EN Official Journal of the European Union C 49/9

Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Tomasz Ziolkowski (C-424/10), Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja (C-425/10) v Land Berlin

(Joined Cases C-424/10 and C-425/10) (1)

(Freedom of movement for persons - Directive 2004/38/EC - Right of permanent residence - Article 16 - Legal residence - Residence based on national law - Period of residence completed before the accession to the European Union of the State of origin of the citizen concerned)

2012/C 49/14

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicants: Tomasz Ziolkowski (C-424/10), Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja (C-425/10)

Defendant: Land Berlin

Intervener: Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 16(1), first sentence, 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 (OJ 2004 L 158, p. 77) — Union citizen having resided lawfully, in compliance with the law of the host Member State, for more than five years in that State, but never having satisfied, during his period of residence, the conditions laid down in Article 7 of Directive 2004/38/EC — Concept of ‘lawful residence’ — Period of residence which amounts to five years only if periods completed before the date of accession of the Member State of origin of the person concerned to the European Union are taken into account — Determination of the period of residence necessary in order to acquire a right of permanent residence

Operative part of the judgment

1. Article 16(1) 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 a Union citizen who has been resident for more than five years in the territory of the host Member State on the sole basis of the national law of that Member State cannot be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not satisfy the conditions laid down in Article 7(1) of the directive.

2. Periods of residence completed by a national of a non-Member State in the territory of a Member State before the accession of the non-Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.

(1) OJ C 301, 6.11.2010.