Report from the Commission to the Council and the European Parliament on the implementation of Directives 90/364, 90/365 and 93/96 - (Right of residence)
Date: 1999-03-17
Institutions: DG XV – Internal Market and Financial Services, European Commission
Subjects: EU national, discrimination on the basis of nationality, free movement of persons, freedom of movement, health insurance, non-working population, residence permit, retired person, self-employed person, student

COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels,  17.03.1999 
COM(1999)127  final 

REPORT FROM THE COMMISSION TO THE COUNCIL 
AND THE EUROPEAN  PARLIAMENT 

ON THE IMPLEMENTATION OF DIRECTIVES 
W J I1!;  ^ • F 3 %9  MM  93(96 

(RIGHT OF RESIDENCE) 

SUMMARY 

Freedom  of movement was originally limited to people exercising an economic activity.  At the 
end of a lengthy process, this right was extended to all Member State nationals, even those who 
were not  economically  active.  These extended  rights  are contained  in three Directives  adopted 
on  28  June  1990  on  the  right  of  residence  of  students,  retired  persons  and  other  non-
economically-active  persons.  Subject  to  certain  conditions,  the  extension  of  the  right  of 
residence  was  formally  enshrined  in  the  Maastricht  Treaty.  The  inclusion  of  Article  8a in  the 
EC Treaty gives every citizen the fundamental  and personal right to move and reside within the 
territory of the Member States. However, the conditions and practical procedures relating to this 
right, as laid down in secondary legislation, continue to apply. 

This report  aims to provide an assessment of the implementation  of the three Directives on the 
right  of  residence  of  students,  retired  persons  and  other  persons  not  engaged  in  an  economic 
activity. 

The first part of the assessment focuses on the transposition of the Directives. 

The  first  point  of note  is that  the transposition  process  itself was  long  drawn  out.  Only  three 
Member  States  had  transposed  the  Directives  by  the  deadline  of  30  June  1992.  The 
Commission  brought  infringement  proceedings  against  the  other  Member  States  for  non-
transposition,  which  were  subsequently  terminated  once  the  transposition  measures  were 
adopted. 
In  the  case  of  one  Member  State,  however,  the  infringement  proceedings  were 
referred to the Court of Justice, which ruled against that country in 1997. 

infringement  proceedings  against 

With  regard  to  the  content  of  the  transposition  measures,  the  Commission  was  obliged  to 
commence 
incorrect 
transposition,  an abnormally high dispute rate in view  of the measures concerned.  Most  of the 
proceedings were terminated, some more quickly than others, after  the Member States amended 
their legislation.  However,  the  Commission  was  obliged  to  refer  the proceedings  against  two 
Member States to the Court of Justice in 1998. 

fourteen  Member  States 

for 

The  second  part  of  the  assessment  of  the  implementation  of  the  Directives  deals  with  the 
experiences of the players involved, i.e. the citizens and administrations in the Member States. 

The complaints received  by the  Commission  and petitions to the European  Parliament  provide 
valuable information  about the difficulties  encountered by citizens  arising from the  application 
of  the  Directives.  These  difficulties  include  uncertainty  with  regard  to  the  procedures  to  be 
followed,  the  length  and  complexity  of  the  steps  required  to  obtain  a  residence  permit,  and 
difficulty  in meeting the conditions with regard to sickness insurance and resources. 

The  administrations  themselves  are  often  unsure  about  the  provisions  to be  implemented  and 
have  difficulty  in  assessing  the  conditions  to  be  met  in  terms  of  resources  and  sickness 
insurance in particular. 

The  Commission  has  drawn  preliminary  conclusions  in  the  following  four  areas  from  its 
assessment of the implementation of the three Directives: 

- step up the effort  to inform  citizens; 
- continue to ensure strict compliance with existing Community law; 

-  make  Community  legislation  on  freedom  of movement  of  persons  clearer  and  restructure  it 
around the notion of Union citizenship; 
- begin discussions on substantive changes to existing legislation. 

Introduction 

Free  movement  of  persons  includes  the  right  to  enter,  move  within,  reside  and,  where 
appropriate,  remain  in  a Member  State  other than  the country  of which  the  Community 
national is a citizen. In exercising this right, any discrimination on grounds of nationality 
is prohibited.  Originally, however,  the right of a national  of a Member  State to reside in 
the territory  of another Member  State of the European  Community was basically  subject 
to  that  person  engaging  in  an  economic  activity  in  that  State.  The  right  of  residence 
therefore  followed  on from  the right to engage in an economic activity.1 

But such a state of affairs  could not be allowed to continue indefinitely, because it did not 
fully  comply  with  one  of the  objectives  laid  down  in  Article  3c  of  the  Treaty  of  Rome 
("the  abolition,  as  between  Member  States,  of  obstacles  to  the  free  movement  of  ... 
persons"), nor did it meet the political  aspiration  expressed  at the Paris  Summit  in  1974 
to move towards a "citizens' Europe".2 

Building  on  this  new  perception  of  the  freedom  of  movement  of  persons,  the 
Commission  put  forward  a  proposal  in  19793 to  extend  the  right  of  residence  to  other 
categories  of persons who  were not  engaged  in  any economic  activity,  seeing this  as an 
important  step  towards  the  completion  of  the  Internal  Market.  But  it  was  the  impetus 
provided by the preparation and adoption of the Single European Act that was to generate 
the conditions necessary  for the  successful  outcome of this process  some ten years  later. 
After withdrawing its  1979 proposal, the Commission split up the dossier and in  1989 put 
forward  three  new  proposals4  covering  students,  retired  persons  and  other  persons  not 
engaged in an economic activity5, culminating in the adoption by the Council on 28 June 
1990 of Directives  90/364 on the right  of residence6,  90/365  on the right  of residence  of 
employees  and  self-employed  persons  who  have  ceased  their  occupational  activity7  and 
90/366 on the right of residence for students.8 

This extension in secondary legislation of the categories of persons entitled to the right of 
residence was  subsequently  formally  enshrined  at  EC  Treaty  level  with  the  insertion  of 
Article  8a into the Maastricht  Treaty, which  states that  "every  citizen  of the Union  shall 
have the right to  ... reside freely within the territory of the Member  States, subject  to the 
limitations and conditions laid down in this Treaty and by the measures adopted to give it 
effect". 

1 See, for example, Art. 48(3) of the EEC Treaty. 
2  See the Report  from  the  Commission  on  the  Citizenship  of  the  Union,  21.12.1993, COM(93)702  final, 

Section II. 

3 COM(79)215 final, OJ C 207, 17.8.1979, p. 14. 
4 OJC  191, 28.7.1989. 
5  The  term  "other  non-economically-active  persons"  is  used  throughout  this  report  to  refer  to  the 

beneficiaries  of Directive 90/364. 

6O J L 1 8 0,  13.7.1990, p. 26. 
7 OJL  180, 13.7.1990, p. 28. 
8OJL180,  13.7.1990, p. 30. 

4 

Article 8a thus establishes the right of residence  as a fundamental  and personal right9 but 
does  not  cancel  previously  adopted  secondary  legislative  instruments,  in  particular 
Directives  90/364,  90/365  and  Directive  93/9610 which  replaced  Directive  90/366  after 
that Directive was annulled by the Court of Justice.11 

Apart  from  the  right  of  residence,  more  general  reference  should  be  made  to  the 
importance  of  the  status  of  European  citizen  reflected  in  Article  8(2), also  incorporated 
into  the  EC  Treaty  by  the  Maastricht  Treaty,  under  which  "citizens  of  the  Union  shall 
enjoy  the  rights  conferred  by  this  Treaty  and  shall  be  subject  to  the  duties  imposed 
hereby".  One  of  the  essential  rights  in  this  respect  is,  as  the  Court  of  Justice  recently 
reiterated12,  that  laid  down  in  Article  6  of  the  Treaty  of  not  being  subject  to 
discrimination  on grounds of nationality within the scope of application ratione  materiae 
of the Treaty. 

This report has been produced by the Commission in fulfilment  of its obligation to report 
to  the  European  Parliament  and  the  Council  on  the  application  of  the  three  Directives 
aimed at extending the right of residence to all Community nationals, even if they are not 
engaged  in  an  economic  activity,  provided  that  they  have  sickness  insurance  and 
sufficient  resources  to  avoid  becoming  a burden  on  the  social  assistance  system  of  the 
host Member State. 

It  should  be  noted  that  the  three  Directives  also  apply  in  the  European  Economic  Area 
and that the EFT A Surveillance Authority is in the process of drawing up a report  on the 
application of the Directives in Norway, Iceland and Liechtenstein. 

This  Commission  report  on  the  implementation  of  the  above-mentioned  Directives 
contains four sections: 

1. a brief summary of the content of the Directives; 
2. an examination  of their transposition  into national  law  from  the point  of view  of both 
the deadlines involved and the content of the national measures adopted; 
3. an analysis of the practical application of the Directives based on information  provided 
by  the  players  involved:  the  citizens  of  the  Union  and  the  authorities  responsible  for 
residence matters; 
4.  an  assessment  of  the  application  of the  Directives  on  the  right  of  residence,  with  an 
outline  of  areas  for  future  discussion  and  action  to  ensure  that  the  right  of  residence 
works better in the  future. 

10 See second report from  the Commission  on Citizenship of the Union, 27.5.1997, COM(97) 230 final, p. 

14. 

11 Judgment of 7.7.1992, Case C-295/90, ECR  1992, p. 1-4193. 
12 Judgment of  12.5.1998, Case C-85/96, ECR  1998, p. 1-2691. 

5 

1. The content of the Directives 

1.1. Retired persons and other non-economically-active  persons: 

Directives  90/365  and  90/364  extend  the  right  of residence  to  retired  persons  and  other 
non-economically-active  persons  subject  to  two  conditions:  that  they  have  sufficient 
resources to avoid becoming a burden on the social assistance system of the host Member 
State during their period  of residence, and that they  are covered by sickness insurance in 
respect  of  all  risks  in  the  host  Member  State  (Article  1(1),  first  subparagraph).  Their 
resources  are  deemed  sufficient  if  they  exceed  the  threshold  for  social  assistance 
applicable in the host Member State (Article  1(1), second subparagraph). 

The family members entitled to accompany the holder of the right  of residence are his or 
her spouse and their dependants in the descending or ascending line (Article 1(2)). 

The validity of the residence permit may be limited to five years, and the Member  States 
may, when they deem it to be necessary, require "revalidation" of the permit  at the end of 
the  first  two  years  of  residence  (Article  2).  By  reference  (in  Article  2)  to  various 
provisions  of Directive  68/360,13 the residence permit  is valid throughout  the territory  of 
the Member State, its validity  is not affected  by breaks in residency of not more than  six 
consecutive months, it is issued free  of charge or at a cost which must not exceed the cost 
of the identity card issued to nationals of the host Member State, and the visas required, if 
need be, for  family  members who  are not nationals of a Member  State are issued  free  of 
charge and without undue  formalities. 

Irrespective  of  their  nationality,  the  holder's  spouse  and  dependent  children  shall  be 
entitled to take up any employed  or self-employed  activity anywhere within the  territory 
of the host Member State (Article 2). 

The right of residence  shall remain  for  as long as the beneficiaries  of that  right  continue 
to  satisfy  the  requirements  with  regard  to  sufficient  resources  and  suitable  sickness 
insurance (Article 3). 

1.2. Students: 

Before  examining  the provisions  of Directive 93/96, a brief  summary  of the case-law  of 
the Court of Justice pertaining to the legal basis  for  the right of residence  for  students  is 
required. 

The basis for the right of residence for students: 

The wording used by the Council in Directive 90/366 ("Member  States shall... grant the 
right  of  residence  to  any  student")  differs  from  the  wording  used  in  the  Commission's 
1989 proposal ("the Member States shall recognise the right of residence"). In the light of 
the  Gravier  judgment14, the  Commission  took  the  view  that  students  had  a  right  of 

13 Council Directive of  15 October  1968 on the abolition of restrictions on movement  and residence  within 

the Community for workers of Member States and their families, OJ L 257, 19.10.1968. 

14 Judgment of  13.2.1985, Case 293/83, ECR  1985, p. 593. 
6 

residence  deriving  from  the  prohibition  of  any  discrimination  between  Member  State 
nationals with regard to vocational training  access, and it therefore  amended  its proposal 
to exclude students from the scope of the Directive15. After Directive 90/366 was annulled 
by  the  Court  of  Justice16,  the  Commission  reinserted  the  same  wording  in  its  1993 
proposal17  as it had  used  in  its  1989 proposal  (the  Member  States  "shall  recognise"  the 
right  of  residence).  The  Commission  was  backed  up  in  its  choice  of  wording  by  the 
Raulin judgment  of 26 February  199218, where the Court of Justice ruled  that  "a national 
of  a Member  State who  has been  admitted  to  a course  of  vocational  training  in  another 
Member  State derives from  Community  law a right to reside in that  other Member  State 
for the purpose  of following  that course  and for  the duration thereof.  Council  Directive 
93/96  takes  up  this  notion  of  entitlement,  whence  the  wording  that  the  Member  States 
"shall recognise" the right of residence. 

The provisions on the right of residence contained in Directive 93/96: 

The  right  of  residence  is  subject  to  the  condition  that  the  student  is  enrolled  in  a 
recognised educational establishment  for the principal purpose of  following  a vocational 
training course there and that he is covered by sickness insurance  (Article  1). As regards 
resources, the student may choose to make a straightforward  declaration (Article 1). 

The right of residence is extended to the student's spouse and dependent children, but not 
to other family members (Article 1). 

The  validity  of  the  residence  permit  may  be  limited  to  the  duration  of  the  course  of 
studies or to one year where the course  lasts longer  (Article 2(1)). Reference  is made to 
Directive  68/360 with regard  to  the  cost  of the residence  permit  and the procedures  for 
issuing visas to family members (Article 2(2)). 

The spouse and dependent children are entitled to take up any employed or  self-employed 
activity anywhere within the territory of the host Member State (Article 2(2)). 

By implicit reference  to the case-law of the Court of Justice, it is stipulated that  students 
may not,  on the basis  of the Directive, claim  the payment  of maintenance  grants by  the 
host Member State (Article 3). 

The  right  of  residence  shall  remain  for  as  long  as  beneficiaries  of  that  right  fulfil  the 
conditions laid down in Article  1 (Article 4). 

15 COM(85)292 final, OJ C  171, 10.7.1985, p. 8. 
16  The  Court  of  Justice  ruled,  as  the  European  Parliament  had  maintained  in  its  application  and  the 
Commission had held in its statement in intervention, that the Directive should have been based on the 
second  paragraph  of Article  7 of  the  Treaty  and  not  on  Article  235, the  legal  basis  on which  the 
Council had approved the Directive.  See footnote  11 above. 

17  COM(93) 209 final 
18  Case C-357/89, ECR  1992 1-1027. 

7 

2. Transposition of the Directives into national law 

Following  an examination  of the transposition  measures  adopted by the Member  States, 
the  Commission  was  obliged  to  launch  infringement  proceedings  against  almost  all 
Member  States  for  incorrect  transposition  of  one  or  more  provisions  of  Directives 
90/364, 90/365 and 93/96. 

2.1.  Adherence to the deadline for transposition laid down in the Directives 

Pursuant  to  Article  5 of Directives  90/364, 90/365  and  90/366, the Member  States  were 
required to bring into force the laws, regulations  and administrative provisions  necessary 
to comply with the Directives not later than 30 June  1992. 

Only  three  Member  States  (the Netherlands,  Denmark  and  Spain)  met  the  deadline  laid 
down  in  the Directives,  adopting  their  transposition  measures  during the month  of  June 
1992. 

The Commission commenced  infringement  proceedings  against the other Member  States 
for non-transposition, and letters of formal notice were sent to them in October  1992. 

The  infringement  proceedings  were  limited  to  Directives  90/364  and  90/365  in  view  of 
the action for annulment of Directive 90/366 instituted by the European Parliament  on 28 
September  1990. 

Following the letters of formal notice, the infringement  proceedings for  non-transposition 
of Directives  90/364  and  90/365  progressed  at  variable  speeds  in  the  different  Member 
States. The Commission  decided  to terminate  the proceedings  as and when the  Member 
States adopted the transposition measures19. 

However,  the  proceedings  against  Germany  were  not  terminated.  When  no  satisfactory 
reply  was  received  from  Germany  to  the reasoned  opinion  delivered  to  it  in  September 
1993, the Commission referred  the matter to the Court of Justice on 24 March  1995. The 
German  Government  considered  that  there were no  grounds  for  the  action,  emphasising 
that  Paragraph  2(2)  of the Ausldndergesetz  (Law  on Foreigners)  evoked  the primacy  of 
Community  law  over national  law. It  also pointed  out  that  the competent  administrative 
authorities  in  the  Lander  had  been  informed  of  the  need  to  comply  fully  with  the 
Directives. 

In a judgment  delivered on 20 March  199720, the Court of Justice ruled  against  Germany 
for  not  adopting  within  the  prescribed  period  the  laws,  regulations  and  administrative 
provisions necessary for transposing into national law Directives 90/364 and 90/365. The 
Court  fully  concurred  with  the  arguments  put  forward  by  the Commission  in the  course 
of the proceedings.  The  Court  thus  ruled  that  "the  mere  fact  that  Paragraph  2(2)  of  the 
Ausldndergesetz  contains  a  general  reference  to  Community  law  does  not  amount  to 
transposition 
the  actual 
implementation  in  full  of  Directives  90/364  and  90/365, both  of  which  are  intended  to 

in  a  sufficiently  clear  and  precise  manner 

ensuring 

19 The  dates  on  which  the  transposition  measures  were  adopted  are  given  in  the  table  in Annex  1 to  this 

report. 

20 Case C-96/95, Commission v Germany, ECR  1997,1-1653. 

8 

confer  rights  on nationals  from  other Member  States"  (para.  36), and  observed  that  "the 
fact  that  the  competent  national  administrative  authorities  were  informed  of  the 
implications  of the two Directives  in question cannot be regarded  as satisfying,  by  itself, 
the requirements  of publicity,  clarity  and certainty  as to the legal  situations governed  by 
those Directives" (para. 39). 

In  the  case  of  Austria,  Finland  and  Sweden,  their  obligations  under  the  European 
Economic  Area Agreement  which  entered  into  force  on  1 January  1994 meant  that  they 
should have transposed the Directives prior to joining the European Union  on  1 January 
1995. 

On  the  right  of  residence  for  students,  after  the  Court's  judgment  of  7  July  199221 
annulling  Directive  90/366,  the  Commission  was  obliged  to  review  the  question  of 
bringing possible infringement  proceedings for  non-transposition. 

Given  that  the  Court  had  specified  in  its judgment  that  the  effects  of Directives  90/366 
were to be maintained  on a provisional basis until it was replaced by a Directive with an 
appropriate  legal  basis, the  Commission  considered  that  the  obligation  to  transpose  the 
Directive remained in spite of its formal  annulation. At the beginning  of April  1993, the 
Commission  sent  letters  to  the  Member  States  which  still  had  not  transposed  Directive 
90/366  informing  them  of  its  intention  to  commence  infringement  proceedings  against 
them. The adoption by the Council on 29 October  1993 of Directive 93/96 on the right of 
residence  of  students22,  the  content  of  which  was  almost  identical  to  that  of  Directive 
90/366  which  it  replaced,  gave  rise  to  a  novel  situation  with  regard  to  the  opening  of 
infringement  proceedings for non-transposition: from that date on the Commission had to 
base its action on the new Directive 93/96 which, in accordance with its Article 6, was to 
be transposed by 31 December 1993. 

In  February  1994, the  Commission  sent  a letter  of  formal  notice  to  Germany,  Belgium 
and  France, the only Member  States which  still had not transposed  the  Directive  on  the 
right  of  residence  for  students.  The  proceedings  against  Belgium  and  France  were 
terminated  in  1994 and  1995 respectively.  A reasoned  opinion  was  sent  to  Germany  in 
July  1995,  followed  by  a  supplementary  reasoned  opinion  in  October  1996.  The 
proceedings  were  only  terminated  in  1997,  following  the  entry  into  force  of  the 
Verordnung (Decree) of  17 July  1997. 

Apart  from  Denmark,  Spain  and  the  Netherlands, which  fulfilled  their  obligations 
within  the  prescribed  periods,  all  the  other  Member  States23  lagged  behind  to 
varying  degrees  in  transposing  Directives  90/364,  90/365  and  90/366-93/96,  despite 
the small number of provisions  involved  and the lack of specific  legal  difficulties  in 
transposing  them  into  national  law.  This  reluctance  on  the  part  of  the  Member 
States  to transpose  the Directives  and  consequently  to  extend the  right of  residence 
to new categories of persons is probably  linked to the legacy  of the past.  For thirty 
years,  the  freedom  of  movement  of  persons  was  managed  from  an  economic 

21 

See footnote  11 above. 
22 See footnote  10 above. 
23 In this case the "old" Member States, the Twelve. 

perspective,  and  this  notion  of  functional  mobility  has  proved  an  obstacle  to  the 
emergence  of  a  personal  right  to  freedom  of  movement,  independent  of  economic 
considerations. 

2.2.  Compliance of the transposition  measures with the Directives 

2.2.2. Incorrectly transposed provisions: 

-  The  types  of  resources  and  supporting  documentation  required  of  retired  persons  and 
other non-economically-active persons: 

The  first  subparagraph  of  Article  1(1)  of  Directives  90/365  and  90/364  states  that  the 
right of residence of the persons concerned  (retired persons and  non-economically-active 
persons respectively)  is subject  to the requirement  that they  "have  sufficient  resources to 
avoid becoming a burden on the social assistance system of the host Member State during 
their  period  of  residence".  Subparagraphs  2  and  3  deal  with  the  method  to  be  used  to 
determine the level  above which  the resources  are to be  deemed  sufficient.  Nowhere  do 
the Directives  specify  what  types of resources  are to be taken into  consideration,  nor  do 
they  mention  what  supporting  documentation  can  be  required  by  the  competent 
authorities. 

In  view  of  the wording  of  Article  1(1)  of  Directives  90/365  and  90/364,  and  given  the 
fact  that  the  Directives  contain  provisions  which  allow  the  host  Member  States  to 
effectively  check on the ongoing  availability of resources and to take action in the  event 
that  the  persons  concerned  no  longer  have  sufficient  resources,  the  Commission  holds 
that Article  1(1) of the Directives is not correctly transposed by national measures which 
arbitrarily limit the types of resources that can be taken into account or impose excessive 
demands with regard to the types of supporting documentation  accepted. 

The  Commission  commenced  infringement  proceedings  against  those  Member  States 
(France and Italy) which in its view had incorrectly transposed Article  1(1) of Directives 
90/365 and 90/364 to varying degrees. 

-  Revalidation  of  the  residence  permits  of  retired  persons  and  non-economically-active 
persons: 

Article  2(1)  of  Directives  90/364  and  90/365  states  that  the  right  of  residence  shall  be 
evidenced  by  means  of  the  issue  of  a  residence  permit,  the  validity  of  which  may  be 
limited to five years, and specifies that "the Member States may, when they deem it to be 
necessary,  require  revalidation  of  the  permit  at  the  end  of  the  first  two  years  of 
residence". 
Drawing on the preparatory work for the Directives, the Commission  sees revalidation  as 
an opportunity for the competent authorities in the host Member States to check up on the 
administrative position  of certain persons where, at the time of their  initial request  for  a 
residence  permit, there were  doubts  about  their  ability  in the  longer  term  to  continue  to 
meet the sickness insurance  conditions  laid down in Article  1 of the Directives.  In view 
of  this  safeguard,  the  Commission  considered  that  systematic  revalidation  of  the 
residence permits of retired persons and other non-economically-active  persons after  two 
years or imposing a two-year limit on the validity of their residence permits at the outset 

10 

amounted to incorrect transposition  of the Directives.  Furthermore, while restricting  the 
validity  of  residence  permits  to  two  years  was  already  in  itself  contrary  to  the 
Directives,  some  Member  States'  legislation  gave  the  competent  administrative 
authorities the option of applying  such a restriction but provided no guarantees that  such 
a  restriction  would  be  limited  only  to  cases  where  the  person's  sickness  insurance 
position was difficult  to assess at the time of their initial request for a residence permit. 

The  Commission  brought  infringement  proceedings  against  a number  of Member  States 
(Spain,  Greece,  Italy,  Portugal  and  the  United  Kingdom)  for  incorrect  transposition,  to 
varying degrees, of Article 2(1) of Directives 90/364 and 90/365. 

-  Sickness  insurance  cover  for  retired  persons,  non-economically-active  persons  and 
students: 

Article  1 of the three Directives makes the right of residence  subject  to having  "sickness 
insurance  in  respect  of  all  risks  in  the  host  Member  State".  Given  the  very  general 
wording  of  this  provision,  the  Commission  is  of  the  view  that  the  persons  concerned 
should be given a variety of ways of fulfilling  the sickness insurance condition, provided 
of course that they meet the criterion on the level of risks covered. Thus, for example, the 
persons  entitled  to  sickness  insurance  cover  would  include  the  dependants  of  insured 
persons,  and  persons  who  are  members  of  a  private  social  insurance  scheme  either  in 
their country of origin, in the host Member State or in another Member State, etc. 

Infringement  proceedings  were  instituted  against  the  following  countries  for  incorrect 
transposition of the sickness insurance provision in the Directives: 

-  France, because  its  legislation  and  administrative  practice  obliges  students  from  other 
Member  States  to join  the  social  security  scheme  for  students  in France  if they  have  no 
social  insurance  or  are not  dependants  of  an  insured  person  and  are  unable  to  supply  a 
certificate  issued pursuant to Regulations (EEC) No  1408/71 and No 574/72. 

- Luxembourg, whose legislation appeared to be too restrictive with regard to the types of 
sickness insurance that non-economically-active persons could take out. 

- The declaration of students' resources: 

Under  the  terms  of  Article  1 of Directive  93/96, the  Member  States  shall  recognise  the 
right  of  residence  "for  any  student  who  is  a  national  of  a  Member  State  ...  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  least  equivalent,  that  he  has 
sufficient  resources to avoid becoming a burden on ... the host Member State during their 
period  of residence24".  Given  the crystal  clear wording  of this provision,  and  in  view  of 
the background  to it, the Commission  considers that national  transposition  measures  are 
contrary  to  this  provision  where,  for  example,  they  deny  students  the  right  to  make  a 
declaration  of  their  resources,  oblige  them  to  provide  evidence  thereof,  or  require  a 
minimum level of resources which must be backed up in the supporting documentation or 
referred to in the declaration. 

24 The terms are identical to those used in Article  1 of Directive 90/366. 

11 

The  Commission  brought  infringement  proceedings  against  those  Member  States 
(Denmark,  Spain,  Finland,  France, Ireland,  Italy,  Luxembourg,  the Netherlands  and  the 
United  Kingdom)  which,  in  its  view,  had  incorrectly  transposed  Article  1 of  Directive 
93/96 to varying degrees. 

- The formalities relating to the period of stay: 

Directives  90/364, 90/365  and  93/96 refer  to Article  3 of Directive  68/360, which  states 
that  entry into the territory  of the Member  States  shall be  allowed  simply  on production 
of  a  valid  identity  card  or  passport.  As  a rule,  the  authorities  should  not  ask  persons 
entering their territory questions on, for  example, the destination or purpose of their stay, 
or the financial  means at their disposal25. 

In  Finland,  a  provision  in  an  Interior  Ministry  Decree  gave  the  authorities  blanket 
permission  to  check  whether  Member  State  nationals  seeking  to  enter  Finland  met  the 
conditions for residence. 

The  Commission  considered  that  applying  such  a  provision  to  the  beneficiaries  of  the 
three Directives was contrary to Community law. 

- The residence permit: 

Article  2  of  the  three  Directives  states  that  exercise  of  the  right  of  residence  shall  be 
evidenced by means of the issue of a document  called a residence permit.  The residence 
permit is therefore  a separate document and not a stamp in the holder's passport. 
Infringement  proceedings  were  brought  against  Sweden  because,  under  Swedish  law,  a 
stamp in the holder's passport could be used as evidence of the right of residence. 

2.2.3.  The  course  and  outcome  of  the 
transposition: 

infringement  proceedings  for 

incorrect 

When the Commission has initiated infringement  proceedings against a Member  State, it 
has, in principle, followed  one and the same procedure relating to one or more complaints 
relating to one or more of Directives 90/364, 90/365 and 93/96. 

The outcome of the proceedings  is given below, while the summary table in Annex  II to 
the report traces their chronological development, Member State by Member State: 

- Netherlands: the infringement  proceedings were terminated.  It emerged that,  following 
the  new  Decree  on  Foreigners  of  30  December  1993  and  the  1996  amendment  to  the 
Circular on Foreigners, students can now choose to make a declaration of their resources. 

- Greece: on the basis of clarifications provided in response to the letter of formal notice, 
the  proceedings  were  terminated.  The  Greek  authorities  confirmed  that  the  residence 
permits  issued  to  retired  persons  and  non-economically-active  persons  were  valid  for  a 

25 Judgment of 30.5.1991, Case C-68/89, Commission v Netherlands, ECR  19911-2637. 

12 

period  of  five  years  and were  only  subject  to revalidation  in  exceptional  cases, and  that 
instructions had been given to the competent authorities to this  effect. 

-  Denmark:  the  infringement  proceedings  were  terminated  following  the  amendments 
made in Interior Ministry Decree No 684 of 12 July  1996 to the earlier Decree No 761 of 
22  August  1994.  The  outcome  of these amendments  is that  residence  permits  issued  to 
retired  persons  and  non-economically-active  persons  are  valid  for  five  years  and  that 
revalidation is required only where it is deemed necessary. 

-  Spain:  the  proceedings  were  terminated  following  Decreto  Real  No  1710/1997  of  14 
November  1997  amending  Decreto  Real  No  766/1992.  These  amendments  mean  that 
residence permits issued to retired persons and non-economically-active persons are valid 
for five years and that students are entitled to make a declaration of their resources. 

-  Italy:  in  the  absence  of  a  satisfactory  response  to  the  letter  of  formal  notice  and  the 
reasoned opinion, the Commission has referred the matter to the Court of Justice. 

- France: in the  absence of a satisfactory  response to the letters  of formal  notice  and the 
reasoned  opinion,  the  Commission  has referred  the matter  to the  Court  of Justice26.  The 
specific  proceedings  relating  to  sickness  insurance  for  students27  are  at  the  reasoned 
opinion stage. 

-  Ireland:  the  infringement  proceedings  were  terminated  after  entry  into  force  of  the 
European  Communities  (Right  of  Residence  for  Non-Economically  Active  Persons) 
Regulations  1997.  Under the new  legislation,  students  are no longer required to provide 
evidence of their resources. 

-  United  Kingdom:  the proceedings  were  terminated  after  amendments  were  introduced 
in the Immigration  (European Economic Area) (Amendment)  Order  1997.  As a result of 
these  amendments,  students  are  entitled  to  make  a  declaration  of  their  resources,  and 
revalidation  of  the  residence  permits  of  retired  and  non-economically-active  persons  is 
limited  to  cases  where  it  is  deemed  necessary  and  does  not  affect  the  initial  five-year 
period of validity of the residence permit. 

- Portugal; the proceedings were terminated after the enactment of Enabling Law No  8/98 
of  13 February  1998  and  the  Decree  Law  N°  250/98.  The  amendments  made  by  this 
instrument to Decree Law No 60/93 of 3 March  1993 mean that residence permits issued 
to retired and non-economically-active persons are valid for five years. 

-  Luxembourg:  the  infringement  proceedings  were  terminated  after  the  Grand  Ducal 
Regulation of 3 June  1996 amending the Grand Ducal Regulation of 28 March  1972 was 
passed, meaning firstly that students now have the option of making a declaration of their 
resources and are no longer required to provide evidence thereof (this was the case under 
the previous  legislation),  and  secondly  that  non-economically-active  persons  now  have 

26 In the course of the proceedings before the Court of Justice, the Commission was informed  of a Decision 
taken  by France's  Council  of  State  on  3  October  1997 —  GISTI  (Groupe  d'Information  et  de  Soutien 
des  Immigres) -  cancelling  some  of  the provisions  of  the  Decision  of  6 April  1995 which  were  also 
referred  to in the Commission's  action. 

27 See Section 2.2.2 above 

13 

greater  choice in terms of the types of  sickness  insurance  schemes that  they  may  belong 
to. 

-  Finland:  the  infringement  proceedings  were  terminated  following  amendments  to  the 
laws governing checks on persons entering Finland and checks on students' resources. 

-  Sweden: the infringement  proceedings  were terminated  after  the Decree  on  Foreigners 
was  amended:  the  amended  text  removes  the  differences  in  treatment  betweeen  family 
members depending on whether they are nationals of an EEA country or not, and  clarifies 
that residence permits are issued in the form of a separate document. 

-  Germany  and  Austria:  infringement  proceedings  were  initiated  against  these  two 
Member  States  for  incorrect  transposition  of Directives  90/364, 90/365  and  93/96.  The 
proceedings are at the letter of formal notice stage. 

With regard to Belgium, examination  of the transposition measures did not  show up  any 
problem  of  compliance  with  the  provisions  of  Directives  90/364,  90/365  and  93/96 
themselves.  However,  other  infringement  proceedings  relating  to  the  compliance  of 
Belgian legislation with Directive 68/360 on the right of residence of employed persons28 
also  had  implications  for  students,  retired  persons  and  other  non-economically-active 
persons,  since  these  proceedings  related,  among  other  things,  to  Article  4  of  Directive 
68/360  (procedures  and  deadlines  for  the  issue  of  residence  permits  for  employed 
persons), the content of which is similar to Article 2(1) of Directives 90/364, 90/365 and 
93/96.  The proceedings  also  related  to  Article  9  of  Directive  68/360  (cost  of  residence 
permits), to which Directives 90/364, 90/365 and 93/96 specifically  refer. 

The infringement  proceedings resulted in a ruling against Belgium by the Court of Justice 
on  20  February  1997.29 The  Court  of  Justice's  findings  concerning  the  infringement  of 
Directive  68/360 with  regard  to  the procedures  for  issuing  residence  permits  (system  of 
successive registration  certificates)  and the cost of the permits must be  seen  as  applying 
by analogy to students, retired persons and other non-economically-active persons. 

To  comply  with  the  Court's  judgment,  Belgium  amended  its  legislation.30  An 
examination  of  whether  this  new  legislation  complies  with  Directive  68/360  and 
Directives 90/364, 90/365 and 90/366 is under way. 

The  transposition  of  Directives  90/364,  90/365  and  90/366-93/96  gave  rise  to 
infringement  proceedings  against  almost  all  Member  States.  Nevertheless,  the 
Commission  welcomes  the  fact  that  the  vast  majority  of  the 
infringement 
proceedings  had  a  positive  outcome.  The  Member  States  acknowledged  that  the 
Commission's  arguments  were  well-founded,  and  'corrected'  their  transposition 
measures,  some  more  quickly  than  others.  Thus  the  infringement  proceedings  for 
incorrect transposition  were terminated  in ten cases, while two proceedings  are still 

28 See footnote  13 above. 
29 Case C-344/95, Commission v Belgium. 
30  Royal  Decree  of  8 May  1998  amending  the  Royal  Decree  of  8 October  1981  on  the  entry,  residence, 

establishment and deportation of  foreigners. 

14 

under  way,  at letter  of  formal  notice  stage.  Only  in  two  cases  has  the  Commission 
referred the matter to the Court of Justice. 

However,  the  Commission  acknowledges  that  the 
infringement  proceedings 
progressed  quite  slowly  and is aware of the disadvantages of this: for too long, EU 
citizens  have  been  denied  some  of  their  rights  or  been  faced  with  unjustified 
administrative  difficulties  due  to  the incorrect  transposition  of the Directives.  The 
Commission's  decision  to  speed  up  its  internal  procedures  should  mean  that 
breaches of Community law can be stopped more quickly in the future. 

3. Assessment of the practical application of the Directives 

3.1. Citizens' experiences: 

The letters, complaints  and petitions to the European Parliament  which  are passed  on to 
the  Commission  constitute  an  invaluable,  if  incomplete,  source  of  information  for  the 
Commission  departments  on the practical  application  of the Directives. For the  purposes 
of  the  assessment,  the  Commission  also  requested  information  from  institutions  which, 
by virtue  of their work,  are particularly  well  placed  to  collect  data  on  the  experience  of 
students31  and  retired  persons.32  A  survey  was  also  carried  out  of  former  Commission 
staff who, on retirement, went to live in a Member State other than their country of origin 
or  the  country  of  their  last  appointment  prior  to  retirement.  These  various  sources  of 
information,  to which must be added the observations of the Eurojus network of advisors 
as  well  as  information  from  the  Citizens  orientation  services,33  have  highlighted  the 
following  areas as problematic. 

- The resources of retired persons and other non-economically-active persons: 

The  first  difficulty  encountered  by  retired  and  non-economically-active  persons  is  in 
determining the level of resources that they are required to have available. 

Directives  90/364  and  90/365  do  not  lay  down  a  minimum  level  of  resources  but 
establish a mechanism for  determining whether they are sufficient  or insufficient.  It is up 
to the Member  States to  give practical  application  to  this mechanism.  However,  it  turns 
out that most  of the transposition  measures merely repeat  the wording  of the Directives, 
with no  further  specifications,  or refer  to  a provision  in  social  legislation  laying  down  a 
minimum level of resources or allowances which is used to determine whether retired and 
other non-economically-active persons fulfil  the resources condition. 

A  second  difficulty  relates  to  the  supporting  documentation  that  retired  and  non-
economically-active persons must provide as evidence of their resources. 

Quite  apart  from  cases  of  disproportionate  requirements  arising  from  the  incorrect 
transposition  of  the  Directives,34  the  information  sent  by  citizens  to  the  Commission 

31 National Erasmus agencies. 
32 Eurolink Age. 
33 See point 4.1 below 

34 The infringement  proceedings instituted in this regard are discussed in Section 2.2  above 

15 

shows that the competent  administrations  quite often  require evidence of resources  (bank 
statements  for  the preceding months, bank  declaration  showing the  account  balance, tax 
declaration, etc.), which more often than not are excessive in view of the Directives. 

In view of the fact  that the Directives make the right of residence subject to the condition 
of having  sufficient  resources to  avoid becoming  a burden  on the  social  security  system 
of  the  host  Member  State,  and  taking  account  of  the  fact  that  the  assessment  of 
sufficiency  is made by reference to an objective threshold, the Commission considers that 
the national authorities  should only request  evidence of resources up to this threshold.  It 
appears 
the  administrative  authorities 
responsible  for  residence  matters  examine  the  entire  financial  and/or property  situation 
(e.g.  bank  statements  from  the  preceding  months)  of  retired  persons  and  non-
economically-active  persons  applying  for  a  residence  permit.  The  Commission  also 
notes  that  some  supporting  documents  (e.g.  bank  declarations  showing  the  account 
balance)  only  reflect  the  situation  at  a  given  moment  in  time  and  cannot  really  be 
considered as proof that such a level of resources will be maintained in the  future. 

these  disproportionate  situations, 

that 

in 

With  regard  to  the  specific  case  of  beneficiaries  of  Directive  90/365,  the  Commission 
observes that a specific  characteristic of old age and retirement pensions is their stability. 
Thus,  in  the  Commission's  opinion,  requiring  many  types  of  evidence  of  resources  is 
particularly disproportionate in the case of pensioners. 

- The length of residence of retired and non-economically-active persons: 

Some  retired  and  non-economically-active  persons  usually  reside  in  another  Member 
State  for  several months  each year  (for  example  during the winter period). It  seems  that 
many of them do not apply for a residence permit, even when staying for more than three 
months. In most  cases  they  do this to  avoid inconvenient  administrative  procedures  and 
red  tape. It  also  seems  that,  when  the  administrative  authorities  receive  applications  for 
residence  permits  from  people  in  such  situations,  they  only  issue  them  with permits  for 
the duration of their intended period of residence, whereas Article 2 of Directives  90/364 
and 90/365 states that the validity may not be less than five years. 

- Problems linked to the sickness insurance condition: 

It would appear that retired and other non-economically-active  persons quite often  find  it 
hard  to  have  their  sickness  insurance  policies  recognised  by  the  authorities  in  the  host 
Member  State. The people who most often  experience these problems are civil servants35 
and people with a private sickness insurance policy. 

According to information  received recently by the Commission, two Member States went 
so far  as to oblige retired  and other non-economically-active  persons to join the  sickness 
insurance  scheme  of  the  host  Member  State,  even  though  they  already  had  sickness 
insurance cover. This problem is similar to that experienced by students in France.36 

35 The problems  experienced  by  civil  servants  should now  be regarded  as resolved  since  the  adoption  of 
Council Regulation  (EC) No  1606/98  of 29  June  1998 amending  Regulation  (EEC) No  1408/71  and 
Regulation  (EEC)  No  574/72  with  a  view  to  extending  them  to  cover  special  schemes  for  civil 
servants. 

36 See Section 2.2.2 above 

16 

- The level of coverage provided by the sickness insurance policy: 

The  Commission's  attention  has  been  drawn  to  a problem  experienced  by  some  retired 
people who, after moving to another Member State, find out that their sickness benefits  in 
kind  are  more  limited  than  the  benefits  they  were  entitled  to  in  their  Member  State  of 
origin.  This  is  a  reflection  of  the  general  rule  whereby  sickness  benefits  in  kind  are 
provided  in  accordance  with  the  legislation  in  force  in  the  Member  State  of  residence. 
Furthermore,  it  is  often  impossible  to  maintain  benefits  from  supplementary  insurance 
taken  out  previously  in  the  Member  State  of  origin  (insurers'  fears  about  the  extent  of 
their  risk  because  they  do  not  know  what  level  of  benefits  is  provided  in  the  other 
Member State).  Nor is it usually possible to take out such insurance in the Member  State 
where  the retired  person  has just  established  residency  (person  too  old  to  take  out  such 
supplementary insurance). 

- Taxation: 

Some  retired  and  otherwise  economically  inactive  persons  experience  difficulties  in 
understanding the tax implications of their establishment  in another Member State and in 
familiarising  themselves  with  the  characteristics  of  the  taxation  system  in  the  host 
Member  State. A certain number  of complaints have been  addressed  to the  Commission 
services on this  subject. 

- Contamination by Directives 90/364 and 90/365 in other areas: 

The  Commission  has  been  informed  of  a  number  of  cases  where  the  administrative 
authorities responsible for processing applications for residence permits required proof of 
resources  from  persons  who  were  neither  retired  nor  non-economically-active.  Those 
concerned  were  either  employees  or  self-employed  persons  or  persons  who  were  still 
resident  in  the  Member  State  where  they  had  last  worked.  However,  the  legislation 
applicable  to  such persons37 states that  they  are not  obliged  to provide  evidence of their 
resources.  In  the  cases  that  it  has been  informed  about,  the  Commission  has  drawn  the 
attention of the Member  States to this type of "contamination"  by Directives 90/364  and 
90/365. 

Another  type  of  contamination  is  specific  to Directive  90/364.  In the past,  i.e. prior  to 
Directive  90/364, Community nationals married to nationals  of their host Member  State 
were not  covered by  Community  law  if they were not  engaged  in  an economic  activity. 
Their residence rights were covered by national legislation on foreigners.  In some cases, 
this  legislation  contained  specific  provisions  on  the  spouses  of  nationals.  Since  the 
transposition of Directive 90/364 into national  legislation,  Community nationals who are 
married  to  nationals  of  the  host  Member  State  and  are  not  engaged  in  an  economic 
activity in that State, have an autonomous right of residence on the basis of the Directive. 
In  practice,  however,  the  competent  administrations  do  apply  the  provisions  of  the 
Directive  to  such persons. When  checking  on the resource  requirement,  they proceed  in 
the  same  way  as  for  a  standard  application  for  a  residence  permit  submitted  by  an 
unmarried person not engaged in an economic activity. 

37  Directives  68/360  and  73/148  for  employed  and  self-employed  persons;  Regulation  No  1251/70  and 
Directive 75/34 for persons who remain in the Member State of their previous economic activity. 

17 

The Commission has been informed  of cases where the competent administration  insisted 
on obtaining evidence of independent resources from  the person concerned and refused  to 
take  into  account  the  fact  that  their  resources  were  the  same  as their  spouse's.  In  other 
cases, the  administration  required  the person  concerned  to provide  a financial  guarantee 
or an undertaking from  their spouse to support them.  It is difficult  to justify  this manner 
of checking on the resources condition,  as illustrated by the two cases outlined  above, in 
view  of  the  provisions  contained  in  Directive  90/364,  and  it  is  incompatible  with  the 
general  obligation  on  the  Member  States,  under  Article  9  of  Directive  68/360,38  to 
simplify  the  formalities  and  procedures  for  obtaining  residence  permits  to  the  greatest 
possible extent. 

- The right of residence for some students: 

Students taking part  in programmes  such as Erasmus,  Socrates  and Leonardo  stay in  the 
host Member  State for  a few months, mostly for between three months and a year (if the 
intended period  of residence  is longer than three months, EU citizens  are required  under 
Community  law  to  apply  for  a  residence  permit).  Experience  has  shown  that  the 
formalities  often  drag on for a long time.  Quite often,  students either do not receive their 
residence permit at all or only receive it at the end of their stay, shortly before their return 
to their home Member State.  While the right of residence does not depend on a residence 
permit  being  issued,  which  is  only  declaratory  in  nature,  such  a  state  of  affairs  is 
nevertheless  unhealthy.  On the basis  of reports  from  their  colleagues  or predecessors  on 
these  programmes,  students  are  not  exactly  encouraged  to  engage  in  an  apparently 
pointless procedure. Nor do the competent administrations  seem to see the importance of 
issuing students with residence permits. 

- Residence permits for students: 

Students  are not  happy  with  having  to  pay  a fee  every  time  they  renew  their  residence 
permit in some Member States. 

3.2. Practical application  of the Directives by the Member State  administrations 

In  order  to  carry  out  an  in-depth  examination  of  the  practical  application  of  the 
Directives,  information  was  required  from  those  involved  in  implementing  Directives 
90/364,  90/365  and  93/96, i.e.  the  competent  administrations  in  the Member  States.  To 
this end, the Commission  sent  a questionnaire to the Member  States  asking  for  different 
types  of  information  on  the  application  of  the  Directives.  The  main  headings  of  the 
questionnaire  are covered  below,  with  a short  summary  of the replies  from  the  Member 
States (Greece, Ireland and Luxembourg did not reply to the questionnaire). 

1 To which Article 2(2) of Directive 90/364 refers. 

18 

3.2.1. The resources of retired persons and other non-economically-active persons: 

-  What  categories  of  personal 
income  are  taken  into  account  by  the  competent 
authorities:  capital  gains?  rental  income?  royalties?  other?  Does  the  origin  of  these 
resources (Member State of residence, Member State of origin, other Member State, third 
country) determine whether they are taken into account? 

Examination  of  the  replies  to  the  questionnaire  confirmed  that  almost  all  the  Member 
States  took  a wide  variety  of resources  into  account  and  that  the  origin  of the  resources 
was not in itself relevant to the determination of sufficiency  of resources.  The overriding 
factor  for  several  Member  States was whether  the person  concerned  really  could  access 
the resources in question  freely. 

-  What  categories  of  resources  other  than personal  income  are  taken  into  account: 
financial  support from  relatives? from  the person's  cohabitant? from  third parties?  other 
resources? 

The  Member  States'  replies  differed  on  the  question  of  whether  resources  other  than 
personal income were taken into consideration. 

Belgium  does  not  take  such  resources  into  account  under  Directive  90/364.  Sweden 
takes  the  same  position  on principle  and  does not  take  into  account  contributions  from 
relatives  unless  the money  is paid  into  a bank  account  which  the person  concerned  can 
access  freely.  Spain  only  takes  financial  contributions  from  relatives  into  account.  It 
should  be  noted  that  the  Netherlands  does  not  view  an  undertaking  from  the  person's 
cohabitant as constituting sufficient  resources. 

When assessing resources from relatives or third parties, the Member States require many 
different  types of supporting documentation. 

- Do  the competent  authorities  take account of factors  which, while not resources  in the 
strict  sense  (e.g.  ownership  of  the  accommodation  or free  accommodation),  constitute 
material benefits which go towards meeting the needs of those concerned? If so,  how? 

When assessing the resources requirement, Austria, Finland, France, Portugal, the United 
Kingdom,  Sweden  and,  to  a  certain  extent,  Denmark  take  account  of  the  fact  that  the 
persons concerned own their accommodation or live there free of charge.  Spain does not 
take the material benefits mentioned in the questionnaire into consideration. 

3.2.2. Students' resources: 

Since the entry into force  of the transposition measures for  Directives  90/366-93/96,  how 
many students have become a burden on the social assistance authorities, and what steps 
have been taken? 

None of the Member  States provided data on the number of students that have become a 
burden on the social assistance authorities in the course of their stay. 

19 

3.2.3. The cost for students of renewing their residence permits: 

How  much  does  a  residence permit  cost?  Is  the  same  amount  charged  every  time  the 
permit  is renewed? 

Germany,  Denmark,  France,  Italy  and  the  United  Kingdom  provide  residence  permits 
free  of  charge.  Of  the  remaining  Member  States,  some  charge  the  same  fee  for  each 
renewal  as  for  the  first  permit  (Belgium,  Spain,  Finland  and  Portugal),  while  Austria 
charges a slightly reduced fee for renewals and the Netherlands only requires payment  for 
the initial residence permit. 

20 

4. Conclusions: 

The  various  observations  made  above  on  the  application  of  the  Directives  should  not 
cause  us  to  lose  sight  of the  fact  that  there has been  a high  level  of  uptake  by  the  new 
categories  of  beneficiaries  -  students,  retired  persons  and  non-economically-active 
persons  -  of  the  opportunities  provided  by  freedom  of  movement.  Even  though  most 
Member  States have been unable  to provide  statistics  in this regard,  the phenomenon  is 
definitely  real and can be demonstrated, however imperfectly,  by examining a number of 
indicators. 

Based  on  the  experiences  of  both  citizens  and  the  competent  administrations  in  the 
practical application of Directives 90/364, 90/365 and 90/366-93/96, the Commission has 
drawn  the  following  conclusions  as  part  of  its  contribution  to  greater  freedom  of 
movement for students, retired and non-economically-active persons. 

4.1. - Step up the effort  to inform citizens: 

The  letters  and  complaints  received  by  the  Commission  show  that  citizens  lack 
information  on the exact  extent of their rights in the area of free  movement.  This lack of 
awareness can work in both directions: citizens are often  unaware of their real rights but 
also,  conversely,  can  be  convinced  that  they  have  rights  which  in  reality  are  of  minor 
importance or are even non-existent. 

Among  other things, the  smooth  operation  of the Internal Market  in the  area  of  freedom 
of  movement  of  persons  depends  on  the  quality  of  information  given  to  citizens.  The 
Commission  is  aware  of  its role  in this  regard  and  has  already  undertaken  initiatives  in 
the past. 

As part  of the  Citizens  First  initiative  launched jointly  with  the  European  Parliament  in 
November  1996 with  the  aim  of making  citizens  aware  of their rights  in  Europe  and  in 
particular  in  the  Single  Market,  the  Commission  produced  a  Guide  entitled  Living  in 
another  country  of  the  European  Union,  which  gives  EU  citizens  an  overview  of  their 
rights in the area of residency.  Information  on the right of residence for students has also 
been included  in the Guide "Studying, training  and doing research in another  country  of 
the  European  Union".  As  a  supplement  to  these  Guides,  the  Commission  produced 
Factsheets  on  the  individual  countries  in  cooperation  with  the  Member  States.  These 
widely available Guides and Factsheets39 are one of the means used to combat the lack of 
information  of  citizens.  Thus  each  national  Factsheet  includes  data  on  the  minimum 
amount  of  resources  required  in  the  Member  State  in  question.40  The  Commission's 
information  effort  has  also  included  setting  up  a  Signpost  Service  through  which 
citizens41 can contact experts to clarify  issues in relation to their rights, particularly in the 
area of residence rights. 

39 The  Guides  and Factsheets,  available  in the  11 official  languages  of the Union,  can be  obtained  free  of 

charge by calling a freephone  number in each Member  State.  They are also available on the  Internet 
(http://europa.eu.int/citizens). 

40 See Section 3.1. 
41 Via the Internet and freephone  numbers (see footnote  39 above). 

21 

One person in five who contacted the Signpost Service raised the issue of residence rights 
and  practical  difficulties  with  national  administrations.  A  successor  programme  to  the 
Citizens  First  initiative  was  launched  at  the  Cardiff  European  Council  with  the  aim  of 
setting  up  a  permanent  mechanism  for  Dialogue  with  citizens  and  business.  The 
Dialogue  thus  integrates  the  work  done  under  the  Citizens  First  initiative  into  a 
permanent information  mechanism. 

The  aim  is to provide  direct  and  easy  access to  information  on  rights  ensuing  from  the 
Internal  Market,  and  at the  same time to give everyone the chance to  ask questions,  talk 
about their experiences and make suggestions. 

Apart from specific  information  campaigns, other avenues also need to be explored.  For 
example,  the  Commission's  answers  to  parliamentary  questions  do  not  really  reach  the 
general  public,  despite  the  fact  that  they  are  published  in  the  Official  Journal  of  the 
European Communities.  Consideration could be given to ensuring swift  dissemination of 
answers  to  parliamentary  questions  to  interested  parties  (Member  States,  associations, 
etc.). 

4.2. - Continue to ensure strict compliance with existing Community law: 

The  Commission  monitors  administrative  practice  closely by pursuing  the  infringement 
proceedings  it  has  launched  for  incorrect  transposition  of  the  Directives  and,  where 
necessary, commencing new infringement  proceedings. 

For  example,  the  Commission  departments  are  currently  closely  examining  various 
national  practices  relating  to  the  evidence  of resources  required42  as  well  as  a  series  of 
complaints from students from which it would appear the option of making a declaration 
of resources is not being granted in practice, even though this is specifically  provided  for 
in the national  legislation.43 

The Commission will continue this work in the future  in order to ensure compliance with 
Community  law, not only  at the level of legislative  standards  and regulations but  also  in 
terms of the day-to-day administrative practices with which citizens are faced. 

In  addition  to  the  procedures  and  formalities  relating  to  the  actual  residence,  the 
Commission  will  ensure  that  the  status  of  citizen  of  the  Union44  is  fully  adhered  to  as 
regards  students,  retired  persons  and  other  non-economically-active  persons.  In  this 
context,  checks  will  have  to be  made  to  ensure  that  Article  6  of  the  Treaty  prohibiting 
discrimination on grounds of nationality is being genuinely applied to those categories of 
persons,  except  of  course  for  the  derogations  provided  for  in the  Directives  applying  to 
them in the field of sickness insurance and resources. 

42 See Section 3.1 above, p. 13. 
43  In  some  cases  this  possibility  was  inserted  into  national  legislation  in  the  wake  of  the  infringement 

proceedings taken by the Commission. 

44 See note  12 above. 

22 

4.3.  -  Make  Community  legislation  on  free  movement  of  persons  clearer  and 
restructure it around the notion of European citizenship: 

The  addition  to  existing  secondary  legislation  of  three  Directives  applicable  to  new 
categories  of persons  has increased  the number  of instruments  in the area of  freedom  of 
movement  and  has  made  Community  law  less  transparent  for  both  citizens  and  the 
administrations. 

The Commission has already observed45 that, apart from the practical disadvantages of an 
increase in the number  of legal instruments, these  should be reviewed  in the light  of the 
introduction into Article  8a of the EC Treaty of the notion of Union  citizenship,  leading 
to  a revision  of  the  "right  of  freedom  of  movement  and  residence  in  the  context  of  the 
rules  on  citizenship".46  The  European  Parliament  has  also  come  out  in  favour  of  this 
revision  work,47  which  will  have  to  include  substantive  amendments.  Some  of  the 
amendments, which pertain to the three Directives under review, are outlined below. 

4.4. - Begin discussions on substantive changes to the existing legislation: 

- The resources of retired persons and other non-economically-active persons: 

The resources  condition  laid  down  in Directives  90/364  and  90/365  leads  in practice  to 
advance  checks  (requirement  to produce  various  supporting  documents) which  are  often 
excessive, particularly in view of the fact that a revalidation mechanism is provided for in 
Article  1(2) and that a clear link is established in Article 3 between maintaining the right 
of residence  and meeting  the  conditions with regard  to resources  and  sickness  insurance 
on an ongoing basis. In some cases, these advance checks even run the risk of  infringing 
personal privacy. 

Furthermore, the survey carried out by the Commission  shows that the administrations in 
several  Member  States  have  difficulty  in  assessing  whether  or  not  resources  are 
sufficient. 
In  view  of  these  various  factors,  the  Commission  intends  to  examine  whether  the 
principle of a declaration  of resources,  similar to the declaration  that  students can make, 
could be extended to retired persons and other non-economically-active persons.48 

- Residence permits for retired persons and non-economically-active persons: 

Practice  has  shown  that  many  retired  persons  (and  to  a  lesser  extent  other  non-
economically-active  persons)  have  a rotating  lifestyle,  residing  in  turn  in  their  Member 
State  of  origin  and  in  another  Member  State.  Under  Community  law,49  absences  of 

45  Commission  Communication  to  the  European  Parliament  and  the  Council  on  the  follow-up  to  the 
the  Free  Movement  of  Persons,  1.7.1998, 

the  High-Level  Panel  on 

recommendations  of 
COM( 1998)403 final. 

46 See p. 2 of the above  Communication. 
47 See points  3 and 4 of the Resolution  of 2 July  1998 on the second  Commission  report  on citizenship  of 

the Union. 

48 The Report from  the High-Level Panel on the Free Movement of Persons  (Veil Report) presented to the 

Commission on  18 March  1997 suggests this solution (Chapter I, Section II, Subsection  1(d)). 

49 See Section  1.1., p. 4. 

23 

23 

longer  than  six months  from  the  host  Member  State  affect  the  validity  of  the  residence 
permit. 

In view of the difficulties  experienced by retired and non-economically-active  persons in 
particular, the Commission will review the question of the effect  of periods of absence on 
the validity of residence permits. 

- The cost of residence permits for students: 

Under  Directive  93/96  in  its  current  wording,  students  from  one  Member  State  who 
undertake  their  entire  course  of  study  at  a  university  in  another  Member  State  can  be 
required  by  the  host  country  to  pay  the  same  fee  for  each  annual  renewal  of  their 
residence  permit  as  for  the  initial  residence permit.  Conversely,  short-stay  students  are 
obliged  to  apply  for  a residence  permit  if  they  are  staying  for  more  than  three  months, 
and can be required to pay the same fee as is charged  for  a standard permit valid for  five 
years. 
The  Commission  is  aware  that  student  mobility  is  determined  by  the  costs  for  those 
concerned  and  it  will  look  into  whether  a proposal  that  the  initial  residence  permit  and 
subsequent renewals be granted to students free of charge would be appropriate. 

- The scope of Directive 93/96: 

The current wording  of Article  1, which refers  to recognised  educational  establishments, 
has the effect  of excluding from the scope of the Directive persons who are in training in 
institutions other than recognised  establishments. 

In a bid to ensure that mobility for people in training is not hindered by obstacles relating 
to  the right  of residence, the  Commission  will  look  into the possibility  of  clarifying  the 
scope  of  the  right  of  residence  for  students,  while  paying  particular  attention  to  the 
administrative  difficulties  currently  facing  trainees  and  persons  involved  in  volunteer 
projects 

24 

NATIONAL TRANSPOSITION MEASURES FOR DIRECTIVES 90/364,  90/365  AND 
90/366-93/96 

Annex 1 

Member 
States 
Belgium 

Denmark 

Germany 

Transposition  measures 

Transposition of Directives 90/364 and 90/365: 
- Arrete royal du 7 decembre  1992 modifiant  la loi du  15 decembre  1980 
sur  1'acces  au  territoire,  le  sejour,  l'etablissement  et  l'eloignement  des 
etrangers, Moniteur beige du 22.1.1993, p.  1052; 
- Koninklijk  besluit van 7 december  1992 tot wijziging  van de wet van 15 
december 1980 betreffende  de toegang to het grondgebied, het verblijf,  de 
vestiging  en  de  verwijdering  van  vreemdelingen,  Belgisch  Staatsblad 
22.1.1993, p.1052. 
- Arrete royal du 22 decembre  1992 modifiant  1'Arrete royal du 8 octobre 
1981  sur  1'acces  au  territoire,  le  sejour,  l'etablissement  et  l'eloignement 
des etrangers, Moniteur beige du 22.1.1993, p. 1053; 
-  Koninklijk  besluit  van  22  december  1992  tot  wijziging  van  het 
Koninklijk  besluit  van  8  oktober  1981  betreffende  de  toegang  to  het 
grondgebied,  het  verblijf,  de  vestiging  en  de  verwijdering  van 
vreemdelingen, Belgisch Staatsblad  22.1.1993,  p. 1053. 

Transposition of Directive 93/96: 
-  Arrete  royal  du  22  fevrier  1995 modifiant  la  loi  du  15 decembre  1980 
sur  1'acces  au  territoire,  le  sejour,  l'etablissement  et  l'eloignement  des 
etrangers, Moniteur beige du  15.3.1995, p. 5784; 
- Koninklijk  besluit van 22 februari  1995 tot wijziging  van de wet van  15 
december  1980 betreffende  de toegang to het grondgebied, het verblijf,  de 
vestiging  en  de  verwijdering  van  vreemdelingen,  Belgisch  Staatsblad 
15.3.1995, p. 5784; 
-  Arrete  royal  du  22  fevrier  1995  modifiant  1'Arrete royal  du  8  octobre 
1981  sur  1'acces  au territoire,  le  sejour,  l'etablissement  et  l'eloignement 
des etrangers, Moniteur beige du  15.3.1995, p. 5784; 
- Koninklijk besluit van 22 februari  1995 tot wijziging  van het  Koninklijk 
besluit  van  8  oktober  1981  betreffende  de  toegang  to  het  grondgebied, 
het verblijf,  de vestiging  en de verwijdering  van vreemdelingen,  Belgisch 
Staatsblad  15.3.1995, p. 5785. 
- Justitsministeriets bekendtgorelse nr. 575 af 26. Juni  1992; 
- Indenrigsministeriets bekendtgorelse nr. 761 af 22. August 1994; 
- Indenrigsministeriets bekendtgorelse nr. 684 af  12. Juli  1996 (*). 

-  Verordnung  vom  17/07/1997  iiber  die  allgemeine  Freizugigkeit  von 
Staatsangehorigen der Mitgliedstaaten der Europaischen Union 
(Freizugigkeitsverordnung/EG -  FreiziigV/EG),  Bundesgesetzblatt  Teil  I 
vom 22/07/1997 Seite 1810. 

25 

Greece 

Spain 

Ireland 

Italy 

EIpoeSpiKo 8idxaYM.a 278/92, EiaoSoq KOU 8ia(iovfi crnv EKkada t>7rnK6cov 
Kpaxrov (j.sX,(bv xr\c,  EOK,  7tou  5SV  SXOUV TO 8iKaico|j.a auxo  pdaei  aXk(ov 
8iaxd^Ecov  TOP  KOIVOTIKOIJ  Sncaiou  r\ a7ioi>5d£oi)v  rj  s^ouv  7iai3asi xr\v 
S7iaYYe^|xaTiKri  TOUC;  8paaTr|pi6TT|Ta  coc, naaGooToi  fj  {j.r|  HICTGCOTOI 
spya^6|j,8voi,  as  cruujiopcpooori  npoq  TI<;  OSriyfei;  TOP  St)|a,pouA,lo\) 
Eupco7iaiKG)v  KoivoTfiTcov  U7t'api0|j..  90/364/EOK,  90/366/EOK  Kai 
90/365/EOK (0>EK A'  144 n^  28r|q ADYOUOTOT) 1992, ask.  5). 

- Real Decreto 766/92, de 26 de junio, sobre entrada y 
permanencia  en  Espafia  de  nacionales  de  Estados  miembros  de  las 
Comunidades Europeas, BOE  Num. 156, 30.6.1992, Pagina 22275. 
- Real Decreto  mimero  737/95  de 05/05/1995, por  el que  se modifica  el 
Real Decreto 766/92, de 26 de junio, sobre entrada y 
permanencia  en  Espafia  de  nacionales  de  Estados  miembros  de  las 
Comunidades Europeas, Boletin Oficial del Estado numero  133 de 
05/06/1995 Pagina  16547 (Marginal  13536) (*) 

-  European  Communities  (Right  of  Residence  for  Non-Economically 
Active Persons) Regulations  1993, S.I.  109 of 1993; 
-  European  Communities  (Right  of  Residence  for  Non-Economically 
Active Persons) Regulations  1997, S.I. 57 of 1997 (*). 

-  Legge  19  febbraio  1992,  n.  142,  Disposizioni  per  l'adempimento  di 
obblighi  derivanti  dall'appartenenza  dell'Italia  alle  Comunita  europee 
(legge comunitaria per il 1991). 
-  Decreto  legislativo  26  novembre  1992,  n.  470  ,  Attuazione  delle 
direttive  90/364/CEE,  90/365/CEE  e 90/366/CEE  in materia  di  diritto  di 
soggiorno dei cittadini comunitari, dei lavorati salariati e non salariati che 
hanno  cessato  la  propria  attivita  professionale  e  degli  studenti,  Gazzetta 
Ufficiale  n. 286, 4 Dicembre 1992, Pag. 12. 
-  Legge  24  aprile  1998,  n.  128,  Disposizioni  per  l'adempimento  di 
obblighi  derivanti  dall'appartenenza  dell'Italia  alle  Comunita  europee 
(Legge comunitaria per  1995-1997), Gazzetta Ufficiale  n.  104, 7 maggio 
1998,  (**) 

Luxembourg 

-  Reglement  grand-ducal  du  12  fevrier  1993  portant  modification  du 
reglement grand-ducal modifie du 28 mars  1972 relatif aux conditions 
d'entree  et  de  sejour  de  certaines  categories  d'etrangers  faisant  l'objet  de 
conventions internationales, Memorial Grand-Ducal A Numero 21 
du24marsl993,p.382; 
-  Reglement  grand-ducal  du  03  juin  1996  portant  modification  du 
reglement grand-ducal du 28 mars  1972 relatif aux conditions d'entree et 
de sejour  de certaines categories d'etrangers  faisant  l'objet  de  conventions 
internationales, Memorial Grand-Ducal A Numero 39 du 
14 juin  1996 Page  1268  (*). 

26 

Netherlands 

-  Besluit  van  23/06/1992  tot  wijziging  van  het  vreemdelingenbesluit, 
Staatsblad nummer 329 van 29/06/1992 
-  Besluit  van  30/12/1993  houdende  wijziging  van  de  vreemdelingenwet, 
Staatsblad nummer 8 van 06/01/1994 

van 

Besluit 

07/07/1994, 

het 
Vreemdelingenbesluit  (gewijzigde  indiening  aanvragen  om  toelating  als 
vluchteling), 
Staatsblad nummer 526 van 19/07/1994 

houdende  wijziging 

van 

Austria 

France 

Portugal 

-  Bundesgesetz  ilber  die  Einreise  und  den  Aufenthalt  von  Fremden 
(Fremdengesetz  -  FrG),  Bundesgesetzblatt  fur  die  Republik  Osterreich, 
Nr. 286/1992; 
- Fremdengesetz  1992, Bundesgesetzblatt  fur die Republik Osterreich, Nr. 
838/1992; 
- Fremdengesetz  1997, Bundesgesetzblatt  fur die Republik Osterreich, Nr. 
75/1997; 

la 

- Decret n° 94-211 du  11 mars  1994 reglementant  les conditions  d'entree 
et  de  sejour  en  France  des  ressortissants  des  Etats  membres  de  la 
Communaute  europeenne  beneficiaires  de 
libre  circulation  des 
personnes, J.O. du  13 mars 1994, p. 3989. 
- Arrete du 6 avril  1995 fixant les modalites d'application du decret n° 94-
211  du  11  mars  1994  transposant 
les  directives  du  Conseil  des 
Communautes  europeennes des 28 juin  1990 et 29 octobre  1993 relatives 
au droit de sejour en France, J.O. du  15 avril  1995, p. 5993. 
-  Decret  n°  98-864  du 23  septembre  1998 modifiant  le decret  n°  94-211 
du  11  mars  1994  reglementant  les  conditions  d'entree  et  de  sejour  en 
France  des  ressortissants  des  Etats  membres  de 
la  Communaute 
europeenne beneficiaires  de la libre circulation  des personnes, J.O. du 27 
septembre  1998, p. 14743 (*). 

- Decreto-Lei n.° 60/93 de 3 de Marco, Diario da Repiiblica I Serie A N° 
52 de 03/03/1993 Pagina 943; 
-  Lei  n°  8/98  de  13  de  Fevereiro,  que  concede  ao  Governo  autorizacao 
para  alterar  o regime  legal  de  entrada,  permanencia,  saida  e expulsao  de 
estrangeiros do territorio nacional, Diario da Repiiblica I Serie A N° 37 de 
13.2.1998 Pagina 570 (**); 
- Decreto-Lei n°  250/98 de  11 de Agosto, Diario  da Repiiblica  I  Serie  A 
N°  184 de 11.8.1998 Pagina 3891 (*); 

27 

Finland 

- Ulkomaalaislaki/Utlanningslagen (378/91) 22/02/1991 
- Laki ulkomaalaislain muuttamisesta/Lag om andring av  utlanningslagen 
(640/93)28/06/1993 

Asetus 

annetun 

lain 
ulkomaalaislain  muuttamisesta 
voimaanpanosta/Forordning  om  ikrafttradande  av  lagen  om  andring  av 
utlanningslagen (1393/93) 22/12/1993 
- Ulkomaalaisasetus/Utlanningsforordningen (142/94)  18/2/1994 
-  Sisaasiainministerion  maarays/Inrikesministeriets  foreskrift  30.12.1993 
Dno. 8/010/93 (*) 
-  Sisaasiainministerion  ohje/Inrikesministeriets  foreskrift  18.5.1994  Dno. 
10/010/94 (*) 

Sweden 

United 
Kingdom 

- Utlanningslagen  (1989:529) 
- Lagen (1992:1165) om andring i utlanningslagen (1989:547) 
-  Utlanningsfbrordningen  (1989:547).  De  viktigaste  andringarna:  SFS 
1992:1166,  1993:1369 och  1994:1698 
- Forordning  (1998:153) om andring i utlanningsfbrordningen  (1989:547) 
(*) 
-  The  Immigration  (European  Economic  Area)  Order  1994,  S.I. 
1994/1895; 
-  The  Immigration  (European  Economic  Area)  Amendment  Order  1997, 
S.I. 1997/2981 (*). 

(*)  Amendment  made  to  the  transposition  measure  in  the  wake  of  the  infringement 
proceedings launched by the Commission. 

(**) Enabling Act allowing the government to amend the legislation on  foreigners. 

28 

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ISSN 0254-1475 

COM(99)  127 final 

DOCUMENTS 

EN 

06  16  11  17 

Catalogue number  :  CB-CO-99-127-EN-C 

Office  for Official  Publications of the European Communities 

L-2985 Luxembourg