Opinion of the Advocate General — ECLI:EU:C:2021:866
Date: 2021-10-21
Language of the case: German
Subject matter: Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, it can be concluded that the proposed approach is based on an interpretation of Article 9(1)(c) of Directive 2003/109 which takes due account of the wording of that provision and the objectives pursued by the legislation of which it forms part and its legislative context, in keeping with the methodology recognised in the Court’s case-law. I am convinced that only a flexible approach, such as the one I have presented, which relies on the discretion of national authorities while providing practical criteria allowing them to assess a genuine link with the European Union, can ensure that the diversity of circumstances those authorities face on a daily basis is adequately addressed. VI. Conclusion 74. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Verwaltungsgericht Wien (Administrative Court, Vienna, Austria): – Article 9(1)(c) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, as amended by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011, must be interpreted as precluding national legislation which provides for loss of status of long-term resident third-country national where the holder of that status does not have his or her registered or usual place of residence in the European Union. – That provision must also be interpreted as meaning that, in cases where a third-country national who is a long-term resident has his or her usual place of residence outside the European Union, the competent national authorities enjoy a degree of discretion in assessing whether a short stay in EU territory during a period of 12 consecutive months precludes loss of status of long-term resident third-country national under that provision. In particular, Member States may consider, in accordance with the directive, that short stays prevent loss of that status only if the third-country national has also maintained a genuine link with the European Union during his or her absence. – In order to establish the existence of such a genuine link with the European Union, account must be taken of all the relevant aspects of the third-country national’s specific situation, including the cumulative duration and frequency of his or her absences, the reasons which led him or her to leave the host Member State and the existence of assets, family ties, professional relationships, social commitments and tax obligations in that Member State. 1 Original language: French. 2 OJ 2004, L 16 p. 44. 3 OJ 2011, L 132, p. 1. 4 BGBI. I, 100/2005. 5 Iglésias Sánchez, S., ‘Free movement of third country nationals in the European Union? Main features, deficiencies and challenges of the new mobility rights in the area of freedom security and justice’, European Law Journal, Vol. 15, No 6, pp. 798 and 799, explains that the recognition of third-country nationals’ right to movement was inspired by the two intertwined rationales of promoting social integration and attracting qualified workers, in competition with the United States of America and Canada. 6 Halleskov, L., ‘The Long-Term Residents Directive: a fulfilment of the Tampere objective of near-equality?’, European Journal of Migration and Law, Vol. 7, No 2, 2005, p. 200. 7 Balleix, C., La politique migratoire de l’Union européenne, Paris 2013, p. 218. 8 See, to that effect, judgment of 18 October 2012, Singh (C‑502/10, EU:C:2012:636, paragraph 42). 9 See, by way of example, the Bulgarian (‘отсъствие’), Spanish (‘ausencia’), Danish (‘fraværende’), Estonian (‘äraolek’), Greek (‘απουσία’), English (‘absence’), French (‘absence’), Italian (‘assenza’), Polish (‘nieobecność’) and Swedish (‘bortovaro’) versions. 10 See, for example, the German (‘sich aufgehalten’) and Dutch (‘verblijven’) versions. However, both language versions of Article 9(2), which offers the possibility of derogation from its first paragraph, also use expressions equivalent to that of absence, namely ‘Abwesenheit’ and ‘afwezigheid’ respectively. 11 See, in that regard, Lenaerts, K. and Gutiérrez-Fons, J.A., Les méthodes d’interprétation de la Cour de justice de l’Union européenne, Brussels, 2020. 12 See, to that effect, judgments of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 84), and of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450, paragraph 32). 13 See judgment of 26 April 2012, Commission v Netherlands (C‑508/10, EU:C:2012:243, paragraph 68), and Opinion of Advocate General Bot in Singh (C‑502/10, EU:C:2012:294, points 29 and 35), in which the Advocate General considers that the provisions at issue must be interpreted as meaning that Member States are under an obligation to grant that status if the relevant conditions are met. 14 See, in that regard, judgment of 8 November 2012, Iida (C‑40/11, EU:C:2012:691, paragraphs 45 to 48). As Peers, S., EU Justice and Home Affairs Law, Volume I: EU Immigration and Asylum Law, 4th edition, Oxford, 2016, p. 425, states, long-term resident status is not granted automatically but requires the person concerned to apply to the competent national authorities. 15 See point 27 of this Opinion. 16 Thym, D., ‘Long Term Residents Directive 2003/109/EC’, EU Immigration and Asylum Law, 04/2016, p. 473, paragraph 1, observes that Directive 2003/109 harmonises exhaustively the conditions for the acquisition and withdrawal (or loss) of long-term resident status. Consequently, once the third-country national has acquired that status, he or she is entitled to retain it even if he or she subsequently no longer satisfies the conditions laid down in Articles 5 and 6 of Directive 2003/109. Similarly, withdrawal (or loss) of that status can occur only if the conditions referred to in Article 9 of the directive are met. 17 See, to that effect, Boelaert-Suominen, S., ‘Non-EU nationals and Council Directive 2003/109/EC on the status of third-country nationals who are long-term residents: Five paces forward and possibly three paces back’, Common Market Law Review, Vol. 42, No 4, 2005, p. 1025. 18 Judgment of 18 October 2012, Singh (C‑502/10, EU:C:2012:636, paragraph 46). Emphasis added. 19 See, in that regard, judgment of 17 July 2014, Tahir (C‑469/13, EU:C:2014:2094, paragraph 30), in which the Court observed that the residence requirement is essential for the grant of long-term residence status. 20 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 (OJ 2004, L 158, p. 77). 21 Judgment of 3 October 2019, X (Long-term residents – Stable, regular and sufficient resources) (C‑302/18, EU:C:2019:830, paragraph 32 et seq.). 22 Judgment of 21 July 2011, Dias (C‑325/09, EU:C:2011:498, paragraph 59). Emphasis added. 23 See Article 10(1)(a) of the Proposal for a Council Directive concerning the status of third-country nationals who are long-term residents (COM(2001) 127 final) (OJ 2001, C 240 E, p. 79). 24 See point 24 of this Opinion. 25 Thym, D., ‘Long Term Residents Directive 2003/109/EC’, EU Immigration and Asylum Law, 04/2016, p. 474, paragraph 6, interprets that provision as entailing the ‘automatic’ loss of long-term resident status. 26 See, in that regard, the Report from the Commission to the European Parliament and the Council on the implementation of Directive [2003/109] (COM(2019) 161 final, p. 6), from which it is apparent that Austria has availed itself of the option provided for in Article 9(2) of Directive 2003/109 by providing that an absence of 12 consecutive months from EU territory as a general rule leads to a loss of status but a longer absence may be permitted in exceptional circumstances. 27 See point 49 of this Opinion. 28 See, in that regard, Thym, D., ‘Long Term Residents Directive 2003/109/EC’, EU Immigration and Asylum Law, 04/2016, p. 475, paragraph 7, which takes the view that, given the objective pursued by Directive 2003/109 of promoting the integration of third-country nationals and ensuring that they have ‘put down roots’ in the host Member State, short visits should not generally be capable of interrupting the 12-month period. By contrast, the author favours a less ‘formalistic’ approach if an individual assessment of the situation of the person concerned warrants a decision to maintain long-term resident status. 29 See, by analogy, judgment of 14 March 2019, Y.Z. and Others (Fraud in family reunification) (C‑557/17, EU:C:2019:203, paragraph 64), concerning the withdrawal of long-term resident status based on fraud. 30 See, by analogy, judgment of 26 April 2012, Commission v Netherlands (C‑508/10, EU:C:2012:243, paragraph 65), in which the Court stated that the discretion granted to Member States by Directive 2003/109 as regards the charges levied on third-country nationals and their family members for the issue of residence permits is not unlimited. Referring to its case-law, the Court pointed out that the Member States may not apply national rules which are liable to jeopardise the achievement of the objectives pursued by a directive and, therefore, deprive it of its effectiveness. 31 See, in that regard, judgment of 21 July 2011, Dias (C‑325/09, EU:C:2011:498, paragraph 64), in which, concerning the interpretation of Article 16(1) of Directive 2004/38, the Court held 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’ (emphasis added). 32 The Stockholm Programme – An open and secure Europe serving and protecting citizens (OJ 2010, C 115, p. 1). See Council press release 14615/04 of 19 November 2004, Council Note 17024/09 of 2 December 2009 and Commission communication of 1 September 2005 entitled ‘A Common Agenda for Integration. Framework for the Integration of Third-Country Nationals in the European Union’ (COM(2005) 389 final). 33 See, by analogy, judgment of 23 November 2010, Tsakouridis (C‑145/09, EU:C:2010:708, paragraph 33), concerning the interpretation of Article 28(3) of Directive 2004/38. That provision affords EU citizens enhanced protection against any expulsion decision taken by the host Member State if they have resided in the host Member State for the 10 years preceding the expulsion decision. Given that that provision is silent as to the extent to which absences from the host Member State preclude the person concerned from enjoying that enhanced protection, it is incumbent on the Court to provide the national authorities with useful criteria. 34 See, in that context, the Opinion of Advocate General Szpunar in P and S (C‑579/13, EU:C:2015:39, point 92), in which he refers to all the ties which a person who has lived in a given environment for a long time has created and which enable him or her to become integrated. He mentions ‘marriage or family, living with neighbours, work, hobbies and activities in non-governmental organisations’. 35 See, by analogy, the Opinion of Advocate General Tanchev in Hummel Holding (C‑617/15, EU:C:2017:13, point 85), in which he mentions ‘the defendant’s establishment’ as a criterion for establishing jurisdiction in civil procedure. 36 See, in that context, the Opinion of Advocate General Hogan in Land Oberösterreich (Housing assistance) (C‑94/20, EU:C:2021:155, point 75), in which he emphasises the importance of acquiring knowledge of the language as a means of ensuring the access of third-country nationals to the labour market and vocational training. 37 See, by analogy, judgment of 18 June 2015, Kieback (C‑9/14, EU:C:2015:406, paragraph 22), in which the Court refers to ‘the place where [the taxpayer’s] personal and financial interests are centred’ as a criterion for assessing the taxpayer’s ability to pay, which in general corresponds to his or her ‘usual abode’. 38 See, in that regard, the Opinion of Advocate General Trstenjak in Dias (C‑325/09, EU:C:2011:86, point 106), in which she argues, in relation to the interpretation of Article 16 of Directive 2004/38, that an EU citizen’s unlawful conduct may diminish his or her degree of integration in the host Member State from a qualitative point of view. 39 Judgment of 3 September 2020, Subdelegación del Gobierno en Barcelona (Long-term residents) (C‑503/19 and C‑592/19, EU:C:2020:629, paragraph 43). 40 See, to that effect, judgment of 23 November 2010, Tsakouridis (C‑145/09, EU:C:2010:708, paragraph 26). 41 See point 40 of this Opinion.