The Commissioners for Her Majesty's Revenue & Customs v Henrika Dakneviciute.
Date: 2019-09-19
25


In that regard, it should be noted that Directive 2004/38 is a single legislative act codifying and revising earlier instruments of EU law in order to facilitate the exercise of the primary and individual right of Union citizens to move and reside freely within the territory of the Member States (see, to that effect, judgment of 19 June 2014, SaintPrix, C‑507/12, EU:C:2014:2007, paragraph 25 and the case-law cited).
26


It is thus clear from Article 1(a) of Directive 2004/38 that that directive is intended to set out the conditions governing the exercise of that right, which includes, for stays of more than three months, in particular, the condition laid down in Article 7(1)(a) of that directive. According to that condition, Union citizens must be workers or self-employed persons in the host Member State (judgment of 19 June 2014, SaintPrix, C‑507/12, EU:C:2014:2007, paragraph 26).
27


The Court held that Article 7(3) of Directive 2004/38 which lays down the cases in which a Union citizen who is no longer a worker or self-employed person nevertheless retains that status, and the correlate right of residency, does not cover the case of a woman who temporarily gives up work because of the late stages of her pregnancy and the aftermath of childbirth (see, to that effect, judgment of 19 June 2014, Saint Prix, C‑507/12, EU:C:2014:2007, paragraph 30).
28


Nevertheless, the Court held that Article 7(3) of Directive 2004/38 does not list exhaustively the circumstances in which a Union citizen who is no longer a worker or self-employed person in the host Member State will nevertheless retain the status of ‘worker’ for the purposes of Article 7(1)(a) thereof and, consequently, the right of residence derived from that status (judgment of 11 April 2019, Tarola, C‑483/17, EU:C:2019:309, paragraph 26 and the case-law cited).
29


In particular, the Court held that the fact that the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth require a woman to give up work during the period needed for recovery does not, in principle, deprive her of the status of ‘worker’ within the meaning Article 45 TFEU. The fact that she was not actually available to the employment market of the host Member State for a few months does not mean that she has ceased to belong to that market during that period, provided she returns to work or finds another job within a reasonable period after confinement (judgment of 19 June 2014, Saint Prix, C‑507/12, EU:C:2014:2007, paragraphs 40 and 41).
31


In that regard, it should be noted that the Court held that Articles 45 and 49 TFEU afford the same legal protection, the classification of the economic activity thus being without significance (see, to that effect, judgment of 5 February 1991, Roux, C‑363/89, EU:C:1991:41, paragraph 23).
32


According to the settled case-law of the Court, all the provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by Union nationals of occupational activities of all kinds throughout the European Union, and preclude measures that might place Union nationals at a disadvantage when they wish to pursue an activity in the territory of a Member State other than their Member State of origin (judgment of 20 December 2017, Simma Federspiel, C‑419/16, EU:C:2017:997, paragraph 35 and the case-law cited).
33


A Union citizen would be deterred from exercising her right to freedom of movement if, in the event that she was pregnant in the host Member State and gave up self-employed activity as a result, if only for a short period, she risked losing her status as self-employed in that State (see, by analogy, judgment of 19 June 2014, Saint Prix, C‑507/12, EU:C:2014:2007, paragraph 44).
35


Furthermore, the Court held that employees and the self-employed are in a comparable vulnerable position if obliged to stop working, and therefore cannot be treated differently as regards retention of their right of residence in the host Member State (see, to that effect, judgment of 20 December 2017, Gusa, C‑442/16, EU:C:2017:1004, paragraphs 42 and 43).
40


Moreover, the foregoing considerations are supported by Article 16(3) of Directive 2004/38. Inasmuch as an absence for an important event such as pregnancy or childbirth does not affect the continuity of the five years of residence in the host Member State required for the granting of a right of permanent residence, the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth, which require a woman to give up work temporarily, cannot, a fortiori, result in that woman losing her status as self-employed (see, by analogy, judgment of 19 June 2014, Saint Prix, C‑507/12, EU:C:2014:2007, paragraphs 45 and 46).