OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 25 September 2025 (1)
Case C‑477/24 [Deldwyn] (i)
Minister for Justice
v
I.T.
(Request for a preliminary ruling from the Court of Appeal (Ireland))
( Reference for a preliminary ruling – Citizenship of the Union – Right of free movement and residence within the territory of the Member States – Directive 2004/38/EC – Derived right of residence – Right of residence of family members of a Union citizen – Marriage between a Union citizen and a third-country national – Retention of the right of residence by a third-country national in the event of divorce – Union citizen no longer exercising an activity at the time of divorce – Article 7(3)(b) – Calculation of ‘more than one year’ period – Requirement of a single continuous period or possibility of cumulating periods of employment over a number of years – Concept of ‘duly recorded involuntary unemployment’ – Right of access to the file setting out the work or social welfare history of a Union citizen )
I.      Introduction
1.        This request for a preliminary ruling (2) was made in the context of appeal proceedings between the Minister for Justice (Ireland) (‘the Minister’) and I.T. (‘the applicant’), a non-EEA national and former spouse of a Union citizen, (3) in relation to the Minister’s refusal to allow the applicant to retain his residence card, which would have enabled him to remain indefinitely in Ireland. The applicant was informed, inter alia, that his right of residence was dependent on his former spouse continuing to exercise her EU Treaty rights in Ireland and that he had not submitted evidence of her activity (4) in that Member State at the time divorce proceedings were initiated.
2.        In its request for a preliminary ruling, the referring court seeks to ascertain whether the term ‘one year’ in Article 7(3)(b) of Directive 2004/38/EC (5) requires that the year in question be a single continuous period or whether shorter periods of employment spread over a number of years may be added together to form a period of one year. In addition, the referring court asks whether the fact that the applicant’s former spouse was in receipt of Jobseeker’s Allowance in Ireland means that she was in ‘duly recorded involuntary unemployment’ in accordance with that provision. Lastly, the referring court seeks to ascertain whether, and if so under what conditions, the Minister is required to make available to the applicant the file relied upon to refuse his application for permanent residence and which sets out, inter alia, the work or social welfare history of his former spouse.
II.    Legal framework
A.      European Union law
3.        Article 7 of Directive 2004/38, entitled ‘Right of residence for more than three months’, states:
‘1.      All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a)      are workers or self-employed persons in the host Member State; or
(b)      have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
…
2.      The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph l(a), (b) or (c).
3.      For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:
…
(b)      he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;
(c)      he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;
…’
4.        Article 13 of that directive, entitled ‘Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership’, provides:
‘…
2.      Without prejudice to the second subparagraph, divorce … shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:
(a)      prior to initiation of the divorce … the marriage … has lasted at least three years, including one year in the host Member State; or
…
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. “Sufficient resources” shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on personal basis.’
5.        Article 14 of that directive, entitled ‘Retention of the right of residence’, states:
‘…
2.      Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.
…’
B.      Irish law
6.        S.I. No 548/2015 – European Communities (Free Movement of Persons) Regulations 2015 (6) (‘the Regulations’) transposed Directive 2004/38 into Irish law. According to the referring court, there is no material difference between Regulation 6(3)(c) of the Regulations and Article 7(3) of Directive 2004/38.
III. The dispute in the main proceedings and the questions referred for a preliminary ruling
7.        The applicant is a non-EEA national. He entered Ireland on foot of a student visa in October 2002. In July 2009, the applicant married a Union citizen in Ireland and applied for permission to reside there pursuant to Directive 2004/38 and the Regulations on the basis that he was the spouse of a Union citizen. That application was refused in February 2010. The applicant made a further application on 17 July 2011, which was refused on 9 February 2012. In both instances, the reason for refusal was that enquiries made with the Union citizen’s employer (7) revealed that, at the time of assessment of the application, (8) she was no longer in employment with the employer identified in the application. In March 2013, the applicant made a third application for permission to reside in Ireland. On this occasion, permission to reside was granted for five years until September 2018. In June 2014, and thus subsequent to the grant of that permission, divorce proceedings were initiated between the applicant and his spouse. The divorce decree was issued in July 2014 in the Union citizen’s country of origin. By that time, the marriage had subsisted for five years.
8.        The applicant’s permission to reside in Ireland was not revoked following his divorce and he continued to work there. His former spouse continued to reside in Ireland (albeit with possible periods of absence during return trips to her country of origin).
9.        In August 2018, the applicant sought retention of his permission to reside in a personal capacity pursuant to Regulation 10(2) of the Regulations, (9) which provides for retention of a right of residence in the event of divorce in certain circumstances where a marriage has lasted for three years or more including at least one year in Ireland. That application was refused in October 2019 on the basis that the applicant had not submitted evidence of his former spouse’s employment in Ireland or possession of sufficient resources at the time divorce proceedings were initiated. (10)
10.      On 17 October 2019, the applicant sought a review of the refusal decision and requested a copy of the information received from the Department of Employment Affairs and Social Protection (‘the DEASP’). The applicant stated that he and his former spouse did not enjoy an ongoing relationship but that his solicitors had written to her seeking her assistance in providing details as to her activities in Ireland during the periods referred to by the Minister and reiterating a belief that she was in receipt of social welfare during at least some of that period. The applicant indicated that he had no way of verifying his understanding that his former spouse was in receipt of social welfare during that period without her assistance and cooperation.
11.      On 22 November 2021, the Minister issued a final decision confirming the refusal decision. (11) The basis for that decision was that there was no information on file regarding the circumstances of the Union citizen’s departure from her previous employment and thus whether that departure was voluntary or involuntary. In addition, there was nothing on file to suggest that she was in employment for more than one year or was on a fixed-term contract of less than one year prior to her registration with the DEASP. The Minister’s position was based on the Union citizen’s employment of 37 weeks in 2013 and 2 weeks in 2014. According to the refusal decision, the Union citizen was ‘not exercising her EU Treaty Rights through involuntary unemployment in the year 2014, the year in which divorce proceedings were initiated and finalised[,] because her period of unemployment was not preceded by twelve months working.’ The final decision also stated that although the Union citizen was in receipt of benefit payments in 2014, the Minister is not bound by any determination of the DEASP and the continued payment of social welfare payments to the Union citizen is not determinative of the EU Treaty rights matter before the Minister.
12.      According to the referring court, there is no indication in the record of the Minister’s decision that the question of whether the Union citizen might have worked for a period of more than one year while resident in Ireland prior to September 2013, when she first received Jobseeker’s Allowance, was addressed. Those earlier periods of activity were not taken into account in determining whether the Union citizen was exercising EU Treaty rights in Ireland on the date of initiation of the divorce proceedings.
13.      The applicant brought judicial review proceedings before the High Court (Ireland) challenging the Minister’s decision. By judgment dated 1 February 2023, the High Court quashed that decision. That court stated that the Minister had focused on the employment situation of the Union citizen in the period immediately preceding her application for Jobseeker’s Allowance and the 12-month period preceding the initiation of divorce proceedings. By contrast, the Minister did not take into account the Union citizen’s employment or residence status during the period from 2009 to 2012, despite the applicant’s reliance thereon. The High Court ruled that neither Article 7(3)(b) of Directive 2004/38 nor Regulation 6(3)(c)(ii) of the Regulations made the retention of worker status conditional on an EU worker establishing that 12 months’ employment was carried out continuously and immediately prior to registering as involuntarily unemployed for the purpose of retaining a right of residence under Article 7(3) of Directive 2004/38. The High Court further considered that the failure to disclose to the applicant records regarding his former spouse’s contributions for the years 2009, 2010, 2011 and 2012 in some redacted or appropriate form, if contained in the information received from the DEASP and available to the Minister, or to transparently address them in the decision-making process, undermined the fairness of the process in circumstances where the Minister was on notice that the applicant contended that his former spouse was working during those years and had submitted some supporting evidence to that effect but he had no access to further information by reason of her lack of cooperation.
14.      The Minister appealed the ruling of the High Court before the Court of Appeal. Considering that the determination of the appeal requires an interpretation of EU law, the Court of Appeal stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:
‘(1)(a)      Does the expression “one year” in [Article] 7(3)(b) of Directive [2004/38] … contemplate or require that the year in question be a single continuous period?
(1)(b)      If the answer to (a) is “no”, does the fact that the periods of employment making up the year in question may have been accumulated or added together over a period of four or five years bring the [Union] citizen outside the scope of [Article] 7(3)(b) [of Directive 2004/38]?
(2)      Does the fact that the [Union] citizen was in receipt of [Jobseeker’s] Allowance from the [DEASP] in Ireland mean that he or she is in “duly recorded involuntary unemployment” in the State within the meaning of [Article] 7(3)(b) [of Directive 2004/38]?
(3)      Does the general principle of EU law which reflects [Article] 41 of the Charter, or alternatively, does [Directive 2004/38] interpreted in the light of that general principle, require the [Minister] to provide its file to the applicant (if necessary, in suitably redacted form) either:
(a)      before making a decision on retention of residence rights/a Residence card pursuant to [Article 14 of Directive 2004/38] in relation to [Article 13 and/or Article 7(3) of that directive]; and/or
(b)      when the applicant seeks to challenge such a decision by way of Judicial Review proceedings?’
IV.    The procedure before the Court
15.      Written observations were submitted by the applicant, the German Government, Ireland and the European Commission. In the present Opinion and in keeping with the Court’s request, I shall analyse the first and second questions referred by the Court of Appeal.
V.      Assessment
A.      Preliminary remarks
16.      The purpose of Directive 2004/38 (12) is to facilitate the exercise and strengthen the right to move and reside freely within the territory of the Member States conferred directly on citizens of the Union by Article 21(1) TFEU. (13) In that regard, Directive 2004/38 confers on all nationals of non-member countries who are family members of a Union citizen within the meaning of Article 2(2) of that directive, (14) and who accompany or join the Union citizen in a Member State other than that of which he or she is a national, (15) rights of entry into and residence in the host Member State. (16)
17.      Article 7 of Directive 2004/38 lays down the conditions pursuant to which Union citizens and their family members enjoy a right of residence for more than three months in the host Member State, (17) and who therefore do not yet enjoy a right of permanent residence under Article 16(1) of Directive 2004/38. (18)
18.      Article 7(1)(a) of Directive 2004/38 provides that all Union citizens have such a right of residence provided that they have the status of worker or self-employed person in the host Member State. (19) In accordance with Article 7(1)(b) of Directive 2004/38, Union citizens have a right of residence in the host Member State without being economically active provided they have, for themselves and their family members, comprehensive sickness insurance cover in that Member State and sufficient resources not to become a burden on the social assistance system of that Member State during their period of residence. (20) Article 7(1)(c) also provides for a right of residence for students under certain conditions.
19.      Article 7(2) of Directive 2004/38 grants family members of a Union citizen who are third-country nationals, accompanying or joining the Union citizen in the host Member State, a right of residence there, provided that the Union citizen satisfies the conditions referred to, inter alia, in Article 7(1)(a), (b) or (c) of that directive. (21) In accordance with Article 14(2) of Directive 2004/38, the right of the family members of a Union citizen to reside in the host Member State on the basis, inter alia, of Article 7(2) of that directive continues only as long as the Union citizen (22) meets the conditions laid down in that provision. (23) In that regard, the Court has emphasised that the rights conferred on family members by Directive 2004/38, including Article 7 thereof, are not autonomous rights but rights derived from the exercise of freedom of movement by a Union citizen. (24)
20.      Article 7(3) of Directive 2004/38 provides that, for the purposes of Article 7(1)(a) thereof, a Union citizen who is no longer a worker or self-employed person in the host Member State will nevertheless retain the status of worker or self-employed person in certain circumstances. (25) Article 7(3) of Directive 2004/38 establishes a gradation with regard to the conditions for retaining that status, by reference to, first, the reason for the Union citizen’s inability to work and, second, the initial duration of his or her period of activity in the host Member State. In that regard, the conditions for retaining the status of worker or self-employed person vary depending on whether the initial period of activity is longer or shorter than one year. (26) Thus, a Union citizen who has pursued an activity in an employed or self-employed capacity in the host Member State retains his or her status of worker indefinitely if he or she: (i) is temporarily unable to work as the result of an illness or accident; (27) (ii) worked in an employed or self-employed capacity in the host Member State for more than one year before becoming involuntarily unemployed; (28) or (iii) has embarked on vocational training. (29)
21.      By contrast, in accordance with Article 7(3)(c) of Directive 2004/38, a Union citizen who has pursued an activity in an employed or self-employed capacity in the host Member State for a period of less than one year
before becoming involuntarily unemployed retains his or her status of worker only for a period of time which that Member State may determine, provided it is no less than six months. In the judgment in Tarola, the Court held that a Union citizen retained that status having pursued an activity for a period of two weeks in the host Member State before becoming involuntarily unemployed. The Court emphasised that the reasons a Union citizen is unemployed pursuant to Article 7(3)(b) (30) and Article 7(3)(c) (31) of Directive 2004/38 must be beyond his or her control.
22.      In the light of the fact that family members of a Union citizen who are nationals of third countries do not have an autonomous right of residence under Article 7 of Directive 2004/38, but only rights derived from the exercise of freedom of movement by the Union citizen, Directive 2004/38 puts in place legal safeguards to protect family members of a Union citizen in certain instances. (32) In that regard, Article 13(2)(a) of Directive 2004/38 ensures that, in the event of divorce, the spouse of a Union citizen who is a national of a third country may retain his or her right of residence in the host Member State on a personal rather than on a derived basis. (33) The personal right is subject to the condition that prior to the initiation of divorce proceedings the marriage has lasted at least three years, including one year in the host Member State. It would appear from the facts contained in the request for a preliminary ruling that the applicant satisfies these conditions. In addition, prior to acquiring a right of permanent residence, the person concerned must comply with the conditions set out in the second subparagraph of Article 13(2) of Directive 2004/38, namely that the person concerned shows either that he or she is a worker or that he or she has sufficient resources for himself or herself and for his or her family members not to become a burden on the social assistance system of the host Member State during their period of residence and that they are covered by a comprehensive sickness insurance in that host Member State, or that he or she is a member of the family, already constituted in the host Member State, of a person satisfying those requirements. The Court has stated that these conditions correspond to those set out in Article 7(1)(a), (b) and (d) of Directive 2004/38, which Union citizens themselves are required to satisfy in order to enjoy a temporary right of residence, of a duration of more than three months, in the territory of the host Member State. (34)
23.      The applicant must thus establish whether he enjoyed a right of residence in Ireland at the time divorce proceedings were initiated. Given the fact that the applicant relies on the right of residence of his former spouse, a Union citizen, his right depends on whether she enjoyed such a right at that time. (35) It is these conditions which are at the heart of the dispute in the main proceedings. (36)
24.      It is apparent, in particular from recital 10 of Directive 2004/38, that the conditions set out in Article 7 of that directive are intended, inter alia, to prevent a Union citizen and his or her family members from becoming an unreasonable burden on the social assistance system of the host Member State. (37) That risk potentially arises as, in accordance with Article 24(1) of Directive 2004/38, a Union citizen can claim equal treatment with nationals of the host Member State within the scope of the Treaty if his or her residence in the territory of the host Member State complies with the conditions of Directive 2004/38. The benefit of that provision is also extended to family members who are not nationals of the host Member State and who have a right of residence. Subject to the derogation in Article 24(2) of Directive 2004/38, a Union citizen can thus claim equal access to social assistance, by virtue of Article 24(1) of Directive 2004/38, with nationals of the host Member State if his or her residence in the territory of that Member State complies with the conditions of Directive 2004/38. (38)
B.      The first question
25.      By its first question, which is divided into two parts, (39) the referring court seeks, in essence, to ascertain whether the expression ‘for more than one year’ (40) in Article 7(3)(b) of Directive 2004/38 refers to a single continuous period of economic activity or whether it may refer to the addition of distinct or separate periods of such activity over a period of four or five years.
26.      The applicant considers that there is no reason to suppose that the expression ‘for more than one year’ in Article 7(3)(b) of Directive 2004/38 refers to a single continuous period. It may refer to ‘periods of less than one year … added up’. Ireland and the German Government consider that that expression refers to a single continuous period of one year. The Commission’s approach is more nuanced. It considers that the expression refers, in principle, to a period of economic activity characterised by a certain degree of connection with the economic life of a host Member State, which implies a minimum degree of continuity of economic activity in that State. It further entails a substantial contribution by the EU worker to the host Member State’s finances through the payment of taxes and social security contributions. The requirement for continuity cannot exclude two or more periods of genuine and effective work undertaken in a host Member State, which in combination exceed one year in duration, on the ground that they result from successive employment contracts with different employers, including where there may be interruptions between such work.
27.      It must be stressed that Directive 2004/38 does not define what is meant by the expression ‘for more than one year’ in Article 7(3)(b) (41) thereof. (42) Moreover, a literal interpretation alone of that expression in different language versions (43) does not make it possible to determine unequivocally whether it refers to a single continuous or uninterrupted period of more than one year or to a total period of more than one year made up by adding two or more distinct periods each of which is shorter than one year. This lack of clarity may be contrasted with other EU legislation in the fields of free of movement of persons and residence in which the EU legislature explicitly referred to a specified uninterrupted period of time or to a continuous period of time. (44) Perhaps more striking is the fact that Articles 16 and 17 of Directive 2004/38 itself refer, in the context of the right of permanent residence, to continuous periods of residence in the host Member State. Thus, for example, Article 16(1) of Directive 2004/38 provides that ‘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.’ (45) Moreover, in order to temper the strict and unequivocal wording of that provision, Article 16(3) of Directive 2004/38 provides that continuity of residence shall not be affected in certain instances, such as ‘temporary absences not exceeding a total of six months a year’. (46)
28.      Contrary to Ireland’s submissions, I do not consider that the text of Article 7(3)(b) of Directive 2004/38 ‘is clear on its face’. (47) It is thus necessary, in interpreting that provision, to take into account not only its wording, but also its context and the general scheme of the rules of which it forms part and the objectives pursued thereby. (48)
29.      As regards the context and general scheme, it must be stated at the outset that the fact that Article 16(1) of Directive 2004/38 explicitly refers to a continuous period, while Article 7(3)(b) thereof does not, would tend to indicate that the latter provision does not require such continuity. The provisions in question are found, however, in different chapters of Directive 2004/38, which draw a clear distinction between the right of residence (Chapter III) and the right of permanent residence (Chapter IV) and the conditions in order to benefit from those different rights. (49) I therefore do not consider that the absence of an explicit requirement of continuity in Article 7(3)(b) of Directive 2004/38 is dispositive.
30.      It is thus opportune to have regard to the rules in Chapter III of Directive 2004/38 on the right of residence, in particular Article 7 thereof and the objectives pursued by those rules.
31.      Article 7(3) of Directive 2004/38, which covers situations in which a Union citizen who has temporarily ceased to pursue an activity as an employed or self-employed person retains his or her status as a worker, as well as the corresponding right of residence under Article 7(1) of that directive, (50) is based on the assumption that the citizen is available and able to re-enter the labour market of the host Member State within a reasonable period. (51) It strikes a fair balance between safeguarding the free movement of workers (52) and ensuring that the social security systems of the host Member State are not placed under an unreasonable burden. (53) The weighing and reconciliation of these competing legitimate interests in Article 7(3) of Directive 2004/38 and the careful gradation crafted therein by the EU legislature reflects (in part) the principle of proportionality (54) contained in Article 5(4) TEU. (55)
32.      As previously indicated, the protection granted under Article 7(3) of Directive 2004/38, in particular the length of that protection, may vary depending, inter alia, on the reasons for the cessation of activity in the host Member State and the length of that initial activity. (56) Thus while a clear parallel may be drawn between Article 7(3)(b) and Article 7(3)(c) of Directive 2004/38, which both refer to ‘duly recorded involuntary unemployment’ during which time the person concerned ‘has registered as a job seeker’, those provisions differ markedly as regards the length of time a worker or a self-employed person retains such status depending on whether the initial duration of his or her period of activity in the host Member State is longer or shorter than one year. (57) Given that both Article 7(3)(b) and Article 7(3)(c) of Directive 2004/38 are premised on the fact that a Union citizen’s activity has been interrupted involuntarily (58) and that he or she will re-enter the workforce in the host Member State within a reasonable time, it is clear, as pointed out by the German Government, (59) Ireland (60) and the Commission, (61) that including within the meaning of ‘more than one year’ short, dispersed or sporadic periods of economic activity added together over a prolonged period of time (62) may erode in practice the difference between those provisions (63) and the careful gradation crafted by the EU legislature in the different points of Article 7(3) of Directive 2004/38, (64) thereby undermining the fair balance struck in that provision. (65) In that regard, I consider that the enhanced protection granted under Article 7(3)(b) of Directive 2004/38 – which may be for an indefinite period (66) – requires a corresponding contribution to and connection with the economy of the host Member State (67) which is both durable and sustained as compared to the lesser protection granted under Article 7(3)(c) (68) thereof where economic activity for a duration of, for example, two weeks (69) will suffice to benefit from the protection afforded by the latter provision. Given that, in the light of the judgment in Tarola, the temporal threshold in Article 7(3)(c) of Directive 2004/38 is low, (70) the question of continuity does not arise thereunder.
33.      In that regard, blurring the distinction between Article 7(3)(b) and Article 7(3)(c) of Directive 2004/38 could place an unreasonable burden on the social security systems of host Member States. In addition, the full impact of that burden would be unforeseen as periods of employment or self-employment in the host Member State spread over many years, interspersed with periods of absence from the workforce of the host Member State, could be taken into account and give rise to the retention of the status of worker and the attendant rights thereunder for an indefinite period of time. I therefore consider that the expression ‘for more than one year’ refers not only to the minimum duration of the economic activity in question (71) but also, in principle, to the continuity of that activity.
34.      While the requirement of a continuous period of more than one year in order to maintain the status of worker pursuant to Article 7(3)(b) of Directive 2004/38, in principle, adequately and equitably reconciles the identified competing rights, interests and principles at stake and the fair balance that must be achieved, I consider that it is necessary to also examine whether certain limited periods of inactivity should not affect that continuity. (72) Such an examination is necessary in order to ensure that the principle of proportionality contained in Article 5(4) TEU is fully respected.
35.      It must be emphasised at the outset and as indicated by the Commission, while Article 7(3) of Directive 2004/38 covers both employed and self-employed activity, the latter by its nature may be characterised by several work assignments with interruptions between such assignments. An interpretation of Article 7(3)(b) of Directive 2004/38 requiring without exception a single continuous period of work would make it difficult for Union citizens to rely on that provision and would be inconsistent with its intended material scope. (73)
36.      As regards voluntary absences from the workforce, it would be excessively formalistic and harsh if a Union citizen, having worked in the host Member State for a continuous period of 10 months, left their work voluntarily, for example, to attend to a family emergency or situation and, upon their return to the workforce, the clock automatically reset or restarted at zero. In such an instance, a person having worked for a 10-month period and, following a two-month interruption, for another 10-month period before becoming involuntarily unemployed would be unable to benefit from the protection afforded by Article 7(3)(b) of Directive 2004/38. An automatic and untempered application of a requirement of a continuous and uninterrupted period of more than one year would fail to acknowledge, for example, the fact that while a Union citizen has taken up work in the host Member State he or she may retain family commitments and other obligations (elsewhere), which require their physical presence. (74) It may not be possible to deal with such commitments and obligations during periods of annual leave that a worker may enjoy in the first year of activity in the host Member State (75) or from a distance. (76)
37.      Moreover, the Court acknowledged as early as 1988 that ‘continuous careers are less common than was formerly the case.’ (77) In addition, it is notorious (78) that workers may choose not to work for brief periods as they transition from one activity to another. (79) Provided they comply with the other conditions in Article 7(3)(b) of Directive 2004/38, it would be unnecessarily harsh to automatically exclude such workers from the benefit thereof if they worked for a total of more than one year albeit interspersed with short gaps or interruptions of a limited total duration.
38.      It follows that while the expression ‘for more than one year’ in Article 7(3)(b) of Directive 2004/38 refers, in principle, to a single continuous period of more than one year, given that the concept of ‘worker’ must not be interpreted narrowly (80) – and by extension the conditions pursuant to which that status may be maintained – that continuity should not be interrupted by short absences from the workforce of a reasonable length (81) not exceeding a total of two months where the interruption is voluntary or of six months where it results from involuntary unemployment. (82)
39.      It must be highlighted that the period of two months of voluntary inactivity is short in nature by reference or in proportion to the period of more than one year in Article 7(3)(b) of Directive 2004/38. It follows, by analogy, the rationale or logic underlying Article 16(3) of Directive 2004/38. Article 16(3) of Directive 2004/38 provides, inter alia, that absences for periods ranging from a total of 6 months to 12 consecutive months in certain circumstances will not interrupt a continuous period of residence in the host Member State of five years. The duration of the period of interruption permitted under Article 16(3) of Directive 2004/38 varies depending, in essence, on whether it arose by choice of the Union citizen or by force of circumstance.
40.      As regards the period of six months in the case of involuntary unemployment, I consider that it is appropriate by reference to the minimum period of retention of the status of worker in Article 7(3)(c) of Directive 2004/38 (83) and in order not to erode or blur the difference between that provision and Article 7(3)(b) of that directive. It also reflects the nuanced approach adopted by the EU legislature in Article 16(3) of Directive 2004/38 in respect of the length of the interruption permitted depending on whether it is voluntary or involuntary. (84)
41.      The period(s) of voluntary or involuntary interruption in question, however, may not be taken into account in calculating the required period of employment (85) of more than one year in Article 7(3)(b) of Directive 2004/38.
42.      I therefore consider in response to the first question of the referring court that the expression ‘more than one year’ in Article 7(3)(b) of Directive 2004/38 should be interpreted as referring, in principle, to a single continuous period. In accordance with the principle of proportionality, the continuity of that period is not interrupted by short absences from the workforce of a reasonable length not exceeding a total of two months where the interruption is voluntary or of six months where it results from involuntary unemployment. The period(s) of interruption in question may not be taken into account in calculating the required period of employment of more than one year in Article 7(3)(b) of Directive 2004/38.
C.      The second question
43.      By its second question, the referring court seeks to ascertain whether a Union citizen’s eligibility for Jobseeker’s Allowance means that he or she is in ‘duly recorded involuntary unemployment’ in the host Member State pursuant to Article 7(3)(b) of Directive 2004/38.
44.      It is evident from the request for a preliminary ruling and the file before the Court that the referring court seeks an interpretation of the term ‘duly recorded’ rather than ‘involuntary unemployment’ in Article 7(3)(b) of Directive 2004/38. (86) The referring court enquires, in essence, whether the fact that the DEASP (87) paid the applicant’s former spouse Jobseeker’s Allowance must be accepted as proof by the Minister (88) that she was in duly recorded involuntary unemployment for the purposes of Article 7(3)(b) of Directive 2004/38 or at least taken into consideration in that assessment.
45.      The applicant considers that the DEASP must adopt a decision on whether unemployment is involuntary or not and that decision is binding on the Minister as a matter of EU law. By granting a Union citizen Jobseeker’s Allowance, the DEASP deems that he or she meets the criteria in Article 7(3)(b) of Directive 2004/38. Alternatively, very significant weight should be attached to that finding. In the event that the Minister does not consider the position of the DEASP determinative, the Minister should give reasons for disregarding that position.
46.      The German Government submits that a person such as the applicant seeking to establish a derived right of residence from rights enjoyed by his former spouse may rely on the fact that she received Jobseeker’s Allowance from the DEASP to prove that she was in a situation of ‘duly recorded involuntary unemployment’  within the meaning of Article 7(3)(b) of Directive 2004/38. The German Government highlighted the particular circumstances of the present case, namely the lack of cooperation on the part of the Union citizen and the refusal of the Irish authorities to provide the applicant with the relevant certificates, thereby making it impossible for him to assert the rights provided for in Directive 2004/38. According to that government, if it is no longer possible to determine whether the unemployment was involuntary, this is exclusively attributable to the procedures of the Irish authorities, such as the failure to establish the facts or the deletion of relevant information from databases. This situation may not operate to the detriment of the applicant.
47.      Ireland considers that registration as a jobseeker with the DEASP fulfils only one part of the requirements of Article 7(3)(b) of Directive 2004/38 and that such registration alone does not and cannot qualify as a basis for the retention of the status of worker by the Union citizen. There is clearly an additional requirement that the unemployment be ‘involuntary’. This is not something that the Irish authorities consider when granting Jobseeker’s Allowance. Moreover, the applicant at all times bears the burden of proof in establishing that his former spouse, a Union citizen, was involuntarily unemployed. Thus, according to Ireland, the fact that the Union citizen was in receipt of Jobseeker’s Allowance from the DEASP does not mean in itself as a matter of law that she is in ‘duly recorded involuntary unemployment’ in Ireland within the meaning of Article 7(3)(b) of the directive.
48.      According to the Commission, the reasons why a mobile Union citizen ceased exercising an economic activity in the host Member State may be relevant in determining whether unemployment is voluntary or not. The requirement of ‘involuntary’ unemployment imposed by Article 7(3)(b) and (c) of Directive 2004/38 limits the retention of worker status to situations where the cessation of all economic activity (though not necessarily the cessation of a specific job) was due to circumstances beyond the control of the mobile Union citizen. An alternative interpretation could permit mobile workers to benefit from retained worker status, even where they ceased all activity in a host Member State purely of their own volition. At the same time, eligibility for Jobseeker’s Allowance at issue in these proceedings is dependent on the mobile Union citizen establishing that he or she is available for work and genuinely seeking work but is unable to obtain suitable employment. It is therefore conceivable that competent authorities could, for the purpose of verifying a Union citizen’s continuing entitlement to Jobseeker’s Allowance, have additional information regarding the nature and extent of the Union citizen’s efforts at seeking work and the result of those efforts, which would be relevant in determining whether his or her unemployment status was voluntary or not. This is, however, a matter which the referring court is best placed to verify.
49.      It is clear from the wording of Article 7(3)(b) of Directive 2004/38 that in order for a Union citizen to retain the status of worker or self-employed person he or she must fulfil three separate cumulative conditions, namely: (i) be in ‘duly recorded involuntary unemployment’; (ii) after having been employed for more than one year and (iii) have registered as a jobseeker with the relevant employment office. The cumulative nature of those conditions is evident from the use of the terms ‘after’ and ‘and’ in that provision. Registration as a jobseeker after having been employed for more than one year will thus not suffice in order for a Union citizen to retain the status of worker or self-employed person pursuant to Article 7(3)(b) of Directive 2004/38. The Union citizen must also fulfil the separate requirement of being in ‘duly recorded involuntary unemployment’.
50.      The term ‘duly recorded’ is not defined in Directive 2004/38 and the manner in which involuntary unemployment must be established or recorded is not laid down therein. It follows therefore that in the absence of EU rules on the matter and in accordance with the principle of procedural autonomy, it is for the national legal order of each Member State to establish the rules for duly recording involuntary unemployment for the purposes of Article 7(3)(b) of Directive 2004/38, on condition that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights conferred by the EU legal order (principle of effectiveness). (89)
51.      In the case in the main proceedings, the only issue is that of the principle of effectiveness.
52.      It would appear, subject to verification by the referring court, that Regulation 6(3)(c) of the Regulations, in a manner similar to Article 7(3)(b) of Directive 2004/38, merely refers to ‘duly recorded involuntary unemployment’ without indicating in concreto how such a record should be established. In addition, there is no indication in the file before the Court that other national legislation, statutory instrument(s) or case-law resolve the matter.
53.      More importantly however, the referring court has not indicated the statutory basis and the conditions for obtaining Jobseeker’s Allowance in Ireland. In particular, that court has not explained whether the grant of Jobseeker’s Allowance by the DEASP is dependent on a finding by that entity that the person in question is unemployed for reasons beyond his or her control or whether, and if so how and to what extent, such circumstances may be relevant in assessing eligibility for that allowance. I therefore have serious reservations as to whether the second question is in fact admissible as the referring court has not explained the tenor of the relevant national provisions applicable in respect of that question as required by Article 94(b) of the Rules of Procedure of the Court of Justice.
54.      In the event that the Court should consider that the second question is admissible, I would highlight the fact that according to the Commission, the Minister maintained before the High Court that when assessing eligibility for Jobseeker’s Allowance, the DEASP makes no inquiry into the reasons why a person has left prior employment. (90) Ireland also submits in its observations before the Court that the Irish authorities do not examine whether unemployment is ‘involuntary’ when granting Jobseeker’s Allowance.
55.      However, it would appear in accordance with publicly available information provided by a statutory body under the remit of the Department of Social Protection (formerly the DEASP), subject to verification by the referring court, that a person may be disqualified for a period of time (up to nine weeks) if he or she has ‘left work voluntarily and without just cause’. (91) It follows (92) that the Department of Social Protection, when awarding Jobseeker’s Allowance, currently inquires (93) or at least has the power to inquire into the reasons why a person is unemployed and may temporarily disqualify that person if their unemployment is voluntary. There would thus appear to be some overlap in the conditions for obtaining Jobseeker’s Allowance in Ireland and the term ‘involuntary unemployment’ in Article 7(3)(b) of Directive 2004/38. (94)
56.      If the referring court finds that the DEASP enjoyed such powers at the relevant time and eligibility for Jobseeker’s Allowance requires in substance that the person is in ‘involuntary unemployment’, (95) I consider that the fact that a Union citizen obtained Jobseeker’s Allowance from that entity must be taken into consideration by the Minister when assessing whether a Union citizen may retain the status of worker or self-employed person pursuant to Article 7(3)(b) of Directive 2004/38. In such circumstances, receipt of Jobseeker’s Allowance constitutes prima facie evidence that the Union citizen was in ‘duly recorded involuntary unemployment’ for the purposes of Article 7(3)(b) of Directive 2004/38. (96)
57.      The Minister may rebut that evidence by proving that the Union citizen was excluded or disqualified (temporarily) from receiving Jobseeker’s Allowance, as his or her unemployment was voluntary, or by any other relevant evidence. It must be stressed that the Minister relied extensively on information received from the DEASP on the applicant’s former spouse to demonstrate, inter alia, her employment record, her lack of status as a worker and the fact that she received Jobseeker’s Allowance ‘between September, 2013 and September, 2017’. The Minister is thus in a position to obtain information from the DEASP to rebut the prima facie evidence in question.
58.      I therefore consider in response to the second question of the referring court that a Union citizen’s eligibility for Jobseeker’s Allowance constitutes prima facie evidence that a Union citizen was in ‘duly recorded involuntary unemployment’ if that eligibility depends on a person being unemployed for reasons beyond his or her control and the relevant national authority which grants that allowance inquires or has the power to inquire into the reasons why that person is unemployed.
VI.    Conclusion
59.      In the light of all the foregoing considerations, I propose that the Court answer the first and second questions referred by the Court of Appeal (Ireland) as follows:
Article 7(3)(b) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
must be interpreted as meaning that:
–        The expression ‘more than one year’ therein refers, in principle, to a single continuous period. In accordance with the principle of proportionality, the continuity of that period is not interrupted by short absences from the workforce of a reasonable length not exceeding a total of two months where the interruption is voluntary or of six months where it results from involuntary unemployment. The period(s) of interruption in question may not be taken into account in calculating the required period of employment of more than one year in Article 7(3)(b) of Directive 2004/38.
–        A Union citizen’s eligibility for Jobseeker’s Allowance constitutes prima facie evidence that a Union citizen was in ‘duly recorded involuntary unemployment’ if that eligibility depends on a person being unemployed for reasons beyond his or her control and the relevant national authority which grants that allowance inquires or has the power to inquire into the reasons why that person is unemployed.
1      Original language: English.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      The request was lodged by the Court of Appeal (Ireland) on 9 July 2024 at the Registry of the Court of Justice.
3      The applicant and his former spouse divorced in July 2014.
4      As a worker or self-employed person.
5      Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigendum OJ 2004 L 229, p. 35).
6      https://www.irishstatutebook.ie/eli/2015/si/548/made/en/print.
7      As indicated on the relevant application forms.
8      Which on each occasion was sometime after the submission of the application.
9      Ireland indicated in its written observations that Regulation 10(2) of the Regulations implements Article 13(2) of Directive 2004/38.
10      The applicant was informed in the refusal letter that ‘information available to the Minister from the [DEASP], indicates that the [Union] citizen was not exercising their rights through employment, self-employment, the pursuit of a course of study, involuntary unemployment or the possession of sufficient resources in accordance with Regulation 6(3) of the Regulations from [13 September 2013] to [23 September 2017].’ In the record of the decision submission, an officer in the EU Treaty Rights Division decided that the applicant’s application should be refused as: ‘the information available from the DEASP indicates that the [Union] citizen was not exercising her [EU Treaty rights] in the State through employment at the date of the initiation of divorce proceedings in …June, 2014[;] she was resident here but was in receipt of [Jobseeker’s] Allowance from [13 September 2013] to [23 September 2017].’
11      The case was handled by a review officer who also acts as deponent on behalf of the Minister in the main proceedings before the Irish courts.
12      See recitals 1 to 4 of Directive 2004/38.
13      Judgment of 11 April 2019, Tarola (C‑483/17, ‘the judgment in Tarola’, EU:C:2019:309, paragraph 23 and the case-law cited). The Court has emphasised, as is apparent from the very wording of Articles 20 and 21 TFEU, that the right of Union citizens and their family members to move and reside freely within the territory of the Member States is not unconditional but subject to the limits and conditions laid down by the FEU Treaty and by the measures adopted to give it effect. The EU legislature has regulated those limits and conditions by means of Directive 2004/38 (judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence), C‑930/19, EU:C:2021:657, paragraph 78 and the case-law cited).
14      In accordance with Article 2(2)(a) of Directive 2004/38, a ‘spouse’ is a ‘family member’.
15      I shall refer to this as the host Member State.
16      Article 3(1) of Directive 2004/38 defines ‘beneficiaries’ of the rights conferred by the directive as ‘all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them’. The purpose and justification of the rights granted to family members are based on the fact that a refusal to allow such rights would be liable to interfere with the Union citizen’s freedom of movement by discouraging him or her from exercising his or her rights of entry into and residence in the host Member State (judgment of 16 July 2015, Singh and Others, C‑218/14, ‘the judgment in Singh’, EU:C:2015:476, paragraph 50).
17      Article 6 of Directive 2004/38 refers to the right of residence for up to three months of Union citizens and their family members in the host Member State.
18      See also Article 17 of Directive 2004/38 on exemptions for persons no longer working in the host Member States and their family members. Article 21 of Directive 2004/38 provides that ‘for the purposes of this Directive, continuity of residence may be attested by any means of proof in use in the host Member State. …’
19      See the judgment in Tarola, paragraph 24.
20      Judgment of 15 July 2021, A (Public health care) (C‑535/19, EU:C:2021:595, paragraph 53 and the case-law cited). That condition is based on the idea that the exercise of the right of residence for citizens of the Union can be subordinated to the legitimate interest of the Member States such as the protection of their public finances (see, to that effect, judgment of 19 September 2013, Brey, C‑140/12, EU:C:2013:565, paragraph 55). It must be underscored that it is settled case-law that while the Union citizen must have sufficient resources, EU law does not, however, lay down any requirement whatsoever as to their origin. The resources may be provided, inter alia, by a third-country national who is the spouse of the Union citizen (see, to that effect, the judgment in Singh, paragraph 74 and the case-law cited).
21      As the Commission observed, Article 7(1) of Directive 2004/38 contains a number of different legal bases in accordance with which Union citizens have a right of residence on the territory of another Member State for a period of longer than three months. Given that the legal basis for residence can change over time, a Union citizen can cumulate several periods of legal residence under more than one legal basis provided by Article 7(1) of Directive 2004/38.
22      And the family members of the Union citizen.
23      See, to that effect, judgment of 21 December 2023, Chief Appeals Officer and Others (C‑488/21, EU:C:2023:1013, paragraph 59).
24      The derivative nature of such family rights reflects their primary objective pursuant to Directive 2004/38, which is to promote the freedom of movement of Union citizens (see judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence), C‑930/19, EU:C:2021:657, paragraphs 74 and 82 and the case-law cited).
25      The Court has held that those circumstances are not listed exhaustively in Article 7(3) of Directive 2004/38 (see the judgment in Tarola, paragraph 26 and the case-law cited). See also judgment of 19 June 2014, Saint Prix (C‑507/12, EU:C:2014:2007, paragraphs 31 and 38). In paragraphs 28, 40 and 41 of the latter judgment, the Court stated that Article 7(3) of Directive 2004/38 does not expressly envisage the case of a woman who is in a particular situation because of the physical constraints of the late stages of her pregnancy and the aftermath of childbirth. The fact that such constraints require a woman to give up work during the period needed for recovery does not, in principle, deprive her of the status of ‘worker’ within the meaning of Article 45 TFEU. The fact that she was not actually available on the employment market of the host Member State for a few months does not mean that she ceased to belong to that market during that period, provided she returns to work or finds another job within a reasonable period after confinement. See also judgment of 19 September 2019, Dakneviciute (C‑544/18, EU:C:2019:761, paragraph 41), which is based on Article 49 TFEU.
26      See the judgment in Tarola, paragraph 43.
27      See Article 7(3)(a) of Directive 2004/38.
28      See Article 7(3)(b) of Directive 2004/38. The person concerned must register as a jobseeker with the relevant employment office.
29      See Article 7(3)(d) of Directive 2004/38.
30      Judgment of 20 December 2017, Gusa (C‑442/16, EU:C:2017:1004, paragraph 45).
31      See the judgment in Tarola, paragraphs 46, 48 and 49.
32      See, for example, Articles 12 and 13 of Directive 2004/38.
33      Article 13(2) of Directive 2004/38 thus constitutes a derogation from the principle that the family members of a Union citizen do not benefit from autonomous rights of residence but rather derived rights pursuant to that directive (judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence), C‑930/19, EU:C:2021:657, paragraph 34).
34      Judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence) (C‑930/19, EU:C:2021:657, paragraphs 61 and 62).
35      The Court has stated that the spouse who is a Union citizen of a third-country national must reside in the host Member State, in accordance with Article 7(1) of Directive 2004/38, up to the date of commencement of the divorce proceedings for that third-country national to be able to claim the retention of his or her right of residence in that Member State on the basis of Article 13(2) of the directive (the judgment in Singh, paragraph 66). These requirements have been altered and tempered by the Court in cases of domestic abuse (judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence), C‑930/19, EU:C:2021:657, paragraph 43). I consider that Article 7(3) of Directive 2004/38 is also relevant.
36      There are a number of references in the request for a preliminary ruling to the fact that the applicant’s former spouse was in receipt of Jobseeker’s Allowance, ‘social welfare’ and child benefit. The exact dates of receipt of such payments and the relevance of such payments other than Jobseeker’s Allowance is somewhat unclear. Moreover, there is some reference in that request to the Union citizen’s periods of employment in Ireland after the initiation of divorce proceedings. Suffice to state that in accordance with Article 13(2)(a), only periods prior to the initiation of divorce proceedings are relevant.
37      See judgment of 11 November 2014, Dano (C‑333/13, EU:C:2014:2358, paragraph 71), which refers to Article 7(1) of Directive 2004/38. In my view, it follows from the judgment in Tarola, paragraphs 51 and 52, that the concerns expressed in recital 10 of that directive refer to Article 7 thereof in its entirety.
38      It must be emphasised that Article 45(2) TFEU provides that freedom of movement for workers entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. In the field of social advantages, that provision is given concrete form in Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1). The Court has stated that the objective of avoiding an unreasonable financial burden on the host Member State cannot justify the unequal treatment of migrant workers and their family members – as defined by Article 2 of Directive 2004/38 – as compared with national workers in the field of access to social assistance (judgment of 21 December 2023, Chief Appeals Officer and Others, C‑488/21, EU:C:2023:1013, paragraphs 49 and 71). By contrast, the Court has stated that a Member State may refuse to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement and who do not have sufficient resources to claim a right of residence under that directive (judgment of 15 July 2021, The Department for Communities in Northern Ireland,  C‑709/20, EU:C:2021:602, paragraph 78 and the case-law cited). The Court has thus drawn a clear distinction in the context, inter alia, of Article 7 of Directive 2004/38 between workers and economically inactive Union citizens.
39      I shall examine both parts together.
40      While the question referred merely refers to the expression ‘one year’, I consider that in the context of the present proceedings and in the light of the text itself of Article 7(3)(b) of Directive 2004/38 it is opportune to interpret the expression ‘for more than one year’.
41      The terms ‘less than a year’ and ‘during the first twelve months’ in Article 7(3)(c) of Directive 2004/38 – which are also not defined – do not, in themselves, shed any light on whether the period in Article 7(3)(b) of that directive should be continuous or not.
42      In addition, I am not aware that this matter has been addressed by the Court in its case-law. In the judgment of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 59), the Court answered the question of whether the cumulative effect of various short periods of residence in the host Member State may create a derived right of residence for a family member of a Union citizen who is a third‑country national on the citizen’s return to the Member State of which he or she is a national by stating that only a period of residence satisfying the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38 will give rise to such a right of residence. In that regard, short periods of residence such as weekends or holidays spent in a Member State other than that of which the citizen in question is a national, even when considered together, fall within the scope of Article 6 of Directive 2004/38 and do not satisfy those conditions. In the light of the extended periods of residence of the Union citizen in Ireland in the main proceedings, Article 6 of Directive 2004/38 is not relevant.
43      It must be observed that the equivalent terms used in different language versions of the provision at issue have the same meaning as those used in the English-language version (‘for more than one year’). Those different language versions thus do not refer to a single continuous or uninterrupted period. In addition, the different language versions do not provide that the period of one year can be achieved by aggregating two or more shorter periods. Thus, for example, the French-language version uses ‘pendant plus d’un an’, the Spanish-language version ‘durante más de un año’, the Portuguese-language version ‘durante mais de um ano’, the Italian-language version ‘per oltre un anno’, the Greek-language version ‘άνω του ενός έτους’, the German-language version ‘nach mehr als einjähriger’, the Bulgarian-language version ‘повече от една година’, the Lithuanian-language version ‘daugiau kaip vienerius metus’, the Latvian-language version ‘ilgāk nekā vienu gadu’, the Estonian-language version ‘üle ühe aasta’, the Czech-language version ‘více než jeden rok’and the Romanian-language version ‘perioadă de peste un an’.
44      See, for example, paragraph 2 of Chapter 2 of Annex XII to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 876), which set out transitional provisions relating to the free movement of persons and specifically refers to the admission of Polish nationals to the labour market of ‘a present Member State’ for ‘an uninterrupted period of 12 months or longer’. Emphasis added. In judgment of 13 September 2018, Prefeta (C‑618/16, EU:C:2018:719, paragraph 55), the Court held that the provision in question permitted, during a transitional period, the United Kingdom to exclude a Polish national from the benefits of Article 7(3) of Directive 2004/38 when that person does not satisfy the requirement imposed by national law of having completed an uninterrupted 12‑month period of registered work in the United Kingdom. The Court however did not interpret the term ‘for more than one year’ in Article 7(3) of Directive 2004/38 or consider that it was equivalent to the term ‘an uninterrupted period of 12 months or longer’. See also Article 4(1) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), which provides that ‘Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application.’ Emphasis added.
45      Emphasis added.
46      That provision permits longer absences in certain instances. See, by analogy, Article 4(3) of Directive 2003/109, which provides that ‘periods of absence from the territory of the Member State concerned shall not interrupt the period referred to in paragraph 1 and shall be taken into account for its calculation where they are shorter than six consecutive months and do not exceed in total 10 months within the period referred to in paragraph 1.’
47      The German Government also considers that in everyday language, the expression one year refers to ‘a period made up of one continuous year’.
48      See the judgment in Tarola, paragraph 37. See, by analogy, judgment of 30 January 2020, Tim (C‑395/18, EU:C:2020:58, paragraph 36 and the case-law cited).
49      Article 16(1) of Directive 2004/38 expressly provides that the right of permanent residence, which Union citizens acquire after residing legally for a continuous period of five years in the host Member State, ‘shall not be subject to the conditions provided for in Chapter III’. That right is therefore not subject, in particular, to the conditions, laid down in Article 7(1)(b) of that directive, that they have sufficient resources and comprehensive sickness insurance cover for themselves and their family members (judgment of 10 March 2022, Commissioners for Her Majesty’s Revenue and Customs (Comprehensive sickness insurance cover), C‑247/20, EU:C:2022:177, paragraph 54).
50      And, as a consequence, equal access to social assistance in the host Member State as nationals subject, however, to Article 7(3)(c) and Article 24(2) of Directive 2004/38.
51      Judgment of 13 September 2018, Prefeta (C‑618/16, EU:C:2018:719, paragraphs 37 and 39 and the case-law cited).
52      While Directive 2004/38 regulates the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, the central and privileged position of workers – or persons who are economically active – within the framework of that directive and in particular Article 7 thereof cannot be underestimated (see judgment of 11 November 2014, Dano, C‑333/13, EU:C:2014:2358, paragraphs 73 to 78).
53      See the judgment in Tarola, paragraph 50. See also recital 10 of Directive 2004/38.
54      That principle, which governs the content and form of Union action, seeks to ensure that such action is appropriate for ensuring the attainment of the objectives pursued and does not exceed what is necessary to achieve those objectives (judgment of 24 February 2022, Viva Telecom Bulgaria,  C‑257/20, EU:C:2022:125, paragraph 112).
55      This balancing exercise is sometimes referred to as proportionality stricto sensu. ‘In order to comply with the principle of proportionality, the measures adopted should be appropriate to attain the legitimate objectives pursued; they shall not exceed what is necessary to attain them (where there are several regulatory alternatives, recourse must be had to the least onerous); and the disadvantages caused must not be disproportionate to the aims pursued (internal balancing, or proportionality stricto sensu).’ (Opinion of Advocate General Bobek in Pöpperl, C‑187/15, EU:C:2016:194, point 45).
56      See point 30 of the present Opinion and the judgment in Tarola, paragraph 43.
57      See the judgment in Tarola, paragraph 43. A Union citizen who has pursued an activity in an employed or self-employed capacity in the host Member State retains his or her status of worker indefinitely if he or she worked in an employed or self-employed capacity in the host Member State ‘for more than one year’ before becoming involuntarily unemployed, in accordance with Article 7(3)(b) of that directive. By contrast, a Union citizen who has pursued an activity in an employed or self-employed capacity in the host Member State for a period of less than one year retains his or her status of worker only for a period of time which that Member State may determine, provided it is no less than six months in accordance with Article 7(3)(c) of Directive 2004/38.
58      And thus for reasons beyond the Union citizen’s control (judgment of 20 December 2017, Gusa,  C‑442/16, EU:C:2017:1004, paragraphs 31 and 45, and the judgment in Tarola, paragraphs 46, 48 and 49).
59      The German Government considers that such an interpretation would mean that periods of employment completed in the host Member State decades ago, as a seasonal worker, for example, could be taken into account for granting an unrestricted right of residence pursuant to Article 7(3)(b) of Directive 2004/38, even if the person concerned worked there for only one month in the recent past.
60      Ireland considers that there is no basis for the suggestion that, pursuant to Article 7(3)(b) of Directive 2004/38, various short periods of work should be aggregated over a period of four or five years given that between those short periods of employment, a person could in fact lose the status of worker once they had been unemployed for at least 6 months in accordance with Article 7(3)(c) of that directive; ‘To suggest that after a few years involving periods of short-term work (for a month or two at a time) and lengthy periods of unemployment one could somehow look back and retrospectively be regarded as having in law retained the fundamental status of a worker with all the attendant rights and benefits is without foundation.’ In addition, Ireland asserts that ‘it is entirely unclear as to over what period one could assert an accumulation of short working periods to make up the one year period mandated by the EU legislature. Would it be four or five years as is advanced in the present case or could it be ten or fifteen years?’
61      According to the Commission, the right to retain ‘worker’ status on an indefinite basis pursuant to Article 7(3)(b) of Directive 2004/38 is premised on the assumption that a mobile Union citizen who has been economically active for a period exceeding one year has contributed as a stable member of the workforce and is sufficiently acquainted with the labour market as to resume working and contributing economically to the host State, including to its social security system, within a reasonable period.
62      Totalling more than one year.
63      Particularly if any period of interruption exceeds the minimum period of protection of six months provided by Article 7(3)(c) of Directive 2004/38.
64      In particular Article 7(3)(b) and Article 7(3)(c) of Directive 2004/38.
65      In paragraph 48 of the judgment in Tarola, the Court indicated that Article 7(1)(c) of Directive 2004/38 applies ‘in all situations in which a worker has been obliged, for reasons beyond his control, to stop working in the host Member State before one year has elapsed …’. In my view, this implies that Article 7(1)(b) of Directive 2004/38 refers to a single continuous period of more than one year. The element of continuity is more evident from the French-language version of the judgment, which uses the phrase ‘avant l’échéance d’une année’.
66      Provided that the other conditions in that provision are complied with.
67      By means of the payment of taxes and social contributions (see, by analogy, judgment of 21 December 2023, Chief Appeals Officer and Others, C‑488/21, EU:C:2023:1013, paragraph 71).
68      The use of the term ‘less than a year’ or ‘during the first twelve months’ in Article 7(3)(c) of Directive 2004/38 lends weight to the interpretation that the period of one year under that provision and, by implication, under Article 7(3)(b) thereof is a single, critical ‘block’ or continuous period of time.
69      See the judgment in Tarola, paragraph 54. See, by analogy, judgment of 4 June 2009, Vatsouras and Koupatantze (C‑22/08 and C‑23/08, EU:C:2009:344, paragraph 30), in which the Court considered that despite the short duration of a professional activity, it could not be ruled out that the person is a worker pursuant to Article 45 TFEU.
70      In that case, two weeks.
71      Judgment of 15 September 2015, Alimanovic (C67/14, EU:C:2015:597, paragraph 60).
72      See, by analogy, Article 16(3) of Directive 2004/38.
73      See, by analogy, Opinion of Advocate General Szpunar in Tarola (C‑483/17, EU:C:2018:919, points 45 to 49).
74      Indeed, such matters may primarily arise during the first year of the exercise by the Union citizen of his or her freedom of movement.
75      Particularly as the right to take annual leave in the first year of activity may be extremely limited in certain Member States due to the requirement of a minimum period of service.
76      Notwithstanding improvements in modern communications and transport. In that regard, certain bureaucratic matters may only be resolved with the worker being in situ.
77      Judgment of 21 June 1988, Lair (39/86, EU:C:1988:322, paragraph 38).
78      See, for example, Eurostat news article of 16 February 2023, entitled ‘3.5 million job leavers in Q3 2022 in EU’; available at: https://ec.europa.eu/eurostat/web/products-eurostat-news/w/ddn-20230216-2. The article refers to the increase in those aged 25 to 54 years old leaving their jobs in the third quarter of 2022 as compared to that of 2021 for, inter alia, personal reasons including wanting more leisure time, travelling and changing place of residence.
79      This phenomenon is sometimes referred to as a ‘jobbymoon’. For an insight into changing career paths and the phenomenon of ‘jobcrafting’ and ‘pixelated market’, see Bersin, J., ‘The labor market has totally changed: Are you really ready?’, 31 March 2024, updated on 6 April 2024; available at: https://joshbersin.com/2024/03/the-needs-of-employees-have-totally changed-are-you-really ready/. See also https://www.shrm.org/mena/executive-network/insights/people-strategy/pixelated-workforce-arrived-ready.
80      Judgment of 21 February 2013, N. (C‑46/12, EU:C:2013:97, paragraph 39). ‘Indeed, in so far as that concept defines the scope of a fundamental freedom provided for by the FEU Treaty, it must be interpreted broadly.’ (Opinion of Advocate General Szpunar in G. M. A. (Jobseeker), C‑710/19, EU:C:2020:739, point 37).
81      Relative to the period of one year in Article 7(3)(b) of Directive 2004/38.
82      In such instances, where the period of employment or self-employment in the host Member State is ‘less than one year’ or ‘twelve months’, the Union citizen benefits from the protection granted under Article 7(3)(c) of Directive 2004/38 pursuant to the conditions laid down thereunder. It must be emphasised that although a Union citizen maintains the status of worker for a period of not less than six months and benefits from a right of residence and equal treatment, that status is not equivalent to employment for the purposes of Article 7(3)(b) of Directive 2004/38 and the period of involuntary unemployment cannot be taken into account in calculating the required period of employment or self-employment of more than one year.
83      Which is six months.
84      Such an interpretation is also consistent with the principal objective pursued by Directive 2004/38, which is, as has been recalled in point 16 of the present Opinion, to strengthen the right of free movement and residence of all Union citizens, and with the objective specifically pursued by Article 7(3) thereof, which is to safeguard, by the retention of the status of worker, the right of residence of persons who have ceased their occupational activity because of an absence from work due to circumstances beyond their control (see the judgment in Tarola, paragraph 49 and the case-law cited).
85      I have placed emphasis on this term in order to highlight the fact that Article 7(3)(b) of Directive 2004/38 uses the expression ‘after having being employed’. I consider therefore that it requires that the person actually be employed rather than that he or she merely enjoy the status of worker.
86      In that regard, and as previously indicated, the latter terms have been interpreted by the Court (see judgment of 20 December 2017, Gusa, C‑442/16, EU:C:2017:1004, paragraphs 31 and 45). See, by analogy, the judgment in Tarola, paragraphs 46, 48 and 49.
87      Which is the entity competent under Irish law for the payment of Jobseeker’s Allowance.
88      Which is the entity competent under Irish law for granting residence permits.
89      Judgment of 27 June 2018, Diallo (C‑246/17, EU:C:2018:499, paragraphs 45 and 59 and the case-law cited).
90      The Commission referred to the judgment of Phelan J in I.T. v Minister for Justice ([2023] IEHC 40, paragraph 72).
91      See, to that effect, https://www.citizensinformation.ie/en/social-welfare/unemployed-people/jobseekers-allowance/. The Citizens Information Board is the statutory body which supports the provision of information, advice and advocacy on a broad range of public and social services. It provides the Citizens Information website, citizensinformation.ie. The Board comes under the remit of the Department of Social Protection (formerly the DEASP).
92      Subject to verification by the referring court.
93      The referring court must assess whether those rules and conditions also existed at the relevant time for the purposes of the action in the main proceedings.
94      The extent of that overlap depends on the rules and conditions for awarding Jobseeker’s Allowance and thus perhaps on the meaning of the terms ‘leaving work voluntarily and without just cause’.
95      In accordance with Article 7(3)(b) of Directive 2004/38.
96      In that regard and as previously indicated, Directive 2004/38 seeks to facilitate and strengthen the exercise of the right to move and reside freely within the territory of the Member States, which is conferred directly on citizens of the Union by Article 21(1) TFEU.