Secretary of State for Work and Pensions v Taous Lassal.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Silva de Lapuerta
• ECLI: ECLI:EU:C:2010:592
• Date: 07 October 2010
• Docket Number: C-162/09
• Procedure Type: Reference for a preliminary ruling

Case C-162/09

Secretary of State for Work and Pensions

v

Taous Lassal

(Reference for a preliminary ruling from the

Court of Appeal (England and Wales) (Civil Division))

(Reference for preliminary ruling – Freedom of movement for persons – Directive 2004/38/EC – Article 16 – Right of permanent residence – Temporal application – Periods completed before the date of transposition)

Summary of the Judgment

Citizenship of the European Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Right of permanent residence of citizens of the Union

(European Parliament and Council Directive 2004/38, Art. 16(1) and (4))

Article 16(1) and (4) of Directive 2004/38 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 No 1612/68 and repealing Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96 must be interpreted as meaning that:

– continuous periods of five years’ residence completed before the date of transposition of Directive 2004/38, namely: 30 April 2006, in accordance with earlier instruments of Union law, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1) thereof, and,

– absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date, do not affect the acquisition of the right of permanent residence pursuant to Article 16(1).

It is true that the acquisition of the right of permanent residence on the ground of legal residence for a continuous period of five years in the host Member State, provided for in Article 16(1) of Directive 2004/38, did not appear in the instruments of Union law adopted for the application of Article 18 EC before that directive came into force. However, an interpretation to the effect that only continuous periods of five years’ legal residence commencing after 30 April 2006 should be taken into account for the purposes of the acquisition of a right of permanent residence would mean that such a right could be granted only from 30 April 2011. Such an interpretation would amount to depriving the residence completed by citizens of the Union in accordance with instruments of Union law pre-dating 30 April 2006 of any effect for the purposes of the acquisition of that right of permanent residence, which is contrary to the purpose of Directive 2004/38 and would deprive it of its effectiveness. Furthermore, an interpretation to the effect that only continuous periods of five years’ legal residence ending on 30 April 2006 or thereafter should be taken into account for the purposes of acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38 is also contrary to the purpose and effectiveness of that directive. The EU legislature made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State. It would be incompatible with the integration-based reasoning behind Article 16 of that directive to consider that the required degree of integration in the host Member State depended on whether the continuous period of five years’ residence ended before or after 30 April 2006. Additionally, in so far as the right of permanent residence provided for in Article 16 of Directive 2004/38 may be acquired only as from 30 April 2006, the taking into account of periods of residence completed before that date does not give retroactive effect to Article 16 of Directive 2004/38, but simply gives present effect to situations which arose before the date of transposition of that directive.

Moreover, both the objectives and the purpose of Directive 2004/38 seeking to facilitate the exercise of the primary right to move and reside freely within the territory of the Member States and to strengthen that right and, more specifically, the objectives and purpose of Article 16 of that directive to promote social cohesion and to strengthen the feeling of Union citizenship, would be seriously compromised if that right of residence were refused to citizens of the European Union who had legally resided in the host Member State for a continuous period of five years completed before 30 April 2006, on the sole ground that there had been temporary absence of less than two consecutive years after that period but before that same date. In addition, in as much as residence periods of five years completed before 30 April 2006 are to be taken into account for the purpose of acquisition of the right of permanent residence provided for in Article 16(1) of Directive 2004/38, Article 16(4) must necessarily apply to those periods. If that were not the case, the Member States would be required to grant the right of permanent residence, pursuant to Article 16, even in cases of prolonged absences which call into question the link between the person concerned and the host Member State.

(see paras 33, 35-38, 53, 56, 59, operative part)

JUDGMENT OF THE COURT (Third Chamber)

7 October 2010 (*)

(Reference for preliminary ruling – Freedom of movement for persons – Directive 2004/38/EC – Article 16 – Right of permanent residence – Temporal application – Periods completed before the date of transposition)

In Case C‑162/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom), by decision of 10 March 2009, received at the Court on 8 May 2009, in the proceedings

Secretary of State for Work and Pensions

v

Taous Lassal,

intervener:

Child Poverty Action Group,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, R. Silva de Lapuerta (Rapporteur), G. Arestis, J. Malenovský and T. von Danwitz, Judges,

Advocate General: V. Trstenjak,

Registrar: N. Nanchev, Administrator,

having regard to the written procedure and further to the hearing on 17 March 2010,

after considering the observations submitted on behalf of:

– Child Poverty Action Group, by S. Clarke, Solicitor, R. Drabble, QC, and R. Turney, Barrister,

– the United Kingdom Government, by L. Seeboruth and S. Ossowski, acting as Agents, and by D. Beard, Barrister,

– the Belgian Government, by L. Van den Broeck, acting as Agent,

– the European Commission, by D. Maidani and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 May 2010,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 16 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, OJ 2005 L 197, p. 34, and OJ 2007 L 204, p. 28).

2 The reference was made in the course of proceedings between Ms Lassal and the Secretary of State for Work and Pensions (‘the Secretary of State’). Child Poverty Action Group (‘CPAG’) has intervened in the dispute in the main proceedings in support of Ms Lassal.

Legal context

European Union law

3 Article 45 of the Charter of Fundamental Rights of the European Union, entitled ‘Freedom of movement and of residence’ provides:

‘1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States.

2. Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State.’

4 According to recitals 1 to 3 and 17 to 19 in the preamble to Directive 2004/38:

‘(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.

…

(17) 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.

(18) In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.

(19) Certain advantages specific to Union citizens who are workers or self-employed persons and to their...