OPINION OF ADVOCATE GENERAL

WAHL

delivered on 12 December 2013 ( 1 )

Case C‑507/12

Jessy Saint Prix

v

Secretary of State for Work and Pensions

(Request for a preliminary ruling from the Supreme Court of the United Kingdom)

‛Freedom of movement for workers — Article 45 TFEU — Discrimination on grounds of nationality — Discrimination on grounds of sex — Directive 2004/38/EC — Article 7(1) and (3) — Definition of ‘worker’ — Right to reside — Union citizen who temporarily gave up work because of the constraints of pregnancy and the aftermath of childbirth — Income Support — Sufficient resources — Proportionality’

1. A Union citizen residing and working in a Member State other than her own temporarily stops working because of the constraints of the late stages of pregnancy and the immediate aftermath of childbirth. She then applies for a special non-contributory cash benefit for a period of time during which women who are nationals of the host Member State are not required to work or actively to seek work. Her application is refused by the competent national authorities. In those circumstances, is she to be treated as a ‘worker’ for the purposes of Article 45 TFEU and, more specifically, is she covered by Article 7 of Directive 2004/38/EC ( 2 ) (‘the Citizenship Directive’)?

2. It is clear to me that this question ought to be answered in the affirmative. As I will try to illustrate below, any other construction of Article 7 of the Citizenship Directive would entail not only disregarding the principle of non-discrimination on grounds of nationality, but also the principle of non-discrimination on grounds of sex, both of which undoubtedly enjoy constitutional status in EU law.

I – Facts, procedure and the questions referred

3. Ms Saint Prix is a French national who has been residing in the United Kingdom continuously since 10 July 2006. From September 2006 to August 2007, she worked in various jobs, mostly as a teaching assistant. She then enrolled in a postgraduate course related to her previous employment in the field of education. In February 2008 she withdrew from her studies because she had fallen pregnant.

4. Ms Saint Prix then looked for work in secondary schools. As none was available, she had to undertake agency work in nursery schools for several months. By 12 March 2008, that is to say 12 weeks before her estimated date of confinement, she stopped working because caring for nursery school children had become too strenuous. She spent a few days looking for lighter work, but in vain.

5. On 18 March 2008, on the advice of her doctor, Ms Saint Prix applied for Income Support, a special non-contributory cash benefit. ( 3 ) Her application was refused as, under the relevant domestic legislation, she had lost her ‘right to reside in the United Kingdom’, which is a pre-condition for receiving Income Support. All parties seem to be satisfied that the application was made within 11 weeks of her expected date of confinement.

6. Ms Saint Prix’s baby was born on 21 May 2008. Approximately three months after giving birth, Ms Saint Prix resumed work.

7. Ms Saint Prix brought an appeal before the First Tier Tribunal against the refusal to grant Income Support. Her appeal was upheld by decision of 4 September 2008. That decision was, in turn, appealed against by the Secretary of State for Work and Pensions before the Upper Tribunal, which ruled in favour of the Secretary of State on 7 May 2010. Ms Saint Prix then appealed against the Upper Tribunal’s decision before the Court of Appeal. When the latter refused to allow her appeal on 13 July 2011, she introduced a further appeal before the Supreme Court of the United Kingdom (‘the Supreme Court’).

8. Entertaining doubts as to the proper construction of Article 7 of the Citizenship Directive, the Supreme Court decided to stay the proceedings and to refer the following questions to the Court: ‘(1) Is the right of residence conferred upon a “worker” in Article 7 of the Citizenship Directive to be interpreted as applying only to those (i) in an existing employment relationship, (ii) (at least in some circumstances) seeking work, or (iii) covered by the expressions in Article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain “workers” for this purpose? (2) (i) If the latter, does it extend to a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)? (ii) If so, is she entitled to the benefit of the national law’s definition of when it is reasonable for her to do so?’

9. Written observations have been submitted by Ms Saint Prix, the AIRE Centre ( 4 ) and the EFTA Surveillance Authority, as well as by the Polish and UK Governments, and by the Commission, all of whom – except for the Polish Government – presented oral argument at the hearing on 14 November 2013.

II – Analysis

A – A Union citizen in Ms Saint Prix’s position ought to retain the status of worker

10. The order for reference explains that, under UK law, a pregnant woman within 11 weeks of her expected date of confinement – who is a UK national – is not required to be available for, or indeed, actively to seek work. After her confinement, the accepted period of absence from the labour market is 15 weeks. ( 5 ) If she fulfils the relevant requirements, a UK national is also entitled to Income Support during this period.

11. That possibility will not be open to a national of another Member State, such as Ms Saint Prix, unless she is covered by Article 7 of the Citizenship Directive, which regulates the right of Union citizens to reside on the territory of another Member State for a period of longer than three months. ( 6 ) In addition to the circumstances (including the right of residence for workers and self-employed persons) envisaged in Article 7(1), the circumstances listed in Article 7(3) are of particular significance here. These are the situations in which a Union citizen who is no longer a worker or self-employed person is nonetheless to retain that status. These circumstances include temporal inability to work as a result of an illness or accident. However, Article 7(3) does not refer to pregnancy. According to the referring court, Ms Saint Prix – who was pregnant at the material time – can therefore only have the benefit of Income Support if she can be regarded as having been a worker during the period in question.

12. I conclude from the above that, by its questions, the referring court is essentially seeking to ascertain whether a woman in Ms Saint Prix’s position is to be assimilated to a worker for the purposes of Article 7 of the Citizenship Directive.

13. To answer that question, I will begin by charting the basic tenets of the relevant case-law of the Court in the field of freedom of movement for workers. I will then move on to consider – in the light of that case-law – the proper construction of Article 7 of the Citizenship Directive by addressing, in particular, the arguments put forward by the UK Government.

1. The case-law of the Court

14. It is settled law that the concept of worker must be construed broadly. ( 7 ) This is so because it delimits the ambit of one of the fundamental freedoms guaranteed by the Treaty. ( 8 )

15. Accordingly, a migrant worker who has been employed in a host Member State must be treated as falling under Article 45 TFEU. ( 9 ) As a matter of principle, therefore, a person is considered to be a worker for the duration of his or her employment. ( 10 ) However, the Court has also consistently held that rights granted to migrant workers do not necessarily hinge on the actual or continuing existence of an employment relationship. In fact, migrant workers are guaranteed certain rights stemming from the status of worker even when they are no longer in such a relationship. Those rights include entitlement to a social security benefit in the host Member State. ( 11 )

16. On this point, I would call to mind that, according to established jurisprudence, Article 45 TFEU – and, in particular, paragraph (3)(d) thereof – establishes the right of a worker to remain in the territory of a Member State after having been employed there. Thus, in Lair, ( 12 ) the Court held that a migrant worker who had given up work voluntarily in order to undertake university studies, which were connected to the previous occupational activity, was to be considered a worker. Mindful of the problems in finding new work if a worker has involuntarily become unemployed, the Court also held that the criterion pertaining to the existence of a connection between the occupational activity at issue and the studies undertaken cannot be applied where the need to retrain is not a voluntary choice made by the person concerned. ( 13 )

17. Even more interestingly perhaps, in Orfanopoulos, ( 14 ) the Court confirmed that a Union citizen who had worked in the host Member State and had therefore acquired the status of migrant worker there, remained within the scope of what is now Article 45 TFEU, and legislation adopted thereunder, for the duration of a sentence spent in prison. Fundamentally, therefore, a prisoner who was employed before imprisonment is not to be regarded as having ceased to be available to the labour market of the host Member State, provided that he secures employment within a reasonable time of his release. ( 15 )

18. In the present case, it is not disputed that Ms Saint Prix was a worker for the purposes of Article 7(1)(a) of the Citizenship Directive until March 2008 when she stopped working because of the constraints of her pregnancy. Ms Saint Prix nonetheless remained in the territory of the host Member State during the time when she was not working and resumed work three months after giving birth. As observed by all the parties that have made submissions before the Court – with the exception of the UK Government – depriving Ms Saint Prix of the status of worker in the circumstances would require a markedly narrow construction of Article 45 TFEU and Article 7 of the Citizenship Directive. That would be contrary to the approach taken by the Court in the case-law charted above.

19. I have to agree with this argument. Depriving Ms Saint Prix of her status as worker would also entail reading the existing legislation in a way that runs counter to the objective of the Citizenship Directive, which is to foster the exercise of the primary and individual right – conferred directly on all Union citizens by the Treaty – to move and reside freely within the territory of the Member States. ( 16 ) Therefore, it seems clear to me that Ms Saint Prix must be treated as a worker even as regards the period during which she was not working. After all, she had genuinely made use of her right to free movement and worked in the host Member State before falling pregnant.

20. However, I cannot subscribe to the interpretation proposed by Ms Saint Prix, the AIRE Centre and the Commission regarding Article 7 of the Citizenship Directive. In essence, they contend that – similarly to the facts underlying Orfanopoulos – a woman in Ms Saint Prix’s position has not left the labour market in any permanent sense and ought therefore to fall within the scope of the general rule governing residence beyond three months (as laid down in Article 7(1)(a)). While it would certainly be tempting to apply directly the dictum of the Court in Orfanopoulos to the present case, the shifts that have since occurred in the legislative landscape should not in my view be overlooked. Whereas at the material time in that case no single secondary law instrument intending to set out the conditions governing the exercise of the right to free movement existed, such an instrument (the Citizenship Directive) does exist now. ( 17 ) The right to reside in another Member State after three months is specifically governed by Article 7 of the Citizenship Directive.

21. Although Ms Saint Prix’s absence from the labour market was certainly temporary, she did not engage, in any meaningful sense, in an economic activity during that period (just as someone who was ill or had been the victim of an accident would not have done so). This is why I believe that the most appropriate point of reference for assessing the position of a woman in Ms Saint Prix’s position is to be found in the exception to the general rule, provided for in Article 7(3)(a), which refers to temporary inability to work because of illness or accident.

22. However, this begs the following question: how can this standpoint be reconciled with the fact that Article 7(3) of the Citizenship Directive – which concerns the conditions for retaining the status of worker where the person concerned is no longer engaged in any employed or self-employed activity – does not expressly mention pregnancy? In order to answer that question, I will now address the objections raised by the UK Government.

2. The objections raised by the UK Government

23. By contrast with the other parties that have submitted observations, the UK Government attaches particular importance to two factors which, in its view, militate against Ms Saint Prix being treated as a worker. On the one hand, it contends that Ms Saint Prix’s situation ought to be equated with the circumstances in Dias, ( 18 ) a case in which (unlike the present case) the Court reviewed the conditions for obtaining a permanent right of residence under Article 16 of the Citizenship Directive. ( 19 ) Although the point was not at issue in the proceedings before the Court in Dias, the claimant was not treated as a worker – a point not expressly debated before the Court – in the host Member State as regards the period during which she had ceased work to look after her young child, a period which commenced after her maternity leave had ended. ( 20 )

24. I cannot accept that Dias is analogous to the case under consideration. In fact, the two cases can be distinguished on the facts with relative ease. In Dias, the mother’s absence from work extended beyond the time when there was a medical reason for her not to return to work. As the referring court observes, both women and men may stay at home to take care of children. By contrast, in the case before the referring court, we are confronted with a situation in which a woman ceases work for a clearly circumscribed period on account of physical and mental constraints attributable to pregnancy. ( 21 ) In addition, this period coincides with the period during which pregnant women who are nationals of the host Member State are not required to work or actively to seek work. ( 22 )

25. On the other hand, the UK Government also places particular emphasis on the fact that Article 7(3) of the Citizenship Directive makes explicit reference to situations in which the person concerned is temporarily unable to work as the result of illness or accident, but does not refer to pregnancy. In its view, the fact that the directive does not expressly offer any protection in that respect in relation to pregnancy and childbirth is indicative of a deliberate step taken by the legislature in order to prevent such protection from being read into that provision. This is particularly evident, according to the UK Government, because an attempt had been made at the committee stage before the European Parliament to insert a reference to pregnancy in Article 7(3) of the Commission proposal, which was silent on the point. ( 23 )

26. I would be hesitant to draw any definitive conclusion from that.

27. In this respect, I would like to emphasise that, as is apparent from the Commission proposal ( 24 ) for the Citizenship Directive, the directive was intended not only to reproduce provisions already laid down in other directives and, more specifically, those in Directive 68/360/EEC. ( 25 ) This is especially true of Article 7 of the Citizenship Directive. The new directive was also intended, as the UK Government itself observes, to place on a statutory footing the case-law (as it stood at the time) of the Court in the field of Union citizenship. ( 26 ) That case-law had not addressed the specific issue of pregnancy (nor, for that matter, had Directive 68/360) in the context of determining the scope of the concept of worker and the right to reside in the host Member State, which is intimately linked thereto.

28. In my view, the clearly enunciated objective of the original Commission proposal for the new Citizenship Directive – of incorporating both the existing legislative provisions and the case-law of the Court into the new provision – helps to explain why it did not propose the insertion of an explicit reference to pregnancy in Article 7(3) as an exception to the general rule (laid down in Article 7(1)(a)) that retaining the status of worker presupposes the existence of an employment relationship. ( 27 ) Given that objective, it is not surprising that a wider array of situations was not envisaged. Arguably, however, the arguments put forward by the UK Government would be more convincing had the original Commission proposal explicitly included a reference to pregnancy which the subsequent legislative process had gone on to remove.

29. A further point that ought to be emphasised here is that, although the Citizenship Directive is intended, as mentioned above, to set out the conditions governing the exercise of the right to free movement, the fact remains that an instrument of secondary law cannot alter the meaning of the concept of worker, which is firmly rooted in Article 45 TFEU, a provision of primary law. Moreover, the enactment of such a legal instrument cannot prevent the Court from interpreting and applying the concept of worker as used in Article 45 TFEU to meet new situations.

30. Simply put, the question of whether someone is to be considered a worker or in what circumstances someone is to retain that status is ultimately a matter of primary law. The answer cannot meaningfully be limited by a provision of secondary law. Indeed, as is well known, secondary law is to be interpreted, as far as possible, in accordance with primary law. ( 28 ) This aims to remedy any inconsistencies capable of impacting on the validity of provisions of secondary law. Accordingly, the relevant point of reference for determining whether Ms Saint Prix ought to retain the status of worker under Article 7 of the Citizenship Directive is, in particular, the case-law of the Court concerning what is now Article 45 TFEU.

31. In order to avoid construing Article 45 TFEU in such a way as to create, by judicial construction, a new category of worker, I consider it imperative that the treatment of a pregnant woman in Ms Saint Prix’s position also be tied to Article 7 of the Citizenship Directive. As I have indicated, Article 7(3)(a) of that directive is of particular significance here, given that it specifically refers to temporary inability to work on grounds of illness or accident.

32. Admittedly, the line of authority devolving from Webb ( 29 ) makes it clear that pregnancy is not to be treated as an illness. However, this distinction was drawn in the context of protecting pregnant women against unlawful dismissal. Indeed, the Court has consistently held – undoubtedly in order to afford special protection to pregnant women and to further substantive equality ( 30 ) – that, by contrast with illness, pregnancy alone cannot justify dismissal (or other types of differential treatment in the workplace). ( 31 )

33. In the present case, by contrast, we are dealing with a situation in which not equating pregnancy with illness would result in EU law providing protection for illness, but not for pregnancy. That would clearly amount to a breach of the principle of non-discrimination on grounds of sex.

34. Let us imagine, for the sake of argument, that Ms Saint Prix – or a male agency worker for that matter – had been temporarily unable to work, not because of pregnancy, but because of illness. Due to this illness, she would have been unable to work for a number of months, but would have resumed work once her condition so permitted. In these circumstances, there seems to be little doubt that Ms Saint Prix would have been treated, in accordance with Article 7(3)(a) of the Citizenship Directive, as a worker during the time needed for her recovery. According to the UK Government, the same does not hold true where a woman is not ill (or, indeed, a victim of an accident), but instead, pregnant.

35. As only women can become pregnant, an interpretation of Article 7(3) of the Citizenship Directive, read in light of Article 45 TFEU, which would lead to loss of the status of worker in case of a temporary absence from work because of the physical effects of late-term pregnancy and the aftermath of child-birth (effects which, in my view, can be equated quite easily with the effects of a host of illnesses that affect both women and men alike) would in practice entail offering less protection for women than for men. Such an approach would, not least because of Article 23 of the Charter of Fundamental Rights of the European Union (‘the Charter’), run counter to the principle of non-discrimination on grounds of sex. That is so, in particular, by dint of the well-established principle that less favourable treatment on grounds of pregnancy constitutes – without the need to identify a male comparator – discrimination on grounds of sex. ( 32 )

36. That said, it is imperative to define clearly the ambit of the protection that ought to be afforded to pregnant women under Article 7(3) of the Citizenship Directive.

3. Delimiting the extent of the protection afforded to pregnant women

37. To avoid a situation in which the status of worker is retained for an unlimited period of time before and after confinement, I believe that the temporary constraints resulting from pregnancy and childbirth should fall within the scope of Article 7(3) of the Citizenship Directive as regards the period during which the physical condition of the woman concerned genuinely precludes work. Not doing so would amount to ignoring the aim of the Citizenship Directive to set out the conditions governing exercise of the right to freedom of movement.

38. To ensure that Article 7(3) of the Citizenship Directive is construed in a manner consistent with Article 18(1) TFEU and Article 21(2) of the Charter, which prohibit any form of discrimination based on nationality, it seems that the only appropriate yardstick for determining the period of time during which absence from the labour market may be deemed reasonable – to adopt the expression employed by the Court in Orfanopoulos ( 33 ) – is to be found in national law and, more specifically, in the domestic rules governing the period during which pregnant women are not required to work or actively to seek work, and the rules on the social assistance to be available for women during that time. ( 34 )

39. At this point, I must emphasise that, if comparable protection were not provided for migrant workers, that would amount to discrimination on grounds of nationality. Indeed, given that, within 11 weeks of her estimated date of confinement (and for 15 weeks after the end of her pregnancy) a UK national is not only exempted from being available for work, or from having actively to seek work, but is also entitled, subject to certain conditions, to Income Support for this period, the same rules ought equally to apply to a woman in Ms Saint Prix’s circumstances.

40. As is well known, however, the effects of pregnancy may sometimes preclude work even during earlier stages of gestation. In those situations, it must be assumed that the worker concerned, who is temporarily unavailable for work because of the effects of her pregnancy, would be assimilated to a person who is ill (provided that she follows the applicable national procedures for attesting that this is indeed the case, for example, by means of a medical certificate) and fall automatically under Article 7(3)(a) of the Citizenship Directive. If that were not so, the simple fact of being pregnant would not make it possible to rely on that provision. To construe the legislation in that way would, once again, entail blatant disregard for the principle of non-discrimination on grounds of sex.

41. This leads me to conclude that Article 7(3)(a) of the Citizenship Directive, read in light of Article 45 TFEU, should be interpreted as meaning that a woman who can be deemed temporarily unable to work because of the physical constraints of the late stages of pregnancy must retain the status of worker. The status of worker is retained until such time as it is reasonable for her to return to work, or to seek work, after the birth of her child. To ensure that the principle of non-discrimination on grounds of nationality is observed, that period cannot be shorter than the period provided for in the national legislation governing the period during which pregnant women are exempted from being available for work, or from having actively to seek work.

42. Having said that, I wish to make the following additional observations.

B – Consequences of a Union citizen not retaining the status of worker

43. The referring court seems to work from the assumption that if Ms Saint Prix were not to be treated as a ‘worker’ for the purposes of Article 7 of the Citizenship Directive, she could not claim or receive Income Support during the time that she stopped working. This is, it would appear, because she would no longer possess the right to reside in the United Kingdom. Even though this issue is not of direct relevance for the case before the referring court, it was extensively debated at the hearing before the Court.

44. I cannot unconditionally share the assumption of the referring court.

45. At the outset, I would call to mind that the mere fact that a Union citizen has lost his or her status as a worker does not mean that all rights attaching to that status automatically and immediately disappear. This is demonstrated by Trojani, ( 35 ) where the Court found, inter alia, that the host Member State possesses substantial discretion in determining whether a national of another Member State who has recourse to social assistance fulfils the conditions for a right to reside. ( 36 ) However, mindful of the fundamental status of Union citizenship in the European construction, the Court nonetheless held in that instance that a Union citizen who does not enjoy a right of residence in the host Member State under what is now Article 45 TFEU may nonetheless, simply as a result of his citizenship of the Union, enjoy a right of residence there by direct application of what is now Article 21(1) TFEU. Certainly, while the exercise of that right is subject to ‘limitations and conditions’, as referred to in that provision, the competent national authorities are to ensure that those provisos are applied consistently with the general principles of EU law, in particular with the principle of proportionality. ( 37 )

46. This well-established principle was reiterated most recently in Brey, ( 38 ) in which the Court assessed the compatibility of national legislation barring the grant of a particular benefit to a national of another Member State who is not economically active. In Brey, the Court attached particular significance to the limits that the freedom of movement, as a fundamental principle of EU law, places on the discretion enjoyed by the Member States (including the power of removal from the national territory) in relation to foreign EU nationals.

47. Importantly, that discretion cannot be employed in such a way as to compromise the Citizenship Directive’s main objective, which is to facilitate and strengthen the exercise by Union citizens of their primary right, namely, the right to move and reside freely within the territory of the Member States, and the practical effectiveness of that directive. ( 39 ) It is true, of course, that exercising the right to reside in another Member State can be subject to limitations justified by the legitimate interests of that State (such as protection of the public purse). However, the Court firmly rejected the possibility of using such legitimate interests so as to jeopardise the fundamental principle of freedom of movement. That fundamental principle would be jeopardised if the conditions laid down in Article 7(1)(b) of the Citizenship Directive were interpreted expansively. ( 40 ) In accordance with that provision, economically non-active EU citizens (that is, persons who do not work or are not self-employed in the host Member State) possess a right to reside in the host Member State providing that they have sufficient resources not to become a burden on the social assistance system of that State during their period of residence.

48. In Brey, the Court also held that the competent national authorities must undertake an overall assessment of the factual circumstances in each individual case – in light of the principle of proportionality – in order to ascertain whether or not the grant of a benefit could place an unreasonable burden on the social assistance system of the host Member State as a whole within the meaning of Article 7(1)(b) of the Citizenship Directive. The Court reiterated the established principle that, particularly where the problems encountered by a beneficiary are temporary in character, the Citizenship Directive is based on the assumption that, in matters of social assistance, there is a certain degree of solidarity between nationals of the various Member States. ( 41 ) Indeed, the mere fact that a national of another Member State receives social assistance is not sufficient in itself to show that he or she constitutes an unreasonable burden for the social assistance system of the host Member State. ( 42 )

49. Drawing from this line of reasoning – and subject to verification by the referring court – I would argue that in the circumstances underlying the order for reference, that is to say, where a woman in Ms Saint Prix’s position can be deemed temporarily unable to work because of pregnancy and therefore seeks a special non-contributory cash benefit such as Income Support, she should not automatically lose her right to reside as a consequence of her temporary financial difficulties. Taking account of the Court’s dictum on this point in Brey, I must also conclude that it does not automatically follow from the simple fact that a pregnant woman has applied for a benefit such as Income Support that she no longer possesses resources sufficient for residing in the host Member State. This is all the more true, given that the problems of subsistence encountered by Ms Saint Prix are temporary in character and that, as a result, social assistance is required only for a limited period, which happens also to coincide with the period of ordinary maternity leave for UK nationals, during which they are not required to be available for work, or actively to seek work.

50. By contrast with the circumstances of the case before the referring court, a similar conclusion could not, in my opinion, be drawn with equal ease in Brey. This is because payment of the relevant benefit would have constituted an indefinitely recurring event in circumstances where the person concerned was no longer economically active in any meaningful sense. As I have explained elsewhere, ( 43 ) Article 7(1)(b) of the Citizenship Directive is intended to prevent economically inactive Union citizens from using the welfare system of the host Member State to finance their livelihood in their initial period of residence in that Member State.

51. It must be borne in mind, however, that what may or may not constitute an unreasonable burden for the social assistance system of the host Member State, taken as a whole, is a matter which falls to be assessed (overall) by the national authorities. ( 44 ) Notwithstanding this division of tasks between the European Union and its Member States, I must confess to having difficulty in imagining a situation whereby affording a benefit such as Income Support to a woman in Ms Saint Prix’s situation would constitute such a burden. Given the temporary character of the problems encountered and the limited period of time for which the benefit was sought, any other conclusion would be at odds with the principle of proportionality, which is to be given due consideration when making that assessment.

52. That said, it cannot be categorically ruled out that, in order to avoid ‘benefit tourism’, more restraint may be warranted in the case of economically inactive Union citizens who have never established any link with the society of their host Member State by working and paying taxes there. However, I do not believe such restraint to be justified or, indeed, proportional where, as in this case, a woman has effectively exercised her right to freedom of movement and participated in genuine economic activity in the host Member State before falling pregnant and seeking a benefit for a limited period of time before returning to the employment market.

III – Conclusion

53. In light of the arguments presented, I propose that the Court answer the questions referred by the Supreme Court of the United Kingdom as follows: Article 7(3)(a) 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, read in light of Article 45 TFEU, is to be interpreted as meaning that a woman who can be deemed temporarily unable to work because of the physical constraints of the late stages of pregnancy must retain the status of worker. The status of worker is retained until such time as it is reasonable for the woman in question to return to work, or to seek work, after the birth of her child. To ensure that the principle of non-discrimination on grounds of nationality is observed, that period cannot be shorter than the period provided for under the national legislation governing the period during which pregnant women are exempted from being available for work, or from having actively to seek work.

( 1 ) Original language: English.

( 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).

( 3 ) Income Support is a benefit that persons residing in the United Kingdom may receive if they have no income or a low income, they are working less than 16 hours a week and they have not signed on as unemployed. In addition, the person concerned must fall within one of a number of specific categories. One of those categories covers pregnant women and, in some cases, persons who are unable to work because of sickness or disability.

( 4 ) The AIRE Centre (Advice on Individual Rights in Europe) is a charity that provides free legal advice on European human rights law and EU law. It was authorised to appear in the proceedings before the Supreme Court.

( 5 ) These 26 weeks (11 weeks before and 15 weeks after confinement) correspond to ordinary maternity leave in the United Kingdom.

( 6 ) Article 7 of the Citizenship Directive 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 … 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: (a) he/she is temporarily unable to work as the result of an illness or accident; (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 …’

( 7 ) For early statements of this rule, see, inter alia, Case 139/85 Kempf [1986] ECR 1741, paragraph 13; Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 16. See also Case 197/86 Brown [1988] ECR 3205, paragraph 21; Case C-292/89, Antonissen [1991] ECR I-745, paragraph 11; Case C-3/90 Bernini [1992] ECR I-1071, paragraph 14; Case C-413/01 Ninni-Orasche [2003] ECR I-13187, paragraph 23; and, more recently, Case C‑46/12 LN [2013] ECR, paragraph 39.

( 8 ) Kempf, paragraph 13, and Lawrie-Blum, paragraph 16.

( 9 ) See Case C‑379/11 Caves Krier Frères [2012] ECR, paragraph 26 and case-law cited.

( 10 ) For the relevant criteria for determining whether or not an employment relationship actually exists, see, inter alia, LN, paragraphs 40 and 41 and case-law cited.

( 11 ) Case 39/86 Lair [1988] ECR 3161, paragraphs 31 to 39. More recently, for benefits arising from a previous employment relationship, see Case C-228/07 Petersen [2008] ECR I-6989, paragraph 49 and case-law cited.

( 12 ) See footnote 11.

( 13 ) Lair, in particular paragraphs 37 and 39.

( 14 ) Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257.

( 15 ) Orfanopoulos and Oliveri, paragraph 50 and case-law cited. See also, by analogy, Antonissen, paragraphs 21 and 22.

( 16 ) See, most recently, Case C-140/12 Brey [2013] ECR, paragraph 53. See also Case C-127/08 Metock and Others [2008] ECR I-6241, paragraphs 59 and 82; Case C-162/09 Lassal [2010] ECR I-9217, paragraph 30; and Case C-434/09 McCarthy [2011] ECR I-3375, paragraph 28.

( 17 ) Brey, paragraph 53. See also McCarthy, paragraph 33, and Joined Cases C-424/10 and C-425/10 Ziolkowski and Szeja [2011] ECR I-14035, paragraphs 36 and 40.

( 18 ) Case C-325/09 [2011] ECR I-6387.

( 19 ) Article 16 states: ‘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 ... 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 … 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 …’

( 20 ) See the declaratory statement to that effect made by the Court in paragraph 39 of that judgment.

( 21 ) It is of course true that when Ms Saint Prix applied for Income Support, the period for which she would need assistance was still unknown. However, this does not change the fact that the relevant period in the national proceedings corresponds to the period during which a UK national in a similar situation is not required to work or seek work on account of pregnancy and child-birth.

( 22 ) The rationale for maternity leave is precisely to protect the physical and mental condition of pregnant women before and after childbirth. See point 44 of my Opinion in Case C‑363/12 Z, pending before the Court.

( 23 ) In fact, the Committee on Women’s Rights and Equal Opportunities suggested making special provision for pregnancy in this respect. See Report of 23 January 2003 on the proposal for a European Parliament and Council directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (COM(2001) 257 – C5‑0336/2001 – 2001/0111(COD)), Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs. That recommendation was not, however, followed in the subsequent legislative process.

( 24 ) COM(2001) 257 final, p. 13.

( 25 ) Council Directive of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968(II), p. 485). According to the judgment in Ziolkowski and Szeja, paragraph 37: ‘It is apparent from recitals 3 and 4 in the preamble to [the Citizenship Directive] that the aim of [that instrument] is to remedy the sector-by-sector piecemeal approach to the right of freedom of movement and residence in order to facilitate the exercise of this right by providing a single legislative act codifying and revising the instruments of [EU] law which preceded the directive.’

( 26 ) COM(2001) 257 final, p. 13.

( 27 ) Ibid., p. 33.

( 28 ) Case 218/82 Commission v Council [1983] ECR 4063, paragraph 15. See also Case C-305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I-5305, paragraph 28, and Joined Cases C-402/07 and C-432/07 Sturgeon and Others [2009] ECR I-10923, paragraph 48 and case-law cited.

( 29 ) C-32/93 [1994] ECR I-3567.

( 30 ) See my Opinion in Z, points 44 to 46, for a more detailed discussion on the scope of protection afforded to pregnant women under EU law, and in particular, under Council Directive 92/85/EEC of 19 October 1992 (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (OJ 1992 L 348, p. 1) (‘the Pregnant Workers’ Directive’).

( 31 ) See, inter alia, Webb, paragraph 26; Case C-394/96 Brown [1998] ECR I-4185, paragraph 18; Case C-109/00 Tele Danmark [2001] ECR I-6993, paragraphs 26 and 27; and Case C-460/06 Paquay [2007] ECR I-8511, paragraphs 30 and 31. See also Case C-191/03 McKenna [2005] ECR I-7631, paragraph 45 and case-law cited. Indeed, the Court has ruled that protection of pregnant workers against dismissal extends to the entire period of maternity leave, but where that leave has ended there is no reason for distinguishing an illness attributable to pregnancy or confinement from any other illness, and that such a pathological condition is covered by the general rules applicable in the event of illness. Therefore, EU law does not preclude dismissals which are the result of absences due to an illness attributable to pregnancy or confinement.

( 32 ) See, in particular, Case C-506/06 Mayr [2008] ECR I-1017, paragraph 46 and case-law cited. This principle can be traced back to the judgment in Case C-177/88 Dekker [1990] ECR I-3941, paragraph 12.

( 33 ) See Orfanopoulos and Oliveri, paragraph 50.

( 34 ) I would note, however, that the discretion afforded to Member States is clearly circumscribed by the Pregnant Workers’ Directive, and in particular by Article 8 thereof, which provides, by way of an accepted minimum, that workers falling within the scope of the directive are entitled to a continuous period of maternity leave of at least 14 weeks allocated before and/or after confinement.

( 35 ) Case C-456/02 [2004] ECR I-7573.

( 36 ) Trojani, paragraph 45.

( 37 ) Ibid., paragraph 46. See also Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 91 and case-law cited, and Case C-200/02 Zhu and Chen [2004] ECR I-9925, paragraph 32.

( 38 ) See Brey, paragraph 70, and footnote 16 above.

( 39 ) Idem., paragraph 71.

( 40 ) Idem., paragraph 70.

( 41 ) Brey, paragraph 72 and case-law cited. In fact, this was already established by the Court in Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 44. It is also worth noting that this conclusion is reinforced by recital 16 of the Citizenship Directive. It lists the relevant criteria for determining the unreasonableness of the burden represented by the Union citizen concerned. These include the temporary character of the difficulties encountered, the duration of residence, personal circumstances, and the amount of aid granted.

( 42 ) Brey, paragraph 75.

( 43 ) See point 38 of my Opinion in Brey.

( 44 ) Brey, paragraph 77.