In X (C-706/18), the ECJ confirmed the substance of rights from the ruling in Diallo (C-246/17).

In the main proceedings, the Belgian Immigration Office had rejected the application for a visa for family reunification. The decision was subsequently confirmed by the Council for asylum and immigration proceedings (the referring court). However, the Council of State held that the processing time limit provided for by the Aliens Act being exceeded, on grounds of the said act, the applicant should have been automatically granted entry and residence permit. The case was remitted to the referring court.

The ECJ recalled that while the EU law does not preclude implicit acceptance or authorisation schemes, “such schemes must nevertheless not impair the effectiveness of EU law”.

The reasoning from Diallo (case concerned with the interpretation of Directive 2004/38), applies mutatis mutandis to the interpretation of Directive 2003/86, and the conclusion is obviously the same: residence permits automatically granted to persons who do not meet the requirements for obtaining it, impair the effectiveness of EU law.

Other recent cases recall inter alia that “an interpretation by the Court of provisions of EU law in situations not falling within their scope, is warranted where such provisions have been made directly and unconditionally applicable to such situations by national law, in order to ensure that those situations and situations falling within the scope of those provisions, are treated in the same way” (joined cases G.S and V.G  C-381/18 and C-382/18 paragraph 43).

In the first case, Subdelegación del Gobierno en Ciudad Real (C-836/18), AG Pikamae upheld the above-mentioned principle, in relation to the interpretation of Directive 2004/38 , in a particular context. The AG suggested that national jurisprudence (even if about supreme court case law), is not equivalent to a national legislative act by virtue of which the provisions of EU law have been made directly and unconditionally applicable.

In the same case, the AG had the opportunity to recall (as an ancillary issue), the ECJ interpretation given to Article 7.1 (b) Directive 2004/38, notably the concept of “resources”. Such a concept does not concern solely “own resources” of the applicant, but as well resources made available by a third party. To that extent, the AG recalled the ECJ rulings in C-93/18 (Bajratari) and C-302/18 (X v Belgian State).

Lastly, assessing rights derived from dependency to EU nationals who have not exercised the right to freedom of movement under the Treaty,the AG recalled the “test of dependency”  from K.A (C-82/16), interpreting the “substance of rights” test from McCarthy (2011): where the Union citizen is an adult ,such a dependency must be “capable of justifying a derived right of residence under Article 20 TFEU”, only if due to exceptional circumstances, “any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible” (C-82/16).

In joined cases C-381/18 (G.S) and C-382/18 (V.G),as regards the latter case, in the same context of rights derived from dependency to static EU nationals, and where in Netherlands law, Directive 2003/86 was declared to apply directly and unconditionally to such situations, the ECJ delivered an interesting assessment of the concept of “public policy”.

The referring court sought to know whether in the meaning of Directive 2003/86, a criminal conviction imposed during a previous stay on the territory of the Member State, or a sentence sufficiently severe in comparison with the duration of the stay that has been imposed on the applicant, can be considered grounds of public policy.

After recalling case-law following which “a Union citizen who has exercised his or her right to free movement and certain members of that citizen’s family can be regarded as posing a threat to public policy only if their individual conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned” (Orfanopoulos and Oliveri, C‑482/01 and C‑493/01, Coman and Others, C‑673/16),the ECJ upheld the judgment delivered the same day in E.P (C-380/18). The ECJ ruled that the concept of ‘threat to public policy’ can be interpreted beyond individual conduct representing a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned.

The ECJ assessed  the concept of threat to public policy in the light of the wording of Article 6(1), 6 (2) and recital 14 Directive 2003/86, and of the latter objective, reference made to its preparatory works (the requirement that the grounds of public policy must be based exclusively on the personal conduct of the family member concerned, was finally not adopted by the EU legislature). After emphasising the importance of the principle of proportionality (the offence must be sufficiently serious), and of the individual assessment must be carried out in each case, the ECJ concluded that prima facie, the concept of public policy, encompasses the situations at hand.