Opinion of the Advocate General — ECLI:EU:C:2014:323
Date: 2014-05-14
Language of the case: English
Subject matter: Citizenship of the Union;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary, a third-country national spouse of a Union citizen who has been married to that Union citizen for at least three years, including one year spent in the host Member State, retains his right of residence and may acquire a right of permanent residence if he satisfies the conditions set out above, even if the marital relationship has been dissolved by a competent authority. 51. It must therefore be stated that if it is accepted that a third-country national in Mr Ogieriakhi’s situation cannot enjoy a right of permanent residence, that national, who, as has been established, has retained his status as a family member of a Union citizen since the marital relationship has not been dissolved by a competent authority, would be seriously disadvantaged compared with a thirdcountry national who ceased to be considered as a family member of a Union citizen within the meaning of Article 2(2)(a) of Directive 2004/38, but who satisfied the conditions under Article 13(2) of that directive. 52. A third-country national who is a family member of a Union citizen would thus enjoy fewer rights and less protection under EU law than a third-country national who no longer has any link with the Union citizen. Such an interpretation would run counter to the spirit and purpose of that directive, which is to grant all Union citizens the right to move and reside freely within the territory of the Member States under objective conditions of freedom and dignity, while granting that same right to their family members, irrespective of nationality. (27) 53. In the light of the foregoing considerations, I take the view that Article 16(2) of Directive 2004/38 must be interpreted to the effect that a third-country national spouse of a Union citizen may, for the purposes of the acquisition of a right of permanent residence, rely on a period of residence completed in the host Member State before that directive was transposed into the legal order of the Member States even where it is established that, during that period, the couple agreed to live apart with other partners. C – The third question 54. By its third question, the referring court is essentially seeking to ascertain whether, in an action for compensation for breach of EU law, the national court is required to have regard to the fact that it has been necessary to make a reference for a preliminary ruling on a question concerning the EU law at issue in the dispute in order to determine whether the breach of EU law by the Member State was sufficiently serious. 55. It must be pointed out that EU law confers on individuals, under certain conditions, a right to compensation for damage caused by breaches of EU law. According to the Court’s settled case-law, the principle of State liability for loss or damage caused to individuals as a result of breaches of EU law for which the State can be held responsible is inherent in the system of the treaties on which the European Union is based. (28) 56. In that respect, the Court has repeatedly held that individuals who have been harmed have a right to reparation if three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between that breach and the loss or damage sustained by the individuals. (29) 57. As regards the second condition, to which the third question relates, it should be borne in mind that the decisive test for finding that a breach of EU law is sufficiently serious is whether the Member State or the Union institution concerned manifestly and gravely disregarded the limits on its discretion. (30) 58. In order to determine whether that condition is satisfied, the national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it, which include, in particular, the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken, where applicable, by a Union institution and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 267 TFEU. (31) 59. Does the act of referring a question to the Court for a preliminary ruling to obtain an interpretation of a provision of EU law indicate that there is not a sufficiently serious breach of EU law? The view could be taken that once such a question is referred, this signifies that the provision in question was imprecise and was open to various interpretations, which would be a key element in the assessment by the national court. 60. However, I do not think that this can be the case, for a reason that would seem to be crucial. 61. The preliminary ruling procedure under Article 267 TFEU establishes a genuine dialogue and real cooperation between national courts and tribunals and the Court. That cooperation is essential in order to ensure the uniform application of EU law in the national legal orders. As Advocate General Léger wrote, ‘the Court confers on the national courts an essential role in the implementation of Community law and in the protection of the rights derived from it for individuals. Indeed people like to call the national courts, according to an expression commonly employed, “Community courts of ordinary jurisdiction”’. (32) 62. In my view, that crucial role of ‘Community courts of ordinary jurisdiction’ could be undermined if it were accepted that the simple act of the national court referring a question for a preliminary ruling in order to obtain an interpretation of a provision of EU law is sufficient to conclude that there is not a sufficiently serious breach of EU law rendering the Member State liable. Such a consequence, which would ultimately be binding on the national court, could result in the dialogue between that court and the European Union judicature being closed. In that situation, a national court wishing to refer a question for a preliminary ruling in order to be certain of its interpretation of EU law before ordering the Member State to pay damages could be led to refrain from doing so. More generally, the simple act of referring a question cannot limit the freedom of the court ruling on the substance. It is not the question referred to the Court, but the answer given by it that provides material to be factored into its free consideration. 63. Consequently, in order to safeguard the mechanism established by Article 267 TFEU and the crucial role of national courts and tribunals in the implementation of EU law, I take the view that in an action for compensation for breach of EU law, the national court is not required to have regard to the fact that it has been necessary to make a reference for a preliminary ruling on a question concerning the EU law at issue in the dispute in order to determine whether the breach of EU law by the Member State was sufficiently serious. V – Conclusion 64. In the light of the foregoing, I suggest that the Court answer the questions referred for a preliminary ruling by the High Court as follows: (1) Article 16(2) 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 to the effect that a third-country national spouse of a Union citizen may, for the purposes of the acquisition of a right of permanent residence, rely on a period of residence completed in the host Member State before that directive was transposed into the legal order of the Member States even where it is established that, during that period, the couple agreed to live apart with other partners. (2) In an action for compensation for breach of EU law, the national court is not required to have regard to the fact that it has been necessary to make a reference for a preliminary ruling on a question concerning the EU law at issue in the dispute in order to determine whether the breach of EU law by the Member State was sufficiently serious. 1 – Original language: French. 2 – Directive 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, and — corrigenda — OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34). 3 – OJ, English Special Edition 1968 (II), p. 475. 4 – C‑162/09, EU:C:2010:592. 5 – C‑6/90 and C‑9/90, EU:C:1991:428. 6 – EU:C:2010:592. 7 – Paragraph 40. My italics. 8 – C‑529/11, EU:C:2013:290. 9 – Paragraph 42. 10 – Paragraph 46. 11 – Paragraph 47. 12 – C‑40/11, EU:C:2012:691. 13 – See paragraphs 57 to 60. 14 – Paragraph 35 of that judgment. 15 – 267/83, EU:C:1985:67. 16 – Paragraph 18. 17 – Paragraph 20. 18 – 249/86, EU:C:1989:204. 19 – Paragraph 12. 20 – Paragraph 13. 21 – C‑378/12, EU:C:2014:13. 22 – Paragraph 23. 23 – C‑378/12, EU:C:2013:640. 24 – See, to this effect, Iida, EU:C:2012:691, paragraph 61. 25 – See Onuekwere, EU:C:2014:13, paragraphs 24 and 25. 26 – Ibid. (paragraph 30). 27 – See recital 5 in the preamble to Directive 2004/38. 28 – See Leth, C‑420/11, EU:C:2013:166, paragraph 40 and cited case-law. 29 – Ibid., paragraph 41and cited case-law. 30 – See Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 55. 31 – See Traghetti del Mediterraneo, C‑173/03, EU:C:2006:391, paragraph 32 and cited case-law. 32 – See point 66 of his Opinion in Köbler, C‑224/01, EU:C:2003:207.