Ewaen Fred Ogieriakhi v Minister for Justice and Equality and Others.
Date: 2014-07-10
29. First of all, it should be recalled that the Court has held that, for the purposes of the acquisition of the right of permanent residence under Article 16 of Directive 2004/38, continuous periods of five years’ residence completed before the transposition date for that directive, namely 30 April 2006, in accordance with earlier EU law instruments, must be taken into account (see Lassal , EU:C:2010:592, paragraph 40).
30. In that regard, it must be noted that the phrase ‘earlier [than Directive 2004/38] EU law instruments’, 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Lassal (EU:C:2010:592), must be understood as referring to the instruments which that directive codified, revised and repealed ( Alarape and Tijani , C‑529/11, EU:C:2013:290, paragraph 47).
31. Furthermore, the Court has also held that only periods of residence which satisfy the conditions laid down in Directive 2004/38 may be taken into consideration for the purposes of the acquisition of a right of permanent residence under that directive by the family members of a Union citizen who are not nationals of a Member State (see Alarape and Tijani , EU:C:2013:290, paragraph 42).
34. In that regard it must be noted that, in considering Article 16(2) of Directive 2004/38, the Court has held 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 ( Alarape and Tijani , EU:C:2013:290, paragraph 34).
37. In that regard, it should be noted that the Court has held that 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 ( Diatta , 267/83, EU:C:1985:67, paragraphs 20 and 22, and Iida , C‑40/11, EU:C:2012:691, paragraph 58).
39. To the extent that the spouses remained married until January 2009 in the Member State in which Ms George exercised her right to free movement, during the above period, Mr Ogieriakhi cannot be deemed to have lost his status as spouse of a Union citizen accompanying or joining her in the host Member State, thus satisfying the criteria set out in Article 7(2) of Directive 2004/38.
40. That interpretation is also consistent with the need not to construe Directive 2004/38 narrowly and not to deprive its provisions of their effectiveness. In that regard, it should be noted that, if Article 16(2) of the directive were to be interpreted literally, a third-country national could be made vulnerable because of unilateral measures taken by his spouse, and that would be contrary to the spirit of that directive, of which one of the objectives is precisely — according to recital 15 thereto — to offer legal protection to family members of citizens of the Union who reside in the host Member State, in order to enable them, in certain cases and subject to certain conditions, to retain their right of residence exclusively on a personal basis.
45. Accordingly, in paragraph 18 of the judgment in Diatta  (EU:C:1985:67), the Court held that, in providing that a member of a migrant worker’s family has the right to install himself with the latter, Article 10 of Regulation No 1612/68 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.
46. Furthermore, the Court has noted that Article 10(3) of Regulation No 1612/68 must be interpreted as meaning that 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 ( Commission  v Germany , 249/86, EU:C:1989:204, paragraph 12) 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, that is to say, in the present case, only with effect from 1999.
49. First of all, it should be borne in mind that the principle of State liability for loss and damage caused to individuals as a result of infringements of EU law for which the State can be held responsible is inherent in the system of the Treaty ( Francovich and Others , EU:C:1991:428, paragraph 35; Brasserie du pêcheur and Factortame , C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 31; and British Telecommunications , C‑392/93, EU:C:1996:131, paragraph 38).
50. Similarly, it should be recalled that the Court has also held that EU law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the infringement must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties ( Brasserie du pêcheur and Factortame , EU:C:1996:79, paragraph 51).
51. As regards the second condition, after stating that the decisive test for finding that an infringement of EU law is sufficiently serious is whether the Member State concerned manifestly and gravely disregarded the limits of its discretion, the Court indicated the criteria that national courts — which have sole jurisdiction to find the facts in the main proceedings and to decide how to characterise the infringements of EU law at issue — may take into account, such as the degree of clarity and precision of the rule infringed ( Brasserie du pêcheur and Factortame , EU:C:1996:79, paragraphs 55, 56 and 58).
52. However, the Court has consistently held that national courts have the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of, or consideration of the validity of, provisions of EU law ( Križan and Others , C‑416/10, EU:C:2013:8, paragraph 64).