JUDGMENT OF THE COURT (First Chamber)

17 December 2020 ( *1 )

(Reference for a preliminary ruling – Freedom of movement for persons – Article 45 TFEU – Citizenship of the Union – Directive 2004/38/EC – Right of residence for more than three months – Article 14(4)(b) – Jobseekers – Reasonable period of time to acquaint themselves with potentially suitable employment opportunities and take the necessary steps to obtain employment – Requirements imposed by the host Member State on the jobseeker during that period – Conditions governing the right of residence – Obligation to continue seeking employment and to have a genuine chance of being engaged)

In Case C‑710/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, Belgium), made by decision of 12 September 2019, received at the Court on 25 September 2019, in the proceedings

G.M.A.

v

État belge,

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, R. Silva de Lapuerta (Rapporteur), Vice-President of the Court, L. Bay Larsen, M. Safjan and N. Jääskinen, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–

G.M.A., by A. Valcke, avocat,

–

the Belgian Government, by L. Van den Broeck, C. Pochet and M. Jacobs, acting as Agents, and by F. Motulsky, avocat,

–

the Danish Government, by M. Wolff and J. Nymann-Lindegren, acting as Agents,

–

the Polish Government, by B. Majczyna, acting as Agent,

–

the United Kingdom Government, by Z. Lavery and S. Brandon, acting as Agents, and by K. Apps, Barrister,

–

the European Commission, by D. Martin and B.-R. Killmann and by E. Montaguti, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 September 2020,

gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 45 TFEU, Articles 15 and 31 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 ( OJ 2004 L 158, p. 77 , and corrigendum OJ 2004 L 229, p. 35 ), and Articles 41 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2The request has been made in proceedings between G.M.A. and the Belgian State concerning the latter’s refusal to grant G.M.A. a right of residence for more than three months in Belgium as a jobseeker.

Legal context

EU law

3Recital 9 of Directive 2004/38 is worded as follows:

‘Union citizens should have the right of residence in the host Member State for a period not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a valid identity card or passport, without prejudice to a more favourable treatment applicable to job-seekers as recognised by the case-law of the Court of Justice.’

4Article 6(1) of that directive provides:

‘Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.’

5Article 7(1) and (3) of that directive states:

‘1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a)

are workers or self-employed persons in the host Member State; or

(b)

have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c)

–

are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

–

have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d)

are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

…

3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a)

he/she is temporarily unable to work as the result of an illness or accident;

(b)

he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c)

he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d)

he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.’

6Article 8 of that directive imposes a series of administrative formalities on the categories of persons referred to in Article 7 thereof.

7Article 14(1), (2) and (4) of Directive 2004/38 provides:

‘1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2. Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

…

4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

…

(b)

the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.’

Belgian law

8Article 39/2(2) of the loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers (Law of 15 December 1980 on access to the territory, residence, establishment and removal of foreign nationals) ( Moniteur belge of 31 December 1980, p. 14584), in the version applicable at the material time in the main proceedings (‘the Law of 15 December 1980’), provides:

‘The Council [for asylum and immigration proceedings (Belgium)] shall rule by way of judgments on other actions for annulment on the ground of infringement of procedural requirements which are essential or breach of which leads to nullity, or on the ground of abuse or misuse of powers.’

9In accordance with Article 40(4) of the Law of 15 December 1980:

‘All Union citizens shall have the right of residence in the Kingdom for a period of longer than three months if they satisfy the condition laid down in [the first paragraph of] Article 41 and:

1° if he/she is an employed or self-employed person in the Kingdom or enters the Kingdom in order to seek employment, provided that he/she is able to prove that he/she continues to seek employment and has a genuine chance of being engaged;

…’

10Under Article 50 of the l’arrêté royal sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers, du 8 octobre 1981 (Royal Decree on entry into the territory, residence, establishment and removal of foreign nationals of 8 October 1981) ( Moniteur belge of 27 October 1981, p. 13740):

‘1. Union citizens who intend to reside in the territory of the Kingdom for more than three months and who prove that they have their citizenship in accordance with the [first paragraph] of Article 41 of the [Law of 15 December 1980] shall apply to the municipal authorities of the place where they reside by means of a document conforming to the model set out in Annex 19.

…

2. At the time of the application, or at the latest within three months of the application, the Union citizen … shall produce the following documents:

…

3° jobseeker:

(a)

registration with the relevant employment office or a copy of the letters of application; and

(b)

evidence of having a genuine chance of being engaged, taking into account the personal circumstances of the person concerned, in particular the diplomas he/she has obtained, any professional training followed or planned and the length of the period of unemployment;

…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

11On 27 October 2015, G.M.A., a Greek national, applied for a certificate of registration in Belgium as a jobseeker in order to obtain a right of residence for more than three months in that Member State, in accordance with Article 50(1) of the Royal Decree on entry into the territory, residence, establishment and removal of foreign nationals. The date on which G.M.A. entered the territory of that Member State is not apparent from the request for a preliminary ruling.

12On 18 March 2016, that application was rejected by decision of the Office des étrangers (Belgian Immigration Office, ‘the Office’) on the ground that G.M.A. failed to fulfil the requirements under Belgian law for entitlement to a right of residence for more than three months (‘the decision of the Office’). According to the Office, the documents produced by G.M.A. did not suggest that he had a genuine chance of being engaged in Belgium. Consequently, G.M.A. was ordered to leave Belgium within 30 days of notification of that decision.

13By judgment of 28 June 2018, the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) (‘the CCE’), namely, the court with jurisdiction to hear and determine at first instance disputes relating to the legality of the decisions of the Office, dismissed the action brought by G.M.A. against the decision of the Office.

14G.M.A. then lodged an appeal on a point of law before the referring court, the Conseil d’État (Council of State, Belgium), claiming, in the first place, that it follows from Article 45 TFEU, read in the light of the judgment of 26 February 1991, Antonissen ( C‑292/89 , EU:C:1991:80 ), that Member States are obliged to grant a ‘reasonable period of time’ to jobseekers from another Member State, in order to enable those persons to acquaint themselves with offers of employment likely to suit them and take the measures necessary to be engaged. That period cannot in any circumstances be less than six months, as is apparent from a combined reading by analogy of Article 7(3) and Articles 11 and 16 of Directive 2004/38.

15Moreover, throughout that period, the jobseeker is not required to prove that he has a genuine chance of being engaged.

16In the second place, G.M.A. claimed that, after the adoption of the decision of the Office, namely on 6 April 2016, he was recruited by the European Parliament as a probationer. According to G.M.A., that circumstance shows that he had a genuine chance of being engaged and that, consequently, he should have been granted a right of residence for more than three months.

17By failing to take into consideration G.M.A.’s employment, the latter claimed that the CCE infringed Articles 15 and 31 of Directive 2004/38 and Articles 41 and 47 of the Charter. It is apparent from those provisions that the courts with jurisdiction to review the legality of an administrative decision concerning the right of residence of a Union citizen must conduct an exhaustive examination of all the relevant circumstances and take into consideration all the matters brought to their attention, even if those matters postdate the decision at issue.

18In the light of those considerations, G.M.A. claimed that the CCE should have disregarded the national procedural rule having incorrectly transposed into Belgian law Articles 15 and 31 of Directive 2004/38, namely Article 39/2(2) of the Law of 15 December 1980, under which that court did not take account of his employment as a probationer which postdates the decision of the Office.

19The referring court finds that the outcome of the dispute in the main proceedings depends on the Court’s interpretation of Article 45 TFEU, Articles 15 and 31 of Directive 2004/38 and Articles 41 and 47 of the Charter. If those provisions were to be interpreted in the manner suggested by G.M.A., he would be entitled to a right of residence in Belgium for more than three months.

20Accordingly, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)

Is Article 45 [TFEU] to be interpreted and applied as meaning that the host Member State is required (1) to allow jobseekers a reasonable period of time to acquaint themselves with potentially suitable employment opportunities and take the necessary steps to obtain employment, (2) to accept that the time allowed for seeking employment cannot in any circumstances be less than six months, and (3) to permit a jobseeker to stay within its territory for the whole of that period, without requiring him or her to prove that he or she has a real chance of obtaining employment?

(2)

Are Articles 15 and 31 of Directive [2004/38], Articles 41 and 47 of the [Charter], and the general principles of primacy of EU law and effectiveness of directives, to be interpreted and applied as meaning that the national courts of the host Member State are required, in the context of an action for annulment brought against a decision refusing to recognise a right of residence of more than three months of an EU citizen, to have regard to new facts and matters arising after the decision of the national authorities, where such facts and matters are capable of altering the situation of the person concerned in such a way that it is no longer permissible to restrict his or her right of residence in the host Member State?’

Consideration of the questions referred

The first question

21A preliminary point to make is that, according to the Court’s settled case-law, in the procedure laid down in Article 267 TFEU, which provides for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to decide the case before it. With that in mind, the Court may have to reformulate the questions referred to it. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions (judgment of 23 April 2020, Land Niedersachsen(Previous periods of relevant activity), C‑710/18 , EU:C:2020:299 , paragraph 18 ).

28As regards, in the second place, the length of that period, it must be recalled, first, that it is apparent from Article 6 of Directive 2004/38 that all Union citizens have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

29Article 7 of that directive, for its part, lays down the situations in which a Union citizen may be entitled to a right of residence for more than three months.

30It should also be noted that Article 14(1) and (2) of that directive lays down the conditions under which Union citizens may retain the right of residence provided for, where appropriate, in Article 6 or Article 7 thereof.

31In particular, under Article 14(1) of Directive 2004/38, the right of residence referred to in Article 6 of that directive is maintained as long as the persons concerned do not become an unreasonable burden on the social assistance system of the host Member State. Article 14(2) of that directive provides, inter alia, that Union citizens and their family members are to have the right of residence for more than three months provided that they satisfy the conditions set out in Article 7 of that directive.

32As is apparent from paragraph 22 of the present judgment, it is Article 14(4)(b) of Directive 2004/38, which provides for a derogation from Article 14(1) and (2), which relates specifically to jobseekers.

33It follows that Article 14(4)(b) of Directive 2004/38 specifically determines the conditions governing the retention of the right of residence of Union citizens who leave their Member State of origin with the intention of seeking employment in the host Member State. Nevertheless, that provision, which the EU legislature adopted with a view to codifying the guidance arising from the judgment of 26 February 1991, Antonissen ( C‑292/89 , EU:C:1991:80 ) on the right of residence of jobseekers based on Article 45 TFEU, also directly governs the right of residence of Union citizens who have the status of jobseeker, as is apparent, in particular, from paragraph 52 of the judgment of 15 September 2015, Alimanovic ( C‑67/14 , EU:C:2015:597 ).

34Therefore, where a Union citizen enters the territory of a host Member State in order to seek employment there, that citizen’s right of residence falls, from the time of his or her registration as a jobseeker, within the scope of Article 14(4)(b) of Directive 2004/38.

35However, it should be noted that, according to its wording, Article 6 of Directive 2004/38 applies without distinction to all Union citizens, irrespective of the intention with which those citizens enter the territory of the host Member State. It follows that, even where a Union citizen enters the territory of a host Member State with the intention of seeking employment there, his or her right of residence is also covered, during the first three months, by Article 6 of Directive 2004/38.

36Accordingly, during that three-month period referred to in that provision, first, no condition other than the requirement to hold a valid identity document is to be imposed on that citizen.

37Second, it must be held that the ‘reasonable period of time’ referred to in paragraph 27 of the present judgment starts to run from the time when the Union citizen concerned has decided to register as a jobseeker in the host Member State.

38As regards, in the second place, the possibility of establishing a minimum duration to which that reasonable period of time should correspond, it should be noted that Article 14(4)(b) of Directive 2004/38 does not contain any indication in that regard.

39In those circumstances, it must be borne in mind, first of all, that, as is apparent from paragraph 26 of the present judgment, the duration of the reasonable period of time must ensure the effectiveness of Article 45 TFEU.

40Next, in paragraph 21 of the judgment of 26 February 1991, Antonissen ( C‑292/89 , EU:C:1991:80 ), the Court, while not fixing a minimum duration of the ‘reasonable period of time’, has held that a period of six months from entry into the territory of the host Member State, such as that at issue in the case which gave rise to that judgment, did not appear capable of calling that effectiveness into question.

41Finally, in that context, it is necessary to take into account the purpose of Directive 2004/38, which is to facilitate the exercise of the primary and individual right of movement and residence conferred directly on citizens of the Union by Article 21(1) TFEU, and to strengthen that right (see, to that effect, judgment of 11 April 2019, Tarola, C‑483/17 , EU:C:2019:309 , paragraph 23 ).

42In the light of those considerations, it must be held that a period of six months from the date of registration does not appear, in principle, to be insufficient and does not call into question the effectiveness of Article 45 TFEU.

43In the third place, as regards the obligations which the host Member State may impose on the person seeking employment during that ‘reasonable period of time’, it follows from the wording of Article 14(4)(b) of Directive 2004/38, as is apparent from paragraph 22 of the present judgment, that a jobseeker cannot be subject to an expulsion measure if he or she adduces evidence that he or she is continuing to seek employment and has a genuine chance of being engaged. That provision reproduces, in essence, the principle stemming from paragraph 21 of the judgment of 26 February 1991, Antonissen ( C‑292/89 , EU:C:1991:80 ), that the person concerned cannot be compelled to leave the territory of the host Member State if, after expiry of the reasonable period of time, that person provides evidence that he or she ‘is continuing to seek employment and that he or she has genuine chances of being engaged’.

44In so far as, in order to avoid having to leave the territory of the host Member State, the jobseeker must therefore ‘continue’ to seek employment after expiry of that reasonable period of time, it must be inferred that the host Member State may, already during that period, require the jobseeker to seek employment. However, during that period, that Member State cannot require the person concerned to demonstrate the existence of a genuine chance of being engaged.

45That interpretation is supported by the fact that, since the objective of a reasonable period of time is, as is apparent from paragraph 27 of the present judgment, to allow the jobseeker to apprise himself or herself of offers of employment corresponding to his or her occupational qualifications and to take the necessary steps in order to be engaged; it is only after such a period that the competent national authorities may be in a position to assess whether the person concerned is continuing to seek employment and has a genuine chance of being engaged.

46Thus, it is only after the reasonable period of time has elapsed that the jobseeker is required to provide evidence not only that he or she is continuing to seek employment but also that he or she has a genuine chance of being engaged.

47It is for the authorities and courts of the host Member State to assess the evidence adduced to that effect by the jobseeker in question. In that regard, those authorities and courts will have to carry out an overall assessment of all relevant factors such as, for example, as observed by the Advocate General in points 75 and 76 of his Opinion, the fact that the jobseeker has registered with the national body responsible for jobseekers, that he or she regularly approaches potential employers with letters of application or that he or she goes to employment interviews. In the context of that assessment, those authorities and courts must take into account the situation of the national labour market in the sector corresponding to the occupational qualifications of the jobseeker in question. By contrast, the fact that that jobseeker refused offers of employment which did not correspond to his or her professional qualifications cannot be taken into account for the purpose of considering that that person does not satisfy the conditions laid down in Article 14(4)(b) of Directive 2004/38.

48In the present case, it follows from the considerations set out above that, at the time when he lodged his application for registration as a jobseeker, namely on 27 October 2015, G.M.A. had to have at least a reasonable period of time during which the Belgian authorities could only require him to demonstrate that he was seeking employment.

49It is apparent from the information before the Court that the decision of the Office refusing G.M.A. a right of residence in Belgium for more than three months was taken on the ground that the evidence adduced by the latter in support of his application was not such as to establish that he had a genuine chance of being engaged.

50In those circumstances, it must be held that Article 45 TFEU and Article 14(4)(b) of Directive 2004/38 preclude national legislation which imposes such a condition on a jobseeker who is in a situation such as that of G.M.A.

51Having regard to all of the foregoing considerations, the first question should be answered in the following manner:

–

Article 45 TFEU and Article 14(4)(b) of Directive 2004/38 must be interpreted as meaning that a host Member State is required to grant a reasonable period of time to a Union citizen, which starts to run from the time when that Union citizen registered as a jobseeker, in order to allow that person to acquaint himself or herself with potentially suitable employment opportunities and take the necessary steps to obtain employment.

–

During that period, the host Member State may require the jobseeker to provide evidence that he or she is seeking employment. It is only after the expiry of that period that that Member State may require the jobseeker to show not only that he or she is continuing to seek employment but also that he or she has a genuine chance of being engaged.

The second question

52By its second question, the referring court asks the Court, in essence, whether Articles 15 and 31 of Directive 2004/38, Articles 41 and 47 of the Charter and the principles of primacy and effectiveness must be interpreted as meaning that the courts of the host Member State are required, when examining an action against a decision refusing to grant a jobseeker a right of residence for more than three months, to carry out a review of unlimited jurisdiction and to take account of factors arising after that decision, where those factors are likely to change the jobseeker’s situation and justify granting that right of residence.

53It is apparent from the answer to the first question that the authorities of the host Member State during the period covered by the reasonable period of time referred to in paragraph 51 of the present judgment cannot require the jobseeker to demonstrate that he or she has a genuine chance of being engaged. Thus, in so far as, in the present case, the decision of the Office imposed on G.M.A. obligations contrary to Article 45 TFEU and Article 14(4)(b) of Directive 2004/38, it does not appear necessary to examine whether factors arising after that decision must be taken into account by the courts of the host Member State for the purposes of conferring on the applicant in the main proceedings a right of residence as a jobseeker.

54In those circumstances, there is no need to address the second question.

Costs

55Since these proceedings are, for the parties to the main action, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

Article 45 TFEU and Article 14(4)(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 host Member State is required to grant a reasonable period of time to a Union citizen, which starts to run from the time when that Union citizen registered as a jobseeker, in order to allow that person to acquaint himself or herself with potentially suitable employment opportunities and take the necessary steps to obtain employment.

During that period, the host Member State may require the jobseeker to provide evidence that he or she is seeking employment. It is only after the expiry of that period that that Member State may require the jobseeker to show not only that he or she is continuing to seek employment but also that he or she has a genuine chance of being engaged.

[Signatures]

( *1 ) Language of the case: French.