Keywords
Summary

Keywords

1. Citizenship of the European Union – Right to move and reside freely in the territory of the Member States – Directive 2004/38 – Right of permanent residence of citizens of the European Union – Acquisition following a period of continuous residence of five years in the host Member State – Periods lawfully completed before the date of the transposition of the directive – Included

(European Parliament and Council Directive 2004/38, Art. 16(1))

2. Freedom of movement for persons – Right of entry and residence of nationals of Member States – Grant of residence permit – Declaratory character not creating rights – Effects

(Council Directives 68/360 and 90/364)

3. Citizenship of the European Union – Right to move and reside freely in the territory of the Member States – Directive 2004/38 – Right of permanent residence of citizens of the European Union – Acquisition following a period of continuous residence of five years in the host Member State – Periods lawfully completed before the date of the transposition of the directive on the basis solely of a residence permit validly issued under Directive 68/360 – Excluded

(European Parliament and Council Directive 2004/38, Art. 16(1) and (4); Council Directive 68/360)

Summary

1. Continuous periods of residence of five years, completed before the date of transposition of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, namely, 30 April 2006, in accordance with earlier instruments of Union law, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1) of that directive. Second, absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date, are not such as to affect the acquisition of the right of permanent residence pursuant to Article 16(1) of that directive.

(see para. 35)

2. The right of nationals of one Member State to enter the territory of another Member State and to reside there for the purposes intended by the EC Treaty is a right conferred directly by the Treaty or, as the case may be, by the provisions adopted for its implementation. The grant of a residence permit to a national of a Member State is to be regarded, not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of European Union law. The declaratory character of residence permits means that those permits merely certify that a right already exists. Consequently, just as that character means that a citizen’s residence may not be regarded as illegal, within the meaning of European Union law, solely on the ground that he does not hold a residence permit, it precludes a Union citizen’s residence from being regarded as legal, within the meaning of European Union law, solely on the ground that such a permit was validly issued to him.

(see paras 48, 54)

3. Article 16(1) and (4) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, must be interpreted as meaning that:

– periods of residence completed before 30 April 2006 on the basis solely of a residence permit validly issued pursuant to Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, without the conditions governing entitlement to any right of residence having been satisfied, cannot be regarded as having been completed legally for the purposes of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, and

– periods of residence of less than two consecutive years, completed on the basis solely of a residence permit validly issued pursuant to Directive 68/360, without the conditions governing entitlement to a right of residence having been satisfied, which occurred before 30 April 2006 and after a continuous period of five years’ legal residence completed before that date, are not such as to affect the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38.

Even though Article 16(4) of Directive 2004/38 refers only to absences from the host Member State, the integration link between the person concerned and that Member State is also called into question in the case of a citizen who, while having resided legally for a continuous period of five years, then decides to remain in that Member State without having a right of residence. In that regard, integration, which lies behind the acquisition of the right of permanent residence laid down in Article 16(1) of Directive 2004/38 is based not only on factors of time and space but also on qualitative elements, relating to the level of integration in the host Member State.

(see paras 63-64, 67, operative part)