La Mancha, Spain) as follows:

Article 20 TFEU is to be interpreted such that: