Opinion of the Advocate General — ECLI:EU:C:2002:447
Date: 2002-07-11
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions;Free movement of workers;Fundamental rights
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 
1. Preliminary rulings — Judgment of the Court — Authority of a ruling — Option for 
the national court to make a further reference to the Court — Scope 
(Art. 234 EC) 
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SUMMARY — CASE C-466/00 
2. Preliminary rulings — Reference to the Court — Determination of the questions to 
be referred — Exclusive competence of the national court — Possibility for the 
parties to alter the wording of the questions — None — Suppositions raised by the 
parties and reproduced in the decision making the reference — Not to be taken into 
consideration 
(Art. 234 EC) 
3. Freedom of movement for persons — Workers — Right of residence of family 
members — Indefinite leave to remain for a worker's spouse — National rules 
requiring a shorter period of residence for the spouses of persons present and settled in 
the national territory than for nationals of another Member State and members of their 
families not fulfilling that condition — No comparability of the respective situations 
of those two categories of persons under Community law — Discrimination contrary 
to Article 7(2) of Regulation No 1612/68 — None 
(Council Regulation No 1612/68, Art. 7(2)) 
1. The authority of a preliminary ruling 
does not preclude the national court or 
tribunal to which it is addressed from 
taking the view that it is necessary to 
make a further reference to the Court 
before giving judgment in the main 
proceedings. Such a course may be 
justified when the national court or 
tribunal encounters difficulties in 
understanding or applying the judg­
ment, when it refers a fresh question of 
law to the Court, or again when it 
submits new considerations which 
might lead the Court to give a different 
answer to a question submitted earlier. 
(see para. 39) 
2. As the power to formulate the ques­
tions to be referred in the proceedings 
provided for under Article 234 EC is 
vested in the national court or tribunal 
alone, the parties cannot alter the 
wording of those questions. It follows 
that the Court must in principle confine 
its examination to the matters which 
the court or tribunal making the refer­
ence has decided to submit to it for 
consideration. The Court must there­
fore, as regards application of the 
relevant national rules, proceed on the 
basis of the situation which that court 
or tribunal considers to be established; 
it cannot be bound by suppositions 
raised by one of the parties to the main 
proceedings which the national court 
or tribunal has merely reproduced but 
on which it has not expressed an 
opinion. 
(see paras 40-41) 
3. Legislation of a Member State which 
requires spouses of migrant workers 
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KABA 
who are nationals of other Member 
States to have resided in the territory of 
that Member State for four years 
before they become entitled to apply 
for indefinite leave to remain and to 
have their applications considered, but 
which requires residence of only 12 
months for the spouses of persons who 
are present and settled in that territory 
and are not subject to any restriction 
on the period for which they may 
remain there, does not constitute dis­
crimination contrary to Article 7(2) of 
Regulation No 1612/68. 
The answer would not be different if 
account were to be taken of the fact 
that the respective situations of those 
two categories of persons under 
national law are, according to the 
referring tribunal, comparable in all 
respects except with regard to the 
period of prior residence which is 
required for the purpose of being 
granted indefinite leave to remain in 
the Member State in question. 
In so far as the right of residence of a 
migrant worker who is a national of 
another Member State is subject to the 
condition that the person remains a 
worker or, where relevant, a person 
seeking employment, unless he or she 
derives that right from other provisions 
of Community law, his or her situation 
is not comparable to that of a person 
who is, under the national legislation 
of a Member State, not subject to any 
restriction regarding the period for 
which he or she may reside within the 
territory of that Member State and 
need not, during his or her stay, satisfy 
any condition comparable to those laid 
down by the provisions of Community 
law which confer on nationals of a 
Member State a right to reside in 
another Member State. 
As the rights of residence of those two 
categories of persons are not in all 
respects comparable, the same holds 
true with regard to the situation of 
their spouses, particularly so far as 
concerns the question of the duration 
of the residence period on completion 
of which they may be given indefinite 
leave to remain in the Member State in 
question. 
In view of the fact that the situations 
are not comparable under Community 
law, the question whether a difference 
in treatment in regard to the duration 
of that period may be justified has no 
relevance in this regard. 
(see paras 27, 46-50, 56, 
operative part) 
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