ECJ 19 September 2019, case C-544/18 (Dakneviciute), work and residence permit

Legal background

Article 45 TFEU grants workers and self-employed persons freedom of movement. Article 49 TFEU provides for the freedom of establishment.

Directive 2004/38 facilitates the Union citizens’ right to move and reside freely within the territory of the Member States. Article 1(a) and, particularly, article 7(1)(a) of that Directive set out the conditions for workers or self-employed to exercise the right of residence on the territory of another Member State for a period longer than three months. A Union citizen who is no longer a worker or self-employed person can nevertheless still retain the status of worker within the meaning of article 7(3) of Directive 2004/38.

Article 8(1) of Directive 2010/41 on equal treatment of male and female self-employed persons provides that female self-employed workers be granted  a sufficient maternity allowance enabling interruptions in their occupational activities for at least 14 weeks.

The Immigration European Economic Area Regulations 2006 is a UK regulation regarding a right of residence of more than three months to qualified persons. Article 6 of that Regulation provides the circumstances under which a qualified person could still retain that status if s/he is temporarily unable to work.

Facts and initial proceedings

D is a Lithuanian national who decided to worked as a self-employed beauty therapist within the meaning of Article 49 TFEU as of 25 December 2013, shortly after having learned that she was pregnant. She was granted a maternity allowance as from 11 May 2014, since she considered herself less able to work on account of her pregnancy. Three months later her child was born. D had a period of inactivity between 22 July 2014 and October 2014. After that, she decided to continue her work as a self-employed beauty therapist on a marginal basis. On 27 August 2014, D applied for child benefit. Her claim was however rejected on the ground that, under the applicable national legislation, she lacked a sufficient right to reside to meet the qualifying conditions for that benefit. D claimed a jobseeker’s allowance on 10 February 2015 because her income had become insufficient and took up employment after searching for a job.

The referring court asked preliminary questions in order to find out whether D could retain the status of a self-employed worker and therefore the right of residence within the European Union since her economic activity was marginal during 22 July 2014 till 9 February 2015. Especially, preliminary questions were necessary since the parties in the main proceedings supported divergent positions on whether the Gusa judgement (C-442/16, EU:C:2017:1004) supported the view that the interpretation of EU Law presented in Saint Prix (C-507-12,EU:C:2014:2007) that a pregnant women who gives up work because of physical constraints nevertheless can remain a worker, provided that she returns to work within reasonable time after the childbirth, could be applied to self-employed persons as well. 

Question

Must Article 49 TFEU be interpreted as meaning that a woman who ceases self-employed activity in circumstances where there are physical constraints in the late stages of pregnancy and the aftermath of childbirth retains the status of being self-employed, provided that she returns to the same or another self-employed activity or employment within a reasonable period after the birth of her child?

Consideration

First of all, the court makes clear that the referring court needs to be sure that D had the right to reside in the United Kingdom in order to be entitled to receive child benefit. In that regard, Directive 2004/38 is applicable. The Court confirms that the interpretation set out in Saint Prix (C-507-12,EU:C:2014:2007) could be applied analogous to this case within the meaning of article 49 TFEU due to the fact that both article 45 and 49 TFEU afford the same legal protection (Roux, C-363-89, EU:C:1991:41, paragraph 23).

As stated in Saint Prix, the case of a woman who temporarily gives up work because of the late stages of her pregnancy and the aftermath of childbirth is not covered by article 7(3) of Directive 2004/38 (Saint Prix, EU:C:2014:2007, C-507/12, paragraph 30). However, article 7(3) of Directive 2004/38 does not list exhaustively the circumstances in which a Union citizen who is no longer a worker or self-employed person in the host Member State will nevertheless retain the status of ‘worker’ for the purposes of Article 7(1)(a) thereof and, consequently, the right of residence derived from that status (Tarola, EU:C:2019:309, C-483/17, paragraph 26).

In particular, the Court listed in Saint Prix that the fact that the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth require a woman to give up work during the period needed for recovery does not, in principle, deprive her of the status of ‘worker’ within the meaning Article 45 TFEU. The fact that a pregnant woman was not actually available to the employment market of the host Member State for a few months, does not mean that she has ceased to belong to that market during that period, provided she returns to work or finds another job within a reasonable period after confinement (Saint Prix, EU:C:2014:2007, C-507/12, paragraph 40 and 41). Consequently, the Court notes that a Union citizen would be deterred from exercising her right to the freedom of movement of workers if, in the event she was pregnant in the host Member State and gave up self-employed activity as a result, if only for a short period, she risked losing her status as self-employed in that State.

Moreover, both employed and self-employed pregnant women are in a vulnerable situation and therefore cannot be treated differently as regards the retention of the right of residence in the host Member State hence the status of ‘worker’ within the meaning of Article 7 TFEU.

It follows that article 49 TFEU must be interpreted as meaning that a woman that gives up her work temporarily because of the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth cannot (a fortiori) lose her status as self-employed.

Ruling

Article 49 TFEU must be interpreted as meaning that a woman who ceases self-employed activity in circumstances where there are physical constraints in the late stages of pregnancy and the aftermath of childbirth retains the status of being self-employed, provided that she returns to the same or another self-employed activity or employment within a reasonable period after the birth of her child.