A citizen of the European Union who, after more than a year, has stopped working as selfemployed in another Member State due to lack of work for causes beyond his control, retains the status of a self-employed worker and, consequently, the right of residence in that Member State.
Judgment delivered by the Court of Justice of the European Union on 20 December 2017
In the case at hand, Mr. Gusa, a Romanian national, entered the territory of Ireland in October 2007 and worked as a self-employed plasterer from October 2008 to October 2012, paying the corresponding taxes, social insurance and other taxes on income in that State.
Afterwards, Mr. Gusa left that activity in October 2012, alleging a lack of work due to the economic slowdown and registered with the competent Irish authorities in order to find a job, submitting a request for the granting of a subsidy for job seekers, which was denied because Mr. Gusa had not shown that he still held the right to reside in Ireland at that time.
In view of this situation, the Court of Appeal of Ireland raises a question for a preliminary ruling to decide whether, despite having stopped working as a selfemployed plasterer, it must be considered that Mr. Gusa has retained the status of a self-employed worker with pursuant to Article 7 (3) (b) of that Directive, or to another provision of Union law, so that he continues to enjoy the right to reside in Ireland, in accordance with Article 7 (1) (a), of that Directive. In particular, the referring court asks itself, in essence, whether the aforementioned Article 7, paragraph 3, subparagraph (b), covers only those who have been left in involuntary unemployment after having worked as an employed person for more than one year or if that provision also applies to those who are in a comparable situation after having worked as selfemployed workers during that time.
Thus, the Court understands, according to Article 7, paragraph 1, letter a), of Directive 2004/38, that every citizen of the Union who is an employee or self-employed person in that Member State has the right to reside for a period exceeding three months in the territory of the host Member State. However, section 3 of the aforementioned article provides that a citizen of the Union who no longer exercises any activity as an employee or as a self-employed person shall maintain the status of employee or selfemployed worker in certain circumstances.
Specifically, said article establishes that the citizen must have been ‘involuntarily unemployed, duly certified, after having been employed for more than one year, and that he has registered with the competent employment service in order to find a job’.
In this sense, the Court understands that no difference can be made in respect of workers employed by others or on their own account, and the previous precept must apply indistinctly. For this reason, the Court understands that, like an employee who may involuntarily lose his job as a result of a dismissal, the person who has worked as a self-employed person may be forced to leave that activity.
Finally, the Court of Justice of the European Union concludes that the national of a Member State who, having legally resided and exercised an activity as a self-employed worker in another Member State for about four years, has abandoned that activity as a result of the lack of work –duly accredited– motivated by causes beyond their control and registered before the competent employment service of the latter Member State in order to find a job, retains the status of self-employed person for the purposes of article 7, paragraph 1, letter a), of that Directive.