Vice-President of Court A Tizzano (Rapporteur),
Judges E Levits, A Borg Barthet, M Berger
Advocate General M Wathelet
The Accession (Immigration and Worker Registration) Regulations 2004, as amended by the Immigration (European Economic Area) Regulations 2006 provided that an “accession worker requiring registration” would no longer have that status once they had worked without interruption for a period of 12 months falling partly or wholly after 30 April 2004 as a registered worker in the United Kingdom. For the duration of the period in which a national of a relevant accession state had that status, that national was required to obtain a work registration certificate and did not enjoy all the rights granted by European Union law to nationals of one member state moving to another member state for work purposes. More specifically, regulations 4 and 5 of the 2004 Regulations restricted the right of an accession state national to reside in the United Kingdom as a jobseeker for the purpose of seeking work, as well as the ability of that national to retain his status as a worker and the corresponding right of residence when he ceased to pursue an activity as an employed or self-employed person.
The applicant, a Polish national, came to the United Kingdom and worked there from July 2009 to March 2011, when his employment came to an end due to an injury sustained outside work. From his arrival in the United Kingdom, the applicant had the status of an “accession worker requiring registration” within the meaning of regulation 2(1) of the 2004 Regulations as amended. However, as he had obtained a worker registration certificate only on 5 January 2011, the applicant had completed a total period of registered work of just two months and six days. Subsequently, being in duly recorded involuntary unemployment, the applicant registered as a jobseeker and received unemployment benefits on that basis. He then submitted a claim to the Secretary of State for Work and Pensions for income-related employment and support allowance. That allowance, intended for categories of people whose capacity for work was limited by reason of their physical or mental condition, was available only to workers within the meaning of regulation 6(1)(b) and (2) of the 2006 Regulations, not to jobseekers. The Secretary of State therefore rejected the claim, taking the view that the applicant had not shown that he had completed, before losing his job, an uninterrupted period of employment of 12 months or longer while registered in accordance with the 2004 Regulations, which would have enabled him to retain his status as a worker within the meaning of regulations 6(1)(b) and 6(2) of the 2006 Regulations. The applicant brought proceedings against that decision before the First-tier Tribunal (Social Entitlement Chamber). After that action was dismissed, the applicant appealed to the Upper Tribunal (Administrative Appeals Chamber) on the ground that regulation 5(3) of the 2004 Regulations prevented nationals of the relevant accession states who had not worked in the United Kingdom with a registration certificate for an uninterrupted period of 12 months from retaining the status of worker, within the meaning of article 7(3) of Parliament and Council Directive 2004/38/EC, and thereby enjoying equal treatment under article 7(2) of Parliament and Council Regulation (EU) No 492/2011. According to the applicant, national legislation could not derogate from those two articles on the basis of the 2003 Act of Accession, applying to, inter alia, Poland. Chapter 2 of Annex XII to the 2003 Act of Accession provided that the Treaty articles on freedom of movement for workers and the freedom to provide services fully applied only subject to the transitional provisions laid down in paragraphs 2 to 14 of that Chapter, in relation to such freedoms involving temporary movement of workers between Poland and the “present” member states. Those transitional provisions laid down derogations from provisions in the European Union legislation preceding Directive 2004/38. Accordingly, the Upper Tribunal stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question whether Chapter 2 of Annex XII to the 2003 Act of Accession permitted, during the transitional period provided for by that Act, the United Kingdom to exclude a Polish national from the benefits of article 7(3) of Directive 2004/38 and article 7(2) of Regulation No 492/2011 when that person did not satisfy the requirement imposed by national law of having completed an uninterrupted 12-month period of registered work in the United Kingdom.
On the reference—
Held, the possibility for a European Union citizen who had temporarily ceased to pursue an activity as an employed or self-employed person of retaining his status of worker on the basis of article 7(3) of Parliament and Council Directive 2004/38/EC, as well as the corresponding right of residence under article 7(1) of the Directive, was based on the assumption that the citizen was available and able to re-enter the labour market of the host member state within a reasonable period. Consequently, the application of article 7(3) of the Directive could not be dissociated from that of the provisions of Parliament and Council Regulation (EU) No 492/2011 governing the eligibility for employment of a member state national in another member state. In the present case, the Accession (Immigration and Worker Registration) Regulations 2004 were adopted by the United Kingdom pursuant to the derogations laid down in the transitional provisions in paragraphs 2 and 9 of Chapter 2 of Annex XII to the 2003 Act of Accession. It was therefore on that basis that regulation 2 of the 2004 Regulations introduced into United Kingdom law the status of “accession state worker requiring registration” covering accession state nationals working in the United Kingdom during the period of application of those Regulations. The derogation from article 7(3) of Directive 2004/38 introduced by the United Kingdom was accordingly necessary in order to give full effect to the measures adopted by that member state pursuant to the derogations laid down in the transitional provisions in paragraphs 2 and 9 of Chapter 2 of Annex XII to the 2003 Act. If an accession state worker who had ceased to work without having first completed 12 uninterrupted months of registered work in the United Kingdom had been able to rely on article 7(3) of Directive 2004/38 in order to retain worker status as well as the corresponding right of residence under article 7(1) of that Directive, the United Kingdom would not have been able to give full effect to those derogations, intended, inter alia, to restrict the right of economically inactive accession state nationals to reside in the United Kingdom for the purpose of seeking work. Therefore, paragraphs 2 and 9 of Chapter 2 of Annex XII to the 2003 Act permitted the United Kingdom not to apply article 7(3) of Directive 2004/38 in circumstances such as those of the instant case. In those circumstances, as the applicant could not rely on article 7(3) of the Directive in order to retain his status as a worker after his employment had ceased, he was not in a position to rely on article 7(2) of Regulation No 492/2011 either, as the latter provision covered member state nationals who had that status. Accordingly, Chapter 2 of Annex XII to the 2003 Act of Accession permitted, during the transitional period provided for by that Act, the United Kingdom to exclude a Polish national, such as the applicant, from the benefits of article 7(3) of Directive 2004/38 when that person did not satisfy the requirement imposed by national law of having completed an uninterrupted 12‑month period of registered work in the United Kingdom (judgment, paras 37–39, 42, 44, 46–48, 53, 55, operative part).
Richard Drabble QC and Tom Royston (instructed by J Power) for the applicant.
Katherine Apps and David Blundell (instructed by The Treasury Solicitor) for the United Kingdom Government.
D Martin and J Tomkin, agents, for the European Commission.