Ewaen Fred Ogieriakhi v Minister for Justice and Equality and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Silva de Lapuerta
• ECLI: ECLI:EU:C:2014:2068
• Date: 10 July 2014
• Docket Number: C‑244/13
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Second Chamber)

10 July 2014 (*)

(Reference for a preliminary ruling — Directive 2004/38/EC — Article 16(2) — Right of permanent residence for family members of a Union citizen who are third-country nationals — Situation where spouses no longer live together — Immediate installation with other partners during a continuous period of residence of five years — Regulation (EEC) No 1612/68 — Article 10(3) — Conditions — Infringement of EU law by a Member State — Examination of the nature of the infringement at issue — Need for a reference for a preliminary ruling)

In Case C‑244/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 19 April 2013, received at the Court on 30 April 2013, in the proceedings

Ewaen Fred Ogieriakhi

v

Minister for Justice and Equality,

Ireland,

Attorney General,

An Post,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta (Rapporteur), President of the Chamber, J.L. da Cruz Vilaça, G. Arestis, J.-C. Bonichot and A. Arabadjiev, Judges,

Advocate General: Y. Bot,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 6 March 2014,

after considering the observations submitted on behalf of:

– Mr Ogieriakhi, acting in person,

– the Minister for Justice and Equality, Ireland, the Attorney General and An Post, by E. Creedon and B. Lydon, acting as Agents, and by R. Barron, SC, E. Brennan, BL, and R. Barrett, Adviser,

– the Greek Government, by T. Papadopoulou, acting as Agent,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by J. Enegren, C. Tufvesson and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 May 2014,

gives the following

Judgment

1 This request for a preliminary ruling concerns: (i) the interpretation of Article 16(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34), and of Article 10(3) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) and (ii) the implications for its assessment (in relation to a claim for damages for infringement of EU law by the Member State concerned, as to whether the infringement relied on was obvious), of the fact that a national court has found it necessary to seek a preliminary ruling on the substantive question concerning the right to permanent residence.

2 The request has been made in proceedings between, on the one hand, Mr Ogieriakhi and, on the other, the Minister for Justice and Equality, Ireland, the Attorney General and An Post, concerning a claim for damages that Mr Ogieriakhi has brought against Ireland on the basis of the case-law devolving from Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428), because of an alleged failure by Ireland to fulfil its obligations concerning the transposition of Directive 2004/38 into national law.

Legal context

EU law

Directive 2004/38

3 According to recital 17 in the preamble to Directive 2004/38:

‘Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.’

4 Article 2 of Directive 2004/38, entitled ‘Definitions’, provides:

‘For the purposes of this Directive:

(1) “Union citizen” means any person having the nationality of a Member State;

(2) “Family member” means:

(a) the spouse;

…

(3) “Host Member State” means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.’

5 Paragraph 1 of Article 3 of that directive, which is entitled ‘Beneficiaries’, provides:

‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.’

6 Paragraphs 1 and 2 of Article 7 of that directive, which is entitled ‘Right of residence for more than three months’, provide:

‘1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or …

...

2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).’

7 Under Article 13(2) of that directive:

‘Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:

(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen’s children; or

(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. “Sufficient resources” shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on a personal basis.’

8 In Chapter IV of Directive 2004/38, entitled ‘Right of permanent residence’, Article 16, entitled ‘General rule for Union citizens and their family members’, provides:

‘1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’

9 Article 18 of the directive provides:

‘Without prejudice to Article 17, the family members of a Union citizen...