Case C‑618/16

Rafal Prefeta

v

The Secretary of State for Work and Pensions

(Request for a preliminary ruling from the Upper Tribunal (Administrative Appeals Chamber))

(Reference for a preliminary ruling — Freedom of movement for persons — Article 45 TFEU — 2003 Act of Accession — Chapter 2 of Annex XII — Whether a Member State may derogate from Article 7(2) of Regulation (EU) No 492/2011 and Article 7(3) of Directive 2004/38/EC — Polish national who has not completed a period of 12 months’ registered work in the host Member State)

Summary — Judgment of the Court (Fifth Chamber), 13 September 2018

Accession of new Member States to the European Union — 2003 Act of Accession — Transitional measures — Freedom of movement for persons — Directive 2004/38 — National legislation that introduced the status of ‘accession State worker requiring registration’ covering accession State nationals — Cessation of that status in the event of an uninterrupted 12-month period of registered work in the territory of the Member State — Lawfulness

(Art. 45 TFEU; Chapter 2 of Annex XII to the 2003 Act of Accession; European Parliament and Council Directive 2004/38, Art. 7(3); European Parliament and Council Regulation No 492/2011, Arts 1 to 6)

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, must be interpreted as permitting, during the transitional period provided for by that act, the United Kingdom of Great Britain and Northern Ireland to exclude a Polish national, such as Mr Rafal Prefeta, from the benefits of Article 7(3) 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, when that person has not satisfied the requirement imposed by national law of having completed an uninterrupted 12-month period of registered work in the United Kingdom.

In that regard, it should be noted that the Court has previously held that the transitional provisions in Chapter 2 of Annex XII to that act of accession are intended to prevent, following the accession to the European Union of new Member States, disturbances on the labour market of the existing Member States due to the immediate arrival of a large number of workers who are nationals of those new States (see, to that effect, judgment of 10 February 2011, Vicoplus and Others, C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 34 and the case-law cited).

The first sentence of paragraph 2 of Chapter 2 of Annex XII to that act of accession provides, in essence, that, by way of derogation from Articles 1 to 6 of Regulation No 492/2011 and during the transitional period following the date of accession, the ‘present’ Member States are to apply measures regulating access to their labour markets by Polish nationals.

It is therefore on that basis that regulation 2 of the 2004 Regulations introduced into UK law the status of ‘accession State worker requiring registration’ covering accession State nationals working in the United Kingdom during the period of application of those regulations. Those regulations provided that the workers in question would no longer have that status once they had worked without interruption for a period of 12 months falling partly or wholly after 30 April 2004 as a registered worker in the territory of that Member State.

For the duration of the period in which a national of a relevant accession State had that status, that national was required to obtain a work registration certificate from the competent national authorities and did not enjoy all the rights granted by EU law to nationals of one Member State moving to another Member State for work purposes. More specifically, regulations 4 and 5 of the 2004 Regulations restricted the right of an accession State national to reside in the United Kingdom as a jobseeker for the purpose of seeking work, as well as the ability of that national to retain his status as a worker and the corresponding right of residence when he ceased to pursue an activity as an employed or self-employed person.

As the Commission pointed out, in essence, in its written observations, the derogation from Article 7(3) of Directive 2004/38 introduced by the United Kingdom was accordingly necessary in order to give full effect to the measures adopted by that Member State pursuant to the derogations laid down in the transitional provisions in paragraphs 2 and 9 of Chapter 2 of Annex XII to the 2003 Act of Accession.

(see paras 41, 43-46, 55, operative part)