Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 14 August 2023 – OS v Országos Idegenrendészeti Főigazgatóság

(Case C-525/23, Accra ¹ )

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: OS

Defendant: Országos Idegenrendészeti Főigazgatóság

Questions referred

Is the practice of a Member State which establishes as additional requirements for accepting that an applicant for residency, who is a national of a third State and intends to carry out voluntary work, has means of subsistence – after he has proved that his relative who is not regarded as a family member can and does provide, from his lawfully acquired income and by means of regular transfer of the amount required for subsistence, sufficient income for the applicant’s subsistence and for his return travel – that the applicant must state precisely whether the amount received is income or capital and, moreover, must provide documentary evidence of the legal basis on which he acquired that income or capital and must have the amount or the capital at his disposal, as his own, on a permanent and unrestricted basis, consistent with the discretion afforded to Member States by Article 7(1)(e) of [Directive (EU) 2016/801], ¹ having regard to the objectives set out in recitals 2 and 41 and Article 1(a) and Article 4(1) of that directive?

Having regard to the principle of the primacy of EU law, fair treatment in accordance with Article 79 TFEU, freedom of residence as enshrined in Article 45 of the Charter [of Fundamental Rights of the European Union] and the rights to an effective remedy and to a fair trial enshrined in Article 47 of the Charter, as well as recitals 54 and 61 of [Directive 2016/801], in particular the principle of legal certainty, does the fact that, as a whole, the national legislation relating to residence permits does not contain the requirements set out in the first question referred, such that those requirements have not been established by the legislature, but rather by the highest court of the Member State in its application of the law, which has to serve as precedent, have a bearing on the answer to the first question referred?

To the extent that, in applying national law for the purpose of accepting that the applicant for residency has means of subsistence, the declaration and documentary evidence relating to the abovementioned requirements are also necessary, in the present case, must Article 7(1)(e) [of Directive 2016/801] be interpreted, having regard to the requirement for fair treatment laid down by Article 79 TFEU, the rights to an effective remedy and to a fair trial conferred by Article 47 of the Charter, the requirement for legal certainty referred to in recital 2 [of Directive 2016/801] and the content of recitals 41 and 42 [of that directive] with regard to procedural safeguards, as meaning that the practice of a Member State whereby that applicant is required, after being warned of the legal consequences, to state and prove coherently and consistently that he meets the additional requirements considered necessary, and whereby the application for a residence permit is refused solely on the ground that he has failed to provide evidence relating to the requirements established in the case-law, is consistent with the provisions of the legislation only if the rights of the person concerned and the procedural safeguards have thereby been observed?

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¹ The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

¹ Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (OJ 2016 L 132, p. 21).