Provisional text

delivered on 3 April 2025 (1)

Case C‑525/23 [Oti] (i)

OS

Országos Idegenrendészeti Főigazgatóság

(Request for a preliminary ruling from the Fővárosi Törvényszék (Budapest High Court, Hungary))

( Reference for a preliminary ruling – Migration – Directive (EU) 2016/801 – Conditions of entry and residence of third-country nationals for the purposes of voluntary service – Refusal to renew a residence permit – Article 7(1)(e) – ‘Sufficient resources’ – Case-law of the national supreme court requiring that the resources be acquired on a permanent basis and that declarations as to the nature of the resources be consistent – Compatibility of those requirements with EU law )

I.Introduction

The present case concerns the interpretation of Directive (EU) 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing. (2) More specifically, the Fővárosi Törvényszék (Budapest High Court, Hungary) seeks clarification from the Court of Justice as regards the condition of entry and residence, laid down in Article 7(1)(e) of that directive, that the third-country national be in receipt of ‘sufficient resources’.

In that regard, the Fővárosi Törvényszék (Budapest High Court) enquires as to the compatibility with EU law of national practices imposing, first, that such resources be acquired on a permanent basis by the person concerned and, second, that that person prove the nature of such resources in a consistent manner. Those issues arise in the context of a dispute between a third-country national, OS, and the Országos Idegenrendészeti Főigazgatóság (National Directorate-General for Aliens Policing, Hungary; ‘the national immigration authority’) regarding the rejection of his application for the renewal of a residence permit for the purposes of voluntary service.

From the outset, I note that the condition relating to ‘sufficient resources’ is, in and of itself, not unknown to the Court, since there is already case-law on how it must be interpreted within the context of other instruments of EU migration law and free movement. However, the present case provides the Court with the opportunity to interpret it for the first time within the context of the application of Directive 2016/801.

II.Legal framework

A.European Union law

Recitals 20, 21, 41 and 42 of Directive 2016/801 provide:

‘(20) This Directive should support the aims of the European Voluntary Service to develop solidarity, mutual understanding and tolerance among young people and the societies they live in, while contributing to strengthening social cohesion and promoting young people’s active [citizenship]. In order to ensure access to the European Voluntary Service in a consistent manner across the Union, Member States should apply the provisions of this Directive to third-country nationals applying for the purpose of European Voluntary Service.

(21) Member States should have the possibility to apply the provisions of this Directive to school pupils, volunteers other than those under the European Voluntary Service and au pairs, in order to facilitate their entry and residence and ensure their rights.

…

(41) In case of doubts concerning the grounds of the application for admission, Member States should be able to carry out appropriate checks or require evidence in order to assess, on a [case-by-case] basis, the applicant’s intended research, studies, training, voluntary service, pupil exchange scheme or educational project or au pairing and fight against abuse and misuse of the procedure set out in this Directive.

(42) Where the information provided is incomplete, Member States should inform the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. Where additional information has not been provided within that deadline, the application could be rejected.’

Pursuant to Article 1 of that directive, which is entitled ‘Subject matter’:

‘This Directive lays down:

(a) the conditions of entry to, and residence for a period exceeding 90 days in, the territory of the Member States, and the rights, of third-country nationals, and where applicable their family members, for the purpose of research, studies, training or voluntary service in the European Voluntary Service, and where Member States so decide, pupil exchange schemes or educational projects, voluntary service other than the European Voluntary Service or au pairing;

…’

Article 2(1) of Directive 2016/801 provides:

‘This Directive shall apply to third-country nationals who apply to be admitted or who have been admitted to the territory of a Member State for the purpose of research, studies, training or voluntary service in the European Voluntary Service. Member States may also decide to apply the provisions of this Directive to third-country nationals who apply to be admitted for the purpose of a pupil exchange scheme or educational project, voluntary service other than the European Voluntary Service or au pairing.’

Article 5 of that directive, which is entitled ‘Principles’, states:

‘1. The admission of a third-country national under this Directive shall be subject to the verification of documentary evidence attesting that the third-country national meets:

(a) the general conditions laid down in Article 7; and

(b) the relevant specific conditions in Article 8, 11, 12, 13, 14 or 16.

…’

Article 7 of Directive 2016/801, which is entitled ‘General conditions’, provides:

‘1. As regards the admission of a third-country national under this Directive, the applicant shall:

…

(e) provide the evidence requested by the Member State concerned that during the planned stay the third-country national will have sufficient resources to cover subsistence costs without having recourse to the Member State’s social assistance system, and return travel costs. The assessment of the sufficient resources shall be based on an individual examination of the case and shall take into account resources that derive, inter alia, from a grant, a scholarship or a fellowship, a valid work contract or a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs.

…’

Article 20(1) of that directive, entitled ‘Grounds for rejection’, states:

‘1. Member States shall reject an application where:

(a) the general conditions laid down in Article 7 or the relevant specific conditions laid down in [Article] 8, 11, 12, 13, 14 or 16 are not met;

(b) the documents presented have been fraudulently acquired, or falsified, or tampered with;

(c) the Member State concerned only allows admission through an approved host entity and the host entity is not approved.’

B.National law

Paragraph 2(d) of the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény (Law No II of 2007 on entry and residence of third-country nationals; ‘Law No II of 2007’), in its version applicable to the dispute in the main proceedings, establishes which relatives are considered to be ‘family members’ of third-country nationals. Under Paragraph 13(1)(f) of that law, third-country nationals may remain in Hungary’s territory for a period exceeding 90 days within a period of 180 days only if, during the whole duration of their stay, they have sufficient resources to cover their subsistence costs and accommodation, including the cost of return travel.

Paragraph 29(5) of the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény végrehajtásáról szóló 114/2007. (V. 24.) Korm. rendelet (Government Decree 114/2007 of 24 May approving the implementing regulations for Law No II of 2007; ‘Government Decree 114/2007’) states, in essence, that a third-country national is deemed to have sufficient resources for his or her stay in Hungary if that person or a ‘family member’ is in a position to defray the relevant subsistence costs, accommodation, return travel and, where necessary, medical care, with income or capital which he or she has acquired lawfully and has at his or her disposal. Paragraph 29(6) of that government decree enumerates how the existence of means of subsistence can be proved.

III.The facts in the main proceedings, the procedure before the Court and the questions referred

The applicant in the main proceedings, OS, is a third-country national. He held a residence permit for undertaking studies in Hungary that was valid until 30 June 2020.

On 5 June 2020, the applicant submitted an application to renew that residence permit with a view to carrying out voluntary work at the Mahatma Gandhi Emberi Jogi Egyesület (Mahatma Gandhi Human Rights Organisation; ‘the Organisation’) in Hungary. He indicated that, during the period of volunteering, he intended to finance his subsistence with the help of his uncle, a British national. Furthermore, he enclosed his contract with the Organisation, a statement of the bank account in his name showing six months’ worth of transactions, a declaration of responsibility made by his uncle and documents providing evidence of his uncle’s income.

The competent regional immigration authority refused the application to renew the residence permit and decided to expel the applicant from the territory of the European Union. That authority explained that given that OS’s uncle could not be considered to be a ‘family member’, within the meaning of Paragraph 2(d) of Law No II of 2007, he could not cover the subsistence costs of the applicant in Hungary and, therefore, the evidence enclosed in the application could not be taken into account under Paragraph 29(5) and (6) of Government Decree 114/2007.

The applicant challenged that decision before the national immigration authority. He stated that he had concluded a loan agreement with his uncle and enclosed a declaration in which the latter undertook to provide him with a certain amount for the duration of his volunteering service by means of, inter alia, bank transfers. However, the national immigration authority also took the view that the applicant’s uncle was not a family member and could therefore not cover his subsistence costs in Hungary.

OS brought an administrative action against that decision before the Fővárosi Törvényszék (Budapest High Court). Before that court, he maintained that his uncle could financially assist him, not in the form of a loan but of a gift. Furthermore, he argued that the national immigration authority had acted unlawfully when it had decided not to take account of the resources provided by the applicant’s uncle on the mere ground that the latter was not a ‘family member’, within the meaning of national law.

In its judgment, the Fővárosi Törvényszék (Budapest High Court) agreed with the applicant on that point. It thus annulled the decisions of the regional and national immigration authorities and ordered the regional immigration authority to initiate a new procedure.

However, that judgment was set aside by the Kúria (Supreme Court, Hungary). That court considered that, in order to fulfil the condition relating to ‘sufficient resources’, laid down in Article 7(1)(e) of Directive 2016/801 and as transposed into national law, a third-country national must show that he or she has acquired the relevant resources either from a ‘family member’, within the meaning of Paragraph 2(d) of Law No II of 2007, or as his or her own income and/or assets, that is to say, on a permanent basis, and with the ability to dispose of those resources as his or her own without any restriction. Furthermore, it is necessary for the declarations of the applicant made in that regard to be consistent. In the light of those elements, the Kúria (Supreme Court) ordered the Fővárosi Törvényszék (Budapest High Court) to initiate new proceedings.

In the context of those new proceedings, the Fővárosi Törvényszék (Budapest High Court), harbouring doubts as to the compatibility with EU law of the criteria set out by the Kúria (Supreme Court) in its order, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the practice of a Member State which establishes as additional requirements for accepting that an applicant for residency, who is a national of a third State and intends to carry out voluntary work, has means of subsistence – after he [or she] has proved that his [or her] relative who is not regarded as a family member can and does provide, from his [or her] lawfully acquired income and by means of regular transfer of the amount required for subsistence, sufficient income for the applicant’s subsistence and for his [or her] return travel – [and] that the applicant must state precisely whether the amount received is income or [assets]and, moreover, must provide documentary evidence of the legal basis on which he [or she] acquired that income or capital and must have the amount or the capital at his [or her] disposal, as his [or her] own, on a permanent and unrestricted basis, consistent with the discretion afforded to Member States by Article 7(1)(e) of [Directive 2016/801], having regard to the objectives set out in recitals 2 and 41 and Article 1(a) and Article 4(1) of that directive?

(2) Having regard to the principle of the primacy of EU law, fair treatment in accordance with Article 79 TFEU, freedom of residence as enshrined in Article 45 of the Charter [of Fundamental Rights of the European Union (“the Charter”)] and the rights to an effective remedy and to a fair trial enshrined in Article 47 of the Charter, as well as recitals 54 and 61 of [Directive 2016/801], in particular the principle of legal certainty, does the fact that, as a whole, the national legislation relating to residence permits does not contain the requirements set out in the first question referred, such that those requirements have not been established by the legislature, but rather by the highest court of the Member State in its application of the law, which has to serve as precedent, have a bearing on the answer to the first question referred?

(3) To the extent that, for the purpose of accepting that the applicant for residency has means of subsistence, the declaration and documentary evidence relating to the abovementioned requirements, as set out in the national case-law, are also necessary, must Article 7(1)(e) [of Directive 2016/801] be interpreted, having regard to the requirement for fair treatment laid down by Article 79 TFEU, the rights to an effective remedy and to a fair trial conferred by Article 47 of the Charter, the requirement for legal certainty referred to in recital 2 [of Directive 2016/801] and the content of recitals 41 and 42 [of that directive] with regard to procedural safeguards, as meaning that the practice of a Member State is consistent with the provisions of the legislation only if the invitation addressed to the applicant to state and prove coherently and consistently that he meets the additional requirements considered necessary is accompanied by a warning of the legal consequences, and the application for a residence permit can be refused on the ground that the applicant has failed to provide evidence relating to the requirements established in the case-law only if the rights of the person concerned and the procedural safeguards have thereby been observed?’

The request for a preliminary ruling, dated 26 June 2023, was lodged at the Registry of the Court of Justice on 14 August 2023. The Hungarian Government and the European Commission submitted written observations and were represented at the hearing, which took place on 20 November 2024.

IV.Analysis

Directive 2016/801, which sets out the conditions for entry and residence of third-country nationals, is premised on the rationale that ‘immigration from outside the Union is one source of highly skilled people’ and that those people ‘play an important role in forming the Union’s key asset, human capital, and in ensuring smart, sustainable and inclusive growth’. (3) As is the case for several other directives that regulate migration or free movement in the European Union, (4) one of those conditions is that the person concerned be in receipt of sufficient resources to cover his or her own subsistence and return travel costs and not represent a financial burden on the social assistance system of the Member State in which he or she is staying. However, whereas in some of those other instruments the requirement of ‘sufficient resources’ is paired with other conditions, with the result that the resources must not only be sufficient but also stable and regular, (5) such is not the case under Directive 2016/801. Indeed, Article 7(1)(e) thereof only requires that the resources be ‘sufficient’. (6)

22.Against that background, the questions of the referring court arise from the fact that the applicant in the main proceedings – a third-country national applying for a residence permit for the purposes of voluntary service – has made conflicting declarations as to the nature of the resources to cover his subsistence costs during his stay in Hungary. Initially, he claimed that those resources were granted to him by his uncle under a loan agreement, but later he stated that they were actually gifted to him by his uncle. That court has been instructed by the Kúria (Supreme Court) to consider that a residence permit cannot be granted in such a situation. Indeed, the Kúria (Supreme Court) considers, first, that the resources presented by an applicant for a residence permit under Directive 2016/801 must either have been granted by a ‘family member’, as defined under national law (which is not the case of OS’s uncle), or have been acquired by the applicant as his or her own income or assets, that is to say, on a permanent basis (which the referring court understands to mean that the resources must have been acquired as a gift and not a loan, if received from a third person who, like OS’s uncle, does not qualify as a ‘family member’) and with the ability to dispose of them as his or her own, without any restriction. Second, the applicant must prove the nature of such resources in a consistent manner (together, ‘the requirements in dispute’).

23.Specifically, by the first and third questions, the Fővárosi Törvényszék (Budapest High Court) enquires, in essence, as to the compatibility of those requirements with EU law. That court notes that, in its view, Member States are not allowed to supplement the content of Article 7(1)(e) of Directive 2016/801 with additional conditions. Furthermore, since it has been proven, in casu, that OS’s uncle is a solvent individual and obtains his income lawfully, the relevance of whether OS receives the funds from him in the form of a loan or in the form of a gift and has acquired them on a permanent basis is debatable.

24.In the sections that follow, I shall begin by addressing the arguments of the Hungarian Government as to the admissibility of the questions referred (A) before turning to the issues mentioned in the previous point (B). I shall then provide an answer to the second question, which concerns the fact that the requirements in dispute have been imposed not in the national legislation relating to residence permits, but in the case-law of the highest court of the Member State concerned (C).

A.Admissibility

25.The Hungarian Government contends that the questions referred, which concern the interpretation of Directive 2016/801, are inadmissible because the dispute in the main proceedings does not come within the scope of that directive.

26.In that regard, that government makes two arguments. First, it states that in his application, OS did not indicate that he was applying for a residence permit for the purposes of ‘voluntary service’, within the meaning of Directive 2016/801; instead, he filed his application under ‘other purposes’ (as provided for under national law) – such ‘other purposes’ not being covered by that directive. (7) Second, it argues that even if OS were, in fact, to be regarded as having filed his application for a residence permit for the purposes of ‘voluntary service’, he still would not come within the scope of that directive. In that regard, the Hungarian Government notes that Hungary has made use of the possibility, laid down in Article 1(a) and Article 2(1) of Directive 2016/801, read in the light of recital 21 thereof, to apply the provisions of that instrument not only to third-country nationals who wish to participate in the European Voluntary Service, but also to those who, like the applicant, seek to undertake other voluntary service. However, in such a situation, it is necessary for the voluntary service scheme organisation in question to qualify as a ‘host entity’, within the meaning of Article 3(14) of Directive 2016/801. That is, however, not the case of the Organisation.

27.In my view, the arguments made by the Hungarian Government can easily be rejected.

28.First, in response to the second argument made by that government, I note that the terms ‘host entity’, as defined in Article 3(14) of Directive 2016/801, do not appear in Article 2 of that directive, which is entitled ‘Scope’. However, they are used in Article 14 thereof, which lists the specific entry and residence conditions for volunteers.

29.Contrary to the Hungarian Government, I understand that whether the voluntary service scheme organisation in question qualifies as a ‘host entity’ is therefore relevant to the assessment of whether those conditions are met, and not to the preliminary issue of whether an applicant comes within the scope of that instrument.

30.Second, I recall that, in accordance with settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, the Court is, in principle, bound to give a ruling where the questions referred concern the interpretation of EU law and where those questions enjoy a presumption of relevance. The Court may refuse to rule on them only where it is manifest that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer. (8)

31.None of those situations applies to the present case.

32.In particular, it does not seem to me that the interpretation requested, which concerns the condition relating to ‘sufficient resources’, in Article 7(1)(e) of Directive 2016/801, is unrelated to the facts of the main action or its object.

33.Indeed, regardless of the specific category under which OS filed his application for a residence permit (be it ‘voluntary service’ or ‘other purposes’), that application was, at any rate, regarded by the competent immigration authorities and national courts as having been made for the purposes of ‘voluntary service’ and analysed by those authorities and courts under the prism of, inter alia, the general conditions listed in Article 7 of Directive 2016/801, including the condition relating to ‘sufficient resources’ (Article 7(1)(e)).

34.Furthermore, at the hearing, the Hungarian Government admitted that the fact that the Organisation could not be regarded as a ‘host entity’, within the meaning of Article 3(14) of Directive 2016/801, was not the reason for which OS’s application for a residence permit had been denied, since the decisions of the competent regional and national immigration authorities were based exclusively on the ground that he had not demonstrated that he had ‘sufficient resources’, within the meaning of Article 7(1)(e) of that directive.

35.It follows that the solution of the dispute in the main proceedings depends on the interpretation of that condition and that the questions referred are admissible.

B.The compatibility assessment (Questions 1 and 3)

36.As I have already explained in points 22 and 23 above, in its request for a preliminary ruling the referring court wonders whether, in order to prove that the applicant is in receipt of ‘sufficient resources’, within the meaning of Article 7(1)(e) of Directive 2016/801, it is sufficient that the person taking responsibility for providing such resources (in casu, the applicant’s uncle) demonstrates his or her capacity to provide them and declares that they are intended to cover the subsistence costs of the applicant during his or her stay as well as his or her return travel costs.

37.By contrast, that court understands the Kúria (Supreme Court) to be of the view that if the resources originate from a third person who is not a ‘family member’, within the meaning of national law (as is the case of OS’s uncle), then the applicant must show that those resources have actually been acquired by him or her as his or her own income or assets, that is to say, on a permanent basis (as a gift, not a loan) and that he or she can dispose of them as his or her own without any restriction.

38.By the first question, the referring court raises doubts as to the compatibility of that requirement with the objectives of that directive (as reflected in recitals 2 and 41 and Article 4(1) thereof).

39.The third question, for its part, originates from the finding on the part of the Kúria (Supreme Court) that, in the main proceedings, OS failed to establish, in a consistent manner, the nature of the resources available to him, in particular, how they were acquired and their permanent character. The referring court again wonders whether that requirement complies with EU law (in particular, with Article 79 TFEU, (9) Article 47 of the Charter (10) and recitals 2, 41 and 42 of Directive 2016/801), given that, during the administrative procedure, OS was not informed of the fact that his application for a residence permit could be refused if his declarations in that regard were not consistent.

40.In the following sections, I shall examine each of those issues in turn.

1.The requirement that the resources be acquired on a permanent basis

41.Directive 2016/801 does not define the concept of ‘sufficient resources’. Article 7(1)(e) thereof only mentions that, for the purposes of establishing whether a person applying for a residence permit is in receipt of ‘sufficient resources’, such resources include those that ‘derive, inter alia, from a grant, a scholarship or a fellowship, a valid work contract or a binding job offer or a financial undertaking by a pupil exchange scheme organisation, an entity hosting trainees, a voluntary service scheme organisation, a host family or an organisation mediating au pairs’. In addition, Article 7(3) of that directive provides that ‘Member States may indicate a reference amount which they regard as constituting “sufficient resources”’. Those provisions also clarify that the assessment of sufficient resources shall be ‘based on an individual examination of the case’.

42.To date, only two judgments of the Court have concerned the interpretation of Directive 2016/801 and neither of them specifically concerned the concept of ‘sufficient resources’ or other substantive requirements under that directive. (11) However, the Court has stated, as regards Directive 2004/114/EC, (12) which applied prior to the entry into force of Directive 2016/801, that Member States are, in essence, required to issue a residence permit for one of the listed purposes to an applicant who meets the general and specific conditions laid down in Directive 2004/114, since those conditions are exhaustive. (13)

43.It is clear to me that the same applies as regards Directive 2016/801, since Article 5(3) thereof states that ‘where all the general conditions and relevant specific conditions are fulfilled, the third-country national shall be entitled to an authorisation.’ (14) It follows that the ‘general conditions’ listed in Article 7 of that directive, including the condition relating to ‘sufficient resources’, are exhaustive and, therefore, cannot be supplemented by other general conditions.

44.Having said that, I consider that the concept of ‘sufficient resources’ has a double dimension. Indeed, whether the applicant is in receipt of sufficient resources depends on, first, the amount of those resources (which must be sufficient to cover that person’s subsistence costs and return travel costs) and, second, the time during which those resources are available to him or her (since he or she must show that ‘during the planned stay [he or she] will have sufficient resources to cover subsistence costs without having recourse to the Member State’s social assistance system, and return travel costs’). (15)

45.In that regard, I recall that the Court has already ruled, as regards other instruments of EU migration law, that the competent authorities of the Member States are not precluded from examining whether the condition relating to ‘sufficient resources’ is met by taking into account whether those resources will be retained beyond the date of submission of the application. (16) In my view, the same is true within the context of the application of Directive 2016/801. A prospective assessment aimed at determining whether during the entire course of his or her stay the person concerned will be able to cover his or her subsistence costs is required. Indeed, to take an extreme example (which does not correspond to the facts in the main proceedings), if a third-country national applies for a residence permit on the basis of Directive 2016/801, claiming that he or she is in receipt of ‘sufficient resources’ while actually being under the obligation to repay the corresponding amount immediately after his or her arrival, does he or she meet the condition laid down in Article 7(1)(e) of that directive? I think not.

46.Such a prospective assessment is, in my view, all the more necessary since it results from Article 7(1)(e) of Directive 2016/801 that the condition relating to ‘sufficient resources’ is essential to ensure that third-country nationals who are granted a residence permit for one of the purposes listed in that directive can support themselves, throughout the course of their stay, without having recourse to the social assistance of the Member States, (17) and that certain categories of applicants, such as unpaid volunteers, (18) who can apply for a residence permit under that directive, do not earn any money during their stay.

47.However, I do not share the view of the Kúria (Supreme Court) that the resources must necessarily have been permanently acquired by a third-country national applying for a residence permit under that directive. Imposing that requirement would, in my view, go far beyond the wording of Article 7(1)(e) of Directive 2016/801 and the objectives of that instrument. Indeed, it would essentially mean (as the referring court suggests in its reference for a preliminary ruling) that such a person could be denied a residence permit simply because he or she may have to reimburse the sum of money which has been lent to him or her by another person to cover his or her subsistence and return travel costs – even if he or she would only have to do so after the end of his or her stay.

48.In that regard, I recall that, as I have stated in point 21 above, Directive 2016/801 aims to promote and facilitate the migration of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing. Recital 6 of that directive indicates that it aims ‘at fostering people-to-people contacts and mobility’ and recital 7 thereof states that migration under that directive ‘constitutes a form of mutual enrichment for the migrants concerned, their country of origin and the Member State concerned, while strengthening cultural links and enhancing cultural diversity’. Recital 8 of Directive 2016/801 indicates, for its part, that that instrument should advance the European Union ‘in the global competition for talent’, while recital 21 thereof refers to the objective of ‘facilitat[ing]’ the entry and residence of volunteers. In my view, those recitals confirm that the purpose of that directive is not to create obstacles to the obtaining of a residence permit for the categories of third-country nationals who come within its scope, but merely to ensure that certain exhaustive conditions are complied with, the most important of which being that those persons have the resources necessary in order not to become a burden on the Member State hosting them.

49.I recall that, unlike with certain other instruments of EU migration law, namely Directive 2003/109 and Directive 2003/86, which concern stays of a longer duration, the EU legislature has not deemed it necessary, in Article 7(1)(e) of Directive 2016/801, to require that the resources be ‘stable’ or ‘regular’ in addition to ‘sufficient’. Accordingly, I fail to see how Member States could require a person applying for a residence permit under that directive to prove, in absolute terms (that is to say, beyond the actual length of his or her planned stay), the stability or regularity – let alone the permanent character – of the resources that he or she is in receipt of. (19) Indeed, if the EU legislature intended for conditions other than the ‘sufficient’ character of the resources to apply, it would have expressly stated so, as it has done in those other directives.

50.At any rate, even within the context of the application of those other instruments, the applicant must not have acquired the relevant resources on a permanent basis. Indeed, the Court has ruled, for example, as regards Directive 2003/86 (which concerns family reunification), that a prospective assessment of the likelihood of the sponsor retaining, or failing to retain, the necessary stable and regular resources is sufficient. (20)

51.In my view, it follows from those elements that the grant of a residence permit under Directive 2016/801 cannot be refused on the mere ground that the resources that the applicant have not been acquired on a permanent basis (for example, because they are subject to a loan).

52.Before I conclude on this section, I wish to make two further remarks.

53.First, I agree with the Hungarian Government that, whereas the general conditions listed in Article 7 of Directive 2016/801 are exhaustive, the types of resources listed in Article 7(1)(e) thereof, for the purposes of verifying whether the condition relating to ‘sufficient resources’ is met, are not. I also agree that Member States may well, in order to determine whether that condition is met, require applicants to indicate the nature of the resources that they claim to be in receipt of or how they acquired them. Indeed, as both the Hungarian Government and the Commission stated at the hearing, and as recital 41 of that instrument confirms, Member States are allowed to ‘carry out appropriate checks or require evidence in order to assess, on a [case-by-case] basis, the applicant’s intended research, studies, training, voluntary service, pupil exchange scheme or educational project or au pairing and fight against abuse and misuse of the procedure set out in [that] Directive’. (21) In addition, the Court has already ruled, in other contexts, that the nature of the resources may be a relevant factor in establishing whether the condition relating to ‘sufficient resources’ is met. (22)

However, in my view, the discretion which Member States enjoy in that regard cannot be relied upon to elaborate on requirements that amount to more than just rules of evidence and, in fact, add substantive conditions to those already exhaustively laid down in Article 7 of Directive 2016/801 (for example, by making the grant of a residence permit conditional upon the fact that the resources are acquired on a permanent basis). In that regard, one must not lose sight of the fact that Article 7(1)(e) of Directive 2016/801 merely requires the applicant to show that ‘during the planned stay’ [he or she] will have sufficient resources to cover subsistence costs without having recourse to the Member State’s social assistance system, and return travel costs’. (23) As the Commission explained at the hearing, the elements of proof submitted by an applicant must be analysed with regard to the exhaustive conditions set out in Directive 2016/801 only.

55.Second, I note that a requirement such as that imposed, in casu, by the Kúria (Supreme Court) is in fact made up of several components. Indeed, that court essentially requires that resources originating from a third party which is not a ‘family member’, within the meaning of national law, not only be acquired in a specific way (permanently, that is to say, as a gift, not a loan) from such a person, but also be at the disposal of the applicant, without any restriction, so that they effectively form part of his or her own ‘assets or income’.

56.Concretely, in casu, that means that OS’s uncle cannot pay for OS’s subsistence costs himself, directly. OS would need to show that the money would be transferred from his uncle to him and effectively become his own before being used to cover his subsistence costs. Such a requirement precludes, in practice, taking into account resources originating from third parties which are not ‘family members’, as defined in national law.

57.In that regard, I recall that, as regards other instruments (namely Directive 2003/109 on long-term residents and Directive 2003/86 on family reunification), the Court has ruled that the concept of ‘resources’ referred to in those instruments does not concern solely the ‘own resources’ of the applicant, but may also cover the resources made available to that applicant by a third party. (24) Furthermore, it has stated that ‘an interpretation of the condition concerning the sufficiency of resources as meaning that the person concerned must have such resources himself [or herself]’ would add a requirement as to the origin of the resources which is not necessary for the attainment of the objective pursued, namely the protection of the public finances of the Member States. (25)

58.In my view, the same holds true as regards Directive 2016/801. Imposing on an applicant the requirement that resources received from a third party (which is not a ‘family member’) be at the applicant’s disposal, without any restriction, so that they effectively form part of his or her own income or assets is neither required under that directive (which exhaustively lists the substantive conditions which must be fulfilled) nor necessary to achieve its objectives. Indeed, as the Court has held, the ‘loss of sufficient resources is always an underlying risk, whether those resources are personal or come from a third party’. (26)

2.The requirement that declarations as to the nature of the resources be consistent

59.The third question concerns the requirement imposed by the Kúria (Supreme Court) that the declarations made by a third-country national applying for a residence permit under Directive 2016/801 be consistent as regards the nature of the resources available to him or her, in particular, how they were acquired and their permanent character; otherwise, his or her application could be rejected. The referring court wonders whether that requirement is compatible with EU law and, in particular, with Article 79 TFEU, Article 47 of the Charter and recitals 2, 41 and 42 of Directive 2016/801.

60.In that regard, I begin by recalling that, as I have stated in point 53 above, Member States may ‘carry out appropriate checks or require evidence’ in order to, inter alia, ‘fight against abuse and misuse of the procedure set out in [that] Directive’. Furthermore, Article 7 of Directive 2016/801 is clear as to the fact that it falls on the applicant for a residence permit under that directive to adduce the necessary evidence in support of his or her application. In other words, it is not for the national authorities to conduct checks which go beyond the evidence provided by the applicant.

61.In my view, it follows from the abovementioned provisions that, with a view to fight against abuse and misuse of the procedure set out in Directive 2016/801, national authorities are entitled to look for elements that could reveal the existence of such abuse or misuse. Such elements could well include the fact that the applicant has made inconsistent declarations before the competent national authorities; even though that fact may not necessarily be sufficient, in and of itself, to establish the existence of abuse or misuse of the procedure.

62.At the same time, and notwithstanding the fact that, as I have stated in point 60 above, it is for the applicant to adduce the necessary evidence in support of his or her application, it results from Article 34(3) of Directive 2016/801, read in the light of recital 42 thereof, that if the information provided is incomplete, the Member State concerned must inform the applicant and provide him or her with a reasonable opportunity to provide it. Article 35 of that instrument further provides, in its first paragraph, that ‘Member States shall make easily accessible to applicants the information on all the documentary evidence needed for an application and information on entry and residence conditions, including the rights, obligations and procedural safeguards, of the third-country nationals falling under the scope of [that] directive and, where applicable, of their family members.’ In addition, Article 20(4) of Directive 2016/801 states that ‘any decision to reject an application shall take account of the specific circumstances of the case and respect the principle of proportionality’.

63.In my view, it follows from those various provisions that, unless there is evidence of abuse or misuse of the procedure laid down in that instrument, the circumstance that an applicant has made inconsistent declarations must be regarded by the national competent authorities as an indication that the information in the applicant’s file is incomplete and, therefore, triggers the obligation, provided in Article 34(3) of Directive 2016/801, to inform the applicant of the inconsistency and provide him or her with a reasonable opportunity to clarify his or her situation. A decision to reject the application without providing such an opportunity would, I believe, fail to respect the principle of proportionality and, thereby, infringe Article 20(4) of that directive.

64.I also agree with the referring court that if, at the time of making his or her application or prior to it, the applicant was not informed of the fact that any inconsistency in his or her declarations as to the nature of the resources available to him or her, in particular, how they were acquired and their permanent character, could lead to his or her application being rejected, then rejecting his or her application on that basis without giving him or her any opportunity to clarify his or her situation not only infringes Article 35 of Directive 2016/801, but also breaches the principles of legal certainty and transparency, mentioned in recital 2 of that directive. Indeed, the application would be rejected on a ground not expressly provided for by Directive 2016/801 and of which the applicant would not be aware.

65.It follows that a requirement such as that imposed by the Kúria (Supreme Court), which makes granting an application for a residence permit under Directive 2016/801 conditional upon the fact that the applicant has made consistent declarations as to those elements, is incompatible with EU law.

C.The relevance of the fact that the requirements in dispute were decided by the highest national court, in its case-law, and not in the national legislation relating to residence permits (Question 2)

66.It remains for me to dissipate the doubts of the referring court as to whether the fact that the requirements in dispute have been set by the highest national court, the Kúria (Supreme Court), in its case-law, and not in the national legislation relating to residence permits, has any impact on their compatibility with EU law.

67.In my view, since it is clear from the previous section that those requirements are, in and of themselves, incompatible with EU law, the Court of Justice will not need to address that issue in its judgment. At any rate, I recall that, according to the Court’s settled case-law, although the transposition of a directive into domestic law does not necessarily require the provisions of such a directive to be reproduced in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient, it is nevertheless necessary that that legal context be sufficiently clear and precise as to enable the parties concerned to be fully informed of their rights and, if necessary, avail themselves of those rights before the national courts. (27) In the past, the Court has already found that requirements set out exclusively in the case-law of national jurisdictions (and not in national legislation) may not meet this threshold. (28)

68.As regards the fact that, in casu, the requirements have been set out in the case-law of a court, the Kúria (Supreme Court), which happens to be the highest national court, I recall that the principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States. By virtue of that principle, a Member State’s reliance on rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law. (29)

69.Accordingly, I agree with the Commission that the fact that a particular national rule has been set by the highest court of a Member State cannot have any bearing on the assessment of its compatibility with EU law. In fact, the origin of the national rule or requirement in dispute is entirely irrelevant to that assessment. Thus, in the present case, the fact that the requirements in dispute have been imposed by the Kúria (Supreme Court) cannot affect the Court’s answer to the first and third questions.

V.Conclusion

70.In the light of all of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Fővárosi Törvényszék (Budapest High Court, Hungary) as follows:

Article 7(1)(e) of Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing

must be interpreted as meaning that the concept of ‘sufficient resources’ does not enable Member States to introduce a requirement making the grant of a residence permit under that directive conditional upon the fact that the resources originating from a third person who is not a ‘family member’, within the meaning of national law, must have been acquired on a permanent basis by the applicant, that is to say, as a gift, not a loan, and with the ability to dispose of them as his or her own, without any restriction, so that they effectively form part of his or her own income or assets. Nor does that provision enable Member States to refuse the grant of a residence permit under that directive on the mere ground that the declarations made by the applicant as regards the nature of the resources available to him or her, in particular, how they were acquired and their permanent character, have not been consistent throughout the procedure, without giving him or her an opportunity to clarify those elements or informing him or her that his or her application could be rejected on that basis. The fact that those requirements are imposed by the highest national court is not relevant in that regard.

By contrast, certain other categories covered by Directive 2016/801, such as au pairs, may be entitled to receive pocket money during their stay (see Article 16(6) of that directive: ‘Member States may set a minimum sum of money as pocket money to be paid to the au pair’).

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I add that for stays of a limited duration such as those covered by Directive 2016/801, there is, at any rate, less of a need for the resources to be acquired on a permanent basis than under other instruments, since the time during which the applicant could represent a burden on the Member States’ social security systems is shorter.

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See judgment of 21 April 2016, Khachab (C‑558/14, EU:C:2016:285, paragraphs 46 and 48); my emphasis.

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Member States could, in that regard, examine whether the resources made available by a third party could end at the discretion of that third party.

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See judgment of 3 October 2019, X (Long-term residents – stable, regular and sufficient resources) (C‑302/18, EU:C:2019:830, paragraph 43). See, also, Opinion of Advocate General Saugmandsgaard Øe in (Long-term residents – stable, regular and sufficient resources) (C‑302/18, EU:C:2019:469, point 70).

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My emphasis.

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See judgment of 3 October 2019, X (Long-term residents – stable, regular and sufficient resources) (C‑302/18, EU:C:2019:830, paragraph 44).

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See judgment of 16 July 2015, Singh and Others (C‑218/14, EU:C:2015:476, paragraph 75).

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See judgment of 23 March 2006, Commission v Belgium (C‑408/03, EU:C:2006:192, paragraph 47).

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See judgment of 28 January 2010, Commission v Ireland (C‑456/08, EU:C:2010:46, paragraph 65 and the case-law cited).

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Ibid., paragraphs 64 and 65. See, also, judgment of 1 July 2004, Commission v France (C‑311/03, EU:C:2004:405, paragraphs 5 and 6).

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See, to that effect, judgment of 11 January 2024, Global Ink Trade (C‑537/22, EU:C:2024:6, paragraph 23 and the case-law cited).