Facts
The State Secretariat for Migration (SEM) contests the right of residence of the defendant after the end of his independent activity, on the grounds that it only began at the age of 73, i.e. after the ordinary retirement age. The defendant claims a right of residence under Art. 4 of Annex I of the Agreement on the Free Movement of Persons (AFMP).
According to Art. 4 Annex I AFMP, nationals of a Contracting Party and their family members have the right to reside in the territory of the other Contracting Party after the end of their professional activity. For self-employed workers, Directive 75/34/EEC applies. This provides that permanent residence is granted to the self-employed worker who, at the time of ceasing his activity, has reached the age laid down by the legislation of that Member State for entitlement to an old-age pension, has pursued his activity in that Member State for at least the preceding twelve months and has resided there continuously for at least three years.
The Federal Tribunal considers that the wording of this provision does not allow the conclusion that the right of residence should only exist if the independent activity was undertaken at the latest three years before the ordinary retirement age. According to the interpretation of the Tribunal, a right of residence also exists when the independent activity began after the ordinary retirement age, provided that the other conditions are met.
Considerations
However, the Federal Tribunal notes that the right of residence under Art. 4 Annex I AFMP is subject to the effective exercise of a serious independent activity. However,…