On 20 January 2022, the Court of Justice of the EU (CJEU) handed down a judgment in response to a request for a preliminary ruling (C-432/20) in which it addressed the question of loss of one’s residency status in connection with the duration of one’s stay in the territory of the European Union.
The underlying case was referred to the CJEU by the Administrative Court in Vienna (Verwaltungsgerichtshof Wien), and concerned a Kazakh national (i.e., a citizen of a third country) who held a long-term EU residence permit the extension of which was denied by the Head of Government of the Province of Vienna, on grounds of the applicant’s failure to fulfill the requirement of a stay of 12 consecutive months on the territory of the member state. At the time at which he filed his request for an extension, the applicant availed of both the Austrian residence permit “long-term EU residence” and of a U.K.-issued residence permit, but wished to resettle in Austria within his family (including four minor children). During a hearing in the main proceedings, the applicant confirmed that, while he never spent more than twelve consecutive months outside Austria, he was in fact only present in the territory of Austria for a few days per year. The essential questions to be addressed by the court thus concerned the correct interpretation of Directive 2003/109/EC, and in particular Art. 9 (1) (c) which failed to provide a clear answer. Is any physical stay in a given year, no matter how short, sufficient to interrupt the period of absence? And if it is not the case that any stay will do, what kind of qualitative or quantitative requirements must be satisfied by such a stay? Is it indispensable that one has one’s habitual residence, i.e., one’s center of interests, in the territory? Are the legal systems of those member states who make the extension of residence conditional upon center of interests and habitual residence, compatible with EU law?
The CJEU ruled in favor of the applicant on the strength of the following legal considerations: Firstly, the language of Art. 9 (1) (c) of Directive 2003/109/EC is to be interpreted narrowly, i.e., any physical presence in the territory of the EU ought to prevent the forfeiture of one’s residence status and interrupt the 12-month period of absence. Secondly, the CJEU, drawing a comparison between Art. 4 and Art. 9 of Directive 2003/109/EC, notes that in the case of a first-time application for long-term residence pursuant to Art. 4, residing in the member state’s territory lawfully and continuously for five consecutive years is of decisive relevance whereas Art 9 of Directive 2003/109/EC, by contrast, merely stipulates that the loss of the right to one’s long-term residence status will occur upon an actual 12-month absence. Finally, the CJEU argues based on recitals of Directive 2003/109/EC which show that the Directive seeks to promote the integration of third-country nationals. Those who previously demonstrated that they meet the requirements for long-term residence status ought to be free to travel and reside also in other EU member states without having to fear loss of that status as a consequence, as per the principle of legal certainty.
Given that CJEU judgments are binding for all national courts and public authorities (and given the need to interpret national law in an EU-compliant manner), the above-described ruling will have reverberations also for other member states and their established practice.