Opinion of the Economic and Social Committee on the "Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States" (COM(2001) 257 final — 2001/0111 (COD))
Date: 2002-04-24
Institutions: European Economic and Social Committee
Subjects: European citizenship, administrative formalities, free movement of persons, residence permit

C 149/46

EN

Official Journal of the European Communities

21.6.2002

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

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

(2002/C 149/12)

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

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 27 February 2002. The rapporteur was
Mr Rodrı´guez Garcı´a Caro.

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

1.

Introduction

The Directives concerned are:

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

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

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

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

The EEC Regulations concerned are:

— 1612/68/EEC on freedom of movement for workers

within the Community.

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

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

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

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

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

— 75/35/EEC on the extension of the scope of Directive 64/

221/EEC.

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

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

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

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

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

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

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

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

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

— ‘a new approach to exercising the right to reside, particu-
larly by restricting the obligation to hold a residence
permit to situations where this is justified;’

— ‘a clarification of the status of those members of the
family of a citizen of the Union who are nationals of a
third country;’

— ‘clearer restrictions regarding the possibility of curtailing

the exercise of the right to reside.’

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

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

for a Directive, and refers it

(1) COM(98) 403 final.
(2) COM(1999) 127 final.

2. Content of the proposal

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

— Article 12, which prohibits discrimination on the grounds

of nationality.

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

— Article 40, which states the need to adopt measures to

guarantee free movement for workers.

— Article 44, which guarantees freedom of establishment.

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

The proposal for a Directive consists of 39 articles,

2.2.
divided into seven chapters.

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

2.2.2.
to reside for up to six months.

The second chapter deals with the right to move and

2.2.3.
more than six months.

The third chapter concerns the right of residence for

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

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

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

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

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

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

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

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

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

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

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

— Introduction of permanent residence after four years of

continuous residence.

— Simplification of the administrative formalities and dead-
lines applying to exercise of the right of residence.

3. General comments

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

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

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

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

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

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

The abolition of Member States’ right

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

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

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

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4. Specific comments

4.1. Article 7(1)(c)

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

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

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

4.2. Article 12(3)

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

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

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

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

4.4. Article 14

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

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

4.5. Article 21(2)

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

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

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

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

4.3. Article 13(2)(c)

4.6. Article 25(2)

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

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

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

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

4.7. Article 25(4)

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

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

4.8. Article 28(1)

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

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

Brussels, 24 April 2002.

The Committee considers that

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

4.9. Article 28(2)

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

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

4.10. Article 30

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

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

4.11. Article 31

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

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

The President

of the Economic and Social Committee

Göke FRERICHS