RESIDENCE PERMIT FOR THIRD COUNTRY NATIONALS: the national fee cannot be disproportionate with respect to the aims of Directive 109/2003

by Robert K.

A fee disproportionate with respect to the aims of Directive 2003/19 creates obstacles to the exercise of the rights conferred by EU law to third-country nationals, namely their integration inside the European territory.

Principle.

In the case C-309/14 the European Court of Justice held that Italy violated Directive 2003/109 regarding the issue and renewal of residence permits to third-country nationals.

The case concerned the fee that third-country nationals have to pay in order to obtain or renew a residence permit in a Member State of the EU. According to the ECJ a fee which is disproportionate with respect to the aims of Directive 2003/19 creates obstacles to the exercise of the rights conferred by EU law to third-country nationals, namely their integration inside the European territory.

Facts.

The request for a preliminary ruling was submitted to the ECJ by the Italian Regional Administrative Court of Lazio as the national Court doubted the consistency of the article 5(2b) of Legislative Decree No 286/1998 with Directive 2003/109.

In this regard, the objective of the Directive 2003/109 was to guarantee that in each Member State the investigation procedures in the context of applications for long-term resident status should not be such as to constitute a means to hinder the exercise of the right of residence.

By contrast, article 5(2b) of the Italian Legislative Decree No 286/1998 provided that “the application for the issue and renewal of the residence permit shall be subject to the payment of a fee, the amount of which shall be set at a minimum of EUR 80 and a maximum of EUR 200”. The precise amount of the fee depended on the time that the third-country national would have spent under Italian jurisdiction.

CGIL (Confederazione Generale Italiana del Lavoro) and INCA (Istituto Nazionale Confederale Assistenza), parties to the dispute before the Italian court in which annulment was requested, recalled the judgment Commission v Netherlands (C 508/10, EU:C:2012:243) in which the ECJ stated that the fee in question would be consistent with the principles laid down in the Directive 2003/109 if its amount were not, at its lowest value, disproportionate in relation to the sum which nationals of that State have to pay for similar documents, such as a national identity card.

Moreover, CGIL and INCA pointed out that for the issue and renewal of residence permits, third-country nationals also had to pay other fees provided by the Italian law before the entry into force of Directive 2003/109. Accordingly, the final sum that applicants actually had to pay turned out to be a heavy financial burden on the applicant and as such incompatible with EU law.

Conversely, the Italian Government argued that the fee at issue was not disproportionate because the proceeds from that fee were intended to finance the investigations to verify whether third-country nationals live lawfully in Italy or not.

Complaints.

CGIL and INCA claimed the annulment of the 2011 decree of the Minister of Home Affairs, which put into effect article 5(2b) of Legislative Decree No 286/1998 as it imposes on third-country nationals the obligation to pay an unfair and disproportionate fee, which is at odds with the Directive 2003/109.

Decision.

The Court reasoned that a fair evaluation of the fee in question had to take into account the principle of proportionality laid down by EU law. In this regard, “the measures taken to transpose Directive 2003/109 must be suitable for achieving the objectives of that provision and must not go beyond what is necessary to attain them”.

As already stated by the ECJ in the case Commission v Netherlands, this test of proportionality can be accomplished by comparing the amount of the fee in question to the fee the Member State charges for its own nationals to issue similar documents, such as a valid identity card. Consequently, the court pointed out that the minimum amount of the fee to obtain or renew a residence permit amounted to 80 euros whereas the cost of an identity card for nationals amounted to 10 euros. Therefore, the lack of proportionality between the two fees was clear.

On account of this comparison and because third-country nationals are required to pay additional fees that may render their stay in the Italian territory unjustifiably expensive, the European Court of Justice concluded that the fee at issue was contrary to Directive 2003/109 because it is disproportionate and because it may hinder the exercise of the rights conferred by the Directive, namely the freedom for third-country nationals to reside in the European territory after a long-term stay.

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