Araceli Turmo , 19 janvier 2012

In Joined Cases Ziolkowski v Land Berlin and Szeja and Others v Land Berlin (C-424 and 425/10), the Court has ruled on the question whether the right of permanent residence, provided for in Article 16 of Directive 2004/38, may be acquired taking into account periods of residence completed before the accession of the person’s State of origin to the European Union. According to Article 16(1), ‘Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there’.

In the dispute at issue in the main proceedings, two Polish nationals, who had arrived in Germany before the accession of Poland to the European Union and had been granted a right of residence under the national law of that Member State, were refused permanent residence because they were not in employment or able to prove that they could support themselves economically. The Bundesverwaltungsgericht referred to the Court two questions asking whether periods of residence of more than five years, completed on the basis of national law, and during which the Union citizen did not fulfil the conditions laid down in Article 7(1) of Directive 2004/38, and periods of residence which took place before the accession of a Union citizen’s State of origin to the EU, should count towards the period of lawful residence under Article 16(1).

The Court stated that the term “legal residence” in Directive 2004/38 must be regarded as designating an autonomous concept of EU law. It then examined the aims of the directive and its overall context, in the light of which it ruled that the term must be construed as a period of residence which complies with the conditions set out in Article 7(1). This was true regardless of the fact that, under Article 37, Member States may introduce a system more favourable than that established by the directive. Among a number of provisions linking the term “legal residence” to the conditions set out in that article, the Court examined recital 17 of the preamble, which provides that a right of permanent residence should be granted to Union citizens who have resided in the host Member State ‘in compliance with the conditions laid down in this directive’.

As regards the second question, the Court ruled that periods of residence completed before the accession of a Union citizen’s State of origin to the European Union must be taken into account for the purpose of the acquisition of the right of permanent residence. Indeed, according to previous case law, an Act of Accession is based on the general principle that all provisions of European Union law apply ab initio to the State, and the provisions on Union citizenship are applicable as soon as they enter into force, and must be applied to the present effects of situations arising previously. In the absence of transitional provisions concerning the application of these provisions to Poland, Article 16(1) can be relied upon by Polish nationals, and applied to the present and future effects of situations arising before the accession.

The Court thus relied upon a teleological interpretation of Directive 2004/38, and ruled that periods during which a Union citizen, whose State of origin was not yet a Member State, had resided in the European Union on the basis of national law only, must be taken into account for the acquisition of a right of permanent residence. However, such periods must have been completed in compliance with the conditions set in Article 7(1) of Directive 2004/38.

Reproduction autorisée avec l’indication: Turmo Araceli, "The Court of Justice clarifies the rules on the acquisition of the right of permanent residence by nationals of the new Member States", www.ceje.ch, actualité du 19 janvier 2012.