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

European Union law

Directive 2003/109

3Recitals2, 4, 6, 10, and 12 of Directive 2003/109 state:

‘(2)The European Council, at its special meeting in Tampere on 15 and 16October 1999, stated that the legal status of third-country nationals should be approximated to that of Member States’ nationals and that a person who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by citizens of the European Union.

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(4)The integration of third-country nationals who are long-term residents in the Member States is a key element in promoting economic and social cohesion, a fundamental objective of the [European] Community stated in the [EC] Treaty.

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(6)The main criterion for acquiring the status of long-term resident should be the duration of residence in the territory of a Member State. Residence should be both legal and continuous in order to show that the person has put down roots in the country. Provision should be made for a degree of flexibility so that account can be taken of circumstances in which a person might have to leave the territory on a temporary basis.

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(10)A set of rules governing the procedures for the examination of application for long-term resident status should be laid down. Those procedures should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as being transparent and fair, in order to offer appropriate legal certainty to those concerned. They should not constitute a means of hindering the exercise of the right of residence.

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(12)In order to constitute a genuine instrument for the integration of long-term residents into society in which they live, long-term residents should enjoy equality of treatment with citizens of the Member State in a wide range of economic and social matters, under the relevant conditions defined by this Directive.’

4Article1 of that directive provides:

‘This Directive determines:

(a)the terms for conferring and withdrawing long-term resident status granted by a Member State in relation to third-country nationals legally residing in its territory, and the rights pertaining thereto; and

(b)the terms of residence in Member States other than the one which conferred long-term status on them for third-country nationals enjoying that status.’

5Article2 of that directive, entitled ‘Definitions’, provides that:

‘For the purposes of this Directive:

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(b)“long-term resident” means any third-country national who has long-term resident status as provided for under Articles4 to 7;

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6In accordance with Article4 of that directive, entitled ‘Duration of residence’:

‘1.Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application.

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3.Periods of absence from the territory of the Member State concerned shall not interrupt the period referred to in paragraph1 and shall be taken into account for its calculation where they are shorter than six consecutive months and do not exceed in total 10months within the period referred to in paragraph1.

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7Article7 of Directive 2003/109, entitled ‘Acquisition of long-term resident status’, provides, in paragraph1:

‘To acquire long-term resident status, the third-country national concerned shall lodge an application with the competent authorities of the Member State in which he/she resides.…’

8Article8 of that directive, entitled ‘Long-term resident’s [EU] residence permit’, provides:

‘1.The status as long-term resident shall be permanent, subject to Article9.

2.Member States shall issue a long-term resident’s [EU] residence permit to long-term residents. The permit shall be valid at least for five years; it shall, upon application if required, be automatically renewable on expiry.

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9Article9 of that directive, entitled ‘Withdrawal or loss of status’, provides:

‘1.Long-term residents shall no longer be entitled to maintain long-term resident status in the following cases:

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(c)in the event of absence from the territory of the [European Union] for a period of 12 consecutive months.

2.By way of derogation from paragraph1(c), Member States may provide that absences exceeding 12 consecutive months or for specific or exceptional reasons shall not entail withdrawal or loss of status.

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5.With regard to the cases referred to in paragraph1(c) and in paragraph4, Member States who have granted the status shall provide for a facilitated procedure for the re-acquisition of long-term resident status.

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10Article11 of Directive 2003/109, entitled ‘Equal treatment’, provides:

1.Long-term residents shall enjoy equal treatment with nationals as regards:

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(b)education and vocational training, including study grants in accordance with national law;

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(d)social security, social assistance and social protection as defined by national law;

(e)tax benefits;

(f)access to goods and services and the supply of goods and services made available to the public and to procedures for obtaining housing;

(g)freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security;

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2.With respect to the provisions of paragraph1, points (b), (d), (e), (f) and (g), the Member State concerned may restrict equal treatment to cases where the registered or usual place of residence of the long-term resident, or that of family members for whom he/she claims benefits, lies within the territory of the Member State concerned.

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Directive 2004/38/EC

11Article16(4) of Directive 2004/38/EC of the European Parliament and of the Council of 29April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ2004 L158, p.77, and corrigenda OJ2004 L229, p.35; OJ2005 L30, p.27, and OJ2005 L197, p.34), provides:

‘Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’

Austrian law

12The relevant provisions of national law are set out in the Bundesgesetz über die Niederlassung und den Aufenthalt in Österreich (Niederlassungs- und Aufenthaltsgesetz– NAG) (Law on establishment and residence) of 16August 2005 (BGBl. I, 100/2005), in the version applicable to the dispute in the main proceedings (‘the NAG’).

13Paragraph2(7) of the NAG is worded as follows:

‘Short stays in Austria and abroad, in particular for the purpose of visits, do not interrupt the duration of residence or establishment giving rise to or terminating the right to a residence permit.…’

14Paragraph20 of the NAG, entitled ‘Duration of validity of residence permits’, provides, in paragraphs3 and 4:

‘(3)Holders of a “long-term resident– EU” residence permit… shall– without prejudice to the limited period of validity of the document corresponding to these residence permits– be established permanently in Austria. This document is to be issued for a period of five years and… is to be renewed, upon application, even after expiry…

(4)A residence permit under subparagraph3 shall expire if the foreign national resides outside the territory of the [European Economic Area (EEA)] for more than 12 consecutive months. Having regard to particular considerations, such as serious illness, fulfilment of a social obligation or performance of a service comparable with compulsory military service or community service, a foreign national may reside outside the territory of the EEA for up to 24months, if he or she has informed the authorities thereof in advance. Where the foreign national has a legitimate interest, the competent authority shall declare, upon application, that the residence permit has not expired. It is for the foreign national to prove that he or she resides in the territory of the EEA.

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