OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 6 November 2013 (1)
Case C‑423/12
Flora May Reyes
v
Migrationsverket
(Request for a preliminary ruling from the Kammarrätten i Stockholm – Migrationsöverdomstolen (Sweden))
(Right of citizens of the Union and of members of their families to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Article 2(2)(c) – Right of residence of members of the family of a citizen of the Union – Definition of ‘family member who is a dependant of a Union citizen’ – Obligation for the direct descendant over the age of 21 of a Union citizen to prove that he has tried without success to obtain employment, or applied to the authorities of the Member State of origin for social assistance, or otherwise tried to support himself – Effects of the statements of the family member applying for a residence permit as a ‘family member who is a dependant’ as regards his intention to work in the host Member State)
1. In order to be granted a right of residence within the territory of the European Union as a direct descendant over the age of 21 of a Union citizen, as referred to in Article 2(2)((c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (‘the Directive’), (2) must the applicant merely demonstrate the genuineness of the material support provided by that citizen, or may the authorities further require him to provide proof that the support is necessary?
2. To answer that question, the Court is in particular asked to clarify and, where appropriate, update its case‑law relating to members of the family of a Union citizen as indirect beneficiaries of the rights laid down in Directive 2004/38.
I – Legal framework
A – Directive 2004/38
3. Recital 5 in the preamble to Directive 2004/38 states that ‘[t]he right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality’.
4. Recital 6 in the preamble to Directive 2004/38 states that, ‘[i]n order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen’.
5. Recital 28 in the preamble to Directive 2004/38 envisages that, ‘[t]o guard against abuse of rights or fraud … Member States should have the possibility to adopt the necessary measures’.
6. Recital 31 in the preamble to Directive 2004/38/EC notes that the directive ‘respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union’.
7. Article 2 of Directive 2004/38 is worded as follows:
‘For the purposes of this Directive:
…
(2) “family member” means:
…
(c) the direct descendants who are under the age of 21 or are dependants …;
(3) “host Member State” means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence’.
8. Article 3 of Directive 2004/38 is worded as follows:
‘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.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
…
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’
9. Article 7(2) of Directive 2004/38 provides that ‘[t]he 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)’.
10. Article 10(2)(d) of Directive 2004/38 provides that, ‘[f]or the residence card to be issued, Member States shall require presentation … in cases falling under points (c) and (d) of Article 2(2), [of] documentary evidence that the conditions laid down therein are met’.
11. Article 14(2) of Directive 2004/38 states that ‘Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein’.
B – Swedish law
12. Directive 2004/38 was transposed into Swedish law by amendments made to Law 2005:716 on Aliens (Utlänningslagen 2005:716, ‘the UtlL’) and to Regulation 2006:97 on Aliens (Utlänningsförordningen 2006:97).
13. Chapter 3 a, Paragraph 2, of the UtlL defines a member of the family of a national of the European Economic Area (EEA) as an alien who accompanies or joins an EEA national in Sweden and who is, in particular, a direct descendant of that EEA national or of his spouse or cohabiting partner, if the family member is dependent on one of them or is under the age of 21.
14. Chapter 3a, Paragraph 5, of the UtlL provides that the right of residence granted to members of the family of an EEA national exists as long as the conditions attaching thereto are satisfied.
15. Chapter 3a, Paragraph 9, of Regulation 2006:97 on Aliens provides that, in connection with the issue of a residence permit, the Swedish authorities may require an applicant to show a valid passport, documents confirming the family relationship with the EEA national, a certificate of registration or other documents proving that the EEA national from whom the right of residence is derived does in fact have a right of residence in Sweden and, in so far as it may be a condition of the applicant’s right of residence, any document proving that he is dependent on the EEA national or on his or her spouse or cohabiting partner.
II – The main proceedings and the questions referred for a preliminary ruling
16. Born in 1987, the applicant in the main proceedings, Ms Reyes, is a Philippine national. She has always lived in the Philippines. When Ms Reyes was three years old, her mother, Ms Hansen, left the Philippines to go and work in Germany, and acquired German citizenship. Ms Hansen had then entrusted her daughter to the latter’s grandmother. When she was 14, Ms Reyes joined her sister, who is now deceased, and settled in Manila (Philippines). Ms Reyes attended secondary school and then studied at college for four years in order to become a nursing assistant. However, she lacks the practical experience, which has to be paid for, needed to complete her training. She has therefore never worked, or received any social assistance, in the Philippines.
17. Ms Hansen married a Norwegian national in 2011. The couple have lived in Sweden since 2009 and Ms Hansen holds a residence permit issued by the Swedish authorities. Since she left the Philippines to settle in Europe, she has always remained in close contact with her family who stayed in her country of origin. She has regularly sent money to her family and also visited them regularly. Ms Hansen does not work but her husband receives a comfortable pension, part of which is devoted to providing financial assistance for his wife’s family.
18. At the beginning of 2011, Ms Reyes applied to the Swiss Embassy in Manila for a visa in order to visit her mother and stepfather in Sweden. Ms Reyes was granted that visa and entered the Schengen Area on 13 March 2011. On 29 March of that year, Ms Reyes applied to the Swedish authorities for the issue of a residence permit as a ‘family member who is a dependant of a Union citizen’.
19. As a direct descendant of the Union national whom she wishes to join and being over the age of 21, Ms Ryes is eligible for the issue of a residence permit in Sweden provided that she satisfies the conditions laid down in Article 2(2)(c) of Directive 2004/38, that is to say, the requirement that she be dependent on that national.
20. On 11 May 2011, the Migrationsverket rejected her application on the grounds that she had not shown that the sums of money transferred had served to provide for her basic needs, that is to say, her board and lodging and access to healthcare. Nor had she shown how the Philippine social security system could assist citizens in a situation like hers. However, it was clear that Ms Reyes held qualifications in her country of origin and that she had followed training courses there. Considering that she was in fact dependent on her grandmother, and relying on, inter alia, the judgment in Jia, (3) the Migrationsverket took the view that Ms Reyes could not be regarded as a family member who was a ‘dependant’ of a Union national within the meaning of Article 2(2)(c) of Directive 2004/38.
21. Ms Reyes challenged that rejection before the Förvaltningsrätten i Göteborg (Administrative Court, Gothenburg (Sweden)), sitting as the court of first instance in matters concerning nationality and the law relating to aliens. That court upheld the decision of the Swedish authorities. Although it recognised that the basic needs of Ms Reyes were undoubtedly being met by her mother and stepfather, it nevertheless held that the applicant’s social situation was not such that she was unable to support herself in the Philippines without their help, in particular because of her age, her qualifications and the fact that she had family with her. The Förvaltningsrätten i Göteborg concluded that it was not sufficient to establish the regularity of the money transfers in order to satisfy the condition of being a family member who was a ‘dependant’ within the meaning of Article 2(2)(c) of Directive 2004/38.
22. Ms Reyes lodged an appeal before the Kammarrätten i Stockholm – Migrationsöverdomstolen (Sweden) which is to give judgment at final instance in the case in the main proceedings.
23. Before that court, the Swedish authorities have put forward arguments seeking to confirm the decision of the Migrationsverket and the Förvaltningsrätten i Göteborg. They maintain that, having regard to the judgment in Jia, money transfers alone are not sufficient to demonstrate that a person is a dependant of the member of his family who is a Union citizen. The Member States must be able to require applicants to be genuinely dependent, that is to say, that they must not have any choices or solutions other than to depend entirely, for the satisfaction of their basic needs, on the family member whom they wish to join. Thus, a person who makes the deliberate choice not to seek work or to allow himself to be supported in his country of origin cannot be regarded as a ‘dependant’ within the meaning of Article 2(2)(c) of Directive 2004/38.
24. For her part, Ms Reyes put forward a radically opposing view. She first provided that court with a number of items of evidence relating to the regularity of the money transfers made by Mr and Mrs Hansen to Ms Reyes, to the fact that 11% of the gross domestic product of the Philippines is made up of the financial contribution of Philippine nationals working abroad, to the general state of the Philippine labour market and to the lack of any social assistance provided by the Philippine State to persons who, like Ms Reyes, have never worked. She then referred to her level of qualification which does not enable her, as it currently stands, to obtain employment as a nursing assistant in the Philippines, owing to the incompleteness of her training and to the particularly high rate of unemployment affecting that occupational category. She nevertheless informed the referring court of her intention to study in Sweden and to work there. Finally, relying both on the judgment in Lebon (4) and on the Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38 (5) (‘the Guidance’), Ms Reyes maintained that it is not necessary to examine whether family members are hypothetically able to support themselves by engaging in paid employment, for example. The national authorities must assess, case by case, whether, having regard to his financial and social situation, the applicant has need of material support. Proof of that need may be adduced by any means, without any requirement’s being laid down as to the minimum duration of the situation of dependence or the amount of the support, provided that the situation is genuine and structural in character.
25. Against that background, the Kammarrätten i Stockholm – Migrationsöverdomstolen decided to stay the proceedings and, by an order for reference received at the Court Registry on 17 September 2012, to refer the following two questions to the Court for a preliminary ruling in accordance with Article 267 TFEU:
‘1. Can Article 2(2)(c) of Directive 2004/38 be interpreted as meaning that a Member State, on certain conditions, may require a direct descendant who is 21 years old or more – in order to be regarded as dependent and thus come within the definition of a family member under Article 2(2)(c) of Directive 2004/38 – to establish that he has unsuccessfully tried to obtain employment or help with supporting himself from the authorities of his country of origin and/or attempted otherwise to support himself?
2. In interpreting the term “dependent” in Article 2(2)(c) of Directive 2004/38, does any significance attach to the fact that a family member, owing to personal circumstances such as age, education and health, is deemed to be well placed to obtain employment and in addition intends to work in the Member State concerned, which would mean that the conditions for him to be regarded as a dependant family member (under that provision) are no longer met?’
III – Procedure before the Court
26. The applicant in the main proceedings, the Swedish, Czech, Netherlands and United Kingdom Governments and the European Commission submitted written observations to the Court.
27. At the hearing, which was held on 5 September 2013, the applicant in the main proceedings, the Swedish and United Kingdom Governments and the Commission presented oral argument.
IV – Legal analysis
A – The first question referred
28. The present question concerns the interpretation of the concept of ‘dependent’ family member of a Union citizen as referred to in Article 2(2)(c) of Directive 2004/38. In particular, should any reminder still be necessary, that directive amended Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (6) and repealed Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. (7) Directive 2004/38 brought together in a single text the rights of Union citizens and of members of their families to move and reside freely within the territory of the Union.
29. Those two earlier texts also contained – I shall come back to this later – a reference to that concept of a family member who is a ‘dependant’ but without delineating it, as is also the case with other secondary legislation currently in force. (8) Article 2(2)(c) of Directive 2004/38 containing no guidance as to how the word ‘dependants’ is to be construed or any renvoi to national laws, what we have here is an independent concept of Union law that must be given a uniform interpretation in all the Member States. The meaning and scope of terms for which Union law provides no definition must be determined by considering the context in which those terms are used and the purposes of the rules of which they form part. (9)
30. For that purpose, it appears necessary, in the first place, to set Article 2(2)(c) of Directive 2004/38 back in the wider context of that directive before, in the second place, recalling the meaning of the case‑law in Lebon and Jia. I shall then apply myself to drawing from those considerations whatever conclusions are necessary in order to be able to answer the question referred. Finally, I shall end with some concluding remarks relating to the examination of the specific case submitted to us today.
1. Textual, teleological and schematic analysis of Article 2(2)(c) of Directive 2004/38
31. On reading Directive 2004/38, it is quite clear that the central element is the citizen who has exercised his freedom of movement within the Union. He is its principal and direct beneficiary. (10) As an indirect result of that, and because separation of the family by distance should not constitute an obstacle to exercise of freedom of movement, the members of the family of a Union citizen who has exercised that freedom are also granted rights, which are not autonomous, but merely derived, that is to say, acquired through their status as members of the beneficiary’s family. (11)
32. The fact that the rights granted to family members are only derived rights highlights the fundamental objective pursued by Directive 2004/38, which is not family reunification, or respect for the private and family life of Union citizens, but rather those citizens’ ‘primary and individual right to move and reside freely within the territory of the Member States’. (12) It is only to serve that fundamental objective that the rights of movement and residence are ‘also granted to their family members, irrespective of nationality’. (13) The preservation of the unity of the family group was not overlooked by the European Union legislature, but it was not its principal concern. (14)
33. Furthermore, the members of the family of the Union citizen who intends to exercise or has already exercised his freedom of movement do not constitute a uniform category under Directive 2004/38, so that one could be tempted to distinguish between the members of the nuclear family referred to in Article 2(2)(c) of that directive, on the one hand, and the other family members referred to in Article 3(2) of the directive, on the other.
34. The members of the nuclear family are, accordingly, the spouse or partner of the Union citizen, their direct descendants who are under the age of 21 or who are over the age of 21 if they are dependants, and the dependent relatives in the ascending line. Directive 2004/38, of which they are also beneficiaries, (15) grants them an automatic right of entry and residence in the host Member State. (16)
35. With regard to direct descendants, the category of primary interest here, it should be noted that the Commission had originally proposed that all relatives in the ascending line and all direct descendants of the citizen entitled to free movement and residence or of his or her spouse should be included in the nuclear family, with no further conditions attached. (17) The Council of the European Union unanimously decided to introduce the condition of being a ‘dependant’ into the wording of Article 2 of Directive 2004/38, both for the direct relatives in the ascending line and for the direct descendants over the age of 21, taking the view that this reflected the acquis existing at that time. (18)
36. The situation of other family members differs substantially, for with regard to them the Member States are obliged only, ‘in accordance with [their] national legislation, [to] facilitate entry and residence’ of those members. (19). In order to do so, the Member States may undertake ‘an extensive examination of the personal circumstances’ of the applicant. (20) Those other family members are narrowly defined, for they must be (i) dependants in the country of origin or members of the household of the Union citizen concerned, or (ii) a person strictly requiring, on serious health grounds, personal care by that citizen or, finally, (iii) a person who is the unregistered partner of the Union citizen, provided that a durable relationship with the latter is duly attested.
37. While Directive 2004/38 provides that, in the case of those other family members, the authorities of the host Member State are to undertake an extensive examination of their circumstances when they apply to join the Union citizen, nothing is stated with regard to the control procedures and the level of requirements that may be imposed on members of the nuclear family. However, it is in keeping with the spirit of Directive 2004/38 that in practice the Union legislature intended to favour the situation of the latter. Thus the Court has ruled that ‘it follows both from the wording of Article 3(2) of Directive 2004/38 and from the general system of the directive that the European legislature has drawn a distinction between a Union citizen’s family members as defined in Article 2(2) of Directive 2004/38, who enjoy, as provided for in the directive, a right of entry into and residence in that citizen’s host Member State, and the other family members envisaged in Article 3(2) of the directive, whose entry and residence has only to be facilitated by that Member State’. (21) In that regard, the Court has ruled that, in the light both of there being no more specific rules contained in Directive 2004/38 and of the renvoi made to national legislation by Article 3(2) of the Directive, ‘each Member State has a wide discretion as regards the selection of the factors to be taken into account’, while at the same time making it clear that ‘the host Member State must ensure that its legislation contains criteria … consistent with the normal meaning of the term “facilitate” and of the words relating to dependence used in Article 3(2), and which do not deprive that provision of its effectiveness’. (22) Among those factors, the Court has in particular mentioned ‘the extent of economic or physical dependence and the degree of relationship between the family member and the Union citizen whom he wishes to accompany or join’. (23)
38. As such, the concept of a family member who is a dependant within the meaning of Article 2(2)(c) of Directive 2004/38 has never been clarified. (24) According to the Guidance, (25) ‘the status of “dependent” family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the EU citizen or by his spouse/partner. … There is no need to examine whether the family members concerned would in theory be able to support themselves, for example by taking up paid employment. In order to determine whether family members are dependent, it must be assessed in the individual case whether, having regard to their financial and social conditions, they need material support to meet their essential needs in their country of origin …’. (26)
39. In so doing, the Commission based its interpretation of the concept of a family member who is a dependant within the meaning of Article 2(2)(c) of Directive 2004/38 on the Court’s existing case‑law, albeit case‑law predating the entry into force of that directive and concerning which the interested parties which have intervened in the present proceedings have drawn radically different conclusions.
40. Consequently, it may be helpful at this point to outline the two seminal judgments in question, while keeping in mind the considerations identified above, which are specific to Directive 2004/38.
2. Re-examination of the judgments in Lebon and Jia
41. The judgment in Lebon, which was given in 1987, enabled the Court to provide the very first interpretation of the concept of a family member who is a dependant of a Union national, then contained in Article 10(2) of Regulation No 1612/68. (27) The facts in the main proceedings involved a French national residing in Belgium and in receipt of a retirement pension there, and his daughter, also a French national and living with her father, who had applied to the Belgian authorities for social assistance. The Court then ruled that ‘the status of dependent member of a worker’s family is the result of a factual situation. The person having that status is a member of the family who is supported by the worker and there is no need to determine the reasons for recourse to the worker’s support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly’. (28) Such a definition, which the Court had occasion to reiterate subsequently, (29) then contrasted significantly with the Opinion of Advocate General Lenz in that case. (30)
42. In Jia, the Court was asked to interpret the concept of ‘dependent relative in the ascending line’ under Article 1(1)(d) of Directive 73/148. (31) In that case, the parents of a Chinese national living with his German wife in Sweden had applied to the Swedish authorities for a residence permit on the basis that they were related to a Union citizen. In paragraphs 35 and 36 of its judgment, the Court reiterated its case‑law established in Lebon. Thus, after reaffirming that the status of dependent family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Union national who has exercised his right of free movement, without there being any need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment, the Court added that, ‘[i]n order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin’. (32) The operative part of the judgment in Jia repeats that idea – which was new in relation to the judgment in Lebon – of the necessity of material support in order to meet the essential needs in the State of origin of the applicant.
43. However, the two questions of principle raised by that case related, first, to the prior requirement of lawful residence within the territory of the Member State through whose territory a third‑State national who was a (not necessarily dependent) member of the family of a Union citizen entered the Union (33) and, second, to the conditional or unconditional nature of the prerogatives conferred by Union law on that family member, when the Union citizen whom he intended to join had not had his freedom of movement impeded by virtue of the fact that he had been exercising it for a long time. (34) For the rest, the other question referred to the Court related, not exactly to the meaning of ‘dependent family member’, but rather, firstly, to whether that family member had to be economically dependent on the citizen of the Union to attain the lowest acceptable standard of living in his country of origin or country where he is normally resident and, secondly, to what evidence could be required by the national authorities. (35)
44. The fact remains that the wording of the operative part of the judgment in Jia and its reference to the necessity of support cannot be disregarded.
3. Assessment
45. The hearing before the Court focused, in very large part, on the comparing and contrasting of the judgments in Lebon and Jia.
46. On the one hand, it was maintained that, owing to the particular circumstances and specific features of that case, the judgment in Jia could not be seen as a reversal of the judgment in Lebon. In those circumstances, for a family member to be considered a dependant, proof of the financial support provided by the Union citizen must be sufficient on its own.
47. On the other hand, the governments that have intervened during the present proceedings argued that the judgment in Jia clarified, if it did not revise, the judgment in Lebon and opened the way to more detailed checking of the status of ‘dependent’ family member by the national authorities in order to exclude any risk of abuse. Proof of financial support alone is not sufficient; it must be established that the support is necessary, for the family member so assisted must have no other choices. The United Kingdom Government goes so far as to defend the idea that only persons who, due to their state of health, disability or age, require real support on the part of the Union citizen concerned can be regarded as dependants. The Swedish Government, for its part, proposes that the answer to the question referred to the Court should be to the effect that, at least in certain circumstances, a Member State may require anyone claiming the status of dependent family member for the purpose of Article 2(2)(c) of Directive 2004/38 to show that he has tried without success to find employment or to obtain help with supporting himself from the authorities of the country of origin and/or otherwise attempted to support himself.
48. As far as I am concerned, I remain convinced that the debate must be widened beyond the terms of the judgments in Lebon and Jia alone and that, in order to answer the question referred, it is necessary to keep in mind both the specific features of Directive 2004/38 and the era in which the main proceedings are taking place.
49. Thus, the concerns expressed by the governments must be heard and the Court must endeavour to identify a pragmatic solution in order to avoid any encouragement to passivity and any artificial staging of situations of dependence. I am therefore rather inclined to think that merely proving that financial support is provided by the Union citizen is not sufficient to determine the status of dependent family member. I note, in that regard, that Ms Reyes did not content herself with providing the Swedish authorities solely with proof of the existence and regularity of the bank transfers from the Union.
50. None the less, some very specific legal inferences must be drawn from the distinction which exists between the members of the nuclear family and other family members. The wording of Article 2(2)(c) of Directive 2004/38 does not contain any requirement that might support the view taken by the United Kingdom Government. (36) I cannot agree with such a narrow interpretation.
51. Moreover, the practical implementation of the solution proposed by the Swedish Government would undeniably give rise to legal uncertainty – and even discrimination – for the applicant. What are the specific circumstances in which proof of seeking employment in the country of origin would be required? Must the applicant have sought employment in his own field of expertise or is he required to have tried to find work for any purpose and regardless of the conditions? The criterion that the applicant must have tried ‘otherwise’ to support himself is preceded by the conjunctions ‘and/or’. Is that an additional or alternative criterion? If it is additional, that tends to reinforce the already very exacting nature of the proposal, and if it is alternative, the applicant cannot anticipate when he may be asked to provide the evidence relating to it – which I imagine, moreover, would be very difficult to assemble. (37) In any event, such checks appear to me to be more akin to the ‘extensive examination of the personal circumstances’ of the applicant, though that examination is reserved, according to the express wording of Directive 2004/38, for other family members.
52. A dependant is a person who finds himself in a situation of dependence on the Union citizen concerned. The dependence must be such that it is necessary for that person to resort to the support of the Union citizen for the satisfaction of his essential, that is to say basic, material needs.
53. It is that factual situation – material support provided by a Union citizen and necessary for the satisfaction of his family member’s essential needs – that must be demonstrated by applicants. For that reason, it must not be impossible to establish that the support is necessary.
54. The question referred to the Court therefore takes on its full meaning, for it is not so much the definition of dependent family member that matters in the present main proceedings as the level of the requirements that the national authorities may impose, as regards evidence, on applicants.
55. Although, as such, the concept of dependent member of the family of a Union citizen is an independent concept of Union law which must, on that basis, be given a uniform interpretation, it is in terms of the proof required of applicants that the distinction intended by the Union legislature between dependent members of the nuclear family and other dependent family members will be able to take on its full meaning.
56. Not only does Directive 2004/38 grant a quasi‑automatic right to dependent members of the nuclear family, (38) but the Court has also ruled that ‘proof of the need for material support may be adduced by any appropriate means’, (39) which is confirmed by Article 10(2)(d) of Directive 2004/38.
57. Consequently, even from the point of view of the rules governing evidence, the Swedish Government’s proposal cannot be accepted, on the ground that it does not satisfy the principle of freedom as to the form of evidence adduced, which is necessary in order not to make residence within the territory of the host Member State excessively difficult for the members of the Union citizen’s nuclear family.
58. The necessity of material support must thus be apparent from sufficient documentary evidence which may combine, in addition to the evidence relating to the support provided by the Union citizen, both subjective evidence connected with the applicant’s economic and personal circumstances and any other objective evidence to demonstrate the genuineness of the situation of dependence. Such evidence may thus include any relevant item which could illustrate the structural situation of the State of origin, in particular relating to economic, social, health or humanitarian factors in the country concerned.
4. Final remarks
59. In the very specific case of Ms Reyes, and even though it is, of course, for the referring court to rule, ultimately, on her application, I would point out that her family relationship with a Union citizen has not been called in question. Nor has reference been made, in the course of these proceedings, to any specific way in which Ms Reyes’ application might constitute an abuse. The regularity of the material support provided by Mrs Hansen and her husband is established. Ms Reyes has, moreover, pointed out that she could not be granted help of any kind by the Philippine assistance system and has also supplied figures – which do not, thus far, seem to have been disputed – on the general situation of the Philippine labour market and on the chronic unemployment rate affecting the field of activity for which Ms Reyes has been trained.
60. In those circumstances, I too raise the question put at the hearing before the Court by Ms Reyes’ counsel, who wondered exactly what more the applicant in the main proceedings could have produced as evidence in order to ensure favourable treatment for her application, and I must point out, as Directive 2004/38 does, (40) that national authorities are required to ensure respect for the fundamental rights and protection of the dignity of members of the families of Union citizens when considering their residence applications.
61. It is thus apparent from the foregoing considerations that any family member who, for whatever reason, proves unable to support himself in his country of origin and in fact finds himself in such a situation of dependence that the material support provided by the Union citizen is necessary for his subsistence is to be considered to be a dependant for the purpose of Article 2(2)(c) of Directive 2004/38. Such a situation must really exist and may be proved by any means. The applicant may thus provide the authorities of the host Member State with both subjective evidence connected with his own economic and social situation and any other relevant evidence that may illustrate, in a manner helpful to those authorities, the objective background to the application. At all events, the authorities of the host Member State have a duty to ensure that the effectiveness of the rights indirectly conferred on the members of the nuclear family by Directive 2004/38 is maintained and that access to the territory of the Union is not made excessively difficult by, in particular, placing too heavy a burden of proof on applicants.
B – The second question referred
62. By its second question, the referring court seeks to know whether, at the time of assessing the status of family member who is a ‘dependant’ of a Union citizen within the meaning of Article 2(2)(c) of Directive 2004/38, the national authorities must assign any importance to the fact that that family member, due to his age, education or health, is well placed to obtain employment in the host Member State and has expressed a desire to work there. Indeed, in such a case, the applicant for the residence permit, who seems to be in a position to make a success, after his arrival in the host Member State, of his integration into employment, would no longer be dependent on the Union citizen whom he has joined, if he were to take up gainful employment there He would therefore no longer satisfy the conditions which had to be met at the time of the issue of the residence permit and could no longer claim entitlement to the rights indirectly conferred by Directive 2004/38 on the family members referred to in Article 2(2)(c).
63. In addition to the fact that decisions as fundamental as those relating to the right of entry and residence of members of the families of Union citizens – at least as regards the nuclear family – may not be based on conjecture, it is clear from the repeated case‑law of the Court that the fact of being ‘a dependant’ must be assessed at the time when the member of the family of the Union citizen applies to join the latter. (41)
64. Contrary to what the referring court seems to imply, there is no systemic inconsistency in granting a right of residence to a member of the family of a Union citizen because he is a dependant within the meaning of Directive 2004/38, even though the national authorities sense – or infer from the applicant’s declared intentions, as seems to be the case in this instance – that the applicant appears to be in a position to integrate into employment in the society of the host Member State. Indeed, and as the Commission has correctly pointed out, the related rights which Directive 2004/38 grants ‘irrespective of nationality’ to the ‘family members of a Union citizen who have the right of residence or the right of permanent residence’ include the right ‘to take up employment or self-employment [in the host Member State]’. (42)
65. Thus, there are no grounds for the concerns expressed by the referring court in regard to Article 14 of Directive 2004/38. Although the first subparagraph of Article 14(2) of that directive states that ‘Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein’, it should be pointed out, on the one hand, that Articles 12 and 13, relating to retention of the right of residence by family members in the event of death or departure of the Union citizen and in the event of divorce, annulment of marriage or termination of registered partnership respectively, are not relevant to Ms Reyes’s situation. On the other hand, the right of residence for a period of longer than three months is granted to a family member who is not a national of a Member State, accompanying or joining the Union citizen only if the latter – the Union citizen, that is – satisfies or continues to satisfy the conditions referred to in Article 7(1)(a), (b) or (c) of Directive 2004/38. (43) Article 7 of the Directive thus governs what becomes of the right of residence of the family members of the Union citizen when the latter ceases to meet the conditions necessary for the granting, for himself, of a right of residence for a period longer than three months, but is not intended to regulate the situation in which a Union citizen’s direct descendant who is over the age of 21, once recognised as a dependant of that citizen and enjoying a right of residence on that basis, ceases to be a dependant by virtue of the fact that he is now gainfully employed in the host Member State.
66. Finally, it is necessary to deal with the concern of the referring court which sees the granting of a residence permit to a family member who is a ‘dependant’ of a Union citizen but is nevertheless able to work in the host Member State as the affirmation of a sort of strategy for circumventing national laws on access to employment for third‑State nationals, in particular when it is their first entry into the territory of the Union. (44)
67. Admittedly, it cannot be denied that the granting of a right of residence for the family members referred to in Article 2(2)(c) of Directive 2004/38 results, as the European Union legislature expressly envisaged, in access to the labour market of the host Member State. None the less, the circle of beneficiaries of the rights indirectly conferred by Directive 2004/38 is rather narrowly defined and, more specifically as regards Article 2(2)(c) of the directive, the direct descendants who are over the age of 21 must, in any event, be recognised as dependants by the authorities of the host Member State. The Union legislature, on the initiative of the Council, (45) has thus provided a safeguard whilst ensuring that the very essence of family reunification was maintained for the Union citizens concerned. I reiterate that the assessment of the status of a family member who is a dependant of a Union citizen, if carried out in accordance with my suggestion in point 61 of this Opinion, should ensure that artificially created situations are identified and thus reassure the Member States as to the risks to which they believe their labour market to be exposed, a fortiori because the right to enter that market is granted only to the members of the nuclear family as I have described them above.
68. I therefore suggest that the Court’s answer to the second question referred should be that, in order to be regarded as a family member who is a ‘dependant’ of a Union citizen within the meaning of Article 2(2)(c) of Directive 2004/38, the situation of dependence must exist in the applicant’s State of origin and must be assessed by the authorities of the host Member State at the time when he applies to join the Union citizen on whom he claims to be dependent. I also invite the Court to make it clear that the fact that the applicant has expressed his intention of working in the host Member State or that he is regarded by the authorities of that State, at the time of submitting his application, as well placed to obtain employment cannot constitute an obstacle to recognition of his status as a family member who is a ‘dependant’ within the meaning of the abovementioned provision, if it is apparent, moreover, from consideration of his application that he finds himself, in his country of origin, in a genuine situation of dependence on the Union citizen whom he intends to join.
V – Conclusion
69. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Kammarrätten i Stockholm – Migrationsöverdomstolen as follows:
(1) On a proper construction of Article 2(2(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, any member of the family of a Union citizen who, for whatever reason, proves unable to support himself in his country of origin and in fact finds himself in such a situation of dependence that the material support provided by the Union citizen is necessary for his subsistence, is to be considered to be a ‘dependant’. As regards members of the nuclear family deemed to be dependants, such a situation must really exist and may be proved by any means. The applicant may thus provide the authorities of the host Member State with both subjective evidence connected with his own economic and social situation and any other relevant item of evidence that may illustrate, in a manner helpful to those authorities, the objective background to the application. At all events, it is the duty of the authorities of the host Member State to ensure that the effectiveness of the rights indirectly conferred on the members of the nuclear family by Directive 2004/38 is maintained and not to make access to the territory of the European Union excessively difficult by, in particular, placing too heavy a burden of proof on applicants.
(2) To be regarded as a family member who is a ‘dependant’ of a Union citizen within the meaning of Article 2(2)(c) of Directive 2004/38, the situation of dependence must exist in the applicant’s State of origin and must be assessed by the authorities of the host Member State at the time when he applies to join the Union citizen on whom he claims to be dependent. The fact that the applicant has expressed his intention of working in the host Member State or that he is regarded by the authorities of that State, at the time when he submits his application, as being well placed to obtain employment cannot constitute an obstacle to recognition of his status as a family member who is a ‘dependant’ within the meaning of the abovementioned provision, if it is apparent, moreover, from consideration of his application that he finds himself, in his country of origin, in a genuine situation of dependence on the Union citizen whom he intends to join.