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09 januari 2012

Ziolkowski: A Cautious Judgment on the EU Right of Permanent Residence

We are pleased to publish this guest post from Stephen Coutts, a researcher at the European University Institute. Stephen is a graduate of University College Cork and the College of Europe (Bruges). His doctoral research focusses on the relationship between EU citizenship and the area of freedom, security and justice in the EU. Stephen is the EU Correspondent for the Irish Yearbook of International Law.

Handed down on the 21st of December by the Grand Chamber of the Court of Justice, Ziolkowski is the latest in a series of cases clarifying and refining the right of permanent residence contained in Directive 2004/38(the Citizenship Directive). Following cases C-325/09 Dias and C-169/09 Laval Ziolkowski addresses the requirement of five years prior legal residence and specifically whether periods of residence under national law, rather than EU law, can be taken into account when deciding on permanent residence.
The cases concerned applications by two Polish nationals in Germany for permanent residence under Article 16 of the Citizenship Directive. Permanent residence is to be granted to EU citizens after five years of continuous legal residence in another member state. Alongside increased protection from expulsion, the status of permanent residence ensures that citizens no longer have to comply with conditions that must be met by those without that status – such as having sufficient resources and adequate medical insurance. Whereas much of the Citizenship Directive merely codified and updated pre-existing rules, the right of permanent residence was considered a genuine innovation. Ziolkowski is the latest in a series of cases clarifying the scope and nature of this right contained in Chapter IV of the Directive and the conditions of its acquisition.
Both applicants had been resident in Germany since 1989 under a scheme of subsidiary protection and were reliant on social assistance. In 2005 both sought and were refused permanent residence as EU citizens as well as an extension of their residence based on subsidiary protection. After a number of appeals a preliminary reference was made to the Court of Justice seeking clarification on the conditions attached to a right of permanent residence. In particular it asked whether a period of residence based purely on national law during which the applicant did not fulfil the condition of sufficient resources could be considered when granting a right of permanent residence. A secondary issue concerned the fact that these periods of residence took place before the accession of the applicants’ home state, Poland, to the EU.
The Court of Justice found that the concept of legal residence contained in Article 16 of the Directive was an autonomous concept of EU law and was therefore to be interpreted according to its context and purpose rather than by reference to national law. Following an analysis of other provisions in the Directive, in particular Recital 17, and looking at its general scheme, the Court concluded that legal residence is to mean residence in compliance with the conditions contained in Article 7 of the Directive, namely sufficient resources and medical insurance.
In answering the second question the Court found that, unless otherwise provided for, upon a state’s accession its nationals can rely on rights contained in EU law. In the context of citizenship rights this does not amount to giving retrospective application to the law but merely gives present legal effect to situations arising previously. Therefore, while individuals cannot have resided in another member state under EU law prior to their home state’s accession, if their residence under national law fulfilled the conditions of sufficient resources and medical insurance, it can be taken into account when granting the right of permanent residence.
The judgment confirms the Court’s interpretative approach towards the Citizenship Directive as one based on a contextual and teleological reading of the provisions. In particular it reiterates the three forms of residence under the directive and focuses on the integration-based rationale of permanent residence. Interestingly, and unusually, the Court makes reference to legislative intent and explicitly relies on travaux preparatoires in interpreting the directive.
The Court appears to endorse the accepted opinion that the right of permanent residence was a novelty of the Citizenship Directive. The finding the rights of free movement and residence were part of the Treaty and thereby had ‘constitutional status’ was a key moment in the strengthening of EU citizenship rights. Unlike the core rights of free movement and residence, the right of permanent residence does not derive from the treaty but was created by the directive.  While the exact implications of this finding remain to be seen, it may have an impact on the nature and degree of protection afforded individuals under future judicial review proceedings.
Finally and of most immediate practical importance, Ziolkowski develops and refines the concept of ‘legal residence’ in the context of applications for permanent residence. The directive can give present legal effect to residence enjoyed prior to the application of the Directive, thereby confirming Laval. Such residence can be based on either national or EU law, however it must be in compliance with the conditions contained in Article 7 of the Directive. Following Ziolkowski and Dias, it is clear that it is not the precise legal form of the residence that is important, but rather its substantive quality and the conditions under which it was exercised.


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