10.9.2011

Official Journal of the European Union

C 269/5

(Case C-325/09)(1)

(Free movement of persons - Directive 2004/38/EC - Article 16 - Right of permanent residence - Periods completed before the date of transposition of that directive - Legal residence - Residence based solely on a residence permit issued pursuant to Directive 68/360/EEC, without the conditions governing eligibility for any right of residence having been satisfied)

2011/C 269/06

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: Secretary of State for Work and Pensions

Defendant: Maria Dias

Re:

Reference for a preliminary ruling — Court of Appeal (England & Wales) (Civil Division) — Interpretation of Article 16(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) — Interpretation of Article 18(1) of the EC Treaty — Right of permanent residence — Concept of legal residence — Citizen of the Union, holder of a five-year residence permit for the United Kingdom issued in accordance with Article 4(2) of Directive 68/360/EEC, whose period of residence was interrupted by a period of voluntary unemployment — Permit issued before entry into force of Directive 2004/38/EC — Taking into consideration of periods of residence completed before the date of entry into force of the directive?

Operative part of the judgment

Article 16(1) and (4) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, 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 Council Directive 68/360/EEC of 15 October 1968 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 prior to that date, are not such as to affect the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38.

*

(1) OJ C 256, 24.10.2009.