A family member of an EU citizen who is not a national of a Member State, but who holds a permanent residence card, is exempt from the visa requirement to enter the territory of an EU country, the Court of Justice of the European Union (CJEU) ruled in a judgment handed down on Thursday 18 June (case C-754/18).
This judgment follows a complaint by Ryanair, after a fine was imposed on it by the Hungarian police because it had transported a passenger of Ukrainian nationality without a visa from London to Budapest.
According to the Hungarian authorities, the airline had not taken the measures incumbent on it to ensure that the passenger in question was in possession of the documents required to enter Hungarian territory.
However, according to Ryanair, this passenger was not required to have a visa because he had a valid permanent residence card issued by the United Kingdom in application of the European Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (2004/38).
The Court of Justice of the European Union, asked by the court of Budapest for a ruling, first of all noted that the exemption from the visa requirement enshrined in Article 5 of Directive 2004/38 is expressly granted only to holders of a card of the type: 'residence card for members of the family of a EU citizen', which was not the case here.
However, it considers that such a provision does not reflect a desire to exclude from the benefit of such an exemption persons who are not nationals of a Member State, who are family members of a EU citizen and who are in possession of a card of the 'permanent residence card' type.
Thus, the Court considers that family members of a Union citizen who hold a residence card should benefit from the exemption in question, irrespective of the type of residence card.
The CJEU further specifies that one of the conditions for obtaining a 'permanent residence card' is to have previously obtained a 'residence card for family members of an EU citizen'.
Consequently, if the acquisition of a right of permanent residence resulted in the loss of the visa exemption which a person enjoyed when he or she was in possession of a 'residence card for family members of a Union citizen', the objective of the Directive, according to the Court, of ensuring the gradual integration of Union citizens and their family members who are not nationals of a Member State, would be jeopardised.
Finally, the Court points out that Directive 2004/38, including Article 5 thereof, applies without distinction to all the Member States.
The benefit of the visa waiver therefore concerns both permanent residence cards issued by a Member State outside the Schengen area and those issued by a Member State within the Schengen area.
See the judgment: https://bit.ly/319jfyz (Original version in French by Damien Genicot)