Request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha (Spain) lodged on 28 December 2018 — Subdelegación del Gobierno en Ciudad Real v RH

(Case C-836/18)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Castilla-La Mancha

Parties to the main proceedings

Applicant: Subdelegación del Gobierno en Ciudad Real

Defendant: RH

Questions referred

Is the requirement that a Spanish citizen who has not exercised his right of free movement must satisfy the conditions laid down in Article 7(1) of Royal Decree 240/2007, as a necessary condition for the grant of a right of residence to his third-country spouse under Article 7(2) of that Royal Decree, liable, in the event that those conditions are not satisfied, to constitute an infringement of Article 20 TFEU if, as a result of the refusal to grant that right, the Spanish citizen is compelled to leave the territory of the European Union as a whole?

All of the above presupposes the requirement laid down in Article 68 of the Spanish Civil Code (Código Civil) for spouses to live together.

In any event, notwithstanding the foregoing, does the practice of the Spanish State of automatically applying the rule laid down in Article 7 of Royal Decree 240/2007, and refusing to grant a residence permit to a family member of an EU citizen where that EU citizen has never exercised freedom of movement, solely and exclusively on the ground that the EU citizen does not satisfy the conditions laid down in that provision, without having examined specifically and individually whether there exists a relationship of dependency between that EU citizen and the third-country national of such a nature that, for any reason and in the light of the circumstances, it would mean that were the third-country national refused a right of residence, the EU citizen could not be separated from the family member on which he is dependent and would have to leave the territory of the European Union, infringe Article 20 TFEU in the terms set out above?

All of this is in the light of the case-law of the Court of Justice of the European Union, including, inter alia, the judgment of 8 May 2018, C-82/16, K.A. and Others v Belgische Staat1

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1 Judgment of 8 May 2018, K.A. and Others (Family reunification in Belgium) (C-82/16, EU:C:2018:308).