# C_2022138EN.01001601.xml

| 28.3.2022 | EN | Official Journal of the European Union | C 138/16 |
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28.3.2022

EN

Official Journal of the European Union

C 138/16

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Request for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany) lodged on 24 December 2021 — TE, RU, represented for legal purposes by TE v Stadt Frankfurt am Main

(Case C-829/21)

(2022/C 138/18)

Language of the case: German

Referring court

Hessischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: TE, RU, represented for legal purposes by TE

Defendant: Stadt Frankfurt am Main

Questions referred

| 1. | Is Paragraph 38a(1) of the Aufenthaltsgesetz (Law on residence; ‘the AufenthG’), which, under national law, must be interpreted as meaning that an onward-migrating long-term resident must also have long-term resident status in the first Member State at the time of renewal of his or her residence permit, consistent with the provisions of Article 14 et seq. of Directive 2003/109/EC, (1) which merely provide that a long-term resident has the right to reside in the territory of Member States other than the one which granted him/her the long-term residence status, for a period exceeding three months, provided that the other conditions set out in Chapter III of the directive are met? |
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1.

Is Paragraph 38a(1) of the Aufenthaltsgesetz (Law on residence; ‘the AufenthG’), which, under national law, must be interpreted as meaning that an onward-migrating long-term resident must also have long-term resident status in the first Member State at the time of renewal of his or her residence permit, consistent with the provisions of Article 14 et seq. of Directive 2003/109/EC, (1) which merely provide that a long-term resident has the right to reside in the territory of Member States other than the one which granted him/her the long-term residence status, for a period exceeding three months, provided that the other conditions set out in Chapter III of the directive are met?

| 2. | When deciding on an application for renewal under Paragraph 38a(1) of the AufenthG, is the Ausländerbehörde (authority responsible for foreign nationals) entitled under the provisions of Article 14 et seq. of Directive 2003/109/EC, where the other requirements for a temporary renewal are met and the foreign national has, in particular, stable and regular resources, to establish — in such a way as to deprive that foreign national of his or her rights — that he or she has in the meantime, that is to say, after moving to the second Member State, lost his or her status in the first Member State in accordance with the second subparagraph of Article 9(4) of Directive 2003/109/EC? Is the relevant point in time for that decision the date of the most recent decision of an authority or court? |
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2.

When deciding on an application for renewal under Paragraph 38a(1) of the AufenthG, is the Ausländerbehörde (authority responsible for foreign nationals) entitled under the provisions of Article 14 et seq. of Directive 2003/109/EC, where the other requirements for a temporary renewal are met and the foreign national has, in particular, stable and regular resources, to establish — in such a way as to deprive that foreign national of his or her rights — that he or she has in the meantime, that is to say, after moving to the second Member State, lost his or her status in the first Member State in accordance with the second subparagraph of Article 9(4) of Directive 2003/109/EC? Is the relevant point in time for that decision the date of the most recent decision of an authority or court?

| 3. | If Questions 1 and 2 are answered in the negative:
  Does the long-term resident bear the burden of proving that his or her right of residence as a long-term resident in the first Member State has not expired?
  If that question is answered in the negative, is a national court or authority entitled to review whether the residence permit granted to the long-term resident for an unlimited period is no longer valid, or would this be contrary to the principle of mutual recognition of administrative decisions under EU law? |
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3.

If Questions 1 and 2 are answered in the negative:

Does the long-term resident bear the burden of proving that his or her right of residence as a long-term resident in the first Member State has not expired?

If that question is answered in the negative, is a national court or authority entitled to review whether the residence permit granted to the long-term resident for an unlimited period is no longer valid, or would this be contrary to the principle of mutual recognition of administrative decisions under EU law?

| 4. | Can a lack of evidence of appropriate accommodation be held against a third-country national who has entered Germany from Italy on the basis of a long-term resident’s residence permit granted for an unlimited period and who has stable and regular resources, even though Germany has not made use of the authorisation in the second subparagraph of Article 15(4) of Directive 2003/109/EC, and it was necessary to place that third-country national in social housing only because no child benefit will be paid to her as long as she does not hold a residence permit under Paragraph 38a of the AufenthG? |
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4.

Can a lack of evidence of appropriate accommodation be held against a third-country national who has entered Germany from Italy on the basis of a long-term resident’s residence permit granted for an unlimited period and who has stable and regular resources, even though Germany has not made use of the authorisation in the second subparagraph of Article 15(4) of Directive 2003/109/EC, and it was necessary to place that third-country national in social housing only because no child benefit will be paid to her as long as she does not hold a residence permit under Paragraph 38a of the AufenthG?

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(1)  Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).

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