According to a decision made by the European Court of Justice on Wednesday 20 December (C-442/16), an EU citizen who, after more than one year, has ceased to work in a self-employed capacity in another Member State because of an absence of work owing to reasons beyond his control retains the status of self-employed person and, consequently, a right to reside in that Member State.
Mr Florea Gusa, a Romanian national, has lived Ireland since 2007. From 2008 to 2012 he worked as a self-employed plasterer and paid his taxes, pay related social insurance and other levies on his income in Ireland. In 2012, Mr Gusa stopped working, due to the economic downturn and applied for jobseeker’s allowance.
The application was refused on the ground that Mr Gusa had not demonstrated that he still had a right to reside in Ireland. It was considered that, on cessation of his self-employment, Mr Gusa had lost the status of self-employed person and therefore no longer satisfied the conditions included in the 2004/38 directive on free movement under the terms for granting the right of residence. According to the Irish authorities,
Article 7 of the directive on maintaining the right to residency of European citizen experiencing involuntary unemployment after more than a year of work, only applies to former employees.
The Irish Appeals Court referred the matter to the European Court of Justice, which had to establish whether people who have ceased to exercise a self-employed activity are covered by article 7 of the directive.
Firstly, the European judge highlights the divergences in the different linguistic versions of the directive. Some versions refer to the exercise of an employed activity, while in other versions the more neutral terminology of a “professional activity” is used. In the event of there being a disparity between the different linguistic versions of an act, the Court contends that, in this case, the provision concerned must be interpreted on the basis of the purpose of the act.
The objective of the legislation is to define the conditions of exercising the right of free movement and right to reside freely in the rest of the EU and in this regard, the directive makes a distinction between economically active and inactive citizens or students. Nonetheless, it does not make a distinction between employed individuals or the self-employed, contrary to previous directives.
The Court also considers that a restrictive interpretation of the provision in question would create and an unjustified difference in treatment that will discriminate against people who had ceased self-employed work. That person might thus be in a vulnerable position comparable to that of an employed worker who has been dismissed. Such a difference in treatment would be particularly unjustified in so far as it would lead to a person who has been self-employed for more than one year in the host Member State, and who has contributed to that Member State’s social security and tax system, being treated in the same way as a person who, being a first-time jobseeker in that Member State, has never carried on an economic activity and has never contributed to the social security and tax system of the state in question. (Original version in French by Mathieu Bion)