CJEU - C‑540/03, European Parliament v Council of the European Union

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Date of Decision: 
Court Name: 
Grand Chamber of the Court of Justice of the European Union

The European Parliament sought the annulment of Article 4(1), Article 4(6) and Article 8 of the Family Reunification Directive, as being incompatible with the right to respect for family life and non-discrimination based on age.

The Court found that these provisions created a limited margin of appreciation for Member States which was no greater than that allowed for in ECtHR case law, and could be exercised compatibly with fundamental rights.


The European Parliament sought the annulment of provisions of the Family Reunification Directive (2003/86/EC), on the basis that they were incompatible with fundamental rights: the right to respect for family life, and non-discrimination, by allowing Member States to enact legislation contrary to these rights.

These allowed for the application of national law derogating from the principle that a third country national lawfully residing in the Member States is entitled to be joined by his/her children by way of family reunification, in certain circumstances.

In particular, the last paragraph of Article 4(1) made it possible for Member States to verify whether a child aged over 12 who arrives independently from the rest of his/her family meets a condition for integration; Article 4(6) allowed Member States to only admit applications submitted by children aged under 15; and Article 8 made it possible to impose a waiting period of up to three years between submitting a family reunification application and family members being issued a residence permit. 

Decision & Reasoning: 

The Court considered that fundamental rights from an integral part of general principles of law, and in interpreting them it draws inspiration from international human rights instruments and constitutional traditions common to the Member States. In doing so, the ECHR has special significance.  

The ECtHR case law on Article 8 ECHR has held that respect for family life may entail both negative or positive obligations, and there should be a fair balance between the interests of the individual and the community, with the State enjoying a margin of appreciation

Although the ECHR, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the Charter of Fundamental Rights of the EU stress the importance of family life to a child, they do not create an individual right to family reunification.

The derogations under challenge preserve a limited margin of appreciation for Member States which is no different to that given to them in ECtHR case law. The Directive and case law also requires Member States to weigh competing interests in light of the factual situation in view of factors such as the nature and solidity of the family relationship, duration of the sponsor’s residence and existence of family, cultural and social ties with their country of origin and the best interests of the child.

The Court considered it possible for Member States acting within this margin of appreciation to apply the derogations within the Directive in a manner consistent with protecting fundamental rights. These provisions were not inconsistent with this either in themselves or by expressly or impliedly authorising Member States to act in a way counter to the right to respect for family life, non-discrimination on grounds of age or the best interests of the child.

In any event, implementation of the Directive is subject to review by the national courts, which are obliged to make preliminary references if they encounter difficulties in interpreting it.

As the action was not well-founded, the Court found it unnecessary to consider whether the contested provisions were severable from the rest of the Directive. 


The action for annulment was dismissed. 


The Federal Republic of Germany and the Commission for the European Communities were granted leave to intervene in support of the Council of the European Union order to dismiss the application .

This was the first time the ECtHR officially cited the Charter of Fundamental Rights of the EU. It noted that while it is not a legally binding instrument, its importance was acknowledged by the Community legislature as the second recital in the preamble to the Directive made it clear that it was intended to observe not only Article 8 ECHR but also the principles recognised in the Charter.

In Advocate-Genera Kokott’s separate opinion, the application was inadmissible as the provisions that the Parliament sought to annul could not be challenged in isolation. However she considered that if the merits were considered, the Court should annul article 8 of the Directive as infringing the right to protection of family life. This was on the basis that the word ‘may’ was liable to be misunderstood as enabling Member States to enact legislation for waiting periods of up to three years for residence permits without taking into account cases of hardship as required by Article 8 ECHR.

The Legal Service of the European Commission produced a summary of the judgment, which is available here

Case Law Cited: 

Austria - Verfassungsgerichtshof (Constitutional Court, Austria) (judgment of 8 October 2003, Case G 119, 120/03-13)

CJEU - C-239/01 Germany v Commission

ECtHR - Konstantinov v The Netherlands, Application No. 50435/99

CJEU - C-260/89, ERT

CJEU - C-101/01, Lindqvist

ECtHR - GÜL v. Switzerland, Application No. 23218/94

C-274/99 Bernard Connolly v Commission of the European Communities

ECtHR - Ahmut v. the Netherlands, Application 21702/93, 28 November 1996

CJEU - C-60/00 Mary Carpenter v SSHD

CJEU - C-29/99 Commission v Council

CJEU - C-378/00 Commission v Parliament and Council

CJEU - C-244/03 France v Parliament and Council

ECtHR - Sen v.the Netherlands, no. 31465/96

CJEU - Case C‑36/04 Spain v Council

CJEU - Cases C-68/94 and C-30/95 France and Others v Commission

CJEU - C-94/00 Roquette Frères

CJEU - C-112/00 Schmidberger

CJEU - C-36/02 Omega

CJEU - Joined Cases C-297/88 and C-197/89 Dzodzi

CJEU - C-249/96 Grant

CJEU - C-2/92 Bostock

CJEU - C‑107/97 Rombi and Arkopharma

CJEU - C-374/87 Orkem v Commission of the European Communities
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