In Balandin and Others (C-477/17), the ECJ does not follow the Opinion delivered by AG Wahl.
The case in the main proceedings
The case concerns third-country nationals, who pursue gainful employment in the Netherlands, covered by short-stay Schengen visas. On behalf of their employer, they perform work activities in other Member States, covered by the same short-stay Schengen visas, eventually complemented by national short-stay visas.
Question referred for a preliminary ruling
The question referred to the European Court of Justice, is whether the competent authority of the Member State of employment, must issue the Portable Document A1, to third-country nationals who work in various Member States on a temporary basis, and reside outside of the European Union (lawful stay in the European Union covered by short-stay visa).
The referring court seeks clarification as to whether the concept of lawful residence in the sense of Regulation 1231/2010, must be interpreted in the meaning of Article 1(j) of Regulation 883/2004 ( ‘residence’ means the place where a person habitually resides), versus the concept of ‘stay’ ,defined by Article 1(k) Regulation 883/2004 as temporary residence.
Pursuant to Article 1, Regulation 1231/2010, “Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 shall apply to nationals of third countries who are not already covered by those Regulations solely on the ground of their nationality, as well as to members of their families and to their survivors, provided that they are legally resident in the territory of a Member State and are in a situation which is not confined in all respects within a single Member State.”
Opinion delivered by Advocate General Wahl
The Advocate General had suggested that only third-country nationals who may enforce the right to move and reside in the European Union(i.e. those whose right is provided for by EU legal instruments such as but not limited to the Blue Card Directive and the Intra Corporate Transfer Directive, and those whose right is derived from a legal status on grounds of national law, provided that the latter are holding a valid residence permit), are deemed to be legally resident in the sense of Regulation 1231/2010. Only such categories of third-country nationals may invoke (Title II of) Regulation 883/2004 and Regulation 987/2009.
The European Court of Justice ruling
The ECJ observes first that Article 1 Regulation 1231/2010, contains no reference to national legislations, and as a consequence, pursuant to settled ECJ case law,” Its meaning and scope must normally be interpreted autonomously and uniformly throughout the European Union”
The Court underlines the fact that the concept of residence in the sense of Regulation 883/2004, and that of lawful residence in the sense of Regulation 1231/2010, are not laid down for the same purpose.
Where the distinction between the concept of residence and that of stay(temporary residence), in the sense of Regulation 883/2004, determines the Member State to which EU citizens are most closely connected, the concept of lawful residence in the sense of Regulation 1231/2010 “reflects the EU legislature’s decision to submit the extension of the personal scope of Regulations No 883/2004 and 987/2009 to nationals of third countries, subject to the prior condition that they remain lawfully on the territory of the relevant Member State”.
Having regard to the above considerations, the distinction between the concept of habitual residence and that of temporary residence, has no relevance within the meaning of Regulation 1231/2010.
Such an interpretation is confirmed by Directive 2011/98/EU (Single Permit Directive). The directive establishes a common set of rights for third-country nationals legally residing in a Member State, inter alia, equal treatment in respect to branches of social security (even if they are temporarily admitted for work).
The ECJ concludes that “third country nationals, such as those at issue in the main proceedings, who temporarily reside and work in different Member States in the service of an employer established in a Member State, may rely on the coordination rules laid down by Regulations No 883/2004 and 987/2009 in order to determine the social security legislation to which they are subject, provided that they are legally staying and working in the territory of the Member States“, and notably on the coordination rules provided for in Article 13 Regulation 883/2004 (Pursuit of activities in two or more Member States).