Opinion of Advocate General Szpunar delivered on 15 November 2018.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2018:919
• Date: 15 November 2018
• Docket Number: C-483/17
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 15 November 2018 (1)

Case C‑483/17

Neculai Tarola

v

Minister for Social Protection

(Request for a preliminary ruling from the Court of Appeal (Ireland))

(Reference for a preliminary ruling — Citizenship of the Union — Freedom of movement for persons — Directive 2004/38/EC — Right to move and reside freely within the territory of Member States — Article 7(1)(a) — Workers — Article 7(3)(c) — Right of residence for more than three months — National of a Member State who has been working in an employed capacity in another Member State for 15 days — Involuntary unemployment — Retaining the status of worker for no less than six months)

I. Introduction

1. Where a citizen of the Union exercises his right of free movement and residence in accordance with Directive 2004/38/EC (2) and works in a Member State other than his own for a period of two weeks, and becomes involuntarily unemployed, does that citizen retain the status of worker and, therefore, the corresponding right of residence?

2. That is, in essence, the question referred to the Court of Justice for a preliminary ruling by the Court of Appeal (Ireland). The question was raised in the context of an action brought by a Romanian national against the Irish Minister for Social Protection (‘the Minister’) following the Minister’s rejection of his application for jobseeker’s allowance.

3. In the present case, the Court is therefore asked for the first time to interpret Article 7(3)(c) of that directive.

II. Legal context

A. European Union law

4. Recitals 3, 9 and 10 of Directive 2004/38 state:

‘(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.

...

(9) Union citizens should have the right of residence in the host Member State for a period not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a valid identity card or passport, without prejudice to a more favourable treatment applicable to jobseekers as recognised by the case-law of the Court of Justice.

(10) Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions.’

5. Article 1 of that directive provides:

‘This directive lays down:

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

...’

6. Article 7 of that directive, entitled ‘Right of residence for more than three months’, provides, in paragraphs 1 and 3 thereof:

‘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 ...

...

3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

...

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a jobseeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first 12 months and has registered as a jobseeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

...’

B. Irish law

7. Article 6(2)(a) and (c) of the European Communities (Free Movement of Persons) Regulations (No 2) 2006 (‘the 2006 Regulations’), which transposed the provisions of Article 7(3) of Directive 2004/38 into Irish law, provides:

‘(a) Subject to Regulation 20, a Union citizen may reside in the State for a period longer than 3 months if he or she –

(i) is in employment or is self-employed in the State

…

(c) Subject to Regulation 20, a person to whom subparagraph (a)(i) applies may remain in the State on cessation of the activity referred to in that subparagraph if –

…

(ii) he or she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a jobseeker with a relevant office of the Department of Social and Family Affairs and FÁS [Foras Áiseanna Saothair, Irish National Training and Employment Authority] ...

(iii) subject to subparagraph (d), he or she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first year and has registered as a jobseeker with a relevant office of the Department of Social and Family Affairs and FÁS [Foras Áiseanna Saothair, Irish National Training and Employment Authority] ...’.

III. The facts, the question referred and the procedure before the Court

8. Mr Neculai Tarola is a Romanian citizen who first arrived in Ireland in May 2007 where he was employed from 5 July to 30 July 2007, and again from 15 August to 14 September 2007. It has not been established whether he resided in Ireland between 2007 and 2013. However, it is not disputed that he was subsequently employed in Ireland from 22 July to 24 September 2013 by ASF Recruitment Ltd and from 8 July to 22 July 2014 by Marren Brothers Ltd. In respect of his employment at Marren Brothers Ltd, he earned EUR 1 309. He also worked as a self-employed subcontractor from 17 November to 5 December 2014.

9. On 21 September 2013, Mr Tarola submitted an application for jobseeker’s allowance to the Minister. That application was refused on the ground that he had failed to adduce evidence of his habitual residence in Ireland or means of support from 15 September 2007 to 22 July 2013.

10. On 26 November 2013, Mr Tarola applied for supplementary welfare allowance. That application was also refused because he could not adduce supporting documentation to demonstrate how he supported himself and paid rent from September 2013 to 14 April 2014.

11. Mr Tarola therefore sought a statutory review of the decision of 26 November 2014 before the Minister. That action was dismissed on the ground that Mr Tarola’s short period of employment in July 2014 was not sufficient to revisit the finding that he was not habitually resident in Ireland. It is established that Mr Tarola registered as a jobseeker with the relevant employment office.

12. On 10 March 2015, Mr Tarola asked the Minister to review the decision of 26 November 2014, arguing that, pursuant to Article 7(3)(c) of Directive 2004/38, he had the right to reside in Ireland as a worker for the period of six months after the end of his employment in July 2014. That application was rejected on 31 March 2015 on the ground that, since Mr Tarola came to Ireland, he had not worked for more than a year and he did not have sufficient independent resources to support himself.

13. Mr Tarola thus submitted an application for judicial review against the decision of 31 March 2015 before the High Court (Ireland). That application was refused on the ground that he did not satisfy the conditions laid down in Article 6(2)(c)(iii) of the 2006 Regulations. More specifically, the High Court held that Mr Tarola could not be regarded as a ‘worker’ and thus as habitually resident in Ireland and consequently could not claim social assistance in that capacity. The Court held that that provision applied only to persons who have been on fixed-term employment contracts of less than a year. It also held that the period of work completed by Mr Tarola from 8 July to 22 July 2014 could not be regarded as a fixed-term contract of employment within the meaning of that provision and that his entitlement to jobseeker’s allowance was governed by Article 6(2)(c)(ii) of the 2006 Regulations. Accordingly, it found that, as Mr Tarola had not established that he had been in continuous employment for one year prior to applying for social security assistance, the Minister was entitled to refuse that application.

14. Considering that the case in the main proceedings raised the question of how Article 7(3)(c) of Directive 2004/38 should be interpreted, in particular in the light of the objectives pursued by that directive, the Court of Appeal (Ireland), before which Mr Tarola brought an appeal, decided, by decision of 2 August 2017, lodged at the Court Registry on 9 August 2017, to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Where a citizen of another EU Member State, after his first 12 months of exercising his right of free movement, arrives in the host [Member] State and works (otherwise than on a fixed-term contract) for a two week period for which he is remunerated and thereafter becomes involuntarily unemployed, does that citizen thereby retain the status of a worker for no less than a further six months for the purposes of Article 7(3)(c) and Article 7(1)(a) of Directive [2004/38], such that it would entitle him to receive social assistance payments or, as the case may be, social security benefits on the same basis as if he were a resident citizen of the host State?’

15. Mr Tarola, the Irish, Czech and French Governments and the European Commission submitted written observations.

16. Oral observations from Mr Tarola, the...