1.

Jobseekers exercise their right to freedom of movement under Articles 45 and 21 TFEU simultaneously: ( 2 ) an EU citizen seeking employment is a worker within the meaning of Article 45 TFEU. Jobseekers are therefore where the internal market and Union citizenship meet.

2.

That is the context in which I will examine this reference to the Court for a preliminary ruling, from the Conseil d’État (Council of State, Belgium), concerning the interpretation of Article 45 TFEU and Directive 2004/38/EC, ( 3 ) in particular Article 14(4)(b) and Articles 15 and 31.

3.

The context of this case is an application by a Greek national for a right of residence for more than three months as a jobseeker, where the competent Belgian authority has issued a refusal decision combined with an order to leave the territory.

4.

The questions posed by the referring court in this case concern, in essence, first, the extent of the rights and obligations of jobseekers under Article 14(4)(b) of Directive 2004/38, in particular in relation to the burden of proof, and, secondly, whether the Member States must allow jobseekers a reasonable period of time in which to seek employment, which may not be less than six months. Those questions provide the Court with an opportunity to clarify the extent of the procedural safeguards under Directive 2004/38 for jobseekers subject to an expulsion order.

5.

Paragraph 1 of Article 6 of Directive 2004/38, entitled ‘Right of residence for up to three months’ provides:

‘Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.’

6.

Article 14 of that directive, entitled ‘Retention of the right of residence’, provides in paragraph (4)(b):

‘By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

…

7.

Article 15 of that directive, entitled ‘Procedural safeguards’, provides in paragraph 1:

‘The procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health.’

8.

Article 31 of that directive, entitled ‘Procedural safeguards’, provides in paragraphs 1 and 3:

‘1.   The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

…

3.   The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.’

9.

Article 39/2(2) of the loi sur l’accès au territoire, le séjour, l’établissement des étrangers et l’éloignement des étrangers du 15 décembre 1980 (Law of 15 December 1980 on access to the territory, residence, establishment of aliens and expulsion of aliens ( 4 ) (the ‘Law of 15 December 1980’) provides:

‘The Conseil [du contentieux des étrangers (Council for asylum and immigration proceedings)] shall rule by way of judgments on actions for annulment on the ground of infringement of essential procedural requirements or those whose breach leads to nullity, abuse or misuse of powers.’

10.

According to Article 40(4) of that law:

‘4.   Any EU citizen is entitled to reside in the Kingdom for a period in excess of three months if he satisfies the requirement under Article 41(1), and:

1. if he is in employment or is self-employed in the Kingdom or if he enters the Kingdom to seek employment, provided he is able to prove that he is continuing to seek employment and has a genuine chance of being engaged’.

11.

Under Article 50(1) and 50(2)(3)(a) and (b) of the arrêté royal du 8 octobre 1981 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Royal Decree of 8 October 1981 on access to the territory, residence, establishment and expulsion of aliens) ( 5 ) (‘the Royal Decree of 8 October 1981’):

‘1.   An EU citizen who intends to reside for more than three months in the territory of the Kingdom and proves that he holds his citizenship in accordance with Article 41(1) of the Law [of 15 December 1980] shall apply to the authorities of the commune where he resides for a certificate of registration, using a document in accordance with the standard form in Annex 19.

…

2.   The EU citizen must provide the following documents at the time of the application or within three months thereof at the latest as applicable:

…

(3) jobseeker:

12.

On 27 October 2015, G. M. A., a Greek national, applied for a certificate of registration in Belgium in order to obtain a right of residence for more than three months as a jobseeker in that Member State.

13.

On 18 March 2016, the Office des étrangers de Belgique (Immigration Office, Belgium) (‘the Office’) issued a decision rejecting that application on the ground that G. M. A. did not satisfy the requirements laid down by the Belgian legislation to be entitled to a right of residence in excess of three months (‘the contested decision’). According to the Office, first, the documents produced by G. M. A. did not suggest that he had a genuine chance of being engaged and, secondly, G. M. A. had not yet worked as an employee in Belgium since his application for a certificate of registration. The Belgian authorities therefore instructed G. M. A. to leave Belgian territory within 30 days from the contested decision.

14.

By a judgment of 28 June 2018, the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, ‘The CCE’), the court with jurisdiction to examine at first instance the legality of decisions of the Office, dismissed the appeal brought by G. M. A. against the contested decision.

15.

G. M. A. then lodged an appeal in cassation before the referring court. He has contended, in the first place, that it follows from Article 45 TFEU and from the judgment in Antonissen ( 6 ) that, first, the Member States have a duty to allow jobseekers from a different Member State a ‘reasonable period of time’ to acquaint themselves, in the host Member State, with potentially suitable employment opportunities and take the necessary steps to obtain employment; secondly, that period of time cannot in any circumstances be less than six months; and, thirdly, the host Member State must permit jobseekers to stay within its territory for the whole of that period, without requiring them to prove that they have a genuine chance of obtaining employment. According to G. M. A., it is also apparent from reading Article 7(3) in conjunction with Articles 11 and 16 of Directive 2004/38 that a period of less than six months cannot be regarded as ‘reasonable’.

16.

In the second place, G. M. A. has argued that, subsequent to adoption of the contested decision, that is to say, on 6 April 2016, he had been engaged as a trainee by the European Parliament. That fact demonstrated that G. M. A. had a genuine chance of being engaged and that he was therefore entitled to a right of residence of more than three months. By failing to take his engagement into consideration, the CCE has therefore infringed Articles 15 and 31 of Directive 2004/38 and Articles 41 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). According to G. M. A., it is apparent from those articles that the courts with jurisdiction to review the legality of an administrative decision on the right of residence of an EU citizen are required to carry out an exhaustive examination of all the relevant circumstances and to take into consideration all the factual matters brought to their attention, even if those matters postdate the decision at issue.

17.

In the light of those considerations, G. M. A. claims that the CCE should have disapplied the national rules of procedure incorrectly transposing Articles 15 and 31 of Directive 2004/38, that is to say, Article 39/2(2) of the Law of 15 December 1980, in reliance upon which the CCE disregarded the fact that he was engaged as a trainee after the contested decision.

18.

The referring court is of the view that the outcome of the dispute in the main proceedings depends on how the Court interprets the provisions of EU law at issue in the main proceedings. If Article 45 TFEU or Articles 41 and 47 of the Charter and Articles 15 and 31 of Directive 2004/38 must be interpreted in the sense advocated by G. M. A., he should indeed enjoy a right of residence for more than three months.

19.

Under those circumstances the Conseil d’État (Council of State, Belgium) decided, by decision of 12 September 2019, received at the Court Registry on 25 September 2019, to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

20.

G. M. A., the Belgian, Danish, Polish and United Kingdom Governments and the European Commission filed written observations. Taking the view that it had sufficient information to give a ruling, the Court has decided not to hold a hearing.

21.

I would call to mind that the Court has already held that it is clear from both the wording and the scheme of Article 267 TFEU that the preliminary ruling procedure presupposes that a dispute is actually pending before the national courts in which they are called upon to give a decision which is capable of taking account of the preliminary ruling. Therefore, the Court may verify of its own motion that the dispute in the main proceedings is continuing. ( 7 )

22.

In the present case, the dispute in the main proceedings concerns the rejection of an application for a certificate of registration as a jobseeker in Belgium, made by G. M. A. on 27 October 2015 in order to obtain a right of residence for more than three months in that Member State, the Conseil d’État (Council of State, Belgium) having been seised of an appeal against the CCE’s judgment of 28 June 2019 dismissing the appeal lodged by the person concerned against the contested decision.

23.

However, it can be seen from the order for reference and from the observations of the Commission that, following a fresh application made by G. M. A. on 25 April 2016, the Commune of Schaerbeek (Belgium) issued him with a certificate of registration on 6 May 2017 and that, since 24 November 2016, G. M. A. has held an E card valid until 7 July 2021.

24.

The Commission is therefore of the view that it is unnecessary to answer the second question referred because G. M. A.’s application to register as a jobseeker has become devoid of purpose.

25.

Nevertheless, the referring court considers there still to be an interest in cassation, in the light, in essence, of the possibility of obtaining a permanent right of residence more quickly were the contested decision to be annulled. In such a situation, the continuous period of five years’ residence required under Article 16 of Directive 2004/38 in order to obtain a permanent right of residence would begin to run from the date on which he applied for a certificate of registration in Belgium, that is to say, 27 October 2015.

26.

My view is therefore that the dispute in the main proceedings is still pending before the referring court and that the Court’s answer to the second question referred remains of use to resolution of that dispute.

27.

I would call to mind at the outset that according to settled case-law, in the procedure for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. ( 8 )

28.

In that regard, the first question referred undoubtedly concerns the interpretation of Article 45 TFEU. However, in order to provide the referring court with a useful answer and mindful of the facts and circumstances set out in its decision, that question should be understood as meaning that, by that question, the referring court is asking, in essence, whether Article 45 TFEU and Article 14(4)(b) of Directive 2004/38 are to be interpreted as meaning that the host Member State is required, first, to allow jobseekers a reasonable period of time to enable them to acquaint themselves with potentially suitable employment opportunities and take the necessary steps to obtain employment, secondly, to accept that the time allowed for seeking employment cannot in any circumstances be less than six months and, thirdly, to permit jobseekers to stay within its territory for the whole of that period, without requiring them to prove that they have a genuine chance of obtaining employment.

29.

To answer that question, I will undertake a two-stage analysis. First, I will set out the scope of the right of freedom of movement of nationals of one Member State who are seeking employment in another Member State, as is apparent from Article 45 TFEU, interpreted by the Court in its case-law, specifically in the Antonissen judgment. ( 9 ) Secondly, I will examine the extent of the rights of jobseekers under Article 14(4)(b) Directive 2004/38, interpreted in the light of Articles 21 and 45 TFEU, having regard to the circumstances of this case and within the framework of Directive 2004/38.

30.

First, I would recall that Article 45 TFEU provides that freedom of movement for workers is to be secured within the Union and includes a right, subject to limitations justified on grounds of public policy, public security or public health, to accept offers of employment actually made and to move freely within the territory of Member States for that purpose. It therefore follows from that article that a national of a Member State who is seeking employment is entitled to move freely within the territory of other Member States.

31.

Secondly, several judgments warrant attention in relation to the right of nationals of one Member State to enter the territory of another Member State and reside there, for the purposes intended by Article 45 TFEU, in particular to look for or pursue an occupation or activities as employed or self-employed persons, in particular the judgments in Royer, ( 10 )Antonissen ( 11 ) and Commission v Belgium ( 12 )

32.

The Court referred to the right of residence for jobseekers for the first time in Royer. In that judgment, it held that the right in question is a right conferred directly by Article 48 of the EEC Treaty (now Article 45 TFEU) or, depending on the case, by the provisions adopted for its implementation. ( 13 )

33.

The Antonissen judgment ( 14 ) is particularly important among that line of cases because, like the case under analysis, it concerns whether the legislation of a Member State may impose a temporal limitation on the right of residence of nationals of other Member States for the purpose of seeking employment. That judgment arose from a request for a preliminary ruling made by an English court in proceedings between a Belgian national and the United Kingdom authorities concerning a decision by those authorities rejecting an appeal against a deportation order.

34.

The Court began by recalling that the freedom of movement for workers laid down in Article 48(1) to (3) of the EEC Treaty (now Article 45(1) to (3) TFEU) forms one of the foundations of the Union, that the provisions laying down that freedom must be given a broad interpretation and that a strict interpretation of that article would jeopardise the actual chances that a national of a Member State who is seeking employment will find it in another Member State, and would, as a result, make that provision ineffective. ( 15 ) The Court also stated that Article 48(3) of the EEC Treaty (now Article 45(3) TFEU) enumerates, in a non-exhaustive way, certain rights benefiting nationals of Member States in the context of the free movement of workers and that this freedom entails the right for such nationals to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment. ( 16 )

35.

The Court then analysed whether the right to stay that a national of a Member State who is seeking employment in another Member State derives from Article 48 of the EEC Treaty (now Article 45 TFEU) could be limited in time. It found that the effectiveness of that article was secured because the EU legislation or, in its absence, the legislation of a Member State, gives persons concerned a reasonable period of time in which to apprise themselves, in the territory of the Member State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged. ( 17 )

36.

Lastly, the Court rejected three months as an appropriate period for the duration of that right to stay. ( 18 ) It nevertheless also stated that, in the absence of an EU provision prescribing the period during which nationals of other Member States seeking employment in a Member State may stay there, a period of six months does not appear in principle to be insufficient and that such a time limit does not jeopardise the effectiveness of the principle of free movement. The Court nevertheless added that if, after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State. ( 19 )

37.

It also seems appropriate to note at this stage that, according to the Court’s settled case-law, the concept of ‘worker’ within the meaning of Article 45 TFEU has a specific independent meaning and must not be interpreted narrowly. ( 20 ) Indeed, in so far as that concept defines the scope of a fundamental freedom provided for by the FEU Treaty, it must be interpreted broadly. ( 21 ) In that vein, the Court has already had occasion to clarify that a ‘person who is genuinely seeking work’ must be classified as a ‘worker’ within the meaning of Article 45 TFEU. ( 22 )

38.

Thirdly and lastly, I would highlight that, after the introduction of EU citizenship into the Treaties, the conditions for jobseekers to retain their right of residence established in Antonissen ( 23 ) have been affirmed by the Court, inter alia in Commission v Belgium, ( 24 ) in which it held that a Member State infringes its obligations under Article 48 EC (now Article 45 TFEU) in automatically requiring nationals of other Member States who are looking for employment in its territory to leave that territory on expiry of a period of three months.

39.

After the introduction of EU citizenship into the Treaties and the adoption of Directive 2004/38, the conditions for jobseekers to retain their right of residence established in Antonissen, ( 25 ) on which the Court is asked to rule in this case, were codified in Article 14(4)(b) of that directive.

40.

I will now examine the first question referred in the light of those considerations.

41.

Today, Article 21 TFEU provides that every citizen of the Union has the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and in the measures adopted to give them effect. In the case of jobseekers, Article 14(4)(b) of Directive 2004/38 accordingly provides that citizens of the Union who enter the territory of the host Member State in order to seek employment in that State may not be expelled from that State for as long as they can provide evidence that they are continuing to seek employment and have a genuine chance of obtaining employment.

42.

Nevertheless, even if, by means of that article, the EU legislature codified the conditions laid down by the Court for jobseekers to retain the right of residence, reproducing the terms of the judgment in Antonissen, ( 26 ) that article does not specify whether the host Member State has a duty to give those jobseekers a reasonable period of time to enable them to acquaint themselves with potentially suitable employment opportunities and take the necessary steps to obtain employment. It should also be noted that Article 14(4)(b) of Directive 2004/38 makes no mention of the six-month period considered ‘reasonable’ by the Court in that judgment.

43.

I will now address that last point. I would signal at this stage that I concur with the Commission’s view that Article 14(4)(b) of Directive 2004/38 must be interpreted bearing in mind the fact that the right of residence of jobseekers is directly guaranteed by Article 45 TFEU, as interpreted by the Court in its case-law.

44.

I would note at the outset that all intervening parties that have submitted observations in the proceedings take the view that the host Member State must give jobseekers a reasonable period of time.

45.

I share that view. Indeed, as I have indicated, it can be seen both from Antonissen ( 27 ) and from subsequent case-law ( 28 ) that, since the EU legislation does not expressly establish any limitation on the right of residence of jobseekers, to ensure that Article 45 TFEU is not rendered ineffective, the Member States are required to allow the persons concerned a reasonable period of time in which to apprise themselves, in the territory of the Member State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged. ( 29 )

46.

The question arises however of whether Article 14(4)(b) of Directive 2004/38, read in the light of Article 45 TFEU, as interpreted by the Court in its case-law, requires the Member States to give a citizen of the Union who is seeking employment in the host Member State a minimum time period of six months.

47.

The parties differ in how to interpret paragraph 21 of the Antonissen ( 30 ) judgment and, therefore, Article 45 TFEU and Article 14(4)(b) of Directive 2004/38. G. M. A. and the Commission submit in their written observations that the Member States must give jobseekers a period of at least six months in which they are not obliged to prove that they have a genuine chance of being engaged. The Belgian, Danish and United Kingdom Governments, by contrast, contend that paragraph 21 of that judgment cannot be interpreted as requiring the Member States to give jobseekers a minimum period of six months, and that jobseekers must prove throughout that period that they have a genuine chance of being engaged.

48.

For the reasons I will set out in this Opinion, I do not entirely share either of those points of view.

49.

First, I would recall that Directive 2004/38 was adopted under, inter alia, Article 40 of the EC Treaty (now Article 46 TFEU) which concerned measures intended to give effect to the freedom of movement for workers as it was defined in Article 39 (now Article 45 TFEU).

50.

Secondly, I would emphasise that the purpose of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States, which is conferred directly on citizens of the Union by Article 21(1) TFEU, and to strengthen that right. ( 31 )

51.

In view of that objective, the EU legislature established a system that covers different types of rights for different categories of citizens. This case concerns, first, the right of residence for up to three months under Article 6 of Directive 2004/38, which is not subject to any condition or any formal requirement other than the requirement to be in possession of a valid identity card or passport, ( 32 ) and, secondly, the right of residence for more than three months which is, in contrast, contingent on the conditions set out in Article 7(1) of Directive 2004/38. Accordingly, even though, under Article 6 of Directive 2004/38, all Union citizens have a right of residence in the territory of another Member State for a period of up to three months, the right of residence for more than three months, laid down in Article 7 of that directive, ( 33 ) is conferred only on certain categories of citizens (those who are active and inactive as well as students) who meet the conditions listed in that article (which include being a worker or self-employed person, having sufficient resources and comprehensive sickness insurance cover or following a course of study, including vocational training). ( 34 )

52.

However, Article 14 of Directive 2004/38, entitled ‘Retention of the right of residence’, refers, in paragraph (4)(b), to a category of Union citizens ( 35 ) that is not mentioned anywhere in Article 7 of that directive and which, therefore, is not subject to the conditions laid down in that article, that is to say, jobseekers who are looking for work in the host Member State for the first time. Article 14(4) in fact establishes a derogation from Articles 6 and 7, referred to in Article 14(1) and (2). In the scheme of Directive 2004/38, the right of residence for jobseekers, which derives directly from Article 45 TFEU, is addressed only in Article 14(4)(b), which provides that Union citizens who are seeking employment for the first time and who meet the conditions set out in that article retain their right of residence.

53.

The conditions listed in Article 14(4)(b) of Directive 2004/38 reproduce word-for-word the conditions for the right of residence established by the Court in paragraph 21 of the Antonissen judgment, ( 36 ) in which the Court, after finding that a period of six months did not appear, in principle, insufficient to enable the persons concerned to apprise themselves, in the host Member State, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged, held that ‘if after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State.’ ( 37 )

54.

I recall in that respect that, in the Antonissen judgment, the Court took the view that it is not contrary to the provisions of EU law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required – subject to an appeal – to leave the territory of that State if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged. ( 38 )

55.

Construing the Court’s reasoning as a whole, the meaning to be given to the expressions ‘if after the expiry of that period the person concerned provides evidence’ and ‘if he has not found employment there after six months, unless the person concerned provides evidence’ seems obvious. Indeed, it is clear from that judgment ( 39 ) that although the Court has specified the conditions for retaining the additional right of residence which were subsequently codified by the EU legislature in Article 14(4)(b) of Directive 2004/38, that is to say, that the person concerned must be able to prove, first, that he is continuing to seek employment and, secondly, that he has genuine chances of being engaged, they only apply where the period of time regarded as ‘reasonable’, namely, a period of six months, has expired.

56.

In relation to the first condition, I would stress that the Court and, subsequently, the EU legislature chose to use the expression ‘continuing to seek employment’. It can be clearly discerned from the choice of that verb that jobseekers must prove, initially, that is to say, throughout the period regarded as ‘reasonable’, that they are actually and actively looking for employment and, thereafter, that is to say, once that period has expired, that they ‘are continuing’ actively to look for employment.

57.

In contrast, the second condition, that jobseekers must prove that they have a genuine chance of being engaged, needs to be satisfied only once the period deemed to be ‘reasonable’ has expired.

58.

Not only is that a rational interpretation, it is also in line with the fact that the legislature opted to strengthen the status of jobseekers in Directive 2004/38 by codifying, in Article 14(4), the conditions to be met by EU citizens seeking their first employment in the host Member State in order to retain their right of residence set by the Court’s case-law.

59.

Further, as regards that second condition, the Belgian Government submits in its written observations that G. M. A.’s obligation to show that he had a genuine chance of being engaged, provided for in Article 40(4) of the Law of 15 December 1980, flows from paragraph 38 of the judgment in Vatsouras and Koupatantze. ( 40 ) According to that judgment, it argues, nationals of the Member States seeking employment in another Member State must show that they have established real links with the labour market of that second Member State.

60.

I am not persuaded by that approach which I believe is based on a misinterpretation of the judgment in question.

61.

After all, that requirement on jobseekers, consisting in demonstrating that they have established real links with the labour market of the host Member State in reality, relates only to a situation where the EU citizen seeking employment applies in that Member State for a benefit intended to facilitate access to the labour market, which is not G. M. A.’s situation in the slightest. The Court thus held that it is legitimate for a Member State to grant such a benefit only after it has been possible to establish a real link between the jobseeker and the labour market of that Member State. ( 41 ) It should be borne in mind that Vatsouras and Koupatantze ( 42 ) relies on the judgment in Collins, in which the Court found that any person seeking employment and exercising his right to freedom of movement must establish a ‘link’ with the host State in order to be entitled to jobseeking allowances. ( 43 )

62.

The purpose and the origin of Article 14(4)(b) of Directive 2004/38 likewise support the interpretation proposed in points 51 to 58 of this Opinion.

63.

As regards, in the first place, the purpose of Article 14(4)(b) of Directive 2004/38, recital 9 of that directive clearly states that Union citizens should have the right of residence in the host Member State for a period not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a valid identity card or passport, without prejudice to a more favourable treatment applicable to jobseekers as recognised by the case-law of the Court of Justice. That recital makes it clear, first, that the case-law of the Court, including the Antonissen judgment, ( 44 ) continues to have currency for the purpose of interpreting Article 14(4)(b) of Directive 2004/38 and, secondly, that observance of the conditions set out in that provision for a jobseeker to retain his right of residence cannot be demanded during the three months during which an EU citizen is residing legally in the host Member State. Recital 16 of Directive 2004/38, for its part, states that in no case should an expulsion measure be adopted against jobseekers as defined by the Court save on grounds of public policy or public security.

64.

As regards, in the second place, the origin of Article 14(4)(b) of Directive 2004/38, it is important to recall that Article 6 of the Commission’s initial proposal ( 45 ) and Article 8 of the Parliament’s legislative resolution ( 46 ) envisaged a right of residence for up to six months, not subject to any condition. However, the Council of the European Union amended that article, as can be seen from the statement of reasons of its common position, ( 47 ) in order to set that period at three months, in accordance with the new Article 6 of Directive 2004/38, whilst emphasising that a more favourable treatment is applicable to jobseekers as recognised by the case-law of the Court of Justice. That amendment, made during the legislative process for Directive 2004/38, confirms that the EU legislature intended to strengthen the status of jobseekers, as I have noted in point 63 of this Opinion. It can also be seen from the statement of reasons of that common position that Article 14 of Directive 2004/38 ‘makes clear the circumstances, under which a Member State can expel Union citizens if they no longer meet the conditions for the right of residence.’ ( 48 )

65.

It is plain from both the purpose and the origin of Article 14(4)(b) of Directive 2004/38 that the EU legislature intended that jobseekers looking for employment for the first time in the host Member State should be able to enjoy more favourable treatment, as recognised by the case-law of the Court.

66.

That finding leads me to examine the following question: what should be understood as ‘more favourable treatment’, recognised by the case-law of the Court, in relation to the time period in which to seek employment?

67.

I note, in the first place, that the fact that the EU legislature chose to refer to the case-law of the Court, in particular the Antonissen judgment, ( 49 ) clearly attests, as I have set out in point 63 of this Opinion, to its desire to acknowledge the importance of that case-law in interpreting Article 14(4)(b) of Directive 2004/38 and, therefore, to afford more favourable treatment to jobseekers. Even so, it cannot be considered that, by referring to that case-law, the legislature intended to ratify a fixed time limit of six months. It appears to me that, by stating in that judgment that a six-month period ‘does not appear in principle to be insufficient’ and ‘does not jeopardise the effectiveness of the principle of free movement’, the Court merely found that the six-month period established by the national legislation at issue in that case was a reasonable period.

68.

I would recall, in the second place, that Article 6 of Directive 2004/38 establishes a right of residence of up to three months for all EU citizens on the territory of another Member State, not subject to any conditions.

69.

However, where an EU citizen who has left his Member State of origin with the intention of seeking employment in the host Member State registers as a jobseeker during the first three months of his stay, from the date of that registration he falls within the scope of Article 14(4)(b) of Directive 2004/38. Nevertheless, bearing in mind the fact that, according to the EU legislature, jobseekers enjoy more favourable treatment, as is stated expressly in recital 9 of that directive, a jobseeker cannot be required to prove that he is continuing to seek employment and that he has genuine chances of being engaged during the three months of legal residence available to all Union citizens. ( 50 ) Conversely, during a period regarded as ‘reasonable’ from the end of that legal residence, the national authorities can require jobseekers to provide evidence that they are continuing to seek employment. It is only when that reasonable period expires that those authorities can require the person concerned to be able to prove that he has genuine chances of being engaged.

70.

Similarly, nationals of a Member State who have exercised their right to freedom of movement as Union citizens and, initially, did not intend to seek work in the territory of the host Member State ( 51 ) but who decide, after the expiry of the initial three-month period of residence, to register as jobseekers, fall within the scope of application of Article 14(4)(b) of Directive 2004/38 from that time. Those citizens must therefore have a reasonable period of time to enable them to acquaint themselves, in the host Member State, with offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to obtain employment, with no requirement to be able to prove that they have genuine chances of being engaged.

71.

The two situations described in points 69 and 70 of this Opinion do indeed concern citizens who are looking for employment in the host Member State for the first time.

72.

Moreover, in order to be regarded as reasonable, the period that a jobseeker enjoys after the initial three-month period of legal residence in the territory of the host Member State must be sufficient not to render meaningless the right enshrined in Article 45 TFEU. ( 52 ) Accordingly, a period of three months from the end of the initial three-month period of legal residence does not seem to me unreasonable or, in the Court’s words, ‘does not appear in principle to be insufficient’ and does not jeopardise the effectiveness of Article 45 TFEU. ( 53 )

73.

In addition, in enabling those citizens to be clearly aware of their rights and obligations, the reasonable period of time from the end of the three-month period of legal residence provides a degree of legal certainty and transparency in relation to the right of residence provided for under Article 14(4)(b) of Directive 2004/38 and guaranteed directly by Article 45 TFEU.

74.

Nevertheless, I believe it would be desirable that jobseekers have a fixed period in which to seek initial employment in the host Member State, during which they are not required to be able to prove that they have genuine chances of being engaged. However, the Court cannot supplant the EU legislature, whom it behoves to introduce such a period. To my mind, setting a fixed period would ensure a greater degree of legal certainty and transparency in respect of the right of residence for jobseekers.

75.

I would add, thirdly and lastly, that certain prior checks are needed if it is to be considered that a jobseeker is continuing to seek employment and has genuine chances of being engaged in accordance with Article 14(4)(b) of Directive 2004/38. It is for the national authorities or the national courts to determine whether the citizen in question is actually and genuinely seeking employment. In that regard, the national authority or court can check, among other matters, whether that citizen is registered with the body responsible for jobseekers, is periodically sending applications (a curriculum vitae and a letter of application) or is attending job interviews in respect of offers of employment corresponding to his occupational qualifications.

76.

Moreover, when carrying out those checks, the national authorities or court must also have regard to the situation of the national labour market, that is to say, the average period taken to find employment, in the Member State concerned, ( 54 ) in the sector corresponding to the occupational qualifications of the relevant person. The fact that that person might have refused offers not corresponding to his occupational qualifications cannot be used as a basis for finding that he does not meet the conditions under Article 14(4)(b) of Directive 2004/38.

77.

Further, given that jobseekers are looking for their first employment in the host Member State, the fact that they have never worked in the host Member State cannot be taken into account in the context of the checks referred to as a basis for finding that they do not have genuine chances of being engaged.

78.

It emerges from the foregoing analysis that Member States must allow Union citizens who are seeking employment a reasonable period during which they must prove that they are seeking employment. It is only upon expiry of that period that such citizens must prove, in accordance with Article 14(4)(b) of Directive 2004/38, not only that they are continuing to seek employment, but also that they have genuine chances of being engaged. A period of three months from the end of the initial three-month period of legal residence in the territory of the host Member State does not appear to be unreasonable.

79.

It can be seen from the order for reference and from the documents in the file before the Court that, in his action before the CCE, G. M. A. relied on the fact that on 6 April 2016 he had been engaged as a trainee by the Parliament to show that he had genuine chances of being engaged and that the contested decision should be annulled.

80.

However, in stating that, under Article 39/2(2) of the Law of 15 December 1980, it was reviewing the legality of decisions by the Office and had no power to vary those decisions such as to enable it to have regard to the fact that G. M. A. had been engaged by the Parliament, the CCE did not take that change of circumstances into account.

81.

Against that background, the referring court is uncertain, in essence, whether Articles 15 and 31 of Directive 2004/38, and the principle of effective judicial protection enshrined in Article 47 of the Charter, must be interpreted as meaning that the courts of the host Member State, when examining the legality of a decision refusing the right of residence for more than three months of a Union citizen who is seeking employment, must have regard to any change of circumstances in the jobseeker’s situation occurring subsequent to the decision of the competent authorities restricting that person’s right of residence, disapplying, if necessary, the national procedural provisions if that change of circumstances shows that the jobseeker did enjoy such a right of residence.

82.

The Belgian Government and G. M. A. advance opposing views in that respect.

83.

The Belgian Government argues that, in a situation such as that of G. M. A., it cannot be discerned either from the travaux préparatoires of Directive 2004/38 or from the fact that the provisions of that directive must adhere to Article 47 of the Charter that the national courts must have a right to vary decisions of the national authorities restricting a Union citizen’s right of movement.

84.

In contrast, G. M. A. argues that Articles 15 and 31 of Directive 2004/38 must be interpreted in accordance with Article 47 of the Charter. Accordingly, national courts reviewing the legality of decisions made under the EU rules on the free movement of persons must take into consideration factual matters that occurred after those decisions, where those matters are capable of demonstrating that the jobseeker has genuine chances of being engaged. G. M. A. submits in that regard that the judgment in Orfanopoulos and Oliveri ( 55 ) applies to this case.

85.

Before analysing the Court’s case-law on judicial protection under Articles 15 and 31 of Directive 2004/38, I will briefly look at the procedural safeguards laid down in those articles and whether they apply to decisions restricting the freedom of movement of Union citizens who are seeking employment.

86.

I would call to mind, first, that Article 15 of Directive 2004/38, entitled ‘Procedural safeguards’, states, in paragraph 1, that ‘the procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health.’ ( 56 ) That article therefore governs the procedural safeguards relating to the expulsion of Union citizens who have resided in the host Member State as ‘beneficiaries’ within the meaning of Article 3(1) of that directive.

87.

In the present case, it is common ground that G. M. A. – who is a Greek national and, therefore, a Union citizen – exercised his right to freedom of movement by moving to and residing in a Member State other than that of which he is a national. It follows that G. M. A. is a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 and that his situation falls within the scope of Article 15 of that directive.

88.

Moreover, as I have recalled, Article 15 of Directive 2004/38 appears in Chapter III of that directive which concerns, inter alia, the right of residence for up to three months (Article 6), the right of residence for more than three months (Article 7) and retention of the right of residence established in Articles 6 and 7 of that directive, so long as the beneficiaries of those rights meet the conditions set out in those articles (Article 14). Further, as I have indicated, ( 57 ) Article 14(4) of Directive 2004/38 establishes a derogation from Articles 6 and 7, referred to in Article 14(1) and (2). In that regard, Article 14(4)(b) of that directive establishes the right of residence for Union citizens who are seeking employment ( 58 ) and the conditions which they must meet in order to retain that right.

89.

It is therefore plain not only from the wording of Article 15(1) of Directive 2004/38, but also from its context, and from the purpose of that directive, ( 59 ) that that provision applies to situations that fall under Article 14(4)(b) of the directive. The scope of Article 15(1) of Directive 2004/38 therefore encompasses a decision refusing an application for recognition of a right of residence for more than three months, combined with an order to leave the territory of the host Member State, issued, as is the case in the dispute in the main proceedings, on grounds unrelated to any risk to public policy, public security or public health.

90.

Under those circumstances, the question now arises as to whether Articles 15 and 31 of Directive 2004/38, read in the light of Article 47 of the Charter, must be interpreted as meaning that the national courts must have regard to changes of circumstances occurring after the adoption of the decisions restricting the rights to move and reside freely, disapplying, if necessary, the national procedural provisions if such changes show that the jobseeker did enjoy such a right of residence.

91.

As is apparent from the preceding points, since Article 15(1) of Directive 2004/38 applies to the situations referred to in Article 14(4)(b), ( 60 ) the procedural safeguards laid down in Articles 30 and 31 of that directive also apply, by analogy, to Union citizens seeking employment. Those articles establish a number of procedural safeguards that must be complied with by the Member States in any restriction of the right of residence of a Union citizen.

92.

I therefore believe that I should start by analysing those articles, as interpreted in the Court’s case-law.

93.

I note, as is apparent from that case-law, that Article 31(1) and (3) of Directive 2004/38 is intended to apply in the framework of Article 15 of that directive. ( 61 )

94.

Article 31(1) of Directive 2004/38, for its part, provides that Union citizens have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision restricting their right to move and reside freely in the Member States taken against them on the grounds of public policy, public security or public health.

95.

In that regard, I would recall that the Court has stated, with regard, in particular, to Article 31(1) of Directive 2004/38 and to the right of access to judicial redress procedures which must be granted in accordance with that provision, that, since such procedures form part of the implementation of EU law within the meaning of Article 51(1) of the Charter, the procedural rules governing them, the purpose of which is to safeguard the rights conferred by Directive 2004/38, must comply with, inter alia, the requirements arising from the right to an effective remedy enshrined in Article 47 of the Charter. ( 62 )

96.

Article 31(3) of Directive 2004/38, for its part, provides that the redress procedures must not allow only for an examination of the legality of the decision concerned and of the facts and circumstances on which it is based, but also ensure that the decision in question is not disproportionate. ( 63 )

97.

In that regard, in terms of its review of the discretion enjoyed by the competent national authorities, the Court of Justice has held that the national court must ascertain in particular whether the contested decision is based on a sufficiently solid factual basis. That review must relate to compliance with procedural safeguards, which is of fundamental importance enabling the court to ascertain whether the factual and legal elements on which the exercise of the power of assessment depends were present. ( 64 )

98.

What does this mean in practice for the review that must be carried out by the referring court in the dispute in the main proceedings? That court seems to be of the view that it should be able to examine changes of circumstance occurring subsequent to the decision taken by the competent authorities where those changes are capable of altering the situation of the Union citizen concerned in such a way that it is no longer permissible to restrict that citizen’s rights of residence in the host Member State.

99.

In order to answer that question and to resolve the dispute in the main proceedings, I believe it is helpful to analyse the Orfanopoulos and Oliveri judgment, ( 65 ) which is cited by the parties.

100.

At the outset, I would indicate that, in my view, the solution identified in the Orfanopoulos and Oliveri judgment ( 66 ) can apply mutatis mutandis to G. M. A.’s situation in the context of the dispute in the main proceedings.

101.

In that judgment, the Court interpreted Article 3 of Directive 64/221/EEC, ( 67 ) which preceded Directive 2004/38. ( 68 ) The Court, after having recalled that judicial review, which, by virtue of procedural autonomy, is in principle governed by national procedural law, must be effective, ( 69 ) held, in paragraph 82, that that article precluded a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. ( 70 )

102.

The Court based that approach on the finding that no more specific information as to what constituted the ‘presence’ of the threat was evident from the wording of Article 3 of Directive 64/221 or the Court’s case-law. ( 71 ) In that regard, it also appears to me, as follows from the preceding points, that neither Article 31(1) and (3) of Directive 2004/38 nor the Court’s case-law provides precise and specific information as to whether the court carrying out the judicial review should have regard to changes of circumstances arising after the adoption of the decision by a national authority restricting the right of residence of a Union citizen. Nevertheless, I concur with the Commission’s observation in its response to the Court’s questions that, although the finding made in Orfanopoulos and Oliveri was not expressly reiterated in Article 31(3) of Directive 2004/38, ( 72 ) it clearly cannot be disregarded when interpreting that article. ( 73 )

103.

Against that background, and mindful that the situation at hand concerns the free movement of workers and Union citizenship, it seems to me to be appropriate to analyse the second question in terms of the principle of effectiveness rather than in terms of Article 47 of the Charter.

104.

In the first place, I would call to mind that, according to settled case-law, any national judicial review procedure must enable the court or tribunal hearing an application for annulment of such a decision to apply effectively the relevant principles and rules of EU law when reviewing the lawfulness of the decision. ( 74 )

105.

In the second place, to my mind, the principle of effectiveness requires that the national courts reviewing the discretion enjoyed by the competent national authorities have the ability to take into account changes of circumstances that arise after the adoption of an administrative decision affecting the situation of a Union citizen. After all, the situation of a Union citizen who is seeking employment is inherently capable of evolving after the taking of such a decision. Accordingly, any change of circumstances affecting the situation of the citizen concerned that arises after the competent authorities have taken the decision restricting that citizen’s right of residence must also be taken into account at the time of the judicial review. ( 75 )

106.

In particular, the court conducting the judicial review must be able to take a change of circumstances into consideration where it concerns the application of the conditions set out in Article 14(4)(b) of Directive 2004/38. That provision provides that Union citizens may not be expelled for as long as they meet both the following conditions: being able to provide evidence that they are continuing to seek employment and having genuine chances of obtaining employment.

107.

In the present case, it is common ground that the change of circumstances that arose subsequent to the decision taken by the national authority restricting G. M. A.’s rights of residence – the fact that he was engaged by the Parliament after the contested decision was taken – is closely linked to the conditions of application set out in Article 14(4)(b) of Directive 2004/38.

108.

My view is that national legislation such as that at issue in the main proceedings, which does not allow account to be taken of the development of the situation of a Union citizen, infringes the principle of effectiveness in so far as it prevents the national court from ensuring that Article 14(4)(b) of Directive 2004/38, interpreted in the light of Article 45 TFEU, is effectively applied. Otherwise stated, if the review that the courts with jurisdiction are called upon to conduct could not touch on the conditions set out in Article 14(4)(b) of that directive, the effectiveness of that review would be reduced considerably. In those circumstances, it is incumbent upon the court conducting the judicial review to ensure that the rights flowing from the Treaty and Directive 2004/38 are effectively protected, by disapplying the rule of national law at issue.

109.

Since it is evident from my proposal that the referring court is required to disapply the national rules concerned, I am of the view that it is unnecessary to examine whether those rules are compatible with Article 47 of the Charter.

110.

In the light of the foregoing, my view is that any change of circumstances affecting the situation of a Union citizen who is seeking employment that arises after the competent authorities have taken a decision restricting that citizen’s right of residence must be taken into account at the time of the judicial review of that situation, including where that change concerns the conditions that must be met for a jobseeker to retain his or her right of residence set out in Article 14(4)(b) of Directive 2004/38. In those circumstances, it is incumbent upon the court conducting the judicial review to ensure that the rights flowing from the Treaty and Directive 2004/38 are effectively protected, by disapplying the rule of national law at issue.

111.

In the light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Conseil d’État (Council of State, Belgium) as follows: