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The judgment in Ziólkowski and Szeja sheds new light on the right to permanent residence provided for by Directive 2004/38. The Court of Justice held that periods of lawful residence based on national law of the Member States do not count towards the five-year limit laid down in art.16 of the Directive. Only those who comply with the criteria provided in art.7 of the Directive (or predecessor legislation) can benefit from the right in question. The reasoning of the Court of Justice is based on a technical interpretation of applicable law without fundamental rights and EU citizenship in the background. The judgment thus seems to be a Member State pleaser at a time of austerity. This comment explores a number of consequences of this approach.
