Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities (COM(2001) 386 final — 2001/0154(CNS)) (Text with EEA relevance)
Date: 2001-11-27
Institutions: European Commission
Subjects: administrative procedure, admission of aliens, foreign national, residence permit, rights of aliens, self-employed person, wage earner

C 332 E/248

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Official Journal of the European Communities

27.11.2001

Proposal for a Council Directive on the conditions of entry and residence of third-country
nationals for the purpose of paid employment and self-employed economic activities

(2001/C 332 E/08)

(Text with EEA relevance)

COM(2001) 386 final (cid:151) 2001/0154(CNS)

(Submitted by the Commission on 5 September 2001)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 63(3)(a) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of
Committee,

the Economic and Social

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

Whereas:

(1) With a view to the progressive establishment of an area of
freedom, security and justice, Article 63(3)(a) of the Treaty
provides that the Council is to adopt measures on immi-
gration policy relating to the conditions of residence, and
standards on procedures for the issue by Member States of
residence permits.

(2) The European Council, at its special meeting in Tampere
on 15 and 16 October 1999, acknowledged the need for
legislation on the conditions
approximation of national
third-country nationals
for admission and residence of
and it
requested to this end rapid decisions by the
Council, on the basis of proposals by the Commission.

(3) Regulation of immigration for the purpose of exercising
activities as an employed or self-employed person is a
cornerstone of immigration policy and the development
of a coherent Community immigration policy could not
issue at
succeed without
Community level.

specifically addressing this

it

If

(4) All Member States have regulated access of third-country
nationals to work with detailed national administrative
rules.
to operate successfully, a Community
policy in this field should be put in place progressively.
As a first step the aim should be to lay down certain
common definitions, criteria and procedures, which give
a common legal frame to the discretion of Member States.

is

(5) The newly established Community rules should be based
on concepts, which have already been successfully applied
in Member States.

(6) In an increasingly global

skilled labour

labour market and faced with
the
in certain sectors of
shortage of
its
the Community should reinforce
labour market
third-country
and attract
to recruit
competitiveness
workers, when needed. This should be facilitated by
administrative simplification and by facilitating access to
relevant information. Transparent and harmonised rules
on the conditions under which third-country nationals
may enter and stay in the Community to pursue
economic activities, and their rights, should be laid down.

(7) Provision for a single national application procedure
leading to one
encompassing both
combined title,
residence and work permit within one administrative
act, should contribute to simplifying and harmonising
the diverging rules currently applicable in Member States.

(8) The chief criterion for admitting third-country nationals
to activities as an employed person should be a test
demonstrating that a post cannot be filled from within
the domestic labour market. The chief criterion for
admitting third-country nationals to activities as a self-
employed person should be a test demonstrating an
added value for employment or
the economic devel-
opment of the host Member State.

in the

(9) Several ways and options for verifying fulfilment of these
criteria
individual or horizontal
assessments should provide a flexible frame allowing all
interested parties including Member States to react flexibly
to changing economic and demographic circumstances.

form of

(10) Member States should be allowed to apply horizontal
limiting the

ceilings or quotas,

measures,
admission of third-country nationals.

such as

(11) Whenever Member States adopt national provisions as
provided for by this Directive, they should comply with
certain procedural and transparency requirements and in
particular an obligation to notify their provisions to the
Commission, in order to allow for an exchange of views,
further consideration and complementary action within
the context of an open coordination mechanism on
Community immigration policy.

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(12) Member States

should lay down rules on penalties
applicable to infringements of
this
Directive and ensure that they are implemented. Those
penalties must be effective, proportionate and dissuasive.

the provisions of

(13) This Directive

and
the
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.

fundamental

respects

rights

a

framework

harmonised

(14) In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty, the
the proposed action, namely the deter-
objectives of
mination
at
legal
of
Community level concerning the conditions of entry and
residence of third-country nationals for the purpose of
paid employment and self-employed economic activities
and of the procedures for the issue by Member States of
the relevant permits cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale
the action, be better achieved by the
and effect of
Community. This Directive
to the
confines
minimum required to achieve those objectives and does
not go beyond what is necessary for that purpose,

itself

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

The purpose of the Directive is:

(a) to determine the conditions of entry and residence of third-
country nationals for the purpose of paid employment and
self-employed economic activities and

(e)

(f)

(g)

its territory and to exercise activities as an employed
person;

(cid:145)residence permit (cid:151) self-employed person(cid:146) means a permit
or authorisation issued by the authorities of a Member
State allowing a third-country national
to enter and
reside in its territory and to exercise activities as a self-
employed person;

(cid:145)seasonal workers(cid:146) means
third-country nationals who
retain their legal domicile in a third country but are
employed in the territory of a Member State in a sector
of activity dependent on the passing of the seasons, under a
fixed-term contract for a specific job;

(cid:145)transfrontier workers(cid:146) means
third-country nationals
resident in the frontier zone of a neighbouring country
who are employed in the frontier zone of an adjacent
Member State and who return to the frontier zone of the
neighbouring country each day or at least once a week;

(h) (cid:145)intra-corporate transferees(cid:146) means third-country nationals
working within a single legal entity and being temporarily
transferred into the territory of a Member State, either to
the principal place of business or to an establishment of
that legal entity, provided that they have worked for the
legal entity concerned for at least the 12-month period
immediately preceding the transfer;

(i)

(cid:145)trainees(cid:146) means third-country nationals whose presence in
the territory of a Member State is strictly limited in
duration and is closely connected with increasing their
skills and qualifications in their chosen profession before
returning to their own country to pursue their career.

Article 3

(b) to determine standards on procedures for the issue by a
Member State of permits to third-country nationals to enter
and reside in its territory and to exercise activities as an
employed or self-employed person.

The provisions of

1.
this Directive shall apply to third-
country nationals, except where provisions that are more
favourable apply under:

Article 2

For the purposes of this Directive:

(a)

(cid:145)third-country national(cid:146) means any person who is not a
citizen of the Union within the meaning of Article 17(1)
of the Treaty, including stateless persons;

(b)

(cid:145)activity as an employed person(cid:146) means any remunerated
economic activity for and under the direction of another
person;

(c)

(cid:145)activity as a self-employed person(cid:146) means any remunerated
economic activity, which is not accomplished for and under
the direction of another person;

(a) bilateral or multilateral agreements concluded between the
Community, or the Community and its Member States, on
the one hand, and third countries on the other hand;

(b) bilateral or multilateral agreements concluded between one

or more Member States and third countries.

2.
The provisions of this Directive shall not apply to the
exercise of activities which are directly linked to the supply
of goods or services from third countries to the Community,
as long as third-country nationals carrying out these activities
do not stay for more than three months in the Community.

3.

The provisions of this Directive shall not apply to:

(d)

(cid:145)residence permit (cid:151) worker(cid:146) means a permit or author-
isation issued by the authorities of a Member State
allowing a third-country national to enter and reside in

(a) third-country nationals established within the Community
who are posted to another Member State for the purpose
of providing cross-border services or who provide cross
border services;

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(b) third-country nationals

staying in a Member State as
applicants for asylum, under subsidiary forms of protection
or under temporary protection schemes;

(c)

third-country nationals whose residence is not legal and
whose deportation has been suspended for
factual or
legal reasons;

(d) third-country nationals who are family members of citizens
to free

the Union who have exercised their

right

of
movement within the Community;

(e)

third-country nationals staying in a Member State under
family reunification rules.

4.
In the absence of specific provisions of Community law,
Member States may maintain or introduce more favourable
provisions regarding the following categories of person:

(a) researchers and academic specialists;

(b) priests and members of religious orders;

(c) sport professionals;

(d) artists;

(e)

journalists;

(f)

representatives of non-profit-making organisations.

CHAPTER II

ENTRY AND RESIDENCE FOR THE PURPOSE OF PAID
EMPLOYMENT

S e c t i o n 1

General rules

Article 4

only

States

authorise

shall
to enter and reside in their

third-country
1. Member
nationals
the
purpose of exercising activities as an employed person where
a (cid:145)residence permit (cid:151) worker(cid:146) has been issued by the
competent authorities of
the Member State concerned in
accordance with this Directive.

territory for

the applicant

A (cid:145)residence permit (cid:151) worker(cid:146) shall only be issued if,
2.
after verification of the particulars and documents, it appears
fulfils the requirements for obtaining a
that
(cid:145)residence permit (cid:151) worker(cid:146)
in accordance with Articles 5
and 6, subject to any limitations imposed by a Member State
in accordance with Articles 26, 27 and 28.

3. When handling an application, the competent authorities
shall comply with the procedural safeguards provided for in
Article 29.

Article 5

1.
In order to obtain a (cid:145)residence permit (cid:151) worker(cid:146), a third-
country national intending to exercise activities as an employed
person in a Member State shall apply to the competent
future
authority of
employer of a third-country national shall have the right to
submit an application on behalf of the third-country national
applicant.

the Member State

concerned. The

2.
Applications for a (cid:145)residence permit (cid:151) worker(cid:146) shall be
submitted via the representation of a Member State competent
for the country of legal residence of the applicant or directly in
the territory of the Member State concerned, if the applicant is
already resident or legally present there.

The application shall be accompanied by the following

3.
particulars and documents:

(a) name and address of the applicant and the employer;

(b) a valid work contract or a binding offer of work in the
the

covering the

term of

Member State
residence permit applied for;

concerned,

(c) description of

the envisaged activities as an employed

person in the Member State concerned;

(d) appropriate evidence of fulfilment of the requirement laid
down in Article 6(1) as provided for in paragraphs 2 to 5
there;

(e)

if required by the Member State concerned, a certificate or
adequate proof of good character and conduct and a health
certificate;

(f) valid passport or equivalent travel documents and, if appro-

priate, evidence of valid residence title;

(g) documents proving the skills which are necessary for the
performance of the envisaged activities and evidence of
fulfilment of all the conditions applicable to nationals of
the Member State concerned for the exercise of the relevant
activity as an employed person;

(h) evidence of having sufficient resources to support

the
applicant and his/her
family members so as to avoid
becoming a burden on the social assistance system of the
host Member State for the duration of their stay and of
having a sickness insurance covering all risks in the host
Member State. Those resources shall be deemed sufficient
where they are at, or above, the threshold below which the
host Member State may grant social assistance to its
nationals. Where this criterion is not applicable,
the
shall be deemed sufficient where
applicant’s
they are no less than the amount of the minimum social
security pension paid by the host Member State;

resources

(i) proof of payment of the fee for handling the application.

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Third-country nationals who have been legally resident in
4.
a Member State and who have legally exercised activities there
as an employed person for more than three years over the
preceding five years shall not be required to provide evidence
of fulfilment of the requirement laid down in Article 6(1) when
submitting an application for a (cid:145)residence permit (cid:151) worker(cid:146) in
that Member State.

shall

the need for an individual assessment. The
region without
national provisions
the criteria
lay down in detail
according to which applications for work permits shall be
ranked when the number of applications received outnumber
the published number of jobs. Member States shall consider in
the first place applications from citizens of countries with
which accession negotiations have been started.

Article 6

1. When submitting an application in accordance with
Article 5, it must be demonstrated that a job vacancy in that
Member State cannot be filled in the short term by any of the
following categories:

(a) citizens of the Union;

(b) third-country nationals who are family members of citizens
to free

the Union who have exercised their

right

of
movement within the Community;

(c)

third-country nationals already enjoying full access to the
national
labour market concerned under the agreements
referred to in Article 3(1);

(d) third-country nationals already enjoying access

to the
national labour market concerned under existing national
legislation or under Community legislation;

(e)

(f)

in a
third-country nationals who are legally resident
Member State and who are and have been legally exercising
activities as an employed person in that Member State for
more than three years; or

third-country nationals who have been legally resident in
that Member State and who have legally exercised activities
as an employed person in that Member State for more than
three years over the preceding five years.

(EURES)

network

established

The requirement

2.
laid down in paragraph 1 shall be
deemed to be fulfilled if a specific job vacancy has been
made public via the employment services of several Member
States for a period of at least four weeks, and in particular,
the European Employment
when appropriate, by means of
Services
by Commission
Decision 93/569/EEC (1), and if no acceptable job application
has been received from persons listed in paragraph 1 or from
third-country nationals who are citizens of countries with
which
started. The
published job vacancy shall contain realistic, reasonable and
proportionate requirements for the offered post. This shall be
checked and scrutinised by the competent authorities when
evaluating an application for a residence permit submitted in
accordance with Article 5.

negotiations

accession

been

have

4. Member States may adopt national provisions according
to which the requirement laid down in paragraph 1 is deemed
to be fulfilled if the annual income offered to a third-country
national exceeds a defined threshold.

5. Member States may adopt national provisions according
to which the requirement laid down in paragraph 1 is deemed
to be fulfilled for a specific third-country national, if a defined
amount of money has been paid by the future employer of that
person to the competent authorities. The money received from
the employer shall be spent for measures promoting the inte-
gration of third-country nationals or for vocational training
purposes.

Article 7

A (cid:145)residence permit (cid:151) worker(cid:146) shall be issued for a prede-
1.
termined period. The initial
(cid:145)residence permit (cid:151) worker(cid:146)
granted shall be valid for a period of up to three years to be
determined in accordance with national legislation. It shall be
renewable for periods of up to three years, to be determined in
legislation, on application by the
accordance with national
three months before the
holder,
expiry date
competent
authority of a file containing updated information on the
items enumerated in Article 5(3) and in particular detailed
information on the activities exercised as an employed person.

to be submitted at
and after

consideration by the

least

for

Applicants

renewal who have been holding a
2.
(cid:145)residence permit (cid:151) worker(cid:146) in the Member State concerned
for more than three years shall not be required to provide
evidence of
laid down in
Article 6(1).

the requirement

fulfilment of

Article 8

A (cid:145)residence permit (cid:151) worker(cid:146) shall initially be restricted to the
exercise of specific professional activities or fields of activities.
It may also be restricted to the exercise of activities as an
employed person in a specific region. After three years,
it
shall not be subject to these restrictions.

3. Member States may adopt national provisions according
to which the requirement laid down in paragraph 1 is deemed
to be fulfilled for a specific number of jobs, in a specific sector,
in a specific
for a limited time-period and,

if appropriate,

(1) OJ L 274, 6.11.1993, p. 32.

Article 9

After a (cid:145)residence permit (cid:151) worker(cid:146) has been issued, its
1.
holder shall notify to the competent authorities any changes to
the information provided in accordance with Article 5(3). If
these changes relate to points (b) or (c) of Article 5(3) they
shall be subject to the approval of the competent authority of
the Member State concerned.

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During the period of validity of a (cid:145)residence permit (cid:151)
2.
worker(cid:146), competent authorities shall not consider changes that
relate to Article 5(3)(d).

(i) working conditions,

including conditions

regarding

dismissals and remuneration;

Article 10

(ii) access to vocational training necessary to complement
the activities authorised under the residence permit;

The competent authorities

1.
permit (cid:151) worker(cid:146) which has been fraudulently acquired.

revoke a (cid:145)residence

shall

2.
The competent authorities may suspend or revoke a
(cid:145)residence permit (cid:151) worker(cid:146) where the particulars supporting
the application as provided for in Article 5 are incorrect or
have not been amended in accordance with Article 9. The
competent authorities may also suspend or revoke a (cid:145)residence
permit (cid:151) worker(cid:146) when such measure is considered necessary
for reasons of public policy or public security by the Member
State concerned in accordance with Article 27.

3.
Unemployment in itself shall not constitute a sufficient
reason for revoking a (cid:145)residence permit (cid:151) worker(cid:146) unless the
period of unemployment exceeds the following duration:

(a) three months within a 12-month period, for holders of a
(cid:145)residence permit (cid:151) worker(cid:146) who have legally exercised
activities as employed or self-employed persons in the
Member State concerned for less than two years;

(b) six months within a 12-month period, for holders of a
(cid:145)residence permit (cid:151) worker(cid:146) who have legally exercised
activities as employed or self-employed persons in the
Member State concerned for two years or more.

Article 11

1.
During the period of its validity, a (cid:145)residence permit (cid:151)
worker(cid:146) shall entitle its holder at a minimum to the following:

(a) entry to the territory of

the Member State issuing the

(cid:145)residence permit (cid:151) worker(cid:146);

(b) re-entry to the territory of the Member State issuing the
(cid:145)residence permit (cid:151) worker(cid:146) after temporary absence;

(c) passage through other Member States in order to exercise

the rights under points (a) and (b);

(d) residence in the Member State issuing the (cid:145)residence permit

(cid:151) worker(cid:146);

(iii) recognition of diplomas, certificates and other qualifi-

cations issued by a competent authority;

(iv) social security including healthcare;

(v) access to goods and services and the supply of goods
including

and services made available to the public,
public housing;

(vi) freedom of association and affiliation and membership
of an organisation representing workers or employers
or of any organisation whose members are engaged in
a specific occupation, including the benefits conferred
by such organisations.

2. Member States may restrict the rights conferred under
paragraph 1(f)(ii) to third-country nationals who have been
staying or who have the right to stay in their territory for at
least one year.

They may restrict the rights conferred under paragraph 1(f)(v)
with respect to public housing to third-country nationals who
have been staying or who have the right
to stay in their
territory for at least three years.

3.
After the expiry of a (cid:145)residence permit (cid:151) worker(cid:146) and
following their return to a third country, former holders of a
(cid:145)residence permit (cid:151) worker(cid:146) shall have the right to request and
obtain the payment of the contributions made by them and by
their employers into public pension schemes during the period
of validity of the (cid:145)residence permit (cid:151) worker,(cid:146) provided that:

(a) the applicant cannot or will not obtain payment of a
Member State pension under national
law or under the
agreements referred to in Article 3(1), when residing in a
third country;

(b) the applicant

the
is unable, under national
agreements referred to in Article 3(1), to transfer pension
rights to a scheme of the third country where the applicant
resides;

law or

(e) exercise of the activities authorised under the (cid:145)residence

permit (cid:151) worker(cid:146);

(c)

the applicant
under the national pension scheme concerned;

formally waives all rights/claims acquired

(f) enjoyment of equal treatment with citizens of the Union at

least with regard to:

(d) the application is submitted from a third country.

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S e c t i o n 2

Rules for specific categories

Article 12

1.
Seasonal workers may be granted a (cid:145)residence permit (cid:151)
seasonal worker(cid:146) for up to six months in any calendar year,
after which they shall return to a third country.

the

establishment’s

to
techniques or management.

(b) (cid:145)specialists(cid:146), that is to say persons possessing uncommon
service,
knowledge
essential
research equipment,
In
assessing such knowledge, account will be taken not only
of knowledge specific to the establishment, but also of
whether
the person has a high level of qualification
referring to a type of work or trade requiring specific
technical knowledge.

The provisions of Section 1 shall apply mutatis mutandis to such
permit.

3.
The initial period of validity of the (cid:145)residence permit (cid:151)
intra-corporate transferee(cid:146) shall be equal to the duration applied
for, subject to a maximum period of validity of five years.

A (cid:145)residence permit (cid:151) seasonal worker(cid:146) shall not be extended
to cover a total period exceeding the six-month period.
Member States may issue up to five (cid:145)residence permits (cid:151)
seasonal worker(cid:146) covering up to five subsequent years within
residence permit (cid:151)
((cid:145)multi-annual
one administrative act
seasonal worker(cid:146)).

2. Member States may ask applicants or
future
employers to deposit a security, which shall be repayable on
the return of the seasonal worker to a third country.

their

Article 13

Transfrontier workers may be granted a (cid:145)permit (cid:151) transfrontier
worker(cid:146).

The provisions of Section 1, with the exception of Article
11(1)(d), shall apply mutatis mutandis to such permit.

Article 15

1.

Trainees may be granted a (cid:145)residence permit (cid:151) trainee(cid:146).

The provisions of Section 1 shall apply mutatis mutandis to such
permit. However, applicants for a (cid:145)residence permit (cid:151) trainee(cid:146)
shall not be required to provide the evidence of fulfilment of
the requirement laid down in Article 6(1). Instead, applicants
shall demonstrate that the envisaged activity is strictly limited
in duration and is closely connected with increasing their skills
and qualifications.

2.
The overall validity of a (cid:145)residence permit (cid:151) trainee(cid:146) shall
not exceed one year. This period may be extended exclusively
for the time needed to obtain a professional qualification
recognised by the Member State concerned in the sphere of
activity of the trainee.

Article 14

Article 16

Intra-corporate transferees may be granted a (cid:145)residence

1.
permit (cid:151) intra-corporate transferee(cid:146).

The provisions of Section 1 shall apply mutatis mutandis to such
permit. However, applicants for a (cid:145)residence permit (cid:151) intra-
corporate transferee(cid:146) shall not be required to provide evidence
fulfilment of the requirement laid down in Article 6(1).
of
Instead, applicants
the
shall demonstrate that
criteria set out in paragraph 2 of this Article.

they fulfil

2.

Intra-corporate transferees shall either be:

(a)

stockholders of

(cid:145)key personnel(cid:146), that is to say persons working in a senior
management or executive position within a legal entity,
receiving general supervision or instructions principally
from the board of directors or
the
business or
functions of key
equivalent. The
their
personnel can include: directing the establishment or a
the establishment; super-
department or sub-division of
vising and controlling the work of other
supervisory,
professional or managerial employees; and/or having the
authority personally to engage and dismiss personnel, or
to recommend such engagement or dismissal, or other
personnel actions; or

nationals

Third-country

1.
an
employed person in the context of youth exchange or youth
mobility schemes,
including (cid:145)au pairs(cid:146), may be granted a
(cid:145)residence permit (cid:151) youth exchange/au pair(cid:146).

pursuing

activities

as

The provisions of Section 1 shall apply mutatis mutandis to such
permit. However, applicants for a (cid:145)residence permit (cid:151) youth
exchange/au pair(cid:146) shall not be required to provide evidence of
fulfilment of the requirement laid down in Article 6(1). Instead,
applicants shall demonstrate that
the envisaged activity is
strictly limited in duration and connected with a youth
exchange or youth mobility scheme officially recognised by
the Member State concerned.

The overall validity of a (cid:145)residence permit (cid:151) youth
2.
exchange/au pair(cid:146) shall not exceed one year. This period may
be extended exceptionally if a youth exchange or youth
mobility scheme officially recognised by a Member State
provides for that possibility.

3. Member States may ask applicants or
future
employers to deposit a security, which shall be repayable on
the return to a third country.

their

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CHAPTER III

ENTRY AND RESIDENCE FOR THE PURPOSE OF EXERCISING
SELF-EMPLOYED ECONOMIC ACTIVITIES

(e)

if required by the Member State concerned, a certificate or
adequate proof of good character and conduct and a health
certificate;

Article 17

only

States

authorise

shall
to enter and reside in their

third-country
1. Member
the
territory for
nationals
purpose of exercising activities as
self-employed persons
where a (cid:145)residence permit (cid:151) self-employed person(cid:146) has been
issued by the competent authorities of
the Member State
concerned in accordance with this Directive.

that

2.
A (cid:145)residence permit (cid:151) self-employed person(cid:146) shall only
be issued if, after verification of the particulars and documents,
for
it appears
the requirements
obtaining a (cid:145)residence permit (cid:151) self-employed person(cid:146)
in
accordance with Articles 18 and 19, subject to any limitations
imposed by a Member State in accordance with Articles 26, 27
and 28.

the applicant

fulfils

3. When handling an application, the competent authorities
shall comply with the procedural safeguards provided for in
Article 29.

Article 18

1.
In order to obtain a (cid:145)residence permit (cid:151) self-employed
person(cid:146), a third-country national intending to exercise activities
as a self-employed person in a Member State shall apply to the
competent authority of the Member State concerned.

shall be

submitted via the

Applications for a (cid:145)residence permit (cid:151) self-employed
2.
representation of a
person(cid:146)
Member State competent for the country of
legal residence
of the applicant or directly in the territory of the Member
State concerned, if the applicant is already resident or legally
present there.

The application shall be accompanied by the following

3.
particulars and documents:

(a) name and address of the applicant and of the location of
the envisaged activities as a self-employed

exercise of
person;

(b) detailed business plan covering the time-period for which a
(cid:145)residence permit (cid:151) self-employed person(cid:146) is requested;

(c) evidence that the applicant has sufficient financial means,
including own resources, in accordance with the business
plan and,
the
investment of
sum including financial
required minimum investment
guarantees;

if applicable, evidence of

(d) appropriate evidence of fulfilment of the requirement laid

down in Article 19(1);

(f) valid passport or equivalent travel documents and, if appro-

priate, evidence of valid residence title;

(g) documents proving the skills which are necessary for the
performance of the envisaged activities and evidence of
fulfilment of all the conditions applicable to nationals of
the Member State concerned for the exercise of the relevant
activity as a self-employed person;

(h) evidence of having sufficient resources to support

the
family members so as to avoid
applicant and his/her
becoming a burden on the social assistance system of the
host Member State for the duration of their stay and of
having a sickness insurance covering all risks in the host
Member State. Those resources shall be deemed sufficient
where they are at, or above, the threshold below which the
host Member State may grant social assistance to its
nationals. Where this criterion is not applicable,
the
applicant’s
shall be deemed sufficient where
they are no less than the amount of the minimum social
security pension paid by the host Member State;

resources

(i) proof of payment of the fee for handling the application.

4.
Third-country nationals who have been legally resident in
a Member State and who have legally exercised activities there
as a self-employed person for more than three years over the
preceding five years shall not be required to provide evidence
of fulfilment of the requirement laid down in Article 19(1)
when submitting an application for a (cid:145)residence permit (cid:151) self-
employed person(cid:146) in that Member State.

Article 19

1. When submitting an application in accordance with
Article 18, it must be demonstrated that the envisaged activities
as a self-employed person will create an employment oppor-
tunity for the applicant and will have a beneficial effect on
employment
in the Member State concerned or on the
economic development of that Member State.

2. Member States may adopt national provisions according
to which the requirement laid down in paragraph 1 is deemed
to be fulfilled, or not fulfilled, for specific activities as a self-
employed person in specific sectors and, if appropriate, in a
specific region without the need for an individual assessment.

3. Member States may adopt national provisions according
to which the requirement laid down in paragraph 1 is deemed
to be fulfilled for specific activities as a self-employed person in
specific sectors and, if appropriate, in a specific region if an
applicant invests a defined minimum amount of own resources.

27.11.2001

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Official Journal of the European Communities

C 332 E/255

Article 20

A (cid:145)residence permit (cid:151) self-employed person(cid:146) shall be
1.
issued for a predetermined period. The initial
(cid:145)residence
permit (cid:151) self-employed person(cid:146) granted shall be valid for a
period of up to three years to be determined in accordance
with national legislation. It shall be renewable for periods of up
to three years, to be determined in accordance with national
legislation, on application by the holder, to be submitted at
and after
least
consideration by the competent authority of a file containing
updated information on the items enumerated in Article 18(3),
and in particular detailed information on the activities
exercised as a self-employed person.

three months before

expiry date

the

for

Applicants

renewal who have been holding a
2.
in the Member
(cid:145)residence permit (cid:151) self-employed person(cid:146)
State concerned for more than three years
shall not be
required to provide evidence of fulfilment of the requirement
laid down in Article 19(1).

Article 21

A (cid:145)residence permit (cid:151) self-employed person(cid:146) shall initially be
restricted to the exercise of specific activities as a self-employed
person or to specific fields of activities. It may also be restricted
to the exercise of activities as a self-employed person in a
specific region. After three years it shall not be subject to
these restrictions.

Article 22

After a (cid:145)residence permit (cid:151) self-employed person(cid:146) has
1.
been issued, its holder shall notify to the competent authorities
any changes to the information provided in accordance with
Article 18(3). If these changes relate to points (b) or (c) of
the
they shall be subject
Article 18(3)
competent authority of the Member State concerned.

to the approval of

2.
During the period of validity of a (cid:145)residence permit (cid:151)
self-employed person(cid:146), competent authorities shall not consider
changes that relate to point (d) of Article 18(3).

Article 23

The competent authorities

revoke a (cid:145)residence
1.
permit (cid:151) self-employed person(cid:146) which has been fraudulently
acquired.

shall

supporting the application as provided for

The competent authorities may suspend or revoke a
2.
the
(cid:145)residence permit (cid:151) self-employed person(cid:146) where
particulars
in
Article 18 are incorrect or have not been amended in
accordance with Article 22. The competent authorities may
also suspend or revoke a (cid:145)residence permit (cid:151) self-employed
person(cid:146) when such measure is considered necessary for reasons
of public policy or public security by the Member State
concerned in accordance with Article 27.

(a) three months within a 12-month period, for holders of a
(cid:145)residence permit (cid:151) self-employed person(cid:146) who have legally
exercised activities as employed or self-employed persons in
the Member State concerned for less than two years;

(b) six months within a 12-month period, for holders of a
(cid:145)residence permit (cid:151) self-employed person(cid:146) who have
legally exercised activities as employed or self-employed
persons in the Member State concerned for two years or
more.

Article 24

The rules set out in Article 11 shall also apply to holders of a
(cid:145)residence permit (cid:151) self-employed person(cid:146).

CHAPTER IV

HORIZONTAL PROVISIONS

Article 25

Member States may request applicants to pay fees for handling
applications in accordance with this Directive. The level of fees
shall be proportionate and may be based on the service
actually provided.

Article 26

Member States may decide to adopt national provisions
in accordance with this
limiting the issuing of permits
Directive to a set ceiling or suspending or halting the issuing
of these permits for a defined period, taking into account the
overall capacity to receive and to integrate third-country
nationals on their territory or in specific regions thereof.
These national provisions shall state in detail which groups
of persons are covered by, or exempted from, the measure. If
these national provisions impose ceilings, they shall lay down
in detail
the criteria according to which applications for
permits in accordance with this Directive shall be ranked
when the number of applications received exceeds the set
ceilings.

Article 27

Member States may refuse to grant or to renew, or may revoke,
permits in accordance with this Directive on grounds of public
policy, public security or public health. The grounds of public
policy or public security shall be based exclusively on the
personal conduct of
the third-country national concerned.
Public health shall not be invoked by Member States as a
reason for
renewing a residence permit
solely on the ground of illness or disability suffered after the
issue of the residence permit.

revoking or not

Article 28

Commercial difficulties shall not constitute a sufficient
3.
reason for
revoking a (cid:145)residence permit (cid:151) self-employed
person(cid:146) unless the period during which the holder is not able
to meet the costs of living in accordance with Article 18(3)(h)
exceeds the following period:

legislation regulating the access of

This Directive is without prejudice to the application of
national
third-country
nationals to employment in the public service or to activities
which in that Member State are connected, even occasionally,
with the exercise of official authority.

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Official Journal of the European Communities

27.11.2001

CHAPTER V

PROCEDURE AND TRANSPARENCY

Article 29

1. Member States shall ensure that a decision to grant,
modify or renew a permit in accordance with this Directive,
is adopted and communicated to the applicant at the latest
within 180 days after receipt of the application. Decisions on
an application submitted in accordance with Articles 14, 15
and 16 shall be adopted and communicated to the applicant
within 45 days after its receipt.

2.
Every Member State shall make public the average time
necessary for its authorities to issue, modify or renew permits
in accordance with this Directive and inform applicants thereof
upon receipt of an application.

If

3.
the information supporting the application is inad-
equate, the competent authorities shall notify the applicant of
the additional detailed information that is required. The period
referred to in paragraph 1 shall be suspended until the auth-
orities have received the additional information required.

Any decision not to grant, modify or renew a permit in
4.
accordance with the application and any decision suspending
or withdrawing a permit shall contain a statement of reasons
based upon objective and verifiable criteria on which the
decision is based. The person concerned shall have the right
to apply to the courts of the Member State concerned and shall
be informed of the time limits allowed for applying for such
remedies.

Article 30

When Member States choose to adopt national measures in
accordance with Article 6(3), (4) or (5); Article 19(2) and (3),
or Article 26, the following rules shall apply:

(a) the Member State shall base its national provisions on the
criteria listed in the relevant provisions of this Directive;

(b) the national provisions shall include a statement of reasons

of entry and stay of third-country nationals to its territory for
the purpose of pursuing activities as an employed or self-
employed person is made available to the general public.

CHAPTER VI

FINAL PROVISIONS

Article 32

The Member States shall give effect to the provisions of this
Directive without discrimination on the basis of sex, race,
colour,
characteristics,
language,
religion or beliefs, political or other opinions,
membership of a national minority, fortune, birth, disabilities,
age or sexual orientation.

social origin,

ethnic or

genetic

Article 33

Member States shall lay down the rules on penalties applicable
to infringements of the national provisions adopted pursuant to
this Directive and shall take all measures necessary to ensure
that they are implemented. The penalties provided for must be
effective, proportionate and dissuasive. The Member States shall
notify those provisions to the Commission by the date specified
in Article 35 at the latest and shall notify it without delay of
any subsequent amendment affecting them.

Article 34

By 31 December 2007 at the latest, the Commission shall
report to the European Parliament and the Council on the
application of
this Directive in the Member States and
propose amendments if appropriate.

Article 35

Member States shall adopt and publish, before 1 January 2004,
the provisions necessary to comply with this Directive. They
shall forthwith inform the Commission thereof.

based upon objective and verifiable criteria;

They shall apply those provisions from 1 January 2004.

(c)

the national provisions shall be subject to regular review at
national level to ascertain whether it is justifiable under this
Directive
the national provisions be maintained
unchanged;

that

(d) the national provisions shall be made public in advance of

their entry into force;

(e)

the Member State shall notify the national provisions to the
Commission and they shall submit to the Commission an
those national
annual
provisions.

report on the

application of

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of
their official publication.
Member States shall determine how such reference is to be
made.

Article 36

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

Article 31

Each Member State shall ensure that an exhaustive and
regularly updated set of information concerning the conditions

Article 37

This Directive is addressed to the Member States.