EU Case Law

On 22 September 2003 the Council adopted the Directive 2003/86/EC which determine the conditions for the exercise of the right to family reunification by nationals of non-member States residing lawfully in the territory of the Member States. The directive provides in particular that a national of a non-member State lawfully living in the EU is in principle entitled to bring his/her children to join him/her by way of family reunification. The directive nevertheless allows Member States in certain circumstances to apply national legislation derogating from the rules that apply in principle.

The European Parliament took the view that several provisions are contrary to fundamental rights, in particular the right to respect for family life and the right to non discrimination. Because of that it brought an action for annulment before the ECJ.

As examples of such provisions we can mention: the possibility for Member States to verify whether a child, who arrives independently from the rest of his/her family, meets an integration condition; or the possibility of the Member States to defer family reunification for two or, as the case may be, three years.

However after a very intense analyze and after making the first referral to the EU Charter, the ECJ ruled that the Community legislature did not exceed the limits imposed by fundamental rights in permitting Member States which had, or wished to adopt, specific legislation to adjust certain aspects of the right to family reunification.

The ECJ therefore dismissed the action.

Text of the ECJ judgment
Text of the AG opinion