(Reference for a preliminary ruling — Citizenship of the Union — Freedom of movement for persons — Directive 2004/38/EC — Right of free movement and residence within the territory of the Member States — Article 7(1)(a) — Employees and self-employed persons — Article 7(3)(c) — Right of residence for more than three months — National of a Member State who has worked in an employed capacity in another Member State for a period of two weeks — Involuntary unemployment — Retention of the status of worker for no less than six months — Entitlement to jobseeker’s allowance)
SOURCE: Court of Justice of the European Union, Annual report 2020
In the judgment in Tarola, delivered on 11 April 2019, the Court, interpreting Directive 2004/38 on the right of citizens of the Union to move and reside within the territory of the Member States, held that a national of a Member State who, having exercised his or her right to free movement, acquired the status of worker in another Member State on account of the activity he or she pursued there for a period of two weeks, otherwise than under a fixed-term employment contract, before becoming involuntarily unemployed, retains the status of worker for a further period of no less than six months. However, he or she must have registered as a jobseeker with the relevant employment office.
The dispute in the main proceedings concerned a Romanian national who had worked in Ireland on several occasions for short periods, including for two weeks in July 2014. He subsequently submitted to the Minister for Social Protection an application for jobseeker’s allowance. The Minister refused that application, in essence, on the ground that the person concerned had not been able to demonstrate that his habitual residence was in Ireland, stating that his short period of work in July 2014 was not sufficient to call that finding into question. The person concerned argued before the Irish courts that, under Directive 2004/38, he had a right to reside in Ireland as a worker for the period of six months after the end of his occupational activity in July 2014.
That directive provides that all citizens of the Union have the right of residence for a period of longer than three months on the territory of a Member State other than that of which they are a national, provided that they have the status of worker in the host Member State. In addition, it guarantees that all citizens of the Union in a position of temporary inactivity retain their status of worker and, consequently, their right to reside in the host Member State, in certain circumstances, including when they become involuntarily unemployed. The appellant in the main proceedings relied, specifically, on a provision of that directive which provides for the retention of the status of worker ‘after having become involuntarily unemployed during the first twelve months’.
The Court provided clarification on that provision, stating that it applies when a citizen of the Union is unemployed for reasons beyond his or her control before having been able to complete one year of activity. That is the case, inter alia, in all situations in which a worker has been obliged to stop working in the host Member State before one year has elapsed, regardless of the nature of the activity or the type of employment contract entered into for that purpose, that is to say, regardless of whether that person entered into a fixedterm contract of more than a year, an indefinite contract or any other type of contract.
Furthermore, the retention of the status of worker pursuant to that provision presupposes, first, that the citizen concerned, before his or her period of involuntary unemployment, did actually have the status of worker and, secondly, that that citizen has registered as a jobseeker with the relevant employment office. In addition, the citizen retains the status of worker only for a period of time which the host Member State may determine, provided it is no less than six months.
Lastly, the Court noted that, under Directive 2004/38, all citizens of the Union residing in the territory of the host Member State enjoy equal treatment with the nationals of that Member State within the scope of the Treaty on the Functioning of the European Union. Accordingly, where national law excludes from the entitlement to social benefits persons who have worked only for a short period of time, that exclusion applies in the same way to workers from other Member States. As regards the case in the main proceedings, the Court entrusted the referring court with the task of determining whether, under national law and in accordance with the principle of equal treatment, the appellant in the main proceedings was entitled to the jobseeker’s allowance he claimed.