# Official Journal C 10E/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.CE2012.010.eng |
| --- | --- |
| Official Journal
  of the European Union | C 10E |
| | |
| English edition | Information and Notices | Volume 5512 January 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.CE2012.010.eng

Official Journal

of the European Union

C 10E

English edition

Information and Notices

Volume 5512 January 2012

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| Notice No | Contents | page |
| --- | --- | --- |
| | III   Preparatory acts |
| | COUNCIL |
| 2012/C 010E/01 | Position (EU) No 1/2012 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council 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 StateAdopted by the Council on 24 November 2011 | 1 |
| 2012/C 010E/02 | Position (EU) No 2/2012 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council on the European protection orderAdopted by the Council on 24 November 2011 | 14 |

Notice No

Contents

page

III   Preparatory acts

COUNCIL

2012/C 010E/01

Position (EU) No 1/2012 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council 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 StateAdopted by the Council on 24 November 2011

1

2012/C 010E/02

Position (EU) No 2/2012 of the Council at first reading with a view to the adoption of a Directive of the European Parliament and of the Council on the European protection orderAdopted by the Council on 24 November 2011

14

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EN

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III Preparatory acts

COUNCIL

| 12.1.2012 | EN | Official Journal of the European Union | CE 10/1 |
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12.1.2012

EN

Official Journal of the European Union

CE 10/1

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POSITION (EU) No 1/2012 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Directive of the European Parliament and of the Council 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

Adopted by the Council on 24 November 2011

2012/C 10 E/01

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular points (a) and (b) of Article 79(2) thereof,

Having regard to the proposal from the European Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

| (1) | For the gradual establishment of an area of freedom, security and justice, the Treaty on the Functioning of the European Union (TFEU) provides for measures to be adopted in the fields of asylum, immigration and protection of the rights of third-country nationals. |
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(1)

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

| (2) | The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need for harmonisation of national law governing the conditions for admission and residence of third-country nationals. In this context, it stated in particular that the European Union should ensure fair treatment of third-country nationals who are legally residing in the territory of the Member States and that a more vigorous integration policy should aim to grant them rights and obligations comparable to those of citizens of the Union. The European Council accordingly asked the Council to adopt the legal instruments on the basis of Commission proposals. The need for achieving the objectives defined at Tampere was reaffirmed by the Stockholm Programme, which was adopted by the European Council at its meeting of 10 and 11 December 2009. |
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(2)

The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need for harmonisation of national law governing the conditions for admission and residence of third-country nationals. In this context, it stated in particular that the European Union should ensure fair treatment of third-country nationals who are legally residing in the territory of the Member States and that a more vigorous integration policy should aim to grant them rights and obligations comparable to those of citizens of the Union. The European Council accordingly asked the Council to adopt the legal instruments on the basis of Commission proposals. The need for achieving the objectives defined at Tampere was reaffirmed by the Stockholm Programme, which was adopted by the European Council at its meeting of 10 and 11 December 2009.

| (3) | Provisions for a single application procedure leading to a combined title encompassing both residence and work permits within a single administrative act will contribute to simplifying and harmonising the rules currently applicable in Member States. Such procedural simplification has already been introduced by several Member States and has made for a more efficient procedure both for the migrants and for their employers, and has allowed easier controls of the legality of their residence and employment. |
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(3)

Provisions for a single application procedure leading to a combined title encompassing both residence and work permits within a single administrative act will contribute to simplifying and harmonising the rules currently applicable in Member States. Such procedural simplification has already been introduced by several Member States and has made for a more efficient procedure both for the migrants and for their employers, and has allowed easier controls of the legality of their residence and employment.

| (4) | In order to allow initial entry into their territory, Member States should be able to issue a single permit or, if they issue single permits only after entry, a visa. Member States should issue such single permits or visas in a timely manner. |
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(4)

In order to allow initial entry into their territory, Member States should be able to issue a single permit or, if they issue single permits only after entry, a visa. Member States should issue such single permits or visas in a timely manner.

| (5) | A set of rules governing the procedure for examination of the application for a single permit should be laid down. That procedure should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned. |
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(5)

A set of rules governing the procedure for examination of the application for a single permit should be laid down. That procedure should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned.

| (6) | The provisions of this Directive should be without prejudice to the competence of the Member States to regulate the admission, including the volumes of admission, of third-country nationals for the purpose of work. |
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(6)

The provisions of this Directive should be without prejudice to the competence of the Member States to regulate the admission, including the volumes of admission, of third-country nationals for the purpose of work.

| (7) | Posted third-country nationals should not be covered by this Directive. This should not prevent third-country nationals who are legally residing and working in a Member State and posted to another Member State from continuing to enjoy equal treatment with respect to nationals of the Member State of origin for the duration of their posting, in respect of those terms and conditions of employment which are not affected by the application of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (4). |
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(7)

Posted third-country nationals should not be covered by this Directive. This should not prevent third-country nationals who are legally residing and working in a Member State and posted to another Member State from continuing to enjoy equal treatment with respect to nationals of the Member State of origin for the duration of their posting, in respect of those terms and conditions of employment which are not affected by the application of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (4).

| (8) | Third-country nationals who have acquired long-term resident status in accordance with Council Directive 2003/109/EC of 25 November 2003 on the status of third-country nationals who are long-term residents (5) should not be covered by this Directive given their more privileged status and their specific type of residence permit ‘long-term resident-EU’. |
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(8)

Third-country nationals who have acquired long-term resident status in accordance with Council Directive 2003/109/EC of 25 November 2003 on the status of third-country nationals who are long-term residents (5) should not be covered by this Directive given their more privileged status and their specific type of residence permit ‘long-term resident-EU’.

| (9) | Third-country nationals who have been admitted to the territory of a Member State to work on a seasonal basis should not be covered by this Directive given their temporary status. |
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(9)

Third-country nationals who have been admitted to the territory of a Member State to work on a seasonal basis should not be covered by this Directive given their temporary status.

| (10) | The obligation on the Member States to determine whether the application is to be made by a third-country national or by his or her employer should be without prejudice to any arrangements requiring both to be involved in the procedure. The Member States should decide whether the application for a single permit is to be made in the Member State of destination or from a third country. In cases where the third-country national is not allowed to make an application from a third country, Member States should ensure that the application may be made by the employer in the Member State of destination. |
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(10)

The obligation on the Member States to determine whether the application is to be made by a third-country national or by his or her employer should be without prejudice to any arrangements requiring both to be involved in the procedure. The Member States should decide whether the application for a single permit is to be made in the Member State of destination or from a third country. In cases where the third-country national is not allowed to make an application from a third country, Member States should ensure that the application may be made by the employer in the Member State of destination.

| (11) | The provisions of this Directive on the single application procedure and on the single permit should not concern uniform or long-stay visas. |
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(11)

The provisions of this Directive on the single application procedure and on the single permit should not concern uniform or long-stay visas.

| (12) | The designation of the competent authority under this Directive should be without prejudice to the role and responsibilities of other authorities and, where applicable, the social partners, with regard to the examination of, and the decision on, the application. |
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(12)

The designation of the competent authority under this Directive should be without prejudice to the role and responsibilities of other authorities and, where applicable, the social partners, with regard to the examination of, and the decision on, the application.

| (13) | The deadline for adopting a decision on the application should not include the time required for the recognition of professional qualifications or the time required for issuing a visa. This Directive should be without prejudice to national procedures on the recognition of diplomas. |
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(13)

The deadline for adopting a decision on the application should not include the time required for the recognition of professional qualifications or the time required for issuing a visa. This Directive should be without prejudice to national procedures on the recognition of diplomas.

| (14) | The single permit should be drawn up in accordance with Council Regulation (EC) No 1030/2002, of 13 June 2002 laying down a uniform format for residence permits for third-country nationals (6), enabling Member States to enter further information, in particular as to whether or not the person is permitted to work. A Member State should indicate, inter alia, for the purpose of better control of migration, not only on the single permit but also on all the issued residence permits, the information relating to the permission to work, irrespective of the type of the permit or the residence title on the basis of which the third-country national has been admitted to the territory and has been given access to the labour market of that Member State. |
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(14)

The single permit should be drawn up in accordance with Council Regulation (EC) No 1030/2002, of 13 June 2002 laying down a uniform format for residence permits for third-country nationals (6), enabling Member States to enter further information, in particular as to whether or not the person is permitted to work. A Member State should indicate, inter alia, for the purpose of better control of migration, not only on the single permit but also on all the issued residence permits, the information relating to the permission to work, irrespective of the type of the permit or the residence title on the basis of which the third-country national has been admitted to the territory and has been given access to the labour market of that Member State.

| (15) | The provisions of this Directive on residence permits for purposes other than work should apply only to the format of such permits and should be without prejudice to Union or national rules on admission procedures and on procedures for issuing such permits. |
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(15)

The provisions of this Directive on residence permits for purposes other than work should apply only to the format of such permits and should be without prejudice to Union or national rules on admission procedures and on procedures for issuing such permits.

| (16) | The provisions of this Directive on the single permit and on the residence permit issued for purposes other than work should not prevent Member States from issuing an additional paper document in order to be able to give more precise information on the employment relationship for which the format of the residence permit leaves insufficient space. Such a document can serve to prevent the exploitation of third-country nationals and combat illegal employment but should be optional for Member States and should not serve as a substitute for a work permit thereby compromising the concept of the single permit. Technical possibilities offered by Article 4 of Regulation (EC) No 1030/2002 and point (a)16 of the Annex thereto can also be used to store such information in an electronic format. |
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(16)

The provisions of this Directive on the single permit and on the residence permit issued for purposes other than work should not prevent Member States from issuing an additional paper document in order to be able to give more precise information on the employment relationship for which the format of the residence permit leaves insufficient space. Such a document can serve to prevent the exploitation of third-country nationals and combat illegal employment but should be optional for Member States and should not serve as a substitute for a work permit thereby compromising the concept of the single permit. Technical possibilities offered by Article 4 of Regulation (EC) No 1030/2002 and point (a)16 of the Annex thereto can also be used to store such information in an electronic format.

| (17) | The conditions and criteria on the basis of which an application to issue, amend or renew a single permit can be rejected, or on the basis of which the single permit can be withdrawn, should be objective and should be laid down in national law including the obligation to respect the principle of Union preference as expressed in particular in the relevant provisions of the 2003 and 2005 Acts of Accession. Rejection and withdrawal decisions should be duly reasoned. |
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(17)

The conditions and criteria on the basis of which an application to issue, amend or renew a single permit can be rejected, or on the basis of which the single permit can be withdrawn, should be objective and should be laid down in national law including the obligation to respect the principle of Union preference as expressed in particular in the relevant provisions of the 2003 and 2005 Acts of Accession. Rejection and withdrawal decisions should be duly reasoned.

| (18) | Third-country nationals who are in possession of a valid travel document and a single permit issued by a Member State applying the Schengen acquis in full, should be allowed to enter into and move freely within the territory of the Member States applying the Schengen acquis in full, for a period up to 3 months in any six-month period in accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (7) and Article 21 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (8) (Schengen Convention). |
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(18)

Third-country nationals who are in possession of a valid travel document and a single permit issued by a Member State applying the Schengen acquis in full, should be allowed to enter into and move freely within the territory of the Member States applying the Schengen acquis in full, for a period up to 3 months in any six-month period in accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (7) and Article 21 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (8) (Schengen Convention).

| (19) | In the absence of horizontal Union legislation, the rights of third-country nationals vary, depending on the Member State in which they work and on their nationality. With a view to developing further a coherent immigration policy and narrowing the rights gap between citizens of the Union and third-country nationals legally working in a Member State and complementing the existing immigration acquis, a set of rights should be laid down in order, in particular, to specify the fields in which equal treatment between a Member State’s own nationals and such third-country nationals who are not yet long-term residents is provided. Such provisions are intended to establish a minimum level playing field within the Union, to recognise that such third-country nationals contribute to the Union economy through their work and tax payments and to serve as a safeguard to reduce unfair competition between a Member State’s own nationals and third-country nationals resulting from the possible exploitation of the latter. A third–country worker in this Directive should be defined, without prejudice to the interpretation of the concept of employment relationship in other provisions of Union law, as a third-country national who has been admitted to the territory of a Member State, who is legally residing and who is allowed, in the context of a paid relationship, to work there in accordance with national law or practice. |
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(19)

In the absence of horizontal Union legislation, the rights of third-country nationals vary, depending on the Member State in which they work and on their nationality. With a view to developing further a coherent immigration policy and narrowing the rights gap between citizens of the Union and third-country nationals legally working in a Member State and complementing the existing immigration acquis, a set of rights should be laid down in order, in particular, to specify the fields in which equal treatment between a Member State’s own nationals and such third-country nationals who are not yet long-term residents is provided. Such provisions are intended to establish a minimum level playing field within the Union, to recognise that such third-country nationals contribute to the Union economy through their work and tax payments and to serve as a safeguard to reduce unfair competition between a Member State’s own nationals and third-country nationals resulting from the possible exploitation of the latter. A third–country worker in this Directive should be defined, without prejudice to the interpretation of the concept of employment relationship in other provisions of Union law, as a third-country national who has been admitted to the territory of a Member State, who is legally residing and who is allowed, in the context of a paid relationship, to work there in accordance with national law or practice.

| (20) | All third-country nationals who are legally residing and working in Member States should enjoy at least a common set of rights based on equal treatment with the nationals of their respective host Member State, irrespective of the initial purpose of or basis for admission. The right to equal treatment in the fields specified by this Directive should be granted not only to those third-country nationals who have been admitted to a Member State to work but also to those who have been admitted for other purposes and have been given access to the labour market of that Member State in accordance with other provisions of Union or national law, including family members of a third-country worker who are admitted to the Member State in accordance with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (9); third-country nationals who are admitted to the territory of a Member State in accordance with 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 (10); and researchers admitted in accordance with Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (11). |
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(20)

All third-country nationals who are legally residing and working in Member States should enjoy at least a common set of rights based on equal treatment with the nationals of their respective host Member State, irrespective of the initial purpose of or basis for admission. The right to equal treatment in the fields specified by this Directive should be granted not only to those third-country nationals who have been admitted to a Member State to work but also to those who have been admitted for other purposes and have been given access to the labour market of that Member State in accordance with other provisions of Union or national law, including family members of a third-country worker who are admitted to the Member State in accordance with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (9); third-country nationals who are admitted to the territory of a Member State in accordance with 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 (10); and researchers admitted in accordance with Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (11).

| (21) | The right to equal treatment in specified fields should be strictly linked to the third-country national’s legal residence and the access given to the labour market in a Member State, which are enshrined in the single permit encompassing the authorisation to reside and work and in residence permits issued for other purposes containing information on the permission to work. |
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(21)

The right to equal treatment in specified fields should be strictly linked to the third-country national’s legal residence and the access given to the labour market in a Member State, which are enshrined in the single permit encompassing the authorisation to reside and work and in residence permits issued for other purposes containing information on the permission to work.

| (22) | Working conditions as referred to in this Directive should cover at least pay and dismissal, health and safety at the workplace, working time and leave taking into account collective agreements in force. |
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(22)

Working conditions as referred to in this Directive should cover at least pay and dismissal, health and safety at the workplace, working time and leave taking into account collective agreements in force.

| (23) | A Member State should recognise professional qualifications acquired by a third-country national in another Member State in the same way as those of citizens of the Union and should take into account qualifications acquired in a third country in accordance with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (12). The right to equal treatment accorded to third-country workers as regards recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures should be without prejudice to the competence of Member States to admit such third-country workers to their labour market. |
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(23)

A Member State should recognise professional qualifications acquired by a third-country national in another Member State in the same way as those of citizens of the Union and should take into account qualifications acquired in a third country in accordance with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (12). The right to equal treatment accorded to third-country workers as regards recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures should be without prejudice to the competence of Member States to admit such third-country workers to their labour market.

| (24) | Third-country workers should enjoy equal treatment as regards social security. Branches of social security are defined in Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (13). The provisions on equal treatment concerning social security in this Directive should also apply to workers admitted to a Member State directly from a third country. Nevertheless, this Directive should not confer on third-country workers more rights than those already provided in existing Union law in the field of social security for third-country nationals who are in cross-border situations. This Directive, furthermore, should not grant rights in relation to situations which lie outside the scope of Union law, such as in relation to family members residing in a third country. This Directive should grant rights only in relation to family members who join third-country workers to reside in a Member State on the basis of family reunification or family members who already reside legally in that Member State. |
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(24)

Third-country workers should enjoy equal treatment as regards social security. Branches of social security are defined in Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (13). The provisions on equal treatment concerning social security in this Directive should also apply to workers admitted to a Member State directly from a third country. Nevertheless, this Directive should not confer on third-country workers more rights than those already provided in existing Union law in the field of social security for third-country nationals who are in cross-border situations. This Directive, furthermore, should not grant rights in relation to situations which lie outside the scope of Union law, such as in relation to family members residing in a third country. This Directive should grant rights only in relation to family members who join third-country workers to reside in a Member State on the basis of family reunification or family members who already reside legally in that Member State.

| (25) | Member States should ensure at least equal treatment of third-country nationals who are in employment or who, after a minimum period of employment, are registered as unemployed. Any restrictions to the equal treatment in the field of social security under this Directive should be without prejudice to the rights conferred pursuant to Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality (14). |
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(25)

Member States should ensure at least equal treatment of third-country nationals who are in employment or who, after a minimum period of employment, are registered as unemployed. Any restrictions to the equal treatment in the field of social security under this Directive should be without prejudice to the rights conferred pursuant to Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality (14).

| (26) | Union law does not limit the power of the Member States to organise their social security schemes. In the absence of harmonisation at Union level, it is for each Member State to lay down the conditions under which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. However, when exercising that power, Member States should comply with Union law. |
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(26)

Union law does not limit the power of the Member States to organise their social security schemes. In the absence of harmonisation at Union level, it is for each Member State to lay down the conditions under which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. However, when exercising that power, Member States should comply with Union law.

| (27) | Equal treatment of third-country workers should not apply to measures in the field of vocational training which are financed under social assistance schemes. |
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(27)

Equal treatment of third-country workers should not apply to measures in the field of vocational training which are financed under social assistance schemes.

| (28) | This Directive should be applied without prejudice to more favourable provisions contained in Union law and applicable international instruments. |
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(28)

This Directive should be applied without prejudice to more favourable provisions contained in Union law and applicable international instruments.

| (29) | 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 in particular in accordance with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (15) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (16). |
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(29)

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 in particular in accordance with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (15) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (16).

| (30) | Since the objectives of this Directive, namely laying down a single application procedure for issuing a single permit for third-country nationals to work in the territory of a Member State and a common set of rights for third-country workers legally residing in a Member State, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. |
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(30)

Since the objectives of this Directive, namely laying down a single application procedure for issuing a single permit for third-country nationals to work in the territory of a Member State and a common set of rights for third-country workers legally residing in a Member State, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

| (31) | This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union in accordance with Article 6(1) of the TEU. |
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(31)

This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union in accordance with Article 6(1) of the TEU.

| (32) | 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. |
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(32)

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.

| (33) | In accordance with Articles 1 and 2 of the Protocol (No 21) on the position of the United Kingdom and Ireland, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application. |
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(33)

In accordance with Articles 1 and 2 of the Protocol (No 21) on the position of the United Kingdom and Ireland, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.

| (34) | In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application, |
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(34)

In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

1.   This Directive lays down:

| (a) | a single application procedure for issuing a single permit for third-country nationals to reside for the purpose of work in the territory of a Member State, in order to simplify the procedures for their admission and to facilitate the control of their status; and |
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(a)

a single application procedure for issuing a single permit for third-country nationals to reside for the purpose of work in the territory of a Member State, in order to simplify the procedures for their admission and to facilitate the control of their status; and

| (b) | a common set of rights to third-country workers legally residing in a Member State, irrespective of the purposes for which they were initially admitted to the territory of that Member State, based on equal treatment with nationals of that Member State. |
| --- | --- |

(b)

a common set of rights to third-country workers legally residing in a Member State, irrespective of the purposes for which they were initially admitted to the territory of that Member State, based on equal treatment with nationals of that Member State.

2.   This Directive is without prejudice to the Member States’ powers concerning the admission of third-country nationals to their labour markets.

Article 2

Definitions

For the purposes of this Directive, the following definitions apply:

| (a) | ‘third-country national’ means a person who is not a citizen of the Union within the meaning of Article 20(1) TFEU; |
| --- | --- |

(a)

‘third-country national’ means a person who is not a citizen of the Union within the meaning of Article 20(1) TFEU;

| (b) | ‘third-country worker’ means a third-country national who has been admitted to the territory of a Member State and who is legally residing and is allowed to work in the context of a paid relationship in that Member State in accordance with national law or practice; |
| --- | --- |

(b)

‘third-country worker’ means a third-country national who has been admitted to the territory of a Member State and who is legally residing and is allowed to work in the context of a paid relationship in that Member State in accordance with national law or practice;

| (c) | ‘single permit’ means a residence permit issued by the authorities of a Member State allowing a third-country national to reside legally in its territory for the purpose of work; |
| --- | --- |

(c)

‘single permit’ means a residence permit issued by the authorities of a Member State allowing a third-country national to reside legally in its territory for the purpose of work;

| (d) | ‘single application procedure’ means any procedure leading, on the basis of a single application made by a third-country national, or by his or her employer, for the authorisation of residence and work in the territory of a Member State, to a decision ruling on that application for the single permit. |
| --- | --- |

(d)

‘single application procedure’ means any procedure leading, on the basis of a single application made by a third-country national, or by his or her employer, for the authorisation of residence and work in the territory of a Member State, to a decision ruling on that application for the single permit.

Article 3

Scope

1.   This Directive shall apply to:

| (a) | third-country nationals who apply to reside in a Member State for the purpose of work, |
| --- | --- |

(a)

third-country nationals who apply to reside in a Member State for the purpose of work,

| (b) | third-country nationals who have been admitted to a Member State for purposes other than work in accordance with Union or national law, who are allowed to work and who hold a residence permit in accordance with Regulation (EC) No 1030/2002; and |
| --- | --- |

(b)

third-country nationals who have been admitted to a Member State for purposes other than work in accordance with Union or national law, who are allowed to work and who hold a residence permit in accordance with Regulation (EC) No 1030/2002; and

| (c) | third-country nationals who have been admitted to a Member State for the purpose of work in accordance with Union or national law. |
| --- | --- |

(c)

third-country nationals who have been admitted to a Member State for the purpose of work in accordance with Union or national law.

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

| (a) | who are family members of citizens of the Union who have exercised, or are exercising, their right to free movement within the Union in accordance with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (17); |
| --- | --- |

(a)

who are family members of citizens of the Union who have exercised, or are exercising, their right to free movement within the Union in accordance with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (17);

| (b) | 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; |
| --- | --- |

(b)

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;

| (c) | who are posted for as long as they are posted; |
| --- | --- |

(c)

who are posted for as long as they are posted;

| (d) | who have applied for admission or have been admitted to the territory of a Member State to work as intra-corporate transferees; |
| --- | --- |

(d)

who have applied for admission or have been admitted to the territory of a Member State to work as intra-corporate transferees;

| (e) | who have applied for admission or have been admitted to the territory of a Member State as seasonal workers or au pairs; |
| --- | --- |

(e)

who have applied for admission or have been admitted to the territory of a Member State as seasonal workers or au pairs;

| (f) | who are authorised to reside in a Member State on the basis of temporary protection, or who have applied for authorisation to reside there on that basis and are awaiting a decision on their status; |
| --- | --- |

(f)

who are authorised to reside in a Member State on the basis of temporary protection, or who have applied for authorisation to reside there on that basis and are awaiting a decision on their status;

| (g) | who are beneficiaries of international protection under Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (18) or who have applied for international protection under that Directive and whose application has not been the subject of a final decision; |
| --- | --- |

(g)

who are beneficiaries of international protection under Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (18) or who have applied for international protection under that Directive and whose application has not been the subject of a final decision;

| (h) | who are beneficiaries of protection in accordance with national law, international obligations or the practice of a Member State or have applied for protection in accordance with national law, international obligations or the practice of a Member State and whose application has not been the subject of a final decision; |
| --- | --- |

(h)

who are beneficiaries of protection in accordance with national law, international obligations or the practice of a Member State or have applied for protection in accordance with national law, international obligations or the practice of a Member State and whose application has not been the subject of a final decision;

| (i) | who are long-term residents in accordance with Directive 2003/109/EC; |
| --- | --- |

(i)

who are long-term residents in accordance with Directive 2003/109/EC;

| (j) | whose removal has been suspended on the basis of fact or law; |
| --- | --- |

(j)

whose removal has been suspended on the basis of fact or law;

| (k) | who have applied for admission or who have been admitted to the territory of a Member State as self-employed workers; |
| --- | --- |

(k)

who have applied for admission or who have been admitted to the territory of a Member State as self-employed workers;

| (l) | who have applied for admission or have been admitted as seafarers for employment or work in any capacity on board of a ship registered in or sailing under the flag of a Member State. |
| --- | --- |

(l)

who have applied for admission or have been admitted as seafarers for employment or work in any capacity on board of a ship registered in or sailing under the flag of a Member State.

3.   Member States may decide that Chapter II does not apply to third-country nationals who have been either authorised to work in the territory of a Member State for a period not exceeding 6 months or who have been admitted to a Member State for the purpose of study.

4.   Chapter II shall not apply to third-country nationals who are allowed to work on the basis of a visa.

CHAPTER II

SINGLE APPLICATION PROCEDURE AND SINGLE PERMIT

Article 4

Single application procedure

1.   An application to issue, amend or renew a single permit shall be submitted by way of a single application procedure. Member States shall determine whether applications for a single permit are to be made by the third-country national or by the third-country national’s employer. Member States may also decide to allow an application from either of the two. If the application is to be submitted by the third-country national, Member States shall allow the application to be introduced from a third country or, if provided for by national law, in the territory of the Member State in which the third-country national is legally present.

2.   Member States shall examine an application made under paragraph 1 and shall adopt a decision to issue, amend or renew the single permit if the applicant fulfils the requirements specified by Union or national law. A decision to issue, amend or renew the single permit shall constitute a single administrative act combining a residence permit and a work permit.

3.   The single application procedure shall be without prejudice to the visa procedure which may be required for initial entry.

4.   Member States shall issue a single permit, where the conditions provided for are met, to third-country nationals who apply for admission and to third-country nationals already admitted who apply to renew or modify their residence permit after the entry into force of the national implementing provisions.

Article 5

Competent authority

1.   Member States shall designate the authority competent to receive the application and to issue the single permit.

2.   The competent authority shall adopt a decision on the complete application as soon as possible and in any event within 4 months of the date on which the application was lodged.

The time–limit referred to in the first subparagraph may be extended in exceptional circumstances, linked to the complexity of the examination of the application.

Where no decision is taken within the time–limit provided for in this paragraph, any consequences shall be determined by national law.

3.   The competent authority shall notify the decision to the applicant in writing in accordance with the notification procedures laid down in the relevant national law.

4.   If the information or documents in support of the application are incomplete according to the criteria specified in national law, the competent authority shall notify the applicant in writing of the additional information or documents required, setting a reasonable deadline to provide them. The time–limit referred to in paragraph 2 shall be suspended until the competent authority or other relevant authorities have received the additional information required. If the additional information or documents is not provided within the deadline set, the competent authority may reject the application.

Article 6

Single permit

1.   Member States shall issue a single permit using the uniform format as laid down in Regulation (EC) No 1030/2002 and shall indicate the information relating to the permission to work in accordance with point (a)7.5-9 of the Annex thereto.

Member States may indicate additional information related to the employment relationship of the third-country national (such as the name and address of the employer, place of work, type of work, working hours, remuneration) 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.

2.   When issuing the single permit Member States shall not issue additional permits as proof of authorisation to access the labour market.

Article 7

Residence permits issued for purposes other than work

1.   When issuing residence permits in accordance with Regulation (EC) No 1030/2002 Member States shall indicate the information relating to the permission to work irrespective of the type of the permit.

Member States may indicate additional information related to the employment relationship of the third-country national (such as the name and address of the employer, place of work, type of work, working hours, remuneration) in paper format, or store such data in electronic format as referred to in Article 4 of Regulation (EC) No 1030/2002 and point (a)16 of the Annex thereto.

2.   When issuing residence permits in accordance with Regulation (EC) No 1030/2002, Member States shall not issue additional permits as proof of authorisation to access the labour market.

Article 8

Procedural guarantees

1.   Reasons shall be given in the written notification of a decision rejecting an application to issue, amend or renew a single permit, or a decision withdrawing a single permit on the basis of criteria provided for by Union or national law.

2.   A decision rejecting the application to issue, amend or renew or withdrawing a single permit shall be open to legal challenge in the Member State concerned, in accordance with national law. The written notification referred to in paragraph 1 shall specify the court or administrative authority where the person concerned may lodge an appeal and the time-limit therefor.

3.   An application may be considered as inadmissible on the grounds of volume of admission of third-country nationals coming for employment and, on that basis, need not to be processed.

Article 9

Access to information

Member States shall provide, upon request, adequate information to the third-country national and the future employer on the documents required to make a complete application.

Article 10

Fees

Member States may require applicants to pay fees, where appropriate, for handling applications in accordance with this Directive. The level of such fees shall be proportionate and may be based on the services actually provided for the processing of applications and the issuance of permits.

Article 11

Rights on the basis of the single permit

Where a single permit has been issued in accordance with national law, it shall authorise, during its period of validity, its holder at least to:

| (a) | enter and reside in the territory of the Member State issuing the single permit, provided that the holder meets all admission requirements in accordance with national law; |
| --- | --- |

(a)

enter and reside in the territory of the Member State issuing the single permit, provided that the holder meets all admission requirements in accordance with national law;

| (b) | have free access to the entire territory of the Member State issuing the single permit within the limits provided for by national law; |
| --- | --- |

(b)

have free access to the entire territory of the Member State issuing the single permit within the limits provided for by national law;

| (c) | exercise the specific employment activity authorised under the single permit in accordance with national law; |
| --- | --- |

(c)

exercise the specific employment activity authorised under the single permit in accordance with national law;

| (d) | be informed about the holder’s own rights linked to the permit conferred by this Directive and/or by national law. |
| --- | --- |

(d)

be informed about the holder’s own rights linked to the permit conferred by this Directive and/or by national law.

CHAPTER III

RIGHT TO EQUAL TREATMENT

Article 12

Right to equal treatment

1.   Third-country workers as referred to in points (b) and (c) of Article 3(1) shall enjoy equal treatment with nationals of the Member State where they reside with regard to:

| (a) | working conditions, including pay and dismissal as well as health and safety at the workplace; |
| --- | --- |

(a)

working conditions, including pay and dismissal as well as health and safety at the workplace;

| (b) | freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security; |
| --- | --- |

(b)

freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security;

| (c) | education and vocational training; |
| --- | --- |

(c)

education and vocational training;

| (d) | recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures; |
| --- | --- |

(d)

recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures;

| (e) | branches of social security, as defined in Regulation (EC) No 883/2004; |
| --- | --- |

(e)

branches of social security, as defined in Regulation (EC) No 883/2004;

| (f) | tax benefits, in so far as the worker is deemed to be resident for tax purposes in the Member State concerned; |
| --- | --- |

(f)

tax benefits, in so far as the worker is deemed to be resident for tax purposes in the Member State concerned;

| (g) | access to goods and services and the supply of goods and services made available to the public including procedures for obtaining housing as provided by national law, without prejudice to the freedom of contract in accordance with Union and national law; |
| --- | --- |

(g)

access to goods and services and the supply of goods and services made available to the public including procedures for obtaining housing as provided by national law, without prejudice to the freedom of contract in accordance with Union and national law;

| (h) | advice services afforded by employment offices. |
| --- | --- |

(h)

advice services afforded by employment offices.

2.   Member States may restrict equal treatment:

| (a) | under point (c) of paragraph 1 by:






  (i) | limiting its application to those third-country workers who are in employment or who have been employed and who are registered as unemployed, |
| --- | --- | --- |

(a)

under point (c) of paragraph 1 by:

(i)

limiting its application to those third-country workers who are in employment or who have been employed and who are registered as unemployed,

| (ii) | excluding those third-country workers who have been admitted to their territory in conformity with Directive 2004/114/EC, |
| --- | --- |

(ii)

excluding those third-country workers who have been admitted to their territory in conformity with Directive 2004/114/EC,

| (iii) | excluding study and maintenance grants and loans or other grants and loans, |
| --- | --- |

(iii)

excluding study and maintenance grants and loans or other grants and loans,

| (iv) | laying down specific prerequisites including language proficiency and the payment of tuition fees, in accordance with national law, with respect to access to university and post-secondary education and to vocational training which is not directly linked to the specific employment activity; |
| --- | --- |

(iv)

laying down specific prerequisites including language proficiency and the payment of tuition fees, in accordance with national law, with respect to access to university and post-secondary education and to vocational training which is not directly linked to the specific employment activity;

| (b) | by limiting the rights conferred on third-country workers under point (e) of paragraph 1, but shall not restrict such rights for third-country workers who are in employment or who have been employed for a minimum period of 6 months and who are registered as unemployed.
  In addition, Member States may decide that point (e) of paragraph 1 with regard to family benefits shall not apply to third-country nationals who have been authorised to work in the territory of a Member State for a period not exceeding 6 months, to third-country nationals who have been admitted for the purpose of study, or to third-country nationals who are allowed to work on the basis of a visa. |
| --- | --- |

(b)

by limiting the rights conferred on third-country workers under point (e) of paragraph 1, but shall not restrict such rights for third-country workers who are in employment or who have been employed for a minimum period of 6 months and who are registered as unemployed.

In addition, Member States may decide that point (e) of paragraph 1 with regard to family benefits shall not apply to third-country nationals who have been authorised to work in the territory of a Member State for a period not exceeding 6 months, to third-country nationals who have been admitted for the purpose of study, or to third-country nationals who are allowed to work on the basis of a visa.

| (c) | under point (f) of paragraph 1 with respect to tax benefits by limiting its application to cases where the registered or usual place of residence of the family members of the third-country worker for whom he/she claims benefits, lies in the territory of the Member State concerned. |
| --- | --- |

(c)

under point (f) of paragraph 1 with respect to tax benefits by limiting its application to cases where the registered or usual place of residence of the family members of the third-country worker for whom he/she claims benefits, lies in the territory of the Member State concerned.

| (d) | under point (g) of paragraph 1 by:






  (i) | limiting its application to those third-country workers who are in employment, |
| --- | --- | --- |

(d)

under point (g) of paragraph 1 by:

(i)

limiting its application to those third-country workers who are in employment,

| (ii) | restricting access to housing. |
| --- | --- |

(ii)

restricting access to housing.

3.   The right to equal treatment laid down in paragraph 1 shall be without prejudice to the right of the Member State to withdraw or to refuse to renew the residence permit issued under this Directive, the residence permit issued for purposes other than work, or any other authorisation to work in a Member State.

4.   Third-country workers moving to a third country, or their survivors who reside in a third country and who derive rights from those workers, shall receive, in relation to old age, invalidity and death, statutory pensions based on those workers’ previous employment and acquired in accordance with the legislation referred to in Article 3 of Regulation (EC) No 883/2004, under the same conditions and at the same rates as the nationals of the Member States concerned when they move to a third country.

CHAPTER IV

FINAL PROVISIONS

Article 13

More favourable provisions

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

| (a) | Union law, including bilateral and multilateral agreements between the Union, or the Union and its Member States, on the one hand and one or more third countries on the other; and |
| --- | --- |

(a)

Union law, including bilateral and multilateral agreements between the Union, or the Union and its Member States, on the one hand and one or more third countries on the other; and

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

(b)

bilateral or multilateral agreements 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.

Article 14

Information to the general public

Each Member State shall make available to the general public a regularly updated set of information concerning the conditions of third-country nationals’ admission to and residence in its territory in order to work there.

Article 15

Reporting

1.   Periodically, and for the first time by ... (19), the Commission shall present a report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose amendments it deems necessary.

2.   Annually, and for the first time by ... (20), Member States shall communicate to the Commission statistics on the volumes of third-country nationals who have been granted a single permit during the previous calendar year, in accordance with Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection (21).

Article 16

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ... (22). They shall forthwith communicate to the Commission the text of those provisions.

When Member States adopt those 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 17

Entry into force

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

Article 18

Addressees

This Directive is addressed to the Member States in accordance with the Treaties.

Done at ...

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 27, 3.2.2009, p. 114.

1

(2)  OJ C 257, 9.10.2008, p. 20.

2

(3)  Position of the European Parliament of 24 March 2011 (not yet published in the Official Journal) and Position of the Council at first reading of 24 November 2011. Position of the European Parliament of ... (not yet published in the Official Journal).

3

(4)  OJ L 18, 21.1.1997, p. 1.

4

(5)  OJ L 16, 23.1.2004, p. 44.

5

(6)  OJ L 157, 15.6.2002, p. 1.

6

(7)  OJ L 105, 13.4.2006, p. 1.

7

(8)  OJ L 239, 22.9.2000, p. 19.

8

(9)  OJ L 251, 3.10.2003, p. 12.

9

(10)  OJ L 375, 23.12.2004, p. 12.

10

(11)  OJ L 289, 3.11.2005, p. 15.

11

(12)  OJ L 255, 30.9.2005, p. 22.

12

(13)  OJ L 166, 30.4.2004, p. 1.

13

(14)  OJ L 344, 29.12.2010, p. 1.

14

(15)  OJ L 180, 19.7.2000, p. 22.

15

(16)  OJ L 303, 2.12.2000, p. 16.

16

(17)  OJ L 158, 30.4.2004, p. 77.

17

(18)  OJ L 304, 30.9.2004, p. 12.

18

(19)  Five years after the entry into force of this Directive.

19

(20)  Three years after the entry into force of this Directive.

20

(21)  OJ L 199, 31.7.2007, p. 23.

21

(22)  Two years after the entry into force of this Directive.

22

---

STATEMENT OF THE COUNCIL’S REASONS

I.   INTRODUCTION

On 23 October 2007, the Commission adopted the proposal for a Directive of the European Parliament and of the Council 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 to the Council.

The European Economic and Social Committee and the Committee of the Regions adopted their opinions on the proposal respectively on 9 July 2008 and on 18 June 2008.

On 24 March 2011, the European Parliament adopted its position at first reading with a view to the adoption of the Directive. The Council was not in a position to approve the Parliament’s position and adopted its position at first reading on 24 November 2011 in accordance with Article 294 of the Treaty.

II.   OBJECTIVE OF THE PROPOSAL

The objective of the proposal is to introduce a single application procedure for third-country nationals who would like to reside in a Member State for the purpose of work, along with a single residence/work permit, and to provide for a common set of rights to all third-country workers legally residing in a Member State.

III.   ANALYSIS OF THE COUNCIL’S POSITION AT FIRST READING

General

The negotiations took place in a policy context shaped by the Hague programme which set out the objectives and the instruments in the field of freedom, security and justice for the period 2005 – 2010 and subsequently by the Stockholm programme covering the period 2010-2014. In the Stockholm programme, the European Council recognised the importance of labour migration in contributing to increased competitiveness and economic vitality of the Union and for this purpose encouraged the creation of flexible admission systems that are responsive to the priorities, needs, numbers and volumes determined by each Member State. More specifically, it invited the Commission and the Council to continue to implement the Policy Plan on Legal Migration of 2005 which, among other things, provided for a horizontal instrument setting out a framework of rights to all third-country workers lawfully residing in a Member State and introducing a single application procedure along with a single residence/work permit.

The Council started discussing the proposal in early 2008 but failed to reach unanimous agreement on it. Since the entry into force of the Lisbon Treaty the proposal falls under the ordinary legislative procedure with qualified majority required in Council.

In accordance with Articles 1 and 2 of the Protocol on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, those Member States are not taking part in the adoption of the Directive on the Single Permit and are not bound by it or subject to its application.

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

Key issues

In line with the provisions of the Joint Declaration on practical arrangements for the co-decision procedure (1), representatives of the Council, the Parliament and the Commission engaged in contacts with a view to concluding an agreement at the stage of the Council’s position at first reading. With a view to reconciling the position of both institutions and taking account of the agreement reached in those contacts, the Council adopts on the proposal for a Directive on the single permit its position at first reading introducing the following key modifications to the Commission proposal:

Scope (Article 3)

The Council amends the Commission proposal with a view to specifying the scope of the Directive. For the sake of clarity, the Council distinguishes between two types of third-country workers – those third-country nationals who hold a residence permit in accordance with Regulation (EC) No 1030/2002 and have been admitted for purposes other than work but are allowed to work, and those who have been admitted for the purpose of work. While the latter category is entitled to a single permit and the right to equal treatment under this Directive, the former category is entitled to the right to equal treatment but is not subject to the single application procedure. A subsequent reference to both categories has been made in the introductory sentence of Article 12 concerning the right to equal treatment.

In comparison with the Commission proposal, the Council adds categories of third-country nationals who are excluded from the scope of the Directive. Since the rights of those benefiting from international protection, temporary protection or protection under national law are regulated by other Union instruments, they should, for the sake of legal clarity, be explicitly excluded from the scope of this Directive. For similar reasons, the Council excludes seafarers from the scope of the Directive. Although it also follows from the definition of a third-country worker in this Directive, the Council prefers to explicitly exclude the self-employed from the scope of the Directive.

The Council also sees the need to give Member States the option of not issuing a single permit to students and to those third-country nationals who are authorised to work in a Member State for a period shorter than 6 months as well as to those who are allowed to work on the basis of a visa. The right to equal treatment shall nevertheless apply to these categories of third-country nationals.

Application procedure (Articles 4, 5, 8 and 10)

With regard to the submission of an application for a single permit, the outcome of the informal contacts between the Council and the European Parliament has been to set out in greater detail who the application should be submitted by and where. As a general rule, Member States are obliged to determine whether the application should be made by a third-country national or by his or her employer. However, by way of an exception there may be certain situations where the other party is allowed to submit the application.

In order to cater for those third-country workers who have been admitted to the territory of the Member State prior to the entry into force of the Directive, the Council position provides that these workers shall also be issued a single permit if they apply for a renewal or modification of their residence permit and if they fulfil the conditions set out in the Directive.

The Council considers it necessary to specify that the visa procedure which Member States may have in place for initial entry remains unaffected by the single application procedure as set out in this Directive. It is also specifically set out that Member States have the possibility to declare an application inadmissible on the grounds of volumes of admission in which case the application does not have to be processed.

With the aim of ensuring a clear and transparent procedure, the Council position adds a requirement for Member States to set out in their national law the consequences of a decision not having been taken within the time-limit set out in this Directive. Similarly, more detailed procedural rules have been added for situations where the information or documents supporting the application are incomplete. Member States are required to inform the applicant in writing of the additional information or documents he/she needs to submit and they may set a reasonable deadline for the applicant to do so. In order to avoid possible abuses of the system, Member States are given a possibility to reject an application in case the necessary information has not been given within the set deadline. At the same time, in order to ensure a possibility for a legal challenge, the Council position obliges Member States to specify the court or administrative authority where the applicant concerned may lodge an appeal against a negative decision.

When it comes to the fees applicants may be requested to pay for the handling of the application, the Council position, while adhering to the principle of proportionality, allows Member States to base the level of such fees on the various services actually provided when processing applications and issuing permits.

Single permit and residence permit issued for purposes other than work (Articles 6 and 7)

As a result of the informal contacts between the Council and the Parliament, the Council’s position provides for a possibility for Member States to complement the single permit and the residence permit issued for purposes other than work with additional information for which the card format of the residence permit leaves insufficient space. The information related to the employment relationship of the third-country national concerned can be issued either separately in paper format or stored electronically on the permit. Such information serves the purpose of preventing the exploitation of third-country nationals and combating illegal employment.

The right to equal treatment (Article 12)

Considering the wide definition of a third-country worker in this Directive and following the main purpose of the Directive which is to grant equal treatment to third-country workers who are in actual employment and not necessarily to those who are allowed to work but may have never done so, the Council amends the Commission proposal by further extending the possibilities for Member States to limit the right of third-country workers to equal treatment with nationals.

At the same time, the Council position amends the Commission proposal by granting equal treatment to third-country workers, irrespective of whether they are in employment or not, with respect to working conditions, freedom of association and tax benefits (as long as the third-country worker is deemed to be resident for tax purposes in the Member State concerned).

The Council deems it important to clarify, by way of a general principle, that the right of a third-country national to equal treatment in itself does not affect the right of Member States to withdraw or refuse to renew the residence permit issued under this Directive.

Education and vocational training

With regard to education and vocational training, the Council and the European Parliament agreed that Member States are allowed to restrict access to education and training to those third-country workers who are in employment and to those who have been employed and are registered as unemployed. The Council position also enables Member States to exclude those third-country workers who have been admitted under the Directive 2004/114/EC since that directive deals specifically with third-country nationals who have been admitted for the purposes of studies. In addition to the exclusion made for study grants in the Commission proposal, the Council position enables Member States, for budgetary reasons, to exclude maintenance grants and loans or other grants and loans. Member States are also allowed to require the fulfilment of specific prerequisites before a third-country worker is granted access to university and post-secondary education or to vocational training. These prerequisites are not only educational in nature and can include language proficiency and the payment of tuition fees. These prerequisites cannot, however, be applied to vocational training that is linked to a concrete employment activity.

Branches of social security

The Council amends the Commission proposal by obliging Member States to grant equal treatment in the field of social security not only to those who are in employment but also to those who have been employed for a minimum period of 6 months and who are registered as unemployed. Member States have, however, been given a possibility to deny family benefits to those third-country nationals who are authorised to work in a Member State for a period not exceeding 6 months, who have been admitted for the purpose of study and who are allowed to work on the basis of a visa. This limitation stems from the fact that several Member States regard family benefits as a measure with long-term demographic impact directed at those residing in a country over a longer period of time.

Goods and services, and advice services afforded by employment offices

The Council amends the Commission proposal by enabling Member States to grant access to goods and services only to those third-country workers who are in employment. In addition, the Council position provides, for budgetary reasons, that Member States may apply a general restriction on access to housing. At the same time, all third-country workers must be granted equal treatment with nationals with regard to advice services afforded by employment offices.

Tax benefits

The Council position specifies that equal treatment is granted with regard to tax benefits as long as the third-country worker is deemed to be resident for tax purposes in the Member State concerned. With regard to the tax benefits claimed for family members, Member States may require that the registered or usual place of residence of the family members is in the Member State concerned.

Statutory pensions

The Council position adds further clarification to the Commission’s proposal on equal treatment in respect of statutory pensions of third-country workers moving to a third country or their survivors residing in a third country.

Reporting (Article 15)

The Council’s position states that the statistics on the volumes of third-country nationals who have been granted a single permit should be provided in accordance with Regulation (EC) No 862/2007 on Community statistics on migration and international protection.

Transposition (Recital 32 and Article 16)

Following the approval of the Joint Political Declarations on explanatory documents by the European Parliament, the Commission and the Council, the Commission sent a letter to the Council justifying the need for providing explanatory documents in the case of the Single Permit Directive. (2) The Council, subsequently, inserted a new Recital 32 and amended the relevant Article of the Directive.

IV.   CONCLUSION

The Council’s Position at first reading reflects the compromise reached in negotiations between the Council and the European Parliament, facilitated by the Commission. Coreper endorsed this compromise at its meeting on 20 July 2011. Prior to that, the Chair of the European Parliament’s LIBE Committee in a letter dated 15 July 2011 to the Chairman of Coreper had indicated that if the compromise text is transmitted to Parliament as Council’s position at first reading, he will recommend to the members of LIBE, and subsequently to the plenary, that the Council’s position be accepted without amendments in Parliament’s second reading, subject to verification by the lawyer-linguists of both institutions. Due to its horizontal nature, the adoption of the Directive on the Single Permit will be of central importance in the field of legal migration at the EU level.

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(1)  OJ C 148, 28.5.1999, p. 1.

(2)  Doc. 16058/11 MIGR 164 SOC 917 CODEC 1815 (http://register.consilium.europa.eu/pdf/en/11/st16/st16058.en11.pdf).

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| 12.1.2012 | EN | Official Journal of the European Union | CE 10/14 |
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12.1.2012

EN

Official Journal of the European Union

CE 10/14

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POSITION (EU) No 2/2012 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Directive of the European Parliament and of the Council on the European protection order

Adopted by the Council on 24 November 2011

2012/C 10 E/02

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(1)(a) and (d) thereof,

Having regard to the initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Hungary, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Finland and the Kingdom of Sweden,

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

Acting in accordance with the ordinary legislative procedure (1),

Whereas:

| (1) | The European Union has set itself the objective of maintaining and developing an area of freedom, security and justice. |
| --- | --- |

(1)

The European Union has set itself the objective of maintaining and developing an area of freedom, security and justice.

| (2) | Article 82(1) of the Treaty on the Functioning of the European Union (TFEU) provides that judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions. |
| --- | --- |

(2)

Article 82(1) of the Treaty on the Functioning of the European Union (TFEU) provides that judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions.

| (3) | According to the Stockholm Programme — An open and secure Europe serving and protecting citizens (2), mutual recognition should extend to all types of judgments and decisions of a judicial nature, which may, depending on the legal system, be either criminal or administrative. It also calls on the Commission and the Member States to examine how to improve legislation and practical support measures for the protection of victims. The programme also points out that victims of crime can be offered special protection measures which should be effective within the Union. This Directive forms part of a coherent and comprehensive set of measures on victims’ rights. |
| --- | --- |

(3)

According to the Stockholm Programme — An open and secure Europe serving and protecting citizens (2), mutual recognition should extend to all types of judgments and decisions of a judicial nature, which may, depending on the legal system, be either criminal or administrative. It also calls on the Commission and the Member States to examine how to improve legislation and practical support measures for the protection of victims. The programme also points out that victims of crime can be offered special protection measures which should be effective within the Union. This Directive forms part of a coherent and comprehensive set of measures on victims’ rights.

| (4) | The resolution of the European Parliament of 26 November 2009 on the elimination of violence against women calls on Member States to improve their national laws and policies to combat all forms of violence against women and to act in order to tackle the causes of violence against women, not least by employing preventive measures and calls on the Union to guarantee the right to assistance and support for all victims of violence. The resolution of the European Parliament of 10 February 2010 on equality between women and men in the European Union – 2009 endorses the proposal to introduce the European protection order for victims. |
| --- | --- |

(4)

The resolution of the European Parliament of 26 November 2009 on the elimination of violence against women calls on Member States to improve their national laws and policies to combat all forms of violence against women and to act in order to tackle the causes of violence against women, not least by employing preventive measures and calls on the Union to guarantee the right to assistance and support for all victims of violence. The resolution of the European Parliament of 10 February 2010 on equality between women and men in the European Union – 2009 endorses the proposal to introduce the European protection order for victims.

| (5) | In its Resolution of 10 June 2011 on a Roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings, the Council stated that action should be taken at the level of the Union in order to strengthen the rights and protection of victims of crime and called on the Commission to present appropriate proposals to that end. In this framework, a mechanism should be created to ensure mutual recognition among Member States of decisions concerning protection measures for victims of crime. According to that Resolution, this Directive, which concerns the mutual recognition of protection measures taken in criminal matters, should be complemented by an appropriate mechanism concerning measures taken in civil matters. |
| --- | --- |

(5)

In its Resolution of 10 June 2011 on a Roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings, the Council stated that action should be taken at the level of the Union in order to strengthen the rights and protection of victims of crime and called on the Commission to present appropriate proposals to that end. In this framework, a mechanism should be created to ensure mutual recognition among Member States of decisions concerning protection measures for victims of crime. According to that Resolution, this Directive, which concerns the mutual recognition of protection measures taken in criminal matters, should be complemented by an appropriate mechanism concerning measures taken in civil matters.

| (6) | In a common area of justice without internal borders, it is necessary to ensure that the protection provided to a natural person in one Member State is maintained and continued in any other Member State to which the person moves or has moved. It should also be ensured that the legitimate exercise by citizens of the Union of their right to move and reside freely within the territory of Member States, in accordance with Article 3(2) of the Treaty on European Union (TEU) and Article 21 TFEU, does not result in a loss of their protection. |
| --- | --- |

(6)

In a common area of justice without internal borders, it is necessary to ensure that the protection provided to a natural person in one Member State is maintained and continued in any other Member State to which the person moves or has moved. It should also be ensured that the legitimate exercise by citizens of the Union of their right to move and reside freely within the territory of Member States, in accordance with Article 3(2) of the Treaty on European Union (TEU) and Article 21 TFEU, does not result in a loss of their protection.

| (7) | In order to attain these objectives, this Directive should set out rules whereby the protection stemming from certain protection measures adopted according to the law of one Member State (‘the issuing State’) can be extended to another Member State in which the protected person decides to reside or stay (‘the executing State’). |
| --- | --- |

(7)

In order to attain these objectives, this Directive should set out rules whereby the protection stemming from certain protection measures adopted according to the law of one Member State (‘the issuing State’) can be extended to another Member State in which the protected person decides to reside or stay (‘the executing State’).

| (8) | This Directive takes account of the different legal traditions of the Member States as well as the fact that effective protection can be provided by means of protection orders issued by an authority other than a criminal court. This Directive does not create obligations to modify national systems for adopting protection measures nor does it create obligations to introduce or amend a criminal law system for executing a European protection order. |
| --- | --- |

(8)

This Directive takes account of the different legal traditions of the Member States as well as the fact that effective protection can be provided by means of protection orders issued by an authority other than a criminal court. This Directive does not create obligations to modify national systems for adopting protection measures nor does it create obligations to introduce or amend a criminal law system for executing a European protection order.

| (9) | This Directive applies to protection measures which aim specifically to protect a person against a criminal act of another person which may, in any way, endanger that person’s life or physical, psychological and sexual integrity, for example by preventing any form of harassment, as well as that person’s dignity or personal liberty, for example by preventing abductions, stalking and other forms of indirect coercion, and which aim to prevent new criminal acts or to reduce the consequences of previous criminal acts. These personal rights of the protected person correspond to fundamental values recognised and upheld in all Member States. However, a Member State is not obliged to issue a European protection order on the basis of a criminal measure which does not serve specifically to protect a person, but primarily serves other aims, for example the social rehabilitation of the offender. It is important to underline that this Directive applies to protection measures which aim to protect all victims and not only the victims of gender violence, taking into account the specificities of each type of crime concerned. |
| --- | --- |

(9)

This Directive applies to protection measures which aim specifically to protect a person against a criminal act of another person which may, in any way, endanger that person’s life or physical, psychological and sexual integrity, for example by preventing any form of harassment, as well as that person’s dignity or personal liberty, for example by preventing abductions, stalking and other forms of indirect coercion, and which aim to prevent new criminal acts or to reduce the consequences of previous criminal acts. These personal rights of the protected person correspond to fundamental values recognised and upheld in all Member States. However, a Member State is not obliged to issue a European protection order on the basis of a criminal measure which does not serve specifically to protect a person, but primarily serves other aims, for example the social rehabilitation of the offender. It is important to underline that this Directive applies to protection measures which aim to protect all victims and not only the victims of gender violence, taking into account the specificities of each type of crime concerned.

| (10) | This Directive applies to protection measures adopted in criminal matters, and does not therefore cover protection measures adopted in civil matters. For a protection measure to be executable in accordance with this Directive, it is not necessary for a criminal offence to have been established by a final decision. Nor is the criminal, administrative or civil nature of the authority adopting a protection measure relevant. This Directive does not oblige Member States to amend their national law to enable them to adopt protection measures in the context of criminal proceedings. |
| --- | --- |

(10)

This Directive applies to protection measures adopted in criminal matters, and does not therefore cover protection measures adopted in civil matters. For a protection measure to be executable in accordance with this Directive, it is not necessary for a criminal offence to have been established by a final decision. Nor is the criminal, administrative or civil nature of the authority adopting a protection measure relevant. This Directive does not oblige Member States to amend their national law to enable them to adopt protection measures in the context of criminal proceedings.

| (11) | This Directive is intended to apply to protection measures adopted in favour of victims, or possible victims, of crimes. This Directive should not therefore apply to measures adopted with a view to witness protection. |
| --- | --- |

(11)

This Directive is intended to apply to protection measures adopted in favour of victims, or possible victims, of crimes. This Directive should not therefore apply to measures adopted with a view to witness protection.

| (12) | If a protection measure, as defined in this Directive, is adopted for the protection of a relative of the main protected person, a European protection order may also be requested by and issued in respect of that relative, subject to the conditions laid down in this Directive. |
| --- | --- |

(12)

If a protection measure, as defined in this Directive, is adopted for the protection of a relative of the main protected person, a European protection order may also be requested by and issued in respect of that relative, subject to the conditions laid down in this Directive.

| (13) | Any request for the issuing of a European protection order should be treated with appropriate speed, taking into account the specific circumstances of the case, including the urgency of the matter, the date foreseen for the arrival of the protected person on the territory of the executing State and, where possible, the degree of risk for the protected person. |
| --- | --- |

(13)

Any request for the issuing of a European protection order should be treated with appropriate speed, taking into account the specific circumstances of the case, including the urgency of the matter, the date foreseen for the arrival of the protected person on the territory of the executing State and, where possible, the degree of risk for the protected person.

| (14) | Where information is to be provided under this Directive to the protected person or to the person causing danger, this information should also, where relevant, be provided to the guardian or the representative of the person concerned. Due attention should also be paid to the need for the protected person, the person causing danger or the guardian or representative in the proceedings, to receive the information provided for by this Directive, in a language that that person understands. |
| --- | --- |

(14)

Where information is to be provided under this Directive to the protected person or to the person causing danger, this information should also, where relevant, be provided to the guardian or the representative of the person concerned. Due attention should also be paid to the need for the protected person, the person causing danger or the guardian or representative in the proceedings, to receive the information provided for by this Directive, in a language that that person understands.

| (15) | In the procedures for the issuing and recognition of a European protection order, competent authorities should give appropriate consideration to the needs of victims, including particularly vulnerable persons, such as minors or persons with disabilities. |
| --- | --- |

(15)

In the procedures for the issuing and recognition of a European protection order, competent authorities should give appropriate consideration to the needs of victims, including particularly vulnerable persons, such as minors or persons with disabilities.

| (16) | For the application of this Directive, a protection measure may have been imposed following a judgment within the meaning of Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (3), or following a decision on supervision measures within the meaning of Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (4). If a decision was adopted in the issuing State on the basis of one of those Framework Decisions, the recognition procedure should be followed accordingly in the executing State. This, however, should not exclude the possibility to transfer a European protection order to a Member State other than the State executing decisions based on those Framework Decisions. |
| --- | --- |

(16)

For the application of this Directive, a protection measure may have been imposed following a judgment within the meaning of Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (3), or following a decision on supervision measures within the meaning of Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (4). If a decision was adopted in the issuing State on the basis of one of those Framework Decisions, the recognition procedure should be followed accordingly in the executing State. This, however, should not exclude the possibility to transfer a European protection order to a Member State other than the State executing decisions based on those Framework Decisions.

| (17) | In accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, the person causing danger should be provided, either during the procedure leading to the adoption of a protection measure or before issuing a European protection order, with the possibility of being heard and challenging the protection measure. |
| --- | --- |

(17)

In accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, the person causing danger should be provided, either during the procedure leading to the adoption of a protection measure or before issuing a European protection order, with the possibility of being heard and challenging the protection measure.

| (18) | In order to prevent a crime being committed against the victim in the executing State, that State should have the legal means for recognising the decision previously adopted in the issuing State in favour of the victim, while also avoiding the need for the victim to start new proceedings or to produce evidence in the executing State again, as if the issuing State had not adopted the decision. The recognition of the European protection order by the executing State implies inter alia that the competent authority of that State, subject to the limitations set out in this Directive, accepts the existence and validity of the protection measure adopted in the issuing State, acknowledges the factual situation described in the European protection order, and agrees that protection should be provided and should continue to be provided in accordance with its national law. |
| --- | --- |

(18)

In order to prevent a crime being committed against the victim in the executing State, that State should have the legal means for recognising the decision previously adopted in the issuing State in favour of the victim, while also avoiding the need for the victim to start new proceedings or to produce evidence in the executing State again, as if the issuing State had not adopted the decision. The recognition of the European protection order by the executing State implies inter alia that the competent authority of that State, subject to the limitations set out in this Directive, accepts the existence and validity of the protection measure adopted in the issuing State, acknowledges the factual situation described in the European protection order, and agrees that protection should be provided and should continue to be provided in accordance with its national law.

| (19) | This Directive contains an exhaustive list of prohibitions and restrictions which, when imposed in the issuing State and included in the European protection order, should be recognised and enforced in the executing State, subject to the limitations set out in this Directive. Other types of protection measures may exist at national level, such as, if provided by national law, the obligation on the person causing danger to remain in a specified place. Such measures may be imposed in the issuing State in the framework of the procedure leading to the adoption of one of the protection measures which, according to this Directive, may be the basis for a European protection order. |
| --- | --- |

(19)

This Directive contains an exhaustive list of prohibitions and restrictions which, when imposed in the issuing State and included in the European protection order, should be recognised and enforced in the executing State, subject to the limitations set out in this Directive. Other types of protection measures may exist at national level, such as, if provided by national law, the obligation on the person causing danger to remain in a specified place. Such measures may be imposed in the issuing State in the framework of the procedure leading to the adoption of one of the protection measures which, according to this Directive, may be the basis for a European protection order.

| (20) | Since, in the Member States, different kinds of authorities (civil, criminal or administrative) are competent to adopt and enforce protection measures, it is appropriate to provide a high degree of flexibility in the cooperation mechanism between the Member States under this Directive. Therefore, the competent authority in the executing State is not required in all cases to take the same protection measure as those which were adopted in the issuing State, and has a degree of discretion to adopt any measure which it deems adequate and appropriate under its national law in a similar case in order to provide continued protection to the protected person in the light of the protection measure adopted in the issuing State as described in the European protection order. |
| --- | --- |

(20)

Since, in the Member States, different kinds of authorities (civil, criminal or administrative) are competent to adopt and enforce protection measures, it is appropriate to provide a high degree of flexibility in the cooperation mechanism between the Member States under this Directive. Therefore, the competent authority in the executing State is not required in all cases to take the same protection measure as those which were adopted in the issuing State, and has a degree of discretion to adopt any measure which it deems adequate and appropriate under its national law in a similar case in order to provide continued protection to the protected person in the light of the protection measure adopted in the issuing State as described in the European protection order.

| (21) | The prohibitions or restrictions to which this Directive applies include, among others, measures aimed at limiting personal or remote contacts between the protected person and the person causing danger, for example by imposing certain conditions on such contacts or imposing restrictions on the contents of communications. |
| --- | --- |

(21)

The prohibitions or restrictions to which this Directive applies include, among others, measures aimed at limiting personal or remote contacts between the protected person and the person causing danger, for example by imposing certain conditions on such contacts or imposing restrictions on the contents of communications.

| (22) | The competent authority of the executing State should inform the person causing danger, the competent authority of the issuing State and the protected person of any measure adopted on the basis of the European protection order. In the notification to the person causing danger, due regard should be taken of the interest of the protected person in not having that person’s address or other contact details disclosed. Such details should be excluded from the notification, provided that the address or other contact details are not included in the prohibition or restriction imposed as an enforcement measure on the person causing danger. |
| --- | --- |

(22)

The competent authority of the executing State should inform the person causing danger, the competent authority of the issuing State and the protected person of any measure adopted on the basis of the European protection order. In the notification to the person causing danger, due regard should be taken of the interest of the protected person in not having that person’s address or other contact details disclosed. Such details should be excluded from the notification, provided that the address or other contact details are not included in the prohibition or restriction imposed as an enforcement measure on the person causing danger.

| (23) | When the competent authority in the issuing State withdraws the European protection order, the competent authority in the executing State should discontinue the measures which it has adopted in order to enforce the European protection order, it being understood that the competent authority in the executing State may — autonomously, and in accordance with its national law — adopt any protection measure under its national law in order to protect the person concerned. |
| --- | --- |

(23)

When the competent authority in the issuing State withdraws the European protection order, the competent authority in the executing State should discontinue the measures which it has adopted in order to enforce the European protection order, it being understood that the competent authority in the executing State may — autonomously, and in accordance with its national law — adopt any protection measure under its national law in order to protect the person concerned.

| (24) | Given that this Directive deals with situations in which the protected person moves to another Member State, issuing or executing a European protection order should not imply any transfer to the executing State of powers relating to principal, suspended, alternative, conditional or secondary penalties, or relating to security measures imposed on the person causing danger, if the latter continues to reside in the State that adopted the protection measure. |
| --- | --- |

(24)

Given that this Directive deals with situations in which the protected person moves to another Member State, issuing or executing a European protection order should not imply any transfer to the executing State of powers relating to principal, suspended, alternative, conditional or secondary penalties, or relating to security measures imposed on the person causing danger, if the latter continues to reside in the State that adopted the protection measure.

| (25) | Where appropriate, it should be possible to use electronic means with a view to putting into practice the measures adopted in application of this Directive, in accordance with national laws and procedures. |
| --- | --- |

(25)

Where appropriate, it should be possible to use electronic means with a view to putting into practice the measures adopted in application of this Directive, in accordance with national laws and procedures.

| (26) | In the context of cooperation among the authorities involved in ensuring the protection of the protected person, the competent authority of the executing State should communicate to the competent authority of the issuing State any breach of the measures adopted in the executing State with a view to executing the European protection order. This communication should enable the competent authority of the issuing State to promptly decide on any appropriate response with respect to the protection measure imposed in its State on the person causing danger. Such a response may comprise, where appropriate, the imposition of a custodial measure in substitution of the non-custodial measure that was originally adopted, for example, as an alternative to preventive detention or as a consequence of the conditional suspension of a penalty. It is understood that such a decision, since it does not impose ex novo a penalty in relation to a new criminal offence, does not interfere with the possibility that the executing State may, where applicable, impose penalties in the event of a breach of the measures adopted in order to execute the European protection order. |
| --- | --- |

(26)

In the context of cooperation among the authorities involved in ensuring the protection of the protected person, the competent authority of the executing State should communicate to the competent authority of the issuing State any breach of the measures adopted in the executing State with a view to executing the European protection order. This communication should enable the competent authority of the issuing State to promptly decide on any appropriate response with respect to the protection measure imposed in its State on the person causing danger. Such a response may comprise, where appropriate, the imposition of a custodial measure in substitution of the non-custodial measure that was originally adopted, for example, as an alternative to preventive detention or as a consequence of the conditional suspension of a penalty. It is understood that such a decision, since it does not impose ex novo a penalty in relation to a new criminal offence, does not interfere with the possibility that the executing State may, where applicable, impose penalties in the event of a breach of the measures adopted in order to execute the European protection order.

| (27) | In view of the different legal traditions of the Member States, where no protection measure would be available in the executing State in a case similar to the factual situation described in the European protection order, the competent authority of the executing State should report any breach of the protection measure described in the European protection order of which it is aware to the competent authority of the issuing State. |
| --- | --- |

(27)

In view of the different legal traditions of the Member States, where no protection measure would be available in the executing State in a case similar to the factual situation described in the European protection order, the competent authority of the executing State should report any breach of the protection measure described in the European protection order of which it is aware to the competent authority of the issuing State.

| (28) | In order to ensure the smooth application of this Directive in each particular case, the competent authorities of the issuing and the executing States should exercise their competencies in accordance with the provisions of this Directive, taking into account the principle of ne bis in idem. |
| --- | --- |

(28)

In order to ensure the smooth application of this Directive in each particular case, the competent authorities of the issuing and the executing States should exercise their competencies in accordance with the provisions of this Directive, taking into account the principle of ne bis in idem.

| (29) | The protected person should not be required to sustain costs related to the recognition of the European protection order which are disproportionate to a similar national case. When implementing this Directive, Member States should ensure that, after recognition of the European protection order, the protected person is not required to initiate further national proceedings to obtain from the competent authority of the executing State, as a direct consequence of the recognition of the European protection order, a decision adopting any measure that would be available under its national law in a similar case in order to ensure the protection of the protected person. |
| --- | --- |

(29)

The protected person should not be required to sustain costs related to the recognition of the European protection order which are disproportionate to a similar national case. When implementing this Directive, Member States should ensure that, after recognition of the European protection order, the protected person is not required to initiate further national proceedings to obtain from the competent authority of the executing State, as a direct consequence of the recognition of the European protection order, a decision adopting any measure that would be available under its national law in a similar case in order to ensure the protection of the protected person.

| (30) | Bearing in mind the principle of mutual recognition upon which this Directive is based, Member States should promote, to the widest extent possible, direct contact between the competent authorities when they apply this Directive. |
| --- | --- |

(30)

Bearing in mind the principle of mutual recognition upon which this Directive is based, Member States should promote, to the widest extent possible, direct contact between the competent authorities when they apply this Directive.

| (31) | Without prejudice to judicial independence and differences in the organisation of the judiciary across the Union, Member States should consider requesting those responsible for the training of judges, prosecutors, police and judicial staff involved in the procedures aimed at issuing or recognising a European protection order to provide appropriate training with respect to the objectives of this Directive. |
| --- | --- |

(31)

Without prejudice to judicial independence and differences in the organisation of the judiciary across the Union, Member States should consider requesting those responsible for the training of judges, prosecutors, police and judicial staff involved in the procedures aimed at issuing or recognising a European protection order to provide appropriate training with respect to the objectives of this Directive.

| (32) | In order to facilitate the evaluation of the application of this Directive, Member States should communicate to the Commission relevant data related to the application of national procedures on the European protection order, at least with regard to the number of European protection orders requested, issued and/or recognised. In this respect, other types of data, such as, for example, the types of crimes concerned, would also be useful. |
| --- | --- |

(32)

In order to facilitate the evaluation of the application of this Directive, Member States should communicate to the Commission relevant data related to the application of national procedures on the European protection order, at least with regard to the number of European protection orders requested, issued and/or recognised. In this respect, other types of data, such as, for example, the types of crimes concerned, would also be useful.

| (33) | This Directive should contribute to the protection of persons who are in danger, thereby complementing, but not affecting, the instruments already in place in this field, such as Framework Decision 2008/947/JHA and Framework Decision 2009/829/JHA. |
| --- | --- |

(33)

This Directive should contribute to the protection of persons who are in danger, thereby complementing, but not affecting, the instruments already in place in this field, such as Framework Decision 2008/947/JHA and Framework Decision 2009/829/JHA.

| (34) | When a decision relating to a protection measure falls within the scope of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (5), Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (6), or the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (7), the recognition and enforcement of that decision should be carried out in accordance with the provisions of the relevant legal instrument. |
| --- | --- |

(34)

When a decision relating to a protection measure falls within the scope of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (5), Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (6), or the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (7), the recognition and enforcement of that decision should be carried out in accordance with the provisions of the relevant legal instrument.

| (35) | Member States and the Commission should include information about the European protection order, where it is appropriate, in existing education and awareness-raising campaigns on the protection of victims of crime. |
| --- | --- |

(35)

Member States and the Commission should include information about the European protection order, where it is appropriate, in existing education and awareness-raising campaigns on the protection of victims of crime.

| (36) | Personal data processed when implementing this Directive should be protected in accordance with Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (8) and with the principles laid down in the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. |
| --- | --- |

(36)

Personal data processed when implementing this Directive should be protected in accordance with Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (8) and with the principles laid down in the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.

| (37) | This Directive should respect the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, in accordance with Article 6 TEU. |
| --- | --- |

(37)

This Directive should respect the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, in accordance with Article 6 TEU.

| (38) | When implementing this Directive, Member States are encouraged to take into account the rights and principles enshrined in the 1979 United Nations Convention on the elimination of all forms of discrimination against women. |
| --- | --- |

(38)

When implementing this Directive, Member States are encouraged to take into account the rights and principles enshrined in the 1979 United Nations Convention on the elimination of all forms of discrimination against women.

| (39) | Since the objective of this Directive, namely to protect persons who are in danger, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. |
| --- | --- |

(39)

Since the objective of this Directive, namely to protect persons who are in danger, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

| (40) | In accordance with Article 3 of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom has notified its wish to take part in the adoption and application of this Directive. |
| --- | --- |

(40)

In accordance with Article 3 of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom has notified its wish to take part in the adoption and application of this Directive.

| (41) | In accordance with Articles 1 and 2 of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Directive and is not bound by it or subject to its application. |
| --- | --- |

(41)

In accordance with Articles 1 and 2 of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

| (42) | In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application, |
| --- | --- |

(42)

In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objective

This Directive sets out rules allowing a judicial or equivalent authority in a Member State, in which a protection measure has been adopted with a view to protecting a person against a criminal act by another person which may endanger his life, physical or psychological integrity, dignity, personal liberty or sexual integrity, to issue a European protection order enabling a competent authority in another Member State to continue the protection of the person in the territory of that other Member State, following criminal conduct, or alleged criminal conduct, in accordance with the national law of the issuing State.

Article 2

Definitions

For the purposes of this Directive the following definitions shall apply:

| (1) | ‘European protection order’ means a decision, taken by a judicial or equivalent authority of a Member State in relation to a protection measure, on the basis of which a judicial or equivalent authority of another Member State takes any appropriate measure or measures under its own national law with a view to continuing the protection of the protected person. |
| --- | --- |

(1)

‘European protection order’ means a decision, taken by a judicial or equivalent authority of a Member State in relation to a protection measure, on the basis of which a judicial or equivalent authority of another Member State takes any appropriate measure or measures under its own national law with a view to continuing the protection of the protected person.

| (2) | ‘Protection measure’ means a decision in criminal matters adopted in the issuing State in accordance with its national law and procedures by which one or more of the prohibitions or restrictions referred to in Article 5 are imposed on a person causing danger in order to protect a protected person against a criminal act which may endanger his life, physical or psychological integrity, dignity, personal liberty or sexual integrity. |
| --- | --- |

(2)

‘Protection measure’ means a decision in criminal matters adopted in the issuing State in accordance with its national law and procedures by which one or more of the prohibitions or restrictions referred to in Article 5 are imposed on a person causing danger in order to protect a protected person against a criminal act which may endanger his life, physical or psychological integrity, dignity, personal liberty or sexual integrity.

| (3) | ‘Protected person’ means a natural person who is the object of the protection resulting from a protection measure adopted by the issuing State. |
| --- | --- |

(3)

‘Protected person’ means a natural person who is the object of the protection resulting from a protection measure adopted by the issuing State.

| (4) | ‘Person causing danger’ means the natural person on whom one or more of the prohibitions or restrictions referred to in Article 5 have been imposed. |
| --- | --- |

(4)

‘Person causing danger’ means the natural person on whom one or more of the prohibitions or restrictions referred to in Article 5 have been imposed.

| (5) | ‘Issuing State’ means the Member State in which a protection measure has been adopted that constitutes the basis for issuing a European protection order. |
| --- | --- |

(5)

‘Issuing State’ means the Member State in which a protection measure has been adopted that constitutes the basis for issuing a European protection order.

| (6) | ‘Executing State’ means the Member State to which a European protection order has been forwarded with a view to its recognition. |
| --- | --- |

(6)

‘Executing State’ means the Member State to which a European protection order has been forwarded with a view to its recognition.

| (7) | ‘State of supervision’ means the Member State to which a judgment within the meaning of Article 2 of Framework Decision 2008/947/JHA, or a decision on supervision measures within the meaning of Article 4 of Framework Decision 2009/829/JHA, has been transferred. |
| --- | --- |

(7)

‘State of supervision’ means the Member State to which a judgment within the meaning of Article 2 of Framework Decision 2008/947/JHA, or a decision on supervision measures within the meaning of Article 4 of Framework Decision 2009/829/JHA, has been transferred.

Article 3

Designation of competent authorities

1.   Each Member State shall inform the Commission which judicial or equivalent authority or authorities are competent under its national law to issue a European protection order and to recognise such an order, in accordance with this Directive, when that Member State is the issuing State or the executing State.

2.   The Commission shall make the information received available to all Member States. Member States shall inform the Commission of any change to the information referred to in paragraph 1.

Article 4

Recourse to a central authority

1.   Each Member State may designate a central authority or, where its legal system so provides, more than one central authority, to assist its competent authorities.

2.   A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority or authorities responsible for the administrative transmission and reception of any European protection order, as well as for all other official correspondence relating thereto. As a consequence, all communications, consultations, exchanges of information, enquiries and notifications between competent authorities may be dealt with, where appropriate, with the assistance of the designated central authority or authorities of the Member State concerned.

3.   Member States wishing to make use of the possibilities referred to in this Article shall communicate to the Commission information relating to the designated central authority or authorities. These indications shall be binding upon all the authorities of the issuing State.

Article 5

Need for an existing protection measure under national law

A European protection order may only be issued when a protection measure has been previously adopted in the issuing State, imposing on the person causing danger one or more of the following prohibitions or restrictions:

| (a) | a prohibition from entering certain localities, places or defined areas where the protected person resides or visits; |
| --- | --- |

(a)

a prohibition from entering certain localities, places or defined areas where the protected person resides or visits;

| (b) | a prohibition or regulation of contact, in any form, with the protected person, including by phone, electronic or ordinary mail, fax or any other means; or |
| --- | --- |

(b)

a prohibition or regulation of contact, in any form, with the protected person, including by phone, electronic or ordinary mail, fax or any other means; or

| (c) | a prohibition or regulation on approaching the protected person closer than a prescribed distance. |
| --- | --- |

(c)

a prohibition or regulation on approaching the protected person closer than a prescribed distance.

Article 6

Issuing of a European protection order

1.   A European protection order may be issued when the protected person decides to reside or already resides in another Member State, or when the protected person decides to stay or already stays in another Member State. When deciding upon the issuing of a European protection order, the competent authority in the issuing State shall take into account, inter alia, the length of the period or periods that the protected person intends to stay in the executing State and the seriousness of the need for protection.

2.   A judicial or equivalent authority of the issuing State may issue a European protection order only at the request of the protected person and after verifying that the protection measure meets the requirements set out in Article 5.

3.   The protected person may submit a request for the issuing of a European protection order either to the competent authority of the issuing State or to the competent authority of the executing State. If such a request is submitted in the executing State, its competent authority shall transfer this request as soon as possible to the competent authority of the issuing State.

4.   Before issuing a European protection order, the person causing danger shall be given the right to be heard and the right to challenge the protection measure, if that person has not been granted these rights in the procedure leading to the adoption of the protection measure.

5.   When a competent authority adopts a protection measure containing one or more of the prohibitions or restrictions referred to in Article 5, it shall inform the protected person in an appropriate way, in accordance with the procedures under its national law, about the possibility of requesting a European protection order in the case that that person decides to leave for another Member State, as well as of the basic conditions for such a request. The authority shall advise the protected person to submit an application before leaving the territory of the issuing State.

6.   If the protected person has a guardian or representative, that guardian or representative may introduce the request referred to in paragraphs 2 and 3, on behalf of the protected person.

7.   If the request to issue a European protection order is rejected, the competent authority of the issuing State shall inform the protected person of any applicable legal remedies that are available, under its national law, against such a decision.

Article 7

Form and content of the European protection order

The European protection order shall be issued in accordance with the form set out in Annex I to this Directive. It shall, in particular, contain the following information:

| (a) | the identity and nationality of the protected person, as well as the identity and nationality of the guardian or representative if the protected person is a minor or is legally incapacitated; |
| --- | --- |

(a)

the identity and nationality of the protected person, as well as the identity and nationality of the guardian or representative if the protected person is a minor or is legally incapacitated;

| (b) | the date from which the protected person intends to reside or stay in the executing State, and the period or periods of stay, if known; |
| --- | --- |

(b)

the date from which the protected person intends to reside or stay in the executing State, and the period or periods of stay, if known;

| (c) | the name, address, telephone and fax numbers and e-mail address of the competent authority of the issuing State; |
| --- | --- |

(c)

the name, address, telephone and fax numbers and e-mail address of the competent authority of the issuing State;

| (d) | identification (for example, through a number and date) of the legal act containing the protection measure on the basis of which the European protection order is issued; |
| --- | --- |

(d)

identification (for example, through a number and date) of the legal act containing the protection measure on the basis of which the European protection order is issued;

| (e) | a summary of the facts and circumstances which have led to the adoption of the protection measure in the issuing State; |
| --- | --- |

(e)

a summary of the facts and circumstances which have led to the adoption of the protection measure in the issuing State;

| (f) | the prohibitions or restrictions imposed, in the protection measure underlying the European protection order, on the person causing danger, their duration and the indication of the penalty, if any, in the event of the breach of any of the prohibitions or restrictions; |
| --- | --- |

(f)

the prohibitions or restrictions imposed, in the protection measure underlying the European protection order, on the person causing danger, their duration and the indication of the penalty, if any, in the event of the breach of any of the prohibitions or restrictions;

| (g) | the use of a technical device, if any, that has been provided to the protected person or to the person causing danger as a means of enforcing the protection measure; |
| --- | --- |

(g)

the use of a technical device, if any, that has been provided to the protected person or to the person causing danger as a means of enforcing the protection measure;

| (h) | the identity and nationality of the person causing danger, as well as that person’s contact details; |
| --- | --- |

(h)

the identity and nationality of the person causing danger, as well as that person’s contact details;

| (i) | where such information is known by the competent authority of the issuing State without requiring further inquiry, whether the protected person and/or the person causing danger has been granted free legal aid in the issuing State; |
| --- | --- |

(i)

where such information is known by the competent authority of the issuing State without requiring further inquiry, whether the protected person and/or the person causing danger has been granted free legal aid in the issuing State;

| (j) | a description, where appropriate, of other circumstances that could have an influence on the assessment of the danger that confronts the protected person; |
| --- | --- |

(j)

a description, where appropriate, of other circumstances that could have an influence on the assessment of the danger that confronts the protected person;

| (k) | an express indication, where applicable, that a judgment within the meaning of Article 2 of Framework Decision 2008/947/JHA, or a decision on supervision measures within the meaning of Article 4 of Framework Decision 2009/829/JHA, has already been transferred to the State of supervision, when this is different from the State of execution of the European protection order, and the identification of the competent authority of that State for the enforcement of such a judgment or decision. |
| --- | --- |

(k)

an express indication, where applicable, that a judgment within the meaning of Article 2 of Framework Decision 2008/947/JHA, or a decision on supervision measures within the meaning of Article 4 of Framework Decision 2009/829/JHA, has already been transferred to the State of supervision, when this is different from the State of execution of the European protection order, and the identification of the competent authority of that State for the enforcement of such a judgment or decision.

Article 8

Transmission procedure

1.   Where the competent authority of the issuing State transmits the European protection order to the competent authority of the executing State, it shall do so by any means which leaves a written record so as to allow the competent authority of the executing State to establish its authenticity. All official communication shall also be made directly between those competent authorities.

2.   If the competent authority of either the executing State or the issuing State is not known to the competent authority of the other State, the latter authority shall make all the relevant enquiries, including via the contact points of the European Judicial Network referred to in Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network (9), the National Member of Eurojust or the National System for the coordination of Eurojust of its State, in order to obtain the necessary information.

3.   When an authority of the executing State which receives a European protection order has no competence to recognise it, that authority shall, ex officio, forward the European protection order to the competent authority and shall, without delay, inform the competent authority of the issuing State accordingly by any means which leaves a written record.

Article 9

Measures in the executing State

1.   Upon receipt of a European protection order transmitted in accordance with Article 8, the competent authority of the executing State shall, without undue delay, recognise that order and take a decision adopting any measure that would be available under its national law in a similar case in order to ensure the protection of the protected person, unless it decides to invoke one of the grounds for non-recognition referred to in Article 10. The executing State may apply, in accordance with its national law, criminal, administrative or civil measures.

2.   The measure adopted by the competent authority of the executing State in accordance with paragraph 1, as well as any other measure taken on the basis of a subsequent decision as referred to in Article 11, shall, to the highest degree possible, correspond to the protection measure adopted in the issuing State.

3.   The competent authority of the executing State shall inform the person causing danger, the competent authority of the issuing State and the protected person of any measures adopted in accordance with paragraph 1, as well as of the possible legal consequence of a breach of such measure provided for under national law and in accordance with Article 11(2). The address or other contact details of the protected person shall not be disclosed to the person causing danger unless such details are necessary in view of the enforcement of the measure adopted in accordance with paragraph 1.

4.   If the competent authority in the executing State considers that the information transmitted with the European protection order in accordance with Article 7 is incomplete, it shall without delay inform the competent authority of the issuing State by any means which leaves a written record, assigning a reasonable period for it to provide the missing information.

Article 10

Grounds for non-recognition of a European protection order

1.   The competent authority of the executing State may refuse to recognise a European protection order in the following circumstances:

| (a) | the European protection order is not complete or has not been completed within the time limit set by the competent authority of the executing State; |
| --- | --- |

(a)

the European protection order is not complete or has not been completed within the time limit set by the competent authority of the executing State;

| (b) | the requirements set out in Article 5 have not been met; |
| --- | --- |

(b)

the requirements set out in Article 5 have not been met;

| (c) | the protection measure relates to an act that does not constitute a criminal offence under the law of the executing State; |
| --- | --- |

(c)

the protection measure relates to an act that does not constitute a criminal offence under the law of the executing State;

| (d) | the protection derives from the execution of a penalty or measure that, according to the law of the executing State, is covered by an amnesty and relates to an act or conduct which falls within its competence according to that law; |
| --- | --- |

(d)

the protection derives from the execution of a penalty or measure that, according to the law of the executing State, is covered by an amnesty and relates to an act or conduct which falls within its competence according to that law;

| (e) | there is immunity conferred under the law of the executing State on the person causing danger, which makes it impossible to adopt measures on the basis of a European protection order; |
| --- | --- |

(e)

there is immunity conferred under the law of the executing State on the person causing danger, which makes it impossible to adopt measures on the basis of a European protection order;

| (f) | criminal prosecution, against the person causing danger, for the act or the conduct in relation to which the protection measure has been adopted is statute-barred under the law of the executing State, when the act or the conduct falls within its competence under its national law; |
| --- | --- |

(f)

criminal prosecution, against the person causing danger, for the act or the conduct in relation to which the protection measure has been adopted is statute-barred under the law of the executing State, when the act or the conduct falls within its competence under its national law;

| (g) | recognition of the European protection order would contravene the ne bis in idem principle; |
| --- | --- |

(g)

recognition of the European protection order would contravene the ne bis in idem principle;

| (h) | under the law of the executing State, the person causing danger cannot, because of that person’s age, be held criminally responsible for the act or the conduct in relation to which the protection measure has been adopted; |
| --- | --- |

(h)

under the law of the executing State, the person causing danger cannot, because of that person’s age, be held criminally responsible for the act or the conduct in relation to which the protection measure has been adopted;

| (i) | the protection measure relates to a criminal offence which, under the law of the executing State, is regarded as having been committed, wholly or for a major or essential part, within its territory. |
| --- | --- |

(i)

the protection measure relates to a criminal offence which, under the law of the executing State, is regarded as having been committed, wholly or for a major or essential part, within its territory.

2.   Where the competent authority of the executing State refuses to recognise a European protection order in application of one of the grounds referred to in paragraph 1, it shall:

| (a) | without undue delay, inform the issuing State and the protected person of this refusal and of the grounds relating thereto; |
| --- | --- |

(a)

without undue delay, inform the issuing State and the protected person of this refusal and of the grounds relating thereto;

| (b) | where appropriate, inform the protected person about the possibility of requesting the adoption of a protection measure in accordance with its national law; |
| --- | --- |

(b)

where appropriate, inform the protected person about the possibility of requesting the adoption of a protection measure in accordance with its national law;

| (c) | inform the protected person of any applicable legal remedies that are available under its national law against such a decision. |
| --- | --- |

(c)

inform the protected person of any applicable legal remedies that are available under its national law against such a decision.

Article 11

Governing law and competence in the executing State

1.   The executing State shall be competent to adopt and to enforce measures in that State following the recognition of a European protection order. The law of the executing State shall apply to the adoption and enforcement of the decision provided for in Article 9(1), including rules on legal remedies against decisions adopted in the executing State relating to the European protection order.

2.   In the event of a breach of one or more of the measures taken by the executing State following the recognition of a European protection order, the competent authority of the executing State shall, in accordance with paragraph 1, be competent to:

| (a) | impose criminal penalties and take any other measure as a consequence of the breach, if that breach amounts to a criminal offence under the law of the executing State; |
| --- | --- |

(a)

impose criminal penalties and take any other measure as a consequence of the breach, if that breach amounts to a criminal offence under the law of the executing State;

| (b) | take any non-criminal decisions related to the breach; |
| --- | --- |

(b)

take any non-criminal decisions related to the breach;

| (c) | take any urgent and provisional measure in order to put an end to the breach, pending, where appropriate, a subsequent decision by the issuing State. |
| --- | --- |

(c)

take any urgent and provisional measure in order to put an end to the breach, pending, where appropriate, a subsequent decision by the issuing State.

3.   If there is no available measure at national level in a similar case that could be taken in the executing State, the competent authority of the executing State shall report to the competent authority of the issuing State any breach of the protection measure described in the European protection order of which it is aware.

Article 12

Notification in the event of breach

The competent authority of the executing State shall notify the competent authority of the issuing State or of the State of supervision of any breach of the measure or measures taken on the basis of the European protection order. Notice shall be given using the standard form set out in Annex II.

Article 13

Competence in the issuing State

1.   The competent authority of the issuing State shall have exclusive competence to take decisions relating to:

| (a) | the renewal, review, modification, revocation and withdrawal of the protection measure and, consequently, of the European protection order; |
| --- | --- |

(a)

the renewal, review, modification, revocation and withdrawal of the protection measure and, consequently, of the European protection order;

| (b) | the imposition of a custodial measure as a consequence of revocation of the protection measure, provided that the protection measure has been applied on the basis of a judgment within the meaning of Article 2 of Framework Decision 2008/947/JHA, or on the basis of a decision on supervision measures within the meaning of Article 4 of Framework Decision 2009/829/JHA; |
| --- | --- |

(b)

the imposition of a custodial measure as a consequence of revocation of the protection measure, provided that the protection measure has been applied on the basis of a judgment within the meaning of Article 2 of Framework Decision 2008/947/JHA, or on the basis of a decision on supervision measures within the meaning of Article 4 of Framework Decision 2009/829/JHA;

2.   The law of the issuing State shall apply to decisions adopted in accordance with paragraph 1.

3.   Where a judgment within the meaning of Article 2 of Framework Decision 2008/947/JHA, or a decision on supervision measures within the meaning of Article 4 of Framework Decision 2009/829/JHA, has already been transferred, or is transferred after the issuing of the European protection order, to another Member State, subsequent decisions, as provided for by those Framework Decisions, shall be taken in accordance with the relevant provisions of those Framework Decisions.

4.   When the protection measure is contained in a judgment within the meaning of Article 2 of Framework Decision 2008/947/JHA which has been transferred or is transferred after the issuing of the European protection order to another Member State, and the competent authority of the State of supervision has made subsequent decisions affecting the obligations or instructions contained in the protection measure in accordance with Article 14 of that Framework Decision, the competent authority of the issuing State shall renew, review, modify, revoke or withdraw without delay the European protection order accordingly.

5.   The competent authority of the issuing State shall inform the competent authority of the executing State without delay of any decision taken in accordance with paragraphs 1 or 4.

6.   If the competent authority in the issuing State has revoked or withdrawn the European protection order in accordance with point (a) of paragraph 1 or with paragraph 4, the competent authority in the executing State shall discontinue the measures adopted in accordance with Article 9(1) as soon as it has been duly notified by the competent authority of the issuing State.

7.   If the competent authority in the issuing State has modified the European protection order in accordance with point (a) of paragraph 1 or with paragraph 4, the competent authority in the executing State shall, as appropriate:

| (a) | modify the measures adopted on the basis of the European protection order, acting in accordance with Article 9; or |
| --- | --- |

(a)

modify the measures adopted on the basis of the European protection order, acting in accordance with Article 9; or

| (b) | refuse to enforce the modified prohibition or restriction when it does not fall within the types of prohibitions or restrictions referred to in Article 5, or if the information transmitted with the European protection order in accordance with Article 7 is incomplete or has not been completed within the time limit set by the competent authority of the executing State in accordance with Article 9(4). |
| --- | --- |

(b)

refuse to enforce the modified prohibition or restriction when it does not fall within the types of prohibitions or restrictions referred to in Article 5, or if the information transmitted with the European protection order in accordance with Article 7 is incomplete or has not been completed within the time limit set by the competent authority of the executing State in accordance with Article 9(4).

Article 14

Grounds for discontinuation of measures taken on the basis of a European protection order

1.   The competent authority of the executing State may discontinue the measures taken in execution of a European protection order:

| (a) | where there is clear indication that the protected person does not reside or stay in the territory of the executing State, or has definitively left that territory; |
| --- | --- |

(a)

where there is clear indication that the protected person does not reside or stay in the territory of the executing State, or has definitively left that territory;

| (b) | where, according to its national law, the maximum term of duration of the measures adopted in execution of the European protection order has expired; |
| --- | --- |

(b)

where, according to its national law, the maximum term of duration of the measures adopted in execution of the European protection order has expired;

| (c) | in the case referred to in Article 13(7)(b); or |
| --- | --- |

(c)

in the case referred to in Article 13(7)(b); or

| (d) | where a judgment within the meaning of Article 2 of Framework Decision 2008/947/JHA, or a decision on supervision measures within the meaning of Article 4 of Framework Decision 2009/829/JHA, is transferred to the executing State after the recognition of the European protection order. |
| --- | --- |

(d)

where a judgment within the meaning of Article 2 of Framework Decision 2008/947/JHA, or a decision on supervision measures within the meaning of Article 4 of Framework Decision 2009/829/JHA, is transferred to the executing State after the recognition of the European protection order.

2.   The competent authority of the executing State shall immediately inform the competent authority of the issuing State and, where possible, the protected person of such decision.

3.   Before discontinuing measures in accordance with point (b) of paragraph 1 the competent authority of the executing State may invite the competent authority of the issuing State to provide information as to whether the protection provided for by the European protection order is still needed in the circumstances of the case in question. The competent authority of the issuing State shall, without delay, reply to such an invitation.

Article 15

Priority in recognition of a European protection order

A European protection order shall be recognised with the same priority which would be applicable in a similar national case, taking into consideration any specific circumstances of the case, including the urgency of the matter, the date foreseen for the arrival of the protected person on the territory of the executing State and, where possible, the degree of risk for the protected person.

Article 16

Consultations between competent authorities

Where appropriate, the competent authorities of the issuing State and of the executing State may consult each other in order to facilitate the smooth and efficient application of this Directive.

Article 17

Languages

1.   A European protection order shall be translated by the competent authority of the issuing State into the official language or one of the official languages of the executing State.

2.   The form referred to in Article 12 shall be translated by the competent authority of the executing State into the official language or one of the official languages of the issuing State.

3.   Any Member State may, either when this Directive is adopted or at a later date, state in a declaration that it shall deposit with the Commission that it will accept a translation in one or more other official languages of the Union.

Article 18

Costs

Costs resulting from the application of this Directive shall be borne by the executing State, in accordance with its national law, except for costs arising exclusively within the territory of the issuing State.

Article 19

Relationship with other agreements and arrangements

1.   Member States may continue to apply bilateral or multilateral agreements or arrangements which are in force upon the entry into force of this Directive, insofar as they allow the objectives of this Directive to be extended or enlarged and help to simplify or facilitate further the procedures for taking protection measures.

2.   Member States may conclude bilateral or multilateral agreements or arrangements after the entry into force of this Directive, insofar as they allow the objectives of this Directive to be extended or enlarged and help to simplify or facilitate the procedures for taking protection measures.

3.   By ... (10), Member States shall notify the Commission of the existing agreements and arrangements referred to in paragraph 1 which they wish to continue applying. Member States shall also notify the Commission of any new agreements or arrangements referred to in paragraph 2 within three months of the signing thereof.

Article 20

Relationship with other instruments

1.   This Directive shall not affect the application of Regulation (EC) No 44/2001, Regulation (EC) No 2201/2003, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, or the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

2.   This Directive shall not affect the application of Framework Decision 2008/947/JHA or Framework Decision 2009/829/JHA.

Article 21

Implementation

1.   Member States shall bring into force the laws, regulations and administrative provisions to comply with this Directive by ... (11). They shall forthwith inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the 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 22

Data collection

Member States shall, in order to facilitate the evaluation of the application of this Directive, communicate to the Commission relevant data related to the application of national procedures on the European protection order, at least on the number of European protection orders requested, issued and/or recognised.

Article 23

Review

By ... (12), the Commission shall submit a report to the European Parliament and to the Council on the application of this Directive. That report shall be accompanied, if necessary, by legislative proposals.

Article 24

Entry into force

This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

Article 25

Addressees

This Directive is addressed to the Member States in accordance with the Treaties.

Done at ...

For the European Parliament

The President

...

For the Council

The President

...

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(1)  Position of the European Parliament of 14 December 2010 (not yet published in the Official Journal) and position of the Council at first reading of 24 November 2011. Position of the European Parliament of ... (not yet published in the Official Journal) and Decision of the Council of ....

1

(2)  OJ C 115, 4.5.2010, p. 1.

2

(3)  OJ L 337, 16.12.2008, p. 102.

3

(4)  OJ L 294, 11.11.2009, p. 20.

4

(5)  OJ L 12, 16.1.2001, p. 1.

5

(6)  OJ L 338, 23.12.2003, p. 1

6

(7)  OJ L 48, 21.2.2003, p. 3.

7

(8)  OJ L 350, 30.12.2008, p. 60.

8

(9)  OJ L 348, 24.12.2008, p. 130.

9

(10)  Three months after the entry into force of this Directive

10

(11)  Three years after the entry into force of this Directive.

11

(12)  Four years after the entry into force of this Directive.

12

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ANNEX I

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ANNEX II

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STATEMENT OF THE COUNCIL’S REASONS

I.   INTRODUCTION

On 7 January 2010, Coreper took note of the presentation by Belgium, Bulgaria, Estonia, Spain, France, Italy, Hungary, Poland, Portugal, Romania, Finland and Sweden of an initiative for a Directive of the European Parliament and of the Council on the European protection order (17513/09 COPEN 247 + COR 1 + ADD 1 REV 1 + ADD 2 REV 1).

On 4 June 2010, the Council (Justice and Home Affairs) concluded that there was sufficient support on the text as the basis for the negotiations with the European Parliament (10384/10 COPEN 127 CODEC 498).

The Presidency entered into discussions with representatives of the European Parliament and of the Commission with a view to reaching an agreement on the text in first reading. However, no agreement was found and the European Parliament voted its first reading position on 14 December 2010.

After discussions in the preparatory bodies of the Council, a new trilogue with the European Parliament was held on 20 September 2011 and a provisional agreement was reached on the text of the instrument.

II.   ANALYSIS OF THE COUNCIL’S POSITION AT FIRST READING

In order to reach a sufficient support within the Council, in the course of the negotiations with the European Parliament the following modifications to the text have been agreed:

| (a) | The scope of application of the instrument has been partially redefined, by providing a tighter link between the possibility to issue a European protection order and a criminal conduct (Article 1). This modification aims at clarifying the connection of the instrument with the legal basis provided for by Article 82 (1) TFEU. |
| --- | --- |

(a)

The scope of application of the instrument has been partially redefined, by providing a tighter link between the possibility to issue a European protection order and a criminal conduct (Article 1). This modification aims at clarifying the connection of the instrument with the legal basis provided for by Article 82 (1) TFEU.

| (b) | With the same aim, it has been further specified that the protection measure at the basis of the European protection order must derive from a decision taken in criminal matters (Article 2 (2)). |
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(b)

With the same aim, it has been further specified that the protection measure at the basis of the European protection order must derive from a decision taken in criminal matters (Article 2 (2)).

| (c) | In order to maintain the widest possible adaptability of the instrument in relation to the different national legal systems for the protection of victims of crime, it has been further specified that, as long as the conditions above are met, the nature of the authority which issues the protection measure underlying the European protection order is irrelevant (Recital 9), and that the Member State executing the European protection order may do so in accordance with the specificities of its own national system by administrative, civil or criminal proceedings (Article 9). |
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(c)

In order to maintain the widest possible adaptability of the instrument in relation to the different national legal systems for the protection of victims of crime, it has been further specified that, as long as the conditions above are met, the nature of the authority which issues the protection measure underlying the European protection order is irrelevant (Recital 9), and that the Member State executing the European protection order may do so in accordance with the specificities of its own national system by administrative, civil or criminal proceedings (Article 9).

| (d) | The Recitals to the Directive have been accordingly adapted. |
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(d)

The Recitals to the Directive have been accordingly adapted.

| (e) | A new paragraph has been added to Article 13 (see paragraph 4) clarifying the relationship between the issuing of a European protection order and proceedings according to Council Framework Decision 2008/947/JHA on mutual recognition of decisions on probation measures and alternative sanctions. |
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(e)

A new paragraph has been added to Article 13 (see paragraph 4) clarifying the relationship between the issuing of a European protection order and proceedings according to Council Framework Decision 2008/947/JHA on mutual recognition of decisions on probation measures and alternative sanctions.

III.   CONCLUSION

The Council’s Position at first reading reflects the compromise reached in negotiations between the Council and the European Parliament, facilitated by the Commission. On 23 September 2011 the Council (Justice and Home Affairs) took note of the draft agreement and confirmed its readiness to agree on the new text. The LIBE and FEMM Committees of the European Parliament on 4 October 2011 decided to mandate their Chairs to write a letter to the President of Coreper stating that, should the Council transmit formally to the Parliament its position in the form as it stands in the annex of the letter, they would, in their capacity as Chair of the Committee, recommend to the Plenary that the Council’s position be accepted without amendment, subject to legal-linguistic verification, at Parliament’s second reading.

On 6 October Coreper confirmed the agreement with a view to submission of the text for adoption of the political agreement at Council.

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