CJEU: Opinion of Advocate General Bot in case C-246/17 Diallo

Wednesday, March 7, 2018

On 7 March 2018, Advocate General Bot delivered his Opinion in case C-246/17 Diallo, which concerns the timeframe available for Member States to decide on an application for a residence card to a family member of a European Union citizen under Directive 2004/38/EC. The main proceedings concern Mr Diallo, a Guinean national who is the father of a Dutch national currently residing in Belgium.

Firstly, according to the Advocate General, the use of the term “issuing (…) no later than six months” under Article 10(1) of Directive 2004/38/EC requires not only that the decision is adopted within the six-month period, but also that the residence card is made available to the applicant within that period. Interpreting that article otherwise would, according to AG Bot, cast doubt on the effectiveness of the right of residence and, ultimately, undermine the practical effect of that provision. However, the Advocate General draws a distinction between situations giving rise to the issuing of a residence card and situations in which that card is refused. While he believes a decision must be adopted and the card issued within the six-month period where the right of residence is established, he puts forward that the notification of a decision to refuse a residence card to a family member of a Union citizen may occur after the six-month period. In his opinion, this would not undermine the right to effective judicial protection since the time limit for lodging an appeal begins to run only once the decision has been notified.

Secondly, AG Bot argues that the wording and the spirit of Directive 2004/38 presuppose that the outcome of a request for a residence card must be founded on an extensive and individual examination of the individual’s situation. Therefore, he concludes that Article 10(1) of Directive 2004/38 does not permit the consequence of exceeding the six-month period to be the automatic grant of the residence card, without it having been established that the applicant does in fact satisfy the conditions required to enjoy the right of residence.

Finally, the Advocate General takes the view that, following a judicial annulment of a decision refusing to issue a residence card of a family member of a Union citizen, the competent national authority is once again allowed the full period of six months provided for in Article 10(1) of Directive 2004/38.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.