CJEU - Case C 338/13, Marjan Noorzia v Bundesministerin für Inneres

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Country of Applicant: 
Date of Decision: 
Court Name: 
Second Chamber of the CJEU

A national law which requires the sponsor and his/her spouse to have reached the age of 21 by the date on which the application for family reunification is submitted (rather than by the date on which the decision on the application is made) is consistent with Art. 4 (5) of the Family Reunion Directive (Directive 2003/86/EC)


Council Directive 2003/86/EC on the right to family reunification determines the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States. Under Article 4(5), ‘In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her’. Austrian law requires both the sponsor and spouse to be 21 at the time the application for reunification is submitted.

Mrs Noorzia, an Afghan national, submitted an application at the Austrian embassy in Islamabad (Pakistan) for family reunification with her husband, an Afghan national living in Austria. The Austrian authorities rejected the application because, at the time it was submitted, the husband was under 21. By the time the rejection decision was made, the husband had turned 21, which prompted Mrs Noorzia to appeal, and in turn motivated the Verwaltungsgerichtshof (the Austrian Higher Administrative Court) to refer a question on the compatibility of this decision with Article 4(5).

Question referred for a preliminary ruling

Is Article 4(5) of Council Directive 2003/86/EC to be interpreted as precluding a provision under which spouses and registered partners must already have reached the age of 21 years at the time at which the application is submitted in order to be considered to be entitled to join other family members?

Decision & Reasoning: 

The CJEU advances that by not specifying whether the minimum age condition should be met at the time of the application or at the time of the decision on the application for family reunification, the EU legislature intended to leave to the Member States a margin of discretion, subject to the requirement not to impair the effectiveness of EU law.

The Court goes on to note that the Austrian law, requiring that age 21 must be reached prior to lodging an application does not prevent the exercise of the right to family reunification nor render it excessively difficult. Indeed, on the contrary, such a rule prevents forced marriage, is consistent with the principles of equal treatment and legal certainty and, finally, ensures that ‘the success of the application depends principally on circumstances attributable to the applicant and not to the administration, such as the length of time taken considering the application’ [18]. 


The Court ruled:

Article 4(5) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that that provision does not preclude a rule of national law requiring that spouses and registered partners must have reached the age of 21 by the date when the application seeking to be considered family members entitled to reunification is lodged.

Subsequent Proceedings : 



The CJEU’s answer goes against the Opinion of Advocate General Mengozzi, who argued that, on a literal interpretation of Article 4(5), the relevant time at which to consider the age of the applicant is the time of the authorities’ decision, not the time of the application. The AG reasoned that such an interpretation promotes the fundamental right to family life, does not frustrate the legitimate objective of preventing forced marriages, and counteracts an overly formalistic reading of the Directive. In addition, no provision of the Directive makes reaching the age of 21 a prior requirement before the initial making of an application for family reunification.

The judgment has been criticised on account of its employment of a strict approach towards immigrants as well as a departure from previous cases such as Chakroun, where the Court held that family reunification constitutes the general rule and that any limitations should be interpreted strictly.

Georgios Milios, The CJEU’s approach on the minimum age requirement for spouses in an application for family reunification, July 2014

Authentic Language: 
Country of preliminary reference: 
National / Other Legislative Provisions: 
Austria - Niederlassungs- und Aufenthaltsgesetz (Settlement and Residence Act)