Parties

In Case C‑338/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgerichtshof (Austria), made by decision of 29 May 2013, received at the Court on 20 June 2013, in the proceedings

Bundesministerin für Inneres,

composed of R. Silva de Lapuerta (Rapporteur), President of the Chamber, J.L. da Cruz Vilaça, G. Arestis, J.-C. Bonichot and A. Arabadjiev, Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

after considering the observations submitted on behalf of:

–the Austrian Government, by C. Pesendorfer, acting as Agent,

–the Greek Government, by M. Michelogiannaki, acting as Agent,

–the European Commission, by M. Condou-Durande and W. Bogensberger, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 April 2014,

gives the following

Grounds

Legal context

‘1. The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members:

(a) the sponsor’s spouse;

…

…’

Austrian law

‘Family member: spouse, minor unmarried child, including an adopted child or stepchild (within the family unit); also registered partners; spouses and registered partners must have reached the age of 21 by the date the application is lodged; in cases of polygamous marriage, … where the sponsor already has a spouse living with him/her in the federal territory, the other spouses are not family members having a right to a residence permit.’

The dispute in the main proceedings and the question referred for a preliminary ruling

9. The Bundesministerin maintained that the condition requiring the age of 21 to have been reached by the date of lodging the application was compatible with Directive 2003/86.

10. Hearing the appeal brought by Mrs Noorzia against the Bundesministerin’s decision, the referring court considered that Article 4(5) of Directive 2003/86 does not specify clearly the date by reference to which it must be determined whether the minimum age of 21 has been attained.

11. In those circumstances the Verwaltungsgerichtshof (Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is Article 4(5) of Directive [2003/86] to be interpreted as precluding a provision [of national law] under which spouses and registered partners must have reached the age of 21 by the date when the application seeking to be considered family members entitled to family reunification is lodged?’

Consideration of the question referred

12. As a preliminary point, it should be noted that in order to ensure better integration and to prevent forced marriages, Article 4(5) of Directive 2003/86 permits Member States to fix a minimum age, which must not be greater than 21 years, that must be attained by the sponsor and his or her spouse prior to the latter being permitted to join the sponsor for reunification.

15. Bearing that in mind, it must be stated that a measure, such as that at issue in the main proceedings, requiring the sponsor and his or her spouse to have attained the prescribed minimum age by the date when the application is lodged does not prevent the exercise of the right to family reunification nor render it excessively difficult. Further, such a measure does not undermine the purpose of preventing forced marriages since it permits the presumption that, due to greater maturity, it will be more difficult to influence the persons concerned to contract a forced marriage and accept family reunification if they must have reached the age of 21 by the date when the application is lodged than it would be if they were under 21 at that date.

16. Furthermore, taking the date when the application for family reunification is lodged as the point by reference to which it must be determined whether the minimum age condition is satisfied is consistent with the principles of equal treatment and legal certainty.

18. In view of all of the foregoing considerations, the answer to the question referred is that Article 4(5) of Directive 2003/86 must be interpreted as meaning that that provision does not preclude a rule of national law requiring that spouses and registered partners must have reached the age of 21 by the date when the application seeking to be considered family members entitled to reunification is lodged.

Costs

Operative part

On those grounds, the Court (Second Chamber) hereby rules:

Article 4(5) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as meaning that that provision does not preclude a rule of national law requiring that spouses and registered partners must have reached the age of 21 by the date when the application seeking to be considered family members entitled to reunification is lodged.