Keywords

Summary



Keywords

1. Citizenship of the Union — Right to move and reside freely on the territory of the Member States — Directive 2004/38 — Right of permanent residence of third-country nationals, family members of a Union citizen having acquired that right in the host Member State — Acquisition of that right by the third-country national at the end of a continuous period of residence with the Union citizen in the host Member State — Periods completed legally before the deadline for transposition of the directive — Included — Residence subject to the conditions of Directive 2004/38 and to those laid down by EU law in force during the period when the residence was completed — Spouses having decided to separate and live with other partners during the continuous period of residence of five years — No effect

(European Parliament and Council Directive 2004/38, Art. 16(2))

2. Freedom of movement for persons — Workers — Right of residence of family members — Family member not having the nationality of a Member State — Requirement to have available housing regarded as normal for national workers — No requirement for the family to live permanently under the same roof — Condition applies solely as a reception condition

(Council Regulation No 1612/68, Art. 10(3))

3. Questions referred for a preliminary ruling — Reference to the Court — Decisive factor, in the context of an action for damages, of the existence of an obvious infringement of EU law — None

(Art. 267 TFEU)

Summary

1. Article 16(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States must be interpreted as meaning that a third-country national who, during a continuous period of five years before the transposition date for that directive, has resided in a Member State as the spouse of a Union citizen working in that Member State, must be regarded as having acquired a right of permanent residence under that provision, even though, during that period, the spouses decided to separate and commenced residing with other partners, and the home occupied by that national was no longer provided or made available by his spouse with Union citizenship.

If the five-year continuous period of residence is completed in whole or in part before the deadline for the transposition of Directive 2004/38 into national law, that period must — if it is to be possible to rely on the right of permanent residence under Article 16(2) of that directive — satisfy not only the conditions laid down in the directive but also those under the EU law in force during that period of residence. In that regard it must be noted that, in considering Article 16(2) of Directive 2004/38, 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. To the extent that Article 16(2) of Directive 2004/38 makes acquisition of the right of permanent residence by family members of a Union citizen conditional upon having resided legally ‘with’ the latter for a continuous period of five years, the question arises whether the separation of spouses during the period concerned — given that not only is there no residing together but especially, there is no true sharing of married life together — precludes a finding that that condition is satisfied. In that regard, as was held in the judgments in Case 267/83 Diatta and Case C‑40/11 Iida , the marital relationship cannot be regarded as dissolved as long as it has not been terminated by the competent authority, and that is not the case where the spouses merely live separately, even if they intend to divorce at a later date, and, consequently, the spouse does not necessarily have to live permanently with the Union citizen in order to hold a derived right of residence. Accordingly, the fact that the spouses not only ceased to live together but also resided with other partners, is irrelevant for the purposes of the acquisition of a right of permanent residence under Article 16(2) of Directive 2004/38.

(see paras 32, 34, 36-38, 47, operative part 1)

2. The condition imposed by Article 10(3) of Regulation No 1612/68 on the free movement of workers in the Community on a worker who is a national of a Member State to have available for his family housing considered as normal for national workers in the region where he was employed is satisfied if the worker has left the family home and his spouse has gone to reside with another partner in a new home which was neither supplied nor provided for by that worker.

Article 10(3) does not require the family member in question to reside permanently with the worker; it merely requires the accommodation that the worker has available for his family to be of a kind considered normal for those purposes and, consequently, there is no implied requirement for the family to live permanently under the same roof.

Furthermore, the requirement to have available housing regarded 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, accordingly, compliance with that provision may, in any event, be assessed only with effect from the date on which the third-country national began living together with the spouse with Union citizenship in the host Member State.

(see paras 43, 45, 46)

3. The fact that, in relation to a claim for damages for infringement of EU law, a national court has found it necessary to seek a preliminary ruling on a question concerning the EU law at issue must not be considered a decisive factor in determining whether there was an obvious infringement of that law on the part of the Member State.

The simple act of referring a question cannot limit the freedom of the court ruling on the substance. The answer to the question whether an infringement of EU law was sufficiently serious follows not from action taken on the basis of Article 267 TFEU, but from the interpretation provided by the Court. The discretion of national courts to make a reference to the Court if they consider it necessary to obtain an interpretation of a provision of EU law, even if the question raised has already been dealt with, would undoubtedly be limited if the exercise of that discretion were a decisive factor in determining whether or not there had been an obvious infringement of EU law, in order to appraise, where appropriate, the liability of the Member State concerned for infringement of EU law. Such an effect would thus compromise the system, the purpose and the characteristics of the preliminary reference procedure.

(see paras 53-55, operative part 2)