Case C‑442/16

Florea Gusa

v

Minister for Social Protection and Others

(Request for a preliminary ruling from the Court of Appeal (Ireland))

(Reference for a preliminary ruling — Directive 2004/38/EC — Person no longer working in a self-employed capacity — Retention of the status of self-employed person — Right of residence — Legislation of a Member State restricting eligibility for a jobseeker’s allowance to persons who have a right of residence on the territory of that Member State)

Summary — Judgment of the Court (Fifth Chamber), 20 December 2017

Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Right of residence for more than three months — Workers and self-employed persons — National of a Member State, after having worked as a self-employed person in the host member State for four years, having ceased that activity because of an absence of work in the latter Member State — Retention of the status of self-employed person

(European Parliament and Council Directive 2004/38, Art. 7(1)(a) and (3)(b))

Article 7(3)(b) 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 a national of a Member State retains the status of self-employed person for the purposes of Article 7(1)(a) of that directive where, after having lawfully resided in and worked as a self-employed person in another Member State for approximately four years, that national has ceased that activity, because of a duly recorded absence of work owing to reasons beyond his control, and has registered as a jobseeker with the relevant employment office of the latter Member State.

First, it is apparent from recitals 3 and 4 of Directive 2004/38 that, with a view to strengthening the fundamental and individual right of all Union citizens to move and reside freely within the territory of the Member States and to facilitating the exercise of that right, the aim of the directive is to remedy the sector-by-sector, piecemeal approach which characterised the instruments of EU law which preceded that directive and which dealt separately, in particular, with workers and self-employed persons, by providing a single legislative act codifying and revising those instruments (see, to that effect, judgment of 19 June 2014, Saint Prix, C‑507/12, EU:C:2014:2007, paragraph 25).

To interpret Article 7(3)(b) of that directive as covering only persons who have worked as employed persons for more than one year and excluding those who have worked as self-employed persons for that period would run counter to that purpose.

Second, such an interpretation would introduce an unjustified difference in the treatment of those two categories of persons given the objective of that provision, which is to safeguard, by the retention of the status of worker, the right of residence of persons who have ceased their occupational activity because of an absence of work due to circumstances beyond their control.

Just as an employed worker may involuntarily lose his job following, for example, his dismissal, a person who has been self-employed may find himself obliged to stop working. That person might thus be in a vulnerable position comparable to that of an employed worker who has been dismissed. In those circumstances, there would be no justification for that person being ineligible for the same protection, as regards retention of his right of residence, as that afforded to a person who has ceased to be employed.

(see paras 40-43, 46, operative part)