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Even 'undeclared work' counts for the purposes of the EU citizen's residence

Court of Rome, order of 20 June 2022

Even 'undeclared work' counts for the purposes of the EU citizen's residence: the right to permanent residence established

The Court of Rome had been seized by an E.U. citizen to ascertain his right to permanent residence (art. 14) under the provisions of Legislative Decree 30/2007, in the face of the refusal to issue the relevant certificate (art. 16) by the Municipality of Rome. According to the latter, he had failed to prove that he had fulfilled, for at least five years, the conditions for residence for a period of more than three months set out in Article 7, and in particular that he had demonstrated that he was working as an employee or self-employed person.

The Court first established that the notion of "legal residence" referred to in Article 14, a prerequisite for the acquisition of the right to permanent residence, must be found in Article 45 of the T.F.U.E. and in Directive 2004/38/EC on the free movement of EU citizens and their family members and in the interpretation provided in this regard by the European Court of Justice. From this assumption, the Court first of all drew a first conclusion: the regularity of the stay according to national legislation is not relevant, but only its conformity with the relevant EU provisions must be ascertained.

On the basis of this, the Court held that the fact that the appellant's work was only irregular (he had worked for a long time as a labourer and bricklayer 'by the day' on various building sites, without any contractual cover) was irrelevant in the light of the consideration that 'recognition of the status of worker, for the purposes of the application of European Union law, cannot depend on the classification given by the parties to the employment relationship or on the conclusion of an employment contract, but on the analysis of the factual elements'. Referring to the case-law of the Court of Justice of the European Union, the Court of Rome established the need to ascertain the existence of three objective criteria 'relevant, therefore, at the level of the actual conduct of the relationship and regardless of the classification given to it by the parties' and according to which the appellant's activity had to be classified as work for the purposes of EU law in the light of 'a) the "real and actual" nature of the service (personally) rendered; b) subjection to the power of direction and control of the employer; c) the fact that the appellant's work was not in the nature of work for the purposes of EU law'.

Proof of this activity was provided by declarative evidence (the examination of a witness with whom the applicant had shared an activity in the construction sector) and documentary evidence (the verification of invalidating pathologies contracted in Italy as a result of carrying out usurious activities without protection).

Lastly, the Court emphasised the recurrence in the present case of the hypothesis set out in Article 15 letter b of Legislative Decree 30/2007, which states that the right to permanent residence is acquired before the five-year period when the worker "ceases to carry out the professional activity due to a supervening permanent inability to work". In fact, the Court observed that "the recognition of civil invalidity, with a loss of working capacity from 74% to 99%" shows that "the interruption of the working activity occurred independently of the will" of the applicant and that the "impossibility of ascertaining the occupational disease by the competent bodies, due to the performance of work activities without a regular contract" must be taken into consideration.

Prof. Avv. Paolo Iafrate

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