29.6.2013   

EN

Official Journal of the European Union

C 189/12

1.

Can it be said that the spouse of an EU national who was not at the time himself a national of a Member State has ‘legally resided with the Union citizen in the host Member State for a continuous period of five years’ for the purposes of Article 16(2) of Directive 2004/38/EC (1), in circumstances where the couple had married in May 1999, where a right of residency was granted in October 1999 and where by early 2002 at the absolute latest the parties had agreed to live apart and where both spouses had commenced residing with entirely different partners by late 2002?

2.

If the answer to Question 1 is in the affirmative and bearing in mind that the third country national claiming a right to permanent residence pursuant to Article 16(2) based on five years continuous residence prior to April 2006 must also show that his or her residency was in compliance with, inter alia, the requirements of Article 10(3) of Regulation (EEC) No. 1612/68 (2), does the fact that during the currency of that putative five year period the EU national left the family home and the third country national then commenced to reside with another individual in a new family home which was not supplied or provided for by (erstwhile) the EU national spouse mean that the requirements of Article 10(3) of Regulation 1612/68 are not thereby satisfied?

3.

If the answer to Question 1 is in the affirmative and the answer to Question 2 is in the negative, then for the purposes of assessing whether a Member State has wrongfully transposed or otherwise failed properly to apply the requirements of Article 16(2) of the 2004 Directive, is the fact that the national court hearing an action for damages for breach of Union law has found it necessary to make a reference on the substantive question of the plaintiff’s entitlement to permanent residence is itself a factor to which that court can have regard in determining whether the breach of Union law was an obvious one?