Opinion of Advocate General Wathelet delivered on 28 February 2018.

• Jurisdiction: European Union
• Celex Number: 62016CC0618
• ECLI: ECLI:EU:C:2018:125
• Docket Number: C-618/16
• Court: Court of Justice (European Union)
• Procedure Type: Cuestión prejudicial - sobreseimiento
• Date: 28 February 2018

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 28 February 2018 (1)

Case C‑618/16

Rafal Prefeta

v

Secretary of State for Work and Pensions

(Request for a preliminary ruling from the Upper Tribunal (Administrative Appeals Chamber) (United Kingdom))

(Reference for a preliminary ruling — Freedom of movement for persons — Article 45 TFEU — Chapter 2 of Annex XII to the 2003 Act concerning the conditions of accession — Possibility of derogation by the United Kingdom from Article 7(2) of Regulation (EU) No 492/2011 and from Article 7(3) of Directive 2004/38/EC — Derogations in respect of a Polish national who has not completed a period of 12 months’ registered work in the host Member State)

I. Introduction

1. The present request for a preliminary ruling, lodged at the Registry of the Court of Justice on 29 November 2016 by the Upper Tribunal (Administrative Appeals Chamber (United Kingdom), concerns the interpretation, first, of Annex XII to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (2) (‘the 2003 Act of Accession’); secondly, of Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union; (3) and, finally, of Article 7(3) 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. (4)

2. This request for a preliminary ruling has arisen in the context of a dispute between Mr Rafal Prefeta, a Polish national, and the Secretary of State for Work and Pensions (United Kingdom) (‘the SSWP’), concerning the latter’s refusal to grant Mr Prefeta an income-related Employment and Support Allowance (‘the allowance’).

3. The decision of the SSWP not to grant Mr Prefeta the allowance was based on the fact that he did not have the status of worker or, consequently, the corresponding right of residence, which is one of the eligibility requirements for the allowance.

4. National measures adopted on the basis of the derogating provisions laid down in Chapter 2 of Annex XII to the 2003 Act of Accession prevented Polish nationals who had not worked for an uninterrupted period of 12 months as a registered worker, in accordance with national provisions, from relying on national provisions transposing Article 7(3) of Directive 2004/38 in order to retain their status of ‘worker’ and the right of residence conferred on them by virtue of that status.

5. The request for a preliminary ruling concerns the circumstances in which the provisions of Chapter 2 of Annex XII to the 2003 Act of Accession, which derogate from Article 45 TFEU and the first paragraph of Article 56 TFEU, permit, for a transitional period, the present Member States (5) to exclude Polish nationals from the benefits of Article 7(2) of Regulation No 492/2011 and Article 7(3) of Directive 2004/38 and, consequently, permit restrictions on the right of access of Polish nationals to the allowance.

II. Legal framework

A. EU law

1. The 2003 Act of Accession

6. The 2003 Act of Accession establishes the conditions of accession to the European Union of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and provides for adjustments to the Treaties.

7. The second and fifth indents of Article 1 of Part One of that act state:

‘...

– the expression “present Member States” means the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland;

…

– the expression “new Member States” means the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic;

...’

8. Part Four of the 2003 Act of Accession contains the temporary provisions applicable to ‘new Member States’. In Title I of that part, Article 24 of that act provides:

‘The measures listed in Annexes V, VI, VII, VIII, IX, X, XI, XII, XIII and XIV to this Act shall apply in respect of the new Member States under the conditions laid down in those Annexes.’

9. Annex XII to the 2003 Act of Accession is entitled ‘List referred to in Article 24 of the Act of Accession: Poland’. In Chapter 2 of that annex, on the freedom of movement for persons, paragraphs 1, 2, 5 and 9 are worded as follows:

‘1. Article [45] and the first paragraph of Article [56] [TFEU] shall fully apply only, in relation to the freedom of movement of workers and the freedom to provide services involving temporary movement of workers as defined in Article 1 of Directive 96/71/EC between Poland on the one hand, and Belgium, the Czech Republic, Denmark, Germany, Estonia, Greece, Spain, France, Ireland, Italy, Latvia, Lithuania, Luxembourg, Hungary, the Netherlands, Austria, Portugal, Slovenia, Slovakia, Finland, Sweden and the United Kingdom on the other hand, subject to the transitional provisions laid down in paragraphs 2 to 14.

2. By way of derogation from Articles 1 to 6 of Regulation (EEC) No 1612/68 [Regulation 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 until the end of the two-year period following the date of accession, the present Member States will apply national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Polish nationals. The present Member States may continue to apply such measures until the end of the five-year period following the date of the accession.

Polish nationals legally working in a present Member State at the date of accession and admitted to the labour market of that Member State for an uninterrupted period of 12 months or longer will enjoy access to the labour market of that Member State but not to the labour market of other Member States applying national measures.

Polish nationals admitted to the labour market of a present Member State following accession for an uninterrupted period of 12 months or longer shall also enjoy the same rights.

The Polish nationals mentioned in the second and third subparagraphs above shall cease to enjoy the rights contained in those subparagraphs if they voluntarily leave the labour market of the present Member State in question.

Polish nationals legally working in a present Member State at the date of accession, or during a period when national measures are applied, and who were admitted to the labour market of that Member State for a period of less than 12 months shall not enjoy these rights.

…

5. A Member State maintaining national measures or measures resulting from bilateral agreements at the end of the five-year period indicated in paragraph 2 may, in case of serious disturbances of its labour market or threat thereof and after notifying the Commission, continue to apply these measures until the end of the seven-year period following the date of accession. In the absence of such notification, Articles 1 to 6 of Regulation No 1612/68 shall apply.

…

9. In so far as certain provisions of Directive 68/360/EEC [Council Directive of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485)] may not be dissociated from those of Regulation No 1612/68 whose application is deferred pursuant to paragraphs 2 to 5 and 7 and 8, Poland and the present Member States may derogate from those provisions to the extent necessary for the application of paragraphs 2 to 5 and 7 and 8.’

2. Regulation No 492/2011

10. Regulation No 492/2011 repealed and replaced, with effect from 16 June 2011, Regulation No 1612/68.

11. Chapter I of Regulation No 492/2011 is entitled ‘Employment, equal treatment and workers’ families’.

12. Under Section 1 of that chapter, entitled ‘Eligibility for employment’, Articles 1 to 6 prohibit, in essence, any provisions laid down by law, regulation or administrative action, or any administrative practices of a Member State, where they limit application for and offers of employment, or the right of nationals from other Member States to take up and pursue employment, or subject these to conditions not applicable in respect of its own nationals.

13. In Section 2 of that chapter, entitled ‘Employment and equality of treatment’, Article 7 provides:

‘1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.

2. He shall enjoy the same social and tax advantages as national workers.

...’

3. Directive 2004/38

14. Directive 2004/38 repealed and replaced, with effect from 30 April 2006, Directive 68/360.

15....