Ik? 1 » 
6*" COMMISSION OF THE EUROPEAN COMMUNITIES 
COM ( 93 209 final - SYN460 
Brussels, 14 May 1993 
Proposal for a 
COUNCIL PI RECTI YE 
on the right of residence for students 
(presented by the Commission) 
— A 
EXPLANATORY MEMORANDUM 
On 26 June 1989 the Commission sent to the Council a proposal for a 
Directive on the right of residence for students1 based on the second 
paragraph of Article 7 of the Treaty, which provides for a cooperation 
procedure with Parliament. After a tortuous legislative procedure, the 
Council finally adopted on the basis of Article 235 Directive 90/366/EEC 
on the right of residence for students.2 
The Commission opposed the change in the legal basis. 
Parliament took the view that the change in the legal basis had failed 
to respect its prerogatives and initiated annulment proceedings in 
respect of Directive 90/366/EEC (Case C-295/90). The Commission, in its 
capacity as intervener in the proceedings, supported Parliament. 
In its ruling of 7 July 1992, the Court of Justice upheld Parliament's 
appeal. It annulled Directive 90/366/EEC, ruling that "the effects of 
the annulled Directive shall continue to have force until the entry into 
force of a directive adopted on the appropriate legal basis". 
The purpose of this proposal is to set in motion the procedure that will 
result in a new directive on the right of residence for students being 
adopted on the appropriate legal basis. 
Substance of the proposal 
1. In essence, the attached proposal reproduces the version of the 
Directive as adopted by the Council, and not the substance of the 
Commission's initial proposal. 
The reasons for this are the following: 
Parliament, through its appeal, intended simply to secure 
acknowledgment that the procedure followed had failed to respect its 
prerogat ives; 
the actual substance of the Directive was not challenged; in this 
respect, the Court notes that the essential normative content of the 
Directive has not been challenged by the institutions or by the 
Member States; 
the Court has maintained the effects of the Directive, which has 
already been transposed into national law by Denmark, Spain, Greece, 
Ireland, Italy, Luxembourg, the Netherlands and Portugal. 
2. However, the text of the Directive 90/366/EEC needs to be adapted in 
two respects: 
1 OJ NO C 191 of 28 July 1989, p. 2. 
2 OJ No L 180 of 13 July 1990, p. 30. 
- 2 -
in order to take account of the ruling of 7 July 1992, In which the 
Court of Justice acknowledged that "the Council was competent to 
adopt the contested directive pursuant to the second paragraph of 
Article 7 of the Treaty and that it was accordingly not 
Justified In basing itself on Article 235": the first citation in 
Directive 90/366/EEC is amended so as to refer to the second 
paragraph of Article 7 of the Treaty while the last recital, which 
refers to Article 235, is deleted. A new recital is added in order 
to include a reference to the annulment of that Directive by the 
Court of Justice; and 
in order to take account of the ruling given by the Court of Justice 
on 26 February 1992 in Raul In (C-357/89): the proposed wording of 
the third recital and of Article 1 is similar to the wording of the 
initial proposal for a Directive dated 26 June 1989 since the Court 
of Justice endorsed the Commission's analysis on which the initial 
wording was based. A fourth recital is inserted in order to 
underscore the merits of the Directive as an instrument setting out 
the framework within which the right of residence will be exercised. 
3. In view of the fact that the ruling given by the Court of Justice on 
7 July 1992 maintained the effects of the annulled Directive until the 
entry into force of a directive adopted on the appropriate legal basis, 
it is not possible to set for a new directive a date for the expiry of 
the transposition deadline later than that specified in the annulled 
Directive since this would run counter to the Court's ruling by granting 
Member States that had not as yet transposed Directive 90/366/EEC into 
national law an extension of the transposition deadline. 
-V 
Proposal for a Council Directive on the right of residence for students 
TUG COUNCIL or THI- HUKOIM-AN COMMUNITIES. 
Having regard to the Treaty establishing the 
European Economic Community, and in particular 
the second paragraph of Article 7 § 2 thereof. 
Having regard 
Commi ss ion, to the pr oposaI f r om t he 
In cooperation with the furopean Parliament. 
Having regard to the opinion of the Economic 
and Social Committee. 
Whereas Article 3 (c) of the Tieaty provides that (he acti-
viiies of the Community shall include, as provided in the 
Tieaty, the abolition, as between Membei States, ol 
obstacles to freedom of movement for persons ; 
Whereas Article 8a of the Tieaty provides that the 
internal market must be established by 31 December 
1992; wheieas the internal market compiises an aiea 
without internal frontieis in which the free movement of 
goods, persons, services and capital is ensured in accor­
dance with the ptovisions ol the Treaty ; 
Whereas, as the Court of Justice has ruled. 
Articles 128 and 7 of the Treaty prohibit any 
discrimination between nationals of the Member 
States as regards access to vocational training 
in the Community arid wheieas access by a 
national of one Meinbei State to vocational 
tioining in another Member State implies, foi 
that national, a r i<jht of r e% i dence in that 
ot hei Membei St .i t e ; 
Wheieas, accordingly, in order to guarantee 
access to vocational training, the conditions 
likely to facilitate effective exercise of that 
right of residence should he laid down; 
Wheieas tin' light ot lesidence f<M students foims pait of 
a set ol lelated measures designed to piomote vocational 
tiammg . 
Whereas benelictanes ol the light ol icsidencc must not 
bet ome an unieasoiiable bmden on the public Imances of 
die host Membei State , 
Wheieas, in the ptesenl slate of Community law, assis 
tance granted to students, as established by the case law of 
the Court of Justice, does not fall within the scope of the 
Treaty within the meaning of Article 7 thereof; laid down in particular in Directive 68/360/EEC flhnd 
Directive 64/22\/\UlC(l); 
Wluieas this Ditective iloes not apply to students who 
enjoy the light ol icsideiwe by virtue of the fact that they 
aie oi have been eflcchvclv engaged in economic activi­
ties oi aie mcmheis ol the family of a migrant worker ; 
whereas, by its iuIing of 7 July 1992 in Case 
C-295/90. the Court of Justice annulled Council 
Directive 90/366/CEC of 28 
right of residence for 
maintaining the effects 
Directive until the entry 
directive adopted on the 
bas i s. 
HAS ADOPTED THIS DIRECTIVE: June 1990 on the 
students, while 
of the annul led 
into force of a 
appropr iate legaI 
Art icle 1 
Member States shall take the measures necessary 
to facilitate exercise of the right of 
residence in order to guarantee access to 
vocational training in a non-discriminatory 
manner. To that end. they shall recognize the 
right of residence to any student who is a 
national of a Member State and who does not 
enjoy this right under other provisions of 
Community law, and to the student's spouse and 
their dependent children, where the student 
assures the relevant national authority, by 
means of a declaration or by such alternative 
means as the student may choose that are at 
least equivalent, that he has sufficient 
resources to avoid becoming a burden on the 
social assistance system of the host Member 
State during their period of residence, 
provided that the student is enrolled in a 
recognized educational establishment for the 
principal purpose of following a vocational 
training course there and that they are covered 
by sickness insurance in respect of all risks 
in the host Member State. 
A ft n !<• 2 
l The light of residence shall be restricted to the dura­
tion ol the course of studies in question. 
Wheieas the tight of tesidence can only be genuinely 
exercised if it is granted to the spouse and their depen­
dent children ; 
Wheieas the benelicianes of this Directive should be 
covered by administrative arrangements similar to those The right of residence shall be evidenfed by means of the 
issue of a document known as a 'Residence permit for a 
national of a Member State of the EEC', the validity of 
which may be limited to the duration of the course of 
studies or to one year where the course lasts longer; in 
the latter event it shall be renewable annually. Where a 
member of the family does not hold the nationality of a 
Member State, he or she shall be issued with a residence 
document of the same validity as that issued to the 
national on whom he or she depends. 
(f) OJ No L 257, 19. 10. 1968, p. 13. 
$ OJ No 56, 4. 4. 1964, p. 850/64. 
Vtt..S',-:-\' 
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For the purpose of issuing the residence permit or docu­
ment, the Member State may requite only that the appli­
cant present a valid identity card or passport and provide 
proof that he or she meets the conditions laid down in 
Article 1. 
2. Articles 2, 3 and 9 of Directive 68/360/EEC shall 
apply mutatis mutandis to the beneficiaries of this 
Directive. 
The spouse and the dependent clnldien of a national of a 
Member Slate entitled to the light of icsideiue within the 
territory of a Member State shall be entitled to take uj> 
any employee! ot self-employed activity anywhere within 
the territory of that Membei State, even if they are not 
nationals of a Member State 
Member States shall not derogate from the provisions of 
this Directive save on grounds of public policy, public 
security or public health : in that event, Articles 2. to 9 of 
Directive 64/221/EEC shall apply. yearly intervals thereafter, draw up a report on the appli­
cation of this Directive and submit it to the European 
Parliament and the Council. 
The Commission shall pay particular attention to any 
difficulties to which the implementation of Article 1 
might give rise in the Membei States ; it shall, if appro­
priate, submit proposals to the Council with the aim of 
remedying such difficulties. 
A>lull <> 
Member States shall bung into force the law, regulations 
and administrative provisions necessary to comply with 
this Directive not later than 30 June 1992. They shall 
forthwith inform the Commission thereof. 
Article .? 
This Directive shall not establish any entitlement to the 
payment of maintenance grants by the host Member State 
on the part of students benefiting from the right of resi­
dence. When Member States adopt these provisions, these shall 
contain a reference to this Directive or shall be ac­
companied by such reference at the time of their official 
publication. The procedure for such reference shall be 
adopted by Member States. 
Art tile 4 
The right of residence shall remain for as long as benefi­
ciaries of that right fulfil the conditions laid down in 
Article I. Article ? 
This Directive is addressed to the Member States. 
ArtnU- 5 
The Commission shall, not more than three yeais after 
the date of implementation of this Directive, and at three-

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ISSN 0254-1475 
COM (93) 209 final 
DOCUMENTS 
EN 06 16 
Catalogue number : CB-CO-93-235-EN-C 
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