By Hans Esser, for ExpatBriefing.com 16 January, 2018
Self-employed EU citizens should be able to maintain a right of residence and, through such, access to welfare in another member state, even when they have been unable secure more work, Europe’s top court has ruled.
The case concerned an EU citizen who, after more than one year, has ceased to work in a self-employed capacity in another member state because of an absence of work, owing to reasons beyond his control, having worked the four years prior.
The court agreed with the taxpayer that he should retain the status of a self-employed person for the purposes of the Free Movement Directive, which governs EU persons’ rights to live and work in other EU states, and consequently should be allowed to retain his right to reside in that other member state.
The Irish Court of Appeal had sought an opinion from the ECJ on the issue following a case involving a Romanian plasterer who had been denied unemployment benefits after having worked and paid taxes in Ireland. The payments had been refused because it was deemed he had lost his status of being self-employed and had consequently lost the right to reside in Ireland, being a precondition to securing unemployment benefits.
It was argued that the wording of Article 7 of the Free Movement Directive is open to different interpretation as it has been translated differently by states. The English language version says a right of residence is maintained in four circumstances. The one of importance to this case had been translated into English as “involuntary unemployment after having been employed for more than one year.”
The Irish authorities considered that only people who have worked as employees, and not self-employed people, could benefit from the provision. However, the ECJ pointed out that other language versions of the EU legislation refer to “occupational activity” rather than employment. The Court noted that, where there are discrepancies between various language versions, an interpretation should be taken in reference to the “general scheme and the purpose of the act.”
In this case, the ECJ determined that the provision should not exclude self-employed workers as its purpose is to distinguish between the situation of economically active citizens from that of inactive citizens and students.
The Court said siding with Ireland’s proposed interpretation would create “an unjustified difference in the treatment of those who have ceased to work as employed persons and those who have ceased to work as self-employed persons.”