Brussels, 2nd May 2006
The Directive on the right to move and reside freely in the Union / Seven million European citizens already live in another Member State
The right to free movement and residence is one of the most visible rights conferred to Union citizens. An estimated seven million Union citizens have taken advantage of their rights and now live in another Member State of the Union.
In the early days of the European project, only workers benefited from free movement. Over the years, this right has been extended, through legislation and case law, to encompass all categories of citizens. People can now move to another EU country to retire, study, or live without engaging in economic activities, as well as moving to work abroad.
However, despite these impressive advances, the Commission is aware, through the many complaints it continues to receive, that Union citizens can still face problems when they move to another Member State. Common concerns include lengthy administrative procedures in obtaining residence documents and problems associated with the application of the rights of family members, especially when they are third country nationals. These difficulties have been highlighted in the regular reports adopted by the Commission on the application of the different instruments on free movement, such as the third report on the application of Directives 93/96, 90/364 and 90/365 on the right of residence for students, economically inactive and retired Union citizens adopted on 5 April 2006.
In order to overcome these difficulties, in May 2001 the European Commission presented a proposal, with the aim of updating existing legislation in order to make it easier for citizens to move around the European Union.
Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, was adopted on 29 April 2004 by the European Parliament and the Council and Member States and the deadline for the Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive, expired on 30 April 2006.
This Directive marks a major step forward in terms of freedom of movement and residence in relation with the existing situation in line with the expectations expressed by citizens.
How do the provisions contained in the Directive improve the current arrangements and meet the concerns expressed by citizens?
1. By bringing together the content of the existing nine directives and one regulation as well as the relevant case-law into one single legislative instrument the Directive will give this right more transparency and make it easier to apply, both for our citizens and for national administrations.
2. It creates a single legal regime for free movement and residence within the context of citizenship of the Union while maintaining the acquired rights of workers. It applies to all categories of Union citizens: job-seekers, workers, self employed persons, providers and recipients of services, students, retired persons and other non economically active Union citizens.
3. It improves and facilitates the exercise of the right to free movement and residence in the following ways:
Two derogations to this right have been foreseen: the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence to students and other inactive persons, nor shall it be obliged, prior to the acquisition of the right of permanent residence, to grant maintenance aid for studies in the form of grants or loans to these same persons.
4. The essential innovation of the Directive is that after five years of continued legal residence in the host Member State, Union citizens and their family members acquire a right of permanent residence which will no longer be submitted to those conditions. This right constitutes a clear expression of a European citizenship.
5. Finally, the Directive limits the scope for Member States to end the right of residence of Union citizens and their family members on grounds of non compliance with residence conditions and on grounds of public policy, public security and public health. It provides expressly that an expulsion measure shall not be the automatic consequence of a Union citizen’s or a family member’s recourse to social assistance in the host member State.
It increases the protection against expulsion on grounds of public policy and public security of Union citizens and their family members who have acquired a right of permanent residence and limits the possibility of expulsion of Union citizens who have resided in a Member State for the previous ten years or who are minors to cases based on imperative grounds of public security.
It reinforces the existing procedural guarantees against expulsion and extends them to cases of expulsion on grounds of non compliance with the residence conditions.
The Commission is closely monitoring progress in the transposition of this Directive. Two meetings were held with Member States' experts on 27 June 2005 and 30 January 2006 in order to monitor progress in transposition. The Commission will give the utmost priority to ensuring that it is correctly transposed into national law.
It is recalled in this context, that the provisions of the Directive are unconditional and sufficiently clear and may relied upon by an individual against the State where that State has failed to implement the directive in national law by the period prescribed or where it has failed to implement the directive correctly. In such case, all organs of the administration including decentralized authorities such as municipalities are obliged to apply those provisions.
6. Examples of added value of directive 2004/38/ec facilitating daily life of EU citizens and their family members
DIrective 2004/38/EC makes travelling easier for family members who previously had to have an entry visa
No more visas for visits to the United Kingdom or any other Member State that does not yet participate in Schengen when the family members who do not hold nationality of a Member State have a residence card.
Angelo (24), an Italian studying biophysics in the Czech Republic, and his Russian wife Svetlana (23) are planning to visit their friends in Glasgow for two weeks in summer. When they called the UK embassy in Prague to arrange for a visa, they were surprised to learn that the new EU directive on free movement exempted Svetlana from the visa requirement as she holds a Czech residence card.
Directive 2004/38/EC now addresses lengthy administrative procedures
Ken (52) from the UK has a problem. He started to work in Germany after ten years of residence in France and now he must apply for a residence permit. He is worried about all the queues, extensive paperwork and an extra visit just to collect the permit! He is positively surprised to learn that the residence permits were abolished by the new Directive. He was issued a registration certificate immediately on the spot. The registration certificate does not have to be renewed.
Directive 2004/38/EC extends Union citizens’ family reunification rules
Nina (36) is a successful entrepreneur from the Netherlands who managed to find a window of opportunity at the Belgian market. She would like Karin, her Brazilian registered partner, to come and join her in Leuven. When Karin arrived, she visited the local municipality and wanted to know what kind of paperwork she should prepare for. Belgian officials pointed her to a new Directive on free movement of persons and advised her to apply for registration certificate on grounds of her registered partnership with a Union citizen. Belgium treats registered partnership as equivalent to marriage so she will be treated as spouse with all the rights.
Directive 2004/38/ec guarantees the right of permanent residence after five years of residence
Helmut (76) from Austria is a pensioner. He has discovered the beauty of Hungary few years ago, resides in Hungary for already six years and decided to spend the rest of his life there. His Austrian old-age pension is more than enough to live without any restrictions in Hungary. He is however slightly worried about his residence right in Hungary. However, the new Directive gives the right to reside permanently to all Union citizens who have resided in another Member State for five years.
Directive 2004/38/EC provides for an autonomous right of residence of family members in case of death/departure/divorce/termination of registered partnership
Pawel (41) from Poland, an ex-inventor and househusband, mourns. His spouse Pawlina, who worked for a multinational company in Athens for three years, has died. Beside all the sorrow he cannot stop thinking about his right of residence in Greece. His wife was the only economically active person in the family and Pawel resided in Greece as her family member. The only income left are money from the royalties he receives regularly. However, thanks to Directive 2004/38/EC he can retain an autonomous right to reside in Greece even in case of death of (or departure of or divorce from) the Union citizen he was dependent on. As the royalties are sufficient he can stay in Greece without any problems. In two more years he will even acquire the right of permanent residence.
Directive 2004/38/EC grants the right to cross borders without passport
Noura (33) of Moroccan origin and her Latvian husband Ivars just landed in Lisbon where they will spend their holidays. But when passing the border control she finds out that someone has stolen her passport. However, on the basis of the new Directive Noura is entitled to enter Portugal even without a passport. All she needs to do is to present documents attesting to her identity and family link with Ivars. She checked her luggage and found a driving licence. She was also included as wife at Ivars’s Latvian ID card. After few phone calls her right to move and reside freely as Ivar’s wife was confirmed and she was let in.
 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) 1612/68 and repealing 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. OJ L 158 OF 30 APRIL 2004 (CORRIGENDUM PUBLISHED IN THE OJ L 229 OF 29 JUNE 2004).