Report 2011 - EFTA Court

– the Liechtenstein Government, represented by Dr Andrea
Entner-Koch and Thomas Bischof of the EEA Coordination
Unit, vaduz, acting as Agents;
– the Netherlands Government, represented by Corinna Wissels,
Mielle Bulterman and Jurian Langer, respectively head and
staff members of the European Law Division of the Legal
Affairs Department of the Ministry of Foreign Affairs, The
Hague, acting as Agents;
– the EFTA Surveillance Authority, represented by Xavier Lewis,
Director, and Florence Simonetti, Senior Officer, Department
of Legal & Executive Affairs, acting as Agents;
– the European Commission, represented by Christina
Tufvesson and Michael Wilderspin, Legal Advisers, acting as
Agents.
The Complainant
The first question
27. The Complainant contends that Directive 2004/38 cannot
be interpreted in such a way as to govern merely the right to
permanent residence for Union citizens themselves and not family
members seeking to join them. He submits that Article 16 of
the Directive, which is the legal basis for the right of permanent
residence for Union citizens, expressly precludes reference to the
conditions set out in Chapter iii. He further argues that Article
16(1) expressly provides for a right to permanent residence
not only for Union citizens, but also for their family members.
Moreover, since Article 16(2) allows for such integration even
in the case of family members who are not Union citizens,
subject to the condition of a 5-year period of residence, it is the
Complainant’s view that reunification with family members who
are themselves Union citizens is unconditional. The Complainant
submits, therefore, that what may be regarded as legislative
silence in relation to the acquisition of the right to join a Union
citizen with permanent residence does not constitute a gap
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