Explanatory Memorandum to 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 ... |
|---|---|
| source | COM(2003)199  |
| date | 15-04-2003 |
1. On 23 May 2001 the Commission adopted a proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (COM(2001) 257 final).
This proposal was designed to replace and supplement the various legislative instruments in force on freedom of movement for Union citizens. It was drawn up in the context of the new legal and political environment resulting from the introduction of the concept of Union citizenship and set out detailed arrangements for the exercise of the basic right to free movement and residence, a right which is conferred directly by the Treaty on every Union citizen and which has been incorporated as such in the Charter of Fundamental Rights of the Union.
In this respect the proposal represented a significant step forward in defining the key importance of Union citizenship as demonstrated by the basic concept underlying the proposal whereby Union citizens should, mutatis mutandis, be able to move between and reside in Member States in similar conditions to nationals of a Member State moving around or changing their place of residence in their own country.
The main purpose of the proposal was to facilitate the exercise of the right to free movement and residence by reducing administrative formalities to an absolute minimum, by providing as clear a definition as possible of the status of family members, by creating a permanent right of residence acquired after a continuous period of four years of legal residence in a Member State and by restricting the possibility for Member States to refuse or terminate right of residence on the grounds of public policy.
2. The proposal was sent to Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on 29 June 2001. The Committee of the Regions gave its opinion on 13 March 2002 i and the European Economic and Social Committee on 24 April 2002. i
Parliament referred the proposal to its Committee on Citizens' Freedoms and Rights, Justice and Home Affairs for examination. The Committee on Legal Affairs and the Internal Market, the Committee on Culture, the Commission on Women's Rights and Equal Opportunities, and the Committee on Petitions were also consulted.
After examining the opinions of the other Committees consulted, the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs adopted its report on 23 January 2003.
At its sitting on 11 February 2003 Parliament adopted a legislative resolution endorsing the Commission proposal subject to a number of amendments and called on the Commission to amend its proposal accordingly pursuant to Article 250 i of the EC Treaty.
Contents
- 2. Legal basis and procedure
- 3. Amended proposal
- 3.1. Amendments accepted in whole or in part or introduced in the interests of consistency
- 3.1.1. Recitals
- 3.1.2. The articles
- 3.2. Amendments which cannot be accepted
- Amendment 11
- Amendments 14, 15 and 16
- Amendments 17 and 18
- Amendment 19
- Amendments 26, 32 (in part), 42, 43 and 44
- Amendments 22, 23, 31, 45, 53, 56, 57, 58, 60, 63, 66 and 69
This amended proposal for a Directive is based on Articles 12, 18 i, 40, 44 and 52 of the EC Treaty. Entry into force of the Treaty of Nice on 1 February 2003 does not require a change in the legal basis.
But the procedure for adopting the proposal has now changed and the Council must act by qualified majority in accordance with the new wording of Article 18 i.
1. Parliament endorses the general approach and the main principles underlying the Commission proposal, notably in respect of the major items, such as abolition of the residence card and its replacement by optional registration, introduction of a statement instead of a requirement to prove compliance with the conditions for residence, establishment of the right of unconditional permanent residence and absolute protection against expulsion for minors and persons having acquired a right of permanent residence.
It adopted 82 amendments. The Commission is able to accept all or part of most of these amendments as they comply fully with its approach and constitute valuable additions, expanding on and clarifying the Commission text.
However, it is not possible to incorporate some of the amendments in the amended proposal.
These include firstly the amendments to Article 2 on the definition of family members, in particular the concept of spouse and partner. Parliament's amendments would recognise as family members the spouse of the same sex in the same way as the spouse of a different sex, the registered partner in accordance with the legislation of the Member State of origin, and non-married partners in accordance with the legislation or practice of the host or home Member State.
On this point the Commission feels that harmonisation of the conditions of residence for Union citizens in Member States of which they are not nationals must not result in the imposition on certain Member States of amendments to family law legislation, an area which does not fall within the Community's legislative jurisdiction.
The Commission feels that the amended proposal represents an equitable solution to these issues: firstly, it complies with the principle of non-discrimination in as much as it requires Member States to treat couples from other Member States in the same way as its own nationals; and, secondly, it allows for a possible change in interpretation in the light of developments in family law in the Member States.
2. The second category of amendment which cannot be accepted comprises those which are designed to alter substantially the structure of the Directive or which undermine the approach proposed by the Commission, which Parliament has nonetheless endorsed.
3. And finally, the Commission has not incorporated the amendments the content of which was not coherent with the text of the proposal.
The amendments to the initial proposal for a Directive appear in bold. To make comparison with the original text easier, the original numbering of articles and recitals has been retained.
Recital 4 (amendment 2): the recital has been amended to reflect the fact that the mobility of employed and self-employed workers is also one of the Union's policy priorities.
Recital 5 (amendment 3): the amendment to this recital is slightly different from the text proposed by Parliament; this is to make it clear that the sector-by-sector approach to the right of free movement needs to be remedied, by presenting a single legislative text replacing the existing legislative instruments, and at the same time re-examining their provisions.
Recital 7 (amendment 5): this amendment is designed to make it clear that the provisions of the Directive on entry and residence formalities do not affect the existing provisions on border controls. This is important in view of the fact that in this area procedures applicable to border controls can vary depending on the legislation applicable.
Recital 7a (amendment 6): the text of the recital has been clarified and is now consistent with the new text of Article 6 i.
Recital 8 (amendment 7): the amendment makes it quite clear that stays not exceeding six months are not subject to any conditions.
Recital 9 (amendment 8): the amendment is designed to make it clear that vocational training is included in the general concept of study. A reference to sickness insurance has been added to the recital to make it consistent with the amendment to point (c) of Article 7 i.
Recital 10 (amendment 9): the change here makes it clear that the right to freedom of movement for Union citizens stems directly from the Treaty.
Recital 17 (amendment 10): the amendment makes it clear that there must be equal treatment in the areas covered by the Treaty; this is in line with the wording of Article 12 of the Treaty.
Recital 19 (amendment 11): this amendment, which was not proposed by Parliament, is nonetheless necessary to ensure consistency between the recital and the new text of Article 21 i.
Recital 22 (amendment 12): this amendment makes the text more explicit by listing a number of points to be taken into account before the removal decision. The Commission has amended Parliament's text slightly, though remaining faithful to the underlying idea, to make the recital consistent with Article 26.
Recital 27 (amendment 13): this amendment adds a reference to the fundamental freedoms.
Article 3 i (amendment 20): this amendment is designed to facilitate entry and residence for family members not covered by Article 2 where there are serious health or humanitarian grounds for doing so. In the Commission's view this is justifiable for family members who, for compelling reasons, need to be near the Union citizen.
Article 4 (amendment 21): this amendment makes the prohibition on discrimination more specific by adding gender identity to the definition.
Article 6 i (amendment 24): the first amendment, which adds a reference to national legislation, is relevant because it covers the situation of Member States which do not apply Regulation No 539/2001. The second amendment is designed to make the text more accurate from a legal point of view; its purpose is to exempt family members who are not nationals of a Member State and are already in possession of a residence permit from the requirement to obtain a visa, not to acknowledge equivalence between residence permit and entry visa. The amendment to the second subparagraph spells out the deadline for issuing the visa: Parliament proposed one week which, in the Commission's view, corresponds to five working days. This should be more than long enough for the Member States as the applicants are family members of a Union citizen for whom the issuing of a visa does not need to be preceded by prior consultations.
Article 6(4) (amendment 25): the amendment makes it clear that the time within which the person concerned must provide the relevant documents has to be reasonable; the period allowed is not specified but must be geared to individual circumstances.
Article 6 i (amendment 8): the aim here is to make it clear that a period of residence of up to six months is not subject to any condition or formality other than possession of identity papers. This amendment was not proposed by Parliament but it is necessary to bring the Article into line with recital i.
Article 7 i, point (a) (amendment 27): the amended text includes a direct reference to recipients of services, thereby avoiding confusion and a gap in the Directive, as the original text did not make it clear which provision covered this category of person.
Article 7 i, point (c) (amendment 28): the new wording is clearer and in line with the text of Directive 93/96 on the right of residence for students; it avoids the concept of student, which can be restrictive, and introduces enrolment at an accredited establishment and sickness insurance cover as requirements for residence for students. This amendment is also in line with the request from the European Economic and Social Committee.
Article 7(2a) (amendment 30): this does not involve any amendment to the text but simply a relocation of Article 8 i; it is in fact a provision on worker status and not an administrative formality and it is therefore preferable to include it in Article 7.
Article 8 i (amendment 32): the Commission has not taken over the first part of Parliament's proposed amendment as it does not think it is possible to compare the administrative formalities provided for by a Member State for its own nationals with those for nationals from other Member States; it therefore prefers to give Member States the option to require citizens to register even if this requirement does not apply to its own nationals. But the Commission does think that Union citizens should be able to apply to register if they so wish, even in States where this is not compulsory.
Article 8 i (amendment 33): the change here makes it clear that the certificate of registration does not establish right of residence but is simply an administrative formality; this is in line with Court of Justice case-law. It is also made clear that the penalties are administrative (this precision has been added to all the articles on penalties).
Article 8(4) (amendment 34): this amendment is designed to make it clear that vocational training is included in the more general concept of study.
Article 8 i, point (b) (amendment 35): as the people concerned are family members who are themselves citizens of the Union, replacing the document by a simple statement attesting to the existence of a family relationship is in line with the philosophy underlying the proposal and the wording of the preceding paragraphs.
Article 8 i, point (e) (amendment 20): this amendment was not requested by Parliament but is a logical consequence of the new wording of Article 3.
Article 9(2a) (amendment 38): this amendment reflects the points made by the Court of Justice in its ruling of 25 July 2002 in (Case C-459/99) MRAX. Parliament had asked that family members should not be refused a residence card solely on the grounds that their visa had expired but the Commission has added the absence of a visa, thereby bringing the amendment completely into line with the above court ruling.
Article 10 i (amendment 39): the deadline of six months seems more realistic if Member States are to be able to carry out the necessary checks and issue the residence card. The qualification in the certificate of proof that the application for the residence card has been made by a family member is also added as it is not possible to establish this status without a prior check of the documents in question.
Article 10 i: (amendment 40): this amendment lists the documents which can be required from family members who are not nationals of a Member State. This is necessary because the amendment to Article 8 i means that a simple statement attesting to the existence of a family relationship by family members who are not nationals of a Member State is not acceptable.
Article 11(1a) (amendment 41): this amendment makes the text clearer and fair by imposing a time limit on absences.
Article 12(3) (amendment 99): this amendment brings the text of this paragraph into line with the Court of Justice ruling of 17 September 2002 in C-413/99 Baumbast and R, which entitles the parent who has custody of the children to right of residence in the host Member State. This amendment is also in line with the request from the European Economic and Social Committee.
Article 13 i and i, points (a) and (b) (amendments 47, 49, 50 and 51): these amendments, which add a reference to the termination of partnerships covered by point (b) of Article 2 i are a logical reflection of the situation. Moreover, in point (a) the prior duration of the marriage or partnership has been shortened to two years.
Article 13 i, point (c) (amendment 52): the purpose here is to give details of a number of difficult situations which would justify continued entitlement to the right of residence after divorce, annulment of marriage or termination of partnership. This will have a positive impact on the situation of women who are not nationals of a Member State and might be exposed to threats of violence through fear of losing their right of residence if they were to apply for divorce or separation. This amendment is also in line with the request from the European Economic and Social Committee.
Article 13a (amendment 54): this new Article takes over the text of the former Article 24 (which has been deleted); it is more logical to locate it at the end of Chapter III as removal is not possible once the person concerned has acquired permanent right of residence. A first paragraph has also been added to make it clear that the right of residence is retained as long as the conditions for residence are complied with.
Article 14 (amendment 55): the new paragraph 1a takes over and expands on the text of the second sentence of Article 18, which has been deleted. It is more logical to locate this text in the Article on the rules for acquiring permanent right of residence.
Article 15 i (amendment 59): in what is a logical consequence of Article 2(2)(b) a reference to partner has been added.
Article 16 (amendment 61): the text of this Article has been aligned on the wording of Article 14.
Article 17 i (amendment 62): the fact that the residence card was to be valid indefinitely and also renewable every ten years seemed contradictory. The amendment consequently deletes the final sentence of the paragraph on renewal.
Article 17(3) (amendment 64): this new text makes it clear that breaks in residence must last more than four years at a time if they are to affect the duration of the card.
Article 18 i (amendment 55): the second sentence has been deleted and moved to Article 14.
Article 21 i (amendment 108): the aim here is to eliminate exclusion from welfare assistance for persons not engaged in gainful activity before they acquire permanent right of residence. This restriction is not contained in the Directives concerning right of residence for those not in gainful activity. It could be interpreted as retrogressive in relation to the current acquis, notably in the light of the case-law of the Court of Justice. In its ruling of 20 September 2001 in Case C-184/99 Grzelczyk [3] the Court reaffirmed that Union citizens can rely on the principle of non-discrimination set out in Article 12 of the EC Treaty in all situations which fall within the scope ratione materiae of Community law, including those involving the exercise of the right to move and reside freely in another Member State. It affirmed that economically inactive Union citizens who are legally resident in another Member State are entitled, by virtue of their status as Union citizens, to equal treatment with nationals.
[3] [2001] ECR I-6193.
Article 22 (amendment 68): this amendment makes the text clearer and specifies that the person concerned may prove entitlement to the rights stemming from the Directive by any other means.
Article 25 i (amendment 71): this amendment makes a more general reference to all types of decision restricting freedom of movement. The new wording is preferable as it covers all types of measure - removal, refusal of leave to enter the territory and refusal to leave.
Article 25 i (amendment 72): the first amendment includes a specific reference to the principle of proportionality, a general principle of Community law which must always be complied with when measures restricting freedom of movement are adopted. The second amendment adds a reference to the genuine threat to the requirements of public policy, which is in line with the ruling given by the Court of Justice on 27 October 1977 in Case 30/77 Bouchereau [4].
[4] [1977] ECR 1999, paragraph 35.
Article 25(4) (amendment 74): the addition of a reference to a period of six months is to cover the situation of Member States who do not introduce the requirement to register.
Article 25(5a) (amendment 76): this new paragraph imposes a requirement on Member States to notify the Commission of an decisions to remove Union citizens or their family members. As all such decisions are exceptional, this is a reasonable requirement.
Article 27 i (amendment 77): a number of amendments have been made to this paragraph. Removal of the reference to disabilities is logical as only diseases may justify a measure restricting freedom of movement. The standstill clause in the last sentence has been deleted as it was not relevant. And the last amendment is a logical consequence of the new wording of Article 25 i.
Article 27 i (amendment 78): reference to a six-month period instead of to the date of registration or the date of issue of the residence card is more in keeping with the structure of the Directive and will also encompass the situation of the Member States who do not introduce the registration requirement. Reference to refusal of the permanent residence card has been removed as it cannot be refused for reasons of public health.
Article 27(3) (amendment 79): reference to a six-month period is designed to restrict the period during which Member States may require persons to undergo a medical examination; this is consistent with the text of the previous paragraph.
Article 28 i and i (amendment 80): the phrase 'in writing' has been removed from paragraph 2 and inserted in paragraph 1 to make it clear that notification must always be in writing and that it is the precise grounds for the decision which do not have to be notified to the person concerned if state security were likely to be put at risk as a result.
Article 28(3) (amendment 82): there is now a single time limit for leaving the territory - thirty days from the date of notification.
Article 29 i (amendment 83): the amendment is designed to make it clear that there must always be judicial redress and that administrative redress is also possible if it is provided for by the host Member State (for example before judicial redress).
Article 29 i (amendment 84): deletion of the first phrase is to ensure that all decisions are subject to prior checks by an independent authority, not only where there is provision for administrative appeal.
Article 29(3) (amendment 113): the Commission has incorporated part of the amendment proposed by Parliament making judicial redress procedures automatically suspensory; this is in line with the general principle of Community law relating to effective remedy as provided for in Article 47 of the Charter of Fundamental Rights of the European Union. However, the Commission has expanded on the amendment by making provision for automatic suspension of enforcement until such time as the judge has pronounced. This amendment has a number of advantages. It requires Member States to empower their courts to accede to requests for suspension of the removal order: an application for interim measures must therefore be possible. Member States will have to organise such a procedure efficiently and rapidly as, pending the court decision on the request for suspension, enforcement of the order to leave the territory is suspended. However, this formula does not force Member States to guarantee the suspensive effect of the redress procedure until such time as a decision is taken on the legality of the removal order. It does not therefore impose disproportionate obligations on the Member States, and thus conforms fully to the requirements imposed by Article 13 of the European Convention on Human Rights in respect of removal.
Article 29(4) (amendment 85): this minor amendment serves to stress that the elements listed in Article 26 simply constitute a reference for checking that the decision is not disproportionate.
Article 30 i (amendment 86): the amendments to the first subparagraph make the text clearer. The six-month deadline which replaces the three-month deadline in the second subparagraph is more realistic.
Article 31a (amendment 88): this new Article takes over the content of the old Article 31 i. It is in fact more logical for this text to constitute a separate article.
Article 32 (amendment 89): the amendment spells out how the information should be disseminated.
Article 33 (amendment 90): this amendment makes the principles of effectiveness and proportionality the only reference points for the penalties; this would seem fair.
Articles 35, 36 and 37 (amendments 91, 92 and 93): the amendments here are to the date of entry into force of the Directive. Parliament proposed July 2004 but in view of the status of the negotiations this does not seem realistic. The Commission is of the opinion that the new Directive will be adopted during the first half of 2004 and is therefore proposing transposal by July 2005.
Amendment 4
For the reasons spelled out below in respect of amendments 14, 15 and 16, the Commission is unable to accept the proposed amendment to recital i. This relates to the amendments proposed to Article 2 and involves the mutual recognition of and respect for the diversity of family relations, whether they involve marriage, registered partnership or partnership outside marriage, on the basis of equality and the fundamental right to family life.
The Commission cannot accept the amendment proposed to recital i. In combination with Article 21 i it aims to exclude the economically inactive from entitlement to welfare assistance during the first six months of residence. This is not consistent with the amendment proposed by Parliament to Article 21 i and accepted by the Commission.
These proposed amendments are designed to recognise as family members the spouse and registered partner, irrespective of sex, on the basis of the relevant national legislation, and the unmarried partner, irrespective of sex, with whom the Union citizen has a durable relationship, if the legislation or practice of the host and/home Member States treats unmarried couples and married couples in a corresponding manner and in accordance with the conditions laid down in any such legislation. These amendments cannot be accepted.
With regard to marriage, the Commission is reluctant to opt for a definition of the term spouse which makes a specific reference to spouse of the same sex. For the moment only two Member States make legislative provision for marriage between partners of the same sex. Moreover, in its case-law i the Court of Justice has made it clear that, according to the definition generally accepted by the Member States, the term marriage means a union between two persons of the opposite sex. The Court has also ruled that an interpretation of legal terms on the basis of social developments that has effects in all the Member States must take into account the situation in the whole Community. i The Commission therefore prefers to restrict the proposal to the concept of spouse as meaning in principle spouse of a different sex, unless there are subsequent developments.
[2001] I-4319, paragraph 34.
[1986] 1283, paragraph 13.
With regard to partners, whether they be registered partners or unmarried partners, the Commission is also of the opinion that recognition of such situations must be based exclusively on the legislation of the host Member State. Recognition for purposes of residence of non-married couples in accordance with the legislation of other Member States could pose problems for the host Member State if its family law does not recognise this possibility. To confer rights which are not recognised in the case of its own nationals on couples from other Member States could in fact create reverse discrimination, which the Commission would prefer to avoid.
However, the Commission has gone along with Parliament's wish to make specific references to registered partners in its amended point (b) of Article 2 i.
These proposed amendments, which would insert a specific reference in points (c) and (d) of Article 2 i to relatives in the ascending and descending lines of registered partners in line with amendment 15, which proposes a separate reference to the registered partner in a new point (a) of Article 2 i, cannot be accepted. However, the Commission has modified the new wording of point (b) of Article 2 i to introduce a specific reference to the registered partner and the concept of durable relationship.
This proposed amendment would incorporate in Article 2(3) a definition of the home Member State and the criteria to be used for determining what constitutes a durable relationship. This reference to the legislation of the home Member State is not acceptable for the purpose of defining spouse or partner. Moreover, the definition of durable relationship is not necessary as it is the legislation of the host Member State that determines the factors that have to be taken into account.
These amendments cannot be accepted as they would substantially alter the structure of the Directive or undermine the approach proposed by the Commission.
These amendments cannot be accepted as they are not consistent with the Commission proposal.