Florea Gusa v Minister for Social Protection and Others.
Date: 2017-12-20
29


The referring court states in that regard that, in the present case, it is not in dispute that Mr Gusa registered as a jobseeker with the relevant employment office for the purposes of Article 7(3)(b) of Directive 2004/38. However, the referring court notes, in essence, that it could be inferred from the wording of point (b) that that provision applies only to persons who are in duly recorded involuntary unemployment after having worked as employed persons for more than one year, and excludes those who, like Mr Gusa, are in an equivalent position after having worked as self-employed persons for that period.
30


However, that interpretation cannot be inferred unequivocally from the wording of that provision.
31


In particular, contrary to the submissions of the respondents in the main proceedings and the United Kingdom Government, the expression ‘involuntary unemployment’ may, depending on the context in which it is used, refer to a situation of inactivity due to the involuntary loss of employment following, for example, a dismissal, as well as, more broadly, to a situation in which the occupational activity, whether on an employed or self-employed basis, has ceased due to an absence of work for reasons beyond the control of the person concerned, such as an economic recession.
32


Furthermore, as regards the words ‘after having been employed’, used notably in the English-language version and in the French-language version (‘après avoir été employé’) of Article 7(3)(b) of Directive 2004/38 and which, as the respondents in the main proceedings in particular have pointed out, did not appear in the initial or amended proposals for a directive submitted by the European Commission (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 (OJ 2001 C 270 E, p. 150), and Amended proposal for a Directive of the European Parliament and of the Council 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(2003) 199 final), it is true that those words could be read as referring to previous work as an employee.
33


However, as the Advocate General noted, in essence, in points 48 and 49 of his Opinion, other language versions of that provision, which are formulated in more neutral terms, do not support that interpretation. In particular, the Greek-language version uses the expression ‘επαγγελματική δραστηριότητα’, thus referring to the pursuit of an ‘occupational activity’, the Italian-language version uses the words ‘aver esercitato un’attività’, referring to the pursuit of an activity, and the Latvian-language version contains the words ‘ir bijis(-usi) nodarbināts(-a)’, referring in general terms to persons who have ‘worked’.
34


According to the settled case-law of the Court, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions established in all the languages of the European Union. Where there is divergence between the various versions, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (judgment of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 27 and the case-law cited).
35


As regards the general scheme of Directive 2004/38, it should be noted that, as Article 1(a) thereof provides, the purpose of the directive is to define, inter alia, the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens.
36


To that end, Article 7(1) of the directive distinguishes, in particular, the situation of economically active citizens from that of inactive citizens and students. That provision does not, however, draw a distinction, within the first category, between citizens working as employed persons and those working as self-employed persons in the host Member State.
37


Thus, as set out in paragraph 27 of the present judgment, Article 7(1)(a) of Directive 2004/38 confers a right of residence on all Union citizens who have the status of ‘workers or self-employed persons’. Similarly, Article 7(3) of that directive refers, in its introductory sentence, to Union citizens who, although no longer ‘worker[s] or self-employed person[s]’, are to retain the status of ‘worker or self-employed person’ for the purposes of Article 7(1)(a).
38


Since, as is apparent from paragraphs 30 to 34 of the present judgment, it cannot be inferred from the wording of Article 7(3)(b) that point (b) covers only the situation of persons who have ceased to work as employed persons and excludes those who have ceased to work as self-employed persons, point (b) must be read, in the light of the general scheme of Directive 2004/38 and, in particular, the introductory sentence of that provision and Article 7(1)(a) of that directive, as applying to both categories of persons.
39


That interpretation is supported by analysis of the objectives of that directive and, specifically, Article 7(3)(b) thereof.
40


First, it is apparent from recitals 3 and 4 of Directive 2004/38 that, with a view to strengthening the fundamental and individual right of all Union citizens to move and reside freely within the territory of the Member States and to facilitating the exercise of that right, the aim of the directive is to remedy the sector-by-sector, piecemeal approach which characterised the instruments of EU law which preceded that directive and which dealt separately, in particular, with workers and self-employed persons, by providing a single legislative act codifying and revising those instruments (see, to that effect, judgment of 19 June 2014, Saint Prix, C‑507/12, EU:C:2014:2007, paragraph 25).
41


To interpret Article 7(3)(b) of that directive as covering only persons who have worked as employed persons for more than one year and excluding those who have worked as self-employed persons for that period would run counter to that purpose.
42


Second, such an interpretation would introduce an unjustified difference in the treatment of those two categories of persons given the objective of that provision, which is to safeguard, by the retention of the status of worker, the right of residence of persons who have ceased their occupational activity because of an absence of work due to circumstances beyond their control.
43


Just as an employed worker may involuntarily lose his job following, for example, his dismissal, a person who has been self-employed may find himself obliged to stop working. That person might thus be in a vulnerable position comparable to that of an employed worker who has been dismissed. In those circumstances, there would be no justification for that person being ineligible for the same protection, as regards retention of his right of residence, as that afforded to a person who has ceased to be employed.
44


Such a difference in treatment would be particularly unjustified in so far as it would lead to a person who has been self-employed for more than one year in the host Member State, and who has contributed to that Member State’s social security and tax system by paying taxes, rates and other charges on his income, being treated in the same way as a first-time jobseeker in that Member State who has never carried on an economic activity in that State and has never contributed to that system.
45


It follows from all of the foregoing that a person who has ceased to work in a self-employed capacity, because of an absence of work owing to reasons beyond his control, after having carried on that activity for more than one year, is, like a person who has involuntarily lost his job after being employed for that period, eligible for the protection afforded by Article 7(3)(b) of Directive 2004/38. As set out in that provision, that cessation of activity must be duly recorded.
46


Accordingly, the answer to the first question is that Article 7(3)(b) of Directive 2004/38 must be interpreted as meaning that a national of a Member State retains the status of self-employed person for the purposes of Article 7(1)(a) of that directive where, after having lawfully resided in and worked as a self-employed person in another Member State for approximately four years, that national has ceased that activity, because of a duly recorded absence of work owing to reasons beyond his control, and has registered as a jobseeker with the relevant employment office of the latter Member State.