CJEU: Interpretation of Article 20 TFEU in cases concerning Union citizen who has never exercised the freedom of movement

On 27 February 2020, the Court of Justice of the European Union (CJEU) published its judgment (C‑836/18) on the interpretation of Article 20 Treaty on the Functioning of the European Union (TFEU) and the need for sufficient financial resources in cases of family reunification.

The case concerns R.H., a Moroccan national who married a Spanish national who has never exercised free movement within the EU. His application for a temporary residence permit was rejected as his wife did not meet the conditions provided for in domestic law, namely having sufficient financial resources to support her husband.

The referring court considered that automatically refusing family reunification to third country nationals solely on the grounds of having insufficient resources is contrary to Article 20 TFEU. As such, the High Court of Justice of Castilla-La Mancha, Spain stayed proceedings and referred the following questions to the CJEU: must article 20 TFEU be interpreted as meaning that a relationship of dependency exists solely on the ground that a national of a member state and their spouse are required to live together? Secondly, must Article 20 TFEU be interpreted as precluding a Member State from rejecting an application for family reunification solely on the grounds that an EU citizen does not have sufficient resources not to become a burden on the State without examining whether there is a relationship of dependency?

The CJEU began by considering the second question. It noted that EU law does not in principle preclude legislation of a Member State in which family reunification is subject to a condition of having sufficient resources. However, the systematic imposition of this exception is liable to fail to have regard for the rights protected under Article 20 TFEU. Moreover, there is no requirement as to the source of income that may be relied upon, as established by Article 7 Directive 2004/38. Indeed, in this case, the father of the applicant’s wife had provided guarantees that he would offer financial support for the applicant.

The Court has previously ruled that Article 20 TFEU does not affect the possibility of a Member State relying on an exception when it is linked to upholding public policy or security. As such, a refusal of a right of residence on the basis of a genuine, present and serious threat to public policy is compatible with EU law. However, such an exception based on sufficient resources would constitute an impairment of the effective enjoyment of essential rights as a Union citizen in a way that is disproportionate to the aim pursued, i.e., to preserve public finances.  As such, it concluded that Article 20 must be interpreted as precluding a Member State from rejecting an application for family reunification with an EU citizen who has never exercised free movement solely on the grounds of having insufficient financial resources without examining whether there is a relation of dependency. On the first question, the Court noted Article 20 must be interpreted as meaning that dependency does not exist solely when a third country national and EU national who has never exercised free movement are required to live together.

The Opinion of Advocate General Pikamäe is available here.

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