Opinion of Advocate General Pikamäe delivered on 21 October 2021

(a) Literal interpretation

30. As regards the wording of that provision, it must be observed that there is some variation between the different language versions.

31. On the one hand, a significant number of language versions⁽⁹⁾ refer to an ‘absence’ from EU territory for the period of 12 consecutive months, which might suggest that mere physical presence would put an end to that absence. On the other hand, other language versions⁽¹⁰⁾ refer to the fact of not ‘residing’ in that territory for that period; use of that verb may imply a somewhat more ‘solid’ presence without, however, excluding stays of only a few days.

32. However, it seems to me that, apart from those slight linguistic nuances, the wording of Article 9(1)(c) of Directive 2003/109 does not, on its own, make it possible to determine unequivocally the exact scope of the concept of ‘absence’. No clear conclusion can be drawn from a literal interpretation of that provision. It is therefore necessary to have recourse to the other methods of interpretation recognised in the Court’s case-law.⁽¹¹⁾

(b) Systematic interpretation

(c) Teleological interpretation

46. Since Directive 2003/109, as is apparent from recital 4 thereof, seeks to promote the integration of third-country nationals who are long-term residents in the interests of promoting economic and social cohesion,⁽²⁴⁾ it is important to ensure that the legal status of long-term resident is granted only to those who are eligible for it, namely, everyone who has a sufficiently close, genuine link with the European Union and its Member States, established through successful integration over five years of continuous legal residence.

47. On the other hand, Article 9(1)(c) of Directive 2003/109 implies that long-term resident status must be withdrawn where the individuals concerned no longer have that link to the host Member State. There is no legitimate reason for retaining the legal status of long-term resident where that link is ‘dissolved’, given that the objective pursued by Directive 2003/109 is no longer achieved. All those considerations must be taken into account when interpreting the provision in question.

48. An interpretation in the light of the legislative objective referred to in the preceding points has the consequence that Article 9(1)(c) of Directive 2003/109 must be applied in a nuanced manner, depending on the circumstances of each particular case. In order to provide the referring court with useful interpretive guidance, I consider it appropriate to explain, with the help of a number of practical examples, how a teleological interpretation influences the application of that provision.

(a) Mandatory loss of long-term resident status after the expiry of a period of 12 consecutive months

49. At the outset, it must be observed that absence for a period of 12 consecutive months entails, as a general rule, the loss of entitlement to long-term resident status, as provided for in Article 9(1)(c) of Directive 2003/109.⁽²⁵⁾ Not only does the unequivocal wording of that provision leave no room for interpretation in that regard, from the perspective of the third-country national’s integration, it may also be inferred that the link with the host Member State has usually ‘dissolved’ after such a long period.

50. Such a legal consequence does not seem to me disproportionate given that it follows from Article 9(5) of Directive 2003/109 that Member States which have granted long-term resident status must provide for a ‘facilitated procedure’ for its re-acquisition. It is therefore still possible for the person concerned to restore the link with the host Member State, in the mutual interest of both parties.

51. I would point out that such a legal consequence is the result of a situation in which the host Member State has not made use of the exception referred to in Article 9(2) of Directive 2003/109. Under that provision, by way of derogation from paragraph 1(c), Member States may provide that ‘absences exceeding 12 consecutive months’ or for ‘specific or exceptional reasons’ are not to entail withdrawal or loss of the status.⁽²⁶⁾ It follows that Member States are given considerable leeway in the implementation of that provision, thereby allowing the legal consequence arising from the interpretation supported above to be avoided.

(b) Legal treatment of short, sporadic stays

52. As long as the person concerned mostly resides in EU territory for that 12-month period, no difficulty should arise as regards the application of Directive 2003/109, since it is clear that the conditions laid down in Article 9(1)(c) thereof are not satisfied. By contrast, the question arises as to how to deal with a situation in which the person concerned resides in EU territory sporadically for short periods during the year.

53. In my view, even such a short, sporadic presence in EU territory should be capable of preventing loss of the right to long-term resident status, provided that it can be established with certainty that the individual concerned still has ‘roots’ in the country, within the meaning of recital 6 of Directive 2003/109. In other words, a third-country national who has long-term resident status must demonstrate a sufficiently close ‘link of integration’ with the host Member State. Where that condition is not met, it seems to me that the general rule, entailing loss of long-term resident status,⁽²⁷⁾ must apply.⁽²⁸⁾

54. In so far as Article 4 of Directive 2003/109, read together with Article 8 thereof, specifies that the right of permanent residence is to be granted if, pursuant to Article 5 thereof, the third-country national provides evidence that the conditions for acquiring that status are met, it appears to me logical and fair to consider that it is, in turn, for the national authorities to examine all the relevant circumstances of the particular case and, where appropriate, to prove that there is no such link before taking a decision to withdraw that status from the person concerned. In my view, it is imperative to place the burden of proof on the national authorities as regards the existence of facts in the specific case such as to justify recourse to Article 9(1)(c) of Directive 2003/109 in order that the abovementioned provisions, conferring a particular legal status on long-term residents, are not deprived of their effectiveness.

55. Such an approach seems to me sufficient to ensure that long-term resident status is not used for purposes other than those intended by the EU legislature. In particular, it is necessary to prevent an undue advantage being derived from that status, for example, the choice of a national court with the aim of ensuring the application of law more favourable to the interests of the person concerned (‘forum shopping’), the receipt of social benefits, facilitation of unlawful activities, and so on.⁽²⁹⁾ Since Directive 2003/109 is addressed to the Member States, which are required to transpose it into their domestic legal systems, it is for them to play the crucial role of ensuring that its objectives are achieved.

56. In particular, the requirement to be present in EU territory, which is apparent from Article 9(1)(c) of Directive 2003/109, reflects the idea that third-country nationals who are long-term residents must maintain a ‘genuine’, and not merely ‘formal’, link with the Member State concerned if they are to be able to retain that status permanently.

57. In that regard, however, it must be pointed out that excessively stringent requirements cannot be imposed in respect of the existence of such a sufficiently close, genuine link of integration, since the third-country national’s ‘roots’ in the Member State concerned have already been thoroughly assessed by the national authorities during the procedure for acquiring long-term resident status. Moreover, it seems to me that the imposition of excessively strict requirements would hinder attainment of the objective of approximating the legal status of third-country nationals to that of nationals of the Member States.⁽³⁰⁾

58. Thus, as has already been stated above, an overly broad interpretation of the conditions governing withdrawal or loss of long-term resident status would be liable to frustrate the objective of ensuring the integration of third-country nationals. The approach proposed in this Opinion relates only to cases in which the retention of that legal status no longer appears warranted on the ground that it does not contribute to the economic and social cohesion pursued by the EU legislature.

59. In view of the fact that the task of assessing an integration link may prove particularly complicated in practice, I propose to provide the referring court with some guidance in the form of criteria demonstrating whether the third-country national intends to participate in the economic and social life of the host Member State. The competent national authorities could use that list of criteria in the exercise of their discretion. That list of criteria to be developed by case-law should be understood as indicative and non-exhaustive. Since all integration into society is based on territorial, time and qualitative factors,⁽³¹⁾ I consider that that list should be composed of criteria derived from those categories.

60. Although at first sight Article 9(1)(c) of Directive 2003/109 focuses on a ‘territorial’ criterion, it seems to me that the concept of ‘absence’ should be interpreted in a manner which better meets the requirements of a globalised society such as ours. Mere ‘physical’ presence in the European Union may be misleading if the person concerned is not really integrated into society. In that context, it must not be forgotten that a person’s integration into a foreign society is a complex process of acculturation, the key elements of which, according to the common basic principles for immigrant integration policy set out by the Council in 2004 and confirmed by the Stockholm Programme,⁽³²⁾ are interaction and increased exchanges between immigrants and citizens of the Member State concerned and the promotion of intercultural dialogue.

61. Conversely, a relatively short stay by a person with a range of deep personal and/or professional ties, established in the course of the integration process described above, may suffice to avoid loss of long-term resident status. It is for the national authorities to examine the circumstances of the particular case in the light of the criteria proposed below.

(c) Non-exhaustive indicative list of criteria demonstrating a genuine link with the European Union

62. First, the national authorities will be required to establish the length of the absence from the European Union, which must take into account any stays that may interrupt that absence, including short stays. More specifically, factors such as the ratio between periods of absence and presence, the cumulative length and frequency of those absences and the reasons which led the holder of long-term resident status to leave the host Member State may provide prima facie evidence of his or her level of integration.

63. Thus, it must be ascertained whether those absences involve the transfer to another State of the centre of the personal, family or professional interests of the person concerned.⁽³³⁾ That should generally be ruled out for periods of residence abroad justified by specific or exceptional reasons of a temporary nature, by analogy with the scenarios listed in Article 4(3)(2) of Directive 2003/109, which the Member States may not take into account as a period of ‘absence’ when calculating the ‘continuous’ five-year period of residence in their territory, one of the legal conditions for obtaining long-term resident status. Reasons for temporary residence abroad may be, for example, holidays or business trips of a similar length, stays for the temporary care of relatives, stays to complete military service or stays during education or vocational training which are only limited in time, but certainly not stays which entirely move the education or training abroad. Nonetheless, additional evidence will be necessary if a sufficiently close, genuine link with the host Member State is to be identified.⁽³⁴⁾

64. Apart from the physical presence of the person himself or herself, which for the reasons set out in this Opinion, can only serve as a starting point for a more detailed assessment of the circumstances of the particular case, I consider that the existence of assets in the form of bank accounts and private ownership of immovable property or undertakings established in the Member States may prove useful.⁽³⁵⁾ Financial investments may indicate that an individual has ‘put down roots’ in a country’s economy and has a personal interest in participating in its development.

65. Moreover, it is possible that having spent a significant part of his or her life in the European Union and having become familiar with the host Member State’s traditions, customs and language will have allowed the third-country national to develop family ties with EU citizens, for example as a result of a marriage from which children may have been born. That type of family relationship with members of the local population may be of particular importance in the assessment to be carried out by the national authorities.

66. The same applies to professional relationships, for example in the form of business relationships or academic contacts which have been created over time. The pursuit of economic activity is certainly linked to that criterion,⁽³⁶⁾ to which Directive 2003/109 seems to attach particular importance on the ground that, first, Article 5(1)(a) thereof requires the third-country national to have 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 concerned and, second, Article 11(1)(a) and (c) guarantees equal treatment as regards access to the host Member State’s labour market and recognition of professional diplomas, certificates and other qualifications, in accordance with the relevant national procedures. All those measures are plainly intended to promote the third-country national’s professional development in the European Union for the benefit of that individual and society as a whole.

67. Moreover, in so far as Directive 2003/109 seeks to promote economic and social cohesion, it seems to me that the individual’s social engagement in the host Member State should not be underestimated. Active membership of political parties and social organisations pursuing charitable or civic aims or participation in voluntary activities may provide evidence of a genuine attachment to the local community where the person concerned has lived.

68. Similarly, the existence of tax obligations, perhaps linked to the existence of assets or to the exercise of an economic activity in the host Member State, seems to me capable of demonstrating the intention of a third-country national who has acquired long-term resident status to assume responsibilities towards society and to contribute to its development.⁽³⁷⁾

69. Lastly, it seems to me that it should also be possible to take into account unlawful activities that may be attributed to the holder of long-term residence status which, as a ‘negative’ criterion, could thus demonstrate a lack of ‘roots’ or, at the very least, an attitude inimical to integration into the host Member State’s society.⁽³⁸⁾ However, in order to comply with the principle of proportionality, both the gravity and the nature of the offence need to be duly taken into account when assessing the particular case. It follows that, although a criminal record may influence a decision concerning the withdrawal or loss of long-term resident status, an overall examination of the situation of the holder of long-term resident status is required.

70. I would emphasise, however, that the possibility of applying that ‘negative’ criterion must in no way be interpreted as meaning that national authorities are no longer obliged to comply with the provisions of Article 6 and Article 12 of Directive 2003/109. On the contrary, those provisions retain their full effect in their respective fields of application, that is, when the power is exercised to refuse to grant long-term resident status or to expel a long-term resident on grounds of public policy or public security. The use of those powers is subject to certain conditions which the Court recently reiterated in the judgment in Subdelegación del Gobierno en Barcelona (Long-term residents).⁽³⁹⁾

71. In so far as the approach proposed in this Opinion is characterised by a flexibility which takes into account of the particular case, allowing the national authorities to find, after an overall assessment of all the relevant circumstances of the third-country national’s specific situation, that even a short stay prevents the loss of long-term resident status, it must be observed that that approach precludes national legislation such as that in the present case which provides for the loss of that status when the holder does not have his or her registered or usual place of residence in the European Union.

72. Accordingly, the national authorities responsible for carrying out that overall assessment cannot legitimately conclude that there is no genuine link with the European Union merely on account of the fact that the individual concerned does not fulfil that condition. Rather, the authorities must take account of a wide range of relevant criteria, such as those listed by way of example in the preceding points. The place of registered or usual residence does not seem to me, in itself, appropriate to serve as an indicator of a third-country national’s level of integration in the host Member State’s society. The Court’s case-law on Directive 2004/38 clearly shows that an individual’s integration can be assessed only on the basis of various criteria, among which social and cultural factors are particularly important.⁽⁴⁰⁾ For the reasons already stated above, namely the objective pursued by the legislature of approximating those nationals’ rights to the rights enjoyed by EU citizens,⁽⁴¹⁾ it is my view that those considerations must influence the interpretation of Directive 2003/109.

73. In summary, it can be concluded that the proposed approach is based on an interpretation of Article 9(1)(c) of Directive 2003/109 which takes due account of the wording of that provision and the objectives pursued by the legislation of which it forms part and its legislative context, in keeping with the methodology recognised in the Court’s case-law. I am convinced that only a flexible approach, such as the one I have presented, which relies on the discretion of national authorities while providing practical criteria allowing them to assess a genuine link with the European Union, can ensure that the diversity of circumstances those authorities face on a daily basis is adequately addressed.