Residence permit for volunteers: the Court of Justice prohibits additional conditions regarding proof of resources

A third-country citizen applied in Hungary for the renewal of a residence permit, originally issued for study purposes, in order to carry out volunteering activities. Since, pursuant to Article 7 of Directive (EU) 2016/801, the applicant is required to prove that he or she has sufficient financial resources for the entire duration of the stay, both for his or her own maintenance and for the return to the country of origin, the applicant stated in the renewal application that a family member, identified as his uncle, would provide him with the necessary resources during the stay in Hungary.

The national authorities initially rejected the request, considering that the guarantees provided by a relative who did not qualify as a 'family member' under domestic law were inadequate. Subsequently, this approach was overturned by the Hungarian courts, which ruled that the status of the person providing financial support was irrelevant and focused their attention exclusively on the concept of 'resources' and their actual availability to the third-country citizen. 

The Hungarian Supreme Court therefore ruled that, for the purposes of issuing a residence permit, including for volunteering work, third-country citizens must clarify whether the sums received are to be classified as income or assets and must demonstrate that they have full and unlimited access to them, as if they were their own, so as to guarantee the actual existence of the resources required by the legislation. In the case at stake, the applicant initially classified the financial assistance provided by his uncle as a loan, then as a gift.

After a long dispute, the High Court of Budapest referred the matter to the Court of Justice by proposing a number of questions, which the CJEU summarises as follows in its judgment concluding case C-525/23:

The Court of Justice has clarified that EU law lays down strict conditions for the entry and residence of third-country citizens for the purpose of volunteering.

In particular, the CJEU points out that Member States are required to issue a residence permit for volunteering to applicants who satisfy, on the one hand, the general conditions laid down in Article 7 of Directive (EU) 2016/801 and, on the other hand, the specific requirements for the entry of volunteers laid down in Article 14 of that Directive. Consequently, no additional conditions for such issuance may be introduced at the local level, such as verifications on the nature or origin of the declared resources.

As regards the concept of 'sufficient resources', the CJEU notes that, in addition to being broad in scope, it is autonomous and must be interpreted uniformly throughout the EU. The examination must therefore be limited to verifying that the applicant can actually dispose of the resources, with no further investigation into their origin, in order to fulfill the purpose of the Directive: to ease the entry and residence of volunteers in Member States. 

As regards the principle of the primacy of EU law, this requires that European rules take precedence over national rules and that national institutions are required to give full effect to European provisions, so that national law does not undermine the effectiveness of EU rules. As emphasized by the CJEU in its judgment in the Global Ink Trade (C-537/22) of 11 January 2024, even when a Member State invokes provisions of domestic law or established national case law, these cannot compromise the unity and effectiveness of EU law.

Consequently, the Court of Justice notes that, in the present case, the referring court will be required to follow the interpretation provided by the CJEU, even if this means departing from the case law of the Hungarian Supreme Court, which would be binding under national law.

The Court of Justice, therefore, concludes that the principle of primacy also applies when a national practice, derived from the case law of a supreme court, imposes additional requirements for the issuance of a residence permit for voluntary work, beyond those laid down in European legislation.

In Italy, Directive (EU) 2016/801 on the entry and residence of third-country citizens for the purpose of volunteering was transposed by Legislative Decree no. 71/2018, which integrated the provisions of Article 27 bis of Legislative Decree no. 286/1998 (Consolidated Law on Immigration), which was introduced in 2007.

Under the aforementioned legislation, in order to carry out volunteering work in Italy, third-country citizens must be between 25 and 35 years of age and must meet certain requirements, such as the organization promoting the volunteering program belonging to a category that carries out non-profit and socially useful activities, the signing of a specific agreement between the foreign citizen and the organization promoting the volunteering program, and the organization's assumption of full responsibility for covering the volunteer's living expenses. 

Therefore, the organization promoting the volunteering program will be responsible for submitting the application for authorization to the Immigration Office at the competent Prefecture-Territorial Office of the Government. 

The judgment of the Court of Justice in Case C-525/23 strengthens the protection of third-country citizens who wish to volunteer in the EU, reducing the risk of restrictive interpretations by national authorities. Operators must, in fact, adapt their national procedures, avoiding requests for additional requirements and/or evidence not provided for in the Directive.​