France, Council of State, 20 June 2016 387796

Identification of the case

• Non-discrimination (art. 21 CFREU)
• Integration of persons with disabilities (art. 26 CFREU)

• Article L. 314-8 of the Code on the Entry and Residence of Foreigners and the Right of Asylum.

• Article 5(1) of Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents

Summary of the case

The applicant was a Congolese national in possession since 2000 of a residence permit bearing the words "private and family life". The person concerned, who, because of his disability, had been recognised as having a disability rate of 50 per cent, applied for a residence card. The prefect refused his application on the grounds that he did not meet the means test provided for in article L. 314-8 of the Code on the Entry and Residence of Foreigners and the Right of Asylum, while renewing his temporary residence permit.

The Administrative Court of Toulouse rejected the applicant’s request for cancellation of the decision refusing him the issue of a resident card, which he believed to be discriminatory on the grounds of disability, contrary to Article 21 CFREU. The applicant subsequently appealed in cassation against the judgment of 6 November 2014 by which the administrative court of appeal of Bordeaux rejected his request for appeal.

• Administrative judicial enforcement

Annulment of the administrative decision by which the prefect refused to issue him a residence card.

EU level: On a subsidiary basis, to refer a question to the Court of Justice of the European Union for a preliminary ruling on the validity of the provisions of Article 5(1) of Directive 2003/109/EC of 25 November 2003 in the light of the fundamental principles of Union law. The court found it unnecessary to refer a preliminary question to the CJEU.

The Administrative Court of Appeal held that Article L. 314-8 of the Code on the Entry and Residence of Foreigners and the Right of Asylum was not in violation of Article 21 CFREU.

The Council of State held that Article 5(1) of the Directive makes recognition of long-term resident status conditional on the existence, for the applicant and the members of his family, of stable and regular resources sufficient to maintain themselves without recourse to the social assistance system of the Member State concerned. Such a requirement is liable to constitute indirect discrimination against persons who by reason of their disability, are unable to pursue a professional activity or can pursue only a limited activity and may thus be unable to have sufficient resources to meet their needs without recourse to the social assistance system of the Member State in which they reside. However, the court pointed out that that condition is linked to the specific characteristics of the status of long-term resident, of which a third-country national who is the holder enjoys, in particular, the right to reside for more than three months in another Member State. They considered that Article 13 of the Directive allows Member States to issue residence permits on more favourable terms than those laid down in Article 5(1), provided that such permits do not give access to the right of residence in the other Member States; that refusal to issue the long-term resident's residence permit does not prevent the issue of another residence permit and does not in itself have any consequences for the right of residence of the person concerned. Therefore, the requirement laid down by Article 5(1) of the Directive, which is justified by the legitimate objective of opening long-term resident status only to financially independent foreigners, is necessary and proportionate to the aim for which it was adopted and is not in violation of Articles 21 or 26 CFREU.

The court concluded that the requirement of personal resources in Article 5(1) of Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents to issue a long-term resident permit is not in violation because it constitutes a legitimate and necessary limitation due to the wide rights that this specific residence permit entitles to.

Role of the Charter and role of the general principles on enforcement

The applicant contended that the requirement of permanent resources provided by Article 5(1) of Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents for the issue of a long-term residence permit for third-country nationals, was in violation of Article 21 CFREU.

Article L. 314-8 of the Code on the Entry and Residence of Foreigners and the Right of Asylum:

Any foreigner who can prove uninterrupted residence in France for at least five years, in accordance with the laws and regulations in force, under cover of one of the residence permits mentioned in articles L. 313-6, L. 313-8 and L. 313-9, in 1°, 2° and 3° of article L. 313-10, sections L. 313-11, L. 313-11-1, L. 313-14 and L. 314-9, paragraphs 2, 3, 4, 5, 6, 7 and 9 of section L. 314-11 and sections L. 314-12 and L. 315-1 may obtain a resident card bearing the words "long-term resident - EC" if they have health insurance.

The decision to grant or refuse this card is taken in the light of the facts which he may invoke in support of his intention to settle permanently in France, particularly with regard to the conditions of his professional activity, if he has one, and his means of subsistence.

The applicant's means of subsistence shall be assessed in the light of his resources, which must be stable and sufficient to meet his needs. All the applicant's own resources are taken into account, regardless of the family benefits and allowances provided for in Articles L. 262-1 of the Social Action and Families Code and L. 351-9, L. 351-10 and L. 351-10-1 of the Labour Code. These resources must reach an amount at least equal to the minimum growth wage and are assessed with regard to housing conditions.

The applicant argued that Article 5(1) of the Directive disregarded Articles 21 and 26 CFREU. Article 21 CFREU was directly relevant as the prohibition of discrimination, including on the grounds of disability, which was at issue in the case. The relevance and meaning of Article 26 CFREU was not discussed in the case.

The court stated that Article 5(1) of the Directive does not disregard the combined stipulations of Articles 8 and 14 ECHR, nor Articles 21 and 26 CFREU. It also explained that the refusal to issue a long-term resident's residence permit, which does not preclude the issuance of another residence permit and which does not in itself have any consequences on the right of residence of the interested individual, does not infringe the right to respect for private and family life guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which cannot be regarded as requiring State to issue a particular type of residence permit.

Elements of judicial dialogue

• Dialogue between high court - lower instance court at national level

To uphold the decision of the lower court.

Additional notes on the decision