Tomasz Ziolkowski (C-424/10) and Barbara Szeja and Others (C-425/10) v Land Berlin.
Date: 2011-12-21
32. It must be noted, first, that, according to settled case-law, the need for a uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union (Case C‑287/98 Linster  [2000] ECR I‑6917, paragraph 43, and Case C‑34/10 Brüstle  [2011] ECR I‑0000, paragraph 25).
34. It must be borne in mind that the meaning and scope of terms for which European Union law provides no definition must be determined by considering, inter alia, the context in which they occur and the purposes of the rules of which they form part (see, inter alia, Case C‑336/03 easyCar [2005] ECR I‑1947, paragraph 21; Case C‑549/07 Wallentin-Hermann [2008] ECR I‑11061, paragraph 17; Case C‑151/09 UGT-FSP [2010] ECR I‑0000, paragraph 39; and Brüstle , paragraph 31).
35. Thus, with regard, first, to the purposes of Directive 2004/38, recital 1 in the preamble states that citizenship of the Union confers on each Union 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 Treaties and the measures adopted for their implementation (see Case C‑162/09 Lassal  [2010] ECR I‑0000, paragraph 29, and Case C‑434/09 McCarthy  [2011] ECR I‑0000, paragraph 27).
36. Whilst it is true that Directive 2004/38 aims to facilitate and strengthen 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 each citizen of the Union, the fact remains that the subject of the directive concerns, as is apparent from Article 1(a) and (b), the conditions governing the exercise of that right and the right of permanent residence, the latter having been introduced into the legal order of the European Union for the first time by that directive, except as regards workers who have stopped working in the host Member State and their family members.
37. It is apparent from recitals 3 and 4 in the preamble to Directive 2004/38 that the aim of the directive 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 European Union law which preceded the directive.
38. Next, with regard to the overall context of Directive 2004/38, it should be noted that the directive introduced a gradual system as regards the right of residence in the host Member State, which reproduces, in essence, the stages and conditions set out in the various instruments of European Union law and case‑law preceding the directive and culminates in the right of permanent residence.
39. First, for periods of residence of up to three months, Article 6 of Directive 2004/38 limits the conditions and formalities of the right of residence to the requirement to hold a valid identity card or passport and, under Article 14(1) of the directive, that right is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host Member State.
40. Second, for periods of residence of longer than three months, the right of residence is subject to the conditions set out in Article 7(1) of Directive 2004/38 and, under Article 14(2), that right is retained only if the Union citizen and his family members satisfy those conditions. It is apparent from recital 10 in the preamble to the directive in particular that those conditions are intended, inter alia, to prevent such persons becoming an unreasonable burden on the social assistance system of the host Member State.
41. Third, it is apparent from Article 16(1) of Directive 2004/38 that Union citizens acquire the right of permanent residence after residing legally for a continuous period of five years in the host Member State and that that right is not subject to the conditions referred to in the preceding paragraph. As stated in recital 18 in the preamble to the directive, once obtained, the right of permanent residence should not be subject to any further conditions, with the aim of it being a genuine vehicle for integration into the society of that State.
46. It follows that the concept of legal residence implied by the terms ‘have resided legally’ in Article 16(1) of Directive 2004/38 should be construed as meaning a period of residence which complies with the conditions laid down in the directive, in particular those set out in Article 7(1).
47. Consequently, a period of residence which complies with the law of a Member State but does not satisfy the conditions laid down in Article 7(1) of Directive 2004/38 cannot be regarded as a ‘legal’ period of residence within the meaning of Article 16(1).
51. In the light of the foregoing, the answer to Question 1 is that Article 16(1) of Directive 2004/38 must be interpreted as meaning that a Union citizen who has been resident for more than five years in the territory of the host Member State on the sole basis of the national law of that Member State cannot be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not satisfy the conditions laid down in Article 7(1) of the directive.
Question 2
56. It must be observed at the outset that the Act of Accession of a new Member State is based essentially on the general principle that the provisions of European Union law apply ab initio  and in toto  to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions (see Case 420/07 Apostolides [2009] ECR I‑3571, paragraph 33 and the case‑law cited).
57. Thus, with regard to Article 6 of the EEC Treaty (now Article 6 of the EC Treaty, which became, after amendment, Article 12 EC) and Articles 48 and 51 of the EC Treaty (now, after amendment, Articles 39 EC and 42 EC, respectively), the Court has had occasion to hold that where the Act concerning the conditions of accession of a Member State contains no transitional provisions concerning the application of those articles, they must be considered to be immediately applicable and binding as regards that Member State as from the date of its accession to the European Union, and, since that date, they may therefore be relied on by nationals from any Member State and be applied to the present and future effects of situations arising before the accession of that State to the European Union (Case C‑122/96 Saldanha and MTS  [1997] ECR I‑5325, paragraph 14; Case C‑195/98 Österreichischer Gewerkschaftsbund  [2000] ECR I‑10497, paragraph 55; and Case C‑290/00 Duchon [2002] ECR I‑3567, paragraph 44).
58. Furthermore, the Court has also held that the provisions on citizenship of the European Union are applicable as soon as they enter into force and must therefore be applied to the present effects of situations arising previously (see Case C‑224/98 D’Hoop  [2002] ECR I‑6191, paragraph 25, and Lassal , paragraph 39).
62. However, provided the person concerned can demonstrate that such periods were completed in compliance with the conditions laid down in Article 7(1) of Directive 2004/38, the taking into account of such periods from the date of accession of the Member State concerned to the European Union 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 (see Lassal , paragraph 38).
63. In the light of the foregoing considerations, the answer to Question 2 is that periods of residence completed by a national of a non‑Member State in the territory of a Member State before the accession of the non‑Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.
Costs