The EU Rights in the Spotlight section for this month features one ECJ opinion and one ruling affecting, respectively, the freedom of residence of EU citizens and their spouses of the same sex and the status of ‘self-employed person’ for the purposes of the free movement directive.
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
On December 20, 2017, the ECJ ruled that a national of a Member State retains the status of ‘self-employed person’ for the purposes of the Free Movement 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 an absence of work owing to reasons beyond his control.
The judgment is the result of a request for a preliminary ruling referred to the ECJ by the Court of Appeal (Ireland), which was called upon to rule on the Irish authorities’ refusal to grant, in November 2012, jobseeker’s allowance to Mr Gusa, a Romanian self-employed plasterer who entered the territory of Ireland in October 2007. According to the Irish authorities, Mr Gusa was not entitled to enjoy the allowance because, after ceasing working in October 2012 as a consequence of the economic downturn, he lost his status of ‘self-employed person’ and no longer satisfied the conditions for a right of residence under the Free Movement Directive.
The Court of Appeal (Ireland) asked the ECJ to interpret whether the expression, ‘is in … involuntary unemployment after having been employed for more than one year’, that is used in Article 7(3)(b) of the Directive, covers only persons who are involuntarily unemployed after having worked as employees for more than one year, or whether it also applies to persons who are in a comparable situation after having been self-employed for that period.
The Court observed that the Directive does not make a distinction between citizens working as employed persons and those working as self-employed persons in the host Member State and that a restrictive interpretation of Article 7(3)(b) would introduce an unjustified difference in the treatment of those who have ceased to work as employed persons and those who have ceased to work as self-employed persons.
According to Advocate General Wathelet, the term ‘spouse’ includes, in the light of the freedom of residence of citizens of the EU and their family members, spouses of the same sex
Advocate General Wathelet stated in an opinion issued on January 11, 2018, that the concept of ‘spouse’ within the meaning of the Free Movement Directive also includes spouses of the same sex. Accordingly, such a person may also reside on a permanent basis in the territory of the Member State in which his or her spouse is established as an EU citizen after exercising his or her freedom of movement.
The opinion follows the request for a preliminary ruling submitted to the ECJ by the Curtea Constituţională (Constitutional Court, Romania), which was called upon to rule on the decision of the Romanian authorities not to grant Mr Hamilton, a US national, the right to reside in Romania with his EU national spouse, Mr Coman, because same-sex marriages are not recognised in that Member State.
The ECJ was, therefore, asked to clarify whether Mr Hamilton, as the spouse of an EU citizen having exercised his freedom of movement, must be granted a right of permanent residence in Romania under the Free Movement Directive.
According to Advocate General Wathelet, the term ‘spouse’ within the meaning of the Directive refers to a relationship based on marriage while, nevertheless, being neutral as to the sex of the persons concerned and indifferent as to the place where that marriage was contracted. In addition to this, the term ‘spouse’ is necessarily linked to family life, which is protected in an identical manner by the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights (ECHR).