Opinion of the Advocate-General



Opinion of the Advocate-General

1. This request for a preliminary ruling requires the Court, first of all, to explain the notion of ‘continuous legal residence with the Union citizen’ for the purposes of Article 16(2) of Directive 2004/38/EC (2) and, more specifically, to clarify the words ‘with the Union citizen’.

2. Under that provision, family members of a Union citizen who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years have the right of permanent residence in that State.

3. In the main proceedings it must be determined whether a third-country national spouse of a Union citizen who has exercised her right of free movement may claim such a right of residence where, for the necessary period of five years, the couple lived under the same roof for only two years and for the remaining three years they agreed to live apart with different partners.

4. The High Court (Ireland) is also seeking to ascertain whether, in an action for compensation for breach of EU law, the national court is required to have regard to the fact that it has been necessary to make a reference for a preliminary ruling on a question concerning the EU law at issue in the dispute in order to determine whether the breach of EU law by the Member State was sufficiently serious.

5. In this Opinion, I will explain why I think that Article 16(2) of Directive 2004/38 must be interpreted to the effect that a third-country national spouse of a Union citizen may, for the purposes of the acquisition of a right of permanent residence, rely on a period of residence completed in the host Member State before that directive was transposed into the legal order of the Member States even where it is established that, during that period, the couple agreed to live apart with other partners.

6. I will then show why, in my view, in an action for compensation for breach of EU law, the national court is not required to have regard to the fact that it has been necessary make a reference for a preliminary ruling on a question concerning the EU law at issue in the dispute in order to determine whether the breach of EU law by the Member State was sufficiently serious.

I – Legislative framework

A – Regulation (EEC) No 1612/68

7. Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, (3) which was in force at the material time in the main proceedings, provides as follows:

‘1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a) his spouse and their descendants who are under the age of 21 years or are dependants;

(b) dependent relatives in the ascending line of the worker and his spouse.

2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.

3. For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however, must not give rise to discrimination between national workers and workers from the other Member States.’

B – Directive 2004/38

8. Directive 2004/38 consolidates and simplifies EU legislation concerning the free movement of persons and the right of residence of nationals of EU Member States and of their family members. It also amends Regulation No 1612/68 by repealing, inter alia, Article 10 of that directive.

9. The directive removes the obligation of Union citizens to obtain a residence card, introduces a right of permanent residence for those citizens and their family members and limits the possibility for Member States to restrict residence within their territory of nationals of other Member States.

10. Article 7(1) and (2) of Directive 2004/38, under the heading ‘Right of residence for more than three months’, provides:

‘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

(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, 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; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

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 1(a), (b) or (c).’

11. Article 16 of Directive 2004/38, which is headed ‘General rule for Union citizens and their family members’, states as follows:

‘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.

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

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.’

12. Article 35 of Directive 2004/38 provides that Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by the directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure must be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31 of that directive.

13. Lastly, under Article 38 of Directive 2004/38, Articles 10 and 11 of Regulation No 1612/68 are repealed with effect from 30 April 2006.

C – Irish law

14. The European Communities (Free Movement of Persons) Regulations 2006 (‘the 2006 Regulations’) implement the provisions of Directive 2004/38 in Irish law.

15. Article 12 of the 2006 Regulations transposes Article 16 of that directive.

II – Facts of the main proceedings

16. Mr Ogieriakhi, a Nigerian national, arrived in Ireland in May 1998, whereupon he sought political asylum. In May 1999, he married a French national, Ms Georges, and then withdrew his asylum application. On 11 October 1999, the Minister for Justice and Equality issued him a residence permit.

17. During the period from October 1999 to October 2004, Ms Georges was either working or claiming social security payments.

18. It is common ground that between 1999 and 2001 Mr Ogieriakhi and Ms Georges lived together at various addresses in Dublin (Ireland). However, shortly after August 2001, their marriage having broken up in the course of the year, Ms Georges moved out of the family home to take up residence with another man. At some point thereafter, Mr Ogieriakhi also moved out of that home to take up residence with an Irish citizen, Ms Madden. The referring court states in this regard that the dates on which these events occurred cannot be precisely ascertained, the only certainty being that they took place after August 2001 and during the calendar year 2002.

19. Ms Georges and Mr Ogieriakhi divorced in January 2009. Mr Ogieriakhi married Ms Madden in July 2009 and in 2012 was granted Irish citizenship by naturalisation. In December 2004, Ms Georges left Ireland definitively.

20. In September 2007, the Minister for Justice and Equality refused Mr Ogieriakhi a right of permanent residence on the basis of the 2006 Regulations on the ground that there was no evidence that Ms Georges, who was then his spouse, was still exercising her rights under EU law at that time. Mr Ogieriakhi lodged an appeal against that decision, which was dismissed by the High Court in January 2008 on the ground that the 2006 Regulations did not apply to residency which pre-dated their coming into force. Consequently, on 24 October 2007 Mr Ogieriakhi was dismissed by An Post, the State-owned postal company, for which he had started to work on 11 November 2001, on the ground that he did not hold a valid work permit as the Irish authorities had refused him a right of permanent residence.

21. Mr Ogieriakhi did not immediately appeal against that judgment, but only did so after Lassal . (4) While the Supreme Court refused to extend time for bringing an appeal, it did note that the Minister for Justice and Equality had agreed to review the September 2007 decision by which he refused Mr Ogieriakhi a right of permanent residence, and stated that he could bring proceedings in respect of State liability for breach of EU law.

22. In November 2011, Mr Ogieriakhi was granted a right of residence by the Minister for Justice and Equality on the basis that he satisfied all the relevant conditions specified by the 2006 Regulations. He thereupon commenced the main proceedings before the referring court in which he is seeking damages against Ireland for breach of EU law on the basis of the principle in Francovich and Others . (5) He considers that the provisions of Directive 2004/38 were not correctly transposed into Irish law. Because of that incorrect transposition, he claims that he suffered loss by virtue of the termination of his employment contract by An Post, which was based on the absence of a right of permanent residence in Ireland.

23. The referring court takes the view that the success of the action brought by Mr Ogieriakhi in respect of the wrongful transposition of EU law is contingent, inter alia, on whether, at the time of his dismissal, he enjoyed a right of permanent residence on the basis of Directive 2004/38.

III – The questions referred for a preliminary ruling

24. In these circumstances, the High Court decided to stay the proceedings and to refer the following questions to the Court:

‘(1) Can it be said that the spouse of an EU national who was not at the time himself a national of a Member State has “legally resided with the Union citizen in the host Member State for a continuous period of five years” for the purposes of Article 16(2) of Directive 2004/38 …, in circumstances where the couple had married in May 1999, where a right of residency was granted in October 1999 and where by early 2002 at the absolute latest the parties had agreed to live apart and where both spouses had commenced residing with entirely different partners by late 2002?

(2) If the answer to Question 1 is in the affirmative and bearing in mind that the third-country national claiming a right to permanent residence pursuant to Article 16(2) [of Directive 2004/38] based on five years continuous residence prior to April 2006 must also show that his or her residency was in compliance with, inter alia, the requirements of Article 10(3) of Regulation … No 1612/68, does the fact that during the currency of that putative five-year period the EU national left the family home and the third-country national then commenced to reside with another individual in a new family home which was not supplied or provided for by the (erstwhile) EU national spouse mean that the requirements … are not thereby satisfied?

(3) If the answer to Question 1 is in the affirmative and the answer to Question 2 is in the negative, then for the purposes of assessing whether a Member State has wrongfully transposed or otherwise failed properly to ap ply the requirements of Article 16(2) of the 2004 Directive, is the fact that the national court hearing an action for damages for breach of EU law has found it necessary to make a reference on the substantive question of the plaintiff’s entitlement to permanent residence itself a factor to which that court can have regard in determining whether the breach of EU law was an obvious one?’

IV – My analysis

A – Preliminary remarks

25. In my view, the first and second questions should be dealt with together. The plaintiff in the main proceedings relies on a right of permanent residence on the basis of Article 16(2) of Directive 2004/38 which he claims to have acquired in the period between 1999 and 2004. That period predates the deadline for the transposition of that directive in the legal order of the Member States, namely 30 April 2006.

26. The main question arising is therefore whether it is possible to take into account, for the purpose of calculating the necessary period of five years for the acquisition of a right of permanent residence under Article 16(2) of that directive, periods of residence completed in the host Member State in accordance with the EU law applicable at the time, namely Regulation No 1612/68, and more specifically Article 10 of that regulation. That provision granted the spouse of a worker who was a national of a Member State the right to install themselves with the worker in the host Member State, provided that that worker had available for his family housing considered as normal for national workers in the region where he was employed.

27. The Court has already addressed this question in Lassal . (6) It ruled that ‘for the purposes of the acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38, continuous periods of five years’ residence completed before the date of transposition of that directive, namely 30 April 2006, in accordance with the earlier EU law instruments , must be taken into account’. (7)

28. The full significance of that judgment was recently clarified in Alarape and Tijani . (8) In that judgment, the Court held that only periods of residence which satisfy the conditions laid down by Directive 2004/38 may be taken into consideration for the purposes of the acquisition by the family members of a Union citizen who are not nationals of a Member State of a right of permanent residence under that directive. (9) It also recalled that (i) the aim of Directive 2004/38 is to go beyond a sector-by-sector piecemeal approach to the right of freedom of movement and residence in order to facilitate the exercise of that right by providing a single legislative act which codifies and revises the instruments of EU law which preceded that directive and that (ii) that directive introduced a gradual system as regards the right of residence in the host Member State which, while reproducing, in essence, the stages and conditions set out in the various instruments of EU law and case-law preceding that directive, culminates in the right of permanent residence. (10) The Court thus stated that the phrase ‘earlier EU law instruments’ than Directive 2004/38, used in paragraph 40 of Lassal (EU:C:2010:592), must be understood as referring to the instruments which that directive codified, revised and repealed and not those which, like Article 12 of Regulation No 1612/68, were unaffected by that directive. (11)

29. The following points can be inferred from this case-law. Where reference is made to earlier instruments which must be taken into account in calculating residence, they can only be instruments codified, revised and/or repealed by Directive 2004/38 and not those which were unaffected by it. In so far as Article 10 of Regulation No 1612/68 is among the provisions that were repealed following the entry into force of that directive, only periods of residence completed before the deadline for transposition of the directive on the basis of Article 10 of Regulation No 1612/68, in conditions consistent with those laid down by Directive 2004/38, may be taken into account in calculating the period of five years required by Article 16(2) of the directive.

30. Consequently, the first and second questions asked by the referring court should be understood as follows. Must Article 16(2) of Directive 2004/38 be interpreted to the effect that a third-country national spouse of a Union citizen may, for the purposes of the acquisition of a right of permanent residence, rely on a period of residence completed in the host Member State before that directive was transposed into the legal order of the Member States, where it is established that, during that period, the couple agreed to live apart with other partners?

B – The first and second questions

31. The question which arises, first of all, is whether, during the period in question, Mr Ogieriakhi retained his status as a ‘family member’ within the meaning of Article 2(2)(a) of Directive 2004/38. It should be borne in mind that Article 3 of that directive, entitled ‘Beneficiaries’, provides, in paragraph 1, that it applies to 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.

32. Although Ms Georges and Mr Ogieriakhi were married until 2009, they stopped living together after two years of marriage and agreed to move in with other partners. It should be stated in this regard, for the avoidance of any doubt, that at no time, whether in the request for a preliminary ruling or in the other procedural documents, has it been suggested that the marriage between Ms Georges and Mr Ogieriakhi was a marriage of convenience.

33. Consequently, the question is whether Mr Ogieriakhi, who relies on rights under Directive 2004/38, was still a family member of Ms Georges during the period in question.

34. In the light of the case-law, there is no doubt, in my view, that Mr Ogieriakhi may be regarded as a family member of Ms Georges during that period. It was held in Iida (12) that, so long as the couple’s marriage has not been dissolved by the competent authority, the third-country national spouse of the Union citizen may be regarded as a family member of his spouse within the meaning of Article 2(2)(a) of Directive 2004/38. (13)

35. I would also point out that the Court ruled, in paragraph 34 of the judgment in Alarape and Tijani (EU:C:2013:290), that, if Article 16(2) of Directive 2004/38 is to apply, it is clear that the acquisition of a right of permanent residence by family members of a Union citizen who are not nationals of a Member State is dependent, in any event, on the fact that, first, the Union citizen himself satisfies the conditions laid down in Article 16(1) of that directive and, secondly, those family members have resided with him for the period in question. In addition, according to case-law, the concept of legal residence implied by the words ‘have resided legally’ in Article 16(1) of Directive 2004/38 should be construed as meaning a period of residence which complies with the conditions laid down in that directive, in particular those set out in Article 7(1) thereof. (14)

36. Consequently, it must be determined whether Ms Georges, a national of an EU Member State and the spouse of Mr Ogieriakhi, actually satisfied those conditions during the period in question. It is clear from the request for a preliminary ruling that this is indeed the case. It is common ground that during that period Ms Georges had the status of ‘worker’ within the meaning of the EU law in force at the material time. Consequently, she satisfied the condition laid down in Article 7(1)(a) of Directive 2004/38. In addition, since the referring court states that Ms Georges legally resided in the host Member State for a continuous period of five years, she acquired a right of permanent residence under Article 16(1) of that directive.

37. In so far as Ms Georges enjoyed a right of permanent residence, Mr Ogieriakhi submits that as a family member of Ms Georges who resided legally with her during the period in question, he must also benefit from a right of permanent residence on the basis of Article 16(2) of that directive. However, the competent authorities take the view that the requirements under Article 10(3) of Regulation No 1612/68 were not satisfied at the material time since Ms Georges had not provided or made available to Mr Ogieriakhi housing considered as ‘normal’ within the meaning of that provision. In the view of the authorities, if Mr Ogieriakhi’s right of residence during the period in question was not established, in the absence of the making available of housing considered as normal, he cannot be considered as having legally resided in the host Member State within the meaning of Article 16(2) of Directive 2004/38 and he cannot therefore enjoy a right of permanent residence.

38. I do not concur with that view.

39. It should be borne in mind that in Diatta (15) the Court ruled that, in providing that a member of a migrant worker’s family has the right to install himself with the worker, Article 10 of Regulation No 1612/68 does not require that the member of the family in question must live permanently with the worker, but, as is clear from Article 10(3), only that the accommodation which the worker has available must be such as may be considered normal for the purpose of accommodating his family. A requirement that the family must live permanently under the same roof cannot be implied. (16) In addition, the Court added that the marital relationship cannot be regarded as dissolved so long as it has not been terminated by the competent authority. It is not dissolved merely because the spouses live separately, even where they intend to divorce at a later date. (17)

40. Furthermore, in Commission v Germany , (18) the Court stated that the requirement to have available housing considered as normal applies solely as a condition under which each member of the worker’s family is permitted to come to live with him and that once the family has been brought together, the position of the migrant worker cannot be different in regard to housing requirements from that of a worker who is a national of the Member State concerned. (19) Consequently, the Court continued, if the housing regarded as normal at the time of the arrival of members of the migrant worker’s family no longer fulfils that requirement as a result of a new event, such as the birth or arrival at the age of majority of a child, the measures which may be adopted in regard to members of the worker’s family cannot be different from those required in regard to nationals of that Member State and cannot lead to discrimination between nationals and nationals of other Member States. (20)

41. In my view, those two judgments highlight the following points. The condition under Article 10(3) of Regulation No 1612/68 that the worker must make available normal housing for family members is a prerequisite for the admission of his family. That prerequisite seeks to ensure that the worker concerned wishes, first and foremost, to restore the family unit so as not to be dissuaded from exercising his right to free movement. Nevertheless, once that family unit has been restored, permanent cohabitation between those members of the same family cannot be required for the entire duration of the legal residence in the host Member State. The vicissitudes that can occur in anyone’s life, which may lead couples to live apart, must not deprive those persons of the rights to which they are entitled under EU legislation.

42. To require the persons concerned to live permanently under the same roof would, in my view, constitute interference in private and family life which is contrary to Article 7 of the Charter of Fundamental Rights of the European Union. It is not the role of public authorities to impose a concept of life together as a couple or a certain way of life on nationals of other Member States and members of their family, especially as no such requirement exists for their own nationals.

43. I therefore take the view that the personal relations between the couple and the housing conditions following the admission of the third-country national spouse to the host Member State are irrelevant for the purposes of the grant of a right of residence to that national spouse.

44. Consequently, the requirements laid down by Article 10 of Regulation No 1612/68 are still complied with where a worker, who is a national of a Member State, and her spouse, who is a third-country national, have agreed to live apart, as in the main proceedings. In my view, it follows that Mr Ogieriakhi’s residence complied with the EU law in force at the material time.

45. Nevertheless, the question remains whether those periods of residence completed in accordance with Article 10(3) of Regulation No 1612/68 satisfy the requirements under Article 16(2) of Directive 2004/38 in so far as that provision requires a family member of a Union citizen to have legally resided ‘with’ the Union citizen for a continuous period of five years.

46. In my view, that is indeed the case. In Onuekwere , (21) the Court stated that the word ‘with’ contained in Article 16(2) of that directive reinforces the condition that family members of a Union citizen who are not nationals of a Member State must accompany or join that same citizen. (22) As I stated in points 38 to 41 of my Opinion in Onuekwere , (23) that word must not be interpreted literally and does not require the couple to live together under the same roof. It simply reinforces the fact that, in order to be considered a ‘beneficiary’ of that directive within the meaning of Article 3(1) thereof, the family member should accompany or join the Union citizen in the host Member State. (24) Thus, a third-country national family member of a Union citizen, who, whilst being married to that citizen, resides in a Member State other than the host Member State in which that citizen resides, would not satisfy the requirement laid down in Article 16(2) of Directive 2004/38 of living ‘with’ a Union citizen in so far as he would not be considered to have accompanied or joined the Union citizen. On the other hand, once the initial condition of accompanying or joining the Union citizen in the host Member State is satisfied, it is immaterial whether or not the couple live together.

47. In my view, such an interpretation is not contrary to the spirit and purpose of Article 16 of that directive. The right of permanent residence seeks to promote social cohesion and to strengthen the feeling of Union citizenship. The key element in the acquisition of that right of residence is therefore the integration of the Union citizen and of their family member in the host Member State, (25) continuity of legal residence satisfying the integration requirement which is a precondition of the acquisition of the right of permanent residence. (26) However, I do not think that the personal relations between a couple and their life choices indicate the degree to which those persons are integrated. Mr Ogieriakhi’s case is, moreover, a perfect illustration of this. His story shows that he was able to integrate into the society of the host Member State as soon as he arrived. Until he was dismissed for failing to have a right of permanent residence, he worked for a publicly-owned company from November 2001 to October 2007 and successfully pursued law studies.

48. Accordingly, it follows from all these considerations that, so long as the marital relationship has not been dissolved by a competent authority, the third-country national spouse of a Union citizen who has accompanied or joined that citizen in the host Member State and who has legally resided with him or her for a continuous period of five years must be able to enjoy a right of permanent residence even where the couple have agreed to live apart.

49. There is, in my view, another argument in favour of such an interpretation. Point (a) of the first subparagraph of Article 13(2) of Directive 2004/38 provides that divorce, annulment of marriage or termination of the registered partnership do not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where, prior to initiation of the divorce or annulment proceedings or termination of the registered partnership, the marriage or registered partnership has lasted at least three years, including one year in the host Member State. In addition, the second subparagraph of Article 13(2) of that directive states that before acquiring the right of permanent residence, the right of residence of the persons concerned remains subject to the requirement that they are able to show, inter alia, that they are workers or self-employed persons or that they have sufficient resources not to become a burden on the social assistance system of the host Member State. Furthermore, Article 18 of that directive provides that the family members of a Union citizen to whom, inter alia, Article 13(2) of Directive 2004/38 applies, who satisfy the conditions laid down therein, acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State.

50. In summary, a third-country national spouse of a Union citizen who has been married to that Union citizen for at least three years, including one year spent in the host Member State, retains his right of residence and may acquire a right of permanent residence if he satisfies the conditions set out above, even if the marital relationship has been dissolved by a competent authority.

51. It must therefore be stated that if it is accepted that a third-country national in Mr Ogieriakhi’s situation cannot enjoy a right of permanent residence, that national, who, as has been established, has retained his status as a family member of a Union citizen since the marital relationship has not been dissolved by a competent authority, would be seriously disadvantaged compared with a third-c ountry national who ceased to be considered as a family member of a Union citizen within the meaning of Article 2(2)(a) of Directive 2004/38, but who satisfied the conditions under Article 13(2) of that directive.

52. A third-country national who is a family member of a Union citizen would thus enjoy fewer rights and less protection under EU law than a third-country national who no longer has any link with the Union citizen. Such an interpretation would run counter to the spirit and purpose of that directive, which is to grant all Union citizens the right to move and reside freely within the territory of the Member States under objective conditions of freedom and dignity, while granting that same right to their family members, irrespective of nationality. (27)

53. In the light of the foregoing considerations, I take the view that Article 16(2) of Directive 2004/38 must be interpreted to the effect that a third-country national spouse of a Union citizen may, for the purposes of the acquisition of a right of permanent residence, rely on a period of residence completed in the host Member State before that directive was transposed into the legal order of the Member States even where it is established that, during that period, the couple agreed to live apart with other partners.

C – The third question

54. By its third question, the referring court is essentially seeking to ascertain whether, in an action for compensation for breach of EU law, the national court is required to have regard to the fact that it has been necessary to make a reference for a preliminary ruling on a question concerning the EU law at issue in the dispute in order to determine whether the breach of EU law by the Member State was sufficiently serious.

55. It must be pointed out that EU law confers on individuals, under certain conditions, a right to compensation for damage caused by breaches of EU law. According to the Court’s settled case-law, the principle of State liability for loss or damage caused to individuals as a result of breaches of EU law for which the State can be held responsible is inherent in the system of the treaties on which the European Union is based. (28)

56. In that respect, the Court has repeatedly held that individuals who have been harmed have a right to reparation if three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between that breach and the loss or damage sustained by the individuals. (29)

57. As regards the second condition, to which the third question relates, it should be borne in mind that the decisive test for finding that a breach of EU law is sufficiently serious is whether the Member State or the Union institution concerned manifestly and gravely disregarded the limits on its discretion. (30)

58. In order to determine whether that condition is satisfied, the national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it, which include, in particular, the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken, where applicable, by a Union institution and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 267 TFEU. (31)

59. Does the act of referring a question to the Court for a preliminary ruling to obtain an interpretation of a provision of EU law indicate that there is not a sufficiently serious breach of EU law? The view could be taken that once such a question is referred, this signifies that the provision in question was imprecise and was open to various interpretations, which would be a key element in the assessment by the national court.

60. However, I do not think that this can be the case, for a reason that would seem to be crucial.

61. The preliminary ruling procedure under Article 267 TFEU establishes a genuine dialogue and real cooperation between national courts and tribunals and the Court. That cooperation is essential in order to ensure the uniform application of EU law in the national legal orders. As Advocate General Léger wrote, ‘the Court confers on the national courts an essential role in the implementation of Community law and in the protection of the rights derived from it for individuals. Indeed people like to call the national courts, according to an expression commonly employed, “Community courts of ordinary jurisdiction”’. (32)

62. In my view, that crucial role of ‘Community courts of ordinary jurisdiction’ could be undermined if it were accepted that the simple act of the national court referring a question for a preliminary ruling in order to obtain an interpretation of a provision of EU law is sufficient to conclude that there is not a sufficiently serious breach of EU law rendering the Member State liable. Such a consequence, which would ultimately be binding on the national court, could result in the dialogue between that court and the European Union judicature being closed. In that situation, a national court wishing to refer a question for a preliminary ruling in order to be certain of its interpretation of EU law before ordering the Member State to pay damages could be led to refrain from doing so. More generally, the simple act of referring a question cannot limit the freedom of the court ruling on the substance. It is not the question referred to the Court, but the answer given by it that provides material to be factored into its free consideration.

63. Consequently, in order to safeguard the mechanism established by Article 267 TFEU and the crucial role of national courts and tribunals in the implementation of EU law, I take the view that in an action for compensation for breach of EU law, the national court is not required to have regard to the fact that it has been necessary to make a reference for a preliminary ruling on a question concerning the EU law at issue in the dispute in order to determine whether the breach of EU law by the Member State was sufficiently serious.

V – Conclusion

64. In the light of the foregoing, I suggest that the Court answer the questions referred for a preliminary ruling by the High Court as follows:

(1) Article 16(2) 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 to the effect that a third-country national spouse of a Union citizen may, for the purposes of the acquisition of a right of permanent residence, rely on a period of residence completed in the host Member State before that directive was transposed into the legal order of the Member States even where it is established that, during that period, the couple agreed to live apart with other partners.

(2) In an action for compensation for breach of EU law, the national court is not required to have regard to the fact that it has been necessary to make a reference for a preliminary ruling on a question concerning the EU law at issue in the dispute in order to determine whether the breach of EU law by the Member State was sufficiently serious.

(1) .

(2) – 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 — corrigenda — OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34).

(3) – OJ, English Special Edition 1968 (II), p. 475.

(4) – C‑162/09, EU:C:2010:592.

(5) – C‑6/90 and C‑9/90, EU:C:1991:428.

(6) – EU:C:2010:592.

(7) – Paragraph 40. My italics.

(8) – C‑529/11, EU:C:2013:290.

(9) – Paragraph 42.

(10) – Paragraph 46.

(11) – Paragraph 47.

(12) – C‑40/11, EU:C:2012:691.

(13) – See paragraphs 57 to 60.

(14) – Paragraph 35 of that judgment.

(15) – 267/83, EU:C:1985:67.

(16) – Paragraph 18.

(17) – Paragraph 20.

(18) – 249/86, EU:C:1989:204.

(19) – Paragraph 12.

(20) – Paragraph 13.

(21) – C‑378/12, EU:C:2014:13.

(22) – Paragraph 23.

(23) – C‑378/12, EU:C:2013:640.

(24) – See, to this effect, Iida , EU:C:2012:691, paragraph 61.

(25) – See Onuekwere , EU:C:2014:13, paragraphs 24 and 25.

(26) – Ibid. (paragraph 30).

(27) – See recital 5 in the preamble to Directive 2004/38.

(28) – See Leth , C‑420/11, EU:C:2013:166, paragraph 40 and cited case-law.

(29) – Ibid., paragraph 41and cited case-law.

(30) – See Brasserie du pêcheur and Factortame , C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 55.

(31) – See Traghetti del Mediterraneo , C‑173/03, EU:C:2006:391, paragraph 32 and cited case-law.

(32) – See point 66 of his Opinion in Köbler , C‑224/01, EU:C:2003:207.