ECLI:EU:C:2026:168

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OPINION OF ADVOCATE GENERAL

NORKUS

delivered on 5 March 2026 (1)

Case C‑819/25 (PPU) [Gonrieh] (i)

Mrs X and Mr Y, acting on their own behalf and in their capacity as legal representatives of A, B, C and D

Belgian State

(Request for a preliminary ruling from the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium))

( Reference for a preliminary ruling – Area of freedom, security and justice – Family reunification – Authorisation of entry and residence – Directive 2003/86/EC – Article 5 – Article 13(1) – Consular protection for citizens of the Union – Article 20(2)(c) – Article 23 TFEU – Article 46 of the Charter of Fundamental Rights of the European Union – Directive (EU) 2015/637 – Obligation for a Member State to include beneficiaries of family reunification in a process for evacuation from the Gaza Strip established by that Member State or to inform the authorities of any third country preventing those beneficiaries from entering the European Union that they wish to reside there and have the required visas to do so )

I. Introduction

1. The present request for a preliminary ruling, which was made by the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium) on 12 December 2025, concerns the interpretation of Article 13(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (2) and Articles 2, 4, 7, 24 and 51 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2. The dispute in the main proceedings is set against the backdrop of the catastrophic humanitarian situation in the Gaza Strip following the military operation conducted by Israel and the blockade of that territory after the Hamas terrorist attacks on 7 October 2023. In that context, the Belgian State concluded an agreement with Israel and Jordan to establish a process for evacuating three categories of persons from the Gaza Strip, namely Belgian citizens, persons recognised as refugees in Belgium, and members of their nuclear family. In April 2025, pursuant to that agreement, around 500 people were included on an evacuation list. By 3 December 2025, only 62 people remained on that list, mainly persons recognised as refugees in Belgium and/or members of their nuclear family. The Belgian State has stated that it does not envisage including other categories of persons until all those on the evacuation list have been evacuated.

3. The request for a preliminary ruling has been made in proceedings between two Palestinian nationals, Mrs X and Mr Y, and four of their minor children (3) (together, ‘the applicants in the main proceedings’), on the one hand, and the Belgian State, on the other. Mr Y lawfully resides in Belgium and holds a work permit, while Mrs X and the children in question reside in the Gaza Strip. On 6 October 2025, the Belgian State authorised Mrs X and the children to enter and reside in Belgium for purposes of family reunification. However, Mrs X and the children were effectively blockaded in the Gaza Strip.

4. The applicants in the main proceedings argued before the referring court that the Belgian State should be ordered to include Mrs X and the four children on the evacuation list for the Gaza Strip and to take all the measures necessary for family reunification with Mr Y. In the alternative, they argued that the Belgian State should be ordered to inform the authorities of any third country preventing Mrs X and the four children from entering the European Union that they wish to reside there and have the required visas to do so.

5. The present case raises, inter alia, the important question as to whether a Member State must undertake diplomatic and consular actions vis-à-vis third countries in order to ensure the effectiveness of the right to family reunification.

II. Legal framework

A. European Union law

1. Directive 2003/86

6. Under Article 1 thereof, the purpose of Directive 2003/86 is ‘to determine the conditions for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the Member States’.

7. Article 2 of that directive provides:

‘For the purposes of this Directive:

…

(c) “sponsor” means 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;

(d) “family reunification” means the entry into and residence in a Member State by family members of a third-country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident’s entry;

…’

8. Article 4(1)(a) and (b) of that directive states:

‘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;

(b) the minor children of the sponsor and of his/her spouse …’

9. Chapter III of that directive, entitled ‘Submission and examination of the application’, contains Article 5 thereof, which provides:

‘1. Member States shall determine whether, in order to exercise the right to family reunification, an application for entry and residence shall be submitted to the competent authorities of the Member State concerned either by the sponsor or by the family member or members.

2. The application shall be accompanied 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, as well as certified copies of family member(s)’ travel documents.

If appropriate, in order to obtain evidence that a family relationship exists, Member States may carry out interviews with the sponsor and his/her family members and conduct other investigations that are found to be necessary.

When examining an application concerning the unmarried partner of the sponsor, Member States shall consider, as evidence of the family relationship, factors such as a common child, previous cohabitation, registration of the partnership and any other reliable means of proof.

…’

10. Article 13 of Directive 2003/86 states:

‘As soon as the application for family reunification has been accepted, the Member State concerned shall authorise the entry of the family member or members. In that regard, the Member State concerned shall grant such persons every facility for obtaining the requisite visas.’

11. The Communication from the Commission to the European Parliament and the Council on guidance for application of Directive 2003/86/EC on the right to family reunification [COM(2014) 210 final] (‘the guidance’) states in point 5.1:

‘Article 13(1) [of Directive 2003/86] requires that, as soon as an application for family reunification has been accepted, the [Member State] is obliged to grant family members every facility for obtaining the requisite visas. This implies that when an application is accepted, [Member States] should ensure a speedy visa procedure, reduce additional administrative burdens to a minimum and avoid double-checks on the fulfilment of the requirements for family reunification. …

If access to travel documents and visas is particularly difficult or dangerous and may thus constitute a disproportionate risk or a practical obstacle to the effective exercise of the right to family reunification, [Member States] are encouraged to consider the specificities of the case and the circumstances in the country of origin. In exceptional circumstances, for instance, in the context of a failed state or a country with high internal security risks, [Member States] are encouraged to accept emergency travel documents issued by the International Committee of the Red Cross (ICRC), to issue a national one-way laissez-passer, or offer family members the possibility of being issued a visa upon arrival in the [Member State].

…’

2. Directive (EU) 2015/637

12. Article 2(1) of Directive (EU) 2015/637 (4) reads as follows:

‘Member States’ embassies or consulates shall provide consular protection to unrepresented citizens on the same conditions as to their own nationals.’

13. Article 5 of that directive provides that ‘consular protection shall be provided to family members, who are not themselves citizens of the Union, accompanying unrepresented citizens in a third country, to the same extent and on the same conditions as it would be provided to the family members of the citizens of the assisting Member State, who are not themselves citizens of the Union, in accordance with its national law or practice.’

14. Under Article 9 of that directive:

‘The consular protection referred to in Article 2 may include assistance, inter alia, in the following situations:

…

(e) relief and repatriation in case of an emergency;

…’

III. The main proceedings and the questions referred for a preliminary ruling

15. Mrs X and Mr Y are married. They have five children born between 2013 and 2021. (5) Mr Y obtained a grant for post-doctoral studies at a Belgian university, as well as a visa to reside in Belgium and a work permit. On 3 May 2024, Mr Y left the Gaza Strip for Egypt via the Rafah Crossing Point with his son E. After the closure of the Rafah Crossing Point on 5 May 2024 and following Egypt’s refusal to open its border to those leaving the Gaza Strip, Mrs X and the other four children were prevented from leaving that territory.

16. In March 2025, the Kerem Shalom Crossing Point reopened. The Belgian State embarked on fresh diplomatic negotiations with Israel and Jordan in order to be able to continue with the evacuations which had been started in November 2023 and interrupted in March 2024. At the end of those negotiations, Israel, Jordan and the Belgian State agreed on an evacuation process for the three categories of persons mentioned in point 2 of this Opinion and drew up a list of around 500 persons to be evacuated.

17. It is apparent from the request for a preliminary ruling that, as soon as it is logistically possible for the Belgian State to undertake an evacuation, it requests the relevant Israeli and Jordanian authorities to indicate to it the number of persons that it is in fact authorised to evacuate. However, the Israeli and Jordanian authorities only sporadically respond to such requests. Under that evacuation process, the Belgian State is responsible for transporting the persons authorised for evacuation from the Gaza Strip, via Israel and Jordan, to Belgium. That process presents considerable logistical and organisational difficulties, as the Belgian authorities must provide sufficient numbers of qualified staff (at least some of whom speak Arabic), as well as coaches, hotel stays in Jordan, one or more aeroplanes, medical equipment, security measures, and so on. Those difficulties are intensified, in particular, by the lack of qualified staff on the ground and their state of exhaustion, by deplorable food and health conditions in the Gaza Strip (6) and by tensions in the areas passed through during evacuation. (7)

18. Mrs X and the couple’s five children submitted an application to the Belgian Office des étrangers (Office for Foreigners; ‘the Office’) for family reunification with Mr Y. That application was submitted remotely. On 6 October 2025, the Office granted visas to Mrs X and to the five children. Those visas (8) were granted subject to the suspensive condition that the identities of the persons concerned and the authenticity of the documents included with their visa application submitted remotely be verified at a later date upon their appearance in person at a Belgian embassy or consulate.

19. On 13 October 2025, the applicants in the main proceedings asked the crisis centre under the authority of the Belgian Minister for Foreign Affairs (Belgium) ‘to request [on behalf of Mrs X and the four children in question] the Israeli authorities’ approval for their departure from Gaza and the consent of the Egyptian and Jordanian authorities to their entry and passage through their territory in order to collect a visa from the Belgian Consulate and then proceed to Belgium … so as to give effect to the Office’s decision … regarding the grant of family reunification visas’.

20. In its response of 21 October 2025, the Crisis Centre mentioned the large number of challenges posed by the organisation of evacuations from the Gaza Strip, particularly in terms of security and logistics but also from an administrative point of view. The Crisis Centre also stated that ‘before [their] evacuation can be undertaken, it must be examined whether [the persons in question] have obtained a valid visa from the Office and whether [they meet] the criteria laid down by the Belgian Government to be eligible for evacuation. At present, there is a fixed list of around 500 persons … drawn up on the basis of pre-defined criteria. The list consists mainly of members of the nuclear family of persons with recognised refugee status in Belgium. For the time being, we are focusing solely on the evacuation of that group of around 500 persons.’

21. By interlocutory application served on 21 October 2025, the applicants in the main proceedings brought an action against the Belgian State before the referring court. At the hearing held before that court on 8 December 2025, Mr Y confirmed that his wife and his children, who had remained in the Gaza Strip, had only a tent for shelter. They had been reduced to cooking the little food they found with rubbish containing plastic, thus poisoning themselves in order to be able to feed themselves. Mr Y asserts that his children are relentlessly confronted with the horrors of war, with no distraction other than lessons at a makeshift school. According to him, one of his youngest children is currently convinced that he deliberately abandoned them and refuses to talk to him when Mrs X and Mr Y manage to contact each other via an instant messaging application.

22. The lawyer for the applicants in the main proceedings indicated at that hearing that Mr Y has also made an application to be granted refugee status. The examination of that application by the competent Belgian authority is still ongoing.

23. The applicants in the main proceedings have requested that the referring court order the Belgian State to include Mrs X and her four children on the evacuation list drawn up by that State and to make concrete arrangements for their evacuation as soon as the required formalities are completed and, in the alternative, to inform the Israeli and Jordanian authorities that they wish to leave the Gaza Strip in order to travel to Belgium. The Belgian State has requested that the referring court declare the claims made by the applicants in the main proceedings inadmissible and, in any event, unfounded.

24. The referring court considers that, given the difficulties that an operation to evacuate persons from the Gaza Strip would currently involve, ordering the Belgian State to evacuate Mrs X and the four children in question to Belgium would most probably represent an excessive burden (9) if no process were in place for that purpose. It emphasises that in this instance such a process exists and over 400 people have already benefitted from it. Therefore, in comparison, Mrs X and her four children would appear to ‘amount to very little’. The referring court nevertheless considers that ordering the Belgian State to include Mrs X and her children who remain in the Gaza Strip on the evacuation list amounts to increasing its humanitarian burden, when it spontaneously chose to provide assistance and other states may have refused to do so from the outset. That court therefore queries whether such an order would discourage the Belgian State from demonstrating such a willingness to provide assistance in the future during other crisis or war situations.

25. The referring court asserts that, under national law, the Belgian State has discretion in determining the order in which to evacuate different persons who may be evacuated under the agreement negotiated with Israel and Jordan. That being the case, the legality of the Belgian State’s action is subject to judicial review, albeit marginal and confined to manifest errors of assessment. According to the referring court, in this case and subject to a different conclusion resulting from the interpretation provided by the Court, the Belgian State did not make any manifest errors of assessment.

26. In that context, the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) When a Member State, under [Directive 2003/86] and in accordance with [the judgment in Afrin] (10) grants a visa in the context of family reunification and requires the recipient of the visa to be present in person when the visa is issued (in-person delivery) so that their identity can be verified, does the implementation of EU law under Article 51 of [the Charter] extend beyond granting the visa – for example to issuing it (in-person delivery)?

(2) If the answer to the first question is yes, should Article 13[(1)] of [Directive 2003/86], read in isolation or in conjunction with Articles 2, 4, 7 and 24 of [the Charter], be interpreted as requiring a Member State that has granted a visa as described in the first question, where the recipient of the visa (a third-country national) is unable to leave the third country where they reside alone and their life is clearly in danger, to provide that recipient with assistance enabling them to leave that country and have the visa issued to them (delivered in person)?

(3) If the answer to the second question is yes, should the assistance to be provided pursuant to the aforementioned legislation consist of:

– including the recipient of the visa (third-country national) in an evacuation process established by the Member State concerned for categories of persons determined by that Member State, under the same conditions as those persons and even if the recipient does not fall into those categories; or at the very least of

– informing the authorities of any third country preventing the recipient from entering the EU that that recipient wishes to reside there and has the required visa to do so, even if that information falls outside the aforementioned evacuation process?’

IV. Procedure before the Court of Justice

27. The referring court requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107(1) of the Rules of Procedure of the Court of Justice.

28. On 12 January 2026, the Court (Fifth Chamber) decided to deal with the present case under the urgent preliminary ruling procedure. The applicants in the main proceedings, the Belgian Government and the European Commission submitted written observations. Those interested parties, as well as the Czech, German, Greek, French, Italian and Netherlands Governments, presented oral argument at the hearing held on 11 February 2026.

V. Analysis

29. By its first question, the referring court asks, in essence, whether the implementation of EU law under Article 51 of the Charter extends beyond the grant of a visa by a Member State, pursuant to Article 13(1) of Directive 2003/86, to a beneficiary of family reunification subject to the suspensive condition of verification of his or her identity, in particular to its issuance. In the event that the Court answers that question in the affirmative, the referring court asks, by its second question, whether that Member State is required to assist the recipient of that visa in leaving the third country in which he or she resides in order to be issued with the visa, where he or she is unable to leave that country without assistance and his or her life is clearly in danger there. If that question is answered in the affirmative, the referring court asks, by its third question, whether that Member State must include the recipient of the visa in a process for evacuation from a third country or inform the authorities of any third country concerned that the recipient wishes to enter the European Union in order to reside there and that he or she has the necessary visas to do so.

30. I will examine those questions together. As part of that analysis, it will be necessary, first of all, to set out the arguments of the parties, before going on to provide an interpretation of the provisions of Directive 2003/86 in the light of the Court’s case-law. Lastly, I will consider the diplomatic and consular functions of the Member States in the light of EU law in order to support my analysis of the substance and the scope of the obligations imposed by Article 13(1) of Directive 2003/86.

A. Arguments of the parties

31. The applicants in the main proceedings submit that the implementation of Article 13(1) of Directive 2003/86 by a Member State extends beyond the grant of a visa and, in any event, to its in-person delivery. They consider that if the provision of assistance to those concerned is necessary to enable them to leave the Gaza strip and thus prevent the in-person delivery of the visa and, as a consequence, the exercise of the right to family reunification, from being rendered impossible, or to preserve the lives of those persons, the Member State in question must provide such assistance in accordance with Article 13(1) of Directive 2003/86 and Articles 2, 4, 7 and 24 of the Charter.

32. As regards the nature and the extent of the assistance to be provided by the Member State, the applicants in the main proceedings submit that it consists primarily of the inclusion of the recipient of the visa in an evacuation process established by the Member State. They maintain that that obligation, which applies only in exceptional circumstances (11) and forms part of an existing evacuation process, does not represent an impossible or disproportionate burden. They submit, in the alternative, that in the event that it is temporarily impossible to evacuate the persons concerned, the assistance to be provided ‘must consist in informing third countries preventing the beneficiary [of family reunification] from entering the European Union that he or she wishes to travel to the territory of the Member State concerned and has been authorised to do so by that Member State’.

33. The Belgian Government submits that a distinction should be made between the administrative procedure for the grant of a visa governed by Directive 2003/86 and the provision of consular assistance to persons who hold such a visa, such assistance not being regulated in any way by EU law. According to the Belgian Government, when read in conjunction, the provisions of Articles 4, 5, and 10 of Directive 2003/86, as well as Article 13(1) thereof, show that the application of that directive does not extend beyond the notification of decisions, such as those adopted on 6 October 2025, which, in a single decision, accept the application for family reunification and indicate that the issuance of a visa is approved by the Member State. It submits that, in so far as it does not in itself prevent those persons from collecting their visas in person, the application of Directive 2003/86 does not extend beyond the notification that visas have been granted.

34. Granting ‘every facility for obtaining the requisite visas’ under Article 13(1) of Directive 2003/86 does not amount to a commitment on the part of Member States to provide assistance enabling the recipient of a visa to leave his or her country of residence. Furthermore, no rule of international, EU or national law establishes a right to assistance of that kind. The Belgian Government argues that such an interpretation could also give rise to discrimination, as a Belgian citizen or a Union citizen could not require the State of which he or she is a national to include him or her in a repatriation operation enabling him or her to leave the Gaza Strip given that there is no right to consular assistance. It submits that establishing such a right solely for recipients of family reunification visas, even if limited to the two consular assistance measures mentioned in the third question referred, thus appears to be discriminatory.

35. The Commission contends that an analysis of the general scheme of Directive 2003/86 shows that the legislature did not intend to impose on Member States disproportionate obligations in terms of finances or human resources, aside from the obligations expressly provided for. It submits that, in accordance with Article 13(1) of Directive 2003/86, the facilities which a Member State must grant in order to enable the persons concerned to obtain a visa are, in principle, administrative. However, in the present case, failure by the Member State to take action would have the effect of making it impossible for Mrs X and her children to collect their visas, thereby rendering the right to family reunification meaningless. In that context, where the lives of Mrs X and her children are in danger, the Commission submits that Article 13(1) of Directive 2003/86 should be interpreted in the light of the Charter, in particular Articles 2, 4, 7 and 24 thereof, as including an obligation for the Member State to use every means at its disposal to enable the visas to be issued, without, however, imposing an excessive or even impossible burden on that Member State.

36. According to the Commission, the requirement that the Member State show flexibility (12) to enable the actual issuance of the visa cannot readily be interpreted as encompassing an obligation to include the persons concerned on the evacuation list, and subsequently to evacuate them to Belgium. It would constitute an excessive burden which Directive 2003/86, interpreted in the light of fundamental rights, cannot impose on a Member State in a situation such as that at issue. By contrast, the Commission asserts that simply informing the authorities of the third countries concerned, or even requesting the competent third countries to allow those persons to leave the Gaza Strip, could be covered by Article 13(1) of that directive and does not, prima facie, appear to entail an excessive burden or specific risk for that Member State. According to the Commission, it is for the Member State to assess whether such action is conceivable or whether, on the contrary, it could have a detrimental impact on its relations with those third countries.

37. At the hearing, the Czech, German, Greek, French, Italian and Netherlands Governments unanimously asserted that the actions requested by the applicants are diplomatic in nature, whereas those provided for by Article 13(1) of Directive 2003/86 are purely administrative. In addition, it was emphasised that, although informing the authorities of a third country that the persons concerned wish to leave the Gaza Strip appears to be a ‘less onerous’ measure, it nevertheless constitutes diplomatic action which does not fall within the scope of the administrative obligations under that provision. The highly formal nature of diplomatic contacts between States was also highlighted.

B. Directive 2003/86 and the judgment in Afrin

1. Preliminary remarks

38. Under Article 1 thereof, the purpose of Directive 2003/86 is to determine the conditions for the exercise of the right to family reunification by third-country nationals residing lawfully in the territory of the Member States. The Court has repeatedly ruled that that directive is intended to promote family reunification and to grant protection to third-country nationals, in particular minors. It is settled case-law that the provisions of Directive 2003/86 must be interpreted and applied in the light of Article 7 and Article 24(2) and (3) of the Charter, (13) as is moreover apparent from recital 2 (14) and Article 5(5) of that directive, under which the Member States are required to examine applications for family reunification having regard to the interests of the children concerned and the objective of promoting family life.

39. Nevertheless, it should be noted that in its request for a preliminary ruling the referring court made reference to Articles 2 (right to life) and 4 (prohibition of torture and inhuman or degrading treatment or punishment) of the Charter. I consider in that regard that, where a Member State implements Directive 2003/86, those provisions of the Charter may also be relevant, depending on the particular circumstances of the case.

40. In order to promote family reunification, Article 4(1) of Directive 2003/86 imposes on the Member States precise positive obligations, with corresponding clearly defined individual rights. More specifically, under Article 4(1)(a) and (b) of that directive, the Member States must authorise the entry and residence, pursuant to the directive, of the sponsor’s spouse and the minor children of the sponsor and of his or her spouse. The Member States must therefore authorise the family reunification of those members of the sponsor’s family, without being left a margin of appreciation, provided that the conditions laid down in Chapter IV of that directive are satisfied. (15) Given that authorisation of family reunification is the general rule, the conditions laid down in Chapter IV of Directive 2003/86 must be interpreted strictly so as not to undermine the objective of that directive or the effectiveness thereof. (16)

41. Article 5 of Directive 2003/86 lays down the rules governing the procedure for the submission and examination of an application for family reunification. It follows from paragraph 1 thereof that it is for the Member States to determine (i) the person who is authorised to submit an application for entry and residence, in order to exercise the right to family reunification, and (ii) the authorities which are competent to register such an application. (17) Furthermore, under the first subparagraph of paragraph 2 of that article, the application for family reunification must be accompanied by ‘documentary evidence of the family relationship’. In addition, the second subparagraph of paragraph 2 provides that, ‘if appropriate, in order to obtain evidence that a family relationship exists, Member States may carry out interviews with the sponsor and his/her family members and conduct other investigations that are found to be necessary’. Lastly, when the application for family reunification has been accepted, the Member State concerned must authorise the entry of the sponsor’s family member and grant him or her a first residence permit in accordance with Article 13(1) and (2) of Directive 2003/86. Thus, the competent national authorities are required, before authorising family reunification under Directive 2003/86, to establish the existence of the relevant family links between the sponsor and the third-country national in respect of whom the application for family reunification is made. (18)

42. It should be noted in that regard that in the judgment in Afrin the Court ruled that Article 5(1) of Directive 2003/86, read in conjunction with Article 7 and Article 24(2) and (3) of the Charter, precludes national legislation which requires, for the purposes of submitting an application for entry and residence with a view to family reunification, that the sponsor’s family members appear in person at the diplomatic or consular post (19) competent in respect of the place of their temporary or permanent residence abroad, (20) including in a situation where it is impossible or excessively difficult for them to travel to that post. The operative part of that judgment expressly states that such an interpretation of EU law is without prejudice to the possibility for the Member State to require that those family members of the sponsor appear in person at a later stage of the application procedure for family reunification. (21) In paragraph 59 of that judgment, the Court thus held that the Member State must facilitate such an appearance, notably through the issuance of consular documents or laissez-passers.

43. However, it is evident from the case which gave rise to the judgment in Afrin that (i) the national provision at issue, which transposed Article 5(1) of Directive 2003/86, required that the sponsor’s family members appear in person at the time of the submission of an application for entry and residence with a view to family reunification and (ii) the national law made no provision for derogations in respect of situations where this was impossible or excessively difficult. The sponsor’s family lived in a conflict zone, namely the town of Afrin in north-west Syria, and by travelling risked exposing themselves to inhuman or degrading treatment, and even threats to their lives. Under national law, the persons concerned could not therefore submit an application for family reunification in the Member State in question. In those circumstances, the Court ruled that the absence of the necessary flexibility to enable those concerned in practice to submit their application for family reunification in good time, by facilitating the submission of that application and allowing, in particular, the use of remote means of communication, rendered the exercise of the right to family reunification impossible in practice and deprived Directive 2003/86 of its effectiveness.

2. Assessment of the case at issue

44. In the present case, unlike in the case which gave rise to the judgment in Afrin, the Belgian State permitted Mrs X and the couple’s five children to submit remotely an application for family reunification with Mr Y. Furthermore, that application was accepted on 6 October 2025 and the Office granted a visa to Mrs X and her five children, subject to the suspensive condition that the identities of the persons concerned and the authenticity of the documents included with their visa application submitted remotely be verified at a later date upon their appearance in person at a Belgian embassy or consulate.

45. In the light of the foregoing, it seems that the Office followed the principles laid down in the judgment in Afrin and, in view of the deplorable humanitarian situation in the Gaza Strip, showed the necessary flexibility, in particular, to ensure the effectiveness of the procedure for the submission and examination of the application for reunification under Article 5 of Directive 2003/86 in the circumstances of the main proceedings. The adjustments made to the procedural rules adopted by the Office in this case seem to have permitted the authorisation of family reunification whilst ensuring that verification, in particular of the identities of the persons concerned, is carried out at a later stage in accordance with the Court’s case-law.

46. The core issue of the present case does not relate to the stage at which family reunification itself is authorised, but rather a later stage of the procedure, namely the stage of (authorising) the entry of the sponsor’s family member or members. (22) Under Article 13(1) of Directive 2003/86, the Member State concerned is required, as soon as the application for family reunification has been accepted, to authorise the entry of the family member or members and to grant them ‘every facility for obtaining the requisite visas’.

47. As the Commission rightly indicated, the expression ‘grant … every facility for obtaining the requisite visas’ is not defined in Directive 2003/86. Furthermore, to my knowledge, to date the Court has not interpreted that expression. (23) Nevertheless, it is clear from the very wording of Article 13(1) of that directive that that provision is intended to facilitate the obtaining of visas from the moment family reunification has been authorised. In that respect, it requires the operation of the system for the issuance of visas to be quick and effective. (24)

48. In my view, that provision clearly lays down not only the obligation for Member States to eliminate any unjustified administrative obstacle but also the obligation to establish and operate effective administrative procedures for the issuance of visas so as to ensure the effectiveness of the right to family reunification. That interpretation is supported by recital 13 of Directive 2003/86, which states that the rules governing the procedure for examination of applications for family reunification and for entry and residence of family members must be ‘effective and manageable, taking account of the normal workload of the Member States’ administrations’, and by point 5.1 of the guidance, which refers inter alia to reducing additional administrative burdens to a minimum. (25)

49. It should be emphasised that, although Directive 2003/83, in particular Article 13(1) thereof, requires constructive and even active cooperation from the authorities of the Member State concerned, such cooperation nevertheless remains administrative in nature. That interpretation is borne out by the judgment in Afrin. In paragraph 59 of that judgment, the Court held that ‘in order not to undermine the objective pursued by Directive 2003/86 of promoting family reunification and the fundamental rights which that directive is intended to protect, when the Member State requires the sponsor’s family members to appear in person at a later stage in the procedure, (26) that Member State must facilitate such an appearance, notably by issuing consular documents or laissez-passers’. It is clear that ‘issuing consular documents or laissez-passers’ constitutes a purely administrative action. (27) The action is taken under the sole responsibility of the Member State in question.

50. It follows that Article 13(1) of Directive 2003/86 envisages full, ongoing cooperation by the responsible national authorities with applicants for family reunification up to the stage when the visa is actually issued. That obligation reflects the principle of sincere cooperation laid down in the second subparagraph of Article 4(3) TEU and the right to good administration enshrined in Article 41 of the Charter. (28) However, it does not require national authorities to adopt extraordinary measures or measures which do not fall within the scope of the directive.

51. The obligation to evacuate the applicants in the main proceedings from the Gaza Strip or to provide them with consular assistance by informing the authorities of third countries that they wish to leave that territory (29) would require extraordinary measures to be taken which are wholly unrelated to the administrative requirements imposed by Article 13(1) of Directive 2003/86. (30) Those obligations require a Member State to take, vis-à-vis one or more third countries, diplomatic or consular actions which are not provided for by that directive and, moreover, do not fall within its scope. I would observe that, although the second order requested by the applicants in the main proceedings might, at first sight, (31) seem less onerous than the first, (32) that does not alter the diplomatic or consular nature of such action, which does not fall within the scope of Directive 2003/86. Moreover, an unjustified extension of the obligations laid down by that directive cannot be contemplated, even if they could be ‘easily’ achieved (quod non) by Member States. (33)

52. It should be noted in that regard that Directive 2003/86 was adopted on the basis of point 3(a) of the first paragraph of Article 63 of the EC Treaty, now Article 79 TFEU. That act therefore comes under Title V of the FEU Treaty on the area of freedom, security and justice and not, for example, Title V of the EU Treaty, which lays down general rules on the external action of the European Union and specific provisions on its common foreign and security policy (CFSP). (34) Even though, in some cases, there is an overlap between the objectives pursued by those policies, the essential purpose and object of Directive 2003/86 is to ensure fair treatment of third-country nationals residing lawfully on the territory of the Member States. By promoting family life, that directive helps to create sociocultural stability facilitating the integration of third-country nationals in the Member State. (35) Thus, while measures adopted on the basis of Article 79 TFEU could have an ‘external’ aspect or dimension, (36) Directive 2003/86 seeks to strengthen the Union’s ‘internal’ policy on legal immigration. (37)

53. I therefore consider that the obligations at issue would not only go beyond the wording and the objective of Directive 2003/86, but would also encroach upon the diplomatic or consular activities of the Member States, and would fundamentally alter the distribution of competences between the Member States and the European Union. There is nothing in Directive 2003/86 to indicate that this was the intention of the EU legislature.

54. Moreover, it should also be noted that the interpretation of the Charter cannot affect that conclusion. Indeed, where the Member States’ action falls outside the scope of EU law, the provisions of the Charter do not apply. (38) It should be recalled in that regard that, under Article 51(1) of the Charter, the provisions of the Charter are addressed to the Member States only when they are implementing EU law. (39) Article 51(2) states that the provisions of the Charter do not extend in any way the powers of the European Union as defined in the Treaties. Those provisions confirm the Court’s settled case-law according to which the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. (40)

55. The provisions of the Charter are addressed to the Member States when they are implementing the provisions of Directive 2003/86, including Article 13(1). It follows that, when a Member State grants a visa in the context of family reunification and requires the recipient to appear for the in-person delivery of that visa so that his or her identity can be verified, the implementation of EU law under Article 51(1) of the Charter extends beyond the grant of the visa, in particular, to its actual issuance. (41) Without such in-person appearance and delivery of that visa, the objective of Article 13(1) of Directive 2003/86 of authorising the entry of the family member or members would not be achieved. It would therefore be contrary to the objective of that directive to limit the Member States’ obligation to grant ‘every facility for obtaining the requisite visas’ to merely the grant of such visas under suspensive conditions without, however, facilitating the completion of the administrative actions that allow those conditions to be met.

56. Consequently, I consider that the first question should be answered in the affirmative.

57. However, given that evacuating the applicants in the main proceedings from the Gaza Strip or providing them with consular assistance by informing the authorities of third countries that they wish to leave that territory are not actions or ‘tasks’ (42) regulated by Directive 2003/86, they do not constitute ‘implementation’ of Union law under Article 51(1) of the Charter. (43) Neither the provisions of Directive 2003/86 nor those of the Charter can be interpreted in a way that would artificially modify the scope of the obligations imposed on Member States by Article 13(1) of that directive or the distribution of competences and tasks between the Union and the Member States under the Treaties. (44)

58. The obligation to ensure the practical and effective application of the rights covered by Directive 2003/86 and, more precisely, the obligation to grant beneficiaries of authorisation for family reunification every facility for obtaining the requisite visas does not impose on the Member State which granted those visas the obligation to include the recipients of the visas in a process for evacuation from the Gaza Strip established by it or to inform the authorities of any third country preventing those recipients from entering the European Union that they wish to reside there and have the required visas to do so. Neither the wording nor the scheme of Directive 2003/86 or Article 51 of the Charter support such an interpretation.

C. The diplomatic and consular functions of the Member States in the light of EU law

59. Notwithstanding my analysis of the provisions of Directive 2003/86 and the notion of ‘implementation of the Charter’ in the context of the questions put by the referring court, I consider that, in order to provide that court with a useful answer, it is necessary to examine whether, and, if so, to what extent, EU law governs the diplomatic and consular functions of the Member States.

60. In that regard, I am aware of only one situation in which EU law governs those functions. Union citizenship (45) confers on any national of a Member State, in a third country in which that Member State is not represented, the right, enshrined in Article 20(2)(c) TFEU and in Article 46 of the Charter and given specific expression in Article 23 TFEU, to the protection of the diplomatic and consular authorities of other Member States on the same conditions as the nationals of those States. (46) Furthermore, Directive 2015/637, (47) which was adopted on the basis of Article 23 TFEU, lays down the cooperation and coordination measures necessary to further facilitate consular protection for unrepresented citizens of the Union. Those measures aim to enhance legal certainty as well as efficient cooperation and solidarity among consular authorities. (48) Under Article 9(e) of that directive, the consular protection referred to may include assistance in relation to ‘relief and repatriation in case of an emergency’.

61. It must be stated that the provisions in question concern only Union citizens who are in the territory of a third country in which the Member State of which they are nationals is not represented and, in certain circumstances, members of their family who accompany them and who are not themselves citizens of the Union. (49) By contrast, they do not apply to third-country nationals who benefit from family reunification under Directive 2003/86. In any event, since the orders requested by the applicants in the main proceedings do not constitute implementation of the policies and actions of the Union, Article 10 TFEU on non-discrimination is not applicable. (50)

62. It should be noted in that respect that although Article 20(2)(c) TFEU, Article 23 TFEU, Article 46 of the Charter and Directive 2015/637 establish, subject to certain conditions, a system of equal treatment between nationals of one Member State and nationals of another Member State in a third country in which the latter Member State is not represented, those provisions do not, as such, regulate consular relations between Member States and third countries. (51) According to recital 5 of Directive 2015/637, ‘[that] directive does not affect Member States’ competence to determine the scope of the protection to be provided to their own nationals’. (52) The provisions in question cannot therefore be interpreted as imposing on Member States an obligation to repatriate their own nationals in an emergency situation. The same conclusion applies a fortiori to nationals of a third country. (53)

63. In the same vein, the Grand Chamber of the European Court of Human Rights found, in its judgment in H.F. and Others v. France, that ‘there is no obligation under international treaty law or customary international law for States to repatriate their nationals’. It further confirmed that in international law there was no ‘individual right to diplomatic protection’ for a State’s nationals. According to that Court, such a right ‘would be incompatible with international law and the discretionary power of States’. (54)

64. In that judgment, the European Court of Human Rights was called on to rule on the scope of Article 3(2) of Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, (55) under which no one may be ‘deprived of the right to enter the territory of the State of which he is a national’. (56) The case which gave rise to that judgment concerned the refusal by the French Republic to repatriate French nationals held with their children in camps in Syria after the fall of the ‘Islamic State’.

65. Nevertheless, the European Court of Human Rights held that, even though Article 3(2) of Protocol No 4 does not guarantee a general right to repatriation for the benefit of nationals of a State who are outside its borders, that provision may, in exceptional circumstances, (57) impose a positive obligation where a refusal by that State to take any action would leave the national concerned in a situation comparable, de facto, to that of exile. (58) Such an obligation requires, where there are exceptional circumstances, that the decision-making process concerning the request for repatriation is surrounded by appropriate safeguards against arbitrariness. In practice, this entails the establishment of a review mechanism through which it can be ascertained that there is no arbitrariness in any of the grounds that may legitimately be relied upon by the executive authorities, whether derived from compelling public interest considerations or from any legal, diplomatic or material difficulties. (59)

66. Aside from the fact that Article 3(2) of Protocol No 4 applies only to nationals of the Contracting States, I note, for the sake of completeness, that there is no indication that the decision-making process concerning the evacuation request made by the applicants in the main proceedings was not surrounded by appropriate safeguards against arbitrariness.

67. It should be recalled that, according to the referring court, the discretion available to the Belgian State under national law does not escape review by the judiciary of its legality, even though that review is marginal under national law. That court also stated that, according to the case-law of the Cour constitutionnelle (Belgique) (Constitutional Court, Belgium), despite the absence of an individual right to consular assistance in national law, ‘the decision by the consular post on whether or not to provide consular assistance is an individual administrative act, which must therefore be expressly and duly reasoned. That statement of reasons may be challenged by the person concerned before the section du contentieux administratif du Conseil d’État (Administrative Law Division of the Council of State, Belgium) in an action for annulment or before an ordinary court, in particular in an action for damages [that is to say, in the course of a review of legality carried out by one of those judicial bodies]’. (60)

68. In the light of the foregoing considerations, I take the view that the judgment in H.F. and Others v. France does not support the position of the applicants in the main proceedings and cannot extend the scope of EU law to the diplomatic and consular actions requested by them. Any judicial review of the decision-making process of the Belgian authorities must, in accordance with national law, be assessed by the referring court.

VI. Conclusion

69. In the light of the foregoing considerations, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium) as follows:

Articles 4 and 5 and Article 13(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, read in the light of Articles 2, 4 and 7, Article 24(2) and (3), and Article 51 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that:

– when a Member State grants a visa in the context of family reunification and requires the recipient of the visa to appear for the in-person delivery of that visa so that his or her identity can be verified, the implementation of EU law extends beyond the grant of the visa, in particular, to its issuance;

– they do not require a Member State which has granted visas to third-country nationals in the context of family reunification to include those persons in an evacuation process established by that Member State or to inform the authorities of any third country preventing those recipients from entering the European Union that they have a visa to reside in the Member State in question.

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 Namely A, born in 2013, B, born in 2016, C, born in 2018, and D, born in 2021.

4 Council Directive of 20 April 2015 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and repealing Decision 95/553/EC (OJ 2015 L 106, p. 1).

5 One of their children (‘E’), born in 2014, is not a party to the main proceedings.

6 The state of health of some evacuees requires the presence of medical staff or even urgent medical transportation and therefore the use of ambulances. In addition, those deplorable conditions also expose the officials involved to health risks.

7 Indeed, those tensions expose both the persons being evacuated and the Belgian State officials to a known risk of injury or death.

8 According to paragraph 37 of the request for a preliminary ruling, the parties to the main proceedings agree that the visas were granted by the Belgian State to Mrs X and her children on the basis of Directive 2003/86.

9 See, to that effect, ECtHR, 14 September 2022, H.F. and Others v. France, CE:ECHR:2022:0914JUD002438419, ‘the judgment in H.F. and Others v. France’, § 252.

10 Judgment of 18 April 2023, (C‑1/23 PPU, ‘the judgment in Afrin’, EU:C:2023:296).

11 That is to say, where the person concerned is unable, without assistance, to leave the territory where he or she resides and his or her life is clearly in danger.

12 In accordance with the judgment in Afrin.

13 The right to respect for private and family life is enshrined in Article 7 of the Charter. That article must, moreover, be read in conjunction with the obligation to take account of the child’s best interests, which is established in Article 24(2) of the Charter. Lastly, account must be taken, in accordance with Article 24(3) of the Charter, of the need for a child to maintain on a regular basis a personal relationship with both his or her parents. See judgment of 17 November 2022, Belgische Staat (Married refugee minor) (C‑230/21, EU:C:2022:887, paragraphs 47 and 48 and the case-law cited).

14 That recital states that ‘measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law’.

15 The judgment in Afrin, paragraph 42 and the case-law cited.

16 See, to that effect, judgment of 4 March 2010, Chakroun (C‑578/08, EU:C:2010:117, paragraph 43).

17 The judgment in Afrin, paragraphs 39 and 40.

18 See, to that effect, judgment of 20 November 2019, X (Implicit acceptance decision system) (C‑706/18, EU:C:2019:993, paragraphs 30, 32, and 34).

19 Of the Member State in question.

20 In that case, the Member State in question maintained that the presence of the sponsor’s family members at a diplomatic post was essential for the purpose of the verification of their identity through the production of their biometric identifiers.

21 In paragraph 58 of the judgment in Afrin, the Court held that ‘the Member States may require the sponsor’s family members to appear in person at a later stage in that procedure, for the purpose, in particular, of verifying the family ties and the identity of the persons concerned’.

22 At the hearing, certain Member States stated that they dealt with the two stages provided for in Directive 2003/86 simultaneously.

23 It should be noted that Article 13 of Directive 2003/86 is not referred to in the judgment in Afrin, which is probably because that provision applies only once family reunification is authorised. In that case, such authorisation had not (yet) been granted.

24 See, to that effect, the expression ‘as soon as’ used in that provision.

25 In my view, it is matter of eliminating such ‘unnecessary red tape’. See, by analogy, judgment of the ECtHR of 10 July 2014, Mugenzi v. France (CE:ECHR:2014:0710JUD005270109, § 52), where the European Court of Human Rights held that, after family reunification had been recognised, in principle, for a refugee, ‘it was essential that the visa applications were examined promptly, carefully and with particular diligence’.

26 As in the present case. See the suspensive condition imposed by the Belgian State.

27 That interpretation is supported by the drafting history of Directive 2003/86. See the Explanatory Memorandum relating to Article 11(1) of the Proposal for a Council Direction on the right to family reunification [COM(1999) 638 final], which states that ‘once a positive decision has been taken by the authorities of the Member State on the applicant’s application, the entry of the family member is authorised. If the third-country national, being a member of the applicant’s family, needs a visa to enter the Member State where the applicant resides, the Member State must facilitate the issuance of the visa and, in particular, issue it without delay’. Article 11(1) of that Proposal corresponds to Article 13(1) of Directive 2003/86.

28 Although Article 41 of the Charter on the right to good administration is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union, that provision reflects a general principle of EU law, which is applicable to Member States when they are implementing that law. See judgment of 24 November 2020, Minister van Buitenlandse Zaken (C‑225/19 and C‑226/19, EU:C:2020:951, paragraph 34).

29 At the hearing, several governments informed the Court that ‘simply informing’ the authorities of third countries about a sponsor and his or her family, even with their consent, could in some cases constitute an infringement of Article 30(a) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60). Under that provision, Member States may not ‘disclose information regarding individual applications for international protection, or the fact that an application has been made, to the alleged actor(s) of persecution or serious harm’.

30 By using the expression ‘simply informing’, the Commission presented the second order requested by the applicants in the main proceedings as a (much) less onerous action than the first order requested. In my view, however, the consequences of the obligation to inform the authorities of certain third countries of the situation of Mrs X and her children must not be trivialised or underestimated. Furthermore, the Commission seems to recognise that such an obligation could have a detrimental effect and undermine the evacuation process established by the Belgian State. See point 36 of this Opinion.

31 It should be noted that the ‘less onerous’ nature of such action was fiercely disputed at the hearing. See point 37 of this Opinion.

32 According to the request for a preliminary ruling, the Belgian State argued before the referring court that such an order would represent an excessive burden or unjustifiably undermine its discretion. According to the Belgian State, it ‘would mean exerting indirect pressure on Israel and Jordan – and thus could compromise diplomatic relations between the Belgian State and those two States. [The Belgian State] considers that a diplomatic incident would be even more likely in this case, given that an evacuation process has been negotiated with those two States and the requested communication of information does not fall within that framework’.

33 Such extension would constitute a kind of ‘competence creep’ and infringe the principle of conferral enshrined in Article 4(1) and in Article 5(1) and (2) TEU.

34 Declaration No 14 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon (OJ 2008 C 115, p. 343) states in its first paragraph that the provisions of the Treaty of Lisbon covering the CFSP ‘will not affect the … powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries and participation in international organisations’.

35 See recitals 3 and 4 of Directive 2003/86.

36 See, in particular, Article 79(2)(c) TFEU on removal and repatriation of persons residing without authorisation.

37 With regard to the distinction between ‘internal’ policy and ‘external’ policy and the choice of legal basis, see judgment of 19 July 2012, Parliament v Council (C‑130/10, EU:C:2012:472, paragraphs 67 to 78).

38 See, by analogy, judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 19).

39 Judgment of 20 March 2025, Arce (C‑365/23, EU:C:2025:192, paragraph 98).

40 Judgment of 28 November 2024, PT (Agreement concluded between the prosecutor and the perpetrator of an offence) (C‑432/22, EU:C:2024:987, paragraphs 33 and 34).

41 It clear from reading Articles 14 and 15 of Directive 2003/86 that the scope of that directive extends beyond authorising entry of the sponsor’s family member or members. It should be noted that, under Article 14(1) of Directive 2003/86, the sponsor’s family members are entitled, after authorisation of entry and residence, inter alia to access to education, access to employment and self-employed activity and access to vocational guidance, initial and further training and retraining. Furthermore, Article 15(1) of that directive provides that not later than after five years of residence, and provided that the family member has not been granted a residence permit for reasons other than family reunification, the spouse or unmarried partner and a child who has reached majority is entitled, upon application, if required, to an autonomous residence permit, independent of that of the sponsor.

42 See Article 51(2) of the Charter. In my view, those actions constitute ‘new tasks’ within the meaning of that provision.

43 There is no link between the administrative measures provided for by Article 13(1) of Directive 2003/86 and the diplomatic and consular action requested by the applicants in the main proceedings.

44 See, to that effect, Article 4(1) and Article 5(1) and (2) TEU regarding the principle of conferral which governs Union competences.

45 It should be noted that Article 20(1) TFEU confers Union citizenship on every person holding the nationality of a Member State. The Court has held on various occasions that Union citizenship is destined to be the fundamental status of nationals of the Member States. See, to that effect, judgment of 29 April 2025, Commission v Malta (Citizenship by investment) (C‑181/23, EU:C:2025:283, paragraph 92 and the case-law cited).

46 Judgment of 29 April 2025, Commission v Malta (Citizenship by investment) (C‑181/23, EU:C:2025:283, paragraph 90). See also Article 46 of the Charter and Article 35 TEU and Article 221(2) TFEU, which provide for cooperation between Member States’ diplomatic and consular missions and Union delegations in third countries.

47 See also Council Directive (EU) 2019/997 of 18 June 2019 establishing an EU Emergency Travel Document and repealing Decision 96/409/CFSP (OJ 2019 L 163, p. 1). According to Article 1, that directive ‘lays down rules on the conditions and procedure for unrepresented citizens in third countries to obtain an EU Emergency Travel Document … and establishes a uniform format for such document.’

48 See, to that effect, recital 4 of Directive 2015/637. See also Article 8 of the Vienna Convention on Consular Relations, done at Vienna on 24 April 1963 and which entered into force on 19 March 1967, United Nations Treaty Series, Vol. 596, p. 261, entitled ‘Exercise of consular functions on behalf of a third State’, which provides: ‘upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State.’ See also Article 46 of the Vienna Convention on Diplomatic Relations, done at Vienna on 18 April 1961 and which entered into force on 24 April 1964, United Nations Treaty Series, Vol. 500, p. 95, which provides that ‘a sending State may with the prior consent of a receiving State, and at the request of a third State not represented in the receiving State, undertake the temporary protection of the interests of the third State and of its nationals.’

49 See Article 5 of Directive 2015/637.

50 The same holds for Article 21 of the Charter.

51 See, to that effect, Article 1(2) of Directive 2015/637.

52 See also recital 6 of Directive 2015/637, which provides that ‘[that] directive does not affect consular relations between Member States and third countries, in particular their rights and obligations arising from international customs and agreements’.

53 Since the orders requested by the applicants in the main proceedings do not constitute actions or ‘tasks’ regulated by EU law, there is no need to examine whether they represent ‘an excessive burden’. Such an analysis would effectively determine whether the principle of proportionality, which governs the exercise of the Union’s competences, has been respected and thus whether ‘the content and form of Union action [do] not exceed what is necessary to achieve the objectives of the Treaties’. See Article 5(1) and (4) TEU.

54 See, to that effect, judgment in H.F. and Others v. France, § 259. See also Barcelona Traction, Light and Power Company, Limited (New application: 1962), Judgment, Belgium v. Spain, ICJ Reports 1970, p. 3. In paragraphs 78 and 79 of that judgment, the International Court of Justice held that ‘within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal persons on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. … The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case.’

55 Strasbourg, 16.IX.1963. ‘Protocol No 4’.

56 It should also be stated that the European Court of Human Rights held that ‘only the nationals of the State concerned may rely on the right guaranteed by Article 3 § 2 of Protocol No 4 to enter its territory’. See judgment in H.F. and Others v. France, § 245 and the case-law cited.

57 For example, where extraterritorial factors directly threaten the physical well-being and life of a child in a situation of extreme vulnerability.

58 See, to that effect, judgment in H.F. and Others v. France, § 260.

59 See, to that effect, judgment in H.F. and Others v. France, § 276. After establishing the existence of such exceptional circumstances, the European Court of Human Rights found that there had been a violation of Article 3(2) of Protocol No 4 because the applicants did not receive any explanation for the choice underlying the decision taken by the executive in respect of them, except for the implicit suggestion that it stemmed from the implementation of the policy pursued by France, albeit that a number of minors had previously been repatriated. Nor did they obtain any information from the French authorities which might have contributed to the transparency of the decision-making process. Furthermore, that situation could not be remedied by the proceedings brought before the domestic courts as those courts decided that they had no jurisdiction on the grounds that the matter before them concerned acts that could not be detached from the conduct by France of its international relations (§§ 277, 280 and 281 of that judgment).

60 Cour constitutionnelle (Constitutional Court), No 117/2020 of 24 September 2020, point B.8.3, last paragraph.

Opinion of Advocate General Norkus delivered on 5 March 2026.###

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