CELEX: 62009CJ0325
Free movement of persons
Directive 2004/38/EC
Article 16
Right of permanent residence
Periods completed before the date of transposition of that directive
Legal residence
Residence based solely on a residence permit issued pursuant to Directive 68/360/EEC, without the conditions governing eligibility for any right of residence having been satisfied

In order to reply to the questions submitted by the referring court, as reformulated by the Court, it is necessary to examine,
first, the question whether periods of residence of a citizen of the Union in a host Member State completed on the basis solely
of a residence permit validly issued under Directive 68/360, although the holder of that permit does not satisfy the conditions
governing entitlement to any right of residence, can be regarded as having been completed legally for the purposes of the
acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38.
In that regard, it should be noted that the Court has already held that periods of continuous residence of five years, completed
before the date of transposition of Directive 2004/38, in accordance with earlier European Union law instruments, must be
taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1) thereof
(
Lassal
, paragraphs 40 and 59).
Since Ms Dias’ third period of residence in the United Kingdom was based solely on the possession of a residence permit issued
in accordance with Directive 68/360, the present case therefore makes it necessary to examine whether such residence permits
were declaratory in nature or whether they created rights.
In that regard, Ms Dias submits that a residence permit issued by the government of the host Member State and not withdrawn
by it, even though it had the possibility to do so, conferred a right of residence on the person concerned throughout its
period of validity. In her view, since Directive 68/360 did not contain any provision equivalent to Article 3 of Directive
90/364, the right of residence recognised under Directive 68/360 and certified by the grant of a residence permit remained
in effect until that permit expired or was withdrawn, irrespective of the fact that its holder had ceased to fulfil the conditions
necessary for residence.
By contrast, the United Kingdom and Danish Governments and the European Commission express the view that the residence permit
issued under Directive 68/360 was purely declaratory and did not establish any right of residence.
Ms Dias’ contention cannot be accepted.
As the Court has held on numerous occasions, the right of nationals of a Member State to enter the territory of another Member
State and to reside there for the purposes intended by the EC Treaty is a right conferred directly by the Treaty, or, as the
case may be, by the provisions adopted for its implementation. The grant of a residence permit to a national of a Member State
is to be regarded, not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual
position of a national of another Member State with regard to provisions of European Union law (see Case C-408/03
Commission
v
Belgium
[2006] ECR I-2647, paragraphs 62 and 63 and case-law cited).
Such a declaratory, as opposed to a constitutive, character of residence permits, in regard to rights, has been acknowledged
by the Court independently of the fact that the permit in question was issued pursuant to the provisions of Directive 68/360
or Directive 90/364 (see, to that effect,
Commission
v
Belgium
, paragraph 65).
It follows that the differences between the provisions of Directives 90/364 and 68/360 cannot justify the contention that,
contrary to the principle noted in paragraph 48 of the present judgment, residence permits issued pursuant to Directive 68/360
were capable of establishing rights for their holders.
In addition, it should be borne in mind that Article 3 of Directive 90/364 referred, not to the permit issued to prove the
right of residence, but to the right of residence as such and to the conditions laid down for the grant of that right. Consequently,
no conclusion can be drawn from that provision with regard to the nature of the residence permit provided for in Article 2(1)
of Directive 90/364, nor,
a fortiori
, with regard to that provided for in Article 4(2) of Directive 68/360.
In addition, the only provision of Directive 68/360 which referred to the withdrawal of the residence permit, namely Article
7(1) of that directive, confirms the existence of an inherent link between that permit and the citizen’s already existing
right of residence. Like the right of residence of a worker which, as with the status of worker itself, was not lost solely
because its holder was no longer in employment, either because he was temporarily unable to work as a result of illness or
accident or because he was involuntarily unemployed, this being duly confirmed by the competent employment office, that provision
also did not allow the valid residence permit of a worker who was in such a situation to be withdrawn.
Finally, it is, admittedly, true that, with regard to the declaratory nature of residence permits, the Court has ruled only
in regard to situations in which such a residence permit had not been issued even though the Union citizen concerned fulfilled
the conditions governing residence in the host Member State in accordance with European Union law.
However, as has been pointed out in paragraphs 48 to 52 of the present judgment, the declaratory character of residence permits
means that those permits merely certify that a right already exists. Consequently, just as such a declaratory character means
that a citizen’s residence may not be regarded as illegal, within the meaning of European Union law, solely on the ground
that he does not hold a residence permit, it precludes a Union citizen’s residence from being regarded as legal, within the
meaning of European Union law, solely on the ground that such a permit was validly issued to him.
Consequently, it must be held that periods of residence completed before 30 April 2006 on the basis solely of a residence
permit validly issued under Directive 68/360, without the conditions governing entitlement to any right of residence having
been met, cannot be regarded as having been completed legally for the purposes of the acquisition of a right of permanent
residence under Article 16(1) of Directive 2004/38.
In the light of that finding, the questions submitted, as reformulated by the Court in paragraph 41 of the present judgment,
make it necessary to examine, second, what effect such periods of residence, completed before 30 April 2006 and after a period
of continuous legal residence of five years completed prior to that date, may have on the acquisition of that right of permanent
residence.
In that regard, it must be noted that the right of permanent residence provided for in Article 16 of Directive 2004/38 could
be acquired only with effect from 30 April 2006, as stated in paragraph 40 of the present judgment. Consequently, unlike periods
of continuous legal residence of five years completed after that date, which confer on citizens of the Union the right of
permanent residence with effect from the actual moment at which they are completed, periods completed before that date do
not allow those persons to benefit from such a right of residence prior to 30 April 2006.
Inasmuch as periods of residence of a Union citizen in a host Member State which were completed on the basis solely of a residence
permit validly issued under Directive 68/360, but without the conditions governing entitlement to any right of residence having
been satisfied, cannot be regarded as having been completed legally for the purposes of the acquisition of the right of permanent
residence under Article 16(1) of Directive 2004/38, the question then arises as to what the effect is on that acquisition
of such a period of residence which occurred before 30 April 2006 and after a period of five years’ continuous legal residence
already completed prior to that date.
In that connection, it should be borne in mind, first of all, that the Court has already ruled that Article 16(4) of Directive
2004/38 refers to loss of the right of permanent residence by reason of absences of more than two consecutive years from the
host Member State and that such a measure may be justified because, after an absence of that duration, the link with the host
Member State is loosened (see
Lassal
, paragraph 55).
Next, the Court has also held that that provision falls to be applied independently of whether the periods of residence in
question were completed before or after 30 April 2006, for the reason that, since residence periods of five years completed
before that date must 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, non-application of Article 16(4) thereof to those periods would mean that the Member
States would be required to grant that right of permanent residence even in cases of prolonged absences which call into question
the link between the person concerned and the host Member State (
Lassal
, paragraph 56).
Finally, the Court has held that the application of Article 16(4) of Directive 2004/38 to continuous periods of five years’
legal residence completed before 30 April 2006 implies, in particular, that absences from the host Member State of less than
two consecutive years occurring after those periods but before that date are not such as to affect the link of integration
of the Union citizen concerned and, accordingly, those absences are not such as to affect the acquisition of the right of
permanent residence pursuant to Article 16(1) of Directive 2004/38 (
Lassal
, paragraphs 57 and 58).
Such reasoning must also be applied by analogy to periods of residence completed on the basis solely of a residence permit
validly issued pursuant to Directive 68/360, without the conditions governing entitlement to any right of residence having
been satisfied, which occurred before 30 April 2006 but after a continuous period of five years’ legal residence completed
prior to that date.
Even though Article 16(4) of Directive 2004/38 refers only to absences from the host Member State, the integration link between
the person concerned and that Member State is also called into question in the case of a citizen who, while having resided
legally for a continuous period of five years, then decides to remain in that Member State without having a right of residence.
In that regard, it should be noted, as the Advocate General has stated in points 106 and 107 of her Opinion, that the integration
objective which lies behind the acquisition of the right of permanent residence laid down in Article 16(1) of Directive 2004/38
is based not only on territorial and time factors but also on qualitative elements, relating to the level of integration in
the host Member State.
As the situations are comparable, it follows that the rule laid down in Article 16(4) of Directive 2004/38 must also be applied
by analogy to periods in the host Member State completed on the basis solely of a residence permit validly issued under Directive
68/360, without the conditions governing entitlement to a right of residence of any kind having been satisfied, which occurred
before 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date.
It follows that periods of less than two consecutive years, completed on the basis solely of a residence permit validly issued
pursuant to Directive 68/360, without the conditions governing entitlement to any right of residence having been satisfied,
which occurred before 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date,
are not such as to affect the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38.
In the light of the foregoing, the answer to the questions referred is that Article 16(1) and (4) of Directive 2004/38 must
be interpreted as meaning that:
–        periods of residence completed before 30 April 2006 on the basis solely of a residence permit validly issued pursuant to Directive
68/360, without the conditions governing entitlement to any right of residence having been satisfied, cannot be regarded as
having been completed legally for the purposes of the acquisition of the right of permanent residence under Article 16(1)
of Directive 2004/38, and
–        periods of residence of less than two consecutive years, completed on the basis solely of a residence permit validly issued
pursuant to Directive 68/360, without the conditions governing entitlement to a right of residence having been satisfied,
which occurred before 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date,
are not such as to affect the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Article 16(1) and (4) 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, must be interpreted as meaning that:
–
periods of residence completed before 30 April 2006 on the basis solely of a residence permit validly issued pursuant to Council
Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for
workers of Member States and their families, without the conditions governing entitlement to any right of residence having
been satisfied, cannot be regarded as having been completed legally for the purposes of the acquisition of the right of permanent
residence under Article 16(1) of Directive 2004/38, and
–
periods of residence of less than two consecutive years, completed on the basis solely of a residence permit validly issued
pursuant to Directive 68/360, without the conditions governing entitlement to a right of residence having been satisfied,
which occurred before 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date,
are not such as to affect the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38.
[Signatures]
*
Language of the case: English.