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(b) a worker who, having resided continu- entitled to remain there permanently on ously in the territory of that State for condition that: more than two years, ceases to work there as an employed person as a result of permanent incapacity to work....

— the worker, on the date of his decease, had resided continuously in the terri- (c) ... tory of that Member State for at least 2 years; or

(2) ...' — his death resulted from an accident at work or an occupational disease;

4. Article 3 of Regulation No 1251/70 lays down the following conditions for the right to remain of the family members of the worker: — ... .'

'The person entitled to the right to remain shall be allowed to exercise it within two years from the time of becoming entitled to such right pursuant to Article 2(1)(a) and (b) and Article 3. During such period he may leave the territory of the Member State 9. On 16 February 1996, Mr Givane without adversely affecting such right.' returned to the UK with his spouse, Nani Givane, and three children, Vashuben Giv- ane, Vinodbhai Givane and Subashkumar Givane — all four of whom arc Indian nationals. He obtained an EU residence permit valid until 21 July 2002. The family 7. Section 7(1) of the Immigration Act members accompanying him were in pos- 1988 creates an express exception from session of an EEA Family Permit. 4 the general regime requiring the grant of leave, in favour of persons exercising enforceable Community rights:

10. On 11 November 1997, 21 months 5 'A person shall not under the principal Act after his return to the United Kingdom, Mr [the Immigration Act 1971] require leave to Givane died of kidney failure and chronic enter or remain in the UK in any case in liver disease, which cannot be regarded as which he is entitled to do so by virtue of an enforceable community right or of any 3 — To be precise, five days less tll.in three years. other provision made under section 2(2) 4 — Footnote relevant only to original German text. of the European Communities Act 1972.' 5 — To he precise, five days less than 21 months.

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' 1 . Whether Article 3(2) of Regulation 1251/70 requires that two-year period of continuous residence to be estab- lished in the period immediately prior 5. Whether the benefit of Article 3(2) may to a worker's death, or whether it may be claimed by the deceased worker's be established by a period of continu- family members, in circumstances in ous residence which occurs at an earlier which the worker's 10-month period of point in the worker's life; absence represents less than a third of

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the period of continuous residence prior to his death. Since Mr Givane fulfilled prior to the absence, and less than a that requirement between April 1992 and fifth of the total time spent by the April 1995, the application of his family worker in the host State prior to his members for indefinite leave to remain in death?' the United Kingdom must be granted.

13. The United Kingdom Government, the German Government and the Commission are participating in the proceedings before the Court. 15. Rama Givane resided continuously in the United Kingdom for a period in excess of two years between April 1992 and April 1995 and thus fulfilled the first part of the requirements of Article 3 of Regulation No 1251/70. The words 'on the date of his decease, had resided continuously' cannot and do not import a further requirement as IV — Submissions of the parties to the to when the continual residence took place. main proceedings Rather, they set the final deadline by which the two years must be completed.

14. The arguments of the Appellants and the Secretary of State, who have not expressly submitted observations in the proceedings before the Court, are taken from the order for reference: 16. A purposive approach to Article 3(2) confirms the correctness of this literal interpretation. Such an approach can be based on the following reasons:

(c) Freedom of movement of workers is an important economic foundation of the (2) The Respondent Treaty of Rome. Therefore, workers should not be discouraged from exer- cising their rights of free movement by concerns about being separated from their families or about the welfare of their family members when they move 19. The Respondent submits that the natu- with them. ral meaning of Article 3(2) of Regulation No 1251/70 requires that the two-year period of residence must be established immediately prior to the worker's death. This is the effect, in particular, of the words 'on the date of his decease' and resided 'continuously'. In contrast, the interpre- 17. Applying this to the instant case, it is tation adopted by the Appellants renders quite clear that, had Rama Givane con- the words 'on the date of his decease' in sidered when he finally left India that he Article 3(2) of the Regulation unnecessary might die of natural causes within the next and superfluous. two years and that an interpretation of the type adopted by the respondent authority would be applied, he would have been discouraged from exercising his right of free movement out of concern for the welfare of his family members. 20. Furthermore, the Respondent's inter- pretation of Article 3(2) is consistent with, and fulfils, the purpose of Regulation No 1251/70. The purpose of the Regu- lation, as set out in the preamble, is to secure the free movement of workers by 18. The Appellants accept that, when ensuring stability and security of settled applying a purposive construction of the residence after the cessation of employ- Regulation in a situation where the two ment; by enabling workers to be joined by years of continuous residence prior to the their families; and by ensuring that families death of the worker predated an absence of derive, from the worker, similar rights of more than three months from the host security of residence. Rights to remain arise State, such an absence should be subject to from a combination of periods of residence some form of reasonable limitation. How- and employment in the Member State.

24. This construction is supported by the purpose of the Regulation. Just as the acquisition of the primary right to remain 22. Further, the Appellants' interpretation of the worker pursuant to Article 2(1) of introduces uncertainty and additional tests the Regulation is subject to certain con- that are not provided for in the Regulation. ditions, so is the acquisition of the derived rights of family members. If the process of acquiring a permanent right to remain in accordance with Article 2( 1 ) is not com- pleted due to the premature death of the worker, the interests of the worker and his family require that they should be entitled to remain if the connection with the host V — Submissions of the parties participat- State is sufficiently well-established. This ing in the proceedings before the Court applies only if a considerable period of time allowing the establishment of such a con- nection precedes the cessation of employ- ment. If the worker was not entitled to remain, then his family cannot have a right- after his death. The purpose of the Regu- ( 1 ) The United Kingdom Government lation is to ensure that a settled or stable way of life can be maintained which means that such a way of life must already have been established and the two-year qual- 23. The United Kingdom Government ifying period laid down in Article 3(2) of founds its submissions primarily on a literal the Regulation applies for this reason.

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(2) The German Government 28. In its observations, the Commission first of all compares the different language versions of Article 3(2) of Regulation No 1251/70 and concludes that, in prin- ciple, the wording permits both interpre- tations. In accordance with the English, 26. In the opinion of the German Govern- Spanish, Portuguese and Swedish versions, ment, the two-year period of continuous the fact that the worker had at some point residence required by Article 3(2) must been continuously resident for two years in immediately precede the death of the the territory of a Member State could be worker. It bases this argument on the considered sufficient to justify a right to German version of the Regulation. 6 Pur- remain, whereas the German, French and suant to Article 4 of the Regulation, con- Italian versions require that the two-year tinuous residence comes to an end as a period of residence continues up to the date result of absences of more than three of death. months. A new period of continuous resi- dence begins with re-entry into the host State. The previous residence 'lapses'. This conclusion is supported by the scheme of the Regulation. The term 'continuous' in Article 2(l)(a) and (b) also relates to minimum periods of residence. 29. In accordance with the settled case-law of the Court, Community Regulations must be interpreted uniformly in the light of the 6 — 'Seit mindestens zwei Jahren'. versions existing in the other official lan-

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giiages. 7 However, only the interpretation Givane in the territory of the United reflected by the second group examined is Kingdom between April 1992 and April consistent with all language versions, so 1995, a right to remain must in any event that interpretation must be preferred to be denied in their case. ensure uniformity. Moreover, the period of two years is expressly linked to the date of decease. This link would be superfluous if the date of death were not to be considered the end of the continuous residence.

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requirement of residence of at least two entails the right 'to remain in the territory years can be taken into consideration. of a Member State after having been employed in that State, subject to con- ditions which shall be embodied in imple- menting regulations to be drawn up by the Commission.' The Commission has embo- died these c o n d i t i o n s in R e g u l a t i o n 33. While detailed submissions have been N o 1251/70. made with respect to the first part of the question, the second part has been virtually ignored in the submissions to the Court. In each case, reference has been made to Article 4 of the Regulation and it has been 36. In principle, rights of the members of argued that periods of absence exceeding the worker's family can also be derived three months cause the previous residence from the rights granted to the worker under to lapse. However, the submissions have Article 39 EC. The conditions for the not addressed the fact that this provision family members' right to remain are like- relates only to the period entitling the wise contained in Regulation N o 1251/70. person concerned to acquire a right, with Pursuant to Article 3(1), family members respect to both the worker's right to remain have a right to remain if the worker himself pursuant Article 2(1) and that of the family has acquired a right to remain under the members pursuant to Article 3(2). Article 4 conditions of Article 2. If the worker dies of the Regulation does not deal with what during his working life before acquiring a happens to a right to remain once it has right to remain in the Member State con- been established. cerned, his family nevertheless has a right to remain in the Member State, subject to the conditions of Article 3(2) of Regulation N o 1251/70.

38. In order to answer the referring Tribu- nal's question whether the right to remain of the worker's family members requires that the worker had been continuously resident in the territory of the Member State for at least two years immediately before his death or whether an earlier period of continuous residence of equal 4 1 . The German, French and Italian ver- duration is sufficient, the rule in Article 3(2) sions on the other hand suggest that the of Regulation No 1251/70 must be inter- two-year period of continuous residence preted literally, systematically and teleo- must immediately precede the date of logically. death. In the German text, the worker is required to have been resident in the M e m b e r State 'seit mindestens zwei Jahren'. The word 'seit' links the date of death to a period of time which is still continuing. Had an earlier period been meant, it would have been more appropri- ate to use the word 'während' ('during'). The same can be said of the French and 39. The English version of the Regulation, Italian versions of the provision. There, the which will have been considered in the words 'depuis' and 'da' arc used instead of main proceedings, is neutral with respect to 'pendant' and 'durante'. the temporal connection between the two years' continuous residence and the date of death. It merely states: 'The worker, on the 9 — Emphasis a d d e d .

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worker's death, the right of the family must immediately precede the decisive date members to remain becomes their own since in this respect also the wording of the right. Article 3(1) of the Regulation there- various language versions is ambiguous. fore contains the phrase: 'even after his Rather, with respect to the normal case of death'. However, should the worker die termination of employment, reaching the during his working life before having age of retirement, Article 2(1 )(a) of the acquired the right to remain — in other Regulation expressly requires, in addition words, should the employment required for to continuous residence 'for more than the acquisition of the right to remain end three years', employment for 'the last' 12 prematurely and unexpectedly — a two- months. However, the latter phrase does year period of continuous residence of the not appear in Article 3 which suggests that worker in the Member State in which he this article does not require that the two- was employed confers a right to remain on year period of residence must immediately the family members under Article 3(2). precede the date of death. Thus, this is also a case of a right of the family members which is derived from the right of the worker but which becomes their own right upon the worker's death. The scheme of Article 3(2) corresponds therefore to that of Article 3(1).

the second recital in the preamble to the State which is evidenced by a three-year Regulation, the right to remain signifies period of continuous residence and a 'the right of the worker to maintain his 12-month period of employment preceding residence in the territory of a Member State the end of employment due to reaching when he ceases to be employed there'. It retirement age. Once these conditions have must therefore be possible for the worker, been fulfilled, the person entitled to the even after the end of employment, to right to remain has, in accordance with maintain a centre of interests established Article 5 of the Regulation, a period of two by way of residence and employment. years in which to exercise his right, without According to the third recital of the Regu- a period of absence from the territory of the lation, the mobility of labour in the Com- Member State concerned adversely affect- munity requires that 'workers may be ing such right. employed successively in several Member States without thereby being placed at a disadvantage'. With respect to family members, the seventh recital states that 'the exercise by the worker of the right to remain entails that such right shall be extended to members of his family;... in the case of the death of the worker during his working life, maintenance of the right of residence of the members of his family must also be recognised...'. 53. In contrast to 'the normal and fore- seeable end of working life' due to retire- m e n t , 1 2 w h i c h is g o v e r n e d by Article 2(1 )(a), in the event of a 'premature and unforeseeable termination of activity' due to incapacity to work, 13 even a two- year period of continuous residence is, 51. The family members who have moved p u r s u a n t to the first sentence of to a Member State with a worker or Article 2(l)(b), sufficient to establish a subsequently joined him there are to be right to remain. In such cases also, the able to remain with him even after he has person entitled to a right to remain has, in ceased to work in the Member State in accordance with Article 5, a period of two which he was employed. The family is not years in which to decide where he wishes to to be compelled to leave their chosen place establish his final residence. 14 In the event of residence upon the death of the worker of such an unforeseeable end to a working irrespective of whether his death occurs life, the Community legislature allows a during or after his working life. two-year period of continuous residence to found the right to remain. In those circum- stances, the Regulation deems the connec- tion with the Member State of employment established by the two-year period of con- tinuous residence to be sufficient. 52. In the normal situation governed by Article 2(l)(a), the basic condition for the 12 — See fifth recital of the Regulation. acquisition of a right to remain is a degree 13 — See fifth recital of the Regulation. of established connection with the host 14 — See, to this effect, the sixth recital of the Regulation.

56. Consequently, absences exceeding 59. However, regardless of the earlier three months within the meaning of periods of residence, the requirement could Article 4 adversely affect the acquisition possibly be considered fulfilled on the basis of the right only in so far as they interrupt of the following consideration, which is

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expressly put forward only in the alter- second sentence of Article 3(1) and the first native. In view of the interruptions of indent of Article 3(2) — that they must in residence of up to three months annually any event have lived with him at the time of which, in accordance with Article 4 of the his death. It appears to be undisputed in the Regulation, have no adverse effect on the main proceedings that this condition was continuous residence, the worker is, over a fulfilled. total period of 24 months, merely required to be resident in the Member State of employment for at least 18 months. The connection with the Member State of employment required for the right to remain can, according to the Regulation, 62. The second indent of Article 3(2) also be established even in these circumstances. supports the view that, contrary to the If the permitted period of absence were observations of the Commission, it is not a deemed added to the second period of question of the family members' own continuous residence of almost 21 months, minimum period of residence. If the Mr Rama Givane would have spent a worker's death resulted from an accident further period of continuous residence in at work or an occupational disease, his the United Kingdom entitling him to a right family members are entitled to remain in to remain, immediately prior to his death. the Member State of his employment irrespective of any minimum periods of residence.

65. The distinction between the first and second indents of Article 3(2) therefore appears arbitrary. However, it can prob- ably be explained by the fact that in the event of a death as a result of an accident at work or occupational disease the reason for residence in another Member State, namely 67. The answers to Questions 2 to 5 of the employment, becomes the cause of death. reference for a preliminary ruling follow In these circumstances, it would seem logically from the proposed answer to the unreasonable to deny the family the right first question. to remain. The provision shows that the Regulation does provide for considerations of reasonableness and equity which modify the requirements of certain periods or of an established connection. This is all the more the case where a 'reasonableness rule' appears justified not only for one single reason but also on the basis of several individual considerations. This view is supported by the fact that pursuant to The second question Article 4, it is possible to be absent from the host State for up to three months annually — or, in the event of compliance with military service obligations, for even longer — without this adversely affecting the period of residence. 68. The rights acquired by the worker as a result of a two-year period of residence remain unaffected in the event of absences from the host Member State exceeding the permitted annual period of three months laid down by Article 4(1) provided, by 66. Having regard to the above consider- analogy with Article 5, they do not exceed ations, I propose that the first question be two years.

72. I propose that the questions for a preliminary ruling be answered as follows:

(1) Article 3(2) of Regulation (EEC) N o 1251/70 does not necessarily require that the two-year period of continuous residence must have occurred immediately prior to the death of the worker if and to the extent that the worker can rely

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on a previous two-year period of continuous residence within the meaning of the Regulation and this legal position has not been extinguished as a result of an absence from the Member State of employment exceeding two years.

(2) The rights acquired by the worker as a result of a two-year period of residence remain unaffected in the event of absences from the host Member State exceeding the permitted annual period of three months laid down by Article 4(1) (which, in the case of an established position, only lead to an interruption of the continuous residence in that host State) provided, by analogy with Article 5, they do not exceed two years.