In his
Opinion delivered on 7 March 2018 (C‑246/17),
Advocate General Bot, provides a detailed analysis in regard to the period
which Member States must adopt and notify decisions to issue residence permits
to third-country nationals, family members of EU citizens [under Article 10(1)
Directive 2004/38/EC].

Summary
of the case in the main proceedings

The case
concerns a decision by the Belgian State refusing to issue a residence card of a
family member of a European citizen, to a Guinean national and relative in the
ascending line of a child of Netherlands nationality residing in Belgium. The
decision was accompanied by an order to leave the territory.

Summary
of the legal context

·        Pursuant
to Article 10(1) Directive 2004/38/EC 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 residence permit, no later than six months of the
application date.

·        Pursuant
to Article 52(4) Royal Decree of 8 October 1980, read in conjunction with
Article 42(1) Law of 15 December 1980, If the right of residence is granted
(i.e. by the Immigration Office), or if no decision is taken within six months
of the application date, the local administration shall issue the foreign
national a residence card of a family member of a Union citizen.

Brief of
the questions referred to the European Court of Justice

The Belgian
Council of State has referred to the ECJ several questions can be summarised as
follows:

·        Whether
the decision as to whether to recognise a right of residence must be taken and
notified within a maximum delay of six months, or it can be taken within such
delay and notified subsequently.

·        What
are the consequences arising from the failure to adopt or notify the decision
within the delay of six months?

·        Whether
following the judicial annulment of a decision to reject an application, the
six-month period available to the competent national authority is interrupted
or suspended.

Summary
of the Opinion delivered by Advocate General Bot

·        The
period of six months as of the application date constitutes the maximum amount
of time to be spent to examine an application.

·        Where
the right of residence is established, the decision must be adopted, and the
card issued within the six-month period.

·        A
decision refusing a residence card must be adopted within the six-month period,
however, the notification of such a decision may occur after that period (as
soon as possible).

·        The
system of automatically issuing residence permits is a source of legal
uncertainty and as the case at issue, contrary to the objective pursued by
Directive 2004/38/EC.

·        The
judicial annulment of a decision to refuse to issue the residence card, has the
effect of interrupting the six-month period available to the administration
(i.e. the competent national authority is once again allowed the full period of
six months).

Expected
impact

The Council
of State has referred to the ECJ questions on interpretation of the
national legislation implementing Directive 2004/38/EC, in the light of the
said directive.

Advocate
General Bot takes the view that:

·        Directive
2004/38/EC precludes national legislation from automatically granting residence
cards where a decision is not taken within the six-month period, if the
applicant does not satisfy the necessary conditions.

·        
“The system of automatically issuing
residence cards is a source of legal uncertainty”.

·        Residence
cards issued automatically as a consequence of slowness or inaction on the part
of the authorities, are non-declaratory in relation to the right of residence.

The system
of automatically issuing residence cards, represents the rule commonly provided
for by the national legislation, pursuant to the obligation imposed by the EU
law to determine any consequence of no decision being taken by the end of the
period provided for by the said law (see inter alia Article 7.2 Directive
2003/109/EC, Article 5.2 Directive 2001/98/EU, Article 11.1 Directive
2009/50/EC).

The fact that,
“the issuing of a residence permit to a
third-country national is to be regarded not as a measure giving rise to
rights, but as a measure by a Member State serving to prove the individual
position of such a national”, determines the substance of rights associated
to any such residence permit.

The right to
establish the non-contractual liability of the Member State for breach of EU
law (i.e. the solution suggested by Advocate General Bot as the appropriate way
of determining the consequences of exceeding the mandatory period), is
regardless any determination of such consequences by the national legislation.
More ever, often, the burden of legal action, overrides the harm caused.

Providing
that the ECJ will follow the opinion delivered by the AG:

·        The
national legislation would have to be amended (Law of 15 December 1980, its
implementation Royal Decree of 8 October 1981 and the recent cooperation agreement
between the federal state and the regions coordinating policies on granting the
“single permit”).

·        Certain
categories of residence permits issued to third-country nationals by the
Belgian authority, would be challengeable (e.g. by another Member State’s
authority), unless accompanied by the notification of the decision made by the
Immigration Office.