62009CC0162_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The present reference for a preliminary ruling under Article 234 EC (2) provides the Court with an opportunity to rule on the conditions for the acquisition of a right of permanent residence under Article 16 of Directive 2004/38/EC of the European Parliament and 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. (3) Under Article 16(1) of that directive, Union citizens who have resided legally for a continuous period of five years in a host Member State are to acquire the right of permanent residence.
2. The Court of Appeal (‘referring court’) asks the Court whether, when calculating the five-year period of residence, it is also necessary to take into account a period of residence which ended before the date on which the directive was transposed in national law or on which the transposition period for Directive 2004/38 expired. The answer to that question has effects extending beyond the present legal dispute. The referring court poses a comparable question in Dias, a case which is also pending before the Court. (4)
I – Applicable law
A – Community law (5)
3. Article 18 EC provides:
‘1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.
3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.’
4. Recital 4 in the preamble to Directive 2004/38 provides as follows:
‘With a view to remedying this sector-by-sector, piecemeal approach to the right of free movement and residence and facilitating the exercise of this right, there needs to be a single legislative act to amend Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community …, and to repeal the following acts: Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families …, Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services …, Council Directive 90/364/EEC of 28 June 1990 on the right of residence …, Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self‑employed persons who have ceased their occupational activity … and Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students …’.
5. Recitals 17 and 18 in the preamble to Directive 2004/38 read as follows:
‘17. Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.
18. In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.’
6. Article 16 of the directive sets out the general rule as to the right of permanent residence. It provides:
‘General rule for Union citizens and their family members
(1) Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
...
(3) Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
(4) Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’
7. Article 17 of the directive provides for a right of permanent residence for persons no longer working in the host Member State and their family members. It states:
‘(1) 	By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:
...
(b) workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work.
…
…
(3) Irrespective of nationality, the family members of a worker or a self-employed person who are residing with him in the territory of the host Member State shall have the right of permanent residence in that Member State, if the worker or self-employed person has acquired himself the right of permanent residence in that Member State on the basis of paragraph 1.
(4) If, however, the worker or self-employed person dies while still working but before acquiring permanent residence status in the host Member State on the basis of paragraph 1, his family members who are residing with him in the host Member State shall acquire the right of permanent residence there, on condition that
(a) the worker or self-employed person had, at the time of death, resided continuously on the territory of that Member State for two years
…’
8. Article 38 of the directive provides:
‘Repeals
(1) Articles 10 and 11 of Regulation (EEC) No 1612/68 shall be repealed with effect from 30 April 2006.
(2) 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 shall be repealed with effect from 30 April 2006.
(3) References made to the repealed provisions and Directives shall be construed as being made to this Directive.’
9. Under Article 40(1) of the directive, the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 30 April 2006.
10. Article 6(2) of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, (6) which was in force until 30 April, provided:
‘Breaks in residence not exceeding six consecutive months and absence on military service shall not affect the validity of a residence permit.’
11. The first sentence of Article 2(1)(b) of Regulation (EEC) No 1251/70 of the Commission on the right of workers to remain in the territory of a Member State provided:
‘1. The following shall have the right to remain permanently in the territory of a Member State:
...
(b) a worker who, having resided continuously in the territory of that State for more than two years, ceases to work there as an employed person as a result of permanent incapacity to work. …’
12. Article 3 of Regulation No 1251/70 provided:
‘(1) 	The members of a worker’s family referred to in Article 1 of this Regulation who are residing with him in the territory of a Member State shall be entitled to remain there permanently if the worker has acquired the right to remain in the territory of that State in accordance with Article 2, and to do so even after his death.
(2) If, however, the worker dies during his working life and before having acquired the right to remain in the territory of the State concerned, members of his family shall be entitled to remain there permanently on condition that:
– the worker, on the date of his decease, had resided continuously in the territory of that Member State for at least 2 years;
...’.
13. According to the second sentence of Article 4(1) of that regulation, continuity of residence as provided for in Article 3(2) is not to be affected by temporary absences not exceeding a total of three months per year, nor by longer absences due to compliance with the obligations of military service.
14. Article 6(2) of Regulation No 1251/70 provided:
‘Periods of non-residence not exceeding six consecutive months shall not affect the validity of the residence permit.’
15. Regulation No 1251/70 was repealed by Commission Regulation (EC) No 635/2006 of 25 April 2006 repealing Regulation (EEC) No 1251/70 on the right of workers to remain in the territory of a Member State after having been employed in that State, (7) with effect from 30 April 2006.
B – National law
1. Provisions concerning income support
16. Under the relevant national legislation, income support is a means tested benefit for people aged between 16 and 59 who are not required to sign on for jobseeker’s allowance because, for example, they are in the later stages of pregnancy, incapable of work or lone parents. The statutory basis for income support is the Social Security Contributions and Benefits Act 1992 (‘the 1992 Act’). Under section 124(1)(b) of the 1992 Act, it is a condition of entitlement to income support that a person’s income should not exceed the ‘applicable amount’, being ‘such amount or the aggregate of such amounts as may be prescribed in relation to that benefit’ (section 135(1) of the 1992 Act). Under section 135(2) of the 1992 Act, the power to prescribe applicable amounts includes power to prescribe nil as an applicable amount.
17. Under regulation 21 of, and Schedule 7 to, the Income Support (General) Regulations 1987, the applicable amount prescribed for a ‘person from abroad’ is nil, with the result that such a person has no entitlement to income support. ‘Person from abroad’ is defined in regulation 21AA as ‘a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the … Ireland’. Under regulation 21AA(2), no claimant is to be treated as habitually resident in the United Kingdom unless he has a ‘right to reside’ there. ‘Right to reside’ is not expressly defined, but it is common ground that a permanent right of residence arising under regulation 15(1)(a) of the Immigration (European Economic Area) Regulations 2006 is a right to reside for those purposes.
2. Immigration law provisions
18. The 2006 Regulations entered into force on 30 April 2006. They were intended to implement in national law the provisions of Directive 2004/38.
19. Regulation 15 of the 2006 Regulations provides:
‘15. Permanent right of residence
1. The following persons shall acquire the right to reside in the United Kingdom permanently
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
...
2. Once acquired, the right of permanent residence under this regulation shall be lost only through absence from th e United Kingdom for a period exceeding two consecutive years.
...’
20. Paragraph 6 of Schedule 4 to the 2006 Regulations provides:
‘Any period during which a person carried out an activity or was resident in the United Kingdom in accordance with the 2000 Regulations shall be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence under these Regulations.’
21. By the ‘2000 Regulations’ are meant the Immigration (European Economic Area) Regulations 2000, which are no longer in force. Under those regulations, a person who was, inter alia, a worker was entitled to a right of residence (regulations 5(1) and 14(1)). The 2000 Regulations came into force on 2 October 2000. The 2006 Regulations do not make any provision for periods of residence prior to 2 October 2000 to count towards the right of permanent residence conferred by regulation 15(1)(a).
II – Facts
22. Ms Lassal is a French national. She moved to the United Kingdom in 1999. Throughout the period from September 1999 until February 2005, Ms Lassal was a ‘worker’ within the meaning of Community law.
23. In February 2005, Ms Lassal left the United Kingdom for 10 months, to visit her mother in France. After her return to the United Kingdom in December 2005, she began to look for work again. From January to November 2006, she was paid jobseeker’s allowance. In November 2006, she applied for income support on the basis that she was pregnant. That application was refused on the ground that she had no right to reside in the United Kingdom.
24. Ms Lassal appealed against the refusal of income support and her appeal was allowed by an Appeal Tribunal on 3 September 2007. The Appeal Tribunal decided that Ms Lassal was entitled to income support because she had a permanent right to reside in the United Kingdom by virtue of regulation 15(1)(a) of the 2006 Regulations.
25. The Secretary of State appealed against that decision to a Social Security Commissioner and against the Social Security Commissioner’s rejection of his appeal to the referring court.
III – Proceedings before the referring court
26. According to the Secretary of State, Ms Lassal does not have a right of permanent residence in the United Kingdom under the 2006 Regulations. Admittedly she did reside in accordance with the 2000 Regulations for the period between their coming into force, on 2 October 2000, and her departure for France, in February 2005. She then left the United Kingdom for approximately 10 months and accordingly was no longer in a period of continuous residence. In December 2005, she returned to the United Kingdom. Therefore, by the time of her claim for income support in November 2006, she had been continuously resident in the United Kingdom for only 11 months. The Secretary of State contends that that conclusion is consistent with Directive 2004/38. (8)
27. Ms Lassal did not appear before the referring court and was not represented there. The Child Poverty Action Group (‘CPAG’) was given leave to intervene in the proceedings and made submissions on Ms Lassal’s behalf. The CPAG contends that Ms Lassal has a right of permanent residence. She resided in the United Kingdom from September 1999 to February 2005. According to the CPAG, a continuous period of five years for the purposes of Article 16(1) of the Directive can include periods of residence which ended before the expiry of the transposition period on 30 April 2006. Two years did not elapse between February 2005 and the date of Ms Lassal’s return to the United Kingdom, meaning that she did not lose her right of permanent residence under Article 16(4) of the Directive. (9)
28. The referring court points out that Article 16(1) requires that a person should have resided ‘legally’ for a continuous period of five years in the host Member State before he can acquire the right to permanent residence. The word ‘legally’ means in accordance with Community law, not national law, and must be interpreted in accordance with recital 17 in the preamble to the directive, which refers to residence for a continuous period of five years in compliance ‘with the conditions laid down in this Directive’.
29. If ‘legally’ in Article 16(1) of the directive is to be interpreted in accordance with recital 17, the question arises whether the reference to the ‘conditions laid down in this Directive’ also refers to conditions laid down in earlier Community law instruments concerning the grant of rights of residence to workers. The referring court believes that it should be so interpreted. That would mean that Ms Lassal’s residence in the United Kingdom satisfied the conditions of Article 16(1) of the directive. On the other hand, if the reference were to be interpreted as referring only to a period of residence in accordance with Directive 2004/38, Ms Lassal’s residence would not satisfy those conditions.
IV – Question referred for a preliminary ruling and proceedings before the Court of Justice
30. Because of its doubts regarding the interpretation of Article 16(1) of Directive 2004/38, the referring court decided by order for reference of 10 March 2009, received at the Registry of the Court on 8 May 2009, to refer the following question to the Court of Justice:
In circumstances where (i) an EU citizen came to the United Kingdom in September 1999 as a worker and remained as a worker until February 2005; (ii) the EU citizen then left the United Kingdom and returned to the Member State of which she is a national for a period of ten months; and (iii) the EU citizen returned to the United Kingdom in December 2005 and resided there continuously until November 2006, when she made a claim for social security assistance:
Is Article 16(1) of Directive 2004/38 of the European Parliament and the Council of 29 April 2004 to be interpreted as entitling that EU citizen to a right of permanent residence by virtue of the fact that she had been legally resident, in accordance with earlier Community law instruments conferring rights of residence on workers, for a continuous period of five years which ended prior to 30 April 2006 (the date by which Member States had to transpose the Directive)?
31. On 10 March 2010, a hearing took place before the Court in which the representatives of the United Kingdom, the Kingdom of Belgium, the CPAG and the Commission took part, and in which they expanded upon their written submissions and answered certain questions.
V – Submissions by the parties
32. The Government of the United Kingdom
proposes that the question referred should be answered in the negative. Following the approach taken by the Secretary of State, it develops two lines of argument.
33. It submits, first, that under Article 16(1) of the directive only a period of residence after 30 April 2006 may be taken into account. In that context, it first of all points out that the wording of Article 16(1) of the Directive is inconclusive. It does not say whether the continuous period of residence of five years must post‑date 30 April 2006 or whether it can also end before 30 April 2006. A right of permanent residence under Article 16(1) of the Directive however presupposes a period of legal
residence of five years in the United Kingdom. The meaning of ‘legally’ in Article 16(1) of the directive is that the period of residence must comply with the conditions laid down in the directive. That follows from the second sentence of recital 17 in the preamble to Directive 2004/38. A period of residence in compliance with the conditions laid down in that directive can however logically only post-date its transposition from 30 April 2006. As the Commission’s communication to the European Parliament of 30 December 2003 indicates, (10) the second sentence of recital 17 clarifies the meaning of legal residence under Article 16 of the directive.
34. Second, the Government of the United Kingdom relies on a different interpretation of Article 16(1) of the directive, according to which a continuous period of residence of five years may be taken into account only if it ends on or after 30 April 2006. That interpretation is based on the consideration that a right of permanent residence came into being only on 30 April 2006 and therefore could not have existed before that date. It is not possible to acquire a non-existent right. Furthermore, a right of permanent residence, before coming into existence, could also not be lost under Article 16(4) of the directive. Art. 16(4) of the directive cannot therefore apply to periods of residence which ended before 30 April 2006. That is problematic in those cases in which the five-year period of residence of the Union citizen occurred a long time ago. In such a case, according to the interpretation whereby periods of residence which ended before 30 April 2006 must also be taken into account under Article 16(1) of the directive, a permanent right of residence would arise. Article 16(4) of the directive, under which the right of permanent residence is lost through absence for two years, cannot however be applied, as that provision applies only to the loss of a right which has already been acquired. Such an interpretation, according to which a right of permanent residence would also be granted to Union citizens who on account of their absence from the host Member State could no longer demonstrate the required level of integration, is incompatible with the goal referred to in recital 18 in the preamble to the directive, namely the promotion of the integration of Union citizens in the host Member State.
35. It is immaterial for the resolution of the present case whether the first or second interpretation is adopted. In any event, the third possible interpretation of Article 16(1) proposed by the CPAG and the Commission, according to which a period of residence which ended before 30 April 2006 must also be taken into account, is wrong for the reasons stated above. In addition it must be noted that the right of permanent residence laid down in Article 16 of the directive is a new right, which is not dependent on an economic activity. There is furthermore nothing to suggest that the directive is to be applied retroactively. On the contrary, it is clear from the reasoning in paragraph 50 of the Court’s judgment in Givane (11) that a period of continuous residence in the host Member State which ended before the deadline for transposition of Directive 2004/38 cannot be taken into account. The objections of the CPAG and the Commission that the interpretations put forward by the United Kingdom would lead to arbitrary results are without substance. It is inevitable that a rule, according to which a period of residence which ended before 30 April 2006 is not taken into account, prejudices those Union citizens whose residence ended before that date.
36. The Belgian Government
proposes that the question referred be answered in the negative. In its opinion, a period of permanent residence of five years in a host State, which was completed before 30 April 2006, does not give rise to right of permanent residence under Article 16 of the directive.
37. That would lead in the Belgian Government’s opinion to the retroactive application of Article 16(1) of the directive. Since retroactive effect is detrimental to the principle of legal certainty, Community acts may not, in principle, take effect from a point in time before their publication. Exceptions are possible only where demanded by the purpose to be achieved and where the legitimate expectations of those concerned are duly respected. Those conditions are not satisfied in the present case. The Member States had two years in which to transpose the directive into domestic law, namely until 30 April 2006. The Belgian Government also refers to the European Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of legislation within the Community institutions on the drafting of legislation. (12) It is stated therein that it is only exceptionally that a Community act may have retroactive effect. Where that is the case, it should be expressly provided for. Directive 2004/38 does not however provide for retroactive effect.
38. According to the Belgian Government, the retroactive application of Article 16 of the directive would give rise to all sorts of additional legal and practical problems concerning the legality criterion applicable to the period of residence. The retroactive application of Article 16 of the directive would lead to a situation where a person who on 29 April 2006 was residing illegally in the Union and therefore did not have any right of residence at all would suddenly acquire a right of permanent residence. It is not however the purpose of the directive to regularise a past illegal residence. A right of permanent residence should be seen as a continuation of an already existing right of non-permanent residence. A person who on 29 April 2006 did not have a right of residence could not acquire a right of residence on expiry of the transposition period for Directive 2004/38 or a fortiori a right of permanent residence. For those reasons it must in the present case be determined whether Ms Lassal had a right of residence on 30 April 2006. As her non-residence in the United Kingdom at that time was for reasons other than those listed in Article 16(3) of the directive, only her period of residence in the United Kingdom since December 2005 can be taken into account. She had therefore not yet acquired a right of permanent residence in November 2006. In that connection it must also be borne in mind that under Article 6(2) of Directive 68/360 and Article 6(2) of Regulation No 1251/70, which applied before 30 April 2006, an absence of six consecutive months led to the loss of the former right of residence. Ms Lassal’s absence for more than six months therefore affected the validity of her residence permit.
39. The CPAG
and the Commission
propose that the question referred be answered in the affirmative. The right of permanent residence under Article 16 of the directive is designed to promote the integration of Union citizens who have settled long term in a host Member State and who have thus developed close links with it. Article 16(1) of the directive lays down only that there must have been a continuous period of legal residence of five years. The Government of the United Kingdom and the Belgian Government read into Article 16(1) another condition, which is not covered by its wording. Neither that article nor any other provision of the directive contains any indication that periods of residence accomplished in the host State before the date of entry into force of the directive (30 April 2004), the date of its transposition or the date when the transposition period expired (30 April 2006), may not be taken into account for the purposes of the directive. Ms Lassal satisfied the conditions of Article 16(1) of the directive and did not lose that right under Article 16(4), because she was absent from the United Kingdom for less than two years.
40. The Commission, supported by the CPAG, submits that rights of residence already existed under Articles 4 and 6 of Directive 68/360. They admittedly did not include a right of permanent residence, but a right of residence of five years with a right of automatic renewal was granted. In addition, there was a right of permanent residence under Article 2(1)(b) of Regulation No 1251/70, which has in the meantime been repealed. As that provision has been replicated verbatim in Article 17(1)(b) of Directive 2004/38, it must be interpreted as meaning that periods of residence which ended before 30 April 2006 must also be taken into account. It cannot have been the intention of the legislature that a person should acquire a right of permanent residence under Article 17(1)(b) of the directive only where he had been resident in the host Member State for two years after expiry of the transposition date for the directive, that is after 30 April 2006. That principle which is valid for Article 17(1)(b) of the directive is also applicable to the right of permanent residence under Article 16 of Directive 2004/38. Although that article grants a right of permanent residence which is more generous than that granted by Directive 68/360, it is not so different as to mean that periods of residence accomplished under Directive 68/360 cannot be taken into account. The legislature regarded it as so obvious that, under Article 16 of the directive, periods of residence in accordance with the predecessor provisions of Directive 2004/38 must be taken into account, that it did not regard it as necessary to legislate expressly on that point.
41. According to the Commission, it cannot be concluded from the Court’s judgment in Givane, (13) relied on by the Government of the United Kingdom, that for the purposes of Article 16(1) of the directive a period of residence in the host Member State which ended before the transposition of the directive or before the expiry of the transposition period on 30 April 2006 may not be taken into account.
42. According to the submissions of the CPAG and the Commission, the taking into account of periods of residence which ended before 30 April 2006 is also compatible with the second sentence of recital 17 in the preamble to Directive 2004/38. That sentence refers to residence in compliance with the conditions laid down in Directive 2004/38. It cannot be understood to mean that the legal residence requirement is restricted to periods of residence after transposition of the directive or after the expiry of the transposition period on 30 April 2006. According to the CPAG, the second sentence means only that the calculation of residence under Article 16(1) of the directive must take into account the rules laid down in Article 16, in particular the Article 16(3) provisions. Even if there was a conflict between the wording of Article 16(1) and the recitals in the preamble to a directive, the recitals could not be used to displace the clear words of Article 16 of the directive. According to the Commission, the second sentence means that the period of residence in the host Member State must have been lawful according to the Community law instruments applicable at the time of that residence. There is a relationship between the directive and its predecessor legal provisions concerning the right of residence which must be taken into account. The CPAG and the Commission also point out that, were the second sentence to be interpreted in the manner suggested by the Government of the United Kingdom or the Belgian Government, a right of permanent residence could arise on 29 April 2011 at the earliest. The Community legislature cannot be taken to have contemplated such a surprising result, in the absence of any provision in the directive to that effect.
43. The CPAG and the Commission also submit that taking into account a period of residence which ended before 30 April 2006 does not lead to an impermissible retroactive effect. Even if periods of time before 30 April 2006 are used to acquire the right of permanent residence under Article 16 of the directive, that does not – contrary to the submissions of the Belgian Government – mean that a right comes into existence before 30 April 2006. The right of permanent residence comes into existence only when the directive is transposed into national law or on the expiry of the transposition period on 30 April 2006. Periods of residence before expiry of the transposition period can therefore also be taken into account under Article 16(1) of the directive. Not only Article 16(1), but also Article 16(3) and (4) of Directive 2004/38, apply to those periods. Therefore, a Union citizen who before 30 April 2006 resided continuously in the host Member State for five years, but who on 30 April 2006 had already been absent for over two years, does not enjoy a right of permanent residence.
44. Finally, the CPAG and the Commission state that the interpretations proposed by the Government of the United Kingdom would lead to arbitrary results and that its two lines of argument are contradictory.
45. In addition, the Commission refers to the Court’s judgment in Trojani, (14) according to which a national of a Member State who has been lawfully resident in another Member State for a certain period can rely on the principle of equal treatment. That principle also applies to socia l assistance benefits. That is also the case where a citizen cannot claim a right of residence in the host Member State based on Community law.
VI – Legal assessment
46. The question referred concerns the interpretation of Article 16(1) of Directive 2004/38. I will first briefly consider that provision within the overall scheme established by Directive 2004/38 (A) before addressing the question referred (B).
A – The right of permanent residence under Article 16 of the directive
47. By Directive 2004/38 the Community legislature laid down in secondary Community law the right of residence of a Union citizen in another Member State, which derives under primary law from the fundamental freedoms and the rules on citizenship of the Union. (15) For that purpose, the directive provides for three different forms of residence rights: first, a right of residence for up to three months; (16) second, a right of residence for more than three months; (17) and third, the right of permanent residence. The right of permanent residence is laid down in Chapter IV of the Directive; the substantive provisions concerning the acquisition of such a right are to be found in Section I of that chapter, in Articles 16 to 18 of the directive.
48. According to the first sentence of Article 16(1) of the directive, Union citizens who have resided legally for a continuous period of five years in the host Member State are to have the right of permanent residence there. The acquisition of a right of permanent residence is thus dependent on two conditions. First, the Union citizen must have resided continuously in the host State for five years. Second, that period of residence must have been lawful.
B – The question referred
49. The referring court has to rule in a case in which a French citizen of the Union resided continuously from September 1999 to February 2005 in the United Kingdom, her residence in that host State being lawful under the Community law provisions then applicable. However, that period of residence ended in February 2005 and thus before 30 April 2006, when the transposition period for Directive 2004/38 expired and the national transposition legislation entered into force. The referring court has doubts whether such a period of residence can also establish a right of permanent residence under Article 16(1) of the directive.
50. The principal objection of the Government of the United Kingdom and the Belgian Government to taking such a period of residence into account is that such an interpretation of Article 16(1) of the directive would lead to the retroactive application of that provision. I will now address that objection, while also taking into account the other objections made by those governments.
51. Where the retroactive application of legal provisions is concerned, the Court distinguishes first between provisions of procedural and substantive law. (18) Article 16(1) of the directive, which lays down the conditions for the acquisition and loss of a right of permanent residence, is a provision of substantive law. In what follows I will therefore restrict my remarks to the case-law concerning the permissibility of the retroactive effect of substantive law.
52. Where provisions of substantive law are concerned, the Court distinguishes between two different situations.
53. Retroactive effect is taken by the Court to exist where a measure takes effect from a point in time before its publication. (19) The cases concerned are those where a measure already has legal effects before it enters into force. That is in principle not permitted. There is an exception where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected. (20)
54. The Court also proceeds on the assumption that, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, substantive provisions of Community law must in principle be interpreted as applying only to situations existing after their entry into force. (21) There is an exception to that principle where it clearly follows from the terms, objectives or general scheme of those substantive provisions that they also apply to situations existing before their entry into force. (22) Admittedly, in that situation, unlike in the abovementioned situation, no legal effects arise before entry into force of the legal provision; there is therefore no retroactivity in the strict sense of the word. (23) Nevertheless the principles of legal certainty and protection of legitimate expectations also have to be taken into consideration in that context, since legal effects for the present or the future arise from a situation which existed in the past and which therefore can no longer be changed. (24)
55. In the present case, it must first be stated that there would be no legal effects extending into the past under Article 16(1) even if a period of residence which ended before 30 April 2006 were to be taken into account under that provision (1). The only issue is therefore whether it follows from the terms, objectives or general scheme of that provision that it also applies to periods of residence in the host State which ended before its entry into force (2).
1. No retroactively applicable legal effects
56. Contrary to the position apparently adopted by the Belgian Government, the present case does not concern retroactively applicable legal effects. A right of permanent residence under Article 16(1) of the directive arises in the present case only on 30 April 2006 and thus after the entry into force of the directive on 29 June 2004 and after transposition of the directive into national law on 30 April 2006. That is also the case if Article 16(1) of the directive is interpreted as meaning that, for the purposes of acquisition of a right of permanent residence (on 30 April 2006 at the earliest), a period of residence in the host Member State which ended before 30 April 2006 is taken into account.
57. The reference by the Belgian Government to paragraphs 20.3.1, 20.8 and 20.9 of the European Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of legislation within the Community institutions (25) is therefore erroneous. Those paragraphs concern a situation which is not at issue here, namely where a Community measure is to give rise to legal effects before its entry into force.
58. In so far as the Belgian Government also objects that an interpretation of Article 16(1) of the directive, according to which a period of residence which ended before 30 April 2006 were to be taken into account, would result in a period of unlawful residence in the past suddenly becoming lawful, that objection is also unconvincing. Since the right of permanent residence under Article 16(1) of the directive can arise in the present case only from 30 April 2006, a period of unlawful residence which occurred before that date cannot retroactively be made lawful.
2. The question whether Article 16(1) of the directive is to be interpreted as meaning that periods of residence which ended before 30 April 2006 are taken into account
59. In the present case, what is at issue is only whether Article 16(1) of the directive should be interpreted as meaning that it applies to a period of residence which already ended before 30 April 2006. As stated above, the Court, on the basis of the principles of legal certainty and the protection of legitimate expectations, interprets provisions of substantive law as being in principle not applicable to situations existing before their entry into force. There is an exception where it clearly follows from the terms, objectives or general scheme of the provision that it should be given such an effect, and where the legitimate expectations of those concerned are duly respected.
60. No clear conclusion can be drawn from the wording of Article 16(1) of the directive (a). An analysis of the scheme of the substantive provisions of Directive 2004/38 concerning the right of permanent residence (b), and consideration of the origin and purpose of Article 16 of the directive (c), however favour taking periods of residence which ended before 30 April 2006 into account. On the contrary, objections based on the concept of legal residence within the meaning of Article 16(1) of the directive (d), on the non-applicability of Article 16(4) of the directive (e), and on the provisions of Directive 68/360 and Regulation No 1251/70 (f), are unconvincing. Finally, the principle of the protection of legitimate expectations does not preclude an interpretation according to which periods of residence which ended before 30 April 2006 are taken into account (g).
a) Wording
61. As the Government of the United Kingdom, the CPAG and the Commission correctly point out, no clear conclusion can be drawn from the wording of Article 16(1) of the directive. Article 16(1) focuses only on the continuous period of five years’ residence, without specifying when that period of residence must have begun.
b) The schematic relationship between Article 16(1) of the directive and other substantive provisions concerning the right of permanent residence
62. As pointed out above, (26) alongside Article 16 of the directive there are also substantive rules in Article 17 and 18 of the directive concerning the acquisition of the right of permanent residence. Article 17 of the directive provides that certain persons may already acquire the right of permanent residence in the host Member State before completion of a continuous period of five years of residence in the host Member State. Thus, workers or self-employed persons who have resided continuously in the host Member State for more than two years, and have stopped working there as a result of permanent incapacity to work, enjoy a right of permanent residence under Article 17(1)(b) of the directive.
i) The necessity of taking into consideration periods of residence which ended before 30 April 2006 in the context of Article 17(1)(b) of Directive 2004/38
63. Under Article 17(1)(b) of the directive, the acquisition of a right of permanent residence is subject as in the case of Article 16(1) to the condition that there has been a period of continuous residence in the host Member State for a certain length of time, with Article 17(1)(b) of the directive requiring a period of residence of only two years. The question therefore also arises with regard to that provision whether a period of residence which ended before 30 April 2006 must be taken into account. With regard to Article 17(1)(b) of the directive, that question can only be answered to the effect that a period of residence which was completed before 30 April 2006 must also be taken into account.
64. In that context, the connection between Article 17(1)(b) of Directive 2004/38 and its predecessor provision, Article 2(1)(b) of Regulation No 1251/70, must be considered. Article 2(1)(b) of Regulation No 1251/70 provided in almost exactly the same terms for a right to remain in the host Member State for a worker who had become incapable of working. Regulation No 1251/70 was repealed with effect from 30 April 2006. (27) The repeal occurred in the context of the expiry of the transposition period for Directive 2004/38 on 30 April 2006 which resulted in the replacement of Article 2(1)(b) of Regulation No 1251/70 by Article 17(1)(b) of Directive 2004/38, which is now the basis for the right of residence of a worker who has become incapable of working. (28)
65. Were two-year periods of continuous residence in the host Member State which took place before a permanent incapacity to work arose, and which ended before 30 April 2006, not to be taken into account in connection with Article 17(1)(b) of Directive 2004/38, it could not then be excluded that a worker who had acquired such a right under Regulation No 1251/70 on the basis of a period of residence which ended before 30 April 2006 would no longer enjoy a corresponding right of residence. Under Regulation No 1251/70, the Member States were namely obliged to issue residence permits of only limited duration.  (29) On the expiry of the term of a residence permit issued under Article 2(1)(b) of the Regulation, a worker whose two-year period of residence ended before 30 April 2006 can today no longer apply for an extension under Regulation No 1251/70, since it was repealed with effect from 30 April 2006. A worker who has become incapable of working would also be unable to rely on Article 17(1)(b) of the directive, because his two-year period of residence ended before 30 April 2006. That provision would therefore also not give him a right of permanent residence. Such a worker would therefore, on expiry of the term of his residence permit, no longer enjoy any right of residence corresponding to Article 2(1)(b) of Regulation No 1251/70 or Article 17(1)(b) of Directive 2004/38.
66. That result would clearly be contrary to the intention of the Community legislature, which adopted Directive 2004/38 in order to consolidate and strengthen workers’ rights of residence.  (30) It cannot be assumed that by adopting Directive 2004/38 the Community legislature wished to achieve the abovementioned result. That would run counter to Article 38 of Directive 2004/38 and to the aim of remedying the sector‑by-sector, piecemeal approach to the right of free movement and residence expressed by the fourth recital in the preamble. The directive aims to strengthen and codify in a single legislative act rights of residence laid down before in numerous acts of secondary legislation.  (31)
67. In the context of Article 17(1)(b) of Directive 2004/38, the concept of a continuous period of residence of two years must therefore be interpreted as meaning that a period of residence which ended before 30 April 2006 must also be taken into account.
ii) Applicability to Article 16(1) of the directive
68. In the scheme of Directive 2004/38, Article 16(1) and 17(1)(a) are closely connected. They are both in the chapter which provides for a right of permanent residence, in the section in which the substantive conditions for the acquisition of that right are set out. Furthermore, the introductory wording of Article 17 of the directive – ‘By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by’ – makes clear that there is also a close substantive connection between Article 16 and 17 of the directive.
69. Against that background of a close connection between those two provisions it must in principle be assumed that the two factual elements whose wording is almost identical – ‘a continuous period of five years of residence in the host Member State’ in Article 16(1) of the directive and ‘resided continuously in the host Member State for more than two years’ in Article 17(1)(b) of the directive – are to be interpreted in the same way. Therefore, a period of residence which ended before 30 April 2006 would also have to be taken into account in the context of Article 16(1) of the directive.
70. The Government of the United Kingdom contests that point of view by arguing that the right of permanent residence under Article 16 of the directive is a right which was not previously provided for in secondary legislation. That objection is unconvincing. The Community legislature could easily have decided to make a distinction between Article 17(1)(b) and Article 16(1) of the directive concerning the application of the conditions of those provisions to past periods of residence. It chose not to. The use of virtually identical conditions in both provisions is a strong indication that the Community legislature was following the same approach to that issue in both provisions.
iii) The judgment in Givane
71. At the oral hearing, the Government of the United Kingdom relied on the judgment in Givane .  (32) It argued that the reasoning in paragraph 50 of that judgment showed that the continuous period of five years of residence referred to in Article 16(1) of the directive cannot be a period of residence which ended before 30 April 2006. In that paragraph, the Court namely proceeded on the basis that a right of residence for the members of the worker’s family under the first indent of Article 3(2) of Regulation No 1251/70 can arise only where the two-year period of residence laid down immediately preceded the worker’s death. That must be applied to Article 16(1) of the directive in such a way that no period of residence which ended before 30 April 2006 can be taken into account.
72. That objection is also without substance. No such conclusion can be drawn from Givane . In that case, the Court interpreted the first indent of Article 3(2) of Regulation No 1251/70. That provision stated that members of the family of a worker who had died during his working life and before having acquired the right to remain in the territory of the Member State concerned, were to be entitled to remain there permanently on condition that the worker, on the date of his decease, had resided continuously in the territory of that Member State for at least two years. Under the second sentence of Article 4(1) of that regulation, continuity of residence as provided for in Article 3(2) was not to be affected by temporary absences not exceeding a total of three months per year, nor by longer absences due to compliance with the obligations of military service.
73. In Givane
the worker had resided for two years in the host Member State but had then been absent from the host Member State for over three months. Following his return to the host Member State, the worker had not resided for a further two years in the host Member State before his death.
74. In that case, the Court first held that the period of residence of two years must immediately precede the death. As the worker had been absent from the host Member State, following his first period of residence of more than two years, for more than three months, that period of residence was interrupted under the second sentence of Article 4(1) and could no longer be taken into account. Because, following his return to the host Member State, the worker had not resided for a further two years there immediately preceding his death, the conditions laid down in the first indent of Article 3(2) of Regulation No 1251/70 were not satisfied. Givane, which is based on the conditions laid down in the first indent of Article 3(2) of Regulation No 1251/70, obviously cannot be applied to the issues to be resolved in the present case. Article 16(1) of the directive, unlike the first indent of Article 3(2) of Regulation No 1251/70, is not based on a period of residence which takes place before the occurrence of a particular event.
75. On the contrary, the connection between the first indent of Article 3(2) of Regulation No 1251/70 and its successor provision in Article 17(4)(a) of Directive 2004/38 militates against the objection by the Government of the United Kingdom. Were the condition that periods of residence which ended before 30 April 2006 are not to be taken into account in fact to apply not only in the context of Article 16(1) of the directive but also, in the light of the similar wording, in the context of Article 17(4)(a), that would lead to untenable consequences. As already stated above, such an interpretation would lead to the situation where family members who had acquired a right to remain under the first indent of Article 3(2) of Regulation No 1251/70 on the basis of a period of residence by a worker completed before 30 April 2006 would no longer enjoy a right of residence corresponding to the first indent of Article 3(2) of Regulation No 1251/70 or Article 17(4)(a) of Directive 2004/38.
iv) Conclusion
76. It must be concluded that the schematic relationship between Article 16 and Article 17(1)(b) and Article 17(4)(a) of the directive supports the view that periods of residence in the host Member State which ended before 30 April 2006 are also to be taken into account in the context of Article 16(1) of the directive.
c) Objective of Article 16 of the directive
77. The purpose of Article 16 of the directive also militates in favour of an interpretation according to which a period of residence which ended before 30 April 2006 must be taken into account.
78. As is clear from the first sentence of recital 17 in the preamble, the right of permanent residence under Article 16 of the directive was introduced in order to strengthen the feeling of Union citizenship of a citizen of the Union who has settled long term in a Member State; it is also stated to be a key element in promoting social cohesion, one of the fundamental objectives of the Union.
79. It is evident from the history behind the adoption of Article 16 of the directive that the Community legislature intended to make the right of permanent residence under Article 16(1) of the directive dependent on the integration of a Union citizen in the host Member State. The origins of that provision also make clear that the Community legislature regards a sufficient level of integration as achieved where a Union citizen has resided continuously in the host Member State for five years. (33) According to the Community legislature, the link between the Union citizen and the host State is however weakened after two years’ absence from that State, meaning that the required level of integration, which is a condition for the right of permanent residence, no longer exists. (34) Therefore, under Article 16(4) of the directive, the right of permanent residence is lost following a period of two years’ absence from the host Member State.
80. Taking that integration-based reasoning behind Article 16 of the directive into account, it is not obvious why the required degree of integration in the host Member State is to be determined according to whether the continuous period of five years’ residence ended before or after 30 April 2006. What is decisive is merely whether there has been such a continuous period of residence and whether the link thereby established between the Union citizen and the host Member State has subsequently been weakened by his absence for two years from the host Member State.
d) The objection based on the concept of legal residence
81. The Government of the United Kingdom and the Belgian Government oppose the interpretation according to which periods of residence which ended before 30 April 2006 must be taken into account under Article 16(1) of the directive, on the basis that that provision requires a period of legal residence. Legal residence within the meaning of that provision can only be a period of residence which is in accordance with Directive 2004/38. The lawfulness of the period of residence under Article 16(1) of the directive is indeed referred to in the second sentence of recital 17 in the preamble to the directive, which makes clear that what is at issue is a period of residence in compliance ‘with the conditions laid down in this Directive’. It is therefore only a period of residence completed after entry into force of the transposition law on 30 April 2006 or after expiry of the transposition period which can be taken into account.
82. That objection is also not convincing.
83. Reference should first of all be made to the finding of the referring court that, during the continuous period of residence of more than five years from September 1999 to February 2005, the Union citizen concerned resided legally – that is, in accordance with the provisions of Community law applicable at the relevant time – in the United Kingdom.
84. The objection by the Government of the United Kingdom is not however based on the argument that there had been no legal residence under the provisions applicable at that time. Its argument is rather that there had not been any legal residence within the meaning of Directive 2004/38. Only a period of residence in accordance with Directive 2004/38 can qualify as legal residence under Article 16 of the directive. There could therefore in the present case only be a period of legal residence after entry into force of the transposition law on 30 April 2006.
85. That objection is unfounded. It cannot in my view be inferred from the second sentence of recital 17 in the preamble to the directive that only a period of residence completed in compliance with the law on transposition of Directive 2004/38 which entered into force on 30 April 2006 can qualify as legal residence for the purposes of Article 16(1) of the directive.
86. It is clear from the history of Directive 2004/38 that the second sentence of recital 17 was added in order to clarify the concept of legal residence. (35) That must however not necessarily be understood in the way suggested by the Government of the United Kingdom and the Belgian Government.
87. The second sentence of recital 17 can namely be understood as a clarification of the concept of residence
and thus as a reference to Article 16(3) of the directive, which must be taken into account when calculating the duration of residence. Under that provision, continuity of residence in the host Member State is not to be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
88. The second sentence of recital 17 can also be understood as a clarification of the concept of legal
residence. Legality can namely be determined according to two different approaches. Under the first approach, legal residence can be based only on compliance with Community law provisions, whereas the second approach links legal residence to compliance with the provisions of national law. Provisions of national law may, as Article 37 of the directive states, go further than the provisions of Directive 2004/38. Given that underlying Article 16 of the directive is the idea of the Union citizen’s integration in the host Member State, (36) the wording of Article 16(1) could be understood to mean that a right of permanent residence is also to be granted where the continuous period of five years’ residence which took place previously was lawful under national legal provisions, which may go further than the Community law provisions. In my view there is something to be said for interpreting the second sentence of recital 17 to mean that a right of permanent residence under Article 16 of the directive can arise only where the continuous period of five years’ residence was completed in accordance with the provisions of Community law.
89. On the other hand, the following reasons can be put forward to counter the understanding of the matter advocated by the Governments of the United Kingdom and Belgium, according to which only a period of residence completed in accordance with the transposition law which entered into force on 30 April 2006 is to be taken into account.
90. A first argument against that understanding is the replacement and consolidation rationale of Directive 2004/38, a measure which was designed to remedy the sector-by-sector, piecemeal legislative approach to the right of free movement and residence. (37) That rationale is expressed in particular by Article 38(3) of the directive, under which references made to the repealed provisions and directives are to be construed as being made to Directive 2004/38. Relying therefore on the rationale, which underlies Article 38(3), that the repealed provisions have flowed into Directive 2004/38, (38) so that there is a continuity between the predecessor provisions and Directive 2004/38, it becomes clear that the reference to legal residence in compliance with the conditions laid down in Directive 2004/38 also refers to legal residence in compliance with the predecessor legal provisions previously applicable.
91. A further argument against the approach of the Government of the United Kingdom and the Belgian Government is that it ignores the schematic relationship between Article 16 and 17 of the directive described above.
92. Finally, it should be added in this context that such an approach would mean that a right of permanent residence could be acquired only from 29 April 2011.
93. In conclusion, it must be stated that, irrespective of the meaning finally to be given to the second sentence of recital 17 in the preamble to the directive, it is in my opinion clear at least that it does not justify the conclusion that only a period of residence completed in accordance with the national provisions enacted in order to transpose Directive 2004/38 and applicable from 30 April 2006 can qualify as a period of legal residence within the meaning of Article 16(1) of the directive. On the contrary, a period of residence completed in accordance with the predecessor provisions of Directive 2004/38 is also a period of legal residence under Article 16(1) of the directive. The objection based on the concept of legal residence put forward by the Government of the United Kingdom and the Belgian Government is therefore not convincing.
e) Objection based on the inapplicability of Article 16(4) of Directive 2004/38
94. The Government of the United Kingdom and the Belgian Government also object that taking into account a period of residence in the host State which ended before 30 April 2006 would lead to untenable consequences. Under Article 16(1) of the directive, a right of permanent residence arises where a Union citizen has resided legally for a continuous period of five years in a host Member State. Admittedly, Article 16(4) of the directive lays down that the right of residence is lost through absence from the host Member State for a period exceeding two consecutive years. That provision is however not applicable to periods of residence which occurred a long time ago, since a right of permanent residence is not acquired and therefore cannot be lost under Article 16(4) of the directive.
95. This objection must also be dismissed.
96. Admittedly, it would not be compatible with the integration idea behind Article 16 of the directive were a right of permanent residence to arise as a result of a period of residence in the host Member State which took place a long time ago, without it being possible to take into account whether the necessary level of integration was still present on 30 April 2006. As stated above, the Community legislature proceeds from the assumption that the required level of integration is achieved where there has been a continuous period of five years’ residence and that the required link with the host State no longer exists after a period of absence of two years. (39)
97. The objection by the Government of the United Kingdom and the Belgian Government is however based on the incorrect assumption that Article 16(4) of the directive is not applicable to periods of residence which occurred a long time ago. That assumption seems to rest on the belief that in the case of periods of residence which occurred a long time ago a right of permanent residence already arises before 30 April 2006. As explained above, that is not correct. On the contrary, a right of permanent residence can arise only when the directive is transposed or on expiry of the transposition period on 30 April 2006. In my opinion, there is nothing in the wording of Article 16(4) to suggest that it may not apply to periods of residence which occurred a long time ago. If, with regard to periods of residence in the United Kingdom which took place a long time ago, a right of permanent residence under Article 16(1) of the directive arises on 30 April 2006, then a right of permanent residence exists. If a right of permanent residence exists, then there is no reason why such an existing right should not subsequently be capable of being lost under Article 16(4) of the directive, where more than two years have elapsed since the five years’ residence in the United Kingdom. Admittedly, that leads in the case of periods of residence which occurred a long time ago to a situation where acquisition and loss of the right of permanent residence occur simultaneously, since a right of permanent residence arises first under Article 16(1) of the directive, before then being immediately lost again under Article 16(4) of the directive. Such a situation can however still be covered by Article 16 of the directive, provided that it is accepted that the right of permanent residence exists for only one ‘logical second’, before subsequently being lost under Article 16(4) of the directive. Applying Article 16(1) and (4) in that fashion also takes due account of the integration-based reasoning which lies behind Article 16 of the directive.
98. Should the Court hold that interpretation to be no longer compatible with the wording of Article 16(1) and (4) of the directive, Article 16(4) should be applied by analogy, in order to take the intention of the Community legislature into account. In that case, the legal reasoning behind Article 16(4) of the directive should be applied in order to complement Article 16(1), with the result that in the case of absence from a host Member State for a period exceeding two consecutive years, a right of permanent residence under Article 16(1) of the directive does not even arise.
99. The objection based on the non-applicability of Article 16(4) of the directive must therefore also be rejected.
f) The objection based on Directive 68/360 and Regulation No 1251/70
100. In addition, the Belgian Government objects to an interpretation of Article 16(1) of the directive according to which periods of residence which ended before 30 April 2006 are also taken into account, on the ground that under the provisions applicable before 30 April 2006 a period of absence of ten consecutive months such as that of Ms Lassal would have led to the loss of the former right of residence. Under Article 6(2) of Directive 68/360 and Article 6(2) of Regulation No 1251/70, which applied before 30 April 2006, an absence of more than six consecutive months namely already led to the loss of the right of residence.
101. That objection is also unconvincing. Under the Community law provisions a right of permanent residence was to arise from 1 May 2006 at the latest, under Article 16 of Directive 2004/38. On 1 May 2006, the conditions for establishment of that right no longer fell to be determined under Article 6(2) of Directive 68/360 or Article 6(2) of Regulation No 1251/70. The provisions of Directive 68/360 and of Regulation No 1251/70 were namely already no longer in force at that date, having been replaced by the provisions of Directive 2004/38. (40) The fact that the law transposing Directive 2004/38 in the United Kingdom already entered into force on 30 April 2006 and thus one day before expiry of the transposition period does not alter that conclusion.
g) Principle of protection of legitimate expectations
102. Finally, the principle of protection of legitimate expectations also does not preclude an interpretation of Article 16(1) of the directive according to which periods of residence which ended before 30 April 2006 are taken into account.
103. It should be stated first that the principles of legal certainty and of protection of legitimate expectations are intended primarily to afford protection against excessive interference with individual rights. By taking into account periods of residence which ended before 30 April 2006 in the context of Article 16(1) of the directive, the rights of Union citizens are however strengthened. Nor does the application of Article 16(4) of the directive contradict that. The application of that provision admittedly leads to the loss of the right of permanent residence under Article 16(1) of the directive. That right is however novel and therefore did not exist before 30 April 2006, meaning that there is no interference with an individual right which existed before 1 May 2006.
104. The Government of the United Kingdom stated at the oral hearing that the legitimate expectations of the Member States should also be taken into consideration. They could not foresee that Article 16(1) of the directive would be applied retroactively.
105. That objection too cannot be sustained. First, in the present case there are no legitimate expectations of the Member States to protect. In so far as the Government of the United Kingdom and the Belgian Government submit, first, that the application of Article 16(1) of the directive to periods of residence which occurred a long time ago leads, on account of the non-applicability of Article 16(4) of the directive, to untenable results, that argument must, with reference to points 94 to 99 of this Opinion, be rejected. The Member States also had no legitimate expectation that a provision such as Article 16 of Directive 2004/38 would not be enacted. The rules on Union citizenship have already applied since the entry into force of the Maastricht Treaty on 1 November 1993. (41) In any case, the Government of the United Kingdom and the Belgian Government voted in favour of the proposal for a directive during the legislative procedure. (42) Finally, a Member State cannot rely on a legitimate expectation that Article 16(1) of the directive will not be interpreted to mean that a period of residence which ended before 30 April 2006 is taken into account. Given the schematic relationship between Articles 16 and 17 of the directive explained above, (43) and the purpose of Article 16 of the directive, (44) such an interpretation was foreseeable.
h) Conclusion
106. In conclusion, it must be held that Article 16 of the directive is to be interpreted in the light of the scheme and purpose of the directive as meaning that it also applies to periods of residence which ended before 30 April 2006.
VII – Overall conclusion
107. The concept of a five-year continuous period of residence in Article 16(1) of Directive 2004/38 must therefore be interpreted as meaning that a period of residence of a Union citizen in a host Member State which ended before expiry of the transposition period on 30 April 2006 must also be taken into account. However, Article 16(4) of the directive must also be applied in such a case. In conclusion, a Union citizen whose residence for a continuous period of five years ended before 30 April 2006 has a right of permanent residence under Article 16 of the directive only where his absence from the host Member State following that period of residence did not exceed two consecutive years.
VIII – Conclusion
108. 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 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 legally for a continuous period of five years in a host Member State, before expiry of the period for transposition of the directive on 30 April 2006, has a right of permanent residence, in so far as she was not absent from that Member State for a period exceeding two consecutive years.
(1) .
(2)  –	Under the Treaty of Lisbon of 13 December 2007 amending the Treaty on European Union and the Treaty establishing the European Community (OJ 2007 C 306, p. 1), the procedure concerning references for a preliminary ruling is from now on laid down in Article 267 of the Treaty on the Functioning of the European Union.
(3)  –	OJ 2004 L 158, p. 77.
(4)  –	Case C-325/09: see Notice in OJ 2009 C 256, p. 13. In Dias
the referring court admittedly declined to refer that question again. It however requests the Court also to take into account the underlying facts of the Dias
case when answering the question referred in the present case.
(5)  –	In this Opinion the expression Community law is used, in so far as Community law and not Union law still applies ratione temporis .
(6)  –	OJ, English Special Edition 1968 (II), p. 485.
(7)  –	OJ 2006 L 112, p. 9.
(8)  –	Since the United Kingdom Government refers in its submissions to the Court to the arguments made by the Secretary of State before the referring court, it is not proposed to rehearse those arguments individually here.
(9)  –	Since the CPAG refers in its submissions to the Court to its arguments made before the referring court, it is not proposed to rehearse those arguments individually here.
(10)  –	Communication of 30 December 2003 from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, SEC (2003) 1293 final, p. 10.
(11)  –	Case C-257/00 Givane [2003] ECR I-345.
(12)  –	The Joint Practical Guide was published by the European Communities in 2003 and can be consulted on the Internet at: http://eur-lex.europa.eu/en/techleg/pdf/en.pdf
(13)  –	Already cited in footnote 11 above.
(14)  –	Case C-456/02 Trojani
[2004] ECR I-7573.
(15)  –	See recitals 1 and 2 in the preamble to the Directive.
(16)  –	Article 6 of the directive.
(17)  –	Article 7 of the directive.
(18)  –	Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others
[1981] ECR 2735, paragraph 9; Joined Cases C-121/91 and C-122/91 CT Control (Rotterdam) and JCT Benelux
v Commission
[1993] ECR I-3873, paragraph 22; Case C-293/04 Beemsterboer Coldstore Services
[2006] ECR I-2263, paragraphs 19 to 21.
(19)  –	Case 98/78 Racke
[1979] ECR 69, paragraph 20, and Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano
v Commission
[2002] ECR I‑7869, paragraph 119.
(20)  –	Racke, cited in footnote 19 above, paragraph 20, and Falck and Acciaierie di Bolzano
v Commission, cited in footnote 19 above, paragraph 119.
(21)  –	Salumi, cited in footnote 18 above, paragraph 9 et seq.; Case C-34/92 GruSa Fleisch
[1993] ECR I‑4147, paragraph 22; Falck and Acciaierie di Bolzano
v Commission, cited in footnote 19 above, paragraph 119; and Beemsterboer Coldstore Services, cited in footnote 18 above, paragraph 21.
(22)  –	Salumi, cited in footnote 18 above, paragraph 9 et seq.; GruSa Fleisch, cited in footnote 21 above, paragraph 22; Falck and Acciaierie di Bolzano
v Commission, cited in footnote 19 above, paragraph 119; and Beemsterboer Coldstore Services, cited in footnote 18 above, paragraph 21.
(23)  –	Case 278/84 Commission v Germany
[1987] ECR 1, paragraph 35. As correctly discussed by T. Berger, Zulässigkeitsgrenzen der Rückwirkung von Gesetzen, Peter Lang 2002, p. 180 and p. 196 et seq., who points out that the Court takes into account the structural elements of legal provisions by focusing also on the temporal scope of the provision in each case. Retroactive effect is determined by reference to the relationship between the date of entry into force of a measure and the date of its publication.
(24)  –	Salumi, cited in footnote 18 above, paragraph 9; GruSa Fleisch, cited in footnote 21 above, paragraph 22; Falck and Acciaierie di Bolzano
v Commission, cited in footnote 19 above, paragraph 119; and Beemsterboer Coldstore Services, cited in footnote 18 above, paragraph 21.
(25)  –	Cited in footnote 12 above.
(26)  –	See point 46 of this Opinion.
(27)  –	The repealing instrument was Commission Regulation (EC) No 635/2006 of 25 April 2006 repealing Regulation (EEC) No 1251/70 on the right of workers to remain in the territory of a Member State after having been employed in that State, OJ 2006 L 112, p. 9. Repeal directly by Article 38 EC of Directive 2004/38 was not possible because the Commission had adopted Regulation No 1251/70 on the basis of Article 39(3)(d) EC and under that article enjoyed exclusive competence in respect of matters concerning workers’ right to remain.
(28)  –	As is clear from the first and second recitals in the preamble to Regulation No 635/2006, that occurred in the context of the consolidation by Directive 2004/38 in a single text of the legislation on the free movement of citizens of the Union and the inclusion in Article 17 of that directive of the main elements of Regulation (EEC) No 1251/70; the directive also amended that regulation by granting beneficiaries of the right to remain a more privileged status, namely the right of permanent residence in the host Member State. Egger, J., ‘Die neue Aufenthaltsrichtlinie der EU’, in: Recht, Wirtschaft, Kultur: Herausforderungen an Staat und Gesellschaft im Zeitalter der Globalisierung: Festschrift für Hans Habitzel zum 60. Geburtstag, 2005, p. 95 et seq. at pp., 103, 111, points out that the relevant provision of Directive 2004/38 largely – subject to certain adjustments – corresponds to the provisions of Regulation No 1251/70 and seeks to preserve them.
(29)  –	See Article 6(1)(b) of Regulation No 1251/70.
(30)  –	See recital 3 in the preamble to Directive 2004/38. See also 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. 530, who, with reference to point 114 of the Opinion of Advocate General Geelhoed of 5 July 2001 in Case C-413/99 Baumbast
[2002] ECR I-7091, is of the opinion that Article 18 EC operates as a guarantee under primary law of residence rights already granted, by which the Community legislature is bound.
(31)  –	Hofstötter, B., ‘Die Aufenthaltsrechtliche Dimension der Unionsbürgerschaft im Spiegel aktueller Entscheidungen’, Annuaire suisse de droit européen, 2005, p. 267 et seq., at p. 278, refers to consolidation and further development.
(32)  –	Cited in footnote 11 above.
(33)  –	See the Council’s reasoning in Common Position (EC) No 6/2004 adopted by the Council on 5 December 2003, OJ 2004 C 54 E, p. 12, at p. 31, and the Communication of 30 December 2003 from the Commission to the European Parliament, cited in footnote 10, p. 13. Iliopoulou, A., cited in footnote 30 above, at p. 540, makes the point that after five years the integration goal takes precedence over the financial reservations of the Member States and therefore the right of residence is no longer subject to the conditions provided for in Chapter III of the directive. Following a period of residence of five years in the host Member State, a Union citizen is settled there to such an extent that he should be allowed to integrate in the society of that Member State in the sense of a burden-sharing community.
(34)  –	See the Council’s reasoning in Common Position (EC) No 6/2004 adopted by it on 5 December 2003, cited in footnote 33 above, p. 31, and the Commission Communication to the European Parliament of 30 December 2003, cited in footnote 10 above, p. 13.
(35)  –	See the Commission Communication to the European Parliament of 30 December 2003, cited in footnote 10 above, p. 10.
(36)  –	According to Carlier, J.-Y., ‘Le devenir de la libre circulation des personnes dans l’Union Européenne: Regard sur la directive 2004/38’, Cahiers de droit européen, 2006, p. 13 et seq., at p. 32, the five-year residence period as a basis for the right concerned implements the case-law on Union citizenship, which insists on the condition that there be an actual link between the Union citizen and the host Member State.
(37)  –	See point 66 of this Opinion.
(38)  –	Carlier, J.-Y., cited in footnote 36 above, at p. 14 and Iliopoulou, A., cited in footnote 30, at p. 530, refer to Directive 2004/38 against that background as a ‘directive refonte’ (recast directive). Blázquez Peinado, D., ‘El derecho de libre circulación y residencia de los ciudadanos de la Unión y de los miembros de sus familias, últimos desarrollos normativos: La directive 2004/38/CE de 29 de abril’, Gazeta juridica de la Union Europea y de la competencia, 2004, p. 18 et seq., at p. 20, refers to the close connection between Directive 2004/38 and its predecessor directives.
(39)  –	See point 79 of this Opinion.
(40)  –	See Article 38(2) of Directive 2004/38 and Regulation No 635/2006.
(41)  –	OJ 2002 C 325.
(42)  –	Bezdeka, J., ‘Bemerkungen zur Umsetzung der Unionsbürgerrichtlinie in Österreich durch das Fremdenrechtspaket 2005’, Zeitschrift für Ausländerrecht und Ausländerpolitik, 2005, p. 384 et seq., at p. 384, reveals that only Austria voted against adoption of Directive 2004/38.
(43)  –	See points 59 to 76 of this Opinion.
(44)  –	See points 77 to 80 of this Opinion.