Vice-President R Silva de Lapuerta (Rapporteur),
Presidents of Chambers J-C Bonichot, A Prechal, M Vilaras, N Piçarra, A Kumin,
Judges M Safjan, D Šváby, S Rodin, K Jürimäe, PG Xuereb, LS Rossi, I Jarukaitis, J Passer
Advocate General M Szpunar
The applicant, an Algerian national, joined his French wife in Belgium, where he was issued with a residence card as a family member of a Union citizen. A few years later he left the matrimonial home because of his wife’s acts of domestic violence against him. His wife subsequently left Belgium and moved to France. Almost three years after that departure, the applicant initiated divorce proceedings. Before the divorce was granted, the Belgian State terminated the applicant’s right of residence, on the ground that he had not adduced evidence that he had sufficient resources to support himself, in accordance with Belgian law intended to transpose article 13(2) of Parliament and Council Directive 2004/38/EC, pursuant to point (c) of which, the right of residence of a third-country national was retained in the event of divorce where it was warranted by particularly difficult circumstances, such as domestic violence. That right was subject to certain conditions, including the requirement to have sufficient resources. The applicant appealed to a Belgian court on the ground that the law transposing article 13(2)(c) of Directive 2004/38 implemented an unjustified difference and inequality in treatment between a third-country national who had divorced a Union citizen, such as himself, and such a person who had divorced another third-country national, under Belgian law transposing article 15(3) of Council Directive 2003/86/EC, under which there were no conditions attached to the retention of the right of residence, other than proof of the existence of acts of domestic violence. Accordingly, the Belgian court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question whether article 13(2)(c) of Directive 2004/38 was invalid as being in breach of the right to equal treatment under article 20 of the Charter of Fundamental Rights of the European Union. As a preliminary point, the issue was raised as to whether article 13(2)(c) was applicable, in any event, where, as in the present case, divorce proceedings were initiated after the departure of the Union citizen spouse from the host member state.
On the reference—
Held, (1) in order to retain the right of residence on the basis of article 13(2)(c) of Directive 2004/38, it was possible that divorce proceedings could have been initiated after the departure of the Union citizen spouse from the host member state. However, to ensure legal certainty, a third-country national—who had been the victim of acts of domestic violence committed by the Union citizen spouse, and in relation to whom divorce proceedings had not been initiated before the departure of that spouse from the host member state—could rely on the retention of the right of residence only in so far as those proceedings were initiated within a reasonable period following such departure. It was important to leave the third-country national concerned sufficient time to choose between the two options offered by Directive 2004/38 in order to retain the right of residence, which were either the commencement of divorce proceedings for the purpose of enjoying a personal right of residence under article 13(2)(c) of the Directive, or the establishment in the member state in which the Union citizen resided in order to retain a derived right of residence (judgment, paras 40, 42–44).
(2) Notwithstanding the fact that article 13(2)(c) of Directive 2004/38 and article 15(3) of Directive 2003/86 shared the objective of ensuring protection for family members who were victims of domestic violence, the regimes under those Directives related to different fields, the principles, subject matters and objectives of which were also different. In addition, the beneficiaries of Directive 2004/38 enjoyed a different status and rights of a different kind to those upon which the beneficiaries of Directive 2003/86 could rely, and the discretion which the member states had to apply the conditions under those Directives was not the same. In the present case, it was thus a choice made by the Belgian authorities in connection with the exercise of the broad discretion conferred on them by article 15(4) of Directive 2003/86 which had led to the difference in treatment complained of by the applicant. Therefore, third-country nationals who were spouses of Union citizens and fell within Directive 2004/38, and third-country nationals who were spouses of other third-country nationals and fell within Directive 2003/86, were not in comparable situations for the purposes of applying the principle of equal treatment guaranteed by article 20 of the Charter in relation to the retention of their right of residence. Accordingly, article 13(2)(c) was not discriminatory and was valid in the light of article 20 of the Charter (judgment, paras 70, 89–91, operative part).
J Wolsey and E Didi for the applicant, X.
L Van den Broeck, M Jacobs and C Pochet, agents, and E Derriks, K de Haes and G van Witzenburg for the Belgian Government.
D Warin and R van de Westelaken, agents, for the European Parliament.
S Boelaert and R Meyer, agents, for the Council of the European Union.
C Cattabriga and E Montaguti, agents, for the European Commission.