Proposal for a Council Directive on the right of third-country nationals to travel in the Community (95/C 306/03) (Text with EEA relevance) COM(95) 346 final - 95/0199(CNS)

(Submitted by the Commission on 24 August 1995)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 100 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

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

Having regard to the opinion of the Committee of the Regions,

Whereas Article 7a of the Treaty provides for the establishment of an internal market, which is to comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty;

Whereas in order to achieve this objective Member States will have to allow third-country nationals who are lawfully in the territory of another Member State to enter their territories for short stays; whereas if there were no such right to travel each Member State would have to consider the fact that there were people in other Member States who were not entitled to enter its territory, which might be an argument for maintaining controls at internal frontiers;

Whereas the approximation of Member States' laws on this question directly affects the establishment and functioning of the internal market;

Whereas the issue of a residence permit by a Member State to a third-country national, whereby the latter is authorized to live in that State, is an act surrounded by sufficient safeguards for the other Member States no longer to need to subject the person concerned to the requirement that he obtain a visa in advance from their own authorities and hence for them to grant him the right to travel; whereas, in any event, each Member State may expel the person concerned to the Member State which issued the residence permit, which is obliged to readmit him, if he stays unlawfully in its territory, if he does not fulfil the conditions governing the right to travel, or if he represents a threat to public order or public security in that State, or to its international relations;

Whereas, where a third-country national who is not resident in the Community is in possession of a visa issued by a Member State which permits him to cross the external frontiers of all the Member States by virtue of its being valid throughout the Community and mutually recognized by the Member States for that purpose, each Member State enjoys sufficient safeguards for it to grant the person concerned the right to travel; whereas the same right must a fortiori be granted to third-country nationals who may cross the external frontiers without being subject to a visa requirement; whereas, in any event, each Member State is entitled to expel a third-country national if he does not fulfil the conditions governing the right to travel or if he represents a threat to public order or public security in that State, or to its international relations;

Whereas persons who exercise the right to travel should not become a burden on the social assistance system in the Member States they visit; whereas the right should therefore be subject to the condition that such persons have sufficient resources to undertake the trip;

Whereas this Directive forms part of a general body of Community and national provisions governing the legal position of third-country nationals in the Member States; whereas the scope of this Directive should accordingly be precisely defined,

HAS ADOPTED THIS DIRECTIVE:

Article 1

1. Member States shall grant third-country nationals who are lawfully in a Member State the right to travel in the territories of the other Member States in accordance with this Directive.

2. This Directive shall be without prejudice to rights

- which Community law confers on third-country nationals who are members of the families of citizens of the Union,

- which are granted to third-country nationals and to members of their families irrespective of nationality where, under an agreement between the Community, its Member States and the relevant third country, they enjoy rights of entry and residence in a Member State identical to those of citizens of the Union.

3. This Directive shall not affect provisions of Community or domestic law on

- stays other than for a short time, and

- access to employment and the taking-up of activities as a self-employed person

applicable to third-country nationals.

Article 2

For the purposes of this Directive:

1. 'right to travel` means 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;

2. 'residence permit` means any document or authorization issued by the authorities in a Member State which permits a person to reside in that Member State, and which appears on the list referred to in Article 3 (4);

3. 'visa within the meaning of point (3) of Article 2` means a visa which is valid throughout the Community and which is mutually recognized for the purpose of crossing the external frontiers of the Member States;

4. 'third-country national` means any person who is not a citizen of the Union within the meaning of Article 8 (1) of the Treaty establishing the European Community.

Article 3

1. Member States shall grant the right to travel to third-country nationals who hold a valid residence permit issued by another Member State.

Any such person may travel in the territories of the other Member States for a continuous period of not more than three months provided that he meets the following requirements:

- he must be in possession of a valid residence permit and a valid travel document,

- he 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.

2. Member States shall, in accordance with the conditions laid down in the Annex, readmit any person to whom they have issued a residence permit and who is unlawfully resident in the territory of another Member State, even if the validity of that permit has expired.

3. A third-country national who holds a residence permit issued by a Member State and who is exercising the right to travel may be expelled if he does not meet the requirements laid down in paragraph 1 or if he represents a threat to public order or public security in the Member State in which he is exercising the right to travel, or to its international relations.

4. Member States shall provide the Commission and the other Member States with a list of the documents they issue which are treated as equivalent to residence permits for the purposes of this Article, updating it as and when necessary.

The Commission shall publish the lists and any updates in the Official Journal of the European Communities.

Article 4

1. Member States shall grant the right to travel to third-country nationals who hold a visa within the meaning of point (3) of Article 2.

Such persons may travel in the territories of the Member States during the period of stay permitted by the visa, provided that they are in possession of a travel document bearing the valid visa and meet the requirement laid down in the second indent of Article 3 (1).

2. Member States shall confer the right to travel on third-country nationals who are exempted from visa requirements by all the Member States.

Such persons may travel in the territories of the Member States for a total of no more than three months within a period of six months from the date of first entry in the territory of one of the Member States, provided that they are in possession of valid travel documents and meet the requirement laid down in the second indent of Article 3 (1).

3. Paragraph 2 shall also apply to third-country nationals who are subject to a visa requirement in a number of Member States.

However, the right to travel shall in their case be restricted to the territories of such Member States as have exempted nationals of the relevant third country from the obligation to hold a visa, unless they do hold a visa within the meaning of point (3) of Article 2.

In the latter event, the period of stay in the territories of the Member States which require a visa shall be limited to the period permitted by the visa.

4. The provisions of this Article shall not prevent any Member State from authorizing the stay in its territory of a third-country national beyond three months.

5. A third-country national allowed to enter the Community for a short stay who is exercising the right to travel may be expelled if he does not satisfy the conditions in paragraphs 1 or 2, according to whether or not he is subject to a visa requirement, or if he represents a threat to public order or public security in the Member State in which he is exercising the right to travel, or to its international relations.

Article 5

Member States may require persons exercising the right to travel to report their presence in their territories.

Article 6

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 1996. They shall immediately inform the Commission thereof.

When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.

Article 7

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

Article 8

This Directive is addressed to the Member States.

ANNEX

Conditions for the readmission by the Member States of third-country nationals who are unlawfully resident in a Member State but who hold a residence permit for another Member State (Article 3 (2) of the Directive)

1. These provisions on readmission are applicable to third-country nationals who hold a residence permit within the meaning of point (2) of Article 2 and who are exercising the right to travel but who are unlawfully resident in the territory of another Member State.

The provisions do not affect Member States' obligations under the Dublin Asylum Convention to readmit applicants for asylum who are unlawfully resident in another Member State.

2. Where a person covered by point 1 has entered one Member State from another Member State for the purposes of a short stay or transit under Article 3 (1) and is unlawfully resident there, that person must go without delay to the Member State for which he holds a residence permit unless he is authorized to go to another country to which he is certain to be admitted.

If a third-country national wishes to go to another country, he must provide documentary evidence that he may be admitted to that country, e.g. in the form of an entry permit or valid visa, and that he is in possession of the necessary resources, e.g. in the form of a ticket or other documentation that allows him to travel, and cash or a bank deposit in order to secure his transportation and his residence in the country to which he may be admitted.

3. If a third-country national unlawfully resident in the territory of a Member State refuses to leave voluntarily, Member States are required to readmit him in accordance with the guidelines set out below.

If the person holds a valid residence permit for another Member State, the Member State which has issued the permit is required to readmit him.

Moreover, Member States must readmit a third-country national in accordance with Article 3 (2) within a period of up to two months after the expiration of the validity of the residence permit.

The obligation to readmit him is subject to the condition that a request for readmitting him shall be lodged within one month by the authorities becoming aware of the person's unlawful presence in the Member State.

4. The person is to be readmitted after a request has been made by the competent authorities in the requesting Member State showing that the person in question holds a valid residence permit for the readmitting Member State.

A Member State receiving a request in accordance with point 3 must reply to the request within eight days. If the Member State does not respond within that time, it will be deemed to have agreed to readmission, unless it has expressly requested a one-week extension of that time limit.

The Member State to which the request was addressed is required to take in, within a month at most, the person it has agreed to take back. That time limit may be extended by agreement between the two Member States concerned, upon submission by the requesting Member State of an explicit and justified application.

Member States are to exchange lists of authorities competent to consider requests for readmission and of points at borders where readmission can take place.

5. The financial costs entailed by readmission are to be met by the person concerned. Where the person is unable to meet the expenses, the expenses up to the point of readmission are as a rule to be met by the Member State requesting readmission.