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MEMO/08/778

Brussels, 10 December 2008

The Directive on the right of EU citizens to move and reside freely in the European Union / The Commission issues report on the application of the Directive

Article 18 of the EC Treaty stipulates that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

The respective limitations and conditions are to be found in Directive 2004/38/EC[1] on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

The right to free movement and residence is one of the most visible rights conferred to Union citizens. More than eight million EU citizens have taken advantage of their rights and now live in another Member State. Many more make good use of their rights of free movement by travelling as tourists or for business.

Member States had to bring into force the laws and administrative provisions necessary to comply with the Directive by 30 April 2006.

The purpose of this report is to present a comprehensive overview of how the Directive is transposed into national law and how it is applied in everyday life. With this report, the Commission is discharging its obligation under Article 39(1) of the Directive to draw up a report on the application of the Directive and to submit it to the European Parliament and the Council.

A. Conclusions of the report

MONITORING OF TRANSPOSITION OF THE DIRECTIVE

Communication by Member States of national implementing measures was incomplete and late in a large number of cases. The Commission initiated infringement proceedings against 19 Member States for their failure to communicate the text of the provisions of national law adopted to transpose the Directive.

As Member States have been gradually adopting the transposition measures, the infringement proceedings for non-communication have been closed. The last three proceedings were closed only in November 2008.

COMPLIANCE OF THE TRANSPOSITION MEASURES

The overall transposition of the Directive 2004/38/EC is rather disappointing. Not one 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.

Although in Cyprus, Greece, Finland, Luxembourg, Malta, Portugal and Spain the problems of compliance are linked only to some provisions of the Directive, considerable parts and crucial provisions of the Directive have been incorrectly transposed in most Member States.

The most serious problems of compliance have been identified in the following areas:

right of residence of ‘extended’ family members often not respected (family members other than spouse and relatives in direct line);

issue of entry visa for third country family members often very problematic (no specific facilities created for this category, visas are not issued quickly enough and additional documents, not foreseen in the Directive, are required to be submitted with the application for the entry visa ...);

right of residence is often made subject to conditions not foreseen in the Directive;

right of residence of self-sufficient EU citizens is often impaired by incorrect transposition;

issue of residence documents, notably to third country family members, is often substantially delayed or made subject to conditions not foreseen in the Directive;

transposition of material and procedural safeguards that define the balance between the right of residence of EU citizens and their families, on one hand, and the right of Member States to restrict this right on grounds of public policy or public security is often patchy or insufficient.

STEPS TO BE TAKEN

The responsibility for ensuring that the Directive is transposed and implemented correctly and that EU citizens are informed of their rights lies with the Member States.

The Commission will step up its efforts to ensure that the Directive is correctly transposed and implemented across the EU. In order to achieve this result, the Commission will use fully its powers under the Treaty and launch infringement proceedings when necessary.

The Commission will continue working at technical level with the Member States.

The Commission intends to offer information and assistance to both Member States and EU citizens by issuing guidelines in the first half of 2009 on a number of issues identified as problematic in transposition or application, such as expulsions and fight against abuse, in order to offer guidance as to how those may be resolved.

The Commission will continue to treat provision of information on the Directive as a priority and will continue to distribute a simplified guide for EU citizens, making the best use of the Internet, mainly through Your Europe portal, the creation of an article on Wikipedia on the right of free movement and simple ‘factsheets’ explaining citizens’ rights.

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

B. Information about Directive 2004/38/EC

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.

In order to remedy the sector-by-sector, piecemeal approach to the right of free movement and residence and to facilitate its exercise, 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. The Directive is largely based on a number of existing Directives, the oldest of which dates back to 1964.

This Directive represents a major step forward in terms of aligning freedom of movement and residence in relation with the expectations expressed by EU citizens.

What were the major innovations of the Directive?

Extended EU citizens’ family reunification rights to the registered partner provided the host Member State treats registered partners as equivalent to marriage (thirteen Member States do so - Belgium, Bulgaria, Czech republic, Denmark, Finland, Italy, Lithuania, Luxembourg, Portugal, Netherlands, Spain, Sweden and the UK.).
Granted new rights to family members in the event of death or departure of the EU citizen or the dissolution of marriage or registered partnership.
Reduced the formalities linked to its exercise. EU citizens and their families may reside for a period of up to three months without any conditions or formalities other than the requirement to hold a valid identity card or passport.
For periods of residence of more than three months, EU citizens will no longer need to obtain a residence permit in the Member State of residence: a simple registration with the competent authorities is enough, and even this is only required if it is deemed necessary by the host Member State.
Expressly confirmed the right of EU citizens and their families residing in the territory of the host Member State to equal treatment with the nationals of that Member State.
Introduced a right of permanent residence after five years of continued legal residence in the host Member State. This is a clear expression of a European citizenship.
Limited the scope for Member States to end the right of residence of EU citizens and their families on grounds of non-compliance with residence conditions and on grounds of public policy, public security and public health. It provided expressly that an expulsion measure shall not be the automatic consequence of recourse to social assistance in the host member State.
Increased the protection against expulsion on grounds of public policy and public security of EU citizens and their families who have acquired a right of permanent residence and limited the possibility of expulsion of EU 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.
Reinforced the existing procedural guarantees against expulsion and extends them to cases of expulsion on grounds of non compliance with the residence conditions.

C. Examples of added value of Directive 2004/38/EC facilitating daily life of EU citizens and their family members in comparison with previous Community law

Directive 2004/38/EC made travelling easier for family members who previously had to have an entry visa

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 EU directive on free movement exempted Svetlana from the visa requirement as she holds a Czech residence card.

Directive 2004/38/EC addressed 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 EU directive on free movement. He was issued a registration certificate immediately on the spot. The registration certificate does not have to be renewed.

Directive 2004/38/EC extended EU 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. Belgian officials pointed her to the EU directive on free movement and advised her to apply for registration certificate on grounds of her registered partnership with an EU citizen. Belgium treats registered partnership as equivalent to marriage so she will be treated as spouse with all the rights.

Directive 2004/38/EC guaranteed 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 worried about his residence right in Hungary. However, the EU directive on free movement gives the right to reside permanently to all EU citizens who have resided in another Member State for five years.

Directive 2004/38/EC provided 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 the EU directive on free movement he can retain an autonomous right to reside in Greece even in case of death of (or departure of or divorce from) the EU 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 there.

Directive 2004/38/EC granted the right to cross borders without passport

Noura (33) of Moroccan origin and her Latvian husband Ivars just landed in Lisbon where they wish spend their holidays. But when passing the border control she finds out that someone has stolen her passport. However, on the basis of the EU directive on free movement 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.


[1] 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, OJ L 158 of 30 April 2004, p. 77


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