II European Union
| Author | Mielle Bulterman |
| Date | 01 September 2006 |
| Published date | 01 September 2006 |
| DOI | 10.1177/016934410602400308 |
| Subject Matter | Part B: Human Rights News |
II EUROPEAN UNION
MIELLE BULTERMAN
1. CASE LAW
European Court of Justice Ruling on Community Directive on Family Reunification
In this case (27 June 2006, Case C-540/03, Parliament/Council) the European
Parliament challenged the lawfulness of several provisions of Directive 2003/86 on
the right to family reunification (OJ 2003, L 251/12). This directive determines the
conditions for the exercise of the right to family reunification by third countries
nationals residing lawfully in the EU member States. The Directive requires that the
member States authorise family reunification of certain members of the third country
national’s family, such as his or her spouse and children aged less than 12 years.
However, the Directive also allows for some discretion on the part of the member States:
Article 4(1) of the Directive allows the member States to impose a condition of
integration on children aged over 12 years, who arrive independently from the rest of the
family to the host State; Article 4(6) permits the member States to require applications
for family reunification of minor children to be submitted before the age of 15; Article 8
allows for a waiting period of two to three years before a third country national can
exercise the right to family reunification. The European Parliament claimed that these
derogations from the obligations imposed by the Directive did not respect fundamental
rights. Therefore, it sought the annulment of these provisions before the ECJ.
Before addressing the contested provisions of the Directive, the ECJ determines the
rules of law in whose light the Directive must be reviewed. In addition to the European
Convention on Human Rights, the International Covenant on Civil and Political
Rights, the Convention on the Rights of the Child, and the European Social Charter
are mentioned in this context. But most important probably is the fact that the ECJ
also explicitly refers to the EU Charter of Fundamental Rights. This is noteworthy as,
so far, the EU Charter had been referred to by the Court of First Instance and by some
of the Advocates General, but never by the ECJ. In Parliament/Council, the ECJ
observes:
While the Charter is not a legally binding instrument, the Community legislature did,
however, acknowledge its importance by stating, in the second recital in the preamble to the
Directive, that the Directive observes the principles recognised not only by Article 8 of the
Netherlands Quarterly of Human Rights, Vol. 24/3 (2006) 499
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