CJEU - C‑309/14, Confederazione Generale Italiana del Lavoro (CGIL), Istituto Nazionale Confederale Assistenza (INCA) v Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Ministero dell’Economia e delle Finanze
| Country of Domestic Proceedings: | Italy |
| Court name: | Second Chamber of the Court of Justice of the European Union |
| Date of decision: | 02-09-2015 |
| Citation: | Case C‑309/14 |
Keywords:
| Keywords |
|
Residence document
Description
“any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit” |
Headnote:
Whilst the Long Term Residence Directive (LTRD) allows for the imposition of fees relating to the issuance of a residence permit such measures must adhere to the principles of proportionality and abide by the Directive’s effectiveness.
The frequent payment of a fee which is on top of a pre-existing fee creates an obstacle to the obtaining of the long-term resident status conferred by the LTRD.
Facts:
The facts of the case originate in Italian domestic legislation (a 2011 decree) which provided that a third country national had to pay a fee of between 80 and 200 euros for the issue and renewal of a residence permit, depending on the duration of the residence permit, half of which was designated to the Return Fund. Under pre-existing Italian legislation, a fee of 73.50 euros should be paid for the issue or renewal of residence permits regardless of the duration of the residence permit, in addition to the 80-200 euro fee.
CGIL and INCA requested the Regional Administrative Court of Lazio to annul the 2011 decree arguing that the fee payable for the issuance or renewal of a residence permit for third country nationals is disproportionate.
The Court decided to stay proceedings and refer a preliminary question to the CJEU:
Do the principles laid down in … Directive 2003/109 … preclude rules of national law, such as those laid down in Article 5(2b) of Legislative Decree No 286/1998, in that they provide that “the application for the issue and renewal of the residence permit shall be subject to the payment of a fee, the amount of which shall be set at a minimum of EUR 80 and a maximum of EUR 200 by joint decree of the Ministry of the Economy and Finance and of the Ministry of the Interior which shall also lay down the conditions for the payment …”, thereby fixing a minimum amount for the fee equal to around eight times the charge for the issue of a national identity card?
Decision & reasoning:
The Court first refers to the objective of the Long Term Residence Directive (LTRD), also confirmed in previous case law, which is the integration of TCNs who are “settled on a long-term basis in the Member States” (Commission v Netherlands, C‑508/10). Whilst the Court has previously ruled that the issuance of residence permits may be subject to a fee, which is up to the discretion of Member States, this discretion must adhere to the Directive’s objectives and so its effectiveness.
The Court additionally refers to the principle of proportionality to find that transposition measures of the Directive must be suitable to achieve the objective of the measure and not go beyond what is necessary to achieve said objective. Therefore the imposition of charges with respect to residence fees must not have the object or effect of “creating an obstacle to the obtaining of the long-term resident status conferred by that directive, and also of other rights which stem from the granting of that status.” To do otherwise would breach the effectiveness of the Directive.
Turning to the legislation in contention the Court finds that the financial impact on TCNs is significant not least since they must renew the permit frequently and that pre-existing charges will also apply. Therefore the fee could constitute “an obstacle to the exercise by those third-country nationals of the rights conferred on them by” the LTRD.
The Court does not accept the argument advanced by the Italian government that such fees are not disproportionate given that part of the money goes towards the Return Fund in order to investigate whether the conditions underpinning the granting of the permit still exists.
Outcome:
Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, as amended by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011, precludes national legislation, such as that at issue in the main proceedings, which requires third-country nationals, when applying for the issue or renewal of a residence permit in the Member State concerned, to pay a fee which varies in amount between EUR 80 and EUR 200, inasmuch as such a fee is disproportionate in the light of the objective pursued by that directive and is liable to create an obstacle to the exercise of the rights conferred by that directive.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C‑508/10, Commission v Netherlands |
Other sources:
Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents - Recitals 9, 10 and 18 and Article 19.
Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals