Secretary of State for Work and Pensions v Taous Lassal.
Date: 2010-10-07
29. As a preliminary point, it must be observed that citizenship of the Union confers on each citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaty on the functioning of the European Union and the measures adopted for their implementation, freedom of movement for persons being, moreover, one of the fundamental freedoms of the internal market, which was also reaffirmed in Article 45 of the Charter of Fundamental Rights of the European Union.
30. With regard to Directive 2004/38, the Court has already had occasion to point out that that directive aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the Treaty and that it aims in particular to strengthen that right, so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals (see Case C‑127/08 Metock and Others  [2008] ECR I‑6241, paragraphs 82 and 59).
31. The Court has also observed that, having regard to the context and objectives of Directive 2004/38, the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness (see Metock and Others , paragraph 84).
32. As recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship.
33. It is true that it is common ground that the acquisition of the right of permanent residence on the ground of legal residence for a continuous period of five years in the host Member State, provided for in Article 16(1) of Directive 2004/38, did not appear in the EU law instruments adopted for the application of Article 18 EC prior to that directive.
34. However, such a finding cannot lead to the conclusion that only continuous periods of five years’ legal residence either ending on 30 April 2006 or thereafter, or commencing after 30 April 2006 are to be taken into account for the purposes of acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38.
35. In the first place, an interpretation to the effect that only continuous periods of five years’ legal residence commencing after 30 April 2006 should be taken into account for the purposes of the acquisition of a right of permanent residence would mean that such a right could be granted only from 30 April 2011. Such an interpretation would amount to depriving the residence completed by citizens of the Union in accordance with EU law instruments pre-dating 30 April 2006 of any effect for the purposes of the acquisition of that right of permanent residence. It should be stated in that connection that prior to the adoption of Directive 2004/38 EU law already provided in certain specific cases for a right of permanent residence, which was included in Article 17 thereof.
36. It must be stated that such a result is contrary to the purpose of Directive 2004/38, set out in paragraphs 30 to 32 of this judgment, and would deprive it of its effectiveness.
37. In the second place, an interpretation to the effect that only continuous periods of five years’ legal residence ending on 30 April 2006 or thereafter should be taken into account for the purposes of acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38 is also contrary to the purpose and effectiveness of that directive. The EU legislature made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State. As the Advocate General pointed out, in point 80 of her Opinion, it would be incompatible with the integration-based reasoning behind Article 16 of that directive to consider that the required degree of integration in the host Member State depended on whether the continuous period of five years’ residence ended before or after 30 April 2006.
38. Furthermore, it should be noted that, in so far as the right of permanent residence provided for in Article 16 of Directive 2004/38 may only be acquired from 30 April 2006, the taking into account of periods of residence completed before that date does not give retroactive effect to Article 16 of Directive 2004/38, but simply gives present effect to situations which arose before the date of transposition of that directive.
39. It should be borne in mind in that regard that the provisions on citizenship of the Union are applicable as soon as they enter into force and therefore they must be applied to the present effects of situations arising previously (see Case C‑224/98 D’Hoop  [2002] ECR I‑6191, paragraph 25 and the case-law cited).
40. Consequently, 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.
The effect of temporary absences of less than two consecutive years, before 30 April 2006 and after a continuous period of five years’ legal residence, on the right of permanent residence pursuant to Article 16(1) of Directive 2004/38
Observations submitted to the Court
49. However, it should be recalled that, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, in particular, Case C‑156/98 Germany  v Commission  [2000] ECR I‑6857, paragraph 50; Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 34; and Joined Cases C‑402/07 and C‑432/07 Sturgeon and Others  [2009] ECR I‑0000, paragraph 41).
50. In that sense, the enacting terms of an EU act are indissociably linked to the reasons given for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (Case C‑298/00 P Italy v Commission  [2004] ECR I‑4087, paragraph 97 and the case-law cited, and Sturgeon and Others , paragraph 42).
51. Likewise, the Court held that, where a provision of EU law is open to several interpretations, preference must be given to the interpretation which ensures that the provision retains its effectiveness (see Sturgeon and Others , paragraph 47 and the case-law cited).
55. It that connection, it should be borne in mind that Article 16(4) of Directive 2004/38 refers to loss of the right of permanent residence on account of absences of more than two consecutive years from the host Member State. According to the travaux préparatoires  for Directive 2004/38 such a measure could be justified because after an absence of that duration the link with the host Member State is loosened (see the Council’s statement of reasons for common position (EC) No 6/2004 of 5 December 2003 with a view to the adoption of Directive 2004/38 (OJ 2004 C 54 E, p. 12), as far as concerns Article 16 thereof.
56. Article 16(4) of Directive 2004/38 falls to be applied independently of whether periods of residence completed before or after 30 April 2006 are concerned. In as much as residence periods of five years completed before 30 April 2006 are to be taken into account for the purpose of acquisition of the right of permanent residence provided for in Article 16(1) of Directive 2004/38, as is clear from the analysis in paragraph 29 to 40 of this judgment, Article 16(4) must necessarily apply to those periods. If that were not the case the Member States would be required to grant the right of permanent residence, pursuant to Article 16, even in cases of prolonged absences which call into question the link between the person concerned and the host Member State.
57. It follows that Article 16(4) of Directive 2004/38 is to apply to continuous periods of five years’ legal residence completed before 30 April 2006 and in application implies, in particular, that absences from the host Member State of less than two consecutive years occurring after the five-year periods of continuous residence but before 30 April 2006 are not such as to affect the link of integration of the citizen of the Union concerned.
58. Accordingly, absences from the host Member State of less than two consecutive years which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date do not affect the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38.
59. In the light of the foregoing, the answer to the question referred is that Article 16(1) and (4) of Directive 2004/38 must be interpreted as follows:
– continuous periods of five years’ residence completed before the date of transposition of Directive 2004/38, namely 30 April 2006, in accordance with earlier EU law instruments, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1) thereof, and,
– absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date do not affect the acquisition of the right of permanent residence pursuant to Article 16(1).
Costs