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Brussels, 10 December 2008

Free movement and residence rights of EU citizens and their families: the Commission assesses application by Member States

The Commission adopted today a report on the application of Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the Member States. The report concludes that the overall transposition of the Directive is rather disappointing. It outlines the steps the Commission will take to ensure that Member States improve their laws and administrative practices so that EU citizens’ rights are not impaired.

Vice-president Jacques Barrot, Commissioner in charge for Justice, Freedom and Security, stated "Free movement of persons constitutes one of the fundamental freedoms of the internal market, to the benefit of EU citizens, of the Member States and of the competitiveness of European economy. Flaws in the implementation of EU law in this field might result in a breach of the principles laying at the very core basis of the European construction. This is why the Commission will step up its efforts to ensure that EU citizens and their families effectively and fully enjoy their rights under the Directive. The Commission will use fully its powers under the Treaty to achieve this result, launching infringement proceedings when necessary, providing guidance to the Member States and ensuring that EU citizens are informed of their rights."

Directive 2004/38 provides a single legal instrument on free movement of EU citizens and their family members. The Directive lays down simple administrative formalities and gives to EU citizens and their families a right of permanent residence after five years of residence in the host Member State. The Directive extends family reunification rights to registered partners under certain conditions.

Member States had to bring into force the laws and administrative provisions necessary to comply with the Directive by 30 April 2006. One of the roles of the Commission is to make sure that EU laws are effectively implemented at national or local level for the benefits of EU citizens. Now, after two and a half years, it is time to take stock of how Member States fulfilled this obligation.

All Member States have adopted national laws to protect the right of EU citizens and their families to move and reside freely within the EU.

Although national laws in some areas treat EU citizens and their families better than EU law requires, not one single Member State has transposed the Directive effectively and correctly in its entirety. Not one Article of the Directive has been transposed effectively and correctly by all Member States.

The overall transposition of the Directive is rather disappointing.

Only Cyprus, Greece, Finland, Portugal, Malta, Luxembourg and Spain have correctly adopted more than 85% of provisions of the Directive.

Austria, Denmark, Estonia, Slovenia and Slovakia, on the other hand, have correctly adopted less than 60% of provisions of the Directive.

This is mitigated by the fact that incorrectly transposed provisions of the Directive seem to be , at least in a number of cases, correctly applied by the national courts and authorities, despite the absence of written and clear guidelines for the exercise of judicial and administrative discretion in this area.

The problems revealing persistent violation of the core rights of EU citizens exercising their right to free movement within the EU are mostly related to:

• the right of entry and residence of third country family members (problems with entry visas or when crossing the border, conditions attached to the right of residence not foreseen in the Directive and delayed issue of residence cards),

• the requirement for EU citizens to submit with the applications for residence additional documents not foreseen in the Directive.

The responsibility for ensuring that the rights of EU citizens are guaranteed and that EU citizens are informed of their rights lies with the Member States.

The Commission will continue working at technical level with the Member States. This work has already identified a number of issues that require further discussion and clarification, especially as regards the issues of criminality and abuse.

The Commission intends to offer information and assistance by issuing guidelines in the first half of 2009 on a number of issues identified as problematic in transposition or application.

The Commission will also encourage and support Member States to launch awareness-raising campaigns to inform EU citizens of their rights under the Directive.

For more information on the activities of Vice-President Barrot, please see:

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