Opinion of the Economic and Social Committee on the "Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States"

(COM(2001) 257 final - 2001/0111 (COD))

(2002/C 149/12)

On 30 August 2001 the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 27 February 2002. The rapporteur was Mr Rodríguez García Caro.

At its 390th plenary session on 24 and 25 April 2002 (meeting of 24 April) the Economic and Social Committee adopted the following opinion by 89 votes, with one vote against and 12 abstentions.

1. Introduction

1.1. In accordance with the principle of the free movement of persons, all Union citizens have the right to enter, move within, reside in and, where appropriate, to remain in a Member State other than that of which they are nationals.

1.2. The right of all Union citizens to live and travel freely within the territory of the Member States is enshrined in Article 18 of the Treaty establishing the European Community.

1.3. This right, extended to all citizens of the Member States under Article 8a of the Treaty on European Union, is part of citizens' legal heritage and, as such, must be developed within a common framework and regulated by a single legal instrument.

1.4. The right of entry and residence is currently governed by two regulations and nine directives, which cover different categories of citizens, from employees and self-employed persons to students, pensioners and persons not working, and their family members. This body of legislation lays down the specific conditions for the exercise of the right to entry and residence in the Member States in different situations.

The EEC Regulations concerned are:

- 1612/68/EEC on freedom of movement for workers within the Community.

- 1251/70/EEC on the right of workers to remain in the territory of a Member State after having been employed in that State.

The Directives concerned are:

- 64/221/EEC on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.

- 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families.

- 72/194/EEC extending to workers exercising the right to remain in the territory of a Member State after having been employed in that State the scope of Directive 64/221/EEC.

- 73/148/EEC on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services.

- 75/34/EEC concerning the right of nationals of a Member State to remain in the territory of another Member State after having pursued therein an activity in a self-employed capacity.

- 75/35/EEC on the extension of the scope of Directive 64/221/EEC.

- 90/364/EEC on the right of residence.

- 90/365/EEC on the right of residence for employees and self-employed persons who have ceased their occupational activity.

- 93/96/EEC on the right of residence for students.

1.5. Back in March 1997, at the request of the Commission, the High Level Panel on the free movement of persons made 80 recommendations aimed at removing obstacles to the free movement of citizens of the Union. One of the seven headings of the recommendations was entry and residence in the Member States.

1.6. Initially, the rights of entry and residence concerned only persons moving for the purposes of work. These rights were later extended to all citizens which, according to the Commission communication to the European Parliament and the Council on the follow-up to the recommendations of the High Level Panel on the free movement of persons(1), has meant that "beneficiaries have been compartmentalised in a way that is no longer in keeping with modern forms of mobility or with the establishment of citizenship of the Union."

1.7. The current rules, designed primarily to deal with the situation of workers moving with their families to reside for a long period of time in another Member State, are ill-suited to the kind of mobility that has become commonplace over recent years.

1.8. The Commission communication referred to above set out guidelines for the legal framework governing movement and residence. The proposed principles were as follows:

- "the creation, in so far as possible, of a single set of rules on free movement within the meaning of Article 8a for all citizens of the Union and the members of their families;"

- "a new approach to exercising the right to reside, particularly by restricting the obligation to hold a residence permit to situations where this is justified;"

- "a clarification of the status of those members of the family of a citizen of the Union who are nationals of a third country;"

- "clearer restrictions regarding the possibility of curtailing the exercise of the right to reside."

1.9. Likewise, one of the conclusions of the Report from the Commission to the Council and the European Parliament on the implementation of Directives 90/364/EEC, 90/365/EEC and 93/96/EEC(2) was the need to make Community law on the free movement of persons more accessible, to base it on the concept of citizenship of the Union and to start to examine fundamental changes to the existing law.

1.10. Against this background, and in the light of the case-law of the Court of Justice, the Commission has published this proposal for a Directive, and refers it to the European Economic and Social Committee for its opinion.

2. Content of the proposal

2.1. The legal basis for the proposal is provided by the following articles of the Treaty establishing the European Community:

- Article 12, which prohibits discrimination on the grounds of nationality.

- Article 18, which establishes the right of Union citizens to move and reside freely within the territory of the Member States and allows the Council to adopt decisions on the rights of movement and residence.

- Article 40, which states the need to adopt measures to guarantee free movement for workers.

- Article 44, which guarantees freedom of establishment.

- Article 52, which deals with the liberalisation of services.

2.2. The proposal for a Directive consists of 39 articles, divided into seven chapters.

2.2.1. The first chapter contains the general provisions, which state the objective of the directive, specify the areas concerned, identify the beneficiaries and establish the principle of non-discrimination.

2.2.2. The second chapter deals with the right to move and to reside for up to six months.

2.2.3. The third chapter concerns the right of residence for more than six months.

2.2.4. The fourth chapter concerns the right of permanent residence. It deals with how this is acquired and the administrative formalities that must be completed.

2.2.5. The fifth chapter lays down the provisions common to the right of residence and the right of permanent residence with regard to territorial scope, related rights, equal treatment, checks by the authorities and the procedural safeguards by which citizens are protected.

2.2.6. The sixth chapter deals with restrictions on this right, the procedure which applies, safeguards for citizens and the duration of exclusion orders.

2.2.7. The seventh chapter contains the final provisions, which include the repeal of the nine directives currently in force.

2.3. Since this proposal for a directive replaces the nine directives listed in the introduction to this opinion, it constitutes a genuine simplification of Community law on movement and residence, which serves not only to simplify the legal framework, but also to reduce the administrative formalities that Union citizens must complete in order to be able to exercise these rights.

2.4. As well as scaling down and condensing the existing legislation, the proposal introduces new features and improvements which directly concern citizens moving to Member States other than those of which they are nationals. The most noteworthy are listed below:

- Broadening of the concept of "family member" to include non-dependent relatives in the ascending line, non-dependent descendants over the age of 21 and unmarried partners.

- Extension of the period for which non-EU nationals can stay in a Member State without having to go through any legal formalities from three months to six months.

- The requirement for a residence permit is removed. This now only applies to family members who are non-EU nationals.

- Introduction of bona fide declaration of gainful employment, sufficient resources and sickness insurance for the purposes of residence.

- Introduction of permanent residence after four years of continuous residence.

- Simplification of the administrative formalities and deadlines applying to exercise of the right of residence.

3. General comments

3.1. The Committee welcomes and generally approves the proposed directive, subject to the specific comments set out below.

3.2. Under the Treaty establishing the European Community, the internal market is an area without internal borders in which the free movement of goods, persons and services is guaranteed in accordance with the provisions of the Treaty. The free movement of capital, services and goods is now far advanced in the Union, but has not been accompanied by genuine freedom of movement and residence for citizens within the territory of the Union, which is recognised explicitly under Article 18 of the Treaty and reiterated in Article 45 of the Charter of Fundamental Rights of the European Union. This new initiative could give citizens improved access to a right to which there are currently numerous obstacles.

3.3. While it does not form part of the legal basis of this proposal, the Committee believes that in accordance with Article 13 of the Treaty, the right of movement and residence should not be the subject of derogations or discrimination of any kind.

3.4. The Committee notes that the proposed directive is a step forward in that it comprehensively recognises the right of every Union citizen to move and reside freely in any Member State.

3.5. The simplification of legislation through the replacement of nine different directives is a worthwhile exercise. The complexity of the rules and citizens' lack of knowledge of their rights make it difficult for them to exercise these rights. In view of this, the Commission should mount an information campaign on this directive, in which it would have the support of the Committee.

3.6. This simplification of legal texts is accompanied by a streamlining of administrative formalities, procedures and deadlines, which will benefit the citizen, as enjoyment of this right will be more accessible and less bureaucratic.

3.7. The Committee approves the Commission's decision to enlarge the scope of the definition of "family member". A wider definition of who counts as a family member is more in tune with the realities of the modern world and shows greater sensitivity to circumstances affecting all Union citizens.

3.8. The Committee expresses its satisfaction with the improvements introduced in the proposed directive. The free movement of persons and their residence in a Member State other than their own can only be based on the free wishes of the Union citizen. The exercise of this right may not be impaired by any repercussions it may have for the various administrative authorities. The EU in general and the Member States in particular must take whatever measures are necessary to ensure that the freedom to move and to reside as set out in this directive can be exercised by citizens without prejudice of any kind.

3.9. The abolition of Member States' right to fix the minimum amount of economic resources persons not working and retired persons must possess in order to reside in their territory is another improvement which should be highlighted. The Committee endorses the general thrust of Articles 7 and 21 of the proposal for a directive. Establishing minimum resources in each state affects freedom of movement and puts areas of the Union off limits to certain citizens because they lack the means.

3.10. Given the nature of the present proposal and the legislative procedure envisaged for it (co-decision and unanimity for its final adoption), the Committee, in accordance with Article 262 of the Treaty establishing the European Community, will decide on the most appropriate way of monitoring its progress.

4. Specific comments

4.1. Article 7(1)(c)

4.1.1. The conditions governing right of residence for more than six months extend this right to students admitted to a course of vocational training.

4.1.2. The Committee understands the general word "student" to include all persons who pursue studies in a centre of learning; restricting sub-paragraph (c) to students undergoing vocational training excludes in practice all other students and places a semantic restriction on the right of movement and residence, notwithstanding the broad meaning of "vocational training" as interpreted in the Gravier ruling.

4.1.3. The Committee can see no grounds for distinguishing between different types of student, and thus considers that the Commission must replace the reference to "vocational training" with "student admitted to a course of training".

4.2. Article 12(3)

4.2.1. This article deals with retention of the right of residence by family members in the event of the Union citizen's death or departure from the host Member State. Paragraph (3) states that the departure of the Union citizen shall not entail the loss of the right of residence of his/her children who are not nationals of a Member State if they are enrolled in an educational establishment.

4.2.2. Paragraph (3) does not cover the case of the mother, father or guardian if s/he too is not a national of a Member State. The logical conclusion is that the children can remain, but the mother, father or guardian must leave the host country when his or her spouse departs. In other words, the children must remain alone in the host country without the proper guardianship of any parent or guardian.

4.2.3. The Committee considers that if the children remain in the Member State to study in an educational establishment, the mother, father or guardian should, if s/he so desires, be able to reside with them until they reach the age of majority. The Committee hopes that its views will be further reinforced by the ruling of the Court of Justice in the Baumbast case.

4.3. Article 13(2)(c)

4.3.1. This article concerns the right of residence of family members in the event of divorce or annulment of the marriage.

4.3.2. Sub-paragraph (2)(c) states that divorce or annulment of marriage shall not entail loss of the right of residence of family members who are not nationals of a Member State "where this is warranted by particularly difficult circumstances."

4.3.3. The Committee regards this expression as ambiguous and imprecise, especially when the explanatory memorandum to the proposal acknowledges that the wording is vague and is meant to cover situations of domestic violence. The Committee considers that the wording should be more explicit, referring, inter alia, to family, domestic or gender violence, both psychological and physical in nature.

4.4. Article 14

4.4.1. This article lays down the general rules applicable to the acquisition of the right of permanent residence. To be able to exercise this right, a minimum period of four years of continuous residence is required. It further stipulates that the right may be lost in the event of more than four years' continuous absence.

4.4.2. The Committee recognises that this proposal represents an advance on the rules it is designed to replace, and considers that provision should be made for the possibility of exercising this right without the need to prove a specified period of residence.

4.5. Article 21(2)

4.5.1. This article states that, under the common provisions on right of residence and right of permanent residence, Union citizens and their family who are not nationals of a Member State shall enjoy equal treatment with the nationals of that country.

4.5.2. Paragraph (2) contains a derogation to the effect that students and other persons not engaged in gainful activity are not entitled to social assistance or sickness insurance, which obviously includes the right to health care, until they have acquired the right of permanent residence.

4.5.3. The Committee considers that the right to health is a fundamental human right and that the present wording of this paragraph violates it. In the Committee's view, the right to receive health care in the event of need should be excluded from the restrictions imposed by this article.

4.6. Article 25(2)

4.6.1. This article sets out the general principles governing the restrictions on the right of entry and residence on grounds of public policy, public security and public health.

4.6.2. Paragraph (2) states that previous criminal convictions do not in themselves constitute grounds for refusal of the right of entry or expulsion from the territory of a Member State of a Union citizen or family member.

4.6.3. The Committee considers, however, that some situations are sufficiently serious to warrant exclusion from the provisions of this paragraph. It should be qualified further, on the basis of the principle of proportionality, to provide for cases where persons are found to have previous convictions for crimes such as terrorism, trafficking in weapons or drugs and crimes against the person.

4.7. Article 25(4)

4.7.1. The fourth paragraph of this article allows the host Member State to request the Member State of origin or any other Member State to provide the necessary information on any previous police record of a Union citizen or family member, though such enquiries may not be made as a matter of routine.

4.7.2. The Committee considers that where they deem it necessary, the Member States should have the right to request the previous record of persons wishing to enter or reside in their territory.

4.8. Article 28(1)

4.8.1. This article concerns the notification of the persons concerned of any decisions to refuse them leave to enter or to expel them. The first paragraph states that they shall be notified in such a way that they are able to comprehend the content of the decision and what it entails for them.

4.8.2. The explanatory memorandum to the proposal contradicts the content of this article, stating that the wording used does not mean that the decision has to be translated into the language of the person concerned, particularly where it is a lesser known language.

4.8.3. The Committee considers that the best way of understanding a decision which curtails a right is to receive it in a language that is understood by the person concerned. It therefore believes that Union citizens should be entitled to receive this document in the language of the State which issues it and in the language of the Member State of which they are nationals.

4.9. Article 28(2)

4.9.1. The second paragraph enables the Member States not to notify the persons concerned in writing of decisions if this is contrary to the security interests of the State.

4.9.2. The Committee considers that this measure would leave the person concerned unable to defend themselves at law. This paragraph should therefore be deleted.

4.10. Article 30

4.10.1. Paragraph (1) states that Member States may not ban persons covered by this directive from their territory for life. Accordingly the second paragraph enables those citizens who have been expelled to submit a new application for leave to enter.

4.10.2. Referring back to its comments in point 4.6 on Article 25(2), the Committee believes that persons convicted of crimes of the gravity of those referred to in this point should be excluded from the scope of this article.

4.11. Article 31

4.11.1. This article lays down the conditions which the host Member State must respect if it wishes to issue an expulsion order as a penalty or legal consequence.

4.11.2. As for the previous point, the Committee considers that this safeguard should not apply to persons convicted of crimes of this gravity.

Brussels, 24 April 2002.

The President

of the Economic and Social Committee

Göke Frerichs

(1) COM(98) 403 final.

(2) COM(1999) 127 final.