OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 27 February 2020 (1)
Case C‑754/18
Ryanair Designated Activity Company
v
Országos Rendőr-főkapitányság
(Request for a preliminary ruling
from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary))
(Reference for a preliminary ruling — Citizenship of the Union — Directive 2004/38/EC — Articles 5, 10 and 20 — Right of entry to a Member State of a third-country national who is a member of the family of an EU citizen — Visa exemption — Family member’s residence card — Permanent residence card — Convention implementing the Schengen Agreement — Article 26 — Obligation imposed on carriers to ensure that passengers hold the travel documents required for entry into the Member State of destination)
I. Introduction
1. The Court is once again invited to rule on the interpretation of Article 5 of Directive 2004/38/EC. (2) The unusual feature of this case is that the request for a preliminary ruling has not been made in the context of national authorities refusing entry to the territory of a Member State but in the context of proceedings between an air carrier and the national authorities in respect of a fine imposed on that carrier.
2. The case in the main proceedings provides the Court with an opportunity to rule, first, on the right of entry to a Member State of a third-country national who is a member of the family of an EU citizen and holds a permanent residence card under Article 20(2) of Directive 2004/38 and, secondly, on an air carrier’s obligations to ensure that the persons whom it is transporting possess the necessary travel documents to enter the Member State of destination within the meaning of Article 26(2)(b) of the Convention implementing the Schengen Agreement. (3)
A. Legal context
1. EU law
(a) Directive 2004/38
3. Article 5 of Directive 2004/38, entitled ‘Right of entry’, states as follows in its paragraphs 1 and 2:
‘1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.
No entry visa or equivalent formality may be imposed on Union citizens.
2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 (4) or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.
…’
4. Article 10 of that directive, entitled ‘Issue of residence cards’, provides, in its paragraph 1 and paragraph 2(a) and (b), that:
‘1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. …
2. For the residence card to be issued, Member States shall require presentation of the following documents:
(a) a valid passport;
(b) a document attesting to the existence of a family relationship or of a registered partnership;
…’
5. Article 11 of that directive, entitled ‘Validity of the residence card’, provides in its paragraph 1 that:
‘The residence card provided for by Article 10(1) shall be valid for five years from the date of issue or for the envisaged period of residence of the Union citizen, if this period is less than five years.’
6. Article 16 of that directive, entitled ‘General rule for Union citizens and their family members’, states in its paragraphs 1 and 2 that:
‘1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.’
7. Under Article 18 of Directive 2004/38, entitled ‘Acquisition of the right of permanent residence by certain family members who are not nationals of a Member State’:
‘… the family members of a Union citizen to whom Articles 12(2) and 13(2) apply, who satisfy the conditions laid down therein, shall acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State.’
8. Article 20 of that directive, entitled ‘Permanent residence card for family members who are not nationals of a Member State’, provides as follows in its paragraphs 1 and 2:
‘1. Member States shall issue family members who are not nationals of a Member State entitled to permanent residence with a permanent residence card within six months of the submission of the application. The permanent residence card shall be renewable automatically every 10 years.
2. The application for a permanent residence card shall be submitted before the residence card expires. Failure to comply with the requirement to apply for a permanent residence card may render the person concerned liable to proportionate and non-discriminatory sanctions.’
(b) The CISA
9. Title II of the CISA, entitled, ‘Abolition of checks at internal borders and movement of persons’, includes a Chapter 6 on measures accompanying the system laid down in that title. Chapter 6 comprises a single article, Article 26, which provides, in its paragraphs 1(b) and 2, that:
‘1. The Contracting Parties undertake, subject to the obligations resulting from their accession to the Geneva Convention relating to the Status of Refugees of 28 July 1951, (5) as amended by the New York Protocol of 31 January 1967 [“the Geneva Convention”], to incorporate the following rules into their national law:
…
(b) The carrier shall be obliged to take all the necessary measures to ensure that an alien carried by air or sea is in possession of the travel documents required for entry into the territories of the Contracting Parties.
2. The Contracting Parties undertake, subject to the obligations resulting from their accession to the [Geneva Convention] and in accordance with their constitutional law, to impose penalties on carriers which transport aliens who do not possess the necessary travel documents by air or sea from a Third State to their territories.’
2. Hungarian law
10. Paragraph 3(2) to (4) of the szabad mozgás és tartózkodás jogával rendelkező személyek beutazásáról és tartózkodásáról szóló 2007. évi I. törvény (Law No I of 2007 on the right of entry and residence of persons having the right of free movement and residence), (6) of 18 December 2006, in its version applicable to the facts, provides that:
‘2. A third-country national family member accompanying a national of the [European Economic Area (EEA)] or a Hungarian citizen or who is joining an EEA national or a Hungarian citizen residing in the territory of Hungary shall be permitted to enter Hungarian territory if he holds a valid travel document issued within the preceding 10 years and valid for at least three months after the intended departure date, and, unless a directly applicable act of [EU] law or an international agreement provides otherwise, a valid visa entitling that person to an intended stay of not more than 90 days during a period of 180 days (“intended stay not exceeding 90 days”).
3. Any third-country national shall also be permitted to enter Hungarian territory as a family member if he holds a valid travel document issued within the preceding 10 years and valid for at least three months after the intended departure date, and, unless a directly applicable act of [EU] law or an international agreement provides otherwise, a valid visa entitling that person to an intended stay of not more than 90 days.
…
4. The persons referred to in subparagraphs 2 and 3 may enter Hungarian territory without a visa if they have a document attesting to the right of residence under this law or a residence card issued by a State party to the [EEA] Agreement to a member of the family of the EEA national who is a third-country national.’
11. Paragraph 69(1) and (5) of the harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény (Law No II of 2007 on the entry and residence of third-country nationals), (7) of 18 December 2006, in its version applicable to the facts, provides as follows:
‘1. Any carrier [transporting] a third-country national to the territory of Hungary by air or waterway or on a regular road transport service, or taking a third-country national across Hungarian territory to a different country of destination, must ensure before the transport takes place that, for the purpose of entry or transit, the third-country national has a valid travel document and, where applicable, a valid visa conferring a right of residence for not more than 90 days.
…
5. Any carrier in default of its obligations under subparagraph 1 shall be subject to an administrative fine, determined by special rules.
…’
II. The facts giving rise to the main proceedings, the questions referred and the procedure before the Court of Justice
12. The relevant facts of the main proceedings, as apparent from the decision to refer, may be described as follows.
13. On 9 October 2017, the airport police at the Liszt Ferenc airport (Budapest, Hungary) carried out checks on passengers on a flight from London (United Kingdom) operated by Ryanair DAC. On that occasion, the police found that a Ukrainian passenger did not have a visa, even though he had a non-biometric passport containing a residence card of a member of the family of an EU citizen issued by the United Kingdom of Great Britain and Northern Ireland under Article 10 of Directive 2004/38, which had subsequently become invalid, and a valid permanent residence card likewise issued by the United Kingdom, under Article 20 of that directive.
14. On the ground that the Ukrainian national in question did not hold all of the travel documents required to enter Hungarian territory, the police refused him entry to Hungary and returned him to London. The police also took the view that, as an air carrier, Ryanair had failed to take the measures necessary to ensure that the person concerned was in possession of the requisite travel documents and, on those grounds, fined Ryanair EUR 3 000 for infringing Article 26 of the CISA.
15. Ryanair appealed that decision to the Fövárosi Közigazgatási és Munkaugyi Biróság (Budapest Administrative and Labour Court, Hungary).
16. In that appeal, Ryanair argues that, under Article 5 of Directive 2004/38, the foreign national in the main proceedings was permitted to enter Hungarian territory without being in possession of a visa, as he held a permanent residence card issued by the United Kingdom under Article 20 of that directive. Ryanair contends, first of all, that, although under Article 5 of that directive the exemption from the requirement to hold a visa is subject to the third-country national holding a residence card of a member of the family of an EU citizen under Article 10 of that directive, only a person who has previously obtained a residence card as a member of the family of an EU citizen can subsequently be issued with a permanent residence card. Ryanair infers from the foregoing that a contextual analysis of the provisions in question leads to the conclusion that there is also a visa exemption where a third-country national holds a permanent residence card issued under Article 20 of Directive 2004/38. Ryanair then asserts that the possession of such a permanent residence card must in itself be regarded as sufficient to attest that the third-country national has the status of member of the family of an EU citizen. Lastly, Ryanair takes the view that, in any event, an air carrier is not entitled to carry out additional checks in regard to the family relationship between the person concerned and an EU citizen and therefore cannot be penalised for not having done so.
17. Against this, the Országos Rendőr-főkapitányság (Hungarian Directorate-General of Police) argues that Article 5 of Directive 2004/38 must be interpreted literally, meaning that only possession of a residence card of a member of the family of an EU citizen, the very title of which demonstrates that there is a family relationship with an EU citizen, exempts third-country nationals from the obligation to have a visa in order to enter the territory of the Member States. Accordingly, the possession of a permanent residence card, to which Article 10 of that directive does not refer and the title of which is not so precise, cannot exempt its holder from the visa requirement, a fortiori where the permanent residence card was issued by a Member State that is not part of the Schengen area, as is the case here with the United Kingdom.
18. Against that background, the referring court believes that the present request for a preliminary ruling is justified by the doubts which it entertains as regards, first, whether Article 5(2) of Directive 2004/38 must be interpreted literally or whether its wording should be understood in the light of its context. It notes in particular, in this respect, that Directive 2004/38 conceives of the right of permanent residence as an ‘enhanced’ right granted to third-country nationals who are members of the family of EU citizens and have already been entitled to a right of residence in the territory of a Member State for a continuous period of five years.
19. Secondly, the referring court seeks to determine the scope of the visa exemption under Article 5 of Directive 2004/38. Specifically, it is unsure whether that exemption must be understood as benefiting EU citizens and the members of their family regardless of which Member State issued them with a residence card or whether, by contrast, it must be understood as being reserved for those in possession of a residence card issued by a Member State that is part of the Schengen area. That court notes in this respect that the present case turns on the relationship between Directive 2004/38 and the rules applicable to the Schengen area, since the documents held by the foreign national in question and which gave rise to a fine being imposed on Ryanair were issued by the United Kingdom.
20. Thirdly, the referring court states that, on the assumption that Article 5 of Directive 2004/38 is interpreted as meaning that the visa exemption under that article does cover third-country nationals who hold a permanent residence card issued by a Member State that is not part of the Schengen area, it is necessary to ascertain whether possession of such a card is sufficient to establish that its holder has a right to enter the territory of a different Member State without a visa or whether the person concerned must produce supplementary documents (such as a family record extract) establishing a family relationship with an EU citizen. The referring court adds that the answer to that question calls for clarification of the relationship between the rights of entry and of residence governed by Directive 2004/38, bearing in mind that the right of residence, once it has become permanent, can persist after the family relationship between a third-country national and an EU citizen has come to an end.
21. Fourthly and lastly, the referring court is uncertain about the obligation imposed on air carriers to check the travel documents of third-country nationals who are members of the family of EU citizens and are travelling from one Member State to another. In that context, it asks, on the one hand, whether the ‘travel documents’ that Article 26 of the CISA requires them to check are confined to the documents establishing that the persons concerned have a right of entry (passport, residence card and, where applicable, visa) or whether they also encompass documents attesting to a family relationship with an EU citizen. On the other hand, that court is uncertain as to the consequences of an air carrier failing to discharge its obligations under that provision.
22. Under those circumstances, by decision of 21 November 2018, received at the Registry of the Court of Justice on 3 December 2018, the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) stayed the proceedings and referred the following questions to the Court for a preliminary ruling:
‘(1) Must Article 5(2), on right of entry, of [Directive 2004/38] be interpreted as meaning that, for the purposes of that directive, both the holding of a valid residence card, as referred to in Article 10 thereof, and the holding of a permanent residence card, as referred to in Article 20 thereof, exempt a family member from the requirement to be in possession of a visa at the time of entry to the territory of a Member State?
(2) If the answer to Question 1 is in the affirmative, must Article 5(2) of Directive 2004/38 be interpreted in the same way where the person who is a member of the family of an EU citizen and is not a national of another Member State has acquired the right of permanent residence in the United Kingdom and that is the State which issued the permanent residence card to that person? In other words, does the holding of the permanent residence card provided for in Article 20 of that directive, issued by the United Kingdom, exempt the holder of that card from the requirement to obtain a visa, regardless of the fact that neither [Regulation No 539/2001], to which Article 5(2) of Directive 2004/38 refers, nor Regulation (EU) 2016/399 [(8)] is applicable to that Member State?
(3) If the answers to Questions 1 and 2 are in the affirmative, is the holding of a residence card issued in accordance with Article 20 of Directive 2004/38 to be regarded by itself as sufficient proof that the holder of the card is a member of the family of an EU citizen and is, without the need for any further checking or certification, permitted — as a family member — to enter the territory of another Member State and is exempt from the requirement to obtain a visa pursuant to Article 5(2) of that directive?
(4) If the Court of Justice should answer Question 3 in the negative, must Article 26(1)(b) and (2) of the [CISA] be interpreted as meaning that an air carrier, in addition to checking travel documents, is also required to check that a traveller who intends to travel with the permanent residence card referred to in Article 20 of Directive 2004/38 is in fact genuinely a member of the family of an EU citizen at the time of entry?
(5) If the Court of Justice should answer Question 4 in the affirmative,
(i) where an air carrier is unable to establish that a traveller who intends to travel with the permanent residence card referred to in Article 20 of Directive 2004/38 is actually a member of the family of an EU citizen at the time of entry, is that carrier required to deny boarding onto the aircraft and to refuse to transport that person to another Member State?
(ii) where an air carrier does not check that circumstance or does not refuse to transport a traveller who is unable to provide evidence that he is a family member — and who, moreover, holds a permanent residence card — is it possible to impose a fine on that carrier on that ground pursuant to Article 26(2) of the [CISA]?’
23. The Hungarian, Czech and Greek Governments and the European Commission submitted written observations. Ryanair, the Hungarian Government and the Commission presented oral argument at the hearing on 3 December 2019.
III. Analysis
24. In the situation at issue in the main proceedings, an air carrier has been penalised for allegedly infringing the obligations under Article 26 of the CISA and the applicable national rules relating to the transportation to the Member State of destination of a third-country national who is a member of the family of an EU citizen. That passenger was in possession of his passport and a valid permanent residence card issued, under Article 20 of Directive 2004/38, by the authorities of a Member State that is not part of the Schengen area.
25. The legal issue arising in this case essentially concerns the scope of the obligation imposed on air carriers which bring foreign nationals onto the territory of Member States to ensure that those persons are in possession of the travel documents required to enter the territory of the Member State of destination. The fundamental question arising in this context in respect of that obligation on the carrier is what specific documents are required to enable third-country nationals who are members of the family of EU citizens to enter the territory of the Member States.
26. In order properly to understand the EU law that forms the context of the issues in this case, it is necessary, first, to call to mind how EU citizenship and the Schengen acquis interrelate. I will therefore, at the outset, make a number of comments on the relationship between, on the one hand, the rules governing the movement of persons across borders and, on the other, the rights of freedom of movement of EU citizens and their family members. I will then examine whether a third-country national in possession of a permanent residence card, issued by a Member State within the meaning of Article 20 of Directive 2004/38, is exempt from the requirement to obtain a visa to enter the Member State of destination in his capacity as a member of the family of an EU citizen. Lastly, I will look at the scope of the obligations on the carrier within the meaning of Article 26(2) of the CISA.
A. Preliminary remarks on the relationship between EU citizenship and the Schengen acquis
27. In the present case, which concerns a dispute between an air carrier and a national authority, the questions put to the Court do not in any way relate to a passenger who is an illegally staying third-country national but rather to a passenger who is a third-country national and a member of the family of an EU citizen, who crossed an external border of the Schengen area when travelling between two Member States.
28. It is worth recalling that the Schengen Agreement was signed in 1985 in order to abolish checks at the common borders and that the Schengen acquis relates to the rules governing matters concerning the existence of an area without internal frontiers reinforced by external borders. (9) By contrast, the introduction in 1992 of EU citizenship, which is now the fundamental status of nationals of the Member States, (10) has enabled the emergence of broader substantive rights for nationals of the Member States and their family members. The rules relating to EU citizenship are thus binding on all the Member States, regardless of whether they form part of the Schengen area. I will return to this aspect at a later stage. (11)
29. This means that checks on a person enjoying the right of free movement under EU law must be carried out in accordance with Directive 2004/38. Consequently, under that directive, a number of measures implementing the Schengen acquis, such as the visa requirement, do not apply to third-country nationals who are members of the family of EU citizens.
30. On that basis, for the sake of completeness and to dispel the doubts expressed by the referring court, I will nonetheless examine in detail the relationship between EU citizenship and the Schengen acquis.
31. Against that background, it is helpful to start by briefly recalling that it is important to distinguish between the rules applicable in the context of the common immigration policy and those relating to EU citizenship and the free movement of persons.
1. EU citizenship as opposed to the common policy on immigration law: different legal statuses based on separate legal rationales
32. It should be noted at the outset that, with regard to the area of freedom, security and justice, the competence of the European Union is shared with the Member States, pursuant to Article 4(2)(j) TFEU. The objectives of that competence and the manner in which it is to be exercised are set out in Title V of Part Three of the FEU Treaty. Article 67(2) TFEU provides that the European Union is to ensure the absence of internal border controls for persons and must frame a common policy on, inter alia, immigration and the control of external borders that is based on solidarity between Member States and is fair towards third-country nationals.
33. Accordingly, the ordinary legislative procedure applies to the adoption of all of the measures referred to in Article 79(2) TFEU, which covers both legal and illegal immigration. The exercise of the European Union’s competence, once subsidiarity has been checked, has a pre-emptive effect on, or takes priority over, the competence of the Member States, which is therefore diminished as a result of the European Union’s legislative intervention. Since EU competence in migration matters is a power to undertake harmonisation, that pre-emptive effect will vary depending on the precise scope and intensity of the European Union’s intervention. (12) Common rules are therefore adopted in directives which the Member States are obliged to transpose (13) although they may legislate on matters not covered by EU law, and are also free to derogate from common rules to the extent permitted by that law. (14) Subject to these conditions, the Member States retain, in principle, their competence in the area of immigration law.
34. By contrast, where, as in the present case, the situation is one that concerns the rights under EU law to move and reside freely, the Member States’ discretion in relation to immigration cannot adversely affect implementation of the provisions on EU citizenship and freedom of movement, (15) even if those provisions concern not only the situation of EU citizens but also that of members of their family who are third-country nationals. I believe it is important to bear in mind in this respect that the legal status conferred on third-country nationals in the context of the directives resulting from the common policy on immigration law is different from the status of EU citizens and third-country nationals who are members of their family, and is based on a different legal rationale.
2. The rules on the movement of persons across borders and on the issuing of visas apply without prejudice to the right of EU citizens and the members of their family to move freely
35. In relation, in particular, to border control, the common policy on visas and other short-stay residence permits and the freedom of third-country nationals to travel, the ordinary legislative procedure applies to the adoption of any measure referred to in Article 77(2) TFEU. (16)
36. However, Article 77(3) TFEU provides that if action by the European Union proves necessary ‘to facilitate the exercise of the right [of EU citizens to move and reside freely within the territory of the Member States] referred to in Article 20(2)(a) TFEU’, the special legislative procedure is to apply for the adoption of provisions concerning ‘passports, identity cards, residence permits or any other such document.’ Article 77(3) TFEU and measures adopted under that article to facilitate exercise of the right to move and reside freely must therefore be interpreted in the light not of the European Union’s immigration objectives but of EU citizenship, as can be seen in particular from the reference that Article 77(3) TFEU makes to Article 20(2)(a) TFEU. (17)
37. Accordingly, it is apparent not only from the recitals of the Schengen acquis but also from the relevant provisions of that acquis that measures relating to movement across the external and internal borders of Member States apply without prejudice to the rights of persons enjoying a right of free movement under EU law.
38. First of all, as regards the legal provisions applicable to movement across the internal and external borders of the European Union, recital 5 of the Schengen Borders Code states that ‘common rules on the movement of persons across borders neither call into question nor affect the rights of free movement enjoyed by Union citizens and members of their families’. (18) Accordingly, on the one hand, Article 3 of that code, entitled ‘Scope’, provides that the code applies ‘to any person crossing the internal or external borders of Member States, without prejudice to [inter alia] the rights of persons enjoying the right of free movement under Union law’ (19) and, on the other, Article 8 of that code, entitled ‘Border checks on persons’, provides in its paragraph 6 that ‘checks on a person enjoying the right of free movement under Union law shall be carried out in accordance with Directive [2004/38]’. (20)
39. It should also be noted that, in relation to the rules governing the procedures and conditions for issuing visas for intended stays not exceeding three months within a six-month period, Article 1(2)(a) of Regulation (EC) No 810/2009 (21) states that the regulation applies ‘to any third-country national who must be in possession of a visa when crossing the external borders of the Member States pursuant to [Regulation No 539/2001] without prejudice to [inter alia] the rights of free movement enjoyed by third-country nationals who are members of the family of EU citizens’. (22)
40. Lastly, Article 1(1) of Regulation No 539/2001 (23) provides that nationals of the third countries listed in Annex I (24) are to be required to be in possession of a visa when crossing the external borders of the Member States. However, although under Article 5(2) of Directive 2004/38, family members who are not nationals of a Member State ‘shall only be required to have an entry visa’ in accordance with that regulation or, where appropriate, with national law, (25) the same article provides that ‘possession of the valid residence card referred to in Article 10 [of that directive] shall exempt such family members from the visa requirement.’
41. The Hungarian Government believes that it is expedient to start by examining the fourth and fifth questions. However, in the light of the foregoing, it seems to me appropriate to analyse the questions referred in the order in which they were raised by the referring court.
B. Interpretation of Article 5(2) of Directive 2004/38 (first and second questions)
42. By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 5(2) of Directive 2004/38 must be interpreted as meaning that the entry visa exemption under that provision for third-country nationals in possession of a residence card under Article 10 of that directive (26) also applies to third-country nationals in possession of a permanent residence card under Article 20 of the directive, issued by a Member State that is not part of the Schengen area.
43. It should be noted at the outset that the Czech and Greek Governments and the Commission, in common with Ryanair, argue that Article 5(2) of Directive 2004/38 must be interpreted in the light of the context in which that provision occurs and the objectives that the directive pursues. The Hungarian Government does not share that view. In its interpretation, it is apparent from the wording of that provision that only possession of a residence card for more than three months, and not possession of a permanent residence card under Article 20 of that directive, exempts third-country nationals from the obligation to have a visa in order to exercise the right to enter the territory of a Member State other than the host Member State which issued that card.
44. It is important to bear in mind, first, that, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (27) and in particular the origin of those rules. (28) According to consistent case-law in this regard, the enacting terms of a directive are indissociably linked to the reasons given for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption. (29) Similarly, the Court has held that, having regard to the context and objectives of Directive 2004/38, the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness. (30)
45. It seems to me that an interpretation such as that proposed by the Hungarian Government would run counter to the effectiveness and the purpose of Directive 2004/38, and to the general scheme and spirit of Article 5(2) of that directive. That article must therefore be interpreted in the light of the context in which it occurs, its origin and the purpose of Directive 2004/38.
1. Systematic interpretation
46. It should be noted that the subject of Directive 2004/38 concerns, as is apparent from Article 1(a) thereof, the conditions governing the exercise of the right of EU citizens to move and reside freely within the territory of the Member States. (31) To that end, the rights of exit and entry under Articles 4 and 5 (32) of Directive 2004/38 are the conditions or formalities needed in order to exercise other rights, including the right of residence, under that directive. (33) Article 5(1) of Directive 2004/38 states that ‘Member States shall grant Union citizens leave to enter their territory … and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.’ In addition, the first subparagraph of Article 5(2) of that directive provides that ‘for the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement’. (34)
47. When Article 5 of Directive 2004/38 is construed in the context of that directive as a whole, it can be seen that the mechanism of the gradual system governing the right of residence in the host Member State and culminating in the right of permanent residence is triggered as soon as the requirements for entering a host Member State laid down by that article are satisfied. (35) That system comprises several types of right of residence implying varying degrees of integration of the EU citizen and the members of his family. These are: first, the right of residence for up to three months, under Article 6 of Directive 2004/38, which is not subject to any condition or formality other than the requirement to possess a valid identity card or passport; (36) secondly, the right of residence for more than three months, which is subject to the conditions set out in Article 7(1) of that directive; (37) and, thirdly, the right of permanent residence under Article 16 of that directive for EU citizens and the members of their families who have resided legally in the host Member State for a continuous period of five years.
48. As regards administrative formalities, third-country nationals who are members of the family of EU citizens are issued with a document to certify the type of residence to which they are entitled in the host Member State. In this regard, under Article 10 of Directive 2004/38, the right of residence for more than three months is evidenced by the issuing of a residence card for more than three months. This residence card is issued once the documents listed in Article 10(2) of that directive had been verified, and is valid for a maximum of five years from the date of issue. (38) On expiry of that period, in order to certify permanent residence, Article 20(1) of that directive provides that ‘Member States shall issue family members who are not nationals of a Member State … with a permanent residence card’, which is renewable automatically every 10 years.
49. To summarise, under Article 16(2) of Directive 2004/38, third-country nationals who are members of the family of EU citizens cannot acquire a right of permanent residence unless they have resided legally for a continuous period of five years in the host Member State. (39) At the same time, it follows from Article 20(1) of that directive that a permanent residence card can be issued to a third-country national who is a member of the family of an EU citizen only in the case where that third-country national has, previously, held a residence card for more than three months.
50. This means, as the Commission indicated at the hearing in reply to a question put by the Court, that the residence card for more than three months and the permanent residence card cannot be issued in parallel because each of those cards in fact certifies one distinct type of right for members of the family of EU citizens to reside in the territory of the host Member State, that is to say, the right of residence for more than three months (Chapter III) and the right of permanent residence (Chapter IV) respectively. More specifically, the only residence card that the authorities of the host Member State can issue to a third-country national who is a member of the family of an EU citizen and has already satisfied the conditions under Chapter III of Directive 2004/38 continuously for five years is the permanent residence card. This is borne out by Article 20(2) of that directive, which provides that the application for a permanent residence card is to be submitted before the residence card expires and that failure to comply with that requirement may make the person concerned liable to proportionate and non-discriminatory sanctions.
51. Furthermore, the right of permanent residence confers more rights than the earlier right of residence. Not only is the permanent residence card that attests to that right valid for 10 years (Article 20(1) of Directive 2004/38), but third-country nationals who are members of the family of EU citizens are not subject to the conditions laid down in Chapter III of Directive 2004/38. Accordingly, those nationals could constitute a burden on the social assistance system of the host Member State without thereby being liable to expulsion from the territory of that Member State (Article 16(1) of that directive). Indeed, as can be seen from recital 18 of that directive, once obtained, the right of permanent residence should not be subject to any further conditions, with the aim of it being a genuine vehicle for integration into the society of the host Member State. (40) Furthermore, once acquired, the right of permanent residence is lost only through absence from the host Member State for a period exceeding two consecutive years (Article 16(4) of Directive 2004/38). In addition, third-country nationals who are members of the family of EU citizens and who have obtained a right of permanent residence enjoy ‘equal treatment with the nationals of [the host] Member State within the scope of the Treaty’ (Article 24 of that directive). (41)
52. It would therefore be paradoxical if acquisition of a right of permanent residence, which gives its holders greater rights than the right of residence for more than three months and, therefore, shows that they are more fully integrated in the host Member State, could lead to stricter conditions for entering other Member States.
53. Accordingly, analysed in context, Article 5(2) of Directive 2004/38 must be interpreted as meaning that the visa exemption under that article applies not only to holders of the residence card for more than three months under Article 10 of that directive but also to holders of the permanent residence card under Article 20 of the directive.
2. Teleological and historical interpretation
54. The foregoing analysis is borne out by the purpose of Directive 2004/38 and of Article 5 of that directive in particular, and by an examination of the travaux préparatoires relating to that provision.
55. It is apparent from recitals 1 to 4 of Directive 2004/38 that the latter seeks to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on EU citizens by Article 21(1) TFEU and that it is intended in particular to strengthen that right. (42) That objective is in line with the gradual system (43) laid down by Directive 2004/38 and which governs the right of residence in the host Member State. (44)
56. As regards the genesis of that provision, Article 6(2) of the Commission’s initial proposal (45) did not distinguish between the types of document certifying the right of residence of more than three months and the right of permanent residence and referred, in general terms, to ‘a current residence document issued by a Member State’, establishing that that document was ‘equivalent to a visa’. The Commission indicated at the hearing that a consensus had been reached during the legislative procedure that the residence document did not have the same value as a visa and that a residence document exempted third-country nationals who were members of the family of EU citizens from the requirement to obtain a visa. Article 8(2) of the Parliament’s legislative resolution reflected that amendment and provided that ‘possession of a current residence document issued by a Member State [exempted] the holder from the requirement to obtain a visa.’ (46)
57. Subsequently, the Commission’s amended proposal (47) used the expression ‘residence permit’ and, as previously, did not distinguish between residence cards depending on whether they certified residence for more than three months or permanent residence. However, the text of that provision was not in line with the proposed wording of Article 10, which did refer to a ‘residence card of a family member of an EU citizen’. The Commission stated in that respect that it was only in the interests of terminological consistency that the legislature then replaced the expression ‘residence card’ with ‘residence card referred to in Article 10’. (48) The EU legislature thus sought to clarify that the exemption from the visa requirement is based on EU law and, in particular, on the residence card issued by the Member States under Directive 2004/38 instead of on the basis of other documents that the Member States issue to foreign nationals under national law. (49)
58. It thus appears that the legislature’s intention was not to exclude permanent residence cards from the documents that certify the right of residence and give rise to exemption from the visa requirement. A reading of recital 8 of Directive 2004/38, which does not distinguish between the residence card for more than three months and the permanent residence card, corroborates that interpretation. That recital states that ‘with a view to facilitating the free movement of family members who are not nationals of a Member State, those who have already obtained a residence card should be exempted from the requirement to obtain an entry visa within the meaning of [Regulation No 539/2001] or, where appropriate, of the applicable national legislation.’ (50)
59. Furthermore, it should be borne in mind that both third-country nationals who are members of the family of EU citizens and have a right of residence of more than three months and those who have a right of permanent residence can, in certain circumstances, retain their rights of entry and residence on an exclusively personal basis. (51) That is to say, they can retain the right to enter the Member States, without a visa, on presentation of their residence card for more than three months or their permanent residence card.
60. Under those circumstances, it is irrelevant whether third-country nationals who are members of the family of EU citizens hold a residence card for more than three months or a permanent residence card in order for them to enjoy the visa exemption. To argue otherwise would fly in the face of the systematic, teleological and historical interpretation of Directive 2004/38 and of Article 5(2) thereof.
3. Non-participation by a Member State in the Schengen area
61. It should be borne in mind that the EU legislature adopted Directive 2004/38 on the basis of Articles 18, 21, 46, 50 and 59 TFEU. Those articles are binding on all the Member States, regardless of whether they form part of the Schengen area. The rights which they establish are therefore guaranteed for all EU citizens and the members of their families.
62. In the present case, the fact that the Schengen acquis does not apply to the Member State that issued the permanent residence card, that is to say, the United Kingdom, does not in any way affect the requirements for entering the Member States established in Article 5(2) of Directive 2004/38. Under that article, third-country nationals who are members of the family of EU citizens are required only to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. As the Commission stated in its observations, that reference to national law is included in order to provide for the Member States that are not part of the Schengen area. However, for the purposes of Directive 2004/38, third-country nationals who are members of the family of EU citizens are exempt from that requirement if they hold a valid residence card for more than three months or a permanent residence card.
63. As I stated in point 38 of this Opinion, the common rules on the movement of persons across borders neither call into question nor affect the rights of free movement enjoyed by EU citizens and members of their families, including citizens of Member States that are not part of the Schengen area.
C. The probative value of the permanent residence card (third question)
64. By its third question, the referring court seeks to establish whether the holding of the permanent residence card to which Article 20 of Directive 2004/38 refers is, of itself, proof that its holder has a right to enter a Member State as a member of the family of an EU citizen.
65. In the present case, a Member State refused entry to its territory to a third-country national who is a member of the family of an EU citizen on the ground that the third-country national in question did not hold all of the travel documents necessary to enter its territory without a visa, in accordance with Article 5(2) of Directive 2004/38, even though that national was in possession of a valid permanent residence card issued under Article 20 of that directive by the Member State of residence.
66. I believe it is important to bear in mind that the right of nationals of a Member State to enter the territory of another Member State for the purposes intended by the Treaty is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation. The issuing of a residence card under Directive 2004/38 to a national of a Member State or to a member of his family is to be regarded, not as a measure giving rise to rights, but as a measure by a Member State intended to establish the individual position of those persons with regard to EU law. (52)
67. The presentation of a residence card valid for more than three months or a permanent residence card for the purpose of proving that a person is a ‘member of the family of an EU citizen’ (53) is consequently an administrative formality the objective of which is to provide the national authorities with proof of a right which the person in question holds directly by virtue of his or her status. (54)
68. Accordingly, it can be stated that, provided that a third-country national and member of the family of an EU citizen satisfies the conditions that entitle him to the right of permanent residence under Directive 2004/38, a residence card issued under that directive proves the fact that the third-country national has resided legally in the host Member State and it must therefore be accepted by the Member States. It should be noted that it is not apparent in the slightest from the decision to refer or from the case file that the residence card presented by the third-country national concerned did not comply with Article 20 of that directive. Indeed, the referring court’s question concerns solely the issue of whether the permanent residence card has probative value for the purpose of entering the territory of a Member State.
69. It should be noted, as the Commission correctly stated, that both those cards are official documents by which a Member-State authority certifies that a member of the family of an EU citizen has a right of residence in accordance with Directive 2004/38. To allow a Member State to refuse to accept a permanent residence card by casting doubt on its probative value would thus be contrary to the aim of the visa exemption, namely, as apparent from recital 8 of that directive, that of facilitating free movement.
70. Furthermore, because Article 5 of Directive 2004/38 provides exhaustively for the documents that Member States can request from EU citizens and members of their family for the purposes of granting leave to enter their territory without a visa, (identity card or passport and residence card), the Member States cannot request additional documents. In that regard, to accept that the Hungarian authorities can refuse to accept a residence card issued under Directive 2004/38 would be tantamount to allowing a Member State to circumvent the right of free movement and could lead to other Member States acting in the same way and thereby, in practice, unilaterally infringing that directive. (55) For the purposes of entry into their territory without a visa, the Member States are therefore required to recognise both the residence card for more than three months and the permanent residence card, unless doubt is cast on the authenticity of those cards and on the correctness of the data appearing on them by concrete evidence that relates to the individual case in question and justifies the conclusion that there is an abuse or fraud. (56)
71. Lastly, the fact that the civil status of a third-country national who is a member of the family of an EU citizen and has a right of residence can change in the event of the death or departure of the EU citizen or in the event of divorce, annulment of a marriage or termination of a registered partnership must not cast doubt on the probative value of the permanent residence card. It is worth emphasising that if that change in civil status takes place after the right of permanent residence has been acquired, retention of that right on an exclusively personal basis is no longer subject to the conditions laid down in Chapter III of Directive 2004/38, including those in Articles 12(2) and 13(2) thereof. (57)
72. In the light of the foregoing, it is clear that the holding of the permanent residence card to which Article 20 of Directive 2004/38 refers is, of itself, proof that its holder has a right to enter a Member State as a member of the family of an EU citizen.
D. The scope of the obligation on the carrier within the meaning of Article 26 of the CISA (fourth and fifth questions).
73. By its fourth and fifth questions, the referring court asks, in essence, whether Article 26(1)(b) and (2) of the CISA must be interpreted as meaning that the obligation imposed on air carriers to ensure that their passengers hold the required travel documents, where they are third-country nationals and members of the family of an EU citizen, travelling from one Member State to another, relates to the documents establishing the right of entry of those third-country nationals, that is to say, a passport and valid residence card, or whether that obligation implies that those carriers must ensure that those passengers have a visa or other documents attesting to a family relationship with an EU citizen.
74. In order to answer those questions, I believe it is important to clarify the general scope of the carrier’s obligation under that provision.
75. It is essential, in this respect, to distinguish, first, between the obligations of air carriers under Article 26(1)(b) and (2) of the CISA and ‘border checks’ within the meaning of Article 2.11 of the Schengen Borders Code (58) and, secondly, between the employees and authorised or designated representatives of those carriers and ‘border guards’ within the meaning of Article 2.14 of that code. (59)
76. Indeed, it is apparent from Article 26(1)(b) of the CISA (60) that the air carrier is obliged to check the adequacy of the travel documents required, at the airport of departure, and that it is liable to sanctions if no such check is carried out. Nevertheless, as Advocate General Pitruzzella stated recently in his Opinion in D.Z., (61) ‘those obligations and sanctions established by EU or national law do not mean that air carriers who check passengers’ travel documents before boarding at the airport of the Member State of departure, in order to ensure that they are in possession of the documents required to enter the territory of the Member State of destination, must be considered to be acting as an emanation of that Member State or that those checks can be described as “border checks” within the meaning of the Schengen Borders Code or, even less, that the employees and authorised or designated representatives of those carriers can be treated as “border guards” within the meaning of that code’. (62)
77. Accordingly, neither the air carriers nor the employees and authorised or designated representatives of those carriers, when checking whether the required travel documents are adequate at the airport of the Member State of departure, ‘can be considered as entrusted with performing border control tasks’. This means that ‘those persons therefore have no power to refuse or grant leave for entry to the territory of the Member State of destination to a third-country national’. (63)
78. I also believe that it is helpful to clarify that the air carrier’s obligation under Article 26(1)(b) of the CISA is a formal obligation. It therefore has no duty, for example, to check whether those documents are authentic unless it detects invalid or clearly falsified documents.
79. Furthermore, it can be seen from points 27 to 41 of this Opinion that the rules on the movement of persons across borders and on the issuing of visas apply without prejudice to the right to move and reside freely within the territory of the Member States of EU citizens and members of their family who are third-country nationals. To my mind, therefore, there is no doubt that Article 26 of the CISA must be interpreted in accordance with Directive 2004/38. In consequence, as emerges from my analysis of the first three questions referred, air carriers have a duty to ensure that the third-country nationals whom they transport and who are members of the family of EU citizens, in order to enter the territory of a Member State, are in possession not only of a valid passport but of the residence card for more than three months to which Article 10 of Directive 2004/38 refers or of the permanent residence card to which Article 20 of that directive refers.
80. In my view, therefore, the fourth and fifth questions referred for a preliminary ruling should be answered to the effect that Article 26(1)(b) and (2) of the CISA must be interpreted as meaning that the obligation on air carriers to ensure that their passengers hold the required travel documents, where they are third-country nationals and members of the family of EU citizens, travelling from one Member State to another, relates only to the documents establishing the right of entry of those third-country nationals, that is to say, a valid passport and a valid residence card for more than three months under Article 10 of Directive 2004/38 or a permanent residence card under Article 20 of that directive, and that obligation does not require them to ensure that those passengers have a visa or other documents attesting to a family relationship with an EU citizen.
IV. Conclusion
81. In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions referred by the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) for a preliminary ruling:
(1) Article 5(2) 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 must be interpreted as meaning that the entry visa exemption under that provision for third-country nationals in possession of a residence card under Article 10 of that directive also applies to third-country nationals who are in possession of a permanent residence card under Article 20 of that directive, even in the case where the permanent residence card was issued by a Member State that is not part of the Schengen area.
(2) The holding of the permanent residence card to which Article 20 of Directive 2004/38 refers is, of itself, proof that its holder has a right to enter another Member State as a member of the family of an EU citizen.
(3) Article 26(1)(b) and (2) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, which was signed in Schengen on 19 June 1990 and entered into force on 26 March 1995, must be interpreted as meaning that the obligation on air carriers to ensure that their passengers hold the required travel documents, where they are third-country nationals and members of the family of an EU citizen, travelling from one Member State to another, relates only to the documents establishing the right of entry of those third-country nationals, that is to say, a valid passport and a valid residence card for more than three months under Article 10 of Directive 2004/38 or a permanent residence card under Article 20 of that directive, and that obligation does not require them to ensure that those passengers have a visa or other documents attesting to a family relationship with an EU citizen.