(Reference for a preliminary ruling– Area of freedom, security and justice– Immigration policy– Directive 2003/109

23By its three questions, which it is appropriate to examine together, the referring court seeks, in essence, to ascertain whether Article9(1)(c) of Directive 2003/109 must be interpreted as meaning that any physical presence of a long-term resident in the territory of the European Union during a period of 12 consecutive months, even if such a presence does not exceed, during that period, a total duration of only a few days, is sufficient to prevent the loss, by that resident, of his or her right to long-term resident status, under that provision, or whether, by contrast, that provision must be interpreted as permitting Member States to require, for the purposes of avoiding such a loss, the long-term resident concerned to satisfy additional conditions such as having had, for at least part of the relevant period of 12 consecutive months, his or her habitual residence or centre of interests in that territory.

24As a preliminary point, it should be noted that, pursuant to Article4(1) of Directive 2003/109, Member States are to grant long-term resident status to third-country nationals who have resided lawfully and continuously for five years on their territory. The acquisition of that status is not however automatic. In accordance with Article7(1) of that directive, the third-country national concerned must, for that purpose, lodge an application with the competent national authorities of the Member State in which he or she resides, which must be accompanied by documentary evidence establishing that he or she meets the conditions laid down in Articles4 and 5 of the directive. In particular, he or she must, in accordance with Article5(1)(a) of the directive, demonstrate that he or she has stable and regular resources which are sufficient to maintain himself or herself and the members of his or her family without recourse to the social assistance system of the Member State (judgment of 14March 2019, Y.Z. and Others (Fraud in family reunification), C‑557/17, EU:C:2019:203, paragraph59).

25In the present case, it is common ground that the applicant in the main proceedings, after acquiring long-term resident status and being issued, in Austria, with a long-term resident– EU residence permit under Article8(2) of Directive 2003/109, was, during the period from August 2013 to August 2018, present in the territory of the European Union for only a few days per year. It is in the light of that fact that the Head of Government of the Province of Vienna considered that the applicant had to be regarded as being, during that period, ‘absent’, within the meaning of Article9(1)(c) of that directive, such an absence entailing the loss of the right of the person concerned to long-term resident status, and he therefore refused to renew the applicant’s residence permit which had conferred that status.

26Thus, it is necessary to examine the conditions for the application of the latter provision, in particular the condition relating to the concept of ‘absence’.

27In that regard, in accordance with Article9(1)(c) of Directive 2003/109, a long-term resident loses the right to long-term resident status in the event of absence from the territory of the European Union for a period of 12 consecutive months.

28Since that provision does not contain any reference to the national law of the Member States, the concept of ‘absence’, used in that provision, must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union, irrespective of characterisation in the Member States, taking into account the wording of that provision, its context, and the purpose of the rules of which it forms part (see, to that effect, judgment of 3October 2019, X (Long-term residents– Stable, regular and sufficient resources), C‑302/18, EU:C:2019:830, paragraph26).

29As regards, in the first place, the wording of Article9(1)(c) of Directive 2003/109, it should be noted that, in a significant number of language versions of that directive, a term equivalent to the term ‘absence’ is used in that provision. The concept of ‘absence’, as it appears in that provision and in accordance with the usual meaning of that term in everyday language, means the physical ‘non-presence’ of the long-term resident concerned in the territory of the European Union. Thus, that concept shows that any physical presence of the person concerned in that territory is capable of interrupting such an absence.

30It is true that, as the Austrian Government submits in support of its interpretation of that provision, namely that the person concerned must have his or her habitual residence or centre of interests within the territory of the European Union, in the German and Dutch versions of Article9(1)(c) of Directive 2003/109, instead of there being an expression using the word ‘absence’, the verbs ‘aufhalten’ and ‘verblijven’ are used. Thus, those versions rely on the fact of staying or remaining in the territory of the European Union and could therefore, depending on the context, imply a more permanent presence than a physical presence of any duration.

31However, such a nuance, first, does not mean that those expressions cannot also refer to a mere physical non-presence and, second, must, in any event, be put into context since those language versions of Article9(2) of Directive 2003/109 also use the terms ‘Abwesenheit’ and ‘afwezigheid’ respectively, which correspond to the concept of ‘absence’.

32As regards, in the second place, the context of Article9(1)(c) of Directive 2003/109, it must be noted, first, that Article8 of Directive 2003/109 provides that long-term resident status is permanent, ‘subject to Article9’ of that directive. Accordingly, since the permanent nature of that status constitutes the general rule, Article9 must be interpreted by way of derogation and, therefore, strictly (see, by analogy, as regards Article11(4) of that directive, judgment of 10June 2021, Land Oberösterreich (Housing assistance), C‑94/20, EU:C:2021:477, paragraph37). That requirement suggests that there should not be a broad interpretation of Article9, namely that the mere physical presence of a long-term resident in the territory of the European Union is not sufficient to interrupt his or her absence from that territory.

33Secondly, it follows, in particular, from Article4 of Directive 2003/109 that, where, among the language versions of that directive referred to in paragraph29 of the present judgment, that directive requires the presence of the person concerned in the relevant territory to go beyond a mere physical presence and that it be of a certain duration or have a certain stability, the directive expressly states so by using the relevant expressions. Thus, Article4(1) of that directive uses, in those language versions, expressions that correspond to the verb ‘reside’, and states that, under that provision, the person concerned must reside in the territory of the Member State concerned legally and continuously for five years immediately prior to the submission of [his or her] application, subject to the periods of absence permitted under Article4(3) of that directive.

34Such details are lacking in Article9(1)(c) of Directive 2003/109, which merely defines the period of absence from the territory of the European Union causing the loss of the right to long-term resident status. That provision does not state, in particular, that, in order to be capable of interrupting that absence, the presence of the person concerned in that territory must be of a certain duration or have a certain stability such as that corresponding to the fact that the person concerned has his or her habitual residence or centre of interests in that territory, contrary to what the Austrian Government maintains. Nor, moreover, does that provision impose any other conditions relating to the duration or nature of that presence, based on, inter alia, the existence of an ‘actual and authentic link’ with respect to the same territory, such as the fact that the person concerned has, in the Member State concerned, family members or assets, contrary to the Commission’s contention.

35An examination of the context of Article9(1)(c) of Directive 2003/109 thus supports the interpretation which follows from the wording of that provision.

36As regards, in the third and last place, the objective pursued by Directive 2003/109, it is clear, firstly, from recitals2, 4, 6 and 12 of that directive that its objective is the integration of third-country nationals who are settled lawfully and on a long-term basis in the Member States and, for that purpose, bringing the rights of those third-country nationals closer to those enjoyed by EU citizens, inter alia by establishing equal treatment with the latter in a wide range of economic and social fields (judgment of 14March 2019, Y.Z. and Others (Fraud in family reunification),C‑557/17, EU:C:2019:203, paragraph63). It is in order for those third-country nationals to be able to benefit from the rights provided for in that directive that they are granted long-term resident status under Article4(1).

37Such an objective supports an interpretation of Article9(1)(c) of Directive 2003/109, to the effect that those third-country nationals who, by virtue of the duration of their residence in the territory of the Member State concerned, have already demonstrated that they are settled in that Member State are, in principle, free, as are EU citizens, to travel and reside, also for longer periods, outside the territory of the European Union, without that thereby entailing the loss of their long-term resident status, provided that they are not absent from that territory for the entire period of 12 consecutive months referred to in that provision.

38Secondly, it follows from recital10 of Directive 2003/109 that the EU legislature intended to pursue the objective referred to in paragraph36 of the present judgment by providing the persons concerned, in the context of the procedural rules governing the examination of the application for that status, with an adequate level of legal certainty. The importance thus attached to the principle of legal certainty as regards the acquisition of that status must necessarily also apply in respect of the loss of that status, since the loss invalidates that acquisition, as, moreover, is confirmed by the travaux préparatoires for Directive 2003/109, in which it was stated that ‘long-term resident status must offer its holder maximum legal certainty’ since ‘the sole grounds on which it may be withdrawn [must be] listed’ (see Proposal for a Council Directive concerning the status of third-country nationals who are long-term residents (COM(2001) 127 final)).

39In that regard, the principle of legal certainty, which is one of the general principles of EU law, requires, particularly, that rules of law be clear, precise and predictable in their effects (judgment of 13February 2019, Human Operator, C‑434/17, EU:C:2019:112, paragraph34 and the case-law cited).

40To interpret Article9(1)(c) of Directive 2003/109 as meaning that any physical presence of the person concerned in the territory of the European Union is capable of interrupting his or her absence and, consequently, of preventing the loss of his or her long-term resident status under that provision, makes the maintenance of that status dependent on a clear, precise and predictable criterion relating to a simple objective event, so that such an interpretation is better able to guarantee the persons concerned an adequate level of legal certainty.

41Thirdly, as regards, more specifically, the purpose of Article9(1)(c) of that directive, it must be held that that provision is intended to prevent third-country nationals, who are in circumstances in which the maintenance of that status no longer serves any purpose in achieving the objective referred to in paragraph36 of the present judgment, from continuing to enjoy long-term resident status and the rights attaching to that status.

42In that regard, the Court has held, with regard to Article16(4) of Directive 2004/38, that that provision refers to loss of the right of permanent residence of an EU citizen by reason of absences of more than two consecutive years from the host Member State and that such a measure may be justified because, after an absence of that duration, the link with the host Member State is loosened (judgment of 21July 2011, Dias, C‑325/09, EU:C:2011:498, paragraph59 and the case-law cited).

43Although Directives 2003/109 and 2004/38 differ from one another in terms of their subject matter and objectives, the fact remains that, as the Advocate General also pointed out, in essence, in points40 to 43 of his Opinion, the provisions of those directives may lend themselves to a comparative analysis and, where appropriate, be interpreted in a similar way, which is justified, in particular in the case of Article9(1)(c) of Directive 2003/109 and Article16(4) of Directive 2004/38, which are based on the same logic.

44It follows that, without prejudice to the option provided for in Article9(2) of Directive 2003/109, paragraph1(c) of that article refers, ultimately, to the loss of the right to long-term resident status in situations in which the link which the holder of that right previously maintained with the territory of the European Union is loosened. That is the case, in accordance with that provision, only after an absence from that territory for a period of 12 consecutive months.

45Consequently, the specific purpose of Article9(1)(c) of Directive 2003/109 supports the interpretation of that provision to the effect that, in order to prevent the loss of the right to long-term resident status, it is sufficient for the long-term national concerned to be present, during the period of 12 consecutive months following the start of his or her absence, in the territory of the European Union, even if such presence does not exceed a few days.

46That being so, the situation of a long-term resident who has spent a few days per year in the territory of the European Union and who therefore has not been absent for a period of 12 consecutive months must be distinguished from the situation where there is evidence that such a resident has committed a misuse of rights. In the present case, the file before the Court does not refer to any evidence from which it might be concluded that there has been such a misuse of rights.

47In the light of all of the foregoing considerations, the answer to the questions referred is that Article9(1)(c) of Directive 2003/109 must be interpreted as meaning that any physical presence of a long-term resident in the territory of the European Union during a period of 12 consecutive months, even if such a presence does not exceed, during that period, a total duration of only a few days, is sufficient to prevent the loss, by that resident, of his or her right to long-term resident status under that provision.