Opinion of the Economic and Social Committee on the 'Proposal for a Council Directive on the right of third-country nationals to travel in the Community' ()

(96/C 153/08)

On 4 October 1995, the Council decided to consult the Economic and Social Committee, under Article 100 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 15 February 1996. The Rapporteur was Mr Vinay.

At its 333rd Plenary Session (meeting of 28 February 1996), the Economic and Social Committee adopted the following Opinion by a majority vote, with three dissenting votes and ten abstentions.

1. Background

1.1. The Committee discussed the need to grant nationals of third countries (more particularly, migrants) the right to freedom of movement within the Community in an Own-initiative Opinion of 24 April 1991 () and an additional Opinion of 26 September 1991 () on the status of migrant workers from third countries.

1.2. The European Parliament made a similar call in its Resolution of 14 June 1991 on Union citizenship ().

1.3. In its Communication on immigration, issued on 23 October 1991 (), the Commission noted that 'the logic of the internal market should entail the elimination of legal obstacles whereby the existence of certain rights is subject to a condition of nationality' and offered some suggestions similar to those of the Committee and the Parliament.

1.4. The Parliament has since reiterated its recommendations in a number of resolutions. The first concerned the abolition of controls at internal borders and free movement of persons within the European Community, and was adopted on 19 November 1992 (). The most recent, adopted in September 1995, concerned the Commission Communication on immigration and asylum policies ().

1.5. In the latter Communication, issued on 23 February 1994 (), the Commission announced its intention to draw up a proposal allowing third-country nationals legally resident in a Member State to move freely within the Community without having to have a visa.

1.6. In its Opinion of 24 March 1994 on the Green Paper on 'European social policy: Options for the Union' (), the Committee reiterated the recommendations made in its 1991 Opinions.

1.7. The present proposal is the instrument announced by the Commission Communication referred to in 1.5 above.

2. Purpose of the proposed Directive

2.1. The proposal gives third-country nationals the right to travel within the Community. At present, they do not have such a right, and any travel from one Member State to another - even if only in transit or for a short stay - is subject to the rules of the individual Member States.

2.2. This is now a de jure () and de facto right of EU citizens, although checks at internal borders still impede the full exercise of this right (except for the countries applying the Schengen Agreement). It is not the case for third-country nationals who are lawfully in the territory of a Member State. For them, travel between Member States is subject to restrictions applied by the individual Member States (notably visas). These have not been harmonized, and place practical obstacles to the movement of third-country nationals. The Directive is designed to remove these obstacles.

2.3. The Committee sees at least two reasons for granting third-country nationals the right to travel within the Community.

2.3.1. Firstly, there is the general principle of the right to travel. This is a universal human right which is also reflected in international conventions (). Also, the right to travel within what is now dubbed a 'global village' and in a society which seeks to be increasingly 'open', is a generally accepted aspect of a civilized society. Hence, as respect for human rights and fundamental freedoms is one of the EU's founding principles, a Union which is at pains to promote such rights within the international community cannot shirk from guaranteeing them in matters falling under its jurisdiction, such as the present case ().

2.3.2. Secondly, the right of third-country nationals to travel within the EU has an important impact on the operation of the single market. The constraints imposed by national regulations, mentioned above, seriously restrict access to the single market for a considerable number of third-country nationals who are lawfully in a Member State. These restrictions impair the effective operation of that market and limit its development potential.

3. The proposed Directive

3.1. The Committee endorses the Commission proposal to eliminate obstacles to the free movement of third-country nationals by applying the same criteria at internal borders as at external borders. Reference is made in particular to the recently approved Regulation specifying the third countries whose nationals must be in possession of a visa (the 'visa' Regulation) (), and to the 'external borders' Convention (as yet unapproved) (). Together, these instruments introduce two principles:

a) equivalence between residence permits issued by a Member State and visas;

b) mutual recognition of the visa, whereby visas are issued according to harmonized criteria and are valid throughout the EU.

3.2. In accordance with these two principles, the proposal will allow third-country nationals lawfully resident in a Member State to enter another Member State on presentation of a residence permit, without a visa. Furthermore, third-country nationals entering the EU with a visa issued by a Member State (mutually recognized and valid for crossing the EU's external borders), will no longer need to obtain a visa from any other Member State that they wish to enter.

3.3. A similar system is provided under the Schengen Agreement, and is now operative in certain Member States.

3.4. The Commission rightly notes that the entry into force of the above measures on the crossing of external borders does not alter the need for similar provisions for internal borders, as now being proposed. Indeed, if the one were to apply without the other, the absurd situation would arise whereby third-country nationals could enter a Member State from a third country by showing a residence permit or visa issued by any Member State, but could only cross from one Member State to another if they had a visa issued by the second Member State. In practice, it would be easier to enter a Member State by an external EU border than by an internal one.

3.5. The Committee therefore endorses the proposal's definition of the 'right to travel' as 'the right to cross internal Community borders and to remain in the territory of a Member State for a short stay, or to travel onward, without the person concerned being required to obtain a visa from the Member State or States in whose territory the right is exercised'.

3.6. It is clear from this definition that the proposal has no bearing on:

- entry conditions at the external borders of the Member States, which are covered by other measures: the 'visa' Regulation, the 'external borders' Convention, the Dublin Convention (right of asylum) (), the Convention on a European information system ();

- long stays, access to employment and the taking-up of self-employed activities by third-country nationals; or, more generally, migration policies, which are basically still a matter for the Member States. Here it is worth noting the Committee's frequent, vigorous calls for a Community immigration policy. Its September 1994 Opinion on the Commission Communication on immigration and asylum policies asked the 1996 IGC to include this matter in the revision of the Treaty ();

- checks at internal borders. The Directive would be fully applicable whether or not such checks were retained.

3.7. The Committee endorses the move to restrict the right to travel to third-country nationals who are in a Member State lawfully. By denying this right to persons who entered or are present unlawfully, and by including provisions for expulsion, the proposal allays any concern about the possible impact of the Directive on illegal immigration and indeed provides a further tool for combating it.

3.8. Lastly, it should be noted that the Directive does not apply to nationals of third countries belonging to the European Economic Area. These persons are covered by Community law and have the same rights to enter or stay in a Member State as EU citizens.

4. Right to travel of third-country nationals lawfully in a Member State

4.1. When considering the question of third-country nationals lawfully in a Member State, the Committee has always worked on the principle of equality of rights and opportunities with EU citizens. Of course, equality here means a gradual but definite process based on certain fixed points, one of which is an equal right to travel within the Community. The Committee stated in both 1991 and 1994 that 'immigrants legally resident in a Member State should be able to move within the Community as freely as EC nationals. Immediate steps should therefore be taken to abolish visa requirements for journeys within the Community'.

4.2. The Commission and Parliament share this view, and formal proposals to this end were submitted to the Cannes European Council in June 1995 by the consultative commission on racism and xenophobia set up by the Council (). These proposals were deemed necessary both for the completion of the internal market and to counter discrimination over the rights of non-EU citizens ().

4.3. The principle of equal rights is underpinned by the growing trend to broaden the concept of Union citizenship by extending certain rights to lawfully resident third-country nationals. This is borne out by Articles 138d and 138e of the Maastricht Treaty, which allow 'any natural or legal person residing or having its registered office in a Member State' to address a petition to the European Parliament or a complaint to the ombudsman.

4.4. The absence of an equal right to travel is regrettable not only as a matter of principle but also because of its practical impact, which causes discrimination in a number of areas.

4.4.1. Firstly, within families. There are countless cases where third-country members of EU citizens' families find their movements within the Community restricted by visa obligations, despite secondary legislation granting them the same right of entry and residence as EU citizens.

4.4.2. Secondly, in access to the internal market. Visa requirements make it more difficult for a third-country national to travel to another Member State in order to:

- purchase goods, which is part of the rationale of a single market;

- provide services, as expressly allowed under Article 59 of the EC Treaty ();

- receive services, as also allowed under the EC Treaty, since the Court of Justice has ruled that 'the freedom to provide services includes the freedom, for the recipients of services, to go to another Member State in order to receive a service there, without being obstructed by restrictions' (). Given that 'tourists, persons receiving medical treatment and persons travelling for the purpose of education or business trips are to be regarded as recipients of services' (), the scale of the discrimination faced by these people is clear, as is the economic injury to many groups of economic operator and members of the professions, since there are over nine million third-country nationals legally resident in the EU.

4.4.3. Further difficulties arise over the posting of non-EU nationals resident in a Member State and working in the service sector. The practical difficulty of obtaining a visa (often required at very short notice) puts businesses operating in another Member State at a disadvantage vis-à-vis nationals and thereby distorts competition. It also puts such workers at a disadvantage even on the labour market of their country of residence, because a firm which often has recourse to service workers may be led to give preference to those from third countries for whom a visa is not required.

5. The right to travel for third-country nationals not resident in a Member State

5.1. The proposal is also designed to grant the right to travel to third-country nationals who have legally entered a Member State, with or without a visa, for a short stay.

5.1.1. If they enter with a visa, and wish to travel to other Member States during the three-month period allowed, the visa must be valid throughout the EU under the terms of the 'visa' Regulation and the 'external borders' Convention.

5.1.1.1. Since national visa policies have not yet been harmonized (), the visa required by the Member State of first entry may not be required by all Member States. In this case, travel without a visa will only be allowed to those Member States where no visa is required. For instance, an Australian wishing to go to France must obtain a visa; but once there he can go to any other Member State except Spain without needing a visa. To go to Spain, he must have a visa issued by the Spanish authorities.

5.1.2. For a third-country national entering the EU without a visa, there are two possible scenarios:

5.1.2.1. If no Member State requires a visa, the person is allowed to travel, without a visa, for three months.

5.1.2.2. If the Member State of first entry does not require a visa but other Member States do, the person may only travel to Member States which do not require a visa.

5.1.3. The instances described in 5.1.1.1 and 5.1.2.2 will continue to place serious (in many respects, pointless) restrictions on the right to travel, even after the Directive enters into force. The Committee trusts that the transitional period will be short, and it asks the Commission and Council to harmonize visa policies fully as soon as possible.

5.1.4. The Committee realizes that the proposed Directive will grant the right to travel throughout the EU on a single visa to nationals of more third countries than are listed in the Schengen Agreement. The negative list in the 'visa' Regulation is shorter than the Schengen list (for instance, it does not include many members of the British Commonwealth which feature on the Schengen list). The Committee views this as a step forward.

5.1.5. The Committee stresses that it is in the interests of the proper operation of the single market that third-country nationals not resident but lawfully present in a Member State should be able to travel within the Community. The majority of these short trips are for such purposes as tourism, business, study or health care. It therefore seems rather simplistic to view the right to travel solely in terms of immigration, particularly as the 'visa' Regulation places a visa requirement on nationals of many third countries which are not countries of emigration (e.g. the Gulf States).

6. Legal basis

6.1. It appears clear from the above that the Directive is pursuant to the objectives set out in Article 7a of the EC Treaty.

6.2. The Committee therefore endorses the Commission's proposal to take Article 100 as the legal basis.

6.3. The fact that the proposed Directive takes account of the flanking measures coming under Title VI of the EU Treaty is no reason to extend its ambit beyond that of the EC Treaty and the powers of the Community. The Committee therefore opposes any move to invoke two separate instruments (first and third pillars).

7. Comments and suggestions

7.1. Both for residents of a Member State and for other third-country nationals, the proposal makes the right to travel conditional on having sufficient means of subsistence to cover the period of the intended stay or transit and to return to the Member State of departure or to a third country. The Committee expresses concern about the proposal's treatment of this issue, particularly in relation to its practical consequences.

7.1.1. For persons legally resident in a Member State, the Committee considers that, by analogy with Community law, the possession of a residence permit should automatically confer the right to travel, and that this right should not be made legally contingent on such conditions as the possession of sufficient means of subsistence ().

7.1.2. Third-country nationals who are not resident in a Member State are already required to have means of subsistence, as well as a visa, when they first enter the Community. This is currently required under national regulations, and will be so in future under the 'external borders' Convention. As well as declaring the arrangements for his stay, a person entering the Community is required to demonstrate 'that he have sufficient means of subsistence, both for the period of the intended stay or transit and for him to return to his country of origin or travel to a third state into which he is certain to be admitted, or be in a position to acquire such means lawfully' (). It is clear that compliance with this requirement is checked at the first point of entry and that there is no need to prove it again when travelling within the Community.

7.1.3. It is clear that a third-country national exercising the right to travel may, for one reason or another, subsequently find himself without means of subsistence. In such cases, the Member States must ensure that the person concerned is not able to receive public assistance. At the same time, it is not possible to step up police checks which would restrict the exercise of the right to travel simply on the assumption that a person lacking means of subsistence may acquire such means unlawfully.

7.1.4. Most of the 'Schengen' Member States have already abolished checks at internal borders. Eventually, all Member States should do so. It follows that checks on the right to travel of third-country nationals (whether resident or not) can only be carried out within the Member States. This means instructing the police to step up checks on persons. This would be difficult in certain Member States where the police do not currently have such powers and the proposal to introduce them would not be generally acceptable; it is also illogical, since the border checks which are being eliminated would simply be replaced by internal checks. Moreover, as such checks could not be carried out according to objective methods, they would inevitably focus on people whose appearance suggested that they might not be nationals. In practice, this provision would smack unpleasantly of racial discrimination, at the expense of ethnic-minority EU citizens or even of those whose physical appearance differs from that of the majority of the population. This would be in stark contrast to the Community's long-standing drive to eliminate any practices liable to be deemed racially discriminatory, inter alia in the public authorities (). As part of the fight against racism and xenophobia, the Committee takes this opportunity to ask the Commission and Council to keep a careful eye on the spread of sometimes inapposite checks that focus on ethnic and racial minorities and immigrants.

7.1.5. It is clear from the above that the Committee agrees that third-country nationals exercising the right to travel are obliged to have or acquire lawfully sufficient means of subsistence for their travel and stay. However, the Committee does not feel that this requirement obliges such persons to prove this at any time, as the resultant increase in police checks would restrict the right to travel and inevitably smack of racial discrimination. The Committee therefore proposes deleting the second indent of Article 3(1) and the references to it in Article 4(1) and 4(2). The Committee proposes the insertion of a new Article as follows: 'A third-country national who exercises the right to travel must have sufficient means of subsistence, both to cover the period of the intended stay or transit and to enable him to return to the Member State which issued the residence permit or to travel to a third country into which he is certain to be admitted, or must be in a position to acquire such means lawfully. Consequently, the right to travel does not confer entitlement to seek public assistance from the Member State within whose territory the right to travel is being exercised.'

7.2. The Committee endorses the Commission's reasons for not including the provision of the draft 'external borders' Convention which requires that the residence permit must be valid for at least a further four months at the time of entry ().

7.3. The Committee would draw the attention of the Commission and Council to the position of third-country nationals who are resident in EEA countries. If the single market is to include the EEA, the right to travel within the Community should extend to such persons too, particularly as some Member States already allow them to enter freely ().

7.4. The Committee agrees that provision should be made for the expulsion of third-country nationals who do not have a valid residence permit or visa when this is required.

7.5. The Committee endorses the rules [Article 3(3) and Article 4(5)] concerning the expulsion of third-country nationals who represent 'a threat to public order'. However, the concept of 'threat to public order' used when applying this measure must be that of Directive 64/221 as interpreted by the Court of Justice ().

7.6. The Committee also asks that all expulsions covered by the Directive explicitly grant the person concerned the right to appeal and to have legal representation, as laid down in international conventions () and in accordance with Directive 64/221. If the interested party so requests, it should be possible for the appeal to have suspensory effect.

7.7. The Committee is pleased that the proposal does not oblige persons exercising the right to travel to report their presence in the territory of the Member State concerned, unlike the Convention implementing the Schengen Agreement. The Committee trusts that early steps will be taken to align at Community level the measures covered by Article 5 of the proposal, including those which concern nationals of a Member State.

8. Conclusions

8.1. In the light of the above comments, the Committee endorses the proposed Directive, subject to the alterations recommended in the preceding chapter.

8.2. The Committee thinks that the Directive should be approved separately from the one on the elimination of checks at internal borders. As stated above, the right to travel can be exercised whether or not checks are retained. Moreover, the existence of the Schengen Agreement allows both these possibilities to co-exist within the Community.

8.3. The Committee also thinks that the proposal can be adopted without waiting for approval of the flanking measures on the crossing of external borders. However, the Committee believes that while the proposed Directive can enter into force without delay as far as third country nationals lawfully resident in the Community are concerned, its applicability to visitors to the EU should be deferred until such time as the various flanking measures on the crossing of external borders have been adopted and entered into force.

8.4. The Committee therefore asks the Council to adopt the proposal forthwith, subject to the above provisos regarding its entry into force, so as to put an end to a serious shortcoming in the EU's internal market and guarantee an incontrovertible right, namely the right to travel.

Done at Brussels, 28 February 1996.

The President

of the Economic and Social Committee

Carlos FERRER

() OJ No C 306, 17. 11. 1995, p. 5.

() ESC Opinion in OJ No C 159, 17. 6. 1991, p. 12.

() ESC Opinion in OJ No C 339, 31. 12. 1991.

() Resolution A3-139/91 in OJ No C 183, 15. 7. 1991, p. 473.

() SEC(91) 1855 final.

() Resolution A3-0284/92 in OJ No C 337, 21. 12. 1992, p. 211.

() Resolution A4-0169/95 in OJ (not yet published).

Paragraph 40 states 'deems it of great importance that priority be given to the strengthening of the legal position of citizens of third countries who are legally resident in one of the Member States; confirms its view that the right to free movement in the Union must apply to all persons living legally in the Member States, irrespective of their origin, nationality, religion or colour of skin; calls on the Commission to submit by 1 January 1996 proposals for achieving such aims and to draw up a list of the legal provisions which place such third-country nationals at a disadvantage vis-à-vis Union citizens and of the possibilities for giving them access to European citizenship'.

() COM(94) 23 final.

() ESC Opinion in OJ No C 148, 30. 5. 1994.

() Under the present rules implementing the EC Treaty regarding the free movement of persons subject to Community law, exercise of the right to travel is subject to presentation of a valid identity document at the point of entry. However, these rules do not affect the right to travel, as they do not give the authorities of the Member State concerned any discretionary powers, in contrast to the situation of a large number of third-country nationals who may find themselves granted or denied a visa.

() The right to leave a country (including one's own) and to return to one's own country is enshrined in the 1948 Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights and Protocol 4 of the European Convention on Human Rights. The obligation to allow entry to a foreign national is mentioned in the Declaration and in subsequent UN Conventions, but only in the case of asylum-seekers. In the final document of the CSCE conference held in Vienna in January 1989, participating countries reiterated the above rights and undertook only in exceptional circumstances to use their power to restrict freedom of movement, and to ensure that their entry policies favoured 'human contacts' (family meetings, weddings, etc.). Although the legally binding provisions ensuing from the above instruments do not provide a full definition of the right to travel, it is clear that it is nonetheless a human right.

() Given the powers which the Community has throughout the territory of its Member States, the right to travel within that territory may be equated with the right - enshrined in the international conventions mentioned above - of any person lawfully present in a Member State to travel freely therein.

() Council Regulation (EC) No 2317/95 of 25. 9. 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States (OJ No L 234, 3. 10. 1995, p. 1).

() Proposal for a Decision, based on Article K.3 of the Treaty on European Union establishing the Convention on the crossing of the external frontiers of the Member States. COM(93) 684 final presented by the Commission on 10. 12. 1993 (OJ No C 11, 15. 1. 1994, p. 6).

() Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (Dublin, 15. 6. 1990) (see Bulletin EC 6-1990). The final ratifications are expected soon.

() Not yet published.

() ESC Opinion in OJ No C 393, 31. 12. 1994.

() The report to the Cannes European Council by the consultative commission on racism and xenophobia proposes that the Council of Ministers 'grant freedom of movement within the Union to non-EU citizens who reside legally within the territory of a Member State and are in possession of a document which proves that status'.

() 'The inclusion within the scope of Community law of a group of citizens from other countries who do not have the nationality of any of the Member States and who reside permanently in the territory of one of the Member States would be a logical step in the completion of the internal market. It is not logical that persons involved in the economic process of the Community either as consumers or as service providers should fall outside Community law. This would appear to conflict with the principle of the free movement of persons and goods.' (Chapter III, point 6 of the report cited in note 1 above.)

() 'The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.' However, this Article has so far not been applied in practice.

() Judgement of 31. 1. 1984, Joined cases 286/82 and 26/83, Luisi and Carbone v. Ministero del Tesoro, Reports of cases before the Court 1984, p. 403, paragraph 16.

() The 'visa' Regulation provides for a negative list (third countries whose nationals require a visa in order to enter any Member State), and also allows Member States to require a visa from nationals of third countries not featuring on the list.

() Some categories of EU citizen (pensioners and other persons not in employment) are required to show they have sufficient means of subsistence, but only in order to exercise their right of residence, not their right to travel.

() External borders Convention, Article 7(e) - OJ No C 11, 15. 1. 1994.

() In its Resolution of 27. 4. 1995 on racism, xenophobia and anti-semitism, the Parliament 'calls on the Member States to train social workers, police and judicial officers to treat minorities in the European Union in a manner commensurate with human dignity and to adopt measures to counter infringements' (B4-0731/95, paragraph 10 - OJ No C 126, 22. 5. 1995, p. 76).

() See point 33 of the explanatory memorandum preceding the Commission proposal (COM(95) 346 final).

() There are already special agreements between Scandinavian countries concerning the free movement of persons.

() Council Directive 64/221/EEC of 25. 2. 1964, in the Special Edition of the Official Journal of the European Communities 1963-1964, p. 117. The Court states that the scope of the concept of public policy 'cannot be determined unilaterally by each Member State without being subject to control by the institutions of the Community'. It also holds that 'the concept of public policy presupposes, in any event, the existence, in addition to the perturbation to the social order which any infringement of the law involves, of a genuine and sufficiently serious threat affecting one of the fundamental interests of society'. The Member States should assess the effectiveness and gravity of the threats according to criteria of reasonableness and proportionality, so that minor infringements cannot have serious consequences such as expulsion. (Judgement of 4. 12. 1974 in case 41/74, Van Duyn, in Reports of cases before the Court 1974, p. 1337; judgement of 26. 2. 1975 in case 67/74, Bonsignore, in Reports of cases 1975, p. 297; judgement of 28. 10. 1975 in case 36/75, Rutili, in Reports of cases 1975, p. 1219; judgement of 27. 10. 1977 in case 30/77, Bouchereau, in Reports of cases 1977, p. 1999).

() See Article 13 of the International Covenant on Civil and Political Rights (United Nations, 16. 12. 1966).