OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 6 June 2019 (1)
Case C‑302/18
X
v
Belgische Staat
(Request for a preliminary ruling
from the Raad voor Vreemdelingenbetwistingen (Council for asylum and immigration proceedings, Belgium))
(Reference for a preliminary ruling — Immigration policy — Status of third-country nationals who are long-term residents — Acquisition of long-term resident status — Condition of having stable, regular and sufficient resources — Own resources — Origin of the resources — Resources coming from a third party — Commitment of cost bearing — Directive 2003/109/EC — Article 5(1)(a))
I. Introduction
1. The request for a preliminary ruling made by the Raad voor Vreemdelingenbetwistingen (Council for asylum and immigration proceedings, Belgium) concerns the interpretation of Article 5(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. (2)
2. Directive 2003/109 seeks, in particular, to determine the terms for conferring and withdrawing long-term resident status granted by a Member State in relation to third-country nationals legally residing in its territory and to afford a series of rights to the persons holding that status. (3) One of the conditions for acquiring the status requires, pursuant to Article 5(1)(a) of that directive, that the national provides evidence that he/she has, for himself/herself and for dependent family members, stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the host Member State.
3. This reference for a preliminary ruling has been made in proceedings between X and the Belgian State concerning, inter alia, the refusal of an application for long-term resident status on the ground that X did not have his own resources and did not, therefore, satisfy the resources condition within the meaning of Article 5(1)(a) of Directive 2003/109.
4. In that context, the referring court asks the Court whether, in essence, the condition of having stable, regular and sufficient resources laid down in Article 5(1)(a) of Directive 2003/109 concerns only the third-country national’s own resources or whether, regardless of their origin, they also include resources made available to that national by a third party or a member of his/her family. Where appropriate, the referring court seeks to ascertain whether a commitment of cost bearing entered into by a third party or a member of his/her family, such as the person in the present case, is sufficient to provide proof that the resources are at the applicant’s disposal.
5. At the end of my analysis, I will propose that the Court answer those questions to the effect that that condition does not contain any specific requirement as regards the origin of the resources. However, in the case of resources coming from a third party or a member of the applicant’s family, as in the circumstances of the dispute in the main proceedings, it is important for the national authorities to check that the resources are sufficient and have a certain degree of permanence and continuity such that the possibility of the applicant becoming a burden on the social assistance system of the Member State concerned may be reasonably ruled out. To that end, the national authorities must consider all the relevant circumstances of the case in question, including the sufficiently precise, lasting and legally binding nature of a commitment of cost bearing by a third party or a member of the applicant’s family.
II. Legal context
A. Directive 2003/109
6. Recital 7 of Directive 2003/109 provides:
‘To acquire long-term resident status, third-country nationals should prove that they have adequate resources and sickness insurance, to avoid becoming a burden for the Member State. Member States, when making an assessment of the possession of stable and regular resources, may take into account factors such as contributions to the pension system and fulfilment of tax obligations.’
7. Article 5 of that directive, which is entitled ‘Conditions for acquiring long-term resident status’, provides in paragraph 1(a):
‘1. Member States shall require third-country nationals to provide evidence that they have, for themselves and for dependent family members:
(a) stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions prior to the application for long-term resident status;’
B. Belgian law
8. Article 15a(1) of the Wet van 15 december 1980 betreffende de toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van vreemdelingen (Law of 15 December 1980 on entry into the territory, residence, establishment and removal of foreign nationals, ‘the Law on foreign nationals’), provides:
‘Save where grounds of public policy or public security so preclude, long-term resident status must be granted to a non-EU foreign national who satisfies the conditions laid down in paragraph 3 and who can prove that he has resided legally and continuously within the Kingdom for five years immediately prior to the application for long-term resident status.’
9. Article 15a(3) of the Law on foreign nationals, which transposes Article 5 of Directive 2003/109, provides:
‘The foreign national referred to in paragraph 1 must prove that he/she has, for himself/herself and for dependent family members, stable and regular means of subsistence which are sufficient to maintain himself/herself and the members of his/her family to avoid becoming a burden for the State, as well as health insurance covering risks in Belgium. …’
III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
10. On 26 July 2007, X, who declared that he is a Cameroonian national, applied to the Belgian authorities for a long-stay visa as a student. He was granted the student visa and his residence permit was renewed annually until 15 January 2016. Since he was in possession of a work permit, on 19 January 2016 he was granted a residence permit valid until 14 January 2017.
11. On 27 December 2016, X applied for long-term resident status. In support of his application, he produced inter alia, as evidence of stable, regular and sufficient means of subsistence for the purposes of Article 15a(3) of the Law on foreign nationals, employment contracts, a tax assessment notice and pay slips in his brother’s name. In addition, X produced a document signed by his brother, in which the latter undertook to ensure that ‘the person concerned has …, for himself and for his dependent family members, stable and regular means of subsistence which are sufficient to maintain himself and the members of his family to avoid becoming a burden for the State in accordance with Article 15a of the [Law on foreign nationals]’.
12. By decision of 5 April 2017, the agent of the Staatssecretaris voor Asiel en Migratie en Administratieve Vereenvoudiging (State Secretary for Asylum and Migration, Belgium) refused that application on the ground that X did not have his own resources. That authority observed that X had not been engaged in gainful employment since 31 May 2016, that he did not currently have any resources and that he was relying on his brother’s resources.
13. X brought an action before the referring court against that decision, arguing that the decision was based on a misinterpretation of the condition relating to resources, laid down in Article 5(1)(a) of Directive 2003/109, the provision transposed by Article 15a(3) of the Law on foreign nationals.
14. According to X, Article 5(1)(a) of Directive 2003/109 does not require that account may be taken only of the applicant’s own resources. In that regard, X submitted, inter alia, that the condition requiring the possession of stable, regular and sufficient resources, laid down in Article 5(1)(a) of that directive, had to be interpreted in the light of the condition requiring the possession of sufficient resources contained in Article 7(1)(c) of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. (4) It is therefore necessary, in relation to Article 5(1)(a) of Directive 2003/109, to apply by analogy the case-law of the Court under which Article 7(1)(c) of Directive 2004/38 lays down no requirement whatsoever as to the origin of the resources, which could therefore be provided by a family member. (5)
15. In that context, by decision of 14 December 2017, received at the Court on 4 May 2018, the Raad voor Vreemdelingenbetwistingen (Council for asylum and immigration proceedings, Belgium) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘(1) Should Article 5(1)(a) of [Directive 2003/109], which provides (inter alia) that, in order to acquire long-term resident status, third-country nationals must prove that they “have”, for themselves and for dependent family members, stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned, be interpreted as meaning that it is only the third-country national’s “own resources” that are concerned?
(2) If not, is it sufficient for those resources to be at the disposal of a third-country national, without any requirement regarding the origin of those resources being imposed, so that those resources can be made available to the third-country national also by a family member or by another person?
(3) If the last question is answered in the affirmative, is it sufficient that a commitment of cost bearing is entered into by another person whereby that other person undertakes to ensure that the applicant for long-term resident status “has, for himself/herself and for his/her dependent family members, stable, regular and sufficient resources to maintain himself/herself and the members of his/her family to avoid becoming a burden for the State” in order to prove that the applicant has resources within the meaning of Article 5(1)(a) of [Directive 2003/109]?’
16. Written observations have been submitted by X, the Belgian, Czech, German, French, Italian and Austrian Governments and the European Commission.
IV. Analysis
17. By its three questions referred for a preliminary ruling, which I will deal with together, the referring court asks, in essence, whether the condition of having stable, regular and sufficient resources laid down in Article 5(1)(a) of Directive 2003/109 concerns only the third-country national’s ‘own resources’ or whether, regardless of their origin, those resources also include resources made available to that third-country national by a third party or a member of his family. Where appropriate, the referring court seeks to ascertain whether a commitment of cost bearing entered into by a third party or a family member, such as the person in question in the main proceedings, is sufficient to provide proof that the resources are at the applicant’s disposal.
18. I note that the referring court has not defined, in the request for a preliminary ruling, the words ‘own resources’ contained in the first question referred for a preliminary ruling. In the light of the context of the questions referred for a preliminary ruling and their wording, I understand them to mean that the referring court seeks to ascertain whether resources which are not generated by the applicant, either by an economic activity carried on by him or by a right enjoyed by him, (6) are excluded from the condition laid down in Article 5(1)(a) of Directive 2003/109.
19. In other words, consideration must be given to the impact of the origin of the resources in order to satisfy the condition laid down in Article 5(1)(a) of Directive 2003/109.
20. In this regard, the positions of the interested parties can be divided primarily into three categories.
21. According to X and the Commission, the origin of the resources referred to in Article 5(1)(a) of Directive 2003/109 is not relevant and there is nothing to preclude, in principle, financial assistance from a third party from satisfying the criteria laid down in that provision. With regard to a commitment of cost bearing, such as that at issue in the main proceedings, it is for the referring court to determine, inter alia, first, whether the person who enters into that commitment does in fact have sufficient resources to maintain himself/herself as well as the applicant and his/her family and, second, whether the relationship between that person and the applicant is sufficiently stable to take the view that the commitment will in fact be honoured if necessary.
22. The German, French and Austrian Governments consider, in essence, that Directive 2003/109 does not preclude the resources coming from a family member of the applicant for long-term resident status or from another person, provided that they are based on a right which may be relied on in legal proceedings by that applicant, such as an entitlement to maintenance against another person or resources linked to the applicant’s matrimonial property regime. (7) Those three governments infer from the foregoing that a commitment of cost bearing such as that at issue in the main proceedings is not covered by Article 5(1)(a) of Directive 2003/109, since such a commitment is not based on any legal obligation. (8)
23. Finally, the Belgian, Italian and Czech Governments take the view that the resources referred to in Article 5(1)(a) of Directive 2003/109 are confined to those generated by the applicant for long-term resident status. (9)
24. I observe that the questions raised in the present case have not yet been considered by the Court. In accordance with the case-law of the Court, it follows from the need for a uniform application of EU law that, where an act of the Union does not make express reference to the law of the Member States for the purpose of defining a particular concept, that concept must be interpreted autonomously, which the Court determines by taking into account the wording of the provision concerned, its context and the objective pursued by the rules of which it is part. (10) It is on the basis of those factors that the questions referred should be answered.
A. Literal interpretation of Article 5(1)(a) of Directive 2003/109
25. From the outset, I would point out that Article 5(1)(a) of Directive 2003/109, as it is worded, does not contain an explicit requirement vis-à-vis the origin of the resources.
26. Next, I note that a comparative examination of the different language versions of that provision reveals terminological differences in a significant number of them as regards the concept of ‘resources’ taken at its usual meaning. (11)
27. Whereas several language versions use the equivalent of the term ‘resources’ understood in a broad sense of ‘financial means’, (12) which could indicate that the origin of those resources is irrelevant, other language versions use the term ‘income’ which suggests a more restrictive meaning involving remuneration, such as remuneration for work, and implies that the resources rather consist in those generated by the applicant. (13)
28. In view of this disparity, it must be held that the concept of ‘resources’ does not have an unambiguous meaning. (14)
29. That being said, that more restrictive interpretation, the result of the term ‘income’ being used in certain language versions, could be supported by the fact that recital 7 of Directive 2003/109 states that, when making an assessment of the possession of stable and regular resources, Member States may take into account factors such as contributions to the pension system and the fulfilment of tax obligations, since such contributions and such fulfilment are based, by their nature, on resources generated by the applicant.
30. It is, in particular, with that in mind that the Belgian, Czech and Italian Governments submit that the resources referred to in Article 5(1)(a) of Directive 2003/109 are confined to those generated by the applicant.
31. In my view, it is true that the resources generated by the third-country national, such as salaries, income from a professional activity or a retirement pension, are resources which by their nature are those most commonly accepted as exhibiting the characteristics of stability and regularity for the purposes of Article 5(1)(a) of Directive 2003/109, as is implied by recital 7 of that directive.
32. Nevertheless, such a restricted view of the concept of ‘resources’ does not appear to me to follow clearly from the wording of Article 5(1)(a) of Directive 2003/109, which is not explicit about the origin of the resources but is focused rather on characterising those resources, namely that they must be at the applicant’s disposal and be stable, regular and sufficient to maintain the third-country national applying for long-term resident status and the members of his/her family.
33. In other words, a literal interpretation of that provision leads me to conclude that, if that provision is concerned chiefly with resources generated by the applicant, (15) resources made available by another person are not excluded, provided that they exhibit the same characteristics of stability, regularity and sufficiency, by reference to their nature, as if those resources were generated by the third-country national himself/herself.
34. That view is, in my opinion, corroborated by the origin of Article 5(1)(a) of Directive 2003/109 (section B) and by the teleological interpretations of Directive 2003/109, of Article 5(1)(a) thereof, and the context of which that provision forms part (section C).
B. Origin of Article 5(1)(a) of Directive 2003/109
35. First of all, I note that the question of the origin of the resources referred to in Article 5(1)(a) of Directive 2003/109 does not appear to have been discussed since that directive was adopted.
36. Furthermore, an examination of the travaux préparatoires for that directive reveals, in my view, an ambiguity as regards the use of the term ‘resources’ similar to that observed in point 27 of this Opinion in relation to the literal interpretation of that concept.
37. In some language versions of the initial proposal for a directive, the explanatory memorandum states, in relation to the condition concerned, (16) that the stability of the ‘resources’ of the applicant for long-term status must be evaluated according to the nature and regularity of the ‘income’ of the person concerned, whereas the draft proposed in those same language versions of the provision uses only the term ‘resources’ for the evaluation of that same criterion. (17) Other language versions use only the term ‘income’. (18)
38. Furthermore, that type of ambiguity can be found again subsequently in the travaux préparatoires. For example, some language versions of the Opinion of the Committee of the Regions on the proposal for a directive refer explicitly to the ‘own resources’ of the applicant for long-term resident status, (19) whereas other language versions are not explicit on this point. (20)
39. The background to Directive 2003/109 does not therefore provide any clarification vis-à-vis the question of the origin of the resources.
40. That said, it is, however, apparent from the explanatory memorandum to the initial proposal for a directive in relation to the provision in question that the criteria for assessment laid down in Article 5 are determined very strictly to avoid rendering eligibility for long-term resident status nugatory and to harmonise the conditions for acquiring that status in all the Member States. (21)
41. In my view, that paragraph of the Commission’s proposal suggests that, when interpreting Article 5 of the Directive, it cannot be required that the applicant’s resources have a particular origin where such an origin is not clearly stipulated by the legislature.
C. Teleological interpretation of Directive 2003/109 and of Article 5(1)(a) thereof, and the context of that article
42. With regard, firstly, to the objective pursued by Directive 2003/109, that objective does not require, in my view, that the resources referred to in Article 5(1)(a) of Directive 2003/109 have a particular origin.
43. The primary objective of Directive 2003/109 is the integration of third-country nationals who are long-term residents in the Member States (22) and, to that end, Article 4(1) of the Directive provides that the duration of residence is the main criterion for acquisition of long-term resident status. That article thus requires that the national has resided legally and continuously within the territory of the Member State concerned for five years prior to the submission of the relevant application. (23) As the French Government points out, Directive 2003/109 applies in that regard, pursuant to Article 3(1) thereof, to third-country nationals residing legally in the territory of a Member State, regardless of whether or not they carry on an economic activity. (24)
44. From that perspective, the origin of the resources is of no particular significance, and the objective of Directive 2003/109 does not require that the resources are generated by the applicant’s economic activity.
45. That interpretation is, in my view, supported by the general scheme of that directive. The Court has held that Directive 2003/109, including Article 5 thereof, establishes specific substantive conditions which must be respected before the Member States concerned are to issue the residence permits applied for, and that, having regard to the objective pursued by Directive 2003/109 and the system which it puts in place, where third-country nationals satisfy the conditions laid down in that directive, they have the right to obtain long-term resident status as well as the other rights which stem from the grant of that status. (25)
46. It follows from the foregoing, in my view, that Directive 2003/109 lays down an exhaustive list of the material conditions which an applicant for long-term resident status must satisfy as well as the grounds on which that status may be refused. From this point of view, the refusal of an application for that status solely because the resources come from a third party appears to me to be contrary to the general scheme of that directive and to the objective pursued by it.
47. Turning, secondly, to the objective pursued by the condition laid down in Article 5(1)(a) of Directive 2003/109, that objective is to avoid the national becoming a burden for the Member State, as stated in recital 7 of Directive 2003/109. The question raised is therefore whether that objective requires that the resources have a particular origin.
48. In this regard, the case-law of the Court on the resources condition laid down in Article 7(1)(b) of Directive 2004/38 provides, in my opinion, useful interpretative guidance, even though the wording of that provision, its context and the objective of that directive are different from those of Article 5(1)(a) of Directive 2003/109.
49. More specifically, Article 7(1)(b) of Directive 2004/38, as interpreted in the light of recital 10 thereof, provides that one of the alternative conditions which entitles all Union citizens and the family members accompanying them to reside in the territory of another Member State for periods of longer than three months and up to five years (26) is to have sufficient resources for themselves and their family members not to become an unreasonable burden on the social assistance system of the host Member State during their period of residence. (27)
50. The Court has held that the expression ‘have’ sufficient resources, contained in Article 7(1)(b) of Directive 2004/38, must be interpreted as meaning that it suffices that such resources are available to the Union citizen, and that that provision lays down no requirement whatsoever as to their origin, since they could be provided inter alia by a third-country national. (28) The Court added that an interpretation of the condition concerning the sufficiency of resources 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. That requirement would constitute a disproportionate interference with the exercise of the fundamental right of freedom of movement and residence guaranteed by Article 21 TFEU, in that it is not necessary for the attainment of the objective pursued, namely the protection of the public finances of the Member States. (29)
51. The Court has clarified that a requirement of a legal link between the provider and the recipient of the resources is disproportionate in that the loss of sufficient resources is always an underlying risk, whether those resources are personal or come from a third party, even where that third party has undertaken to support the holder of the residence permit financially. According to the Court, the source of those resources thus has no automatic effect on the risk of such a loss arising, as the materialisation of such a risk is the result of a change of circumstances. (30)
52. In my view, that case-law can be transposed to the interpretation of Article 5(1)(a) of Directive 2003/109 only in so far as that provision likewise does not contain any requirement vis-à-vis the origin of the resources.
53. When interpreting Article 5(1)(a) of Directive 2003/109, the wording of which, like that of Article 7(1)(b) of Directive 2004/38, is not explicit about the origin of the resources and which pursues the same objective of safeguarding the Member States’ public finances, it is my view that a particular origin is not a necessary requirement to attain the objective of Article 5(1)(a) of Directive 2003/109. As the Court has set out, the origin of the resources has no automatic effect on the risk of those resources being lost. (31)
54. However, as inter alia the Belgian, Austrian, German and French Governments rightly claim, Article 5(1)(a) of Directive 2003/109 is more demanding than Article 7(1)(b) of Directive 2004/38, in particular since — unlike the latter provision — Article 5(1)(a) of Directive 2003/109 lays down additional criteria, namely that the resources are stable and regular. In addition, the second subparagraph of Article 5(1)(a) of Directive 2003/109 requires that the resources are evaluated having regard, inter alia, to their nature. (32)
55. With a view to identifying the impact of the origin of the resources on the satisfaction of those criteria (section 2), the scope of those criteria must first be clarified (section 1).
1. The scope of the criteria of the stability and regularity of the resources by reference to their nature
56. Firstly, as regards the scope of the criteria of stability and regularity, I observe that the Court has already ruled on this matter in the context of Directive 2003/86 on the right to family reunification.
57. Article 7(1)(c) of that directive contains a resources condition the wording and objective of which are similar to those of Article 5(1)(a) of Directive 2003/109. The first provision allows the Member States to require, when an application for family reunification is submitted, evidence that the sponsor has ‘stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned’. (33)
58. The Court held that the use of the words ‘stable’ and ‘regular’ means that the resources referred to in Article 7(1)(c) of Directive 2003/86 must have a certain degree of permanence and continuity. The Court clarified that the person concerned must prove that he has ‘resources which are sufficient’ at the time when his application is being examined, and that, since it is apparent from the wording of Article 7(1)(c) of that directive that the resources of the person concerned must be not only ‘sufficient’ but also ‘stable and regular’, such requirements necessarily imply, in particular in the light of the article’s wording and its objective, a prospective assessment of those resources by the competent national authority, namely the evaluation of future developments in the financial situation of the person concerned after obtaining the residence permit applied for. (34)
59. Like the French and Austrian Governments, I take the view that that analysis by the Court may be transposed to the interpretation of the requirements of the stability and regularity of the resources provided for in Article 5(1)(a) of Directive 2003/109 in relation to the acquisition of long-term resident status. It follows from the foregoing that, in the context of Article 5(1)(a) of Directive 2003/109, the competent authorities must establish, on the basis of a prospective assessment, that the applicant’s resources have a certain degree of permanence and continuity.
60. In other words, the criteria of stability and regularity presuppose that the national authorities must reasonably be able to rule out the possibility of the applicant becoming a burden for the Member State on account of recourse to social assistance.
61. Secondly, the fact that that prospective assessment must be conducted by reference to the nature of the resources, as required by the second subparagraph of Article 5(1)(a) of Directive 2003/109, means, in my view, that consideration must be given to all the characteristic elements of the resources at issue capable of influencing the assessment of their permanence, continuity and sufficiency and, therefore, to the risk of the applicant becoming a burden for the Member State.
62. In my opinion, those requirements contained in Article 5(1)(a) of Directive 2003/109 demonstrate that the legislature intended to ensure that, before granting a long-term status, the competent authorities carry out a check to rule out, with a higher degree of certainty than that considered within the context of Article 7(1)(b) of Directive 2004/38, the possibility of the applicant becoming a burden for the Member State concerned.
63. It is my view that that difference follows, in particular, from the fact that, first, unlike Directive 2004/38 which enshrines and seeks to strengthen the fundamental principle of the free movement of persons, (35) and within the context of which Article 7(1)(b) constitutes a condition governing that right guaranteed by the TFEU, Article 5(1)(a) of Directive 2003/109 is not a condition under such primary law.
64. Second, contrary to Directive 2004/38 under which the competent national authority is authorised to withdraw the residence permit of a Union citizen and of his family members where that citizen no longer has sufficient resources, (36) Directive 2003/109 does not provide for such a mechanism.
65. Article 9 of Directive 2003/109, which lists the various situations in which long-term resident status may be lost or withdrawn, does not cover that situation in which the condition laid down in Article 5(1)(a) is no longer satisfied. Furthermore, Article 12 of that directive provides for protection against expulsion for long-term residents, and paragraph 2 of that article explicitly states in that regard that an expulsion decision is not to be founded on economic considerations.
66. In other words, it follows from the combination of Articles 9 and 12 of Directive 2003/109 that long-term resident status cannot be withdrawn on economic grounds, even though the purpose of the resources condition is to avoid the third-country national becoming a burden for the Member State concerned. In addition, once long-term resident status is obtained, the person concerned enjoys, under Article 11 of that directive, equal treatment with nationals in a series of areas, including social security, social assistance and social protection.
67. Moreover, the requirements laid down in Article 5(1)(a) of Directive 2003/109 show, in my view, that the legislature intended to afford some leeway to the national authorities when they are evaluating the relevant facts in order to determine whether the conditions are satisfied reasonably to rule out the possibility of the applicant becoming a burden for the Member State concerned. As the Court has set out, the materialisation of a risk of resources being lost is the result of a change of circumstances. (37)
68. In the light of the foregoing, it is necessary to determine whether, and if so to what extent, the origin of the resources has an impact on the evaluation of their stability and regularity.
2. Impact of the origin of the resources on the evaluation of the criteria of stability and regularity by reference to their nature
69. I observe that, pursuant to the second subparagraph of Article 5(1)(a) of Directive 2003/109, the resources must be evaluated by reference to their nature, namely all the characteristic elements of the resources at issue capable of influencing the assessment of their permanence, continuity and sufficiency and, therefore, the risk of the applicant becoming a burden for the Member State.
70. In my opinion, the origin of the resources is one such characteristic element. In other words, it is my view that the origin of the resources is a relevant factor to be assessed, the impact of which is dependent on a specific evaluation of all the circumstances of the situation concerned.
71. As the French, German and Austrian Governments have argued, various scenarios may be envisaged in which resources come from a third party, only some of which — in the light of all the circumstances of the specific situation — are capable of satisfying the criteria laid down in Article 5(1)(a) of Directive 2003/109.
72. As I have set out as a preliminary point in point 22 of this Opinion, the German, French and Austrian Governments submit, more specifically, that, whilst Article 5(1)(a) of Directive 2003/109 does not exclude resources formally coming from third parties, such resources could, by reference to their nature, satisfy the condition of stability, regularity and sufficiency for the purposes of Article 5(1)(a) only where they are based on a right which can be relied on by the applicant in legal proceedings, such as an entitlement to maintenance against another person or resources linked to with the applicant’s matrimonial property regime.
73. In support of their views, those governments state, in essence, that only such resources enable the national authorities to rule out with sufficient certainty the possibility of a burden for its social protection system. To that end, the German Government makes the point that, if the evidence of the resources is to allow the Member States reasonably to rule out that the applicant will be a burden on their social protection system in the future, those resources can only be specific resources which would have to be verified when social assistance is granted, such as entitlements to maintenance and other sources of income in connection with which the applicant has claims which may be realised, and only where such resources can preclude receipt of social assistance.
74. Those governments infer from the foregoing that a commitment of cost bearing, such as that at issue in the main proceedings, would not, however, allow the objective of Article 5(1)(a) of Directive 2003/109 to be achieved. Even if the financial means in question were to stem from a contractual agreement or a commitment, that agreement or commitment could be cancelled at any time and the contractual relationship could come to an end.
75. Those arguments appear convincing since it seems to me unlikely that resources made available by a third party, on the basis of a mere unilateral commitment not founded on any legal obligation and which could end at the discretion of the third party concerned, can exhibit the permanence and continuity to allow the national authorities reasonably to rule out the possibility of the applicant becoming a burden for the Member State concerned. By contrast, I consider it highly likely that a third-country national who, for example, provides proof of sufficient resources linked to his or her matrimonial property regime, whether income from his or her spouse or from pensions, could adduce such evidence.
76. It follows from the foregoing that the origin of the resources cannot, in itself, serve as the basis for determining whether or not the criteria laid down in Article 5(1)(a) of Directive 2003/109 are satisfied. It is important to check, by reference to all the factors which shape the nature of the resources, whether those resources are stable, regular and sufficient such that the possibility of the applicant becoming a burden for the Member State may reasonably be ruled out.
77. In other words, the national authorities may not refuse a long-term residence permit solely on the ground that the resources come from a third party, but must rather specifically analyse the individual circumstances of the applicant for long-term resident status taken as a whole and state the reasons why those resources do or do not have a certain degree of permanence and continuity.
78. In that connection, in the case of a commitment of cost bearing by a third party or a member of the applicant’s family, the fact that the duration and the amount of the commitment are not sufficiently precise and concrete coupled with the fact that that commitment does not have legally binding and lasting effect are, in my view, relevant factors supporting the view that the applicant does not satisfy the conditions laid down in Article 5(1)(a) of Directive 2003/109.
79. From that perspective, turning to the situation at issue in the main proceedings, I must confess to having difficulty in understanding how the commitment of cost bearing by the applicant’s brother could be regarded as being sufficiently precise or having legally binding and lasting force to enable the Belgian authorities to be assured that it will be honoured and that the applicant will not become a burden for the Member State concerned. (38) However, that assessment is a matter for the referring court as part of a specific evaluation of all the circumstances of the case.
80. In that regard, I note that it falls to the applicant for long-term resident status to adduce the necessary evidence to support his application. In other words, it is not for the national authorities to conduct checks which go beyond the evidence provided by the applicant. (39)
V. Conclusion
81. In the light of the foregoing considerations, I propose that the Court answer the three questions referred by the Raad voor Vreemdelingenbetwistingen (Council for asylum and immigration proceedings, Belgium) as follows:
Article 5(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents is to be interpreted as not containing any particular requirement as to the origin of the resources. In the case of resources coming from a third party or a member of the applicant’s family, as in the circumstances of the dispute in the main proceedings, those resources must be sufficient and have a certain degree of permanence and continuity, such that the possibility of the applicant becoming a burden on the social assistance system of the Member State concerned may reasonably be ruled out. To that end, the national authorities must consider all the relevant circumstances of the case, including the sufficiently precise, lasting and legally binding nature of a commitment to bear costs by a third party or a member of the applicant’s family.