# EUR-Lex - 52013PC0151 - EN

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# 52013PC0151

**Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the conditions of  entry and residence  of third-country nationals for the purposes of research, studies, pupil exchange,  remunerated and  unremunerated training , voluntary service  and au pairing  [RECAST] /* COM/2013/0151 final - 2013/0081 (COD) */**

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EXPLANATORY MEMORANDUM

1) Context of the proposal

· Grounds for and objectives of the proposal

Article 79 of the Treaty on the Functioning of the
European Union (TFEU) entrusts the Union with the task of developing a common
immigration policy aimed at ensuring efficient management of migration flows
and fair treatment of third-country nationals residing legally in the Member
States. The present proposal responds to this mandate
and aims to contribute to the implementation of the Europe 2020 Strategy.

The implementation reports[1] of Directives 2005/71/EC of 12
October 2005 on a specific procedure for admitting third-country nationals for
the purposes of scientific research[2]
and Directive 2004/114 of 13 December 2004 on the conditions of admission of
third-country nationals for the purposes of studies, pupil exchange,
unremunerated training or voluntary service[3]
have shown a number of weaknesses of these instruments. These shortcomings concern
key issues such as admission procedures including visas, rights (including
mobility aspects) and procedural safeguards. The current rules are
insufficiently clear or binding, not always fully coherent with existing EU
funding programmes, and sometimes fail to address the practical difficulties
that applicants face. When combined, these problems put into question whether
third-country nationals consistently receive fair treatment under the existing
instruments.

Directive 2004/114/EC on students lays down mandatory
rules for the admission of third-country national students, with an option for
Member States to apply the Directive for school pupils, volunteers and
unremunerated trainees. Directive 2005/71/EC on researchers provides for a fast
track procedure for the admission of third-country researchers who have
completed a hosting agreement with a research organisation approved by the Member State.

The need to improve the current rules is reinforced by
the fact that circumstances and policy context are very different today than
when the Directives were adopted. In the context of the Europe 2020 Strategy
and the need to ensure smart, sustainable and inclusive growth, human capital
represents one of Europe's key assets. Immigration from outside the EU is one
source of highly skilled people, and third-country national students and researchers
in particular are groups which are increasingly sought after. Fostering
people-to-people contacts and mobility are also important elements of the EU’s
external policy, notably vis-à-vis the countries of the European Neighbourhood
Policy or the EU’s strategic partners.

The present proposal aims at improving the provisions of
third-country national researchers, students, school pupils, unremunerated trainees
and volunteers, and applying common provisions to two new groups of
third-country nationals: remunerated trainees and au-pairs. The proposal takes
the form of a Directive amending and recasting Directives 2004/114/EC and
2005/71/EC. Its overall objective is to support social, cultural and economic
relationships between the EU and third countries, foster
the transfer of skills and know-how and promote competitiveness while, at the same time, provide for safeguards ensuring fair treatment of these
groups of third-country nationals.

· General context

The EU is facing important structural challenges
of both demographic and economic nature. The working age population has
practically stopped growing and over the next couple of years it will start
shrinking. For both economic and demographic reasons
the observed patterns of employment growth with emphasis on skilled labour will
persist during the decade ahead. The EU is also facing a
situation of 'innovation emergency'.
Europe is spending 0.8% of GDP less than the US and 1.5% less than Japan every year on Research & Development (R&D). Thousands of the best researchers
and innovators have moved to countries where conditions are more favorable.
Although the EU market is the largest in the world, it remains fragmented and
not enough innovation-friendly. The Europe 2020
Strategy and its Innovation Union flagship initiative set the goal of increased
investment in research and innovation, requiring an estimated extra one million
more research jobs in Europe. Immigration from outside
the EU is one source of highly skilled people, and third-country national
students and researchers in particular are groups which are increasingly sought
after and which the EU needs to actively attract. Third-country national
students and researchers can contribute to a pool of well-qualified potential
workers and human capital that the EU needs to cope with the above-mentioned
challenges.

The EU Global Approach to Migration and Mobility (GAMM) sets the
overarching framework of the EU’s external migration policy. It defines how the
EU organises its dialogue and cooperation with non-EU countries in the area of
migration and mobility. The GAMM aims to contribute – inter alia – to the
achievement of the Europe 2020 Strategy, in particular through its objective of
better organising legal migration and fostering well-managed mobility (alongside
its other pillars dealing with irregular migration, migration and development
and international protection). Particularly relevant in this context are the
Mobility Partnerships, which offer a tailor-made bilateral frameworks for
cooperation between the EU and selected non-EU countries (notably in the EU neighbourhood),
potentially also containing measures and programmes for promoting the mobility
of the groups addressed in this proposal for Directive.

Allowing third-country nationals to acquire
skills and knowledge through a period of training in Europe encourages “brain
circulation” and supports cooperation with third countries, which benefits both
the sending and the receiving countries. Globalization
calls for enhanced relationships between EU enterprises and foreign markets,
while movements of trainees and au-pairs foster the development of human
capital, result in mutual enrichment for the migrants,
their country of origin and the host country and an improved mutual familiarity
between cultures. However, in absence of a clear legal framework, there is also
a risk of exploitation to which trainees and au-pairs are particularly exposed,
with the subsequent risk of unfair competition.

With a view to better optimise those
benefits and to properly tackle those risks, and taking account of the
similarities of the challenges faced by these categories of migrants, the
present proposal amends Council Directive 2004/114/EC on the conditions of
admission of third-country nationals for the purposes of studies, pupil
exchange, unremunerated training or voluntary service, extending its scope to
remunerated trainees and au-pairs and making mandatory provisions on
unremunerated trainees that are currently discretionary, as well as Council
Directive 2005/71/EC on a specific procedure for admitting third-country
nationals for the purposes of scientific research.

· Existing provisions in the area of the proposal

Council Directive 2004/114/EC provides
common rules regarding the conditions of entry and stay of third-country national
students. However, according to Article 3 of Directive 2004/114/EC, Member States
are free to decide, on an optional basis, whether they apply the Directive to
third-country nationals who apply to be admitted for the purposes of pupil
exchange, unremunerated training or voluntary service.

The conditions for the admission of
remunerated trainees are also addressed by the 1994 Council Resolution on
limitations on admission of third-country nationals on the territory of the
Member States for employment[4].
It provides a general definition of trainees and a maximum period of stay.

Council Directive 2005/71/EC provides a specific
procedure for admitting third-country nationals for the purposes of scientific
research.

The recommendation of the European Parliament and of the
Council of 28 September 2005[5]
proposes measures to facilitate the issue by the Member States of uniform
short-stay visas for researchers from third countries travelling within the
Community for the purpose of carrying out scientific research.

The format of a residence permit for
third-country national is laid down in EC Regulation (EC) No 1030/2002. It is
applicable to this proposal.

As regards au-pairs, the European Agreement
on "au pair" Placement of 24 November 1969[6], drawn up by the Council of
Europe, provides a set of European rules. However, the majority of Member
States have not ratified this Agreement.

· Consistency with other policies and objectives of the Union

The provisions in this proposal are
consistent with and supportive of the objectives of the Europe 2020 Strategy and
the EU Global Approach to Migration and Mobility. In addition, setting up
common admission procedures and securing a legal status for trainees and
au-pairs can serve as a safeguard from exploitation.

This proposal is also in line with one of
the objectives of the EU action on education, which is to promote the Union as a world centre of excellence for education and international relations and to
share knowledge better around the world as a means of helping to disseminate
the values of human rights, democracy and the rule of law.

The proposal also complies with the EU's
development policy's focus on eradication of poverty and the achievement of the
Millennium Development Goals. In particular, its provisions on mobility of
trainees between the EU and home countries would allow reliable inflows of
remittances and transfer of skills and investments.

This proposal has positive effects on
fundamental rights, as it strengthens third-country nationals' procedural
rights and recognises and safeguards the rights of remunerated trainees and
au-pairs. In this respect, it is consistant with the rights and principles
recognized by the Charter of Fundamental Rights, notably with Article 7 on the
right to respect of private and family life, Article 12 on freedom of assembly
and association, Article 15(1) on freedom to choose occupation and the right to
engage in work, Article 15(3) on equal working conditions, Article 21(2) on
non-discrimination, Article 31 on fair and just working conditions, Article 34
on social security and social assistance and Article 47 on the right to an
effective remedy and to a fair trial.

2. CONSULTATION OF INTERESTED PARTIES AND IMPACT
ASSESSMENT

· Consultation of interested parties

Discussions with the Member States took
place within the framework of meetings of the Committee on Immigration and
Asylum (CIA). First, on the findings of the implementation reports and,
secondly, in the context of the preparation of this initiative, where, in
addition, Member States submitted their written contributions in response to
questions circulated before the CIA meeting.

Consultation of relevant stakeholders
included workshops organized by European Audiovisual Culture Education Agency
(EACEA) with the Erasmus Mundus community on visa and on Erasmus Mundus Joint
Doctorates, workshops and discussions with National Platforms of youth exchange
organisations (including school pupil and volunteering organisations), and a workshop
on the views of the research Community in a meeting of the EURAXESS bridgehead
organizations[7].

Several workshops were organized by the
European Migration Network (EMN) on international students' mobility, EMN
Ad-hoc queries[8]
as well as a large-scale study on: "Immigration of International Students
to the EU".[9]

An online public consultation was launched
on 1 June 2012 through IPM[10]
and 1461 replies were received. A very large majority of respondents (91%)
thought that the attractiveness of the EU as a destination for researchers
should be improved, with 87% saying the same for students. For both groups the
biggest issues were seen to be visas and residence permits. Over 70% of
respondents thought that the attractiveness of the EU should also be improved
for school pupils, volunteers and unremunerated trainees. There was no
geographical bias between responses from within or outside the EU.

Finally, the relevant results of the public
consultation of the European Research Area framework Communication[11] as well as the results of
Erasmus Mundus Visa Survey of Erasmus Mundus Alumni and students carried out by
the Erasmus Mundus Students and Alumni Association (EMA)[12] at the request of European
Audiovisual, Education and Culture Agency (EACEA) were also taken into account.

· Collection and use of expertise

There was no need for external expertise in addition to
the data collected as indicated above.

· Impact assessment

The following options were considered:

Option 1 (baseline): No change to the existing
situation

Different and diverging solutions with respect to admission
conditions, in particular visa, would continue to be implemented by the Member
States acting independently. The lack of clarity and transparency on these
aspects would remain. Problems with procedural safeguards would continue, and
conditions to exercise intra-EU mobility (in particular in the case of
students) would remain restrictive, whereas remunerated trainees would not be
covered at all by EU legislation. Similarly, regarding access to the labour
market for students and researchers following graduation/finalisation of their
studies/research, different approaches would continue to apply across the EU.

Option 2: Increased communication efforts (in particular in case of
researchers), and strengthened enforcement of the current rules

This option includes better provision of and access to information
to increase the transparency of existing rules and making them better used.
There could also be increased efforts in raising awareness about best practices
among Member States in admitting and protecting groups which are currently not
covered by existing Directives, i.e. au pairs and remunerated trainees. A more
systematic exercise of ensuring that Member States understand and respect their
obligations under these Directives would be carried out.

Option 3: Improvement of admission conditions, rights and procedural
guarantees

This option mainly includes improvements for students, school
pupils, volunteers and unremunerated trainees as it makes admission conditions
comparable to those that apply for researchers and brings some of the rights to
the standard enjoyed by researchers. This option would make rules for the
currently optional groups of school pupils, volunteers and unremunerated
trainees mandatory. Member States would be obliged to
grant every facility to obtain the requisite visas to the third-country
national (students and other categories) who has submitted an application and
meets the admission conditions. There would also be
changes regarding procedural guarantees, mainly through the introduction of time-limits
that oblige Member States' authorities to decide on an application within 60
days. In exceptional circumstances, this time-limit could be extended by an
additional 30 days. Students'
right to work during their period of study would be extended to cover a minimum
of 15 hours per week as of the first year of residence.

Option 4: Further improvement of admission conditions, rights also on intra-EU mobility and procedural guarantees; access
to job-seeking following completion of studies or research project; extended
scope to au-pairs and remunerated trainees

This option aims at a higher degree of
ambition in improving the conditions and rights of the groups covered by
existing Directives, extending the scope of the Directive to au-pairs and
remunerated trainees and introducing specific admission conditions to ensure
better protection for them. Member States would have the possibility to issue
long-stay visas or residence permits, and they should, in case both types of
authorizations would be used, require only the fulfillment of admission
conditions mentioned in the Directive (so that the conditions remain the same
irrespective of the type of authorization).

In case the third-country nationals' stay exceeds
a period of one year, Member States issuing long-stay visas would have to issue
residence permits after the first year. Intra-EU mobility provisions would be
strengthened for researchers and students, and introduced for the first time
for remunerated trainees. In addition, regarding intra-EU mobility, specific,
more favorable rules would apply to beneficiaries of EU programmes including
mobility measures such as Erasmus Mundus or Marie Curie.

Students would obtain the right to work for
a minimum of 20 hours per week as of the first year of residence. After
finalization of their studies/research, students and researchers would be
allowed to stay on the territory to identify work opportunities for a period of
12 months. As for procedural guarantees, Member States would be obliged to
decide on applications within 60 days (all groups), and within 30 days for
Erasmus Mundus and Marie Curie fellows.

The analysis and comparison of the options suggest that there are
problems that cannot be solved by improved communication efforts, and therefore
require an update of the Directives.

Option 4 appears to be the most cost-effective option to meet the
key objectives and brings about positive economic and social impacts. The main
disadvantage of legislative changes would be the costs involved. Member States
will have to make modifications to their legislative frameworks, mainly
concerning authorisations to enter and stay, intra-EU mobility and time-limits
to handle applications. At the same time the costs implied by option 4 would be
relatively limited, and some Member States are already implementing some of the
provisions foreseen.

Since the issues identified are similar for both Directives, and in
order to provide more coherence and clarity of the EU rules, the most effective
way to implement the preferred option is to combine the two Directives in a
single legislative instrument. This will be carried out through a recast of
both Directives, bringing them together in a single legislative act and
proposing new substantial changes.

3. LEGAL ASPECTS OF THE PROPOSAL

· Summary of the proposed action

The proposal establishes the conditions of entry and residence of third-country national
researchers, students, pupils, remunerated and unremunerated trainees,
volunteers and au pairs to the territory of the Member States for a period
exceeding three months. The proposal introduces admission conditions for two
groups of third-country nationals currently not covered by a legally binding EU
legal framework, au pairs and remunerated trainees, to ensure their legal
rights and protection. In the case of third-country national researchers, family
admission is made more favourable, as well as access to the labour market by
family members, and their intra-EU mobility.

The proposal provides that an applicant who
satisfies all the conditions set out for admission to one of the Member States
shall be granted a long-stay visa or residence permit. The proposal facilitates
and simplifies intra-EU mobility for students and researchers, in particular for
those under the Erasmus Mundus/Marie Curie programmes which will be expanded
and see an increase in participation under the next Multiannual Financial
Framework. The proposal increases the rights of students to work part-time and
allows students and researchers, after finalization of studies/research, to
stay on the territory to identify work opportunities for a period of 12 months.

Increased information and transparency are
introduced, as well as time limits for decisions and improved procedural
guarantees, such as written reasons for a decision and rights of appeal. Fees
charged would have to be proportionate.

· Legal basis

Article 79(2) TFEU
empowers the European Parliament and the Council, acting in accordance with the
ordinary legislative procedure, to adopt measures in the following areas:

(a) The conditions of entry and residence,
and standards on the issue by Member States of long-term visas and residence
permits;

(b) The definition of the rights of third-country
nationals residing legally in a Member State, including the conditions
governing freedom of movement and of residence in other Member States.

· Subsidiarity principle

Immigration policy is a competence shared by the
Union and the Member States. The principle of
subsidiarity therefore applies, which involves ensuring that the objectives of
the proposed action could not be achieved sufficiently by the Member States
(necessity test), and considering whether and how these objectives could be
better achieved by action on the part of the Union (European added value test).

The challenge to keep and improve the capacity to attract talent
from outside of the EU has increased and is common to all Member States. Although
each Member State could continue to have its own national system of admitting the
third-country nationals groups concerned by this proposal, this would not
achieve the general objective of increasing the attractiveness of the EU as a
destination for talented migrants. Having one set of common admission and
residence requirements rather than a fragmented situation with diverging
national rules is clearly more efficient and simpler for potential applicants as
well as for organizations involved than having to look into and deal with 27
different systems. In addition, the promotion of intra-EU mobility, one of the
key objectives of this proposal, requires an EU-wide instrument.

With the increased number of initiatives targeting youth and
stimulating cultural, social, educational people-to-people contacts with
nationals of third countries and forms of informal training, the need for
matching them with adequate immigration rules is even greater.

Finally, a minimum uniform level of protection and rights of third-country
students, researchers and other groups should offer solid safeguards against the
exploitation of certain vulnerable categories, such as remunerated trainees and
au-pairs.

The EU added value of the existing Students and Researchers
Directives has been proven over the years, and this proposal will lead to
further improvements.

A transparent legal framework including appropriate safeguards to
ensure a genuine transfer of skills would facilitate economic, social and
cultural international relationships between the Member States and sending
countries. As regards external aspects of migration policy, an EU instrument
covering remunerated trainees will help further deepening of the Global Approach
to Migration and Mobility, as it both provides transfers of skills and
strengthens third countries ́ commitment to fight irregular immigration thanks
to additional legal migration routes. Concerning au-pairs, an EU framework
would help to increase their protection.

One of the key elements of this proposal would be to better tap into
the potential of students and researchers upon finalizing their studies/research.
They constitute a future pool of highly-skilled workers as they speak the
language and are integrated in the host society.

By addressing remunerated trainees who fall outside the scope of
intra-corporate transferees, the proposal would complement the Directive on
intra-corporate transferees which is currently being negotiated with the Council
and the European Parliament.

Provisions aiming at clarifying and promoting rights and residing
conditions would also contribute to the overall objective of enhancing the protection
of fundamental rights.

Given all these considerations, it is
considered that the proposal complies with the subsidiarity principle.

· Proportionality principle

The principle of proportionality applies, meaning that
‘the content and form of Union action shall not exceed what is necessary to
achieve the objectives of the Treaties' - Article 5(4) of the Treaty on
European Union. The proposal complies with the proportionality principle for
the following reasons:

The instrument chosen is a Directive, which gives Member
States a high degree of flexibility in terms of implementation.

The content of the action is limited to what is
necessary to achieve its aim. The proposed rules concern admission conditions,
procedures and authorisations (residence permits and long-stay visas), as well
as rights of students, researchers, pupils, volunteers, trainees and au pairs, which
are the areas that constitute elements of a common immigration policy under
Article 79 TFEU. EU-wide rules already exist for some of these groups but need
to be up-dated and improved, and the content of this proposal is limited to
what is necessary to achieve the above aim.

· Choice of instrument

The proposed instrument is a
Directive. It is the appropriate instrument for this
action as it sets binding minimum standards but, at the same time, gives Member
States the necessary flexibility. Furthermore it is the
most appropriate instrument for bringing together in a single legislative act the
two existing Directives through the recast of both existing Directives, in
order to ensure a coherent legal framework for different groups of third
country nationals coming to the EU.

4. BUDGETARY IMPLICATIONS

The proposal has no implications for the EU
budget.

5. ADDITIONAL INFORMATION

· Transposition clause

The proposal includes a transposition clause.

· Explanatory documents accompanying the notification of transposition
measures

The proposed Directive has a wide personal
scope as regards the different third-country national groups that it covers (researchers, students, school pupils, trainees, volunteers and au-pairs). The proposal also contains a large number of legal obligations,
extending the latter compared to the existing Directives 2005/71/EC and
2004/114/EC. Given this, and the fact that the proposal includes provisions on
a number of groups not yet covered in a mandatory way by the current legal
framework, explanatory documents accompanying the notification of transposition
measures will be needed so that the transposition measures that the Member
States have added to existing legislation are clearly identifiable.

· Detailed explanation of the proposal

CHAPTER I – GENERAL PROVISIONS

Article 1

The proposal is part of the EU’s efforts to
put in place a comprehensive immigration policy. It has two specific purposes.
The first one is to set out the conditions of entry and residence of third-country
nationals to the territory of the Member States for a period exceeding three
months for the purposes of research, studies, pupil exchange, remunerated and
unremunerated training, voluntary service and au pairing. The second is to set
out the conditions of entry and residence of third-country national students
and remunerated trainees in Member States other than the Member State which first grants the third-country national an authorisation on the basis of this
Directive. The third one covers the conditions of entry and residence of third-country
national researchers in Member States other than the Member State which first grants the third-country national an authorisation on the basis of this
Directive.

Article 2

This Article sets out the scope of the proposal, which applies to third-country nationals who apply to be admitted to the
territory of a Member State for the purpose of research, studies, pupil
exchange, remunerated or unremunerated training, voluntary service or au
pairing. The optional provisions of the Students' Directive on pupils,
unremunerated trainees and volunteers have been made mandatory and the general
scope has been extended to cover remunerated trainees and au pairs.

Regarding the groups that are not covered by the
proposal, the proposal very much follows the approach developed in Directive
2004/114/EC and 2005/71/EC. The proposal does not cover, as an example, EU
citizens and their family members. As was the case with previous Directives
2004/114/EC and 2005/71/EC, it also does not cover third-country nationals who
are EC long-term residents given their more privileged status and their specific
type of residence permit, or refugees, those residing in a Member State on a
strictly temporary basis in accordance with EC legislation or under commitments
contained in international agreements, and other limited categories.

Article 3

This Article sets out the definitions used in the
proposal, which are to a large extent common to other existing migration
Directives (most notably 2004/114/EC and 2005/71/EC). The definition of
au-pairs is inspired by the 1969 European Agreement on "au pair"
Placement. The definition of remunerated trainee is based on that for
unremunerated trainee, while highlighting the element of remuneration. The term
"authorisation" is used to cover both residence permits and long term
visas.

Article 4

This Article states that Member States may grant more
favourable conditions for the persons to whom the proposal for Directive applies,
however only in relation to certain specific provisions that concern family
members of researchers, rights to equal treatment, economic activities and
procedural safeguards,
so as not to undermine the scope of the Directive.

CHAPTER II - ADMISSION

Article 5

This Article lays down the general principle that an
applicant who satisfies all the general and specific conditions for admission
shall be granted a residence permit or a long-stay visa by the Member State where the application has been made. The reason for this is to avoid
situations in which the applicant might be refused admission although he or she
fulfils all the conditions but is not granted the necessary visa.

Article 6

This Article lays down the general conditions which all
applicants must fulfil in order to be admitted to a Member State, besides the specific conditions that apply to the different categories of third-country
nationals laid down in the subsequent Articles. The general conditions are very
much in line with those developed in the existing acquis on legal migration,
and include valid documents, sickness insurance and minimum resources. Once the general conditions as well as the specific conditions of admission
are fulfilled, applicants shall be entitled to an authorisation, meaning a
long-stay visa and/or residence permit.

Articles 7, 8 and 9

These Articles set out specific conditions of admission
for third-country national researchers, which already exist in the Researchers'
Directive, in particular the requirement that the research organisation be
approved by the Member State, and that a hosting agreement be signed by both
the approved research organisation and the researcher. This proposal explicitly
lists the elements that should be contained in the hosting agreement. They are
the title and purpose of the research project, the confirmation of the
researcher that he or she undertakes to complete the research project, the confirmation
of the organisation that it hosts the researcher so that he or she can complete
the research project, the start and end date of the research project, information
on the legal relationship between the research organization and the researcher
and information on the working conditions of the researcher. For third-country
national researchers to be aware of research organisations that can enter into
hosting agreements, emphasis is placed on the need for the list of approved
organisation to be publicly available and up-dated whenever a change occurs in
the list.

Articles 10

This provision of Article 10 sets out the specific
conditions of admission for third-country national students, similar to those
already found in the Students Directive.

Articles 11, 12, 13 and 14

These provisions set out the specific conditions of
admission for third-country national school pupils, remunerated and
unremunerated trainees, volunteers and au-pairs, who need to show evidence of
the organisation that is responsible for their exchange, training or,
volunteering. Whereas school pupils, unremunerated trainees and volunteers were
already included in Directive 2004/114/EC on an optional basis, remunerated
trainees is an entirely new group of third-country nationals to be covered. The
same applies to au-pairs. These two latter groups share similar characteristics
with those already addressed by EU law. Both groups benefit from increased
levels of protection. For au-pairs to be admitted there needs to be evidence
that the host family accepts responsibility for example as far as subsistence
and accommodation are concerned. The au-pair stay also needs to be based on an
agreement between the au-pair and the host family defining his/her rights and
obligations. For remunerated trainees the training programme, its duration,
conditions of supervision and working conditions need to be specified. In order
to avoid situations in which trainees are used as 'cheap labour', the host entity
may be obliged to declare that the third-country national is not filling a job.

CHAPTER III - AUTHORISATIONS AND
DURATION OF RESIDENCE

Articles 15, 16 and 17

These provisions set out the information that should be
included on the third-country national's residence permit or long-term visa.
Article 16 specifies that for researchers and students an authorisation should
be granted for at least one year. For all other groups the authorisation is
limited to one year as a rule, with the possibility for exceptions. This is in
line with the durations applied under Directives 2005/71 and 2004/114. Furthermore,
Article 17 enables Member States to provide additional information on the full
lists of Member States where the third country national students or researchers
intend go.

CHAPTER IV -
Grounds for refusal, withdrawal or
non-renewal of authorisations

Articles 18, 19 and 20

These provisions lay down the mandatory and possible
grounds for refusing, withdrawing or not renewing an authorisation,
such as the general and specific conditions for admission no longer being met,
false documents etc., which are standard conditions under the existing
migration Directives.

CHAPTER V-RIGHTS

This proposal introduces a specific chapter
on rights for all groups covered by the proposal.

Article 21

In order to ensure the fair treatment of
third-country nationals falling under the scope of the Directive, this
provision entitles them to equal treatment under the Single Permit Directive[13]. More favourable rights to
equal treatment with nationals of the host Member State as regards branches of
social security as defined in Regulation No 883/2004 on the coordination of
social security schemes are maintained for third-country national researchers, without
the possibility for the limitations laid down by the Single Permit Directive. Furthermore,
third-country national school pupils, volunteers, unremunerated trainees and
au-pairs will benefit of equal treatment rights with nationals of the host
Member State as regards access to goods and services and the supply of goods
and services made available to the public independently on whether Union or
national law gives them access to the labour market .

Articles 22 and 23

Under these provisions third country national researchers
and students are given the right to work, with Member States being able to set certain
limits. Researchers, as was the case under Directive 2005/71, are allowed to
teach in accordance with national legislation. Regarding students, whereas
under Directive 2004/114/EC students were allowed to work for a minimum of 10
hours per week, this period has been increased to 20 hours. With respect to
students' access to economic activities, Member States may continue take into
consideration their labour market situation but this should be done in a
proportionate way in order not to systematically endanger the right to work[14].

Article 24

Article 24 introduces the possibility for students and
researchers, if they fulfil the general admission conditions of the proposal
(except for the condition on being a minor), to stay in the Member State for 12
months upon finalization of their studies/research in order to look for work or
set up a business. A number of Member States already provide for this
possibility but the amount of time may differ. The
possibility to remain in the relevant Member State appears to be an important
factor when third-country national students/researchers choose their country of
destination. This provision thus has the potential to make the Member States
more competitive in the search for talents on a global stage. This is an issue
of common interest in the context of a declining
working-age population and future skills needs and would be in line with the Entrepreneurship 2020 Action
Plan[15]. It would however not be an automatic work
permit, but Member States, could still apply the relevant authorization
procedures. In a period of more than 3 and less than 6
months, Member States could ask the third-country nationals to provide
documentation that they are genuinely seeking for a job (for example, copies of
the letters and CVs sent to employers) or are in the process of setting up a
business. After 6 months, they could also ask third- country
nationals to provide evidence that they have a genuine chance of being engaged
or of launching a business.

Article 25

This Article includes specific provisions on the
admission and access to the labour market of researchers' family members in
derogation to Directive 2003/86/EC with a view to increase the EU
attractiveness to third-country national researchers. Whether or not family
members of researchers can have immediate access to the Member State concerned
as well as to the labour market can play a role in the researcher's decision to
be mobile or not.

CHAPTER VI-MOBILITY
BETWEEN MEMBER STATES

Articles 26 and 27

These Articles set out the conditions under which
researchers, students and trainees can move between the Member States, in order
to facilitate such mobility. For researchers, under Directive 2005/71/EC, the
period for which they are allowed to move to a second Member State on the basis of the hosting agreement concluded in the first Member State has been
extended from 3 to 6 months. For students, provisions were introduced in the
new proposal that also allow them to move to a second Member State for a period
of up to 6 months on the basis of the authorisation granted by the first Member
State. Specific rules apply to third-country nationals who come under EU
mobility programmes, for example the current Erasmus Mundus or Marie Curie
programmes, in order to simplify the exercise of mobility. This will limit
situations in which third-country nationals who qualify for scholarships of
fellowships under EU mobility programmes cannot take them up as they cannot
enter the territory of the Member State concerned.

Article 28

In line with the provisions of the Blue Card Directive,
researchers' family members can move between Member States together with the
researcher.

CHAPTER VII- PROCEDURE AND TRANSPARENCY

Article 29

This provision introduces a time-limit that obliges
Member States to decide on the complete application for an authorisation and
notify the applicant in writing within 60 days (applying for all groups), and
within 30 days for Union programmes including mobility measures such as Erasmus
Mundus and Marie Curie fellows. The current legal framework does not specify
any time limit. Procedural guarantees include the possibility of a legal
challenge against a decision rejecting an application as well as the
requirement for the authorities to give reasons for such decisions in writing,
and ensuring respect for the right to a legal remedy.

Articles 30 and 31

Recognising that availability of information is crucial
for achieving the objectives of this proposal. Article 30 requires the Member
States to make information available on the entry and residence conditions as
set by this proposal, including on approved research organisations and on fees.
In line with existing migration Directives, Article 31 explicitly states that
Member States may charge fees for the processing of applications. In addition,
in line with recent case-law by the European Court of Justice[16], Article 31 introduces a
provision indicating that the amount of such fees should not endanger the
fulfilment of the Directive's objectives.

CHAPTER VIII - FINAL PROVISIONS

Articles 32 to 38

Article 32 requires the Member States to establish national contact
points to exchange information on third-country nationals covered by the
proposal who move between Member States. Such national contact points already
exist in relation to certain existing migration Directives such as the Blue
Card Directive and have proved to be an efficient mechanism allowing technical
communication between the Member States.

Article 33

This provision requires the Member States to communicate to the
Commission statistics on the numbers of third-country nationals granted
authorisations under this proposal, in accordance with Regulation No 862/2007, with the possibility for additional
statistics to be requested by the Commission.

Article 36

This provision provides that the proposal formally repeals the
existing Directives 2005/71/EC and 2004/114/EC on third-country national researchers and
students.

The remaining provisions (Articles 34, 35, 37 and 38) are standard
final provisions dealing with reporting, transposition, entry into force and
addresses of the Directive.

ê 2004/114/EC,
2005/71/EC (adapted)

ð new

2013/0081 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

on the conditions of admission ð entry and residence ï of third-country nationals for the purposes of Ö research, Õ studies, pupil
exchange, ð remunerated and ï unremunerated training or, voluntary service ð and au pairing ï
on a specific procedure for admitting third-country nationals for the
purposes of scientific research

[RECAST]

THE EUROPEAN PARLIAMENT AND THE COUNCIL
OF THE EUROPEAN UNION,

Having regard to the Treaty Ö on the
Functioning of the European Union Õ establishing
the European Community, and in
particular points (3) (a) Ö and (b) Õ (4)(b)of
the first subparagraph of Article 63 Ö 79(2) Õ thereof,

Having regard to the proposal from the European
Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the Opinion of the
European Economic and Social Committee,

Having regard to the Opinion of the
Committee of the Regions,

Acting in accordance with the ordinary
legislative procedure,

Whereas:

ò new

(1)       A number of
amendements are to be made to Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country
nationals for the purposes of studies, pupil exchange, unremunerated training
or voluntary service[17]
and Council
Directive 2005/71/EC of 12 October
2005 on a specific procedure for admitting third-country nationals for the
purposes of scientific research[18].
In the interests of clarity, those Directives should be recast.

(2)       This
Directive should respond to the need identified in the implentation reports of
the two Directives[19] to remedy the identified weaknesses, and to offer
a coherent legal framework for different groups coming to the Union from third
countries. It should therefore simplify and streamline the existing provisions
for the different groups in a single instrument. Despite differences between the groups covered by
this Directive, they also share a number of characteristics which makes it
possible to address them through a common legal framework at Union level.

(3)       This Directive
should contribute to the Stockholm
Programme's aim to approximate national legislation on the conditions for entry
and residence of third-country nationals. Immigration from outside the Union is one source of highly skilled people, and in particular students and researchers
are increasingly sought after. They play an important role to form the Union's key asset – human capital - in ensuring smart, sustainable and inclusive growth,
and therefore contribute to the achievement of the objectives of the Europe
2020 Strategy.

(4)       The shortcomings
highlighted in the implementation reports of the two Directives concern mainly
admission conditions, rights, procedural safeguards, students' access to the
labour market during studies, intra-Union mobility provisions as well as a lack
of harmonization, as coverage of some groups, such as volunteers, school pupils
and unremunerated trainees was left optional to Member States. Subsequent wider
consultations have also pointed to the need for better job-seeking
possibilities for researchers and students and better protection of au-pairs
and remunerated trainees which are not covered by the current instruments.

ê 2004/114/EC
recital 1

(5)       For the gradual
establishment of an area of freedom, security and justice, the Treaty provides
for measures to be adopted in the fields of asylum, immigration and the
protection of the rights of third-country nationals.

ê 2004/114/EC
recital 2 (adapted)

The Treaty provides that the Council is to
adopt measures on immigration policy relating to conditions of entry and
residence, and standards on procedures for the issue by Member States of
long-term visas and residence permits.

ê 2004/114/EC
recital 3 (adapted)

At its special meeting at Tampere
on 15 and 16 October 1999, the European Council acknowledged the need for
approximation of national legislation on the conditions for admission and
residence of third-country nationals and asked the Council to rapidly adopt
decisions on the basis of proposals by the Commission.

ò new

(6)       This
Directive should also aim at fostering people-to-people contacts and mobility, as
important elements of the Union’s external policy, notably vis-à-vis the
countries of the European Neighbourhood Policy or the Union’s strategic
partners. It should allow for a better contribution to the Global Approach to
Migration and Mobility and its Mobility Partnerships which offer a concrete
framework for dialogue and cooperation between the Member States and third
countries, including in facilitating and organizing legal migration.

ê 2004/114/EC
recital 6 (adapted)

One of the objectives of Community action in the
field of education is to promote Europe as a whole as a world centre
of excellence for studies and vocational
training. Promoting the mobility of third-country nationals to the Community
for the purpose of studies is a key factor in that strategy. The approximation
of the Member States' national legislation on conditions of entry and
residence is part of this.

ê 2004/114/EC
recital 7 (adapted)

ð new

(7)       Migration for the purposes
set out in this Directive is by definition temporary and does not depend on
the labour-market situation in the host country,. ð should promote the generation and
acquisition of knowledge and skills. ï Ö It Õ constitutes a
form of mutual enrichment for the migrants concerned, their country of origin
and the host Member State and helps to promote better familiarity among
cultures.

ò new

(8)       This
Directive should promote the Union as an attractive location for research and
innovation and advance the Union in the global competition for talent. Opening
the Union up to third-country nationals who may be admitted for the purposes of
research is also part of the Innovation Union flagship initiative. Creating an
open labour market for Union researchers and for researchers from third
countries was also affirmed as a key aim of the European Research Area (ERA), a
unified area, in which researchers, scientific knowldedge and technology
circulate freely.

ê 2005/71/EC
recital 5 (adapted)

This Directive is intended to contribute to
achieving these goals by fostering the admission and mobility for
research purposes of third-country nationals for stays of more than three
months, in order to make the Community
more attractive to researchers from around the world and to boost its position
as an international centre for research.

ê 2004/114/EC
recital 9 (adapted)

The new Community rules are based on definitions
of student, trainee, educational establishment and volunteer already in use in
Community law, in particular in the various Community programmes to promote
the mobility of the relevant persons (Socrates, European Voluntary Service
etc.).

ê 2004/114/EC
recital 11

Third-country
nationals who fall into the categories of unremunerated trainees and volunteers
and who are considered, by virtue of their activities or the kind of
compensation or remuneration received, as workers under national legislation
are not covered by this Directive. The admission of third-country nationals who
intend to carry out specialisation studies in the field of medicine should be determined by the Member
States.

ê 2005/71/EC
recitals 11, 13 and 14 (adapted)

ð new

(9)       It is appropriate to
facilitate the admission of researchers by establishing ð through ï an admission procedure which does not depend on their legal
relationship with the host research organisation and by no longer requiring a
work permit in addition to a residence permit ð or a long-stay visa ï . Member States could apply similar rules for
third-country nationals requesting admission for the purposes of teaching in a
higher education establishment in accordance with national legislation or
administrative practice, in the context of a research project.
The Ö This Õ specific
admission procedure for
researchers should be based on
collaboration between the
research organisations and the immigration authorities in the Member States. It
should give the former a key role in the admission procedure with a view to
facilitating and speeding up the entry and residence of third-country
researchers in the Community Ö Union Õ while
preserving Member States’ prerogatives with respect to immigration policing Ö policy Õ. Research
organisations approved in advance by the Member States should be able to sign a
hosting agreement with a third-country national for the purposes of carrying
out a research project. Member States should issue a
residence permit ð an authorisation ï on the basis of the hosting agreement if the conditions for entry
and residence are met.

ê 2005/71/EC recital 9 (adapted)

(10)     As the effort to be made to
achieve the said 3 % target Ö of investing
3 % of GDP in research Õ largely
concerns the private sector, which must therefore recruit more researchers in
the years to come, the research organisations potentially eligible Ö that can
be approved Õ under this
Directive Ö should Õ belong to either
the public or private sectors.

ê 2005/71/EC
recital 15 (adapted)

ð new

(11)     In order to make the Community Ö Union Õ more
attractive to Ö for Õ third-country Ö national Õ researchers, ð family members of researchers, as
defined in Council Directive 2003/86/EC of 22 September 2003 on the right to family
reunification[20], ï they should be granted, during their stay, equal
social and economic rights with nationals of the host Member State in a number
of areas and the possibility to teach in higher education establishments
ð should be admitted with them. They
should benefit from intra- Union mobility provisions and they should also have
access to the labour market ï.

ò new

(12)     Where
appropriate, Member States should be encouraged to treat PhD candidates as
researchers.

ê 2005/71/EC
recital 6 (adapted)

(13)     Implementation of this
Directive should not encourage a brain drain from emerging or developing
countries. Back-upMeasures to support researchers’ reintegration into their countries of
origin as well as the movement of researchers should be taken in partnership with the countries of origin with a
view to establishing a comprehensive migration policy.

ò new

(14)     In
order to promote Europe as a whole as a world centre of excellence for studies
and training, the conditions for entry and residence of those who wish to come
to the Union for these purposes should be improved. This is in line with the
objectives of the Agenda for the modernisation of Europe's higher education systems[21], in particular within the
context of the internationalisation of European higher education. The
approximation of the Member States' relevant national legislation is part of
this endeavour.

ò new

(15)     The
extension and deepening of the Bologna process launched through the Bologna
Declaration[22] has led to the progressive convergence of
higher education systems in participating countries but also beyond them. This
is because national authorities have supported the mobility of students and
academic staff, and higher education establishments have integrated it in their
curricula. This needs to be reflected through improved intra-Union mobility
provisions for students. Making European higher education attractive and
competitive is one of the objectives of the Bologna declaration. The Bologna process led to the establishment of the European Higher Education Area.
Streamlining the European higher education sector has made it more attractive
for students who are third-country nationals to study in Europe.

ê 2004/114/EC recital 10

(16)     The duration and other
conditions of preparatory courses for students covered by this Directive should
be determined by Member States in accordance with their national legislation.

ê 2004/114/EC recital 12

(17)     Evidence of acceptance of a
student by an establishment of higher education could include, among other
possibilities, a letter or certificate confirming his/her enrolment.

ê 2004/114/EC
recital 13

ð new

(18)     Fellowships may ð should ï be taken into account in assessing the availability of sufficient
resources.

ò new

(19)     Whilst
Member States had discretion on whether or not to apply Directive 2004/114/EC
to school pupils, volunteers and unremunerated trainees, these groups should
fall now within the scope of this Directive in order to facilitate their entry
and residence and ensure their rights. This Directive should also apply to
au-pairs and remunerated trainees, in order to ensure their legal rights and
protection.

(20)     Remunerated
trainees who come to work in the Union in the context of an intra-corporate
transfer should not be covered by this Directive, as they fall under the scope
of [Directive 2013/xx/EU on intra-corporate transfers].

(21)     As
currently at Union level there is no legal framework regarding third-country
national au-pairs to ensure their fair treatment, provisions should be
introduced to address their specific needs as a particularly vulnerable group.
This Directive should foresee conditions to be fulfilled by both the au-pair
and the host family, in particular as regards the agreement between them which
should include elements such as the pocket money to be received[23].

(22)     Once
all the general and specific conditions for admission are fulfilled, Member
States should issue an authorisation, i.e. a long stay visa and/or residence
permit, within specified time limits. If a Member State issues a residence
permit on its territory only and all the conditions of this Directive relating
to admission are fulfilled, the Member State should grant the third-country
national concerned the requisite visas.

(23)     Authorisations
should mention the status of the third-country national concerned, and the
respective Union programmes including mobility measures. Member States may
indicate additional information in paper format or electronically, provided
this does not amount to additional conditions.

(24)     The
different periods of duration regarding authorisations under this Directive
should reflect the specific nature of the stay of each group.

(25)     Member
States may charge applicants for processing applications for authorisations.
The fees should be proportionate to the purpose of the stay.

(26)     The
rights granted to third-country nationals under this Directive should not
depend on whether the authorisation is in the form of a long stay visa or a
residence permit.

ê 2004/114/EC recital 8

ð new

(27)     The term admission covers
the entry and residence of third-country nationals ð to and in a Member State, ï for the purposes set out in this Directive.

ê 2004/114/EC
recital 14 (adapted)

ð new

(28)     Admission may be refused on
duly justified grounds. In particular, admission could be refused if a Member State considers, based on an assessment of the facts, ð in an individual case, ï that the third-country national concerned is a potential threat to
public policy or, public security ð or public health ï . The notion of public policy may
cover a conviction for committing a serious crime. In this context it has to be
noted that the notions of public policy and public security also cover cases
in which a third-country national belongs or has belonged to an association
which supports terrorism, supports or has supported such an association, or has
or has had extremist aspirations.

ê 2004/114/EC recital 15 (adapted)

(29)     In case of doubts
concerning the grounds of the application of Ö for Õ admission,
Member States should be able to require all the evidence necessary to assess
its coherence, in particular on the basis of the applicant's proposed Ö intended Õ studies Ö or
training Õ , in order to
fight against abuse and misuse of the procedure set out in this Directive.

ò new

(30)     National
authorities should inform third-country nationals who apply for admission to
the Member States under this Directive of a decision on the application. They
should do so in writing as soon as possible and, at the latest within 60 days,
or, as soon as possible and at the latest within 30 days in the case of
researchers and students covered by Union programmes including mobility
measures, starting from the date of the application.

ê 2004/114/EC
recital 16 (adapted)

ð new

(31)     The Ö intra-Union Õ mobility of students
who are third-country Ö national
researchers, students and remunerated trainees Õ studying
in several Member States should be
facilitated, as must the admission of third-country nationals
participating in Community programmes to promote mobility within and towards
the Community for the purposes set out in this Directive. ð For researchers, this Directive should
improve the rules relating to the period for which the authorisation granted by
the first Member State should cover stays in a second Member State without requiring a new hosting agreement. Improvements should be made regarding the
situation of students, and the new group of remunerated trainees, by allowing
them to stay in a second Member State for periods lasting between three and six
months, provided that they fulfil the general conditions laid down in this
Directive. For third-country national trainees coming to the Union as
intra-corporate transferees, specific intra-Union mobility provisions designed
according to the nature of their transfer should apply in accordance with
[Directive 2013/xx/EU on intra-corporate transfers].ï

ò new

(32)     Union
immigration rules and Union programmes including mobility measures should
complement each other more. Third-country national researchers and students
covered by such Union programmes should be entitled to move to the Member
States foreseen on the basis of the authorisation granted by the first Member State, as long as the full list of those Member States is known before entry into the Union. Such an authorisation should allow them to exercise mobility without the need to
provide any additional information or to complete any other application
procedures. Member States are encouraged to facilitate the intra-Union mobility
of third-country national volunteers where volunteering programmes cover more
than one Member State.

ê 2004/114/EC
recital 18 (adapted)

ð new

(33)     In order to allow Ö third-country
national Õ students who are
third-country nationals to ð better ï cover part of the cost of their studies, they should be given ð increased ï access to the labour market under the conditions set out in this
Directiveð , meaning a minimum of 20 hours per
week ï. The principle of access for students to the labour market under
the conditions set out in this Directive should be a general rule. However, in exceptional circumstances
Member States should be able to take into account the situation of their
national labour markets ð , although this must not risk
entirely negating the right to work ï .

ò new

(34)     As
part of the drive to ensure a well-qualified workforce for the future, Member
States should allow students who graduate in the Union to remain on their
territory with the intention to identify work opportunities or to set up a
business for 12 months after expiry of the initial authorisation. . They should
also allow researchers to do so upon completion of their research project as
defined in the hosting agreement. This should not amount to an automatic right
of access to the labour market or to set up a business.They may be requested to
provide evidence in accordance with Article 24.

(35)     The
provisions of this Directive are without prejudice to the competence of the
Member States to regulate the volumes of admission of third-country nationals
for the purpose of work.

(36)     To
make the Union more attractive for third-country national researchers,
students, pupils, trainees, volunteers and au pairs, it is important to ensure
their fair treatment in accordance with Article 79 of the Treaty. These groups
are entitled to equal treatment with nationals of the host Member State under
Directive 2011/98/EU of the European Parliament and of the Council of 13
December 2011 on a single application procedure for a single permit for
third-country nationals to reside and work in the territory of a Member State
and on a common set of rights for third-country workers legally residing in a
Member State[24].
More favourable rights to equal treatment with nationals of the host Member State as regards branches of social security as defined in Regulation No 883/2004 on
the coordination of social security schemes should be maintained for
third-country national researchers, in addition to the rights granted under
Directive 2011/98/EU. Currently the latter foresees a possibility for Member
States to limit equal treatment with regard to branches of social security,
including family benefits, and this possibility of limitation could affect
researchers. In addition, independently on whether Union or national law of the
host Member State gives third-country national school pupils, volunteers,
unremunerated trainees and au-pairs access to the labour market, they should
enjoy equal treatment rights with nationals of the host Member State as regards
access to goods and services and the supply of goods and services made
available to the public.

ê 2004/114/EC recital 23

(37)     This Directive should not
in any circumstances affect the application of Council Regulation (EC) No
1030/2002 of 13 June 2002 laying down a uniform format for residence permits
for third-country nationals[25].

ê 2005/71/EC
recital 22 (adapted)

This Directive should not affect in any
circumstances the application of Council Regulation (EC) No 1030/2002 of
13 June 2002 laying down a uniform format for residence permits for
third-country nationals[26].

ê 2004/114/EC
recital 4 (adapted)

ð new

(38)     This Directive respects the
fundamental rights and observes the principles recognised by the Charter of
Fundamental Rights of the European Union. ð, as referred to in Article 6 of the
Treaty on European Union ï.

ê 2005/71/EC
recital 25 (adapted)

This Directive respects the fundamental rights and
observes the principles recognised in particular by the Charter of
Fundamental Rights of the European Union.

ê 2004/114/EC recital 5

(39)     The Member States should
give effect to the provisions of this Directive without discrimination on the
basis of sex, race, colour, ethnic or social origin, genetic features,
language, religion or belief, political or any other opinions, membership of a
national minority, property, birth, disability, age or sexual orientation.

ê 2005/71/EC
recital 24 (adapted)

Member States should give effect to the
provisions of this Directive without discrimination on the basis of sex, race,
colour, ethnic or social origin, genetic characteristics, language, religion or
beliefs, political or other opinions, membership of a national minority,
fortune, birth, disabilities, age or sexual
orientation.

ò new

(40)     In
accordance with the Joint Political Declaration of Member States and the
Commission on explanatory documents of 28 September 2011, Member States have
undertaken to accompany, in justified cases, the notification of their
transposition measures with one or more documents explaining the relationship
between the components of a directive and the corresponding parts of national
transposition instruments. With regard to this Directive, the legislator
considers the transmission of such documents to be justified.

ê 2004/114/EC
recital 24 (adapted)

ð new

(41)     Since the objective of this
Directive, namely to determine the conditions of admission Ö entry and residence
Õ of
third-country nationals for the purposes of Ö research Õ study, pupil
exchange, unremunerated ð or remunerated ï training, voluntary service ð or au pairing ï, cannot be sufficiently achieved by the Member States and can, by
reason of its scale or effects, be better achieved at Community Ö Union Õ level, the Community Ö Union Õ may adopt
measures, in accordance with the principle of subsidiarity as set out in
Article 5 of the Treaty. In accordance with the principle of proportionality as
set out in that article, this Directive does not go beyond what is necessary to
achieve that objective.

ê 2005/71/EC
recital 23 (adapted)

The objectives of this Directive, namely the
introduction of a special admission procedure and the adoption of conditions of
entry and residence applicable to third-country nationals for stays of more
than three months in the Member States for the purposes of conducting a
research project under a hosting agreement with a research organisation, cannot
be sufficiently achieved by the Member States, especially as regards ensuring
mobility between Member States, and can
therefore be better achieved by the Community. The Community is therefore
entitled to take measures in accordance with the subsidiarity principle laid
down in Article 5 of the Treaty. In accordance with the principle of
proportionality set out in that article, this Directive does not go beyond
what is necessary to achieve those objectives.

ê 2004/114/EC
recital 22 (adapted)

(42)     Each Member State should
ensure that the fullest possible set of regularly updated information is made
available to the general public, notably on the Internet, Ö about the
research organisations, approved under this Directive, with which researchers
could conclude a hosting agreement, and on the conditions and procedures for
entry into and residence on its territory for the purposes of carrying out
research, as adopted under this Directive as well Õ as regards Ö information
about Õ the
establishments defined in this Directive, courses of study to which third-country
nationals may be admitted and the conditions and procedures for entry Ö into Õ and residence in Ö on Õ its territory
for those purposes.

ê 2005/71/EC
recital 10 (adapted)

Each Member State should ensure that the most
comprehensive information possible, regularly kept up to date, is made publicly
available, via the Internet in particular, on the research organisations,
approved under this Directive, with which researchers could conclude a hosting agreement, and on the conditions
and procedures for entry and residence on its territory for the purposes of
carrying out research, as adopted under this Directive.

ê 2005/71/EC recital 28 (adapted)

(43)     [In accordance with Articles 1
and 2 of the Protocol Ö No
21 Õ on the
position of the United Kingdom and Ireland Ö in
respect of the Area of Freedom, Security and Justice Õ , annexed to
the Treaty on European Union and the Treaty Ö on the
Functioning of the European Union Õ establishing
the European Community, and without
prejudice to Article 4 of the said Protocol, the United Kingdom is not
participating Ö those
Member States are not taking part Õ in the
adoption of this Directive and is Ö are Õ not bound by
it or subject to its application.]

ê 2005/71/EC recital 29 (adapted)

(44)     In accordance with
Articles 1 and 2 of the Protocol on the position of Denmark annexed to the
Treaty on European Union and the Treaty establishing Ö on the Functioning
of Õ the European Ö Union Õ Community, Denmark does not take part in the adoption of this Directive, and
is not bound by it or subject to its application,.

ê 2004/114/EC
recital 17 (adapted)

In order to allow initial entry into their
territory, Member States should be able to issue in a timely manner a residence
permit or, if they issue residence permits exclusively on their territory, a
visa.

ê 2004/114/EC
recital 19 (adapted)

The notion of prior authorisation includes the
granting of work permits to students who wish to exercise an economic activity.

ê 2004/114/EC
recital 20 (adapted)

This Directive does not affect national
legislation in the area of part-time work.

ê 2004/114/EC
recital 21 (adapted)

Provision should be made for fast-track admission
procedures for study purposes or for pupil exchange schemes operated by
recognised organisations in the Member States.

ê 2004/114/EC
recital 25 (adapted)

In accordance with Articles 1 and 2 of the
Protocol on the position of the United Kingdom and Ireland, annexed to the
Treaty on European Union and to the Treaty establishing the European Community,
and without prejudice to Article 4 of the said Protocol, these Member States
are not taking part in the adoption of this Directive and are not bound by it
or subject to its application.

ê 2004/114/EC
recital 26 (adapted)

In accordance with Articles 1 and 2 of the
Protocol on the position of Denmark, annexed to the Treaty on European Union
and to the Treaty establishing the European Community, Denmark is not taking
part in the adoption of this Directive and is not bound by it or subject to its
application,

ê 2005/71/EC
recital 1 (adapted)

With a view to consolidating and giving structure
to European research policy, the Commission considered it necessary in
January 2000 to establish the European Research Area as the lynchpin of the
Community’s future action in this field.

ê 2005/71/EC
recital 2 (adapted)

Endorsing the European Research Area, the Lisbon
European Council in March 2000 set the Community the objective of becoming
the most competitive and dynamic knowledge-based economy in the world by 2010.

ê 2005/71/EC
recital 3 (adapted)

The globalisation of the economy calls for greater
mobility of researchers, something which was recognised by the sixth
framework programme of the European Community[27], when
it opened up its programmes further to researchers from outside the European
Union.

ê 2005/71/EC
recital 4 (adapted)

The number of researchers which the Community
will need by 2010 to meet the target set by the Barcelona European Council in
March 2002 of 3 % of GDP invested in research is estimated at 700000. This
target is to be met through a series of interlocking measures, such as making
scientific careers more attractive to young
people, promoting women’s involvement in scientific research, extending the
opportunities for training and mobility in research, improving career prospects
for researchers in the Community and opening up the Community to third-country
nationals who might be admitted for the purposes of research.

ê 2005/71/EC
recital 6 (adapted)

Implementation of this Directive should not
encourage a brain drain from emerging or developing countries. Back-up measures
to support researchers’ reintegration into their countries of origin as well
as the movement of researchers should be taken in partnership with the
countries of origin with a view to establishing a comprehensive migration
policy.

ê 2005/71/EC
recital 7 (adapted)

For the achievement of the objectives of the Lisbon process it is also important to foster the mobility within the Union of
researchers who are EU citizens, and in particular researchers from the Member
States which acceded in 2004, for the purpose of carrying out scientific
research.

ê 2005/71/EC
recital 8 (adapted)

Given the openness imposed by changes in the world
economy and the likely requirements to meet the 3 % of GDP target for
investment in research, third-country researchers potentially eligible under
this Directive should be defined broadly in accordance with their
qualifications and the research project which they intend to carry out.

ê 2005/71/EC
recital 12 (adapted)

At the same time, the traditional avenues of
admission (such as employment and traineeship) should be maintained, especially
for doctoral students carrying out research as students, who should be excluded
from the scope of this Directive and are covered by Council Directive
2004/114/EC of 13 December 2004 on the
conditions of admission of third-country nationals for the purposes of studies,
pupil exchange, unremunerated training or voluntary service[28].

ê 2005/71/EC
recital 16 (adapted)

This Directive adds a very important improvement
in the field of social security as the non-discrimination principle also
applies directly to persons coming to a Member State directly from a third country. Nevertheless, this Directive should not
confer more rights than those already provided in existing Community
legislation in the field of social security for third-country nationals who
have cross-border elements between Member States. This Directive furthermore
should not grant rights in relation to situations which lie outside the scope
of Community legislation like for example
family members residing in a third country.

ê 2005/71/EC
recital 17 (adapted)

It is important to foster the mobility of
third-country nationals admitted for the purposes of carrying out scientific
research as a means of developing and consolidating contacts and networks
between partners and establishing the role of the European Research Area at
world level. Researchers should be able to exercise mobility under the
conditions established by this Directive. The conditions for exercising mobility under this Directive should not affect
the rules currently governing recognition of the validity of the travel
documents.

ê 2005/71/EC
recital 18 (adapted)

Special attention should be paid to the
facilitation and support of the preservation of the unity of family members
of the researchers, according to the Council Recommendation of 12 October 2005
to facilitate the admission of third-country nationals to carry out scientific
research in the European Community[29].

ê 2005/71/EC
recital 19 (adapted)

In order to preserve family unity and to enable
mobility, family members should be able to join the researcher in another Member State under the conditions determined by the national law of such Member State, including
its obligations arising from bilateral or multilateral agreements.

ê 2005/71/EC
recital 20 (adapted)

Holders of residence permits should be in
principle allowed to submit an application for admission while remaining on the
territory of the Member State concerned.

ê 2005/71/EC
recital 21 (adapted)

Member States should have the right to charge
applicants for the processing of applications for residence permits.

ê 2005/71/EC
recital 26 (adapted)

In accordance with paragraph 34 of the
Interinstitutional agreement on better law-making, Member States will be
encouraged to draw up, for themselves and in the interest of the Community,
their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition
measures, and to make them public.

ê 2005/71/EC
recital 27 (adapted)

In accordance with Article 3 of the Protocol
on the position of the United Kingdom and Ireland, annexed to the Treaty
on European Union and the Treaty establishing the European Community, Ireland has
given notice by letter of 1 July 2004 of its wish to participate in the
adoption and application of this Directive.

ò new

(45)     The
obligation to transpose this Directive into national law should be confined to
those provisions which represent a substantive amendment compared to the
earlier Directives. The obligation to transpose the provisions which are
unchanged arises under the earlier Directives.

(46)     This Directive should be without prejudice to
the obligations of the Member States relating to the time-limits for
transposition into national law and the dates of application of the Directives
set out in Annex I, Part B,

ê 2004/114/EC
(adapted)

ð new

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

This Directive determines:

(a) the conditions for admission ð of entry and residence ï of third-country nationals to the territory of the Member States
for a period exceeding three months
ð 90 days ï for the purposes of Ö research Õ , studies,
pupil exchange, ð remunerated and ï unremunerated training or , voluntary service ð au pairing ï ;

(b) the rules
concerning the procedures for admitting third-country nationals to the
territory of the Member States for those purposes.

ò new

(b)
the conditions of entry and residence of third-country national students and
remunerated trainees for a period exceeding 90 days in Member States other than
the Member State which first grants the third-country national an authorisation
on the basis of this Directive;

(c) the conditions
of entry and residence of third-country national researchers in Member States
other than the Member State which first grants the third-country national an
authorisation on the basis of this Directive.

ê 2005/71/EC
(adapted)

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

This Directive lays down the conditions for the
admission of third-country researchers to the Member States for more than three
months for the purposes of carrying out a research project under hosting
agreements with research organisations.

ê 2004/114/EC
(adapted)

ð new

Article 2

Scope

1. This Directive applies to third-country
nationals who apply to be admitted to the territory of a Member State for the purpose of Ö research Õ , studies, Ö pupil
exchange, Õ ð remunerated or ï Ö unremunerated
training, voluntary service Õ ð or au pairing ï .

2. This Directive shall not apply to Ö third-country
nationals Õ :

(a) third-country
nationals residing in a Member State as asylum-seekers, or under subsidiary forms of protection, or under temporary
protection schemes;

(b) third-country
nationals whose expulsion has
been suspended for reasons of fact or of law;

(c) third-country
nationals who are family members of
Union citizens who have exercised their right to free movement within the Union;

(d) third-country
nationals who enjoy long-term
resident status in a Member State in accordance with Council Directive
2003/109/EC[30]
and exercise their right to reside in another Member State in order to study or
receive vocational training;

(e) third-country
nationals considered under the
national legislation of the Member State concerned as workers or
self-employed persons.

ò new

(f)
who, together with their family members, and irrespective of their nationality,
enjoy rights of free movement equivalent to those of citizens of the Union
under agreements either between the Union and the Member States or between the Union and third countries.

(g)
trainees who come to the Union in the context of an intra-corporate transfer
under [Directive 2013/xx/EU on intra-corporate transfers].

ê 2004/114/EC
(adapted)

Article 3

Definitions

For the purposes of this Directive:

(a)‘third-country national’
means any Ö a Õ person who is
not a citizen of the Union within the meaning of Article 1720(1) of the Treaty;

ê 2005/71/EC
(adapted)

Article 2

Definitions

For the purposes of this Directive:

(a)‘third-country national’ means
any person who is not a Union citizen within the meaning of Article 17(1)
of the Treaty;

ê 2005/71/EC

(b) (d)‘researcher’ means a third-country national holding an appropriate
higher education qualification, which gives access to doctoral programmes, who
is selected by a research organisation for carrying out a research project for
which the above qualification is normally required;

ê 2004/114/EC

(c) (b)‘student’ means a third-country national accepted by an
establishment of higher education and admitted to the territory of a Member
State to pursue as his/her main activity a full-time course of study leading to
a higher education qualification recognised by the Member State, including
diplomas, certificates or doctoral degrees in an establishment of higher
education, which may cover a preparatory course prior to such education
according to its national legislation;

(d) (c)‘school pupil’ means a third-country national admitted to the
territory of a Member State to follow a recognised programme of secondary
education in the context of an exchange scheme operated by an organisation
recognised for that purpose by the Member State in accordance with its national
legislation or administrative practice;

ê 2004/114/EC
(adapted)

(e) (d)‘unremunerated trainee’ means a third-country national who has been
admitted to the territory of a Member State for a training period without
remuneration in accordance with its the national legislation Ö of the
Member State concerned Õ;

ò new

(f)
'remunerated trainee' means a third-country national who has been admitted to
the territory of a Member State for a training period in return for which
he/she receives remuneration in accordance with the national legislation of the
Member State concerned;

(g)
'volunteer' means a third-country national admitted to the territory of a Member State to participate in a recognised voluntary service scheme;

ê 2004/114/EC
(adapted)

(h)(f)‘voluntary
service scheme’ means a programme of activities of practical solidarity, based
on a Ö scheme
recognised by the Member Õ State or Ö the Union Õ a
Community scheme, pursuing objectives
of general interest;

ò new

(i) 'au pair' means
a third-country national who is temporarily received by a family in the territory
of a Member State in exchange for light housework and taking care of children
in order to improve his/her linguistic skills and his/her knowledge of the host
country;

ê 2005/71/EC

(j) (b)‘research’ means creative work undertaken on a systematic basis in
order to increase the stock of knowledge, including knowledge of man, culture
and society, and the use of this stock of knowledge to devise new applications;

(k) (c)‘research organisation’ means any public or private organisation
which conducts research and which has been approved for the purposes of this
Directive by a Member State in accordance with the latter's legislation or
administrative practice;

ê 2004/114/EC
(adapted)

(l) (e)‘ Ö educational Õ establishment’
means a public or private establishment recognised by the host Member State
and/or whose courses of study are recognised in accordance with its national
legislation or administrative practice Ö on the
basis of transparent criteria Õ for the
purposes set out in this Directive;

ò new

(m)
'remuneration' means the payment, whatever form it takes, received in
consideration for the services performed and being considered under national
legislation or established practice as a constituent element of an employment
relationship;

(n)
'employment' means the exercise of activities covering whatever form of labour
or work regulated under national law or established practice for and under the
direction and supervision of an employer;

(o)
'first Member State' means the Member State which first grants a third-country
national an authorisation on the basis of this Directive;

(p)
'second Member State' means any Member State other than the first Member State;

(q)
'Union programmes including mobility measures' means Union funded programmes
promoting inward mobility of third country nationals to the Union;

(r)
'authorisation' means a residence permit issued by the authorities of a Member
State allowing a third-country national to stay legally on its territory, in
accordance with Article 1(2)(a) of Regulation (EC) No 1030/2002 or a long-stay
visa;

(s)
'long-stay visa' means an authorisation issued by a Member State as provided
for in Article 18 of the Schengen Convention or issued in accordance with the
national law of Member States that do not fully implement the Schengen acquis.

ê 2004/114/EC

(g)‘residence
permit’ means any authorisation issued by the authorities of a Member State allowing a third-country national to stay legally in its
territory, in accordance with Article 1(2)(a) of Regulation (EC) No 1030/2002.

ê 2005/71/EC
(adapted)

(e)‘residence
permit’ means any authorisation bearing the term ‘researcher’ issued by the
authorities of a Member State allowing a third-country national to stay
legally on its territory, in accordance with Article 1(2)(a) of Regulation
(EC) No 1030/2002.

Article 3

Scope

1. This Directive shall apply to third-country
nationals who apply to be admitted to the territory of a Member State for the purpose of carrying out a
research project.

2. This Directive shall not apply to:

(a) third-country nationals
staying in a Member State
as applicants for international protection or under temporary protection schemes;

(b) third-country nationals applying to reside in
a Member State as
students within the meaning of Directive 2004/114/EC in order to carry out
research leading to a doctoral degree;

(c) third-country nationals whose expulsion has
been suspended for reasons of fact or law;

(d) researchers seconded by a research
organisation to another research organisation in another Member State.

ê 2005/71/EC
(adapted)

Article 4

More favourable provisions

1. This Directive shall be without prejudice to
more favourable provisions of:

(a) bilateral or multilateral agreements concluded
between the Community or between the Community and its Member States on the one hand and one or more third
countries on the other;

(b) bilateral or multilateral agreements
concluded between one or more Member States and one or more third countries.

2. This Directive shall not affect the right of
Member States to adopt or retain more favourable provisions for persons to whom
it applies.

ê 2004/114/EC
(adapted)

ð new

Article 4

More favourable provisions

1. This Directive shall be without
prejudice to more favourable provisions of:

(a) bilateral or multilateral
agreements Ö concluded Õ between the Community Ö Union Õ or the Community Ö Union Õ and its Member
States and one or more third countries; or

(b) bilateral or multilateral
agreements Ö concluded Õ between one or
more Member States and one or more third countries.

2. This Directive shall be without
prejudice to the right of Member States to adopt or maintain provisions that
are more favourable to the persons to whom it applies ð with respect to Articles 21, 22, 23,
24, 25 and 29, especially in the context of Mobility Partnerships ï .

CHAPTER II

CONDITIONS OF
ADMISSION

ê 2004/114/EC

Article 5

Principle

1. The admission of a third-country national under this Directive
shall be subject to the verification of documentary evidence showing that
he/she meets the general conditions laid down in Article 6 and the specific
conditions in whichever of Articles 7 to 11 14 applies to the relevant category.

ò new

2. Once all the
general and specific conditions for admission are fulfilled, applicants shall
be entitled to a long-stay visa and/or residence permit. If a Member State
issues residence permits only on its territory and not elsewhere and all the
admission conditions laid down in this Directive are fulfilled, the Member
State concerned shall issue the third country national the requisite visa.

ê 2004/114/EC

Article 6

General conditions

1. A third-country national who applies to be admitted for the
purposes set out in this Directive shall:

(a) present a valid travel
document as determined by national legislation; Member States may require the
period of validity of the travel document to cover at least the duration of the
planned stay;

ê 2004/114/EC
(adapted)

(b) if he/she is a minor under
the national legislation of the host Member State, present a parental
authorisation Ö or
equivalent Õ for the
planned stay;

(c) have sickness insurance in
respect of Ö for Õ all risks
normally covered for its own
nationals in Ö of Õ the Member State concerned;

ê 2004/114/EC

(d) not be regarded as a threat
to public policy, public security or public health;

(e) provide proof, if the Member State so requests, that he/she has paid the fee for processing the application on
the basis of Article 2031.

ò new

(f)
provide the evidence requested by the Member State that during his/her stay
he/she will have sufficient resources to cover his/her subsistence, training
and return travel costs, without prejudice to an individual examination of each
case.

ê 2004/114/EC
(adapted)

2. Member States shall facilitate the admission
procedure for the third-country nationals covered by Articles 7 to 11 who
participate in Community programmes enhancing mobility towards or within the
Community.

ê 2005/71/EC
(adapted)

CHAPTER III

ADMISSION OF RESEARCHERS

Article 7

Conditions for admission

1. A third-country national who applies to be
admitted for the purposes set out in this Directive shall:

(a) present a valid travel document, as determined
by national law. Member States may require the period of the validity of the
travel document to cover at least the duration of the residence permit;

(b) present a hosting agreement signed with a
research organisation in accordance with Article 6(2);

(c) where appropriate, present a
statement of financial responsibility issued by the research organisation in
accordance with Article 6(3); and

(d) not be considered to pose a threat to public
policy, public security or public health.

Member States shall check that all the conditions
referred to in points (a), (b), (c) and (d) are met.

2. Member States may also check the terms upon
which the hosting agreement has been based and concluded.

3. Once the checks referred to in
paragraphs 1 and 2 have been positively concluded, researchers shall be
admitted on the territory of the Member States to carry out the hosting
agreement.

ò new

Article 7

Specific
conditions for researchers

1. In addition to
the general conditions laid down in Article 6, a third-country national who
applies to be admitted for the purpose of carrying out research shall:

(a) present a
hosting agreement signed with a research organisation in accordance with
Article 9(1) and Article 9(2);

(b) where
appropriate, present a statement of financial responsibility issued by the
research organisation in accordance with Article 9(3).

2. Member States
may check the terms upon which the hosting agreement has been based and
concluded.

3. Once the
checks referred to in paragraphs 1 and 2 have been positively concluded,
researchers shall be admitted to the territory of the Member State to carry out the hosting agreement.

4. Applications
from third-country nationals wishing to pursue research in the Union shall be
considered and examined when the third-country national concerned is residing
outside the territory of the Member State to which he/she wishes to be admitted.

5. Member States
may accept, in accordance with their national legislation, an application
submitted when the third-country national concerned is already in their
territory.

6. Member States
shall determine whether applications for authorisations are to be made by the
researcher or by the research organisation concerned.

ê 2005/71/EC
(adapted)

CHAPTER II

RESEARCH ORGANISATIONS

Article 58

Approval Ö of
research organisations Õ

ê 2005/71/EC

1. Any research organisation wishing to
host a researcher under the admission procedure laid down in this Directive
shall first be approved for that purpose by the Member State concerned.

2. The approval of the research
organisations shall be in accordance with procedures set out in the national
law or administrative practice of the Member States. Applications for approval
by both public and private organisations shall be made in accordance with those
procedures and be based on their statutory tasks or corporate purposes as
appropriate and on proof that they conduct research.

The approval granted to a research
organisation shall be for a minimum period of five years. In exceptional cases,
Member States may grant approval for a shorter period.

3. Member States may require, in accordance
with national legislation, a written undertaking of the research organisation
that in cases where a researcher remains illegally in the territory of the
Member State concerned, the said organisation is responsible for reimbursing
the costs related to his/her stay and return incurred by public funds. The
financial responsibility of the research organisation shall end at the latest
six months after the termination of the hosting agreement.

4. Member States may provide that, within
two months of the date of expiry of the hosting agreement concerned, the
approved organisation shall provide the competent authorities designated for
the purpose by the Member States with confirmation that the work has been
carried out for each of the research projects in respect of which a hosting
agreement has been signed pursuant to Article 69.

ê 2005/71/EC
(adapted)

5. The competent authorities in each Member State shall publish and update regularly lists of the research organisations approved for the purposes of
this Directive Ö whenever
a change is made to those lists Õ .

ê 2005/71/EC

6. A Member State may, among other
measures, refuse to renew or decide to withdraw the approval of a research
organisation which no longer meets the conditions laid down in
paragraphs 2, 3 and 4 or in cases where the approval has been fraudulently
acquired or where a research organisation has signed a hosting agreement with a
third-country national fraudulently or negligently. Where approval has been
refused or withdrawn, the organisation concerned may be banned from reapplying
for approval up to five years from the date of publication of the decision on
withdrawal or non-renewal.

7. Member States may determine in their national
legislation the consequences of the withdrawal of the approval or refusal to
renew the approval for the existing hosting agreements, concluded in accordance
with Article 69, as well as the consequences for the residence permits of the
researchers concerned.

ê 2005/71/EC
(adapted)

Article 69

Hosting agreement

1. A
research organisation wishing to host a researcher shall sign a hosting
agreement with the latter whereby the researcher undertakes to complete the
research project and the organisation undertakes to host the researcher for
that purpose without prejudice to Article Ö provided
that the conditions laid down in Articles 6 and Õ 7 Ö are met Õ.

ò new

The hosting agreement shall contain at least the
following elements :

(a) the title and purpose of the research
project;

(b) an undertaking by the researcher to
complete the research project;

(c)
confirmation by the organisation that it undertakes to host the researcher so
that he or she can complete the research project;

(d) the
start and end date of the research project;

(e)
information on the legal relationship between the research organisation and the
researcher;

(f)
information on the working conditions of the researcher.

ê 2005/71/EC

2. Research organisations may sign hosting
agreements only if the following conditions are met:

(a) the research project has
been accepted by the relevant authorities in the organisation, after
examination of:

(i) the purpose and duration of the
research, and the availability of the necessary financial resources for it to
be carried out;

(ii) the researcher’s qualifications
in the light of the research objectives, as evidenced by a certified copy of
his/her qualification in accordance with Article 2(d)(b);

ê 2005/71/EC
(adapted)

(b)
during his/her stay the researcher has sufficient monthly resources to meet
his/her expenses and return travel costs in accordance with the minimum amount
published for the purpose by the Member State, without having recourse to
the Member State’s social assistance system;

(c) during his/her stay the
researcher has sickness insurance for all the risks normally covered for
nationals of the Member State
concerned;

(d) the hosting agreement
specifies the legal relationship and working conditions of the researchers.

ê 2005/71/EC

3. Once the hosting agreement is signed,
the research organisation may be required, in accordance with national
legislation, to provide the researcher with an individual statement that for
costs within the meaning of Article 58(3) financial responsibility has
been assumed.

4. The hosting agreement shall
automatically lapse when the researcher is not admitted or when the legal
relationship between the researcher and the research organisation is
terminated.

5. Research organisations shall promptly
inform the authority designated for the purpose by the Member States of any
occurrence likely to prevent implementation of the hosting agreement.

ê 2004/114/EC
(adapted)

Article 710

Specific conditions for students

1. In addition to the general conditions laid
down in Article 6, a third-country national who applies to be admitted for the
purpose of study shall:

(a) Ö provide
evidence that he/she has Õ have been accepted by an establishment of higher education to follow a
course of study;

(b) (d) provide evidence, if the Member State so requires, that he/she has
paid the fees charged by the establishment. ;

(b) provide the
evidence requested by a Member State that during his/her stay he/she will have
sufficient resources to cover his/her subsistence, study and return travel
costs. Member States shall make public the minimum monthly resources required for
the purpose of this provision, without prejudice to individual examination of
each case;

(c) provide evidence, if the
Member State so requires, of sufficient knowledge of the language of the course
to be followed by him/her;.

2. Students who automatically qualify for
sickness insurance in respect of Ö for Õ all risks
normally covered for the nationals of the Member State concerned as a result of
enrolment at an establishment shall be presumed to meet the condition laid down
in Article 6(1)(c).

Article 8

Mobility of
students

1. Without
prejudice to Articles 12(2), 16 and 18(2), a third-country national who has
already been admitted as a student and applies to follow in another Member
State part of the studies already commenced, or to complement them with a
related course of study in another Member State, shall be admitted by the
latter Member State within a period that does not hamper the pursuit of the
relevant studies, whilst leaving the competent authorities sufficient time to process the application, if he/she:

(a)
meets the conditions laid down by Articles 6 and 7 in relation to that Member
State; and

(b)
has sent, with his/her application for admission, full documentary evidence of
his/her academic record and evidence that the course he/she wishes to follow
genuinely complements the one he/she has completed; and

(c)
participates in a Community or bilateral exchange programme or has been
admitted as a student in a Member State
for no less than two years.

2. The requirements
referred to in paragraph 1(c), shall not apply in the case where the student,
in the framework of his/her programme of studies, is obliged to attend a part
of his/her courses in an establishment of another Member State.

3. The competent
authorities of the first Member State shall, at the request of the
competent authorities of the second Member State, provide the appropriate
information in relation to the stay of the student in the territory of the
first Member State.

ê 2004/114/EC
(adapted)

Article 911

Specific conditions for school
pupils

1. Subject to Article 3, a A third-country national who applies to be admitted in a pupil
exchange scheme shall, in addition to the general conditions stipulated Ö laid down Õ in Article 6:

ê 2004/114/EC

(a) not be below the minimum age
nor above the maximum age set by the Member State concerned;

(b) provide evidence of
acceptance by a secondary education establishment;

(c) provide evidence of
participation in a recognised pupil exchange scheme programme operated by an
organisation recognised for that purpose by the Member State concerned in
accordance with its national legislation or administrative practice;

(d) provide evidence that the
pupil exchange organisation accepts responsibility for him/her throughout
his/her period of presence in the territory of the Member State concerned, in
particular as regards subsistence, study, healthcare and return travel costs;

(e) be accommodated throughout
his/her stay by a family meeting the conditions set by the Member State
concerned and selected in accordance with the rules of the pupil exchange
scheme in which he/she is participating.

2. Member States may confine the admission
of school pupils participating in an exchange scheme to nationals of third
countries which offer the same possibility for their own nationals.

ê 2004/114/EC
(adapted)

ð new

Article 1012

Specific conditions for unremunerated trainees

1. Subject to Article 3, a A third-country national who applies to be admitted as an unremunerated
ð or remunerated ï trainee shall, in addition to the general conditions laid down in
Article 6:

(a) have signed a training
agreement, approved if need be by the relevant authority in the Member State
concerned in accordance with its national legislation or administrative
practice, for an unremunerated Ö a Õ placement with
a public- or private-sector enterprise or vocational training establishment
recognised by the Member State in accordance with its national legislation or
administrative practice;.

ò new

(b) prove, if the
Member State so requires, that they have previous relevant education or
qualifications or professional experience to benefit from the work experience.

ê 2004/114/EC

(b) provide the
evidence requested by a Member State that during his/her stay he/she will have
sufficient resources to cover his/her subsistence, training and return travel
costs. The Member States shall make public the minimum monthly resources
required for the purpose of this provision, without prejudice to individual
examination of each case;

ê 2004/114/EC

(c) receive, if the Member State so requires, basic language training so as to acquire the knowledge needed for
the purposes of the placement.

ò new

The agreement
referred to in point (a) shall describe the training programme, specify its
duration, the conditions under which the trainee is supervised in the
performance of this programme, his/her working hours, the legal relationship
with the host entity and, where the trainee is remunerated, the remuneration
granted to him/her.

2. Member States
may require the host entity to declare that the third country national is not
filling a job.

ê 2004/114/EC
(adapted)

Article 1113

Specific conditions for volunteers

Subject to Article 3, a A third-country national who applies to be admitted to a voluntary
service scheme shall, in addition to the general conditions laid down in
Article 6:

(a) not be below
the minimum age nor above the maximum age set by the Member State concerned;

ê 2004/114/EC

(a) (b) produce an agreement with the organisation responsible in the
Member State concerned for the voluntary service scheme in which he/she is
participating, giving a description of tasks, the conditions in which he/she is
supervised in the performance of those tasks, his/her working hours, the
resources available to cover his/her travel, subsistence, accommodation costs
and pocket money throughout his/her stay and, if appropriate, the training he/she
will receive to help him/her perform his/her service;

ê 2004/114/EC

(b) (c) provide evidence that the organisation responsible for the
voluntary service scheme in which he/she is participating has subscribed to a
third-party insurance policy; and accepts full
responsibility for him/her throughout his/her stay, in particular as regards
his/her subsistence, healthcare and return travel costs;

ê 2004/114/EC

(d) (c) and, if the host Member State specifically requires it, receive a
basic introduction to the language, history and political and social structures
of that Member State.

ò (new)

Article 14

Specific conditions for au-pairs

A third-country
national who applies to be admitted for the purpose of working as an au-pair
shall, in addition to the general conditions laid down in Article 6:

(a) be
at least 17 but not more than 30 or, except in individually justified cases,
more than 30 years of age;

(b)
provide evidence that the host family accepts responsibility for him/her
throughout his/her period of presence in the territory of the Member State
concerned, in particular with regard to subsistence, accommodation, healthcare,
maternity or accident risks;

(c)
produce an agreement between the au-pair and the host family defining his/her
rights and obligations, including specifications about the pocket money to be
received and adequate arrangements allowing him/her to attend courses, and
participation in day-to-day family duties.

ê 2005/71/EC

Article 9

Family members

1. When a Member State decides to grant a
residence permit to the family members of a researcher, the duration of
validity of their residence permit shall be
the same as that of the residence permit issued to the researcher insofar as
the period of validity of their travel documents allows it. In duly justified
cases, the duration of the residence permit of the family member of the
researcher may be shortened.

2. The issue of
the residence permit to the family members of the researcher admitted to a Member State shall not be made
dependent on the requirement of a minimum period of residence of the
researcher.

ò new

CHAPTER III

AUTHORISATIONS
AND DURATION OF RESIDENCE

Article 15

Authorisations

Long-stay visas
and residence permits shall bear the title "researcher",
"student", "volunteer", "school pupil",
"remunerated trainee", "unremunerated trainee" or "au
pair". For third-country national researchers and students coming to the Union under a specific Union programme including mobility measures, the authorisation shall
mention the specific programme.

ê 2005/71/EC
(adapted)

ð new

Article 8 16

Duration of residence permit

1. Member States shall issue a residence
permit ð an authorisation for
researchers ï for a period of at least one year and shall renew it if the
conditions laid down in Articles 6, and 7 Ö and
9 Õ are still met.
If the research project is scheduled to last less than one year, the residence permit ð authorisation ï shall be issued for the duration of the project.

ò new

2. Member States
shall issue an authorisation for students for a period of at least one year and
shall renew it if the conditions laid down in Articles 6 and 10 are still met.
If the period of studies is scheduled to last less than one year, the
authorisation shall be issued for the duration of the studies.

3. For school
pupils and au pairs, Member States shall issue an authorisation for a maximum
period of one year.

ê 2004/114/EC
(adapted)

ð new

4. The period of validity of an residence
permit ð authorisation ï issued to unremunerated trainees shall correspond to the duration of the placement or shall
be for a maximum of one year. In exceptional cases, it may be renewed, once
only ð and in the form of a permit ï and exclusively for such time as is needed to acquire a vocational
qualification recognised by a Member State in accordance with its national
legislation or administrative practice, provided the holder still meets the conditions
laid down in Articles 6 and 10 Ö 12 Õ.

5. An ð authorisation ï residence permit issued to volunteers shall be issued for a period of no more than
one year. In exceptional cases, if the duration of the relevant programme is
longer than one year, the duration of the validity of the ð required authorisation ï residence permit may correspond to the period concerned.

6. In cases where
Member States allow entry and residence on the basis of a long-stay visa, a
residence permit shall be issued with the first extension of the initial stay.
Where the validity of the long-stay visa is shorter than the authorised
duration of stay, the long-stay visa shall be replaced by a residence permit
without additional formalities before the expiry of the visa.

Article 17

Additional information

Member States may
indicate additional information related to the stay of the third-country
national, such as the full list of Member States that the researcher or student
intends to go to, in paper format, or store such data in electronic format as
referred to in Article 4 of Regulation (EC) No 1030/2002 and in point (a) 16 of
the Annex thereto.

ê 2004/114/EC
(adapted)

CHAPTER IV

RESIDENCE PERMITS Ö Grounds
for refusal, withdrawal or non-renewal of authorisations Õ

Article 12

Residence permit
issued to students

1. A residence
permit shall be issued to the student for a period of at least one year and
renewable if the holder continues to meet the conditions of Articles 6 and
7. Where the duration of the course of study is less than one year, the permit
shall be valid for the duration of the course.

2. Without
prejudice to Article 16, renewal of a residence permit may be refused or the
permit may be withdrawn if the holder:

(a)
does not respect the limits imposed on access to economic activities under
Article 17;

(b)
does not make acceptable progress in his/her studies in accordance with
national legislation or administrative practice.

Article 13

Residence permit
issued to school pupils

A residence permit
issued to school pupils shall be issued for a period of no more than one year.

Article 14

Residence permit
issued to unremunerated trainees

The period of
validity of a residence permit issued to unremunerated trainees shall
correspond to the duration of the placement or shall be for a maximum of one
year. In exceptional cases, it may be renewed, once only and exclusively for
such time as is needed to acquire a vocational
qualification recognised by a Member State in accordance with its national legislation or
administrative practice, provided the holder still meets the conditions laid
down in Articles 6 and 10.

Article 15

Residence permit
issued to volunteers

A residence
permit issued to volunteers shall be issued for a period of no more than one
year. In exceptional cases, if the duration of the relevant programme is longer
than one year, the duration of the validity of the residence permit may
correspond to the period concerned.

ò new

Article 18

Grounds for rejection of an application

1. Member States
shall reject an application in the following cases :

(a)
where the general conditions laid down in Article 6 and the relevant specific
conditions laid down in Articles 7 and 10 to 16 are not met;

(b)
where the documents presented have been fraudulently acquired, falsified or
tampered with;

(c)
where the host entity or educational establishment was established in the sole
purpose of facilitating entry;

(d)
where the host entity has been sanctioned in conformity with national law for
undeclared work and/or illegal employment or does not meet the legal
obligations regarding social security and/or taxation set out in national law
or has filed for bankruptcy or is otherwise insolvent;

(e)
where the host family, or, if applicable, any intermediary organisation
involved in the placement of the au-pair, has been sanctioned in conformity
with national law for breach of the conditions and/or objectives of au-pair
placements and/or illegal employment.

2. Member States
may reject an application if the host entity appears to have deliberately
eliminated the positions it is trying to fill through the new application
within the 12 months immediately preceding the date of the application.

ê 2004/114/EC
(adapted)

ð new

Article 16 19

ð Grounds for ï Wwithdrawal or
non-renewal of residence permits ð of an authorisation ï

1. Member States may ð shall ï withdraw or refuse to renew a residence
permit issued on the basis of this Directive when it has been fraudulently
acquired or wherever it appears that the holder did not meet or no longer meets
the conditions for entry and residence laid down in Article 6 and in
whichever of Articles 7 to 11 applies to the relevant category.
ð an authorisation in the following
cases : ï

ò new

(a)
where authorisations and documents presented have been fraudulently acquired,
falsified or tampered with;

(b)
where the third-country national is residing for purposes other than those for
which he/she was authorised to reside;

(c)
where the host entity was established for the sole purpose of facilitating
entry;

(d)
where the host entity does not meet the legal obligations regarding social
security and/or taxation set out in national law or has filed for bankruptcy or
is otherwise insolvent;

(e)
where the host family, or, if applicable, any intermediary organisation
involved for the placement of the au-pair, has been sanctioned in conformity
with national law for breach of the conditions and/or objectives of au-pair
placements and/or for illegal employment;

(f)
for students, where the time limits imposed on access to economic activities under
Article 23 are not respected or if the respective student does not make
acceptable progress in the relevant studies in accordance with national
legislation or administrative practice.

ê 2004/114/EC

ð new

2. Member States may withdraw or refuse to renew a residence permit
ð an authorisation ï for reasons of public policy, public security or public health.

ê 2005/71/EC

Article
10

Withdrawal or
non renewal of the residence permit

1. Member States
may withdraw or refuse to renew a residence permit issued on the basis of this
Directive when it has been fraudulently acquired or wherever it appears that
the holder did not meet or no longer meets the conditions for entry and
residence provided by Articles 6 and 7 or is residing for purposes other
that that for which he was authorised to reside.

2. Member States
may withdraw or refuse to renew a residence permit on grounds of public policy,
public security or public health.

ò new

Article 20

Grounds
for non-renewal of an authorisation

1. Member States
may refuse to renew an authorisation in the following cases:

(a) where the
authorisation and documents presented have been fraudulently acquired,
falsified or tampered with;

(b) where it
appears that the holder no longer meets the general conditions for entry and
residence laid down in Article 6 and the relevant specific conditions laid down
in Articles 7, 9 and 10;

(c) for students,
where the time limits imposed on access to economic activities under Article 23
are not respected or where the student does not make acceptable progress in the
relevant studies in accordance with national legislation or administrative
practice.

2. Member States
may refuse to renew an authorisation on grounds of public policy, public
security and public health.

ê 2005/71/EC
(adapted)

CHAPTER V

RESEARCHERS’ RIGHTS

Article 12 21

Equal treatment

ò new

1. By way of derogation from Article 12(2)(b) of
Directive 2011/98/EU, third-country national researchers shall be entitled to
equal treatment with nationals of the host Member State as regards branches of
social security, including family benefits, as defined in Regulation No 883/2004
on the coordination of social security schemes.

2. School pupils, volunteers, unremunerated trainees
and au pairs, irrespective of whether they are allowed to work in accordance
with Union or national law, shall be entitled to equal treatment in
relation to access to goods and services and the supply of goods and services
made available to the public, except procedures for obtaining housing as
provided for by national law.

ê 2005/71/EC
(adapted)

Article 11 22

Teaching Ö by researchers Õ

1. Researchers admitted under this Directive may teach in accordance
with national legislation.2. Member States may set a maximum number of hours or of days for the
activity of teaching.

ê 2004/114/EC
(adapted)

ð new

CHAPTER IV

TREATMENT OF THE THIRD-COUNTRY NATIONALS CONCERNED

Article 17 23

Economic activities by students

1. Outside their study time and subject to
the rules and conditions applicable to the relevant activity in the host Member State, students shall be entitled to be employed and may be entitled to exercise
self-employed economic activity. The situation of the labour market in the host
  Member State may be taken into account.

2. Where necessary, Member States shall grant students and/or
employers prior authorisation in accordance with national legislation.

23. Each Member State shall determine the maximum number of hours per
week or days or months per year allowed for such an activity, which shall not
be less than 10 ð 20 ï hours per week, or the equivalent in days or months per year.

3. Access to
economic activities for the first year of residence may be restricted by the
host Member State.

4. Member States may require students to
report, in advance or otherwise, to an authority designated by the Member State concerned, that they are engaging in an economic activity. Their employers may
also be subject to a reporting obligation, in advance or otherwise.

ò new

Article 24

Job-searching and entrepreneurship  for researchers and students

After
finalisation of research or studies in the Member State, third-country
nationals shall be entitled to stay on the territory of the Member State for a
period of 12 months in order to look for work or set up a business , if the
conditions laid down in points (a) and (c) to (f) of Article 6 are still fulfilled.
In a period of more than 3 and less than 6 months, third-country nationals may
be requested to provide evidence that they continue to seek employment or are in
the process of setting up a business. After a period of 6 months, third-country
nationals may additionally be requested to provide evidence that they have a
genuine chance of being engaged or of launching a business.

Article 25

Researchers'
family members

1. By way of derogation from Article 3(1) and Article
8 of Directive 2003/86/EC, family reunification shall not be made dependent on
the holder of the authorisation to stay for the purposes of research having
reasonable prospects of obtaining the right of permanent residence and having a
minimum period of residence.

2. By way of derogation from the last subparagraph of
Article 4(1) and Article 7(2) of Directive 2003/86/EC, the integration
conditions and measures referred to in those provisions may only be applied
after the persons concerned have been granted family reunification.

3. By way of derogation from the first subparagraph
of Article 5(4) of Directive 2003/86/EC, authorisations for family members
shall be granted, where the conditions for family reunification are fulfilled,
within 90 days from the date on which the application was lodged, and 60 days from
the date of the initial application for family members of third-country
national researchers covered by the relevant Union programmes including mobility
measures.

4. By way of derogation from Article 13(2) and (3) of
Directive 2003/86/EC, the duration of validity of the authorisation of family
members shall be the same as that of the authorisation granted to the
researcher insofar as the period of validity of their travel documents allows
it.

5. By way of derogation from the second sentence of
Article 14(2) of Directive 2003/86/EC, Member States shall not apply any time
limit in respect of access to the labour market.

CHAPTER VI

MOBILITY BETWEEN MEMBER STATES

ê 2005/71/EC

ð new

Article 13 26

ð Right toï Mmobility between Member States ð for researchers, students and
remunerated trainees ï

1. A third-country national who has been
admitted as a researcher under this Directive shall be allowed to carry out
part of his/her research in another Member State under the conditions as set
out in this Article.

2.If the researcher stays in another Member State for a period of up
to three ð six ï months, the research
may be carried out on the basis of the hosting agreement concluded in the first
Member State, provided that he has sufficient resources in the other Member
State and is not considered as a threat to public policy, public security or
public health in the second Member State.

3.If the researcher stays in another Member State for more than three ð six ï months, Member States may require a new hosting agreement to carry
out the research in that Member State.ð If Member States require an
authorisation in order to exercise mobility, such authorisations shall be
granted in accordance with the procedural guarantees specified in Article 30 ï At all events, the conditions set out in
Articles 6 and 7 shall be met in relation to the Member State concerned. 5. Member States
shall not require researchers to leave the territory in order to submit applications
for applications for the visas or residence permits
ð authorisations ï.

4. Where the
relevant legislation provides for the requirement of a visa or a residence
permit, for exercising mobility, such a visa or permit shall be granted in a
timely manner within a period that does not hamper the pursuit of the
research, whilst leaving the competent authorities sufficient time to process
the applications.

ò new

2. For periods
exceeding three months, but not exceeding six months, a third-country national
who has been admitted as a student or as a remunerated trainee under this
Directive shall be allowed to carry out part of his/her studies/traineeship in
another Member State provided that before his or her transfer to that Member
State, he/she has submitted the following to the competent authority of the second
Member State:

(a) a valid travel document;

(b) proof of
sickness insurance for all risks normally covered for the nationals of the Member State concerned;

(c)
proof that he/she has been accepted by an establishment of higher education or
a training host entity;

(d)
evidence that during his/her stay he/she will have sufficient resources to
cover his/her subsistence, study and return travel costs.

3. For the
mobility of students and trainees from the first Member State to a second Member State, the authorities of the second Member State shall inform the authorities of the
first Member State on their decision. The cooperation procedures set out in
Article 32 shall apply.

4. For a
third-country national who has been admitted as a student, transfers to a
second Member State exceeding six months may be granted under the same
conditions as those applied for mobility for a period exceeding three months
but less than six months. If Member States require a new application for an
authorisation to exercise mobility for a period exceeding six months, such
authorisations shall be granted in accordance with Article 29.

5. Member States
shall not require students to leave the territory in order to submit
applications for authorisations for mobility between Member States.

Article 27

Rights for researchers and students covered by Union programmes
including mobility measures

1. Member States
shall grant third-country nationals, who have been admitted as researchers or
students under this Directive and who are covered by Union programmes including
mobility measures, an authorization covering the whole duration of their stay
in the Member States concerned where:

(a) the full list
of Member States that the researcher or student intends to go to is known
prior to entry to the first Member State;

(b) in the case
of students, the applicant can provide evidence of acceptance by the relevant
establishment of higher education to follow a course of study.

2. The
authorisation shall be granted by the first Member State that the researcher or
student resides in.

3. Where the full
list of Member States is not known prior to entry into the first Member State:

(a) for
researchers, the conditions as set out in Article 26 for stays in another
Member States for periods of up to six months shall apply;

(b) for students,
the conditions as set out in Article 26 for stays in another Member States for
periods between three and six months shall apply.

Article 28

Residence in the second Member State for family
members

1. When a
researcher moves to a second Member State in accordance with Articles 26 and 27,
and when the family was already constituted in the first Member State, the members of his family shall be authorised to accompany or join him.

2. No later than
one month after entering the territory of the second Member State, the family
members concerned or the researcher, in accordance with national law, shall
submit an application for a residence permit as a family member to the
competent authorities of that Member State.

In cases where
the residence permit of the family members issued by the first Member State
expires during the procedure or no longer entitles the holder to reside legally
on the territory of the second Member State, Member States shall allow the
person to stay in their territory, if necessary by issuing national temporary
residence permits, or equivalent authorisations, allowing the applicant to
continue to stay legally on their territory with the researcher until a
decision on the application has been taken by the competent authorities of the
second Member State.

3. The second Member State may require the family members concerned to present with their application for
a residence permit:

(a) their
residence permit in the first Member State and a valid travel document, or
their certified copies, as well as a visa, if required;

(b) evidence that
they have resided as members of the family of the researcher in the first Member State;

(c) evidence that
they have a sickness insurance covering all risks in the second Member State, or that the researcher has such insurance for them.

4. The second Member State may require the researcher to provide evidence that the holder:

(a) has an
accommodation regarded as normal for a comparable family in the same region and
which meets the general health and safety standards in the Member State
concerned;

(b) has stable
and regular resources which are sufficient to maintain himself and the members
of his family, without recourse to the social assistance of the Member State concerned.

Member States
shall evaluate these resources by reference to their nature and regularity and
may take into account the level of minimum national wages and pensions as well
as the number of family members.

ê 2005/71/EC
(adapted)

CHAPTER V

PROCEDURE AND TRANSPARENCY

Article 14

Applications for admission

1. Member States shall determine whether
applications for residence permits are to be made by the researcher or by the
research organisation concerned.

2. The application shall be considered and
examined when the third-country national concerned is residing outside the
territory of the Member States to which he/she wishes to be admitted.

3. Member States may accept, in accordance with
their national legislation, an application submitted when the third-country
national concerned is already in their territory.

4. The Member State concerned shall grant the
third-country national who has submitted an application and who meets the
conditions of Articles 6 and 7 every facility to obtain the requisite
visas.

Article 15

Procedural safeguards

1. The competent authorities of the Member States
shall adopt a decision on the complete application as soon as possible and,
where appropriate, provide for accelerated procedures.

2. If the information supplied in support of
the application is inadequate, the consideration of the application may be
suspended and the competent authorities shall inform the applicant of any
further information they need.

3. Any decision rejecting an application for a
residence permit shall be notified to the third-country national concerned in
accordance with the notification procedures under the relevant national
legislation. The notification shall specify the possible redress procedures
available and the time limit for taking
action.

4. Where an application is rejected, or a
residence permit, issued in accordance with this Directive, is withdrawn, the
person concerned shall have the right to mount a legal challenge before the
authorities of the Member State
concerned.

ê 2004/114/EC
(adapted)

CHAPTER V VII

PROCEDURE AND TRANSPARENCY

Article 18 29

Procedural guarantees and
transparency

1. A decision on an application to obtain or renew
a residence permit shall be adopted, and the applicant shall be notified of
it, within a period that does not hamper the pursuit of the relevant studies,
whilst leaving the competent authorities sufficient time to process the
application.

ò new

1. The competent
authorities of the Member States shall decide on the complete application for
an authorisation and shall notify the applicant in writing, in accordance with
the notification procedures laid down in the national law of the Member State
concerned, as soon as possible and at the latest within 60 days from the date
on which the application was lodged, and within 30 days in the case of
third-country national researchers and students covered by Union programmes
including mobility measures.

ê 2004/114/EC
(adapted)

ð new

2. If the information supplied in support
of the application is inadequate, processing of the application may
be suspended and the competent
authorities shall inform the applicant of any further information they need ð and indicate a reasonable deadline
to complete the application. The period referred to in paragraph 1 shall be
suspended until the authorities have received the additional information
required ï .

3. Any decision rejecting an application
for a residence permit Ö an
authorisation Õ shall be
notified to the third-country national concerned in accordance with the
notification procedures provided for under the relevant national legislation.
The notification shall specify the possible redress procedures available, Ö the national court
or authority with which the person concerned may lodge an appeal Õ and the time
limit for taking action.

4. Where an application is rejected or a
residence permitÖ an
authorisation Õ issued in
accordance with this Directive is withdrawn, the person concerned shall have
the right to mount a legal challenge before the authorities of the Member State concerned.

Article 19

Fast-track
procedure for issuing residence permits or visas to students and school
pupils

An agreement on
the establishment of a fast-track admission procedure allowing residence
permits or visas to be issued in the name of the third-country national
concerned may be concluded between the authority of a Member State with
responsibility for the entry and residence of students or school pupils who are
third-country nationals and an establishment of higher education or an
organisation operating pupil exchange schemes which has been recognised for
this purpose by the Member State concerned
in accordance with its national legislation or administrative practice.

ò new

Article 30

Transparency
and access to information

Member States
shall make available information on entry and residence conditions for
third-country nationals falling under the scope of this Directive, including
the minimum monthly resources required, rights, all documentary evidence needed
for an application and the applicable fees. Member States shall make available
information on the research organisations approved under Article 8.

ê 2004/114/EC

ð new

Article 20 31

Fees

Member States may require applicants to pay
fees for the processing of applications in accordance with this Directive. ð The amount of such fees shall not
endanger the fulfilment of its objectives. ï

ê 2005/71/EC
(adapted)

CHAPTER VI

FINAL PROVISIONS

Article 16

Reports

Periodically, and for the first time no later than
three years after the entry into force of this Directive, the Commission
shall report to the European Parliament and the Council on the application of
this Directive in the Member States and shall propose any amendments that are
necessary.

Article 17

Transposition

1. Member States shall bring into force the
laws, regulations and administrative provisions necessary to comply with this
Directive by 12 October 2007.

When Member States adopt these measures, they
shall contain a reference to this Directive or shall be accompanied by such a reference
on the occasion of their official publication. The methods of making such
reference shall be laid down by Member States.

2. Member States shall communicate to the
Commission the text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 18

Transitional provision

By way of derogation from the provisions set out
in Chapter III, Member States shall not be obliged to issue permits in
accordance with this Directive in the form of a residence permit for a
period of up to two years, after the date referred to in Article 17(1).

Article 19

Common Travel Area

Nothing in this Directive shall affect the right
of Ireland to maintain the Common Travel Area arrangements referred to in the
Protocol, annexed by the Treaty of Amsterdam to the Treaty on European Union
and the Treaty establishing the European Community, on the application of
certain aspects of Article 14 of the Treaty establishing the European
Community to the United Kingdom and Ireland.

Article 20

Entry into force

This Directive shall enter into force on the
twentieth day following its publication in the Official
Journal of the European Union.

Article 21

Addressees

This Directive is addressed to the Member States
in accordance with the Treaty establishing the European Community.

ê 2004/114/EC

CHAPTER VI VIII

FINAL PROVISIONS

ò new

Article 32

Contact points

1. Member States
shall appoint contact points which shall be responsible for receiving and
transmitting the information needed to implement Articles 26 and 27.

2. Member States
shall provide appropriate cooperation in exchanges of the information referred
to in paragraph 1.

Article 33

Statistics

Annually, and the
first time no later than [ ] Member States shall, in accordance with Regulation
(EC) No 862/2007 of the European Parliament and of the Council[31], communicate to the Commission
statistics on the volumes of third-country nationals who have been granted
authorisations. In addition, and as far as possible, statistics shall be
communicated to the Commission on volumes of third-country nationals whose
authorisations have been renewed or withdrawn, during the previous calendar
year, indicating their citizenship. Statistics on the admitted family members
of researchers shall be communicated in the same manner.

The statistics
referred to in paragraph 1 shall relate to reference periods of one calendar
year and shall be supplied to the Commission within six months of the end of
the reference year. The first reference year shal be [...]

ê 2004/114/EC
(adapted)

ð new

Article 21 34

Reporting

Periodically, and for the first time by Ö [five
years after the date of transposition of this Directive] Õ 12
January 2010, the Commission shall ð evaluate the application of this
Directive and ï report to the European Parliament and the Council on the
application of this Directive in the Member States and propose amendments if
appropriate.

Article 22

Transposition

Member States shall bring into force the laws,
regulations and administrative provisions necessary to comply with this
Directive by 12 January 2007 They shall forthwith inform the Commission
thereof.

When Member States adopt these measures, they
shall contain a reference to this Directive or shall be accompanied by such
a reference on the occasion of their official publication. The methods of
making such reference shall be laid down by Member States.

Article 23

Transitional provision

By way of derogation from the provisions set
out in Chapter III and for a period of up to two years after the date set out
in Article 22, Member States are not obliged to issue permits in accordance
with this Directive in the form of a residence permit.

Article 24

Time limits

Without prejudice to the second subparagraph of
Article 4(2) of Directive 2003/109/EC, Member States shall not be obliged to
take into account the time during which the student, exchange pupil,
unremunerated trainee or volunteer has resided as such in their territory
for the purpose of granting further rights under national law to the
third-country nationals concerned.

Article 25

Entry into force

This Directive shall enter into force on the
twentieth day following that of its publication in the Official
Journal of the European Union.

ê

Article
35

Transposition

1. Member States shall bring into force the
laws, regulations and administrative provisions necessary to comply with this
Directive by [two years after the entry into force] at the latest. They shall
forthwith communicate to the Commission the text of those provisions.

When Member States adopt those
provisions, they shall contain a reference to this Directive or be accompanied
by such a reference on the occasion of their official publication. They shall
also include a statement that references in existing laws, regulations and
administrative provisions to the directives repealed by this Directive shall be
construed as references to this Directive. Member States shall determine how
such reference is to be made and how that statement is to be formulated.

2. Member States shall
communicate to the Commission the text of the main provisions of national law
which they adopt in the field covered by this Directive.

Article 36

Repeal

Directives 2005/71/EC and 2004/114/EC are
repealed with effect from [day after the date set out in the first subparagraph of Article 35(1) of this Directive],
without prejudice to the obligations of the Member States relating to the
time-limits for transposition into national law of the Directives set out in Annex I, Part B.

References to
the repealed Directives shall be construed as references to this Directive and
shall be read in accordance with the correlation table in Annex II.

Article
37

Entry into force

This Directive
shall enter into force on the twentieth day following that of its publication
in the Official Journal of the European Union.

ê 2004/114/EC
(adapted)

Article 26 38

Addressees

This
Directive is addressed to the Member States in accordance with the Treaty
establishing the European Community Ö Treaties Õ.

Done at Brussels,

For the European Parliament                       For
the Council

The
President                                                 The President

é

ANNEX I

Part A

Repealed Directive with list of its
successive amendments
(referred to in Article 37)

Directive 2004/114EC of the European Parliament and of the Council || (OJ L 375, 23.12.2004, p. 12) ||

|| Directive 2005/71/EC of the European Parliament and of the Council || (OJ L 289, 03.11.2005, p. 15)

Part B

List of time-limits for
transposition into national law [and application]
(referred to in Article 36)

Directive || Time-limit for transposition || Date of application

2004/114/EC 2005/71/EC || 12.01.2007 12.10.2007 ||

_____________

ANNEX II

Correlation Table

Directive 2004/114/EC || Directive 2005/71/EEC || This Directive

Article 1 (a) || || Article 1 (a)

Article 1 (b) || || -

- || || Article 1 (b) and (c)

Article 2 introductory wording || || Article 3 introductory wording

Article 2 (a) || || Article 3 (a)

Article 2 (b) || || Article 3 (c)

Article 2 (c) || || Article 3 (d)

Article 2 (d) || || Article 3 (e)

- || || Article 3 (f) and (g)

Article 2 (e) || || Article 3 (l)

Article 2 (f) || || Article 3 (h)

Article 2 (g) || || -

- || || Article 3 (i)

- || || Article 3 (m) to (s)

Article 3 (1) || || Article 2 (1)

Article 3 (2) || || Article 2 (2) (a) to (e)

- || || Article 2 (2) (f) and (g)

Article 4 || || Article 4

Article 5 || || Article 5 (1)

- || || Article 5 (2)

Article 6 (1) || || Article 6 (a) to (e)

- || || Article 6 (f)

Article 6 (2) || || -

- || || Article 7

Article 7 (1) introductory wording || || Article 10 (1) introductory wording

Article 7 (1) (a) || || Article 10 (1) (a)

Article 7 (1) (b) and (c) || || -

Article 7 (1) (d) || || Article 10 (1) (b)

Article 7 (2) || || Article 10 (2)

- || || Article 10 (3)

Article 8 || || -

- || || Article 11

Article 9 (1) and (2) || || Article 12 (1) and (2)

Article 10 introductory wording || || Article 13 (1) introductory wording

Article 10 (a) || || Article 13 (1) (a)

Article 10 (b) and (c) || || -

- || || Article 12 (1) (b)

- || || Article 12 (2)

Article 11 introductory wording || || Article 14 (1) introductory wording

Article 11 (a) || || -

Article 11 (b) || || Article 13 (1) (a)

Article 11 (c) || || Article 13 (1) (b)

Article 11 (d) || || Article 13 (1) (c)

Articles 12 to 15 || || -

- || || Articles 14, 15 and 16

Article 16 (1) || || Article 20 (1) introductory wording

- || || Article 20 (1) (a) to (c)

Article 16 (2) || || Article 20 (2)

- || || Article 21

Article 17 (1) first subparagraph || || Article 23 (1)

Article 17 (1) second subparagraph || || Article 23 (2)

Article 17 (2) || || Article 23 (3)

Article 17 (3) || || -

Article 17 (4) || || Article 23 (4)

- || || Articles 15, 24, 25, 27

- || || Article 17

Article 18 (1) || || -

- || || Article 29 (1)

Article 18 (2), (3) and (4) || || Article 29 (2), (3) and (4)

Article 19 || || -

- || || Article 30

Article 20 || || Article 31

- || || Articles 32 and 33

Article 21 || || Article 34

Articles 22 to 25 || || -

- || || Articles 35, 36 and 37

Article 26 || || Article 38

- || || Annexes I and II

|| Article 1 || -

|| Article 2 introductory wording || -

|| Article 2 (a) || Article 3 (a)

|| Article 2 (b) || Article 3 (i)

|| Article 2 (c) || Article 3 (k)

|| Article 2 (d) || Article 3 (b)

|| Article 2 (e) || -

|| Articles 3 and 4 || -

|| Article 5 || Article 8

|| Article 6 (1) || Article 9 (1)

|| - || Article 9 (1) (a) to (f)

|| Article 6 (2) (a) || Article 9 (2) (a)

|| Article 6 (2) (a), (b) and (c) || -

|| Article 6 (3), (4) and (5) || Article 9 (3), (4) and (5)

|| Article 7 || -

|| Article 8 || Article 16 (1)

|| Article 9 || -

|| Article 10 (1) || Article 19 (2) (a)

|| - || Article 19 (2) (b)

|| Article 10 (2) || -

|| Article 11 (1) and (2) || Article 22

|| Article 12 introductory wording || -

|| Article 12 (a) || -

|| Article 12 (b) || -

|| Article 12 (c) || Article 21 (1)

|| Article 12 (d) || -

|| Article 12 (e) || -

|| - || Article 21 (2)

|| Article 13 (1) || Article 26 (1)

|| Article 13 (2) || Article 26 (1)

|| Article 13 (3) and (5) || Article 26 (1)

|| Article 13 (4) || -

|| - || Article 26 (2), (3) and (4)

|| Articles 14 to 21 || -

[1]               COM(2011) 901 final; COM(2011) 587 final

[2]               OJ L 289, 3.11.2005, p. 15.

[3]               OJ L 375, 23.12.2004, p. 12.

[4]               OJ C 274, 19.9.1996, p. 3-6.

[5]               OJ L 289, 3.11.2005, p. 23.

[6]               http://conventions.coe.int/Treaty/en/Treaties/Html/068.htm

[7]               Stakeholders were consulted on current legislative
framework relevant to students and researchers, in particular on problems
affecting the admission and mobility of third-country nationals concerned, on
potential scope for improvements as well as on the possible amendments of the
Directive.

[8]               http://emn.intrasoft-intl.com/
See under: EMN Outputs / EMN Ad-Hoc Queries / Students.

[9]               The EMN Steering Board chose the topic Immigration of
International Students to the EU as the Main Study for the Work
Programme 2012. The aim of the study is to provide an overview of the
immigration policies implemented by the EU Member States and Norway regarding international students, with a view to assisting policy-makers and
practitioners to achieve a balance between actively attracting international
students into the EU for the purposes of study, and preventing the misuse of
international student routes to migration.

[10]             http://ec.europa.eu/yourvoice/ipm/forms/dispatch?form=Immigration2012.
The consultation closed on 23 August 2012.

[11]             http://ec.europa.eu/research/consultations/era/consultation_en.htm

[12]             http://eacea.ec.europa.eu/erasmus_mundus/events/visas-students/ema_visa_survey_16112011.pdf

[13]             Directive 2011/98/EU of the European Parliament and of
the council of 13 December 2011 on a single application procedure for a single
permit for third-country nationals to reside and work in the territory of a
Member State and on a common set of rights for third-country workers legally
residing in a Member State, OJ L 343 of 23.12.2011

[14]             Case C-508/10, judgment
26.4.2012

[15]             COM(2012)795

[16]             Case C-508/10, judgement 26.4.2012

[17]             OJ L 375, 23.12.2004, p. 12.

[18]             OJ L 289, 3.11.2005, p. 15.

[19]             COM(2011) 587 final and COM(2011) 901 final

[20]             OJ L 251, 3.10.2003, p. 12.

[21]             COM(2011) 567 final

[22]             Joint declaration of the European
Ministers of Education of 19 June 1999

[23]             Council of Europe European Agreement on
"au pair" Placement, Article 8

[24]             OJ L 343, 23.12.2011, p. 1.

[25]             OJ L 157, 15.6.2002, p. 1.

[26]             OJ L 157, 15.6.2002,
p. 1.

[27]             Decision
No 1513/2002/EC of the European Parliament and of the Council of 27 June 2002
concerning the sixth framework programme of the European Community for
research, technological development and demonstration activities,
contributing to the creation of the European Research Area and to innovation
(2002 to 2006) (OJ L 232, 29.8.2002, p. 1). Decision amended by Decision No
786/2004/EC (OJ L 138, 30.4.2004, p. 7).

[28]             OJ L 375,
23.12.2004, p. 12.

[29]             See page 26 of
this Official Journal.

[30]             OJ L 16, 23.1.2004, p. 44

[31]             OJ L 199, 31.7.2007, p. 23.