Opinion of the Advocate General — ECLI:EU:C:2013:841
Date: 2013-12-12
Language of the case: English
Subject matter: Citizenship of the Union;Right of entry and residence
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary — Judgment of the Court (First Chamber), 19 June 2014 1. Freedom of movement for persons — Workers — Concept — Woman who gave up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth — Retention of status as worker — Condition — Return to work within a reasonable period — Verification by the national court (Art. 45 TFEU; European Parliament and Council Directive 2004/38, Arts 7(1) and 7(3)(a), and 16(3)) 2. Citizenship of the Union — Right to move and reside freely on the territory of the Member State — Directive 2004/38 — Person temporarily unable to work as the result of an illness — Concept — Woman who stopped working temporarily due to the late stages of pregnancy and the aftermath of childbirth — Not included — Whether she can continue to benefit from the status of worker (European Parliament and Council Directive 2004/38, Art. 7(3)(a)) 1. Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child. In that regard, it does not follow either from Article 7 of Directive 2004/38 on the right of citizens of the European Union and their family members to move and reside freely within the territory of the Member States, considered as a whole, or from the other provisions of that directive, that, in such circumstances, a citizen of the Union who does not fulfil the conditions laid down in that article is, therefore, systematically deprived of the status of ‘worker’, within the meaning of Article 45 TFEU. The codification, sought by the directive, of the instruments of EU law existing prior to that directive, which expressly seeks to facilitate the exercise of the rights of Union citizens to move and reside freely within the territory of the Member States, cannot, by itself, limit the scope of the concept of worker within the meaning of the TFEU Treaty. In order to determine whether the period that has elapsed between childbirth and starting work again may be regarded as reasonable, the national court concerned should take account of all the specific circumstances of the case in the main proceedings and the applicable national rules on the duration of maternity leave, in accordance with Article 8 of Council Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. A European Union citizen would be deterred from exercising her right to freedom of movement if, in the event that she was pregnant in the host State and gave up work as a result, if only for a short period, she risked losing her status as a worker in that State. If, by virtue of the special protection for women in connection with maternity and particularly Article 16(3) of Directive 2004/38, an absence for an important event such as pregnancy or childbirth does not affect the continuity of the five years of residence in the host Member State required for the granting of the right of permanent residence, the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth, which require a woman to give up work temporarily, cannot, a fortiori, result in that woman losing her status as a worker. (see paras 31, 32, 42, 44, 46, 47, operative part) 2. A woman who temporarily gives up work because of the late stages of her pregnancy and the aftermath of childbirth, cannot be regarded as a person temporarily unable to work as the result of an illness, in accordance with Article 7(3)(a) of Directive 2004/38 on the right of citizens of the European Union and their family members to move and reside freely within the territory of the Member States. However, it cannot be argued that that provision lists exhaustively the circumstances in which a migrant worker who is no longer in an employment relationship may nevertheless continue to benefit from that status. (see paras 30, 38)