Proposal for a COUNCIL DIRECTIVE on the right of residence for students
Date: 1993-05-14
Institutions: European Commission
Subjects: EU national, administrative formalities, free movement of persons, residence permit, student

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) 

Ik? 1 » 

6*" 

—  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: 

its  appeal,  intended  simply  to  secure 
Parliament,  through 
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. 

laid  down  in  particular  in  Directive  68/360/EEC  flhnd 
Directive  64/22\/\UlC(l); 

r e g a rd 

t he 
H a v i ng 
E u r o p e an  E c o n o m ic  C o m m u n i t y,  a nd  in  p a r t i c u l ar 
t h e r e o f. 
t he  s e c o nd  p a r a g r a ph  of  A r t i c le  7  §  2 

t he  T r e a ty  e s t a b l i s h i ng 

to 

H a v i ng 
Commi ss  i o n, 

r e g a rd 

to 

t he 

pr  o p o s aI 

f r om 

t he 

In  c o o p e r a t i on  w i th 

t he  f u r o p e an  P a r l i a m e n t. 

H a v i ng 
r e g a rd 
and  S o c i al  C o m m i t t e e. 

to  t he  o p i n i on  of 

t he  E c o n o m ic 

Whereas  A r t i c le  3 (c) of  t he T i e a ty  provides  that  (he acti-
viiies  of  t he C o m m u n i ty  shall  i n c l u d e,  as p r o v i d ed  in the 
Tieaty, 
t he  a b o l i t i o n,  as  between  M e m b ei  States,  ol 
obstacles  to  f r e e d om  of  m o v e m e nt 

for  persons  ; 

Whereas  A r t i c le  8a  of  t he  T i e a ty  provides 
that  t he 
internal  market  must  be  established  by  31  December 
1 9 9 2;  wheieas  t he  i n t e r n al  market  c o m p i i s es  an  aiea 
i n t e r n al  f r o n t i e is  in  w h i ch  t he free  m o v e m e nt  of 
w i t h o ut 
goods,  persons,  services  a nd capital  is  ensured  in  accor 
dance  w i th  t he  p t o v i s i o ns  ol  t he  Treaty  ; 

J u s t i ce  h as 

W h e r e a s,  as  t he  C o u rt  of 
A r t i c l es  128  a nd  7  of 
d i s c r i m i n a t i on  b e t w e en  n a t i o n a ls  of 
S t a t es  as  r e g a r ds  a c c e ss 
in 
n a t i o n al  of  o ne  Meinbei 
t i o i n i ng 
n a t i o n a l, 
t h at 
ot  hei  Membei  St .i t e ; 

r u l e d. 
t he  T r e a ty  p r o h i b it  a ny 
t he  Member 
t r a i n i ng 
a c c e ss  by  a 
v o c a t i o n al 
f oi 
t h at 

in  a n o t h er  Member  S t a te 
a  r  i<jht  of 

i m p l i e s, 
in 

t he  Community 

to  v o c a t i o n al 

arid  w h e i e as 

r e% i d e n ce 

S t a te 

to 

a c c o r d i n g l y, 

W h e i e a s, 
a c c e ss 
l i k e ly 
r i g ht  of  r e s i d e n ce  s h o u ld  he  l a id  d o w n; 

to  v o c a t i o n al 
to  f a c i l i t a te  e f f e c t i ve  e x e r c i se  of 

t r a i n i n g, 

o r d er 

t he 

in 

to  g u a r a n t ee 
c o n d i t i o ns 

t h at 

Wheieas  t i n'  l i g ht  ot  lesidence  f<M  students  f o i ms  pait  of 
a  set ol  lelated  measures  designed  to  p i o m o te  vocational 
t i a m mg  . 

Whereas  benelictanes  ol  t he  l i g ht  ol  i c s i d e n cc  must  not 
bet  ome  an unieasoiiable  b m d en  on t he p u b l ic  Imances of 
die  host  M e m b ei  State , 

Wheieas,  in  the  ptesenl  slate  of  C o m m u n i ty  law, assis 
tance  granted  to students,  as established  by t he  case  law  of 
the  Court  of Justice,  does  n ot fall  w i t h in  t he scope  of  t he 
Treaty  w i t h in  t he  m e a n i ng  of  A r t i c le  7 

t h e r e o f; 

Wheieas  the  t i g ht  of  tesidence  c an  o n ly  be  g e n u i n e ly 
exercised  if  it  is  granted  to  t he spouse  a nd t h e ir  d e p e n 
dent  c h i l d r en  ; 

t h is  D i r e c t i ve  s h o u ld  be 
Wheieas  t he  benelicianes  of 
covered  by  a d m i n i s t r a t i ve  a r r a n g e m e n ts  s i m i l ar  to  those 

this  D i t e c t i ve 

W l u i e as 
iloes  not  a p p ly  to  students w ho 
enjoy  the l i g ht  ol  i c s i d e i we  by v i r t ue  of t he fact  that  they 
aie  oi  have  been  e f l c c h v c lv  engaged  in  e c o n o m ic  activi 
ties  oi  aie  m c m h e is  ol t he f a m i ly  of a m i g r a nt  w o r k er  ; 

w h e r e a s,  by  i ts 
C - 2 9 5 / 9 0. 
D i r e c t i ve 
r i g ht 
m a i n t a i n i ng 
D i r e c t i ve 
d i r e c t i ve 
bas  i  s. 

of 

i u I i ng  of  7  J u ly  1992  in  Case 
t he  C o u rt  of  J u s t i ce  a n n u l l ed  C o u n c il 
9 0 / 3 6 6 / C EC  of  28 

r e s i d e n ce 

f or 

t he 

e f f e c ts 
u n t il 
t he  e n t ry 
a d o p t ed  on  t he 

June  1990  on  t he 
w h i le 
a n n ul l ed 
f o r ce  of  a 

s t u d e n t s, 
t he 

i n to 

of 

appropr iate  legaI 

HAS  ADOPTED  THIS  D I R E C T I V E: 

Art icle 1 

facilitate 

Member  States  shall  take  the measures  necessary 
to 
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 
that  he  has  sufficient 
least 
resources  to  avoid  becoming  a  burden  on the 
social  assistance  system  of  the  host  Member 
State 
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. 

period  of 

equivalent, 

during 

their 

A  ft  n !<•  2 

The  light  of  residence  shall  be  restricted  to  the  dura 

l 
tion  ol  the  course  of  studies  in  question. 

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. 

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. 

Articles  2,  3  and  9  of  Directive  6 8 / 3 6 0 / E EC  shall 
this 

the  beneficiaries  of 

to 

2. 
apply  mutatis  mutandis 
Directive. 

The  spouse  and  the  dependent  clnldien  of  a  national  of  a 
Member  Slate  entitled  to  the  light  of  i c s i d e i ue  within  the 
to  take  uj> 
territory  of  a  Member  State  shall  be  entitled 
any  employee!  ot  self-employed  activity  anywhere  within 
the  territory  of  that  Membei  State,  even 
if  they  are  not 
nationals  of  a  Member  State 

the  provisions  of 
Member  States  shall  not  derogate  from 
this  Directive  save  on  grounds  of  public  policy,  public 
security  or  public  health  :  in  that  event,  Articles  2. to  9  of 
Directive  6 4 / 2 2 1 / E EC  shall  apply. 

Vtt..S',-:-\' 

< - (" 

yearly  intervals  thereafter,  draw  up  a  report  on  the  appli 
cation  of  this  Directive  and  submit 
it  to  the  European 
Parliament  and  the  Council. 

to  which 

to  any 
The  Commission  shall  pay  particular  attention 
difficulties 
implementation  of  Article  1 
the 
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  b u ng  into  force  the  law,  regulations 
to  comply  with 
and  administrative  provisions  necessary 
this  Directive  not 
later  than  30  June  1992.  They  shall 
forthwith 

the  Commission 

thereof. 

inform 

Article 

.? 

This  Directive  shall  not  establish  any  entitlement  to  the 
payment  of  maintenance  grants  by  the  host  M e m b er  State 
on  the  part  of  students  benefiting  from  the  right  of  resi 
dence. 

W h en  M e m b er  States  adopt  these  provisions,  these  shall 
contain  a  reference 
this  Directive  or  shall  be  ac 
companied  by  such  reference  at  the  time  of  their  official 
publication.  T he  procedure  for  such  reference  shall  be 
adopted  by  M e m b er  States. 

to 

Art  tile  4 

The  right  of  residence  shall  remain  for  as  long  as  benefi 
in 
ciaries  of  that  right  fulfil 
Article  I. 

the  conditions 

laid  down 

ArtnU-  5 

three  yeais  after 
The  Commission  shall,  not  more  than 
the  date  of  implementation  of  this  Directive,  and  at  three-

Article  ? 

This  Directive  is  addressed  to  the  Member  States. 

\ 

ISSN 0254-1475 

COM (93) 209 final 

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