Brussels, 03/01/2012 (Agence Europe) - In a decision on 21 December 2011 (Joint Affairs C-424/10 and C-425/10), the EU Court of Justice ruled that a right of permanent residence in EU member states can only be acquired through periods of residence that satisfy the conditions laid down by EU law.
The European Court of Justice (CJEU) delivered this verdict in response to the German Federal Administrative Court, which had been called upon to decide the case of two Polish nationals - without employment or sufficient own resources - who had been refused a right of permanent residence in Germany in 2005 although they had resided there in full legality during more than five years. As the Polish nationals disputed the German court's refusal, the German court asked the CJEU whether, in essence: - periods of residence completed in the territory of the host member state in compliance with national law alone may be regarded as periods of legal residence within the meaning of EU law; - and whether periods of residence completed by nationals of a non-member state before the accession of that state to the EU must be taken into account when calculating the five-year period of residence necessary for acquiring a right of permanent residency.
The notion of “legal residence” contained in Directive 2004/38/EC (right of EU citizens to move freely on member state territory) must be regarded as designating an autonomous concept of EU law, which must be interpreted in a uniform manner throughout the member states, the Court explains. On this basis, an EU citizen who has resided for over five years on the territory of a host member state “in compliance with national law alone” cannot claim the right to permanent residency if, during that stay (five years of uninterrupted residency at least), he/she did not meet the other conditions set out in Directive 2004/38/EC (i.e. employment or sufficient own resources as well as full health insurance in the host member state).
Furthermore, periods of residence completed by a national of a non-member state in the territory of a member state before accession of that non-member state to the EU must be taken into account in calculating the period required for the acquisition of a right of permanent residency (five years of residency minimum), as long as that period of residency was in line with the conditions laid down in EU law. (FG/transl.jl)