Opinion of the Economic and Social Committee on the Amended proposal for a Council Directive on the right to family reunification (COM(2002) 225 final — 1999/0258 (CNS))
Date: 2002-07-17
Institutions: European Economic and Social Committee
Subjects: application of EU law, family migration, foreign national, free movement of persons, immigration, rights of aliens

C 241/108

EN

Official Journal of the European Communities

7.10.2002

Opinion of the Economic and Social Committee on the Amended proposal for a Council Directive
on the right to family reunification

(COM(2002) 225 final — 1999/0258 (CNS))

(2002/C 241/21)

On 23 May 2002 the Council decided to consult the Economic and Social Committee, under Article 262
of the Treaty establishing the European Community, on the above-mentioned 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 20 June 2002. The rapporteur was Mr Mengozzi.

At its 392nd Plenary Session (meeting of 17 July 2002) the Economic and Social Committee adopted the
following opinion by 118 votes to seven, with two abstentions.

1.

Introduction

2. Specific comments

1.1.
The Commission has presented an amended proposal
for a Council Directive on family reunification, which follows
on from a draft directive on the same subject presented on
1 December 1999; that draft had no result, after consideration
by the Parliament (6 September 2000), the Commission itself
(10 October 2000), the Council (1) (May 2000, May 2001 and
September 2001) which did not lead to a conclusion.

1.2.
The Laeken European Council of 14 and 15 December
2001 addressed a request to the Commission to resume
consideration of the matter, taking account of course of the
difficulties which had arisen mainly at Council level.

The new Commission proposal, while

1.3.
formally
affirming the right to family reunification, makes it subject to
a series of procedures which are more restrictive than those
envisaged in the 1999 draft directive. As early as Article 1 of
the new draft, the wording is revealing: whereas in the original
draft the aim was ‘to establish a right to family reunification’,
in the current draft it becomes ‘to determine the conditions in
which the right to family reunification may be exercised’.

2.1.
It is significant that Article 3(6) introduces a ‘standstill’
clause whereby Articles 4(1), (2) and (3), 7(1)(c) and 8 ‘may
not have the effect of introducing less favourable conditions
than those which already exist in each Member State on the
date of adoption of this Directive’. This clause, while designed
to prevent any use of the directive to make certain national
provisions more restrictive, also draws attention to the fact
that some articles of the amended proposal (those listed in
Article 3(6)) are much more restrictive than the current rules
covering the same matters in a number of Member States.

It should also be pointed out that the ‘standstill’ clause does
not prevent Member States from making their own legislation
in the field more restrictive before the present draft directive is
adopted. Thus it is necessary for the Commission to include in
the final text a request to Member States not to amend their
relevant legislation in this period.

2.2.

The most serious of the proposed changes are:

the prevailing attitude which
The changes reflect
1.4.
emerged in the Council debate.
In particular, there is an
obvious concern to ensure that the legislation in force in some
Member States is reflected in the articles of the directive. As a
result, a provision which had been conceived of as a framework
of principles has become a lowest common denominator of
the laws already applying in the Member States.

1)

( 1) See the ESC Opinion in OJ C 204, 18.7.2000.

The requirement of having ‘reasonable prospects of
obtaining the right of permanent residence’ (Article 3(1))
which, combined with that of holding a residence permit
valid for one year or more, provides no room for
manoeuvre regarding permits valid for less than a year,
or even shorter contracts. Moreover, in a Member State
where the residence permit is linked to the work contract,
it is probable that immigrants would at best have short-
term contracts, and that as a result their residence permits
would have no prospect of becoming permanent. There
is therefore a risk in such cases that the ‘right’
to
reunification may never be exercised.

7.10.2002

EN

Official Journal of the European Communities

C 241/109

2)

3)

The derogation envisaged in the last paragraph of
Article 4(1) enables a Member State to verify, in the case
of a child aged over 12 years, whether ‘he or she meets a
condition for integration provided for by its existing
legislation on the date of adoption of this Directive’. It is
not entirely clear what the ‘condition for integration’
might be, but it seems clear that this derogation is
intended to meet the requirements of Member States
which increasingly wish to select the potential of very
young migrants to meet their own production needs.

The time-limit for responding to the application for
reunification is extended from six to nine months
(Article 5(4)), but in exceptional circumstances a Member
State may extend it to a maximum of one year. The EESC
takes the view that the six-month limit was already more
than enough, and therefore has doubts about its extension
to nine months.

4) Member States may require an applicant to have resided
legally on their territory for a period not exceeding two
years (Article 8, first paragraph). However, by way of
derogation the waiting period between submission of the
application and issue of a residence permit to the family
members may be as long as three years, if the legislation
of the Member State in question takes account of its
‘reception capacity’. An obvious comment is that this
provision leaves a great deal to the Member State’s
discretion, and that there could be some ‘political’ flexi-
bility in the criteria actually applied.

5)

The ‘family relationship’ may be verified (Article 5(2))
through interviews and other investigations at the discre-
tion of the Member States. It is worrying that these
checks are additional to the presentation of documentary
evidence of the family relationship; moreover, the checks
could become a pretext for prolonging the procedure or
building up a negative response. Thus they could turn
into actual harassment and an invasion of privacy,
especially in cases (Article 5(2), last paragraph) where
the application concerns the unmarried partner of an
applicant.

Brussels, 17 July 2002.

6)

Finally, a more general observation: the proposal contains
many small changes the effects of which are potentially
damaging to human dignity. One example is Chapter VII,
‘Penalties and redress’, Article 16 (particularly point (1)
(b) and (c) and point (4)), where it is regarded as normal
to demand morally impeccable behaviour on the part of
a third-country national, in terms of family relationships,
in contrast to what is normally expected of EU citizens.

3. Conclusions

3.1.
It can be inferred from the specific comments above
that the text proposed by the Commission shows considerable
signs of the difficulties which emerged in two years of debate
in the Council among the Member States, or at any rate some
of them.

3.2.
The Committee therefore is decidedly opposed to these
important proposed changes to the 1999 text. However, it
does not wish formally to issue a negative opinion on the
proposal, in the hope — rather than a firm belief — that this
final stage will lead to rapid completion of the procedure and
the definitive adoption of the directive.

3.3.
The Committee firmly points out that the Laeken
European Council, and previously the Tampere European
Council, confirmed that the setting of common rules on family
reunification is an important aspect of a true common
immigration policy.

3.4.
Finally, the Committee points out that the European
Union’s Charter of Fundamental Rights is a reference point
and source of guidance for European and national legislation;
while acknowledging the delicate nature of the problems
covered by the draft directive and the special sensitivity of
European citizens on these matters,
it hopes that family
reunification problems can also be solved and that this will
contribute to the process of social integration which must
accompany the migratory flows now affecting all the states of
the European Union.

The President

of the Economic and Social Committee

Göke FRERICHS