24.10.2009

Official Journal of the European Union

C 256/13

(Case C-325/09)

2009/C 256/26

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: Secretary of State for the Home Department

Defendant: Maria Dias

Questions referred

1.If a European Union citizen, present in a Member State of which she is not a national, was, prior to the transposition of Directive 2004/38/EC, the holder of a residence permit validly issued pursuant to Article 4(2) of Directive 68/360/EEC, but was for a period of time during the currency of the permit voluntarily unemployed, not self-sufficient and outside the qualifications for the issue of such a permit, did that person by reason only of her possession of the permit, remain during that time someone who ‘resided legally’ in the host Member State for the purpose of later acquiring a permanent right of residence under Article 16(1) of Directive 2004/38/EC?

2.If five years’ continuous residence as a worker prior to 30 April 2006 does not qualify to give rise to the permanent right of residence created by Article 16(1) of Directive 2004/38/EC, does such continuous residence as a worker give rise to a permanent right of residence directly pursuant to Article 18(1) of the EU Treaty on the grounds that there is a lacuna in the Directive?

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

OJ L 158, p. 77

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

OJ L 257, p. 13