Opinion of the Advocate General — ECLI:EU:C:1999:557
Date: 1999-11-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Italy

Summary of the Judgment 
1. Freedom of movement for persons — Right of entry and residence for nationals of 
Member States — Directives 90/364 and 90/365 — Conditions as to resources — 
Amount required — Obligation to fix the same amounts for the beneficiaries of both 
directives — None — Discretion of the Member States — National legislation 
requiring higher income for members of the family of beneficiaries of Directive 
90/364 — Whether permissible 
(Council Directives 90/364 and 90/365) 
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SUMMARY — CASE C-424/98 
2. Freedom of movement for persons — Right of entry and residence for nationals of 
Member States — Directives 90/364 and 90/365 — Conditions for the issuing of a 
residence permit — Proof of compliance with those conditions — Discretion of the 
national authorities as to the proof required for that purpose — Limits — National 
legislation limiting the means of proof and refusing documents not issued by a public 
authority — Not permissible 
(Council Directives 90/364 and 90/365) 
3. Freedom of movement for persons — Right of entry and residence for nationals of 
Member States — Directive 93/96 — Conditions for the issuing of a residence 
permit — National legislation requiring students who are nationals of Member States 
to have resources of a specific amount, to be evidenced by specific documents — Not 
permissible 
(Council Directive 93/96) 
1. Even if the wording of Directive 
90/364 on the right of residence and 
Directive 90/365 on the right of resi­
dence for employees and self-employed 
persons who have ceased their occupa­
tional activity is identical as regards the 
amount of the resources required of 
beneficiaries of those two directives, it 
does not follow that the Member States 
are required to fix the same amounts in 
both cases. Member States have some 
latitude in the matter, so that the fact 
that a Member State has a more 
favourable regime for family members 
of persons who have carried on an 
occupational activity than for those of 
beneficiaries of Directive 90/364 does 
not of itself constitute proof that the 
higher amount required of the latter 
exceeds the latitude allowed to Mem­
ber States. 
(see paras 25-26) 
2. Although Directive 90/364 on the right 
of residence and Directive 90/365 on 
the right of residence for employees 
and self-employed persons who have 
ceased their occupational activity lay 
down the substantive conditions, in 
particular as regards sickness insurance 
and resources, for issuing a residence 
permit, they do not deal expressly with 
the manner in which the beneficiaries 
of those directives must demonstrate 
that they fulfil those conditions. How­
ever, when exercising their powers in 
this area, Member States must ensure 
both the basic freedoms guaranteed by 
the Treaty and the effectiveness of 
directives containing measures to abol­
ish obstacles to the free movement of 
persons between those States. More­
over, Member States must make use of 
the various possibilities offered by 
other rules of Community law, parti­
cularly in relation to the production of 
evidence, by means of certificates 
issued by national social security 
bodies at the request of the persons 
concerned, of the fact that those per­
sons are covered by a specific social 
security scheme and of the amount of 
the pensions and allowances paid by 
those bodies. It follows that by limiting 
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COMMISSION V ITALY 
the means of proof which may be relied 
upon, and in particular by providing 
that certain documents must be issued 
or certified by the authority of a 
Member State, a Member State fails 
to fulfil its obligations under Directives 
90/364 and 90/365. 
(see paras 34-37, 48, operative part 1) 
3. It is evident from the wording of 
Article 1 of Directive 93/96 on the 
right of residence for students that the 
conditions for obtaining a right of 
residence do not include any require­
ment to have resources of a specific 
amount, evidenced by specific docu­
ments. The article refers merely to a 
declaration, or such alternative means 
as are at least equivalent, which 
enables the student to assure the 
national authority concerned that he 
has, for himself and, in appropriate 
cases, for his spouse and dependent 
children, resources to avoid becoming a 
burden on the social assistance system 
of the host Member State during their 
stay. 
It follows that a Member Slate fails to 
fulfil its obligations under the directive 
if it requires students who are nationals 
of other Member States and who are 
seeking recognition of their and their 
families' right of residence in that 
Member State pursuant to that direc­
tive to guarantee to the national autho­
rities that they have resources of a 
specific amount; if, as regards the 
means to be used for that purpose, it-
does not clearly leave such students the 
choice between a declaration and such 
alternative means as are at least equiva­
lent; and, finally, if it does not allow 
the use of a declaration where a student 
is accompanied by members of his 
family. 
(see paras 44, 46, 48, operative part 1) 
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