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Advocate General Wathelet has recently handed down his Opinion in Case C-618/16 Prefeta, on the ability of accession state nationals to access social welfare rights during the accession period. Mr Prefeta is a Polish national who was resident and working in the United Kingdom during the transitional period, and the extension to that period, following the accession of Poland to the EU. He was legally required under domestic transitional provisions made under the Accession Treaty to register his employment. Under the Accession Treaty, Member States were entitled to restrict access to rights under Articles 1-6 of Regulation 492/2011 (the Workers Regulation, replacing the original Regulation 1612/68) to Polish workers who had not been admitted to the labour market for 12 months. Mr Prefeta completed more than 12 months' employment, but only approximately two months of it were registered. After he was injured at work and became involuntarily unemployed, the question arose whether he could rely on retained rights under Article 7(3) of Directive 2004/38/EC (the Citizens Directive) to access social advantages under Article 7(2) of the Workers Regulation. Two questions on these issues were referred to the CJEU by the Upper Tribunal. A hearing took place in January 2018. Advocate General Wathelet has answered the questions referred as follows: "Annex XII to the [Accession Treaty] did not permit the [United Kingdom] to exclude Polish nationals from the benefits of Article 7(2) of [the Workers Regulation], where they have the status of worker, that is to say, where they pursue an activity as employed or self-employed persons.
Annex XII to the [Accession Treaty] permitted the present Member States to exclude Polish nationals from the benefit of Article 7(3) of [the Citizens Directive], where workers, although subject to the national requirement that their employment be registered, had not yet worked for an uninterrupted period of 12 months following the fulfilment of that requirement. In those circumstances, Polish nationals may not rely on Article 7(3) of Directive 2004/38."
The Court will consider Advocate General Wathelet's Opinion and deliver judgment in due course.
A link to the Opinion is here.
Richard Drabble QC represented Mr Prefeta; David Blundell represented the United Kingdom.
