Proposal for a European Parliament and Council Directive amending Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (98/C 344/08) (Text with EEA relevance) COM(1998) 394 final - 98/0230(COD)

(Submitted by the Commission on 14 October 1998)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 49 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee,

Acting in accordance with the procedure laid down in Article 189b of the Treaty,

(1) Whereas Council Directive 68/360/EEC (1), as last amended by the Act of Accession of Austria, Finland and Sweden, lays down conditions for the abolition of certain restrictions on movement and residence for persons covered by Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (2), as last amended by European Parliament and Council Regulation (EC) No . . ./. . .;

(2) Whereas Regulation (EEC) No 1612/68 has been amended to cover a wider range of persons; whereas this makes it necessary to adjust, in line with these amendments, the provisions of Directive 68/360/EEC as regards workers and family members who are citizens of the European Union, and also family members who are not citizens of the European Union;

(3) Whereas, as the Court of Justice of the European Communities has pointed out on several occasions, the administrative position of job-seekers has not always been clear, even though they are effectively covered by Article 48 of the Treaty and by Regulation (EEC) No 1612/68; whereas their right of residence for the purpose of looking for work, for the length of time this takes, without the need to hold a residence permit, should be clearly laid down;

(4) Whereas it is desirable to allow the aggregation of periods of residence so as to enable a worker who has been in employment for over 12 months during a continuous residence period of over 18 months to obtain a five-year permit; whereas this amendment is important in order to cater for temporary relocations and to respond to the reality of the Community's labour market where it is not always possible for workers to obtain permanent employment immediately on taking up their first contract;

(5) Whereas a worker who has resided for a period of five years in the territory of a Member State should be entitled to automatic renewal of his residence permit for periods of 10 years; whereas the procedure involved in issuing residence permits should be simplified and, if possible, brought into line with the procedure used to issue national identity papers;

(6) Whereas the expulsion of Community workers or members of their family on grounds of public policy or public security is a radical step which may seriously harm persons who, availing themselves of the rights and freedoms laid down in the Treaty, have truly integrated themselves into the host Member State; whereas the scope of these measures should be restricted, regard being had to the degree of integration and the financial and family ties of the person affected;

(7) Whereas the grant of an autonomous right of residence to members of the family who have lived in the country for a period of three consecutive years has been incorporated into Regulation (EEC) No 1612/68; whereas this should therefore be included in Directive 68/360/EEC so that the procedures for conferring this right can be established;

(8) Whereas Directive 68/360/EEC should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 68/360/EEC is amended as follows:

1. The first sentence of Article 2(1) is replaced by the following:

'Member States shall grant the nationals referred to in Article 1 the right to leave their territory in order to seek employment, to join vocational training courses or to take up activities as employed persons and to pursue such activities in the territory of another Member State`.

2. The following subparagraph is added to Article 3(2):

'However, Member States shall allow family members who are nationals of a non-member country and who normally reside in a Member State to obtain the necessary visas or equivalent documents in the Member State in which they were residing or in the Member State in which these persons are to take up residence with the worker under the terms of Article 10 of Regulation (EEC) No 1612/68`.

3. Article 4 is amended as follows:

(a) In paragraph 2, the term 'Residence permit for a national of a Member State of the EEC` is replaced by 'Residence permit for a citizen of the European Union`.

(b) Paragraph 3 is amended as follows:

(i) in the opening phrase the term 'Residence permit for a national of a Member State of the EEC` is replaced by 'Residence permit for a citizen of the European Union`;

(ii) point (b) is replaced by the following:

'(b) a confirmation of engagement by the employer or an employment or vocational training course certificate`;

(iii) point (e) is replaced by the following:

'(e) in the cases referred to in point (c) of Article 10(1) and in Article 10(2) of Regulation (EEC) No 1612/68, a document issued by the competent authority of the State of origin or the State whence they came, testifying that they are dependent on the worker or that they live under his roof in such country`.

4. Article 4(a) is inserted:

'Article 4a

1. In the event of dissolution of the marriage, Member States shall recognise the right of residence on their territory of members of the family of a Community worker who are not nationals of a Member State but who have lived for a period of three consecutive years in a Member State under Article 10 of Regulation (EEC) No 1612/68 in accordance with paragraphs 2 and 3 of this Article.

2. Where the family members are not economically active, the right of residence is recognised provided that they can provide evidence that they have sufficient financial resources for themselves and their dependants and that they have health insurance covering all risks in the Member State in which they are living.

The provisions of Council Directive 90/364/EEC(*) relating to the assessment of sufficient resources, the duration of residence permits and their renewal shall apply mutatis mutandis to the application of the first subparagraph.

3. The right of residence of family members pursuing economic activities under Article 11 of Regulation (EEC) No 1612/68 shall be recognised on presentation of a contract of employment, a certificate of employment or a declaration of self-employment. Articles 6 and 9 of this Directive shall apply mutatis mutandis to the duration of the residence permit and conditions for renewal.

4. Absences not exceeding six consecutive months and absences in connection with the completion of military service or for reasons of health, for maternity or study shall not constitute an interruption of the period of residence for the purpose of calculating the three-year period referred to in paragraph 1.

(*) OJ L 180, 13.7.1990, p. 26`.

5. Article 6 is amended as follows:

(a) Point (b) of paragraph 1 is replaced by the following:

'(b) must be valid for at least five years from the date of issue and must be automatically renewable for a period of 10 years`.

(b) Paragraph 2 is replaced by the following:

'2. Breaks in residence not exceeding six consecutive months and absence on military service or due to reasons of health, maternity, study or posting for employment shall not affect the validity of a residence permit`.

(c) The following subparagraph is inserted after the first subparagraph of paragraph 3:

'Nevertheless, where a worker has had several successive temporary jobs over a total period of more than 12 months during a residence period of 18 months, the host Member State shall issue him with the residence permit mentioned in the first subparagraph on presentation of a declaration of employment or a certificate of employment, even if the job is of a duration of under one year`.

(d) The following paragraph 4 is added:

'4. Subject to the provisions of point (d) of Article 8(1), a worker who is unemployed after a period working in a Member State and has a residence permit under the first subparagraph of paragraph 3 has the right to automatic renewal of that residence permit for periods of at least six months as long as he is seeking work.

Without prejudice to the first subparagraph, if the person in question has acquired the right to unemployment benefit, the residence permit shall be renewed automatically until his entitlement to unemployment benefit ceases`.

6. Article 7 is replaced by the following:

'Article 7

A valid residence permit may not be withdrawn from a worker solely on the grounds that he is no longer in employment, either because he is temporarily incapable of work as a result of illness, accident, or maternity, or because he is involuntarily unemployed, this being duly confirmed by the competent employment services.

If it expires during the time he is incapable of work, it shall be renewed automatically in accordance with Article 6`.

7. The following point (d) is added to Article 8(1):

'(d) a national of a Member State who is seeking employment in its territory. If the person is seeking employment for longer than six months, the Member State may ask the job-seeker to prove that he is actively looking for work and that he has a reasonable chance of being offered employment`.

8. Article 9 is amended as follows:

(a) Paragraph 1 is replaced by the following:

'1. The residence documents granted to persons covered by this Directive shall be issued and renewed free of charge or on payment of an amount not exceeding the dues and taxes charged for the issue of identity cards to nationals`.

(b) Paragraph 3 is replaced by the following:

'3. Member States shall take the necessary measures to bring the procedures in this Directive for issuing residence documents into line with existing procedures for the issuing of national identity cards or other equivalent national papers`.

9. Article 10 is replaced by the following:

'Article 10

Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health.

Nevertheless, in applying the derogations referred to in the first paragraph, Member States shall take into account the degree to which the person affected by such measures has been integrated into their territory, with a view to possibly restricting the extent of such derogation.

To determine the extent which a person has been integrated into the Member State of residence, Member States shall take into account circumstances such as the fact that the person in question was born in that State, has undertaken most of his studies or training in that State or has major cultural, social, professional or family links with that State`.

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2000 at the latest. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of domestic law which they adopt in the field governed by this Directive.

Article 3

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

Article 4

This Directive is addressed to the Member States.

(1) OJ L 257, 19.10.1968, p. 13.

(2) OJ L 257, 19.10.1968, S. 2.