Opinion of Advocate General Spielmann delivered on 3 September 2026

Provisional text

OPINION OF ADVOCATE GENERAL

SPIELMANN

delivered on 3 September 2026 ( 1 )

Case C ‑ 394/25 [Volta] ( i )

Minister van Asiel en Migratie

other parties

A,

her children

and B

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))

( Reference for a preliminary ruling – Right to family reunification – Directive 2003/86/EC – Article 7(2) – Integration measures – National legislation requiring a family member of an EU citizen to pass a civic integration examination abroad in order to be granted a long-stay visa – Nationals of certain other third countries exempt from that requirement solely on the grounds of their nationality – Article 21 of the Charter of Fundamental Rights of the European Union – Principle of non-discrimination – Article 20 of the Charter of Fundamental Rights – Equal treatment )

Introduction

1. By this request for a preliminary ruling, the Raad van State (Council of State, Netherlands) asks the Court to interpret Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification ( 2 ) having regard to the civic integration requirement abroad provided for by Netherlands legislation. That civic integration requirement includes an examination which the foreign national concerned must pass in his or her third country of origin.

2. Unlike the case giving rise to the judgment in K and A , ( 3 ) the present case concerns neither the admissibility nor the conditions of application of that civic integration examination. It raises the question whether the exemption from the requirement to meet the integration requirement abroad, granted to nationals of certain third countries on the grounds of their nationality, complies with the principles of non-discrimination and equal treatment. This delicate question has not previously been addressed, which provides the Court with an opportunity to clarify the extent of the leeway available to Member States in applying different treatment to nationals of different third countries within the legal framework established by Directive 2003/86.

Legal context

European Union law

3. Article 3(4) and (5) and Article 7(2) of Directive 2003/86 and Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) are particularly relevant to the present case.

Netherlands law

The Vw 2000

4. Article 14 of the Wet tot algehele herziening van de Vreemdelingenwet (Vreemdelingenwet 2000) (Law on the general revision of the Law on foreign nationals (Law on foreign nationals 2000)) of 23 November 2000, ( 4 ) in the version applicable to the disputes in the main proceedings (‘the Vw 2000’), provides, in paragraph 1:

‘The Minister [Minister van Veiligheid en Justitie (Minister for Security and Justice, Netherlands) (“the Minister”)] shall be authorised:

(a) to approve, reject or indeed not to consider applications for the grant of fixed-term residence permits;

…’

5. Under Article 16(1) of the Vw 2000:

‘An application for a fixed-term residence permit as referred to in Article 14 may be rejected if:

(a) the foreign national does not hold a valid long-stay visa which was granted on the basis of the same objective as that of the application for the residence permit;

…

(h) the foreign national, who does not belong to one of the categories referred to in Article 17(1), would, after acquiring a permit for legal residence in the Netherlands, be subject to the civic integration requirement pursuant to Articles 3 and 4 of the Law on civic integration of 2021 and does not have a basic knowledge of the Dutch language and Netherlands society;

…’

6. Article 17(1) of that law provides:

‘An application for a fixed-term residence permit as referred to in Article 14 shall not be rejected for lack of a valid long-stay visa if it concerns:

(a) a foreign national who holds the nationality of one of the countries designated by regulation of the Minister in agreement with the Minister for Foreign Affairs;

…’

The Vb 2000

7. Article 3.71 of the Besluit tot uitvoering van de Vreemdelingenwet 2000 (Vreemdelingenwet 2000) (Decree implementing the Law on foreign nationals (Decree on foreign nationals 2000)) of 23 November 2000, ( 5 ) in the version applicable to the disputes in the main proceedings (‘the Vb 2000’), provides, in paragraph 1:

‘The application for a fixed-term residence permit shall be rejected if the foreign national does not have a valid long-stay visa.’

8. Article 3.71a(1) of the Vb 2000 states:

‘A foreign national has basic knowledge of the Dutch language and of Netherlands society within the meaning of Article 16(1)(h) of the [Vw 2000] if, during the year immediately preceding the application for the long-stay visa, he or she has passed the basic civic integration examination referred to in Article 3.98a.’

The Vc 2000

9. Paragraph B1/4.7 of the Vreemdelingencirculaire 2000 (Circular on Foreign Nationals 2000), in the version applicable to the case in the main proceedings (‘the Vc 2000’), entitled ‘Civic integration abroad’, provides:

‘To determine whether the civic integration requirement abroad is a condition, the following articles shall apply:

• Article 16(1)(h) of the [Vw 2000];

…

Pursuant to Article 16(1)(h) of the [Vw 2000], the [Immigratie – en Naturalisatiedienst (Immigration and Naturalisation Service, Netherlands)] shall reject the application for a long-stay visa if the foreign national has not passed the basic examination for civic integration abroad, unless he or she has been exempted or dispensed from that requirement.

…

Exemptions

To assess the exemption from the civic integration requirement abroad, the following articles apply:

• Article 16(1)(h), read in conjunction with Article 17(1) of the [Vw 2000];

…’

The dispute in the main proceedings, the question referred and the procedure before the Court

10. On 1 and 19 September 2021, the spouse of B and the partner of A (referred to individually as a ‘sponsor’) each submitted, on behalf of those two third-country nationals, an application for a long-stay visa for them and for A’s children, for the purpose of family reunification in the Netherlands.

11. By decision of 2 February and 21 December 2021, respectively, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) (‘the State Secretary’) rejected those applications on the ground that A and B had failed to pass the first stage of their civic integration in the Netherlands abroad, including the assessment of basic knowledge of the Dutch language and Netherlands society (as regards the civic integration requirement abroad), a requirement from which they could not be exempted. According to the Minister, there was also no basis for granting them an exemption from the civic integration requirement abroad owing to specific individual circumstances.

12. By decisions of 3 September 2021 and 22 May 2023, the State Secretary rejected the complaints lodged by A and B, respectively.

13. By judgments of 23 January 2023 and 16 April 2024, the rechtbank Den Haag (District Court, The Hague, Netherlands), finding the actions brought by A and B against those two judgments to be well founded, set aside those judgments, on the ground that Article 17(1)(a) of the Vw 2000 makes a distinction on the basis of nationality for applying the civic integration requirement abroad, in violation of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), ( 6 ) read in conjunction with Article 8 thereof, and that such a requirement was contrary to Article 7(2) of Directive 2003/86. In that regard, that court held that foreign nationals who are not exempt from that requirement receive unequal treatment compared with those who are exempt from it, even though they are in a comparable situation in so far as, in both cases, those foreign nationals intend to exercise their right to family life in the Netherlands. Furthermore, that court found that, although the civic integration requirement serves a legitimate purpose – namely to promote integration in the Netherlands – the Minister had failed to provide an adequate statement of reasons for the fact that the requirement was an appropriate means of achieving that purpose and that the difference in treatment was thus objectively justified.

14. The State Secretary brought an appeal against those judgments before the Raad van State (Council of State), which is the referring court.

15. According to that court, under Article 16(1)(h) of the Vw 2000, the Minister, who is now the competent authority for family reunification, may reject an application for a long-stay visa if a foreign national does not meet the civic integration requirement abroad, since passing the basic examination demonstrates, in accordance with Article 3.71a(1) of the Vb 2000, that he or she has a basic knowledge of the Dutch language and Netherlands society. That civic integration requirement abroad is, in its view, thus linked to the requirement for a long-stay visa. It follows that foreign nationals subject to that requirement must also meet the civic integration requirement abroad, whereas foreign nationals who are exempt from the requirement to obtain a long-stay visa are also exempt from the civic integration requirement abroad. However, under Article 17(1)(a) of the Vw 2000 and paragraph B1/4.7 of the Vc 2000, that exemption only applies to foreign nationals from a Member State of the European Union or of the European Economic Area, in addition to Australia, Canada, Japan, Monaco, New Zealand, South Korea, the Swiss Confederation, the United Kingdom, the United States, and Vatican City. A distinction is thus made on grounds of nationality.

16. As a consequence, until they have passed the civic integration examination abroad, foreign nationals who are obliged to comply with the long-stay visa requirement are not eligible for family reunification. Those who have passed that examination are, after their entry into the Netherlands, subject to a civic integration requirement in the same way as foreign nationals already staying in the Netherlands are, in particular foreign nationals exempt from the long-stay visa requirement. An additional restriction is therefore placed on foreign nationals who are not exempt from the long-stay visa requirement.

17. According to the referring court, the question that arises in the present case is thus whether EU law precludes the difference in treatment under Netherlands law on grounds of nationality between foreign nationals who must meet the civic integration requirement abroad and those who are exempt from that requirement solely because they qualify for the exemption from the long-stay visa requirement.

18. In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 3(4)(a) and (5) and Article 7(2) of [Directive 2003/86], read in the light of Articles 7, 20, 21 and 52 of the [Charter], be interpreted as precluding legislation such as that contained in Article 16(1)(h), in conjunction with Article 17(1)(a), of the [Vw 2000], under which, on the basis of bilateral agreements in the context of external trade relations, a distinction is made according to nationality, for the purpose of the acquisition of a [long-stay visa], between foreign nationals who must meet the civic integration requirement abroad and foreign nationals who are exempt from that requirement?’

19. Written observations were submitted by A and her children, B, the Netherlands and Polish Governments and the European Commission.

20. At the hearing held on 20 May 2026, A, B, the Netherlands Government and the Commission presented oral argument.

Analysis

21. By its question for a preliminary ruling, the referring court seeks to ascertain, in essence, whether Directive 2003/86, read, where appropriate, in the light of Articles 20 and 21 of the Charter, precludes national legislation under which a distinction is made on grounds of nationality, for the purpose of obtaining a long-stay visa, between third-country nationals who are subject to an integration measure such as the civic integration requirement abroad, and third-country nationals who are exempt from that requirement.

22. I will examine that legal issue after briefly addressing the question of the Court’s jurisdiction and making some observations on the provisions that must be interpreted for the purpose of resolving the dispute in the main proceedings.

The jurisdiction of the Court

23. The dispute in the main proceedings concerns family reunification in which the sponsor is an EU citizen. It does not therefore fall within the scope of Directive 2003/86. In accordance with Article 1, Article 2(c) and Article 3(3) of that directive, it only governs situations in which the sponsor is a third-country national residing lawfully in the territory of the Member States.

24. However, according to settled case-law, the Court has jurisdiction to rule on requests for a preliminary ruling concerning provisions of EU law in situations where, even if the facts of the case in the main proceedings fall outside the direct scope of EU law, those provisions have been made applicable by national law due to a reference made by that law to the content of those provisions. ( 7 )

25. It is clear from the order for reference that, under Netherlands law, an internal situation such as that at issue in the main proceedings, in which the sponsor is a Dutch national, is equivalent to a situation falling within the scope of EU law where the sponsor is a third-country national. It must therefore be concluded that the Court has jurisdiction to answer the question referred for a preliminary ruling. ( 8 )

Substance

The legal framework for the analysis

26. It is appropriate to start by defining the legal framework of the relevant law for resolving the dispute in the main proceedings.

27. In that regard, the referring court is uncertain whether the exemption from the obligation to meet the civic integration requirement abroad, established by the Kingdom of the Netherlands, is capable of constituting a ‘more favourable’ provision within the meaning of Article 3(4) or (5) of Directive 2003/86.

28. In order to express a view on that point, those provisions must first be placed in their particular context.

29. I note that Article 1 of Directive 2003/86 determines the conditions for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the Member States.

30. Article 3(1) of that directive provides that it applies where the sponsor is holding a residence permit issued by a Member State for a period of validity of one year or more and has reasonable prospects of obtaining the right of permanent residence, if the members of his or her family are third-country nationals. Paragraphs 2 to 5 of that article specify the categories of persons excluded from the scope of that directive, and also the provisions that it does not preclude.

31. In particular, Article 3(4) provides that Directive 2003/86 is without prejudice, inter alia, to more favourable provisions of bilateral and multilateral agreements between the Community or the Community and its Member States, on the one hand, and third countries, on the other. Article 3(5) of that directive provides that the directive does not affect the possibility for the Member States to adopt or maintain more favourable provisions.

32. As a preliminary point, the question must be addressed whether national legislation by which a Member State exempts nationals of certain third countries from the civic integration requirement abroad may be considered – as the national court implies in its question and as all interested parties who submitted written observations argue – a ‘more favourable’ measure within the meaning of Article 3(4) and (5) of Directive 2003/86.

33. I should state clearly at the outset that I consider that that question should be answered in the negative.

34. First of all, those provisions reflect a classic normative technique in EU law. In the absence of consensus on the degree of harmonisation needed, the EU legislature may provide that an act of secondary legislation does not preclude the adoption or maintenance, by the Member States, of provisions that exceed the requirements it establishes in order to achieve the objectives of that secondary legislation.

35. By way of illustration, Article 3 of Directive 2011/95/EU ( 9 ) allowed Member States to ‘introduce or retain more favourable standards’ both for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection. Recital 14 of that directive described them as ‘more favourable provisions than the standards laid down in this Directive’. Similarly, Article 13 of Directive 2003/109/EC ( 10 ) provides that ‘Member States may issue residence permits of permanent or unlimited validity on terms that are more favourable than those laid down by this Directive.’ ( 11 )

36. It therefore authorises the Member States to enact more favourable provisions than those laid down by acts of secondary legislation .

37. Next, with regard to Directive 2003/86, it should be noted that the European Parliament explained the proposed legislative amendment corresponding to the content of Article 3(5) of that directive, stating that the directive is intended to establish minimum standards and that this amendment recognises the right of Member States to set out more favourable conditions than those provided for in the proposed directive. ( 12 ) Furthermore, in its guidance on the application of Directive 2003/86, ( 13 ) the Commission envisaged, as more favourable measures, only derogations from a condition imposed by the directive. ( 14 )

38. As for the national legislation in question, which exempts nationals of certain third countries from the civic integration requirement abroad, it undoubtedly has the effect of granting more favourable treatment to certain categories of third-country nationals. Nevertheless, it cannot be concluded from that finding that a ‘more favourable condition’ exists, within the meaning of Article 3(4) and (5) of Directive 2003/86. Indeed, the exemption provided for by Netherlands legislation does not derive from a condition provided for by that directive, but from a nationality criterion established by national law for the application of the civic integration requirement, prior to entry into the territory authorised by that directive.

39. Lastly, and in any event, with particular reference to Article 3(4)(a) of Directive 2003/86, I note that its wording covers bilateral agreements concluded with third countries by the European Union or by the European Union jointly with its Member States. That literal interpretation is, moreover, supported by the preparatory work for Directive 2003/86. The proposed directive presented by the Commission specifies in fact that ‘at a time when it is embarking on harmonisation of the rules on family reunification, the European Community must abide by its international commitments and therefore by the agreements, be they Community or mixed agreements, that are already in force.’ ( 15 ) However, I note that the treaties with third countries mentioned by the referring court were concluded by only one Member State , namely the Kingdom of the Netherlands. In those circumstances, I do not see how that provision would be relevant in providing an answer to the present question referred for a preliminary ruling.

40. In addition, it is clear from the order for reference that the exemption granted to certain third-country nationals does not result systematically from the conclusion of a treaty with a third country, as illustrated, inter alia, by the situation of South Korean nationals.

41. I therefore consider that Article 3(4) and (5) of Directive 2003/86 is not relevant in the present case.

42. By contrast, the first subparagraph of Article 7(2) of Directive 2003/86, read where appropriate in the light of Articles 20 and 21 of the Charter, seems to me to be the relevant provision for the purposes of answering the question asked by the referring court.

The interpretation of the first subparagraph of Article 7(2) of Directive 2003/86 and Articles 20 and 21 of the Charter

43. As a preliminary point, I note that Article 4 of Directive 2003/86 requires Member States to authorise family reunification of certain members of the sponsor’s family ( 16 ) when the conditions laid down therein are met, without leaving them any discretion in that regard. ( 17 )

44. Those conditions are laid down in Articles 6 and 7 of that directive. Pursuant to Article 7(1), Member States may require the person who has submitted the application for family reunification to provide evidence that the sponsor has (i) accommodation regarded as normal for him or herself and his or her family, (ii) health insurance in respect of all risks for him or herself and the members of his or her family, and (iii) stable and regular resources which are sufficient to maintain him or herself and the members of his or her family, without recourse to the social assistance system of the Member State concerned.

45. The first subparagraph of Article 7(2) of Directive 2003/86, on the other hand, refers not to ‘conditions’ but to integration ‘measures’. It provides that ‘Member States may require [third-country] nationals to comply with integration measures, in accordance with national law.’

46. That provision is formulated as an option granted to Member States and, according to the preparatory work for Directive 2003/86, was introduced in order to confirm the possibility, already envisaged particularly in the Netherlands, of establishing civic integration examinations. ( 18 ) The Member States have some leeway in implementing that provision. In the analysis that follows, I will examine the extent of that leeway, as specified in the judgment in K and A , and its consequences in the present case.

47. In the first place, the case giving rise to the judgment in K and A concerned Netherlands legislation specifically concerning the civic integration examination. First of all, the Court expressly recognised that Directive 2003/86 allows Member States to subject the granting of authorisation of entry into their territory to the observance of certain integration measures prior to entry. ( 19 ) Next, it endeavoured to ascertain, having regard to the principle of proportionality, whether the Kingdom of the Netherlands made use of the leeway it had in setting up that examination in a manner compatible with the objectives laid down in that directive. ( 20 )

48. In that regard, the Court considered, first, that the examination at issue constituted a genuine ‘integration measure’ within the meaning of the first subparagraph of Article 7(2) of that directive in so far as it was capable of facilitating the integration of the sponsor’s family members. Indeed, the acquisition of knowledge of the language and society of the host Member State, required to pass such an examination, undeniably encourages interaction between third-country nationals and nationals of that Member State and the development of social relations between them. ( 21 )

49. Secondly, the Court stated that the conditions of application of the requirement to pass such an examination would exceed what is necessary to achieve the aim of promoting family reunification in three scenarios.

50. The first is where the purpose of that examination would be to filter the persons permitted to exercise their right to family reunification. That would, in particular, be the case where the application of that requirement leads to systematic refusal of family reunification, without account being taken of the efforts made by the persons concerned to meet the integration requirement. ( 22 )

51. The second is where specific individual circumstances are not taken into consideration in order to exempt the sponsor’s family members from the requirement to pass the examination. ( 23 )

52. The third concerns the case where the amount of the fees relating to the integration examination are excessive in the light of their financial impact on the third-country nationals concerned. ( 24 )

53. In those last two scenarios, the conditions of application of that requirement would have the effect of making it impossible or excessively difficult to exercise the right to family reunification. ( 25 )

54. In short, the leeway granted to the Member States by the first subparagraph of Article 7(2) of Directive 2003/86 is limited by the prohibition on imposing integration requirements that exceed what is necessary to achieve the aim of promoting family reunification. The obligation to comply with such integration requirements is in fact such as to compromise the exercise of the right to family reunification and this is the case where their implementation could be, for the sponsor’s family members, a difficult obstacle to overcome in achieving that reunification.

55. By contrast, that limit on the leeway available to the Member States does not seem to extend to the determination of the categories of third-country nationals required to comply with an integration measure prior to their entry into the territory of the host Member State. I note, in that regard, that in the judgment in K and A , the Court refrained from examining whether the Netherlands legislation was ‘inconsistent’ with the aim of facilitating the integration of the sponsor’s family members, in that it exempted the nationals of certain third countries from the requirement to pass such an examination. ( 26 ) That finding suggests that the first subparagraph of Article 7(2) of Directive 2003/86 is not intended to further restrict the leeway available to Member States in that regard.

56. With regard to its purpose, as set out in recital 6, the directive’s sole aim is to protect the family and establish or preserve family life. It thus guarantees the sponsor a subjective right to family reunification when the conditions laid down in the directive are met. In those circumstances, if the EU legislature had intended to circumscribe the leeway available to the Member States when they determine the categories of third-country nationals required to comply with an integration measure prior to their entry into the territory, it is reasonable to suppose that it would have done so expressly. It is a question of States exercising their sovereign right, long recognised under international law, to control the entry of non-nationals into their territory. ( 27 )

57. Thus, the determination of the categories of third-country nationals subject to such an integration measure under the first subparagraph of Article 7(2) of Directive 2003/86, as well as those who are exempt from it, falls within the exercise of the prerogatives of the Member States with regard to the admission of foreign nationals into their territory. Those prerogatives are exercised, inter alia, by issuing long-stay visas. However, since the purpose of family reunification is a long-term stay, ( 28 ) its success depends on obtaining a long-stay visa. ( 29 )

58. It should be recalled that visas for stays exceeding three months are, under Article 18 ( 30 ) of the Convention implementing the Schengen Agreement, ( 31 ) national visas issued by one of the Member States in accordance with its own legislation . Thus, the determination of the categories of third-country nationals subject to the requirement to obtain a long-stay visa or exempted from that requirement is solely a matter of national law.

59. Each Member State thus remains free, in the conduct of its foreign policy and in pursuit of various economic, social or diplomatic objectives, to exempt nationals of certain third countries from the requirement to obtain a long-stay visa. In such a situation, it is natural for that State to exempt those same nationals from another requirement prior to their entry into its territory, such as the requirement to comply with a civic integration measure. The national legislation at issue in the present case fits precisely into that scheme.

60. However, if the exemption from the requirement to comply with an integration measure necessarily had to benefit all third-country nationals, regardless of their nationality, Member States would be obliged either to extend that exemption to all third-country nationals or to withdraw it from those whom they exempt from the requirement to obtain a long-stay visa. Such an interpretation would prevent them from giving effect, as regards integration measures, to the economic, social or diplomatic choices they make regarding long-stay visas.

61. In my view, therefore, the limit on the leeway available to Member States does not extend to the determination of the categories of third-country nationals required to comply with an integration measure prior to their entry into the territory of the host Member State.

62. In the second place, having regard to the interpretation proposed, it must be determined whether the first subparagraph of Article 7(2) of Directive 2003/86, read in the light of Articles 20 and 21 of the Charter , is capable of offering third-country nationals who are not exempt, under the legislation of the host Member State, from the requirement to comply with an integration measure prior to their entry into its territory, the protection resulting from the prohibition of discrimination on grounds of nationality.

63. In my view, that question should be answered in the negative.

64. I would point out that the secondary law in question allows Member States some leeway to preserve their prerogatives as regards the admission of foreigners into their territory. In doing so, it largely prevents the Charter from having a supplementary role allowing for a more protective approach to be taken towards all third-country nationals who are the sponsor’s family members, even though in the abstract, such an approach would appear to me entirely appropriate. The reasons for that assessment will be explained in more detail in the analysis that follows.

65. First of all, it should be recalled that the provisions of Netherlands law establishing a difference in treatment for nationals of different third countries are subject to specific arrangements expressly authorised by the first subparagraph of Article 7(2) of Directive 2003/86 and contributing to the achievement of its purpose. Thus, that regime constitutes an implementation of EU law. ( 32 ) Its provisions must therefore be compatible with those of the Charter.

66. The question therefore arises whether those arrangements comply with Article 20 and Article 21(2) of the Charter. To answer that question, it is necessary to recall the content of those two articles and how their respective scopes are connected.

67. Article 21(2) of the Charter expressly prohibits any discrimination on grounds of nationality ‘within the scope of application of the Treaties and without prejudice to any of their specific provisions’, while Article 20 of the Charter, in a phrase that has since become famous, enshrines the principle that ‘everyone is equal before the law.’

68. It seems artificial to establish a rigid boundary between the scopes of application of those two provisions. Article 20 establishes a general principle, while Article 21 adapts it in specific situations. From that perspective, Article 21 of the Charter appears as a lex specialis in relation to the lex generalis that is Article 20. ( 33 )

69. Nevertheless, as regards the differences in treatment of third-country nationals based on nationality, the Court has invariably declined to assess them in the light of Article 21(2) of the Charter. ( 34 ) Specifically, the Court has pointed out that, according to explanations regarding the Charter, ( 35 ) Article 21(2) thereof corresponds to the first paragraph of Article 18 TFEU ( 36 ) and must therefore apply in accordance with that provision. However, according to the Court, the first paragraph of Article 18 TFEU concerns situations coming within the scope of EU law in which a national of one Member State suffers discriminatory treatment in relation to nationals of another Member State solely on the basis of his or her nationality ( 37 ) and is not intended to apply to cases of a possible difference in treatment between two categories of third-country nationals. ( 38 )

70. The Court nevertheless accepted, in the judgments in État belge (Right of residence in the event of domestic violence) ( 39 ) and O. G. (European arrest warrant issued against a third-country national) , ( 40 ) that such a difference in treatment had to be examined in the light of the principle of equal treatment laid down in Article 20 of the Charter, which benefits ‘everyone’.

71. However, it seems to me that, in the present case, that approach does not apply in view of the lessons drawn from the judgment in Swiss International Air Lines , ( 41 ) which are echoed by the judgment in Préfet du Gers and Institut national de la statistique et des études économiques . ( 42 )

72. In the judgment in Swiss International Air Lines , the Court held that the difference in treatment between third countries in the context of the European Union’s external relations does not fall within the scope of the principle of equal treatment. Indeed, EU law imposes no express obligation to the effect that all third countries must be treated equally, while public international law contains no general principle of equal treatment between third countries. In that regard, the Court held that the institutions and agencies of the European Union have available to them, in the conduct of external relations, a broad discretion in policy decisions. However, the European Union must, according to the Court, be in a position to choose its policies and, according to the objectives that it pursues, to make a distinction between third countries, without being obliged to grant equal treatment to all third countries. ( 43 )

73. I am fully aware that, in the present case, the difference in treatment at issue does not concern States, but nationals. Yet the fact remains that the conduct of the European Union’s external policy may justify provisions that make a distinction between third countries and consequently have the effect of reserving less favourable treatment for certain third-country nationals. It may also justify provisions specifically intended to reserve such treatment for nationals of a third country, as is apparent from the judgment in Préfet du Gers . ( 44 )

74. In my view, those same principles should apply to the conduct of the foreign policy of the Member States when they act within the leeway granted to them by EU law.

75. For the reasons set out above, the determination of third-country nationals required to comply with a given integration measure in order to be admitted into the territory of the host Member State is based on policy choices which, as such, do not lend themselves to scrutiny in the light of the principle of equal treatment. Like the EU institutions, the Member States may therefore, in exercising those prerogatives, in particular by concluding bilateral agreements, treat certain third countries differently from others.

76. A final clarification is needed: although the prohibition of discrimination on grounds of nationality does not apply to situations covered by Directive 2003/86, the determination, by the Member States, of the categories of third-country nationals required to comply with a prior integration measure in order to be admitted into their territory cannot, in any case, result in discrimination based on any of the grounds listed non-exhaustively in Article 21(1) of the Charter, ( 45 ) namely sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. Indeed, unlike Article 21(2) of the Charter, the scope of that provision is not subject to any particular limitation, as it prohibits any discrimination based on any of the aforementioned grounds. Moreover, it is clear from recital 5 of Directive 2003/86 that Member States are required to implement that directive in compliance with Article 21(1) of the Charter.

77. To conclude otherwise would presumably mean adopting an interpretation that is at odds with the case-law of the European Court of Human Rights. Indeed, that court has held on several occasions that an immigration control measure compatible with the right to respect for family life guaranteed by Article 8 ECHR may nevertheless entail a violation of the prohibition on discrimination enshrined in Article 14 of that convention ( 46 ) when it establishes a difference in treatment based, in particular, on sex, ( 47 ) sexual orientation ( 48 ) or ethnic origin. ( 49 )

78. In the light of the above considerations, I suggest that the Court answer the question referred for a preliminary ruling as follows: the first subparagraph of Article 7(2) of Directive 2003/86 does not preclude national legislation under which a distinction is made on grounds of nationality, for the purpose of obtaining a long-stay visa, between third-country nationals who are subject to an integration measure such as the civic integration requirement abroad, and third-country nationals who are exempt from that requirement.

Conclusion

79. In the light of the foregoing, I propose that the Court should answer the question referred for a preliminary ruling by the Raad van State (Council of State, Netherlands) as follows:

The first subparagraph of Article 7(2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification

must be interpreted as not precluding national legislation under which a distinction is made on grounds of nationality, for the purpose of obtaining a long-stay visa, between third-country nationals who are subject to an integration measure such as the civic integration requirement abroad, and third-country nationals who are exempt from that requirement.

1 Original language: French.

i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2 OJ 2003 L 251, p. 12.

3 Judgment of 9 July 2015 (C‑153/14, ‘the judgment in K and A ’, EU:C:2015:453).

4 Stb. 2000, No 495.

5 Stb. 2000, No 497.

6 Signed in Rome on 4 November 1950.

7 See, inter alia, judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 53).

8 It should be noted that the Court has already held that it had jurisdiction to interpret the provisions of Directive 2003/86 in cases analogous to the present case, relating to provisions of Netherlands law on family reunification. See judgments of 7 November 2018, C and A (C‑257/17, EU:C:2018:876, paragraphs 28 to 44), and of 12 December 2019, G.S. and V.G. (Threat to public policy) (C‑381/18 and C‑382/18, EU:C:2019:1072, paragraphs 38 to 48).

9 Directive of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third‑country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9). That directive was repealed by Regulation (EU) 2024/1347 of the European Parliament and of the Council of 14 May 2024 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted, amending Council Directive 2003/109/EC (OJ L, 2024/1347), which has applied since 1 July 2026.

10 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).

11 See, in that regard, judgment of 17 July 2014, Tahir (C‑469/13, EU:C:2014:2094, paragraph 39).

12 Report of the European Parliament of 17 July 2000 on the proposal for a Council directive on the right to family reunification, document No A5-201/2000 (COM(1999)638 – C5-0077/2000 – 1999/0258(CNS)), p. 9 (available at www.europarl.europa.eu/doceo/document/A-5-2000-0201_EN.pdf).

13 Communication from the Commission to the European Parliament and the Council of 3 April 2014 on guidance for application of Directive 2003/86/EC on the right to family reunification (COM(2014) 210 final) (‘the guidance on Directive 2003/86’). See judgment of 26 March 2026, Gonrieh (C‑819/25 PPU, EU:C:2026:252, paragraph 50), according to which the Court takes that guidance into account for the purposes of interpreting Directive 2003/86.

14 In footnote 31 to section 3.1. of the guidance on Directive 2003/86, the Commission refers to the derogation provided for in the second subparagraph of Article 5(3) of Directive 2003/86, which allows Member States to accept, in appropriate circumstances, applications for family reunification when family members are already in its territory. That derogation constitutes an exception to the general rule set out in the first subparagraph of that provision, according to which the application must be submitted and examined when the family members are residing outside the territory of the Member State in which the sponsor resides.

15 Proposal for a Council Directive of 1 December 1999 on the right to family reunification (COM(1999) 638 final), Article 3(4).

16 Under Article 2(c) of Directive 2003/86, a sponsor is ‘a [third-country] national residing lawfully in a Member State and applying or whose family members apply for family reunification to be joined with him/her’.

17 See judgment of 27 June 2006, Parliament v Council (C‑540/03, EU:C:2006:429, paragraph 60).

18 See the Amended proposal for a Council Directive of 26 November 2002 on the right to family reunification, document No 14272/02 (1999/0258(CNS)), p. 13, footnote 2 (available at https://data.consilium.europa.eu/doc/document/ST-14272-2002-INIT/en/pdf). That footnote is referenced in the judgment of 30 March 2010 of the Bundesverwaltungsgericht (Federal Administrative Court, Germany) (DE:BVerwG:2010:300310U1C8.09.0, paragraph 25), according to which the first subparagraph of Article 7(2) of Directive 2003/86 was inserted during the negotiations held within the Council of the European Union at the insistence of the Netherlands, Austrian and German Governments (available at https://www.bverwg.de/300310U1C8.09.0).

19 The judgment in K and A (paragraph 49).

20 The judgment in K and A (paragraph 50).

21 The judgment in K and A (paragraphs 52 to 54).

22 The judgment in K and A (paragraph 56).

23 The judgment in K and A (paragraphs 58 and 59).

24 The judgment in K and A (paragraph 65).

25 The judgment in K and A (paragraphs 59 and 64).

26 Unlike the Advocate General, who did carry out that examination. See Opinion of Advocate General Kokott in K and A (C‑153/14, EU:C:2015:186, point 38).

27 See ECtHR, 28 May 1985, Abdulaziz, Cabales and Balkandali v. the United Kingdom (CE:ECHR:1985:0528JUD000921480, § 67 et seq.); ECtHR, 19 February 1996, Gül v. Switzerland (CE:ECHR:1996:0219JUD002321894, § 38); ECtHR, 28 November 1996, Ahmut v. the Netherlands (CE:ECHR:1996:1128JUD002170293, §§ 63 and 67); and ECtHR, 21 December 2001, Sen v. the Netherlands (CE:ECHR:2001:1221JUD003146596, §§ 31 and 36).

28 See section 5.1 of the guidance on Directive 2003/86.

29 Two provisions of Directive 2003/86 highlight this link. Article 5(2) of that directive provides that an application for family reunification must be accompanied not only by ‘documentary evidence of the family relationship and of compliance with the conditions laid down in Articles 4 and 6 and, where applicable, Articles 7 and 8’, but also by ‘certified copies of family member(s)’ travel documents’. Article 13(1) of the directive provides that, as soon as an application for family reunification has been accepted, the Member State concerned must authorise the entry of the family member and grant them every facility for obtaining the requisite visas. In paragraph 52 of the judgment of 26 March 2026, Gonrieh (C‑819/25 PPU, EU:C:2026:252), the Court clarified that that provision imposes on Member States the obligation to remove unjustified administrative obstacles and to apply rapid and effective administrative procedures for the purpose of issuing visas.

30 That provision aims to facilitate the free movement of holders of a long-stay visa by providing that it is also valid, under certain conditions, as a uniform short-stay visa, whereas it previously allowed only one transit through the territory of the other Member States in order to reach the State that had issued it.

31 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19).

32 See judgment of 19 November 2019, TSN and AKT (C‑609/17 and C‑610/17, EU:C:2019:981, paragraph 50).

33 See, inter alia, Bell, M., ‘Equality before the law’, in Peers, S., Hervey, T., Kenner, J. and Ward, A., The EU Charter of Fundamental Rights: A Commentary , Hart Publishing, Oxford, 2021, 2 nd edition, p. 600.

34 For critiques of that approach, see, inter alia, Kilpatrick, C. and Eklund, H., ‘Article 21’, The EU Charter of Fundamental Rights: A Commentary , op. cit., pp. 613-638; Groenendijk, K., ‘Citizens and third-country nationals: Differential treatment or discrimination’, in Carlier, J.Y. and Guild, E. (eds.), L’avenir de la libre circulation des personnes dans l’UE , Bruylant, Brussels, 2006, pp. 79-101; Hublet, C., ‘The scope of Article 12 of the Treaty of the European Communities vis-à-vis third-country nationals: Evolution at last?’, European Law Journal , Vol. 15, No 6, 2009, pp. 757-774; Peers, S., ‘Implementing equality? The directive on long-term resident third-country nationals’, European Law Review , Vol. 29, 2004, pp. 437-460.

35 OJ 2007 C 303, p. 17.

36 That provision reads as follows: ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

37 See judgment of 4 June 2009, Vatsouras and Koupatantze (C‑22/08 and C‑23/08, EU:C:2009:344, paragraph 52).

38 See judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence) (C‑930/19, EU:C:2021:657, paragraphs 51 and 52). It should be recalled that that case concerned the difference in treatment resulting from Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77), and Directive 2003/86 as regards the conditions for maintaining or granting a right of residence to third-country nationals who are victims of domestic violence following a divorce.

39 Judgment of 2 September 2021 (C‑930/19, EU:C:2021:657).

40 Judgment of 6 June 2023 (C‑700/21, EU:C:2023:444). That case concerned national legislation which reserved, for nationals of the executing Member State and EU citizens, the application of the first of two conditions to which the application of a ground of optional non-execution provided by the framework decision on the European arrest warrant was subject – namely, that the requested person is staying in the executing Member State or is a national of or resident in that Member State.

41 Judgment of 21 December 2016 (C‑272/15, ‘the judgment in Swiss International Air Lines ’, EU:C:2016:993).

42 Judgment of 9 June 2022 (C‑673/20, ‘the judgment in Préfet du Gers ’, EU:C:2022:449).

43 The judgment in Swiss International Air Lines (paragraphs 23 to 26 and the case-law cited).

44 The judgment in Préfet du Gers , paragraph 98, according to which ‘… there is nothing in the documents before the Court to suggest that the European Union, as a contracting party to the [Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2019 C 384I, p. 1)], exceeded the limits of its discretion in the conduct of external relations, by not requiring that, in that agreement in general or in Article 127 thereof in particular, a right to vote and to stand as a candidate in municipal elections in the Member State of residence be provided for United Kingdom nationals who exercised their right to reside in a Member State before the end of the transition period’.

45 It should be noted that, in the main proceedings, the rechtbank Den Haag (District Court, The Hague) held that the distinction on grounds of nationality, provided for in Article 17(1)(a) of the Vw 2000, amounted in practice to discrimination on grounds of descent or national or ethnic origin. Nevertheless, it is clear from the order for reference that the existence of such discrimination does not fall within the scope of the question referred for a preliminary ruling in the present case, since the relevant complaints raised by the Minister have already been definitively upheld by the referring court.

46 It should be recalled that, according to the explanations regarding the Charter, ‘in so far as [Article 21(1) of the Charter] corresponds to Article 14 of the ECHR, it applies in compliance with it.’

47 See ECtHR, judgment of 28 May 1985, Abdulaziz, Cabales and Balkandali v. the United Kingdom (CE:ECHR:1985:0528JUD000921480).

48 See ECtHR, judgment of 30 June 2016, Taddeucci and McCall v. Italy (CE:ECHR:2016:0630JUD005136209).

49 See ECtHR, judgment of 24 May 2016, Biao v. Denmark (CE:ECHR:2016:0524JUD003859010).