Judgment of Court of justice of the European communities of June, 27, 2006, European Parliament/Council of European Union, case C-540/03 -: Restrictions to family reunification of third-country nationals vs. respect for human rights

The Decision of the ECJ in the European Parliament v Council case clarifies the effects of the general principle of respect for Fundamental Rights on both the European institutions and Member States. Regarding this matter, the European Parliament tried to invalidate several provisions of the Directive 2003/86 on the right to family reunification. According to this Directive, any third-country national residing lawfully in a participating Member State is entitled to have the host State approve the subsequent entry and residence of his or her children by way of family reunification. Nevertheless, the contested provisions permit Member States to restrict family reunification in certain circumstances. The Parliament alleged that these provisions were not compatible with the duty of respect for family life, as guaranteed by the ECHR and the Charter. The Court rejected the Parliament's allegation, which tried to show that contested provisions could be interpreted as an authorisation for Member States to infringe Fundamental Rights, given the wide discretion left to national authorities. Citing Wachauf the ECJ emphasized that Member States were obliged, as far as possible, to apply Community rules in accordance with these rights, which were binding on them when they implemented Community rules. On the one hand, the Court's approach shows a high degree of confidence in the capacity of national legislators and courts to strike the right balance between the exigencies of family immigration policy and Fundamental Rights. But, on the other hand, the reference to Fundamental Rights in the second recital in the preamble to the Directive raises a problem of legal certainty. In this regard, instead of reminding Member States about their responsibilities concerning the respect for Fundamental Rights, the Preamble asserts that the Directive, as it is formulated, respects these rights. If Member States rely on that assessment on the part of the Community legislature, they could not consider any additional issues about the respect for these rights.