WRITTEN QUESTION E-0189/98

by Cristiana Muscardini (NI) to the Commission

(5 February 1998)

Subject: Residence permit

Regulation 1612/68(1), which makes possession of a residence permit compulsory for all Community citizens residing in another Member State, creates serious obstacles to the implementation of freedom of movement and is incompatible with the principles underlying the Schengen agreements, recently ratified by Italy too, in particular Article 2 of the Convention, which specifies that internal borders may be crossed without any border checks.

Can the Commission say how it intends to reconcile the obligation to possess a residence permit maintained by many Member States with the principle of freedom of movement and the provisions of the Schengen Convention?

Does the Commission not consider that the time has come to prevail upon the Member States to stop making residence permits compulsory?

Does the Commission not intend to consider national passports as sufficient entitlement to allow Union citizens to travel and move to other countries in the Union?

Answer given by Mr Monti on behalf of the Commission

(6 May 1998)

Three aspects of this matter need to be distinguished: the residence permit introduced by Community law for Union citizens wishing to reside in a Member State for a period of more than three months; the possible requirement under national law to carry this residence permit at all times in public and the checks to ensure compliance with this requirement within the territory of the country concerned; and the checks that can be carried out at frontier-crossing points.

Under Community law, a residence permit has to be issued to Union citizens wishing to reside in a Member State for a period of more than three months (see in particular Article 4(2) of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families(2) and Article 4(1) of Council Directive 73/148/EEC of 21 May 1973 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(3)). According to the case-law of the Court of Justice, the residence permit constitutes a declaratory act in a respect of a right deriving from the EC Treaty.

Secondary Community legislation does not contain any requirement for Union citizens to carry the residence permit at all times in public. However, Community law does not prohibit a Member State from requiring Union citizens, in a non-discriminatory manner vis-à-vis citizens of the Member State concerned, to carry identity or travel documents or their residence permit when in public and to introduce penalties that comply with the principle of proportionality for infringements of that requirement. As the Court of Justice confirmed in its judgment in Commission v Belgium,(4)"Community law does not prevent a Member State from checking, within its territory, compliance with the obligation imposed on persons enjoying a right of residence under Community law to carry their residence or establishment permit at all times, where an identical obligation is imposed on its own nationals as regards their identity card."

In accordance with Community law, Member States are required to allow Union citizens to enter their territory simply on production of a valid identity card or passport (see Article 3(1) of the aforementioned Directives). In principle, therefore, Community law prohibits administrative measures imposing in a general manner frontier formalities other than simple production of a valid identity card or passport.

As regards controls on compliance with the requirement under national law for Union citizens to carry their residence permit when crossing frontiers, the Court of Justice held in the above judgment that, provided such checks are not a condition for entry into the national territory, in other words, do not result in individuals being turned away, their prohibition does not derive from Community law. The Court of Justice added that, depending on the circumstances, the carrying-out of such checks upon entry into the territory of a Member State may, however, constitute a barrier to the fundamental principle of the free movement of persons. That would be the case in particular if it were found that the checks were carried out in a systematic, arbitrary or unnecessarily restrictive manner.

Since the objective of discontinuing checks on individuals has not yet been achieved within the Union, the aforementioned principles of Community law still apply.

As for the Schengen Convention, Article 2(3) stipulates that the abolition of checks on persons at internal frontiers must not prejudice either the exercise of public-order powers by the competent authorities under the legislation of each contracting party throughout its territory or the requirements that persons should possess, carry and produce documents provided for by its legislation.

(1) OJ L 257, 19.10.1968, p. 2.

(2) OJ L 257, 19.10.1968.

(3) OJ L 172, 28.6.1973.

(4) Case 321/87 [1989] ECR 997.