Legal provisions of COM(2003)199 - Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (presented by the Commission pursuant to Article 250 (2) of the EC-Treaty) - Main contents
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dossier | COM(2003)199 - Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ... |
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document | COM(2003)199 ![]() |
date | April 15, 2003 |
Contents
- Chapter I - General provisions
- Article 1 - Subject
- Article 2 - Definitions
- Article 3 - Persons entitled
- Article 4 - Non-discrimination
- Chapter II - Right of movement and right of residence for up to six months
- Article 5 - Right of exit
- Article 6 - Right of entry and residence for up to six months
- Chapter III - Right of residence for more than six months
- Article 7 - Conditions governing right of residence
- Article 8 - Administrative formalities for Union citizens
- Article 9 - Administrative formalities for family members who are not nationals of a Member State
- Article 10 - Issuing of residence cards
- Article 11 - Validity of the residence card
- Article 12 - Retention of the right of residence by family members in the event of death or departure of the Union citizen
- Article 13 - Retention of the right of residence of family members in the event of divorce or annulment of marriage or termination of partnership
- Chapter IV - Right of permanent residence
- Section I - Eligibility
- Article 14 - General rule for Union citizens and their family members
- Article 15 - Exemptions for persons no longer working in the host Member State and their family members
- Article 16 - Acquisition of the right of permanent residence by certain family members who are not nationals of a Member State
- Section II - Administrative formalities
- Article 17 - Permanent residence card
- Article 18 - Continuity of residence
- Chapter V - Provisions common to the right of residence and the right of permanent residence
- Article 19 - Territorial scope
- Article 20 - Related rights
- Article 21 - Equal treatment
- Article 22 - General provisions concerning residence documents
- Article 23 - Checks by the authorities
- Chapter VI - Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health
- Article 25 - General principles
- Article 26 - Protection against removal
- Article 27 - Public health
- Article 28 - Notification of decisions
- Article 29 - Procedural safeguards
- Article 30 - Duration of exclusion orders
- Article 31 - Removal as a penalty or legal consequence
- Article 32 - Publicity
- Article 33 - Penalties
- Article 34 - More favourable national provisions
- Article 35 - Repeals
- Article 36 - Report
- Article 37 - Transposal
- Article 38 - Entry into force
- Article 39 - Addressees
Chapter I - General provisions
Article 1 - Subject
(a) the conditions governing the exercise of the right to move and reside freely within the Member States by Union citizens and their family members;
(b) the right of permanent residence in the Member States for Union citizens and their family members;
(c) the limits placed on these rights on grounds of public policy, public security or public health.
Article 2 - Definitions
1. 'Union citizen' means any person having the nationality of a Member State.
2. 'Family member' means:
(a) the spouse;
(b) the partner to whom the Union citizen is linked by registered partnership or with whom he/she has a duly attested durable relationship, if the legislation of the host Member State recognises the situation of unmarried couples, in accordance with the conditions laid down in any such legislation;
(c) the direct descendants and those of the spouse or partner as defined in point (b);
(d) the direct relatives in the ascending line and those of the spouse or partner as defined in point (b).
3. 'Host Member State' means the Member State to which a Union citizen goes in order to exercise his/her right of free movement and residence.
Article 3 - Persons entitled
2. Notwithstanding any right to free movement and residence the persons concerned may have in their own right, Member States shall facilitate entry and residence for any other family members not within the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where there are serious health or humanitarian grounds for doing so.
Article 4 - Non-discrimination
Chapter II - Right of movement and right of residence for up to six months
Article 5 - Right of exit
For family members who are not nationals of a Member State, this right shall be the same as for the Union citizen whom they are accompanying or joining.
2. No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies.
3. Member States shall issue to their own nationals, and renew, an identity card or passport stating their nationality.
4. The passport shall be valid at least for all the Member States of the Union and for countries through which the holder must pass when travelling between Member States. Where the legislation of a Member State does not provide for identity cards to be issued, the period of validity of any passport on being issued or renewed shall be not less than five years.
Article 6 - Right of entry and residence for up to six months
No entry visa or equivalent formality may be imposed on Union citizens.
2. Family members who are not nationals of a Member State may only be required to have an entry visa in accordance with Council Regulation (EC) No 539/2001 or, where appropriate, with national legislation. For the purposes of this Directive, possession of a valid residence permit issued by a Member State shall exempt the holder from the requirement to obtain a visa.
Member States shall accord such persons every facility to obtain the necessary visas. Such visas shall be issued no later than one week after submission of the application and shall be free of charge.
3. The host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they are in possession of a residence permit.
4. Where a Union citizen or family member does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right to freedom of movement.
5. The right of Union citizens to enter the territory of a Member State shall include the right to reside there for a period of up to six months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. The Member State may only require the person concerned to report his/her presence within its territory within a time limit, which may not be less than fifteen days. Failure to comply with this requirement may make the person concerned liable to administrative penalties, which shall be proportionate and non-discriminatory.
6. The provisions of paragraph 5 shall also apply to family members who are third-country nationals accompanying or joining the Union citizen. However, if such family members are required to have a visa, they must apply for a residence card in accordance with Article 9 before their visa expires.
Chapter III - Right of residence for more than six months
Article 7 - Conditions governing right of residence
(a) are engaged in gainful activity in an employed or self-employed capacity or are recipients of services; or
(b) have sufficient resources for themselves and their family members not to become a burden on welfare assistance in the host Member State during their stay and have comprehensive sickness insurance cover in the host Member State; or
(c) are enrolled at an accredited establishment for the principal purpose of following a course of study, including vocational training, and have comprehensive sickness insurance cover in the host Member State; or
(d) are family members of a Union citizen who satisfies conditions (a), (b) or (c).
2. The right of residence shall extend to family members who are not nationals of a Member State, where they accompany or join the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions set out in point (a) or (b) or (c) of paragraph 1.
(2a) For the purposes of point (a) of paragraph 1, Union citizens who are no longer engaged in gainful activity in an employed or self-employed capacity shall retain their employed or self-employed status in the following circumstances:
(a) they are temporarily unable to work as the result of an illness or accident;
(b) they are in duly recorded involuntary unemployment and have registered as a jobseeker with the relevant employment office;
(c) they are in involuntary unemployment after completing a fixed-term employment contract of less than a year and have registered as a jobseeker with the relevant employment office. In such cases, they shall retain worker status for a period which may not be less than six months; where the person concerned has acquired entitlement to unemployment benefits, worker status shall be retained for as long as such entitlement runs;
(d) they embark on vocational training. Unless the person concerned is involuntarily unemployed, retaining worker status shall require the training to be related to their previous occupation.
Article 8 - Administrative formalities for Union citizens
2. The deadline for registration may not be less than six months from the date of arrival. A registration certificate shall be issued on the spot, stating the name and address of the person registering and the date of the registration. Failure to comply with the registration requirement may make the person liable to proportionate and non-discriminatory administrative penalties.
3. For the registration certificate to be issued, Member States may require only that Union citizens to whom point (a) or (b) of Article 7(1) applies present a valid identity card or passport and assure the relevant authority, by means of a declaration or by such equivalent means as they may choose, that they satisfy the conditions laid down therein.
4. For the registration certificate to be issued, Member States may require only that Union citizens to whom point (c) of Article 7(1) applies present a valid identity card or passport and evidence of enrolment at an accredited establishment for the principal purpose of following a course of study, including vocational training, and assure the relevant authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on welfare assistance in the host Member State during their stay and that they have comprehensive sickness insurance cover in the host Member State.
5. Member States may not lay down an amount which they regard as sufficient resources.
6. For the registration certificate to be issued to family members of Union citizens, Member States may require the following documents to be presented:
(a) a valid identity card or passport;
(b) a statement attesting to the existence of a family relationship;
(c) the registration certificate of the Union citizen whom they are accompanying or joining;
(d) in cases falling under point (b) of Article 2(2), proof that the requirements laid down therein are met;
(e) in cases falling under Article 3(2), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants of the Union citizen or members of their household, or proof of the existence of serious health or humanitarian grounds.
Article 9 - Administrative formalities for family members who are not nationals of a Member State
2. The deadline for submitting the residence card application may not be less than six months from the date of arrival. However, family members required to have a visa must apply before their visa expires.
(2a) Family members may not be refused a residence card solely on the grounds that they have no visa or that their visa has expired prior to submission of the application for a residence card.
3. Failure to comply with the requirement to apply for a residence card may make the person concerned liable to proportionate and non-discriminatory administrative penalties.
Article 10 - Issuing of residence cards
2. For the residence card to be issued, Member States shall require presentation of the following documents:
(a) a valid identity card or passport;
(b) a document proving the family relationship;
(c) the registration certificate of the Union citizen whom they are accompanying or joining;
(d) in cases falling under point (b) of Article 2(2), proof that the requirements laid down therein are met;
(e) in cases falling under Article 3(2), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants of the Union citizen or members of their household, or proof of the existence of serious health or humanitarian grounds.
Article 11 - Validity of the residence card
(1a) The validity of the residence card shall not be affected by temporary absences not exceeding six months at a time, or by absences of a longer duration for compulsory military service or for pregnancy and childbirth, or by absences of a maximum of one year at a time for important reasons such as serious illness, study or vocational training, or a work assignment in another Member State or a third country.
Article 12 - Retention of the right of residence by family members in the event of death or departure of the Union citizen
Before acquiring the right of permanent residence, the persons concerned must themselves meet the requirements laid down in points (a), (b), (c) or (d) of Article 7(1).
2. Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of the right of residence of family members dependent on him/her who are not nationals of a Member State.
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are engaged in gainful activity in an employed or self-employed capacity or that they have sufficient resources for themselves and their family members not to become dependent on welfare assistance in the host Member State for the duration of their stay and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of an applicant satisfying these requirements.
Those resources shall be deemed sufficient where they are at least at the threshold below which nationals of the host Member State become eligible for welfare assistance. Where this criterion is not applicable, the applicant's resources shall be deemed sufficient where they are at least equivalent to the minimum social security pension paid by the host Member State.
3. The Union citizen's departure from the host Member State shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, at secondary or post-secondary level, for the purpose of studying there, until the completion of their studies.
Article 13 - Retention of the right of residence of family members in the event of divorce or annulment of marriage or termination of partnership
Before acquiring the right of permanent residence, the persons concerned must meet the requirements laid down in points (a), (b), (c) or (d) of Article 7(1).
2. Without prejudice to the second subparagraph, divorce, annulment of marriage, or termination of the duly attested partnership or relationship referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the duly attested partnership or relationship referred to in point 2(b) of Article 2, the marriage, partnership or the relationship has lasted at least two years, including one year in the host Member State; or
(b) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner, not being a national of a Member State, has custody of the citizen's children; or
(c) this is warranted by particularly difficult circumstances, such as physical or mental abuse within the family, or on humanitarian grounds.
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are engaged in gainful activity in an employed or self-employed capacity or that they have sufficient resources for themselves and their family members not to become a burden on the host Member State for the duration of their stay and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of an applicant satisfying these requirements.
The sufficient resources referred to in the second subparagraph shall be as defined in the third subparagraph of Article 12(2).
Article 13 - a Procedural safeguards in the event of removal for administrative reasons
1. The right of residence shall be retained for such time as the persons concerned satisfy the requirements laid down in Articles 7, 12 and 13.2. The procedures provided for by Articles 28 and 29 shall apply by analogy to all removal decisions taken by the host Member State against Union citizens or their family members on grounds other than public policy, public security or public health.
3. The host Member State may not combine an exclusion order with the removal decision referred to in paragraph 2.
Chapter IV - Right of permanent residence
Section I - Eligibility
Article 14 - General rule for Union citizens and their family members
1a. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year or by longer absences not exceeding twelve months at a time for important reasons such as compulsory military service, serious illness, pregnancy and childbirth, study or vocational training, or a work assignment in another Member State or a third country.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have resided with the Union citizen in the host Member State for four years.
3. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding four years at a time.
Article 15 - Exemptions for persons no longer working in the host Member State and their family members
(a) employed or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or who cease paid employment to take early retirement, provided that they have been working in that State for at least the preceding twelve months and have resided there continuously for more than three years.
If the legislation of the Member State does not accord the right to an old age pension to certain categories of self-employed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60;
(b) employed or self-employed persons who have resided continuously in the Member State for more than two years and cease to work there as a result of permanent incapacity to work.
If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in that Member State, no condition shall be imposed as to length of residence;
(c) employed or self-employed persons who, after three years of continuous employment and residence in the Member State, work in an employed or self-employed capacity in another Member State, while retaining their place of residence in the first Member State, to which they return, as a rule, each day or at least once a week.
For the purposes of entitlement to the rights referred to in points (a) and (b), periods of employment spent in the other Member State shall be treated as having been spent in the host Member State.
Periods of involuntary unemployment duly recorded by the relevant employment office, periods not worked for reasons not of the person's own making and absences from work or cessation of work due to illness or accident shall be regarded as periods of employment.
2. The conditions as to length of residence and employment laid down in point (a) of paragraph 1 and the condition as to length of residence laid down in point (b) of paragraph 1 shall not apply if the worker's spouse or partner as referred to in point 2(b) of Article 2 is a national of the host Member State or has lost the nationality of that State by marriage to that worker.
3. Irrespective of nationality, the family members of an employed or self-employed worker who has acquired the right of permanent residence on the basis of paragraph 1 shall have the right of permanent residence in the host Member State.
4. The family members of employed or self-employed persons who die while still working but before acquiring permanent resident status in the host Member State on the basis of paragraph 1 shall have the right of permanent residence there, on condition that :
(a) the employed or self-employed person had, at the time of death, resided continuously on the territory of that Member State for one year; or
(b) the death resulted from an accident at work or occupational disease; or
(c) the surviving spouse lost the nationality of that State following marriage to the worker.
Article 16 - Acquisition of the right of permanent residence by certain family members who are not nationals of a Member State
Section II - Administrative formalities
Article 17 - Permanent residence card
2. The time limit within which the person entitled must apply for the permanent residence card may not be shorter than two years from the date on which entitlement commenced. However, family members who are not nationals of a Member State must submit the application before their first residence card expires.
Failure to comply with the requirement to apply for a residence card shall render the person concerned liable to proportionate and non-discriminatory administrative penalties.
3. Breaks in residence not exceeding four years at a time shall not affect the validity of the permanent residence card.
Article 18 - Continuity of residence
2. Continuity of residence is broken by any removal decision duly taken against the person concerned, except where enforcement of the decision is deferred.
Chapter V - Provisions common to the right of residence and the right of permanent residence
Article 19 - Territorial scope
Article 20 - Related rights
Article 21 - Equal treatment
The benefit of this right shall be extended to family members who are not nationals of a Member State but enjoy the right of residence or the right of permanent residence.
2. By way of derogation from paragraph 1, until they have acquired the right of permanent residence, the host Member State shall not be obliged to award maintenance grants to persons having the right of residence who have come there to study.
Article 22 - General provisions concerning residence documents
2. The documents listed in paragraph 1 shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents.
Article 23 - Checks by the authorities
In the event of failure to comply with this requirement, Member States may impose the same penalties as those imposed on their own nationals for failure to carry their identity card.
Chapter VI - Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health
Article 25 - General principles
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
Personal conduct may not be considered a sufficiently serious threat unless the Member State concerned takes serious enforcement measures against the same conduct on the part of its own nationals.
3. Expiry of the passport or identity card on the basis of which the person concerned entered the host Member State and was issued with a registration certificate or residence card shall not constitute grounds for removal from the territory.
4. When issuing the registration certificate or residence card and not later than six months from the date of arrival of the person concerned on its territory, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the Union citizen or family member may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.
5. The Member State which issued the passport or identity card shall allow the holder of the document to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.
5a. Member States shall notify the Commission of any decision to remove Union citizens or their family members.
Article 26 - Protection against removal
2. The host Member State may not take a removal decision on grounds of public policy or public security against Union citizens or family members, irrespective of nationality, who have the right of permanent residence within its territory or against family members who are minors.
Article 27 - Public health
2. Diseases occurring after a six-month period from the date of arrival shall not constitute grounds for removal from the territory.
3. Where there are serious indications that it is necessary, Member States may, within six months of the date of arrival, require persons entitled to the right of residence to undergo, free of charge, a medical examination to certify that they are not suffering from any of the conditions referred to in paragraph 1. Such medical examinations may not be required as a matter of routine.
Article 28 - Notification of decisions
2. The persons concerned shall be informed, precisely and in full, of the public policy, public security, or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of state security.
3. The notification shall specify the court with which the person concerned may lodge an appeal, the time limit within which any action must be taken and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed shall be not less than thirty days from the date of notification.
Article 29 - Procedural safeguards
2. This decision shall not, save in cases of urgency, be taken by the administrative authority until the matter has been referred to a competent authority in the host Member State other than the authority qualified to take the decision referred to in paragraph 1, before which the person concerned shall be allowed, should he/she so request, to put their case in person, unless this is contrary to considerations of State security, or to be assisted or represented in the proceedings in the manner provided for by national legislation.
3. Where the appeal against the removal decision is accompanied by an application to suspend enforcement, actual removal may not take place until such time as a decision has been taken on the appeal.
4. The court dealing with the case shall review not only the legality of the decision, but also the facts and circumstances on which the proposed measure is based. It shall also check that the decision is not disproportionate, in particular as to the requirements laid down in Article 26.
5. Member States may exclude the individual concerned from their territory pending the trial, but they may not prevent the individual from appearing in person at the trial.
Article 30 - Duration of exclusion orders
2. Persons excluded on grounds of public policy, public security or public health, may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after two years from notification of the final exclusion order, validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion.
The Member State concerned shall reach a decision on this application within six months of its submission.
3. The persons referred to in paragraph 2 shall have no right of access to the territory of the Member State concerned while their application is being considered.
Article 31 - Removal as a penalty or legal consequence
Article 31 - a Check prior to expulsion
Before enforcing a removal order, the Member State shall check whether the individual concerned is currently and genuinely a threat to public policy or public security and shall assess whether there has been any change in the circumstances since the removal decision was taken.Chapter VII Final provisionsArticle 32 - Publicity
Article 33 - Penalties
Article 34 - More favourable national provisions
Article 35 - Repeals
2. Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC are repealed with effect from 1 July 2005.
Article 36 - Report
Article 37 - Transposal
They shall apply those provisions from 1 July 2005.
When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.
Article 38 - Entry into force
Article 39 - Addressees