Court of Justice of the European Communities (including Court of First Instance Decisions)

Legal framework

Community legislation

'Any national of a Member State shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down bylaw, regulation or administrative action governing the employment of nationals of that State.'

'1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a) his spouse and their descendants who are under the age of 21 years or are dependants;

(b) dependent relatives in the ascending line of the worker and his spouse.

2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.

3. For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however must not give rise to discrimination between national workers and workers from the other Member States.'

'1. Member States shall allow the persons referred to in Article 1 to enter their territory simply on production of a valid identity card or passport.

2. No entry visa or equivalent document may be demanded save from members of the family who are not nationals of a Member State. Member States shall accord to such persons every facility for obtaining any necessary visas.'

'(c) the document with which they entered the territory;

(d) a document issued by the competent authority of the State of origin or the State whence they came, proving their relationship;

(e) in the cases referred to in Article 10(1) and (2) of Regulation (EEC) No 1612/68, a document issued by the competent authority of the State of origin or the State whence they came, testifying that they are dependent on the worker or that they live under his roof in such country.'

'Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health.'

(a) nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that State;

(b) nationals of Member States wishing to go to another Member State as recipients of services;

(c) the spouse and the children under 21 years of age of such nationals, irrespective of their nationality;

(d) the relatives in the ascending and descending lines of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality.'

'Each Member State shall grant the right of permanent residence to nationals of other Member States who establish themselves within its territory in order to pursue activities as self-employed persons, when the restrictions on these activities have been abolished pursuant to the Treaty.

As proof of the right of residence, a document entitled Residence Permit for a National of a Member State of the European Communities shall be issued. This document shall be valid for not less than five years from the date of issue and shall be automatically renewable.

...'

'An applicant for a residence permit or right of abode shall not be required by a Member State to produce anything other than the following, namely:

(a) the identity card or passport with which he or she entered its territory;

(b) proof that he or she comes within one of the classes of person referred to in Articles 1 and 4.'

'1. The provisions of this Directive shall apply to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services.

2. These provisions shall apply also to the spouse and to members of the family who come within the provisions of the regulations and directives adopted in this field in pursuance of the Treaty.'

'1. This Directive relates to all measures concerning entry into their territory, issue or renewal of residence permits, or expulsion from their territory, taken by Member States on grounds of public policy, public security or public health.

2. Such grounds shall not be invoked to [serve] economic ends.'

'1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.

2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.

3. Expiry of the identity card or passport used by the person concerned to enter the host country and to obtain a residence permit shall not justify expulsion from the territory.

4. The State which issued the identity card or passport shall allow the holder of such document to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.'

'The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration.'

'1. Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the host country before which the person concerned enjoys such rights of defence and of assistance or representation as the domestic law of that country provides for.

This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering expulsion.

2. Any decision refusing the issue of a first residence permit or ordering expulsion of the person concerned before the issue of the permit shall, where that person so requests, be referred for consideration to the authority whose prior opinion is required under paragraph 1. The person concerned shall then be entitled to submit his defence in person, except where this would be contrary to the interests of national security.'

'For the purposes of this Regulation, visa shall mean an authorisation given or a decision taken by a Member State which is required for entry into its territory with a view to:

- an intended stay in that Member State or in several Member States of no more than three months in all,

- transit through the territory of that Member State or several Member States, except for transit through the international zones of airports and transfers between airports in a Member State.'

National legislation

'Foreign nationals shall be permitted to enter the Kingdom where they are in possession of:

...

(ii) or a valid passport or travel document in lieu of a passport, bearing a visa or equivalent authorisation valid for Belgium affixed by a Belgian diplomatic or consular representative or by such a representative of a State party to an international Convention concerning the crossing of external borders which is binding on Belgium.'

'(i) if he is staying in the Kingdom without being in possession of the documents required by Article 2;

(ii) if he remains in the Kingdom beyond the time-limit set in accordance with Article 6 or cannot prove that that time-limit has not been exceeded'.

'2. For the purposes of this Law, EC foreign national shall mean any national of a Member State of the European Communities who resides in or travels to the Kingdom and who:

(i) pursues or intends to pursue there an activity as an employed or self-employed person;

(ii) receives or intends to receive services there:

(iii) enjoys or intends to enjoy there a right to remain;

(iv) enjoys or intends to enjoy there a right of residence after ceasing a professional activity or occupation pursued in the Community;

(v) undergoes or intends to undergo there, as a principal pursuit, vocational training in an approved educational establishment; or

(vi) belongs to none of the categories under (i) to (v) above.

3. Subject to any contrary provisions of this Law, the following persons shall, whatever their nationality, be treated in the same way as an EC foreign national covered by paragraph 2(i), (ii) and (iii) above, provided that they come in order to settle, or do settle, with him:

(i) the spouse of that national;

...

4. Subject to any contrary provisions of this Law, the following persons shall, whatever their nationality, be treated in the same way as an EC foreign national covered by paragraph 2(iv) and (vi) above, provided that they come in order to settle, or do settle, with him:

(i) the spouse of that national;

...

5. Subject to any contrary provisions of this Law, the spouse of an EC foreign national covered by paragraph 2(v) above and his children or those of his spouse who are dependent on them shall, whatever their nationality, be treated in the same way as the EC foreign national provided that they come in order to settle, or do settle, with him.

6. The spouse of a Belgian who comes in order to settle, or does settle, with him, and also their descendants who are under 21 years of age or dependent on them, their ascendants who are dependent on them and any spouse of those descendants or ascendants, who come to settle, or do settle, with them, shall also be treated in the same way as an EC foreign national.'

'The right to enter the Kingdom shall be granted to an EC foreign national upon production of a valid identity card or national passport.

Spouses and family members referred to in Article 40 who are not nationals of a Member State of the European Communities must be in possession of the document required under Article 2.

A person holding a document issued by the Belgian authorities which he has used to enter and reside in a Member State of the Communities shall be accepted without formality on Belgian territory even if his nationality is disputed or if the document has expired.'

'A right of residence shall be granted to EC foreign nationals under the conditions and for the period determined by the King in accordance with the regulations and directives of the European Communities.

Such right of residence shall be proved by a permit issued in the cases and under the detailed rules laid down by the King, in accordance with the said regulations and directives.

The decision concerning issue of a residence permit shall be taken as quickly as possible and no later than six months from the application.'

'Entry and residence may not be denied to EC foreign nationals except on grounds of public policy, public security or public health, and then only subject to the following limitations:

...

(iii) expiry of a document used for entry into and residence in Belgian territory cannot by itself justify expulsion from the territory;

...'.

'An application for review, as provided for by Article 64, may be made in respect of:

(i) any refusal to issue a residence permit to an EC foreign national to whom a right of residence is granted under Article 42 and any decision ordering expulsion from the territory before such a permit is issued'.

'Apart from the decisions referred to in Articles 44 and 44a, an application for review by the minister conducted in accordance with the following provisions may be made in respect of:

(i) a decision refusing under Article 11 to grant a right of residence;

(ii) a requirement to return to the country of origin;

(iii) refusal of an application for authorisation for establishment;

...

(vii) a decision requiring a foreign national, pursuant to Article 22, to leave specified premises, to stay away from them or to reside at a specified location;

(viii) a decision refusing authorisation to reside to a foreign national who wishes to study in Belgium.'

'An action for annulment, governed by Article 14 of the Laws on the Conseil d'État, consolidated on 12 January 1973, may be brought against a decision refusing entitlement to a right envisaged by this Law.

The lodging of an application for review shall not preclude an action being brought directly for annulment of the decision whose review is sought.

In that case, consideration of the action for annulment shall be suspended until the minister has ruled on the admissibility of the application for review.'

'The aim of this circular is to resolve certain problems relating to the procedure for publication of banns ... which have recently given rise to controversy. In addition, it provides clarification with regard to the documents which must be produced in orderto obtain a visa for the purpose of contracting a marriage in the Kingdom or to obtain a visa for the purpose of reuniting a family on the basis of a marriage contracted abroad.

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4. Lodging an application for residence after celebration of a marriage.

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However, as regards residence, it is to be remembered that the documents required for entry into the Kingdom must be produced in support of the application for residence submitted under subparagraphs (i) or (iv) of the first paragraph of Article 10 or Article 40(3) to (6) of the Law of 15 December 1980 on access to the territory, residence, establishment and expulsion of foreign nationals.

That means specifically that the foreign national must be in possession of a valid national passport or travel document in lieu of a passport, bearing if necessary a visa or equivalent authorisation valid for Belgium affixed by a Belgian diplomatic or consular representative or by such a representative of a State party to an international Convention concerning the crossing of external borders which is binding on Belgium (Article 2 of the Law of 15 December 1980).

Where a foreign national fails to produce the abovementioned entry documents, his application for residence shall in principle be declared inadmissible.

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'1. The general rule that an application for residence or establishment in the Kingdom in order to reunite a family will not be considered where the foreign national is not in possession of valid entry documents, that is to say a national passport or a travel document in lieu of a passport which is valid when the application is made and bears, if necessary, a valid visa, continues to apply.

2. In derogation from that general rule, an application for establishment submitted on the basis of Article 40 of the Law of 15 December 1980 by a foreign national (requiring a visa) married to a Belgian national or a national of a Member State of the EEA, who produces only a national passport, or a travel document in lieu of apassport, which is valid but bears an expired visa will however be considered in so far as the documents concerning his ties of kinship or marriage to the Belgian national or the national of a Member State of the EEA are produced at the time of the application for establishment.

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The main proceedings and the questions referred for a preliminary ruling

'1. Must Article 3 of Directive 68/360 of 15 October 1968, Article 3 of Directive 73/148 of 21 May 1973 and Regulation No 2317/95 of 25 September 1995, read in the light of the principles of proportionality and non-discrimination and the right to respect for family life, be interpreted as meaning that the Member States may, at the border, send back foreign nationals subject to a visa requirement and married to a Community national who attempt to enter the territory of a Member State without being in possession of an identity document or visa?

2. Must Article 4 of Directive 68/360 and Article 6 of Directive 73/148, read in the light of Article 3 of each of those directives and of the principles of proportionality and non-discrimination and the right to respect for family life, be interpreted as meaning that Member States may refuse to issue a residence permit to the spouse of a Community national who has entered their territory unlawfully and issue an expulsion order against him?

3. Do Articles 3 and 4(3) of Directive 68/360, Article 3 of Directive 73/148 and Article 3(3) of Directive 64/221 of 25 February 1964 mean that the Member States may neither withhold a residence permit nor expel a foreign spouse of a Community national who has entered national territory lawfully but whose visa has expired when application is made for the issue of that permit?

4. Must Articles 1 and 9(2) of Directive 64/221 of 25 February 1964 be interpreted as meaning that foreign spouses of Community nationals who arenot in possession of identity documents or a visa or whose visa has expired have the right to refer the matter to the competent authority mentioned in Article 9(1) when applying for the issue of a first residence permit or when they have an expulsion order made against them before the issue thereof?'

Preliminary point

Question 1

Observations submitted to the Court

The Court's answer

Question 2

Observations submitted to the Court

The Court's answer

Question 3

Observations submitted to the Court

The Court's answer

Question 4

Observations submitted to the Court

The Court's answer

Costs