Opinion of the Advocate General — ECLI:EU:C:2011:86
Date: 2011-02-17
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 121. In summary, it can be concluded that a period of residence of a Union citizen in a host Member State, which is not based on Directive 2004/38 or its predecessor provisions, but only on a residence permit granted by the national authorities, does not constitute legal residence within the meaning of Article 16(1) of that directive and cannot therefore be taken into account for the acquisition of a right of permanent residence. It is however open to the Member States to provide for a rule according to which such periods are taken into account. 122. If a Union citizen has however resided before 30 April 2006 in accordance with the conditions of the predecessor provisions to Directive 2004/38 legally and for a continuous period of more than five years in the host Member State, a right of permanent residence under Article 16 of Directive 2004/38 also comes into force where that residence was followed by another period of residence which, while not legal residence within the meaning of Article 16(1) of Directive 2004/38, took place on the basis of a valid residence permit issued by the national authorities. VIII – Conclusion 123. On the basis of the foregoing considerations, I propose to the Court that it answer the question referred as follows: Article 16 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 is to be interpreted as meaning that a Union citizen who resided in a host Member State: – first, from January 1998 until 17 April 2003, that is for a continuous period of more than five years, in accordance with the provisions of secondary legislation applicable at that time; – then, from 18 April 2003 until 25 April 2004, that is for slightly more than one year, on the basis of a residence permit issued and not revoked by the national authorities; and – finally, until 30 April 2006, again in accordance with the provisions of secondary legislation applicable at that time, obtained a right of permanent residence on the expiry of the transposition period for Directive 2004/38 on 30 April 2006. 1 – Original language: German. Language of the case: English. 2 OJ 2004 L 158, p. 77; corrigenda: OJ 2004 L 229, p. 35 and OJ 2007 L 204, p. 28. 3 – Case C‑162/09 Lassal [2010] ECR I-0000. 4 – Drawing on the terminology used in the Treaty on European Union (EU Treaty) and the Treaty on the Functioning of the EU (TFEU), the expression ‘European Union law’ will be used to encompass both Community law and Union law. In so far as specific provisions of primary law are at issue in what follows, the applicable provisions will be cited ratione temporis. 5 – OJ 1968 L 257, p. 13. 6 – Those provisions of national law have in the meantime been amended: see points 17 to 22 of this Opinion. 7 – OJ 1990 L 180, p. 26. 8 – See to that effect Case 62/72 Bollmann [1973] ECR 269, paragraph 4; Case C-261/95 Palmisani [1997] ECR I‑4025, paragraph 31; and Case C-2/06 Kempter [2008] ECR I‑411, paragraph 41 et seq. 9 – See recitals 1 and 2 in the preamble to the directive. 10 – Lassal, paragraph 40 (see footnote 3 above). 11 – Lassal, paragraph 40 (see footnote 3 above). 12 – Case C-43/99 Leclere [2001] ECR I-4265, paragraph 55. 13 – Case 39/86 Lair [1988] ECR 3161, paragraph 37; Case C-357/89 Raulin [1992] ECR I-1027, paragraph 21; Case C-3/90 Bernini [1992] ECR 1071, paragraph 19. 14 – See now Article 7(3)(b) of Directive 2004/38. 15 – See to that effect the Opinion of Advocate General Sharpston of 30 September 2010 in Case C‑34/09 Ruiz Zambrano, points 67 to 122 (judgment still pending). Advocate General Kokott, on the other hand, in her Opinion of 25 November 2010 in Case C-434/09 McCarthy, points 20 to 46 (judgment still pending), expresses the view that the rules on citizenship of the Union do not apply to such a situation. 16 – See my Opinion of 11 May 2010 in Lassal (cited in footnote 3 above, point 88). 17 – That seems to be the view of Advocate General Kokott in her Opinion in McCarthy (footnote 15 above, point 52). 18 – The wording was not in fact contained in the Commission’s original proposal (see recital 14 in the preamble to the original Commission proposal, COM(2001) 257 final; OJ 2001 C 270 E, p. 150) but was subsequently included in the Council’s Common Position (EC) No 6/2004 of 5 December 2003 (OJ 2004 C 54 E, pp. 12, 13) and approved by the Parliament. In its Communication to the Parliament of 30 December 2003 concerning the common position of the Council, the Commission explained in relation to the additional wording in recital 17 in the preamble to the directive that the purpose of that wording was to clarify the expression legal residence (SEC (2003) 1293 final, p. 10). 19 – See point 55 et seq. of this Opinion. 20 – Article 16(4) of the directive and recital 18 in its preamble. 21 – See to that effect Iliopoulou, A., ‘Le nouveau droit de séjour des citoyens de l’Union et des membres de leur famille: la directive 2004/38/CE’, Revue du Droit de l’Union Européenne, 2004, p. 523 et seq., at p. 540. 22 – See the Opinon of Advocate General Kokott in McCarthy (footnote 15 above, paragraph 53). 23 – Case C-456/02 Trojani [2004] ECR I‑ 7573, paragraphs 37 to 46. 24 – C-85/96 Martínez Sala [1998] ECR I-2691, paragraphs 61 to 63. 25 – See the Opinion of Advocate General Kokott in McCarthy (cited in footnote 15 above, paragraph 53). 26 – Trojani (cited in footnote 23 above, in particular point 36). 27 – Trojani (cited in footnote 23 above, in particular paragraphs 36 to 44); and similarly Martínez Sala (cited in footnote 24 above, in particular paragraphs 14 and 15 and 61 to 63). 28 – Trojani (cited in footnote 23 above, in particular paragraph 45). 29 – See point 63 of this Opinion. 30 – See point 97 of this Opinion. 31 – See the Commission’s statement of reasons concerning Article 14 of the original proposal (COM(2001) 257 final). 32 – Ibid. 33 – Lassal (see footnote 3 above, paragraph 37). 34 – See Lassal (cited in footnote 3 above, paragraph 55), referring to the statement of reasons of the Council in Common Position No 6/2004 (cited in footnote 31 above) concerning the adoption of Directive 2004/38, in relation to Article 16 of that directive. 35 – Case 48/75 Royer [1976] ECR 497, paragraphs 31 to 51; Case C-459/99 MRAX [2002] ECR I‑6591, paragraph 74; and Case C-408/03 Commission v Belgium [2006] ECR I‑2647, paragraph 63. 36 – See points 73 to 93 of this Opinion. 37 – Lassal (see footnote 3 above, paragraph 55).