K and B v Staatssecretaris van Veiligheid en Justitie (C-380/17)

Contents

Judgment of the Court (Third Chamber)7 November 2018^note(Reference for a preliminary ruling — Jurisdiction of the Court — Directive 2003/86/EC — Right to family reunification — Article 12 — Failure to comply with the time limit of three months following the grant of international protection — Beneficiary of subsidiary protection status — Rejection of an application for a visa)In Case C‑380/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Raad van State (Council of State, Netherlands), made by decision of 21 June 2017, received at the Court on 26 June 2017, in the proceedingsK,BvStaatssecretaris van Veiligheid en Justitie,THE COURT (Third Chamber),composed of M. Vilaras, President of the Fourth Chamber, acting as President of the Third Chamber, J. Malenovský, L. Bay Larsen (Rapporteur), M. Safjan and D. Šváby, Judges,Advocate General: P. Mengozzi,Registrar: R. Şereş, Administrator,having regard to the written procedure and further to the hearing on 19 March 2018,after considering the observations submitted on behalf of:– K and B, by C.J. Ullersma and L. van Leer, advocaten,– the Netherlands Government, by M.K. Bulterman and M.H.S. Gijzen, acting as Agents,– the European Commission, by C. Cattabriga and G. Wils, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 27 June 2018,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 12(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).

2The request has been made in proceedings between, on the one hand, K and B, third-country nationals, and, on the other, the Staatssecretaris van Veiligheid en Justitie (State Secretary for Security and Justice, Netherlands) (‘the State Secretary’) concerning the State Secretary’s rejection of an application for a visa for a stay of more than three months for the purpose of family reunification.

Legal context

European Union law

Directive 2003/86

3Recital 8 of Directive 2003/86 is worded as follows:‘Special attention should be paid to the situation of refugees on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there. More favourable conditions should therefore be laid down for the exercise of their right to family reunification.’

4Article 3(2)(c) of that directive provides:‘This Directive shall not apply where the sponsor is:…(c) authorised to reside in a Member State on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States or applying for authorisation to reside on that basis and awaiting a decision on his status.’

5Article 4(1) of that directive lists the members of a sponsor’s family whose entry and stay the Member States are to authorise pursuant to that directive.

6Article 5(5) of Directive 2003/86 states:‘When examining an application, the Member States shall have due regard to the best interests of minor children.’

7Article 7(1) of that directive is worded as follows:‘When the application for family reunification is submitted, the Member State concerned may require the person who has submitted the application to provide evidence that the sponsor has:(a) accommodation regarded as normal for a comparable family in the same region and which meets the general health and safety standards in force in the Member State concerned;(b) sickness insurance in respect of all risks normally covered for its own nationals in the Member State concerned for himself/herself and the members of his/her family;(c) stable and regular resources which are sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. ...’

8Articles 10 and 11 of the directive contain rules which the Member States must apply to refugees that they recognise as such.

9Article 12 of the directive reads as follows:1. By way of derogation from Article 7, the Member States shall not require the refugee and/or family member(s) to provide, in respect of applications concerning those family members referred to in Article 4(1), the evidence that the refugee fulfils the requirements set out in Article 7.…Member States may require the refugee to meet the conditions referred to in Article 7(1) if the application for family reunification is not submitted within a period of three months after the granting of the refugee status.2. By way of derogation from Article 8, the Member States shall not require the refugee to have resided in their territory for a certain period of time, before having his/her family members join him/her.’

10Article 17 of Directive 2003/86 provides:‘Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family.’

Directive 2004/83/EC

11Recital 25 of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12) states:‘It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States.’

Directive 2011/95/EU

12Recital 34 of Directive 2011/95/EU 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), states:‘It is necessary to introduce common criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States.’

Netherlands law

13Article 29(1), (2) and (4) of the Vreemdelingenwet 2000 (Law on foreign nationals 2000) provides:1.[A] fixed-term residence permit … may be issued to a foreign national who:(a) has refugee status; or(b) proves to the requisite standard that he has good grounds for believing that if he is expelled he will run a real risk of being subjected to:1°. the death penalty or execution;2°. torture, inhuman or degrading treatment or punishment; or3°. serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.2. The fixed-term residence permit referred to in Article 28 may also be granted to the family members listed below if, at the time of the arrival of the foreign national in question, they were members of his or her family and travelled to the Netherlands with him or her or travelled subsequently within three months following the issue to that foreign national of the fixed-term residence permit ……4. [A] fixed-term residence permit … may also be granted to a family member within the meaning of paragraph 2 who has simply not joined the foreign national referred to in paragraph 1 within three months of that national being granted a residence permit …, if, within that three-month period, an application for a visa for a stay of more than three months has been made by or on behalf of that family member.’

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

14F.G., a third country national, has had subsidiary protection status in the Netherlands since 23 September 2014.

15On 22 January 2015, he applied for a visa for the purposes of family reunification for K and B, which he named as his wife and minor daughter.

16On 20 April 2015, the State Secretary rejected that application on the ground that it had been lodged more than three months after F.G. obtained a residence permit in the Netherlands, without that delay being excusable.

17Following a complaint lodged by K and B, by decision of 8 November 2015, the State Secretary reaffirmed his initial decision.

18K and B brought an action against that decision before the rechtbank Den Haag, zittingsplaats Amsterdam (District Court, The Hague, sitting at Amsterdam, Netherlands). By judgment of 24 June 2016, that court dismissed the action.

19K and B appealed against that judgment before the referring court.

20That court considers that, according to Article 3(2)(c) of Directive 2003/86, the situation at issue in the main proceedings does not fall within the scope of that directive in so far as the sponsor has subsidiary protection status.

21According to that court, the rules of the directive nevertheless apply directly and unconditionally to beneficiaries of subsidiary protection, since the Netherlands legislature chose to apply those rules to such beneficiaries in order to ensure that they are treated in the same way as refugees.

22Consequently, although the referring court considers that the outcome of the case in the main proceedings depends on the interpretation of Article 12(1) of Directive 2003/86, it asks, however, in respect of the judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638), whether the Court has jurisdiction to answer a question referred for a preliminary ruling interpreting that provision in a situation such as that at issue in the main proceedings.

23If so, the referring court wishes to know whether that provision is compatible with the rules governing the submission of an application for the purposes of family reunification laid down in the Dutch legislation.

24In those circumstances, the Raad van State (Council of State, Netherlands) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:(1) Having regard to Article 3(2)(c) of [Directive 2003/86] and to the judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638), does the Court of Justice have jurisdiction to answer questions referred for a preliminary ruling by courts in the Netherlands on the interpretation of provisions of that directive in proceedings concerning the right of residence of a member of the family of a person with subsidiary protection status, if that directive has, under Dutch law, been declared directly and unconditionally applicable to persons with subsidiary protection status?(2) Does the system provided for by [Directive 2003/86] preclude a national rule, such as that at issue in the main proceedings, under which an application for consideration for family reunification on the basis of the more favourable provisions of Chapter V of that directive can be rejected for the sole reason that it was not submitted within the period laid down in the third subparagraph of Article 12(1)?For the purpose of answering this question, does any relevance attach to the fact that it is possible, in the event of the aforementioned period being exceeded, to submit an application for family reunification, whether or not after a rejection, in which an assessment is made as to whether the requirements laid down in Article 7 of Directive [2003/86] have been met and in which the interests and circumstances indicated in Articles 5(5) and 17 of that directive are taken into account?’

Consideration of the questions referred

The first question

25By its first question, the referring court asks, in essence, whether the Court has jurisdiction, on the basis of Article 267 TFEU, to interpret Article 12(1) of Directive 2003/86 in a situation such as that at issue in the main proceedings, where a national court is called upon to rule on a beneficiary of subsidiary protection’s right to family reunification, if that provision was made directly and unconditionally applicable to such a situation under national law.

26Article 3(2)(c) of Directive 2003/86 states, in particular, that that directive is not to apply where the sponsor is authorised to reside in a Member State on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States.

27It is indeed clear from the wording of that provision that the directive concerns subsidiary forms of protection granted pursuant to international or national rules without referring to subsidiary protection status under EU law directly.

28However, it cannot be inferred that Directive 2003/86 applies to a situation such as that at issue in the main proceedings where the sponsor has that status.

29The Court notes, in the first place, that subsidiary protection status under EU law was introduced by Directive 2004/83, which was adopted after Directive 2003/86. The absence of a direct reference to that status in that directive cannot, in those circumstances, be regarded as decisive.

30In the second place, it is clear from the amended Proposal for a Council Directive on the right to family reunification (COM(2000) 624 final), presented by the Commission on 10 October 2000 (OJ 2001 C 62 E, p. 99), that the exclusion contained in Article 3(2)(c) of Directive 2003/86 was introduced precisely with a view to the future adoption of a common subsidiary protection status for all Member States when the Commission would propose to introduce provisions on family reunification tailored to third country nationals enjoying that status, which implies that that exclusion was intended to exclude such third country nationals from the scope of the directive.

31In the third place, it is clear both from recital 25 of Directive 2004/83 and from recital 34 of Directive 2011/95 that the criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection should be drawn from international obligations and practices existing in Member States.

32In so far as the common criteria for granting subsidiary protection were thus inspired by rules existing in the Member States which they were intended to harmonise, where relevant by replacing them, the effectiveness of Article 3(2)(c) of Directive 2003/86 would be greatly undermined if it were interpreted as not referring to beneficiaries of the subsidiary protection laid down in EU law.

33It follows from the foregoing that Directive 2003/86 must be interpreted as not applying to third country national family members of a beneficiary of subsidiary protection, such as the applicants in the main proceedings.

34It is clear, however, from the Court’s settled case-law that the Court has jurisdiction to give a preliminary ruling on questions concerning provisions of EU law in situations in which, even if the facts of the case in the main proceedings do not fall within the field of application of EU law directly, provisions of EU law have been rendered applicable by domestic law due to a renvoi made by that law to the content of those provisions (see, to that effect, judgments of 21 December 2011, Cicala, C‑482/10, EU:C:2011:868, paragraph 17; of 18 October 2012, Nolan, C‑583/10, EU:C:2012:638, paragraph 45; and of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 53).

35In such circumstances, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from EU law should be interpreted uniformly (see, to that effect, judgments of 18 October 2012, Nolan, C‑583/10, EU:C:2012:638, paragraph 46, and of 22 March 2018, Jacob and Lassus, C‑327/16 and C‑421/16, EU:C:2018:210, paragraph 34).

36Thus, an interpretation by the Court of provisions of EU law in situations not falling within the scope of EU law is warranted where such provisions have been made applicable to such situations by national law directly and unconditionally, in order to ensure that those situations and situations falling within the scope of EU law are treated in the same way (see, to that effect, judgments of 21 December 2011, Cicala, C‑482/10, EU:C:2011:868, paragraph 19; of 18 October 2012, Nolan, C‑583/10, EU:C:2012:638, paragraph 47; and of 7 November 2013, Romeo, C‑313/12, EU:C:2013:718, paragraph 33).

37In the present case, the referring court, with exclusive jurisdiction to interpret national law under the framework of the system of judicial cooperation enshrined in Article 267 TFEU (see, to that effect, judgments of 17 July 1997, Leur-Bloem, C‑28/95, EU:C:1997:369, paragraph 33, and of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 45), has made clear that the Netherlands legislature has chosen to ensure that beneficiaries of subsidiary protection are treated more favourably than provided for in Directive 2003/86 by applying the rules applicable to refugees under that directive to beneficiaries of subsidiary protection. The referring court infers that it was, under Dutch law, required to apply Article 12(1) of that directive to the case in the main proceedings.

38In those circumstances, as the Netherlands Government has also observed, it must be held that in Dutch law that provision is directly and unconditionally applicable to situations such as that at issue in the main proceedings and that it is therefore clearly in the interest of the European Union that the Court rule on the request for a preliminary ruling.

39That conclusion cannot be called into question by the fact that Article 3(2)(c) of Directive 2003/86 expressly excludes situations such as that at issue in the main proceedings from the scope of that directive.

40It follows from paragraphs 36 to 43 of today’s judgment in C and A (C‑257/17) that such a fact is not capable of calling into question the Court’s jurisdiction to give a preliminary ruling within the limits stated in the Court’s settled case-law, as set out in paragraphs 34 to 36 of the present judgment.

41In the light of the foregoing, the answer to the first question is that the Court has jurisdiction, on the basis of Article 267 TFEU, to interpret Article 12(1) of Directive 2003/86 in a situation such as that at issue in the main proceedings, where a national court is called upon to rule on a beneficiary of subsidiary protection’s right to family reunification, if that provision was made directly and unconditionally applicable to such a situation under national law.

The second question

42By its second question, the referring court asks, in essence, whether Article 12(1) of Directive 2003/86 precludes national legislation which permits an application for family reunification lodged on behalf of a member of a refugee’s family, on the basis of the more favourable provisions for refugees of Chapter V of that directive, to be rejected on the ground that that application was lodged more than three months after the sponsor was granted refugee status, whilst affording the possibility of lodging a fresh application under a different set of rules.

43The first subparagraph of Article 12(1) of Directive 2003/86 provides that, by way of derogation from Article 7 thereof, the Member States are not to require the refugee or his family members to provide, in respect of applications concerning those family members referred to in Article 4(1) of that directive, the evidence that the sponsor fulfils the requirements set out in Article 7 thereof.

44However, whilst it is stated in recital 8 of Directive 2003/86 that that directive lays down more favourable conditions for refugees’ exercise of the right to family reunification, including the rules set out in the first subparagraph of Article 12(1) of that directive, the fact remains that the Member States have the possibility to subject granting the benefits afforded by those rules to the condition that an application be lodged within a certain period of time.

45Thus, the third subparagraph of Article 12(1) of the directive states that Member States may require the refugee to meet the conditions referred to in Article 7(1) of that directive if the application for family reunification is not submitted within a period of three months after the granting of refugee status.

46It follows from the third subparagraph of Article 12(1) of Directive 2003/86 that the EU legislature has allowed the Member States to apply, as regards the conditions referred to in Article 7(1) of Directive 2003/86, the general rules in place of the preferential rules ordinarily applicable to refugees where an application for family reunification is lodged after a certain time limit has elapsed from the grant of refugee status.

47The Member States are therefore free, if they wish, not to process applications for family reunification lodged by refugees under the more favourable rules set out in Article 12(1) of Directive 2003/86 but under the general rules for applications for family reunification where those applications are lodged after the time limit stipulated in the third subparagraph of Article 12(1) of that directive has elapsed.

48The third subparagraph of Article 12(1) of Directive 2003/86 cannot be interpreted as requiring the Member States to regard failure, without any valid reason, to comply with the time limit for lodging an application for family reunification submitted on the basis of the more favourable rules set out in the first subparagraph of Article 12(1) of that directive as forming only one factor to be taken into consideration for the overall assessment of the merits of that application and as capable of being offset by other factors.

49First, to accept that interpretation, which is not supported by the wording of Article 12 of the directive, would mean that the rule for distinguishing between the respective scopes of the rules applying to applications for family reunification lodged by refugees, which the Member States are entitled to introduce on the basis of the time limit stipulated in the third subparagraph of Article 12(1) of the directive, would be deprived of its effectiveness and clarity.

50Second, failure to comply with the time limit for lodging an application for family reunification referred to in the third subparagraph of Article 12(1) of Directive 2003/86 has no direct impact on the authorisation of the entry or stay of the sponsor’s family members, but merely determines the context in which that application must be examined. Since an assessment of the merits of such an application can, in practice, be undertaken only once the rules applicable to that application have been determined, the fact that that time limit has not been complied with cannot be weighed up against factors relating to the merits of that application.

51Article 5(5) and Article 17 of Directive 2003/86 do not justify any other conclusion.

52The decision of a Member State to require that the conditions set out in Article 7(1) of that directive are satisfied does not prevent the merits of the request for family reunification from subsequently being examined with due regard, in accordance with Article 5(5) and with Article 17 of the directive, to the best interests of minor children, the nature and solidity of the person’s family relationships, the duration of his residence in the Member State and of the existence of family, cultural and social ties with his country of origin.

53In that context, the Member State in question will be able to comply with the requirement, under Article 17 of Directive 2003/86 (see, to that effect, judgment of 9 July 2015, K and A, C‑153/14, EU:C:2015:453, paragraph 60), to examine applications for family reunification on a case-by-case basis according to which account must be taken, inter alia, of specificities related to the sponsor’s refugee status. Thus, as stated in recital 8 of that directive, special attention should be paid to the situation of refugees, since they cannot conceivably lead a normal family life in their country of origin, they may have been separated from their family for a long period of time before being granted refugee status and satisfying the substantive conditions required by Article 7(1) of the directive may pose greater difficulties for them than for other third country nationals.

54It follows from the foregoing that the interpretation of the third subparagraph of Article 12(1) of Directive 2003/86 set out in paragraph 48 above does not prevent all of the factors referred to in Article 5(5) and in Article 17 of that directive from being taken into account before a final decision is adopted on the family reunification applied for.

55However, whilst the EU legislature has allowed the Member States to require that the conditions set out in Article 7(1) of that directive in the case referred to in the third subparagraph of Article 12(1) thereof are satisfied, it did not determine how an application made under the more favourable rules in the first subparagraph of Article 12(1) of the directive should be regarded procedurally if lodged out of time.

56In those circumstances, in the absence of EU rules in that regard, it is, according to the Court’s settled case-law, for the domestic legal system of the Member State in question to determine those requirements in accordance with the principle of procedural autonomy provided, however, that those requirements are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (see, to that effect, judgment of 22 February 2018, INEOS Köln, C‑572/16, EU:C:2018:100, paragraph 42 and the case-law cited).

57As regards the principle of equivalence, it cannot be inferred from any of the material in the case file before the Court, and has not been alleged in the present proceedings, that similar domestic situations would be treated differently under Dutch law.

58As regards the principle of effectiveness, it should be recalled that, according to the Court’s settled case-law, every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies (see, to that effect, judgment of 22 February 2018, INEOS Köln, C‑572/16, EU:C:2018:100, paragraph 44 and the case-law cited).

59In the present case, national legislation which allows an application for family reunification lodged on behalf of a member of a refugee’s family, on the basis of the more favourable provisions of Chapter V of Directive 2003/86, to be rejected on the ground that that application was lodged more than three months after the sponsor was granted refugee status, whilst affording the possibility of lodging a fresh application under a different set of rules, is not per se liable to render the exercise of right to family reunification conferred by Directive 2003/86 impossible in practice or excessively difficult.

60Rejection of an application for family reunification lodged under national rules introduced to implement the first subparagraph of Article 12(1) of that directive does not mean that the right to family reunification cannot be safeguarded, since such reunification is capable of being granted under another set of rules, following the submission of an application to that effect.

61Although the delay and administrative burden entailed in lodging a fresh application are undoubtedly inconvenient for the person concerned, nonetheless such inconvenience is not great enough to be regarded, in principle, as preventing that person from effectively asserting his right to family reunification in practice.

62However, that would not be the case, first of all, if an initial application for family reunification could be rejected in situations where particular circumstances rendered the late submission of that application objectively excusable.

63Next, in so far as national legislation requires refugees to assert their rights expeditiously after being granted refugee status, at a time when their knowledge of the host Member State’s language and procedures may be relatively rudimentary, the persons concerned must imperatively be fully informed of the consequences of the decision rejecting their initial application and of the measures which they can take to assert their rights to family reunification effectively.

64Lastly, it must be pointed out that the third subparagraph of Article 12(1) of Directive 2003/86 only allows the Member States to derogate from the first subparagraph of Article 12(1) of that directive by requiring that the refugee meet the conditions referred to in Article 7(1) of the directive.

65Thus, the more favourable conditions for the exercise of the right to family reunification applicable to refugees, set out in Articles 10 and 11 or in Article 12(2) of the directive, must still be applied to a refugee who has lodged his application for family reunification more than three months after he was granted refugee status.

66In the light of all of the foregoing considerations, the answer to the second question is that Article 12(1) of Directive 2003/86 does not preclude national legislation which permits an application for family reunification lodged on behalf of a member of a refugee’s family, on the basis of the more favourable provisions for refugees of Chapter V of that directive, to be rejected on the ground that that application was lodged more than three months after the sponsor was granted refugee status, whilst affording the possibility of lodging a fresh application under a different set of rules provided that that legislation:– lays down that such a ground of refusal cannot apply to situations in which particular circumstances render the late submission of the initial application objectively excusable;– lays down that the persons concerned are to be fully informed of the consequences of the decision rejecting their initial application and of the measures which they can take to assert their rights to family reunification effectively; and– ensures that sponsors recognised as refugees continue to benefit from the more favourable conditions for the exercise of the right to family reunification applicable to refugees, specified in Articles 10 and 11 or in Article 12(2) of the directive.

Costs

67Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

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

1.The Court of Justice has jurisdiction, on the basis of Article 267 TFEU, to interpret Article 12(1) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification in a situation such as that at issue in the main proceedings, where a national court is called upon to rule on a beneficiary of subsidiary protection’s right to family reunification, if that provision was made directly and unconditionally applicable to such a situation under national law.

2.Article 12(1) of Directive 2003/86 does not preclude national legislation which permits an application for family reunification lodged on behalf of a member of a refugee’s family, on the basis of the more favourable provisions for refugees of Chapter V of that directive, to be rejected on the ground that that application was lodged more than three months after the sponsor was granted refugee status, whilst affording the possibility of lodging a fresh application under a different set of rules provided that that legislation:– lays down that such a ground of refusal cannot apply to situations in which particular circumstances render the late submission of the initial application objectively excusable;– lays down that the persons concerned are to be fully informed of the consequences of the decision rejecting their initial application and of the measures which they can take to assert their rights to family reunification effectively; and– ensures that sponsors recognised as refugees continue to benefit from the more favourable conditions for the exercise of the right to family reunification applicable to refugees, specified in Articles 10 and 11 or in Article 12(2) of the directive.