Requirement of sufficient personal financial resources for residence permit

According to the first subparagraph of Article 1(1) of Council Directive90/364/EEC of 28 June 1990 on the right of residence, Member States shall grantthe right of residence to nationals of Member States who do not enjoy this rightunder other provisions of Community law and to members of their families,provided that they themselves and the members of their families are covered bysickness insurance in respect of all risks in the host Member State and havesufficient resources to avoid becoming a burden on the social assistance systemof the host Member State during their period of residence.

In the opinion of the Belgian authorities, the first subparagraph of Article1(1) of this Directive implied that a citizen of the EU who relied on theprotection of the Directive had to have sufficient personal resources.

The European Commission complained that the Kingdom of Belgium, in applyingthe Directive, took into account only the personal resources of the EU citizenseeking right of residence or of that person’s spouse or child to the exclusionof third person resources such as a partner with whom he or she has no legallink.

The ECJ stated that it is sufficient for nationals of Member States to ‘have’necessary resources and that the provision lays down no requirement whatsoeveras to their origin. The correctness of that interpretation is reinforced by thefact that provisions laying down a fundamental principle such as the freemovement of persons must be interpreted broadly. The interpretation of“sufficient resources” in the Directive, meaning that the person concerned musthave such resources and not rely on resources of a family member accompanyingthat person, would add to that concept as formulated in the Directive. Furtherthe requirement on the origin of the resources, which not being necessary forthe objective pursued - namely the protection of public finances of MemberStates, would constitute disproportionate interference with the exercise of thefundamental right of freedom of movement and residence upheld by Article 18 ofthe ECT. The Kingdom of Belgium only accepted that such income might be takeninto account where it comes from a person connected with the beneficiary by alegal link, which obliges that person to provide resources for thebeneficiary.

According to the ECJ, the requirement of a legal link between the providerand recipient of resources is disproportionate in that it goes beyond what isnecessary to achieve the purpose of the Directive, which is the protection ofpublic finances in the host Member State. The loss of sufficient resources isalways an underlying risk whether those resources are personal or come from athird party, even where that third party has undertaken to support the holder ofthe residence permit financially. The source of those resources thus has noautomatic effect on the risk of such a loss arising, as the materialization ofsuch a risk is the result of a change of circumstances. It is for that reasonthat in order to protect the legitimate interests of the host Member State, theDirective contains provisions allowing that State to act in the event of anactual loss of financial resources, to prevent the holder of the residencepermit from becoming a burden on the public finances of that State. Andaccording to Article 3 of this Directive, the right of residence shall remainfor as long as beneficiaries of that right fulfill the conditions laid down inArticle 1 of this Directive.

Further according to the laws of the Kingdom of Belgium, an EC foreignnational has a right to live in Belgium provided that person is covered bysickness insurance in respect of all risks in Belgium and provided that he orshe has sufficient resources not to become a burden on the public authorities.Before the end of the fifth month after the application for establishment, an ECforeign national must provide evidence that he or she meets these conditions.The Ministry or its deputy shall refuse establishment where the conditions forestablishment are not met. The mayor or deputy shall refuse establishment wherethe documents required have not been produced within the prescribed period offive months. In both cases, the foreign national shall be notified of thedecision including an order to leave the territory where appropriate. The orderto leave the territory is enforceable within 15 days after expiry of thevalidity of the registration certificate.

The Commission submitted that a citizen of the EU can only be deported, otherthan on grounds of public policy, public security or public health, if theperson concerned does not meet the conditions laid down by Community law forgranting the right of residence or no longer meets those conditions. Thedeportation order served by the Belgian authorities on the EU citizen wasactually a penalty imposed because the applicant failed to produce within theprescribed period the documents required for issue of a residence permit.

According to the ECJ such automatic deportation impairs the very substance ofthe right of residence directly conferred by Community law. Even if a MemberState may decide, where necessary, to deport a national of another Member Statewho is unable to produce within the required period the documents proving thathe or she fulfils the necessary financial conditions, that decision is deemeddisproportionate where the deportation is automatic. Since deportation isautomatic under Belgian legislation, the legislation does not take into accountwhy the person concerned did not take the necessary administrative measures orwhether he or she can establish the fulfillment of conditions for right ofresidence under Community law.