Opinion of the Advocate General — ECLI:EU:C:2010:266
Date: 2010-05-11
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 of the Judgment Citizenship of the European Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Right of permanent residence of citizens of the Union (European Parliament and Council Directive 2004/38, Art. 16(1) and (4)) Article 16(1) and (4) of Directive 2004/38 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 No 1612/68 and repealing Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35, 90/364, 90/365 and 93/96 must be interpreted as meaning that: – continuous periods of five years’ residence completed before the date of transposition of Directive 2004/38, namely: 30 April 2006, in accordance with earlier instruments of Union law, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1) thereof, and, – absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date, do not affect the acquisition of the right of permanent residence pursuant to Article 16(1). It is true that the acquisition of the right of permanent residence on the ground of legal residence for a continuous period of five years in the host Member State, provided for in Article 16(1) of Directive 2004/38, did not appear in the instruments of Union law adopted for the application of Article 18 EC before that directive came into force. However, an interpretation to the effect that only continuous periods of five years’ legal residence commencing after 30 April 2006 should be taken into account for the purposes of the acquisition of a right of permanent residence would mean that such a right could be granted only from 30 April 2011. Such an interpretation would amount to depriving the residence completed by citizens of the Union in accordance with instruments of Union law pre-dating 30 April 2006 of any effect for the purposes of the acquisition of that right of permanent residence, which is contrary to the purpose of Directive 2004/38 and would deprive it of its effectiveness. Furthermore, an interpretation to the effect that only continuous periods of five years’ legal residence ending on 30 April 2006 or thereafter should be taken into account for the purposes of acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38 is also contrary to the purpose and effectiveness of that directive. The EU legislature made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State. It would be incompatible with the integration-based reasoning behind Article 16 of that directive to consider that the required degree of integration in the host Member State depended on whether the continuous period of five years’ residence ended before or after 30 April 2006. Additionally, in so far as the right of permanent residence provided for in Article 16 of Directive 2004/38 may be acquired only as from 30 April 2006, the taking into account of periods of residence completed before that date does not give retroactive effect to Article 16 of Directive 2004/38, but simply gives present effect to situations which arose before the date of transposition of that directive. Moreover, both the objectives and the purpose of Directive 2004/38 seeking to facilitate the exercise of the primary right to move and reside freely within the territory of the Member States and to strengthen that right and, more specifically, the objectives and purpose of Article 16 of that directive to promote social cohesion and to strengthen the feeling of Union citizenship, would be seriously compromised if that right of residence were refused to citizens of the European Union who had legally resided in the host Member State for a continuous period of five years completed before 30 April 2006, on the sole ground that there had been temporary absence of less than two consecutive years after that period but before that same date. In addition, in as much as residence periods of five years completed before 30 April 2006 are to be taken into account for the purpose of acquisition of the right of permanent residence provided for in Article 16(1) of Directive 2004/38, Article 16(4) must necessarily apply to those periods. If that were not the case, the Member States would be required to grant the right of permanent residence, pursuant to Article 16, even in cases of prolonged absences which call into question the link between the person concerned and the host Member State. (see paras 33, 35-38, 53, 56, 59, operative part)