23.12.2019

Official Journal of the European Union

C 432/15

(Case C-451/19)

(2019/C 432/18)

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: Subdelegación del Gobierno en Toledo

Defendant: XU

Questions referred

1.Is the requirement that a Spanish citizen who has not exercised his right of free movement must satisfy the conditions laid down in Article 7(1) of Royal Decree 240/2007, as a necessary condition for a right of residence being granted to the third-country minor child of the third-country spouse, in accordance with Article 7(2) of that Royal Decree, liable, in the event that those conditions are not satisfied, to constitute an infringement of Article 20 of the Treaty on the Functioning of the European Union (1) if, as a result of the refusal to grant that right, the Spanish citizen is compelled to leave the territory of the European Union as a whole? All of the above presupposes the requirement laid down in Article 68 of the Spanish Civil Code (Código Civil) for spouses to live together.

2.In any event, notwithstanding the foregoing, does the practice of the Spanish State of automatically applying the rule laid down in Article 7 of Royal Decree 240/2007, and refusing to grant a residence permit to the third-country national who is the minor child of an EU citizen’s third-country spouse, where that EU citizen has never exercised freedom of movement (those spouses in turn having a Spanish child who is a minor who has also never exercised freedom of movement), solely and exclusively on the ground that the EU citizen does not satisfy the conditions laid down in that provision, without having examined specifically and individually whether there exists a relationship of dependency between that EU citizen and the third-country national of such a nature that, for any reason and in the light of the circumstances, it would mean that were the third-country national refused a right of residence, the EU citizen could not be separated from the family member dependent on him and would have to leave the territory of the European Union, infringe Article 20 TFEU in the terms set out above? And is this the case in particular where the Spanish citizen and his third-country spouse are in turn the parents of a Spanish minor who could also have to leave Spanish territory following his parents? All of this is in the light of the case-law of the Court of Justice of the European Union, including, inter alia, [the] judgment of 8 May 2018, C-82/16, K.A. and Others v Belgische Staat. (2)

(1) OJ 2012 C 326, p. 1.

(2) EU:C:2018:308.

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