Proposal for a Council Directive on the conditions of entry and residence of third country nationals for the purposes of studies, vocational training or voluntary service
Date: 2002-10-07
Institutions: European Commission
Subjects: administrative procedure, admission of aliens, education, foreign national, residence permit, vocational training, voluntary work

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Proposal for a Council Directive on the conditions of entry and residence of third-country
nationals for the purposes of studies, vocational training or voluntary service

(2003/C 45 E/02)

COM(2002) 548 final — 2002/0242(CNS)

(Submitted by the Commission on 7 October 2002)

EXPLANATORY MEMORANDUM

1. Context

1.1. In accordance with the objectives set by the Scoreboard to review progress in the creation of an area
of freedom, security and justice in the European Union (1), the European Commission is presenting a
proposal for a directive on the conditions of entry and residence of third-country nationals for the
purpose of studies, vocational training or voluntary service. This proposal completes the set of
initiatives already presented on immigration for the purposes of employment (2) and family reunifi-
cation (3) to harmonise national
legislation on conditions of entry and residence of third-country
nationals with a view to establishing a full legal framework governing admission on the basis of the
purpose of the stay. It has been decided that there will not be a proposal governing the admission of
third-country nationals for other purposes not provided for in the other proposals for directives, to
constitute the parallel to Directive 90/364/EEC of 28 June 1990 on the right of residence (4) of
Community nationals not enjoying the right under other provisions of Community law. The fact is
that the admission of the relatively low number of people falling in this category can be dealt with
adequately by the Member States' domestic law at the current stage of approximation of immigration
legislation. If the need for common rules is felt in the future, the Commission will be able to exercise
it's right of initiative and amplify the legislation. The Commission has now presented all the immi-
gration policy proposals needed for the implementation of Article 63(3)(a) and (4) of the Treaty
establishing the European Community, as amended by the Amsterdam Treaty. The mandate given by
point 20 of the conclusions of the Tampere European Council on 15 and 16 October 1999 (‘The
European Council acknowledges the need for approximation of national legislations on the conditions
for admission and residence of third country nationals [and] requests to this end rapid decisions by
the Council, on the basis of proposals by the Commission’) has thus been carried out on the
Commission's side.

1.2. The specific feature of migration for the purpose of studies, vocational training or voluntary service is
that it is by definition temporary and that it does not depend on the labour market situation in the
host country. It constitutes a form of mutual enrichment for the migrants who benefit directly from
it, both for their country of origin and for the host country, while helping to improve mutual
familiarity between cultures. The admission of third-country nationals for training purposes has
therefore traditionally been looked on favourably, particularly as regards students in higher education,
as can be seen in the Resolution on the admission of third-country nationals to the territory of the
Member States for study purposes (5) adopted by the Council on 30 November 1994 in the justice
and home affairs cooperation established by the Maastricht Treaty. Certain Member States apply
policies that are more and more attractive to students from third countries.

(1) Six-monthly updating, first half of 2002, COM(2002) 261, p. 23.
(2) 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).

(3) Proposal for a Council Directive on the right to family reunification (COM(1999) 638) and amended proposals

(COM(2000) 624 and COM(2002) 225).

(4) OJ L 180, 13.7.1990, p. 26.
(5) OJ C 274, 19.9.1996, p. 10.

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1.3. The number of students benefiting from international exchanges is now greater than ever, and
demand for international education and student mobility is growing constantly. One of the objectives
of European Community action on education and international relations is to promote the Member
States together as a world centre of excellence for education and to share knowledge better around
the world as a means of helping to disseminate the values of human rights, democracy and the rule of
law. In their Joint Declaration at Bologna on 19 June 1999, the Education Ministers of 29 European
States declared that ‘The vitality and efficiency of any civilisation can be measured by the appeal that
its culture has for other countries. We need to ensure that the European higher education system
acquires a world-wide degree of attraction equal to our extraordinary cultural and scientific traditions’.
As certain experiences have shown, welcoming large numbers of third-country nationals into Europe's
educational establishments, especially at master's and doctorate levels, can have a beneficial effect on
the quality and dynamism of Europe's own training systems. Establishments will have an incentive to
develop more and more high-quality courses meeting the demand for internationalisation in
education and for greater student mobility. This proposal for a directive has been designed to
ensure that the harmonisation of national legislation in the Member States governing the conditions
of entry and residence of third-country nationals for the purpose of studies contributes to the
attainment of these objectives by promoting their admission. It thus makes an indirect contribution
to the objective of developing quality education set by Article 149 of the EC Treaty and, along with
the proposal for establishing the Erasmus World programme (1), fits into the strategy of stepping up
cooperation with third countries in higher education proposed by the Commission in its communi-
cation of 18 July 2001 (2).

1.4. Many Member States more and more often provide certain third-country nationals with the oppor-
tunity to remain after their training as workers, at least for a limited period, so as to remedy shortages
of skilled manpower. Changes from student to worker status are envisaged for third-country nationals
in the proposal for a directive on the conditions of entry and residence of third-country nationals for
the purpose of paid employment and self-employed economic activities (3), Article 5 of which allows
residence permit applications to be lodged ‘directly in the territory of the Member State concerned, if
the applicant is already resident or legally present there’. But the wish to promote the admission of
third-country nationals for the purpose of studies requires the Union and the Member States to take
flanking measures to avoid amplifying the South-North brain drain, which has already acquired
unprecedented proportions. These measures form part of the partnership with countries of origin
called for by the conclusions of the Tampere European Council among other measures needed for the
establishment of a comprehensive policy on migration and should deal by way of priority with action
on the commitment given by the Community and the Member States in the third subparagraph of
Article 13(4) of the Cotonou Agreement of 23 June 2000 that they would see that in vocational
training schemes in the Member States national and regional cooperation programmes would be
oriented towards vocational integration of ACP nationals in their country of origin.

1.5. The wish to promote the admission of third-country nationals for the purpose of studies or vocational
training must be accompanied by a constant concern to safeguard public policy and public security.
On this point the proposal contains provisions that are broad enough to leave the Member States
with the room for manoeuvre they need to refuse admission or terminate the stay of a third-country
national who constitutes a threat to public policy and public security (Articles 5 and 15(2)). The fact
that the various types of residence permit covered by the proposal have a general maximum period of
validity of one year, except in special cases, or must be renewed every year will make it easier for
Member States to exercise strict control.

(1) Proposal for a European Parliament and Council Decision establishing a programme for the enhancement of quality
in higher education and the promotion of intercultural understanding through cooperation with third countries
(COM(2002) 401).

(2) COM(2001) 385.
(3) COM(2001) 386.

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2. Background and compatibility of the proposal with other Commission initiatives

2.1. The objective pursued by this proposal for a directive has already been covered, in whole or in part,
by a number of European instruments or initiatives. Apart from the 1994 Council Resolution on the
admission of third-country nationals for study purposes (see point 1.2, supra), the 1997 Commission
proposal for a Council Act establishing the Convention on rules for the admission of third-country
nationals in the Member States (1) contained provisions relating to admission for study and vocational
training purposes and other purposes, but no action was taken on it because of the entry into force of
the Amsterdam Treaty.

2.2. The Commission asked the International Centre for Migration Policy Development (ICMPD) for a
comparative law study by way of input for the preparatory work on this proposal for a directive. The
findings were published by the Official Publications Office of the European Communities in 2001 as
‘Admission of third country nationals to an EU Member State for the purposes of study or vocational
training and admission of persons not gainfully employed’. The Commission also engaged in wide-
ranging consultations on the basis of an internal discussion paper. Apart from bilateral consultations
with delegations of officials from administrative bodies in the Member States, the opinions of many
representative organisations in the fields of education, vocational training, voluntary service and
migration and of the social partners were sought both in Europe and in its Member States. The
results helped make it possible to enrich and improve the proposal substantially on many points.

3. Objectives and overview of the proposal

3.1. The proposal distinguishes four categories of third-country nationals: students, school pupils, unre-
munerated trainees and people doing voluntary service (volunteers). Admission for study purposes
mainly concerns higher education, as it is well known that this is where international mobility is most
common and admission for the purpose of vocational training concerns the acquisition of occupa-
tional skills in a public- or private-sector enterprise or vocational training establishment. Provisions
have been made in the proposal for a directive to promote secondary school pupil exchanges between
the European Union and non-member countries to stimulate the discovery of European culture by
young people from non-member countries, especially as they might subsequently be tempted to
return to their host Member State to pursue their studies in higher education. The proposal also
contains provisions for volunteers, who sometimes have difficulty obtaining a residence permit since,
as they are not workers (being unremunerated), nor students (not being enrolled in an educational
establishment), they are sometimes regarded as not belonging to any specific category of migrants.

3.2. Apart from the general conditions for admission, the proposal lays down the specific conditions for
admission of each of the four categories. They have been drafted as objectively as possible to promote
admission on the grounds set out at points 1.2 and 1.3 while preserving the Member States' room for
discretion. The main criterion for admission of third-country nationals for purposes of study, voca-
tional training or voluntary service must be, apart from an assurance that they have adequate
resources to cover their needs during their stay, admission to an educational establishment, partici-
pation in a pupil exchange scheme programme, a vocational training contract or participation in a
voluntary service scheme, as the case may be. As regards the resources criterion, it is proposed that
for students and trainees the Member States should publish the minimum monthly financial resources
required. The resources of school pupils and volunteers are a matter for their host family or voluntary
service organisation, which must meet their needs.

(1) OJ C 337, 7.11.1997, p. 9.

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3.3. Mobility of students between Member States must be facilitated so that the European Union can
reflect the reality of the growing internationalisation of education. Two situations need to be distin-
guished: first, the situation of third-country nationals admitted to the European Union for the purpose
of studies, in respect of whom Article 7 of this proposal acknowledges, once they have been admitted
a first time to a Member State, the right to reside in another Member State to pursue part of the
course they have started or to take a further course, provided they meet specific conditions; and
second, the situation of third-country nationals who already reside in the European Union for whom
this proposal contains no provisions, since Article 16(1) of the proposal for a directive on the status
of
third-country nationals who are long-term residents allows them, once they have acquired
long-term resident status (i.e. after five years' uninterrupted lawful residence), the right to reside in
another Member State for study or vocational training purposes. The proposal also contains a
provision to facilitate the admission of
third-country nationals participating in Community
programmes to encourage mobility towards or within the European Union (Article 5(2)).

3.4. To reflect the cost of training and the fact that more and more people have to work to help pay for it,
the proposal gives students generally and unremunerated trainees limited access to the employment
market up to a maximum number of weekly hours to be set by each Member State at between 10
and 20 hours, while allowing the Member States to insist that those concerned make a declaration of
their working activity so that compliance with this limit can be monitored.

3.5. The proposal also contains procedural provisions. In particular, it allows applicants other than holders
of short-stay visas to apply for their residence permit locally. Apart from the maximum time allowed
for issuing residence permits and visas, which, assuming the application is fully in order, is 90 days,
the proposal provides a basis for the good practices of certain Member States which expedite the
procedures for admitting students and school pupils and provides for their generalisation across the
European Union by means of agreements to be concluded between the Member States' immigration
authorities and educational establishments or exchange organisations. To promote in third countries
education and vocational training possibilities available in Europe, Member States are asked to make
efforts at transparency so as to ensure that third-country nationals can have access in their countries
of origin to information about education and vocational training establishments and programmes
open to them in the Member States and the conditions and procedures for admission to the territory.

4. Choice of legal basis

4.1. The legal basis for the proposal has been selected on the basis of its purpose, which is to lay down
the conditions and procedures for entry and residence by third-country nationals in the territory of
the Member States for the purpose of studies, vocational training or voluntary service. It does not
concern the conditions for admission to education establishments or vocational training schemes,
which remain the responsibility of the Member States and possibly of the relevant establishments,
authorities or firms themselves. This directive will not require the Member States to open up their
education or vocational
training schemes to third-country nationals where they are currently
excluded, nor to establish one or other kind of vocational training scheme to which it applies
which they do not already have (such as on-the-job training in firms). Article 63(3)(a) and (4) of
the EC Treaty, as amended by the Amsterdam Treaty, which entered into force on 1 May 1999,
provides that the Council is to adopt measures relating to immigration policy in the following areas:
‘(a) conditions of entry and residence, and standards on procedures for the issue by Member States of
long-term visas and residence permits, including those for the purpose of family reunion’, and this has
been taken as the legal basis.

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4.2. This proposal must therefore be adopted by the procedure of Article 67 of the EC Treaty: the Council
acts unanimously on a proposal from the Commission or the initiative of a Member State after
consulting the European Parliament. Since it is based on Title IV of the Treaty, Denmark will not
participate in the adoption of the directive, which will not be binding on it or applicable to it by
virtue of Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Union and EC
Treaties. Nor will it apply to the United Kingdom or Ireland by virtue of Articles 1 and 2 of the
Protocol on the position of the United Kingdom and Ireland, unless they decide otherwise in
accordance with the procedure determined by that Protocol.

5. Subsidiarity and proportionality

5.1. The European Community does not have exclusive powers under Title IV (Visas, asylum, immigration
and other policies related to free movement of persons) of the EC Treaty and therefore, in accordance
with the subsidiarity and proportionality principles, can act only if and to the extent that the
objectives of the proposed action cannot be sufficiently achieved by the Member States and can
therefore, by reason of the scale or effects of the proposed action, be better achieved by the
Community, and the Community action may not go beyond what is necessary to achieve the
objectives of the Treaty. The proposal for a directive meets these requirements.

5.2. The conditions of entry and residence of third-country nationals for the purpose of studies or
vocational training currently diverge widely between the Member States. The first objective of this
directive, which is to establish a harmonised Community legal framework for the conditions for entry
and residence of third-country nationals in the territory of the Member States for a period exceeding
three months for those purposes, and for the procedures for issuing residence permits and visas
allowing them to enter and reside in the Member States for those purposes, cannot be sufficiently
achieved by the Member States. Moreover, the promotion of the European Union as a whole as a
world centre of excellence for education and vocational training, to which this proposal contributes,
can obviously be better attained at Community level than at national level.

5.3. The proposed instrument is a directive that lays down general principles and leaves it up to the
addressee Member States to choose the most appropriate form and methods for implementing many
points of it in their domestic law in the domestic context. The proposal refers to Member States' own
rules and regulations and administrative practice as regards the definition of establishment of higher,
professional or secondary education or vocational training and requirements for accreditation or
similar and the determination of
the language schools and courses for which third-country
nationals can apply. Certain conditions, such as proof of payment of enrolment fees demanded by
the establishment and fees for processing applications for residence permits and applicants' language
skills, are not mandatory but left to the discretion of the Member States (Article 5(1)(d), Article 6(1)(c)
and (d) and Article 9(c)). Account has been taken of the fact that in some countries health-care
insurance is available automatically to those who enrol at an educational establishment (Article 6(2)).
Lastly, the financial resources that students or unremunerated trainees may be required to have are
not determined by the directive, the Member States simply being required to publish the minimum
amount that they determine. Out of the same concern for flexibility, other conditions are not
determined by the directive but left to the Member States' discretion (such as those relating to age
limits of school pupils and volunteers). As regards fast-track procedures, the directive likewise merely
sets a general framework within which the relevant authorities of the Member States and educational
establishments and pupil exchange organisations may agree on procedures for issuing residence
permits, in particular the shortened time-spans applicable here.

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ARTICLE-BY-ARTICLE COMMENTARY

Chapter I

General provisions

Article 1

The purpose of this proposal is to determine the conditions for entry and residence of third-country
nationals in the territory of the Member States for the purposes of studies, vocational training or voluntary
service and rules concerning the procedures for issuing residence permits.

Article 2

This Article defines the concepts used in the proposal where this is necessary. The definitions are directly
inspired by those used in other instruments of Community law.

(a)

‘Third-country national’ means people who do not have the nationality of a Member State of the
European Union and stateless persons;

(b) ‘Student’ mainly means people admitted to an establishment of higher education. Since the proposal
covers admission for the purpose of vocational training generally, professional education, which is a
common form of vocational training and can be useful to third-country nationals when it is not
available in their countries of origin, is also within the scope of the proposal, even if it is not at
the higher education level. But outside professional education, admission of third-country nationals at
lower education levels is not covered by the proposal, except as regards secondary school pupils
travelling on exchange schemes, which should be encouraged as a means of helping young people
from third countries discover the culture of the European Union and its Member States;

(c)

‘Course of study’ means full-time courses and therefore excludes, for instance, evening classes, for
which the Member States do not generally admit third-country nationals as students. Moreover, the
course must be followed for the purposes of obtaining the qualification that is issued at the end of it,
which excludes those attending as guest students (Gasthörer, auditor, etc.);

(d)

‘School pupil’ means people admitted to an establishment of secondary education. The proposal covers
mobility of such people only in the context of exchange schemes run by specialised organisations
accredited for the purpose by the relevant Member State in accordance with Article 8(1)(c) but not
individual mobility, which remains subject to the domestic law of the Member States;

(e)

‘Unremunerated trainee’ means people receiving unremunerated vocational training under a training
contract in accordance with Article 9(a);

(f)

‘Vocational training’ means all forms of vocational training, including basic vocational training for the
acquisition of vocational skills, refresher training for the enhancement of vocational skills (further
training and specialisation) and vocational conversion, provided the course is a full-time one. The
entities in which the training can be followed are defined in broad terms to take account of the
diversity of vocational training systems in the Member States, which vary even more widely than
education systems. They include public- or private-sector vocational training schemes accredited or
financed by the Member States in accordance with their regulations or administrative practice, with the
exception of bodies treated under point (g) as educational establishments, and public- or private-sector
enterprises of whatever legal status, size or line of business, including non-profit bodies;

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(g)

‘Establishment’ means both public establishments and private establishments that are accredited or
financed by Member States. For the definition of higher education establishments and professional and
secondary education and for the rules governing accreditation (in the broad sense of recognition or
even of registration with the authorities), each Member State's domestic law or administrative practice
will apply, as is the usual case in Community instruments relating to education and vocational training
(e.g. Parliament and Council Decision 253/2000/EC of 24 January 2000 establishing the second phase
of the Community action programme in the field of education ‘Socrates’ (1)). It is proposed that
professional training bodies be treated in the same way as educational establishments since they
provide the pupils registered in them with the same kind of courses. These are entities (sometimes
known as professional schools in some Member States) that for whatever reason (for instance, they do
not depend on an Education Ministry) are not formally regarded as being educational establishments.
But there is no reason for treating these establishments differently from educational establishments if
they provide the same kind of courses and their relationship with people following these courses is
based on enrolment in the establishment rather than a training contract as in the case of unremun-
erated trainees;

(h) ‘Voluntary service scheme’ is defined by reference to Parliament and Council Decision 1686/98/EC of
20 July 1998 establishing the Community action programme ‘European Voluntary Service for Young
People’ (2) and the Council of Europe Convention of 11 May 2000 on the Promotion of a Trans-
national Long-term Voluntary Service for Young People. A ‘volunteer’ means a person engaging in an
activity of practical solidarity in relation to others and for his personal enrichment. The activity must
be gainful neither for the organisation for which the person concerned is working nor for the person
concerned and may not be remunerated, though benefits in kind and pocket money are not regarded
as remuneration.

Article 3

1. There are certain instruments governing the conditions of entry and residence of third-country nationals
for the purposes covered by the proposal. The Commission's intention in proposing this Directive is not
to exclude these instruments, which will continue to apply to third-country nationals if they are more
generous to them.

2. This paragraph allows Member States to maintain or introduce provisions that are more favourable to
third-country nationals, provided they are compatible with the Directive. They might wish, for instance,
to extend the rule against nationality discrimination to the third-country nationals to whom the
Directive applies.

3. Paragraph 3 excludes certain categories of people from the scope of the Directive:

(a) The exclusion of asylum-seekers and persons enjoying temporary or subsidiary protection does not
concern their right to education or vocational training under the relevant (proposals for) directives
but the fact that they cannot use this Directive as a basis for applying for a change of status (e.g.
from asylum-seeker to student), such changes being possible only under the more generous
provisions of each Member State's domestic law.

(b) Third-country nationals who are members of the family of a Union citizen who has exercised his
right to free movement in the Community are excluded from the scope of this Directive as they
indirectly enjoy the right to free movement available to Community nationals.

(1) OJ L 28, 3.2.2000, p. 15.
(2) OJ L 214, 31.7.1998, p. 1.

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(c) Third-country nationals enjoying long-term resident status in a Member State are excluded from the
scope of this Directive since it is proposed that their right to reside in other Member States for
study or vocational training purposes is covered by Article 16(1)(b) of the proposal for a Directive
on the status of third-country nationals who are long-term residents.

Chapter II

Conditions for entry and residence

Article 4

The purpose of this Article is to ensure the effective application of the approximation of national legis-
lation by this Directive by providing that the Member States may admit third-country nationals who are
within its scope only if the proper residence permit has been issued in accordance with its provisions.

Article 5

1. Article 5 lays down the general conditions for admission to be met by third-country nationals under
this proposal in addition to the specific conditions for whichever of the Article 6 to 11 categories they
belong to:

(a) apart from the usual documents (passport or equivalent travel document), it is provided that minors
in the domestic law of the host Member State must have a parental authorisation for the planned
stay;

(b) the reason for this condition is that is a basic requirement in the same way as for most of those

who enjoy free movement in Europe;

(c) this traditional requirement of immigration law has been drafted in flexible terms, leaving it to the
Member States to determine the documents that are needed so as not to impose requirements (such
as presentation of a certificate of good conduct or an extract from the criminal record) in relation to
third countries where they may be difficult or even impossible to meet if the documents do not
exist;

(d) for the sake of flexibility, this condition is not mandatory and only such Member States as wish to

do so will have to impose it.

2. Paragraph 2 logically enough seeks to facilitate the admission of third-country nationals participating in
Community programmes such as Socrates in education, Leonardo da Vinci in vocational training, Youth
in voluntary service or other more specific programmes (such as Alpha or Alban for Latin America,
Scholarship 2000 for China and so on). This will be all the more important as the Commission is
proposing a new Community programme, ‘Erasmus world’, to promote the admission of third-country
nationals for study purposes in the Member States by making grants (1). The point of facilitating the
issuance of residence permits and, where required, visas is that the Member States must issue them in
good time for the holder to be able to take part in the activities covered by the Community programme
without delays. The effect of Article 7 of this proposal and Article 16 of the proposal for a Directive on
the status of third-country nationals who are long-term residents is that this provision will concern only
third-country nationals (in particular nationals of applicant countries) applying for their first admission
to a Member State and to those who reside in a Member State and wish to receive training in another
Member State before acquiring long-term resident status.

(1) Proposal for a Parliament and Council Decision establishing a programme for the enhancement of quality in higher
education and the promotion of intercultural understanding through cooperation with third countries (Erasmus
World 2004-2008) (Document COM(2002) 401).

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Article 6

1. Article 6 determines the specific conditions for the admission of third-country nationals for study

purposes.

(a) The first basic condition is admission to an establishment of higher or professional education within
the meaning of Article 2(g) to follow a course within the meaning of Article 2(c). Admission to an
establishment is the preliminary condition for issuance of a residence permit. The condition that
third-country nationals must meet when their permit or visa is issued is that they must be admitted
though not necessarily enrolled, as enrolment documents are often handed over when the student
actually arrives. The student could then prove that he meets the condition by presenting a letter of
definite admission without having to present a certificate of enrolment. The provision also allows
the temporary stay of third-country nationals who have been admitted by an establishment subject
to passing an entrance test or obtaining a decision on the equivalence of their foreign qualification.

(b) The second condition relates to the resources that students may be required to have before being
allowed to enter and reside in the Member States. Students must provide proof that they have
sufficient resources to cover their subsistence, study and return travel costs throughout their stay.
This provision has been drafted flexibly so as to leave the Member States with room for discretion
as to the manner in which students may prove that they meet this condition. No minimum amount
is proposed in the directive, this being left for a decision by each Member State on the basis of the
resources that people studying normally have to have there. This amount will constitute a point of
reference for examining each candidate's personal situation (e.g. admission to low-cost university
accommodation, resources in kind such as accommodation or food that the candidate may enjoy
free of charge from family members residing lawfully in the Member State concerned). From the
time of the first renewal of the ‘student’ residence permit the Member States are to have regard,
when assessing the student's resources, to any income from work done during the stay in the
country within the limits set by Article 18.

(c) and (d) The last two conditions — sufficient knowledge of the language of the course and prior
payment of enrolment fees for the educational establishment — are not mandatory but are
left to the discretion of the Member States for the sake of flexibility.

2. In certain Member States, people attending an educational establishment are automatically eligible for
health-care insurance by reason of enrolment. The purpose of this paragraph is to clarify their situation
in relation to the health-care insurance requirement among the general admission conditions in Article
5(1)(b).

3. This paragraph concerns language courses, for which third-country nationals may apply. Language
teaching varies widely in terms both of organisation (it is sometimes given by commercial firms)
and of duration (many language courses are not full-time). It is therefore reasonable to leave the
Member States free to determine both the suppliers and the types of course for which they are
willing to admit third-country nationals.

Article 7

Article 7 seeks to meet the growing demand for student mobility and concerns only those who have been
admitted to a Member State in that capacity and not third-country nationals residing there in some other
capacity who might, if they wished to study or receive vocational training in a Member State other than
the one where they are settled, be eligible for the benefit of Article 16(1)(b) of the proposal for a Directive
on the status of third-country nationals who are long-term residents. The ‘student’ residence permit issued
on the basis of this Directive entitles the holder to reside in the Member State where he wishes to continue
his studies, provided, in addition to the specific conditions provided for in this provision, he meets the
general and specific admission conditions laid down by Articles 5 and 6. To limit the risks of a gap
between the expiry of the residence permit issued in the first Member State and the commencement of the
residence permit in the second, the time allowed for issuing it has been cut to 30 days.

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This right of residence is confined to cases where the student wishes either to pursue part of his studies in
the other Member State for more than three months and then return to complete them in the Member
State where he was first admitted, or to complete his course of studies in another Member State (which
presupposes that he passes the tests required for the purpose), or add another course in another Member
State. It therefore does not cover students who wish to follow a course of study not adequately related to
the studies they have already completed (in particular, students wishing to change subject or branch are
not covered). The Member State will in this case retain its general discretion under Article 6(1). This right
of residence is also limited by the possibility for the Member State to refuse a student's application on the
basis of Articles 11(2)(c) and (d), 15 and 16. To ensure in particular that a student who does not make
satisfactory progress in his studies cannot attempt to circumvent Article 11(2)(d), it is provided that the
student must send the State in which he wishes to pursue his studies full details of his academic record (in
particular the number of years completed and the results) with the application for a residence permit and
the State in which the student has already been admitted, at the request of the State applied to, must send
information on the student's academic record in establishments in its territory. If the student wishes to
commence a new course in another Member State, he must have documentary records showing that it
complements the one taken in the Member State where has was admitted. All these conditions are
intended to ensure that third-country nationals cannot abuse their right of residence by over-extending
their stay in the European Union under cover of their student status.

Article 8

1. Article 8 concerns school pupils who are third-country nationals in secondary education within the
meaning of the regulations or administrative practice of the Member State concerned. It covers only
mobility organised in the context of exchange schemes managed by specialised organisations and not
individual mobility, which will remain subject to the Member States' domestic law.

(a) The young people concerned tend to be between 16 and 18, but for the sake of flexibility the

proposal leaves it up to each Member State to determine age limits.

(b) This condition has been drafted in a similar way to the one for students in higher or professional

education.

(c) This vital condition concerns participation in a pupil exchange scheme. It must be operated by an

accredited organisation in the Member State concerned in accordance with its own rules.

(d) The pupil must provide evidence that the organisation running the exchange scheme and not the
host family referred to at point (e), must assume liability for the subsistence, study and health-care
costs throughout his stay and his return travel costs so that the host State can call on it by way of
guarantee. This form of liability is warranted by the fact that the pupil's resources are not verified. It
is particularly significant in connection with the fast-track procedures provided for by Article 21 of
the proposal.

(e) This condition, which relates to the pupil's accommodation in a host family, is just as essential. This
is after all one of the prime objectives of the stay, as it helps the pupil learn about the host State's
culture and language. The family will be selected in accordance with the rules of the scheme in
which the pupil is participating and could be one of the criteria on the basis of which the Member
State will decide whether to issue a permit in the light of the conditions which it may itself
determine in this respect.

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2. The purpose of this condition of reciprocity is to enable each Member State which so wishes to

continue reserving exchanges for those countries that accept its own young people.

Article 9

Article 9 determines the specific conditions for the admission of third-country nationals for purposes of
vocational training. The concept is to be interpreted strictly for the purposes of this Directive and not
broadly as in Council Directive 93/96 of 29 October 1993 on the right of residence for students (1). The
term used is ‘trainee’, the same term as in the Council Resolution of 20 July 1994 on limitations on
admission of third-country nationals to the territory of the Member States for employment (2) and in the
Commission proposal for a Directive on the conditions of entry and residence of third-country nationals
for the purpose of paid employment and self-employed economic activities.

(a) The trainees concerned by this proposal are those who are not remunerated; remunerated trainees are
covered by the proposal for a Directive on the conditions of entry and residence of third-country
nationals for the purpose of paid employment and self-employed economic activities. Apart from the
basic criterion of non-remuneration, the difference between the two categories is defined by reference
to the legal instrument linking the trainee to the entity in which he is receiving his vocational training.
In the case of trainees covered by this proposal, this is a training contract, whereas trainees covered by
the other proposal will have an employment contract (for instance an apprenticeship contract). The
training contract must be approved in all cases where the Member States so require, which basically
applies to training in enterprises rather than in vocational training establishments that are themselves
accredited or financed by the Member States. Benefits in kind and sums of money to cover certain
costs incurred by the trainee or pocket money and gratuities are not treated by this Directive as
remuneration. Checks by the Member States for compliance with these admission conditions will
aim to ensure that unremunerated trainees are not employed in place of proper workers. To keep
the risk to the minimum, this proposal (Article 14) places strict limits on the duration of the residence
permit for unremunerated trainees.

(b) This resources condition is drafted in the same way as for students, subject to the adjustments necess-
itated by the fact that trainees in vocational training are concerned. For the rest, see the commentary
on Article 6(1)(b).

(c) The condition relating to knowledge of the host Member State's language is more flexible than in the
case of students. The language knowledge needed for vocational training is not the same as for studies,
and experience has shown that many trainees improve their language skills as their training progresses.
Initial language teaching can be given either before the trainee leaves home or at the beginning of his
stay if he already has an elementary knowledge of the relevant language, as the case may be and
depending on the requirements of the Member State concerned.

Article 10

This provision determines the specific conditions for the admission of third-country nationals doing
voluntary service:

(a) This condition is drafted in the same way as for school pupils in Article 8(1)(a). For example, the age
limits for volunteers have been set at 18 and 25 both by the Community action programme ‘European
Voluntary Service for Young People’ and by the Council of Europe Convention on the Promotion of a
Transnational Long-term Voluntary Service for Young People.

(1) OJ L 317, 18.12.1993, p. 59.
(2) OJ C 274, 19.9.1996, p. 6.

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(b) This vital condition concerns the third-country national's participation in a voluntary service scheme.
The scheme must be operated in the Member State concerned by a non-profit organisation pursuing
general-interest objectives. The host organisation must be accredited by the Member State concerned in
accordance with its own rules. The volunteer must come under a contract between himself and the
host organisation. The contract must clearly specify the volunteer's tasks and hours of work so that the
Member State concerned can be sure that the voluntary service does not include activities that ought to
be covered by an employment contract. It must also specify the management structure within which
the volunteer will operate and to which he can look for help with any difficulties he might have, which
might for example mean that the host organisation appoints a supervisor to assist him during his stay.
And it will include a commitment to defray the volunteer's travel, training, liability insurance, board,
lodging and transport costs and a reasonable amount of pocket money for the duration of his stay,
precise figures being given. These resources do not need to come exclusively from the organisation
running the voluntary service scheme but can come from other sources (such as housing supplied by a
member of the volunteer's family lawfully residing in the relevant Member State). The fact that the host
organisation takes full responsibility for the duration of his stay means that no condition as to
resources need be imposed on the volunteer himself;

(c) The volunteer must prove that the organisation running the scheme has subscribed to a liability
lodging and

insurance policy covering his activities and accepts full responsibility for his board,
transport costs for the duration of his stay and can be called on as guarantor;

(d) To ensure that the voluntary service activities proceed smoothly and that the volunteer, whose stay is
supposed to be profitable above and beyond the gesture of practical solidarity, derives full benefit from
it, the volunteer must be given an introduction to the host State's language, history and society.
Depending on the case, this introduction may be given before he leaves home or at the beginning
of his stay.

Chapter III

Period of validity and renewal of residence permits

Article 11

1. Article 11 is drafted in flexible terms so that the duration of ‘student’ residence permits can be adjusted
in line with the duration of the particular type of studies. The basic idea, which corresponds to practice
in many Member States, is that these permits should be issued for one year, unless the course is shorter
than that, in which case it would be for the duration, as it would if the student is admitted to the
Member States subject to obtaining a decision on the equivalence of his foreign qualification or passing
an entrance test. The proposal also allows Member State which wish to do so to issue ‘student’ permits
valid for more than a year so as to cover the full duration of a course. Permits are to be renewable from
year to year unless they are for a course that lasts less than a year.

2. Paragraph 2 specifies the conditions for renewal or withdrawal of the ‘student’ residence permit. Some
of these are additional conditions on top of those for the issue of residence permits under Articles 5
and 6.

(a) This provision operates where a student is admitted to an establishment subject to an entrance test

but fails and is not enrolled.

(b) This provision operates where a student admitted subject to obtaining a decision on the equivalence

of his foreign qualification fails to obtain it.

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(c) This provision allows the Member States to prevent student status being abused by third-country

nationals who work instead of studying.

(d) This provision operates where a student does not make sufficient progress in his studies. For a
sound understanding of its scope, it should be remembered that educational establishments are a
filter upstream of checks performed by the authorities responsible for residence matters since, if
they do not re-enrol the student, he automatically loses the possibility of renewing his residence
permit as he no longer satisfies Article 6(1)(a). It has been formulated in general terms as it is
impossible to lay down more specific provisions when there is such a variety of methods for
assessing students at European educational establishments. This condition gives the Member
States extensive discretion to pass judgement on students' academic records where they have
been re-enrolled in their establishment, so mandatory prior consultation of the student's educational
establishment is provided for to be sure that the authority issuing the residence permit takes a
properly informed decision. The educational establishment's opinion, which will not bind the
authority, will concern both the student's detailed results and the probable reasons for them. If
the establishment does not respond within a reasonable period of time, the authority may proceed
without its opinion.

Article 12

This provision concerns the ‘pupil exchange’ residence permit, valid for one year and not renewable.

Article 13

This provision concerns the ‘unremunerated trainee’ residence permit, valid for one year and renewable
once only on an exceptional basis where this is necessary to enable the trainee to complete his vocational
training. As in the case of students, it can be withdrawn if the holder does not comply with the limits
imposed by Article 18 on the right to work, where the right is actually given in the Member State.

Article 14

This provision concerns the ‘volunteer’ residence permit, valid for one year and not renewable.

Article 15

This provision concerns situations where a residence permit or visa to which this Directive applies may be
refused or withdrawn. The first paragraph applies where the holder does not meet or no longer meets the
conditions for entry and residence in the territory of the Member States. The second concerns public
policy, public security and public health considerations, which must relate exclusively to the personal
conduct of the third-country national concerned. These decisions must be taken case by case in the light of
the individual's specific situation and of the proportionality principle. And a person may never be
penalised for suffering from a disease contracted after entering the territory.

Article 16

Article 15(2) relating to public policy, public security and public health considerations leaves the Member
States with considerable discretion, but Article 16 provides for the mandatory withdrawal of residence
permits or visas issued on the basis of this Directive where fraud has been perpetrated.

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Chapter IV

Rights of third-country nationals

Article 17

This provision logically enough gives the holder of a residence permit the right to enter and reside in the
Member State that issued it, without prejudice to the provisions concerning their right to travel for three
months in the Schengen countries. Since many Member States issue residence permits only when the
third-country national is in the country and therefore impose a visa requirement for initial entry, it is
provided that they must facilitate its issuance.

The proposal for a directive contains no provisions resembling Article 3 of Council Directive 93/96/EEC of
29 October 1993 on the right of residence for students, whereby ‘This Directive shall not establish any
entitlement to the payment of maintenance grants by the host Member State on the part of students
benefiting from the right of residence’ (1). A provision such as this is superfluous as third-country nationals
are not entitled to the principle outlawing nationality discrimination on the basis of Article 12 of the EC
Treaty.

Article 18

This provision governing access to the employment market applies only to students and unremunerated
trainees, and all other categories of third-country nationals to whom this Directive applies (school pupils
and volunteers) do not have it.

The first subparagraph gives students the right to work within certain limits designed to preserve the prime
objective of their stay, which is to study. It is provided in general terms that students may work only
outside normal class hours, which vary according to the type of course. A maximum number of weekly
working hours will be imposed: to take the fullest possible account of the wide variety of rules currently
applied in the Member States, the proposal for a directive does not actually determine the number but
leaves the individual Member States to do so within a 10 to 20 hours range. The lower figure is calculated
to give the student the possibility of adding significantly to his resources, bearing in mind that the Member
States are encouraged to have regard, when first renewing the residence permit, to the student's earned
income for assessing his resources (see commentary on Article 6(1)(b)); the upper figure, which roughly
corresponds to a half-time job, is regarded as the limit of what is compatible with full-time studies (Article
6(1)(a)). These limits, logically enough, will not apply during holiday periods.

The aim of the second subparagraph is to allow the Member States that so wish not to give students a
general right to work in the first year of their stay. This provision is to discourage those who might wish
to work in the European Union by abusing their student status and because the first year of the stay can
often be a difficult transition year during which they are best advised to concentrate on their studies and
make progress in them. It is also provided that the Member States may withdraw a student's right to work
if he does not make progress in his studies, the aim being to preserve the objective of his stay, which is to
study and not to work. It should be borne in mind that a student's failure to respect the limits imposed on
the right to work is a ground for refusing to renew his residence permit or for withdrawing it.

The third subparagraph concerns unremunerated trainees, to whom the proposal for a directive does not
give the right to work, though it allows the Member States that so wish to give that right within the same
limits as for students. This provision would allow those concerned to add to their resources even though
their stay may be shorter than a student's stay (see Article 13). To protect the unremunerated status of
their training, it is provided that trainees may work neither directly nor indirectly for the firm in which
they are receiving their training.

(1) OJ L 317, 18.12.1993, p. 59.

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The fourth subparagraph concerns the formalities that may be required of students who work. Generally
speaking, both during and outside vacation periods, they do not need a work permit. But the first
subparagraph provides that students wishing to work in a self-employed capacity must abide by the
specific rules of their chosen trade for verification that they have the requisite qualifications. To facilitate
verification of students' compliance with the limits on their working hours, the Member States may require
them to declare their employed or self-employed activity at an authority designated for the purpose. The
declaration may be imposed before or after taking up work. The same declaration may be required of
students' employers. This declaration system is not mandatory, to avoid encumbering the formalities in
Member States that do not feel the need for it.

Chapter V

Procedure and transparency

Article 19

This provision concerns the presentation of applications for residence permits. The normal procedure is for
applications to be presented while the third-country national is still outside the country, as a rule in the
country where he officially resides. Third-country nationals covered by this proposal for a directive are to
be allowed to present an application locally when already in the Member State concerned. But this
possibility is confined to persons residing there lawfully for a period of more than three months,
which excludes holders of visas for three months or less. A general derogation allowing the Member
States to examine an application from a person not meeting the conditions imposed by this Article is
provided for, both for the sake of flexibility and to leave the Member States the possibility of regularising
situations where necessary.

Article 20

This provision concerns the guarantees given to third-country nationals in the procedures for issuing
residence permits and visas covered by this proposal for a directive — the time allowed to issue them,
reasons to be given for decisions refusing to issue them, or amending them, or not renewing them or
withdrawing them — and the right to judicial review of such decisions.

Without prejudice to Article 21, the maximum time allowed for a residence permit to be issued in normal
circumstances is three months, which should enable students applying at the end of their secondary
schooling to receive a permit in time for the beginning of the next academic year.

Article 21

This provision concerns fast-track procedures for issuing ‘student’ and ‘pupil exchange’ residence permits to
facilitate the admission of these two categories of third-country nationals. It provides a legal basis for the
successful experiences of certain Member States which can be spread throughout
the Union. The
mechanism is based on the conclusion of an agreement between the authority issuing residence permits
and educational establishments or pupil exchange organisations under which permits or visas will be
issued in a period shorter than the three months provided for by Article 20(1). Applications will be
made by the establishment or organisation, and the permit will be in the name of the student or pupil.
This provision is no more than a possibility both for the Member States and for the establishments and
organisations potentially concerned.

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The agreement must govern at least the following points:

(a) and (b)
The manner in which the establishment or exchange organisation will verify compliance with the
conditions for entry and residence on behalf of the residence permits authority. This is a fundamental
factor in speeding up the procedure and avoids making it more complicated than the normal procedure.
The point is not that powers should be delegated by that authority to establishments or organisations, as it
would retain full power to check for compliance, but it can examine applications more quickly on account
of the relationship of trust that flows from the agreement. It goes without saying that public policy, public
security and public health considerations will be enforced only by the competent authority.

(c) For the sake of flexibility, the time-limit to be set by the agreement is not determined by the directive
itself, but it must obviously be shorter than the normal three months provided for by Article 20(1).

(d) To ensure that the establishments and organisations concerned act with proper responsibility in
selecting and handling the cases they decide to process by the fast-track procedure, the agreement
must contain a denunciation clause for cases where it is found that third-country nationals admitted in
this way no longer meet the conditions for residence.

(e) This clause concerns only agreements with pupil exchange organisations. As Article 8(1)(d) requires
them to assume responsibility in relation to the Member State concerned for the subsistence, study,
health-care and return travel costs of the pupil throughout the period of his exchange visit to the
including the
Member State concerned,
financial terms, on which it will be liable.

it is normal that the agreement should specify the terms,

It is quite possible for an establishment in a third country which sends its students to an establishment in
the Community to be a party to such an agreement, especially in cases where there is a specific agreement
for cooperation between universities (e.g. under the new Erasmus World Programme). Obviously, estab-
lishments in third countries cannot be involved in verifying compliance with conditions for admission to
the Member States, but the agreement could govern procedures for transmitting files on students between
establishments and prior checking of conditions for admission to the European educational establishment.

Article 22

This provision concerns the fees that Member States may charge residence permit applicants. It is proposed
that the fees be set by the individual Member States up to a maximum level depending on the actual
administrative costs incurred in handling applications.

Article 23

This provision aims to encourage the world-wide dissemination of information on the possibilities for
studies in the European Union for third-country nationals so as to promote in turn the Member States'
educational and vocational training establishments. This information, which must be regularly updated,
relates both to the conditions and procedures for entry and residence in the territory of the Member States
(notably the minimum monthly financial resources that the Member State requires students to have for the
purposes of Article 6(1(b)) and, wherever possible, given the large numbers and wide variety, the courses
and establishments accessible to third-country nationals. The Member States do not necessarily have to
distribute the information themselves, as they can leave this, for example, to the actual educational
establishments, but they must ensure in particular that it is available on the Internet.

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Chapter VI

Final provisions

Article 24

A standard non-discrimination clause based on Article 13 of the EC Treaty and Article 21 of the Charter of
Fundamental Rights of the European Union. This provision does not violate the obligations flowing from
other international instruments such as the European Convention for the Protection of Human Rights and
Fundamental Freedoms.

Article 25

A standard provision in Community law leaving it up to the Member States to determine the penalties
applicable for violation of national provisions implementing the directive, provided they are effective,
proportionate and dissuasive.

Article 26

The Commission is required to report to the Council and Parliament on the application of this Directive by
the Member States, and in particular on any amendments or additions that may be found useful. The first
report must be presented three years after the transposal deadline in Article 27; reporting intervals
thereafter remain to be determined.

Article 27

The provision sets the deadline for transposal of the Directive in the Member States' domestic law at
31 December 2004. The Member States must forthwith inform the Commission of all changes to their
legislation, regulations and administrative practices and insert in them a reference to this Directive.

Article 28

This provision sets the date of entry into force on the basis of the date of publication in the Official
Journal.

Article 29

This article provides that the Directive is addressed to the Member States with the exception of Denmark,
under Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Union and EC Treaties
and the United Kingdom or Ireland by virtue of Articles 1 and 2 of the Protocol on the position of the
United Kingdom and Ireland, unless they decide otherwise in accordance with the procedure determined by
that Protocol.

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THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular points 3(a) and 4 of the first
subparagraph of Article 63 thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Parliament,

Having regard to the Opinion of the Economic and Social
Committee,

Having regard to the Opinion of
Regions,

the Committee of

the

Whereas:

(6) The new Community rules are based on definitions of
trainee, educational establishment, vocational
in
scheme
in particular in the various Community
the relevant

student,
training
European law,
programmes to promote the mobility of
persons (Socrates, European Voluntary Service etc.).

and volunteer

in use

already

(7) The mobility of students who are third-country nationals
studying in several Member States must be facilitated, as
must
third-country nationals partici-
pating in Community programmes to promote mobility
within and towards Europe for the purpose of studies,
vocational training or voluntary service.

the admission of

(8) To reflect the cost of training and the fact that more and
more people have to work to help pay for it,
third-
country nationals admitted for study purposes should be
given limited access to the employment market.

(1) For the gradual establishment of an area of

and

justice,

security
European Community provides
adopted in the fields of asylum,
protection of the rights of third-country nationals.

Treaty

establishing

freedom,
the
for measures
to be
immigration and the

the

for

(9) Provision should be made

fast-track admission
in cases
procedures for study purposes,
context of partnerships
involving mobility
organised
third-country
European
educational establishments or of pupil exchange schemes
managed by accredited organisations in the Member
States.

in particular

between

in the

and

(2) Point 3(a) of the first subparagraph of Article 63 of the
Treaty provides that the Council is to adopt measures on
immigration policy relating to conditions of entry and
residence, and standards on procedures for the issue by
Member States of long-term visas and residence permits.

(3) At its special meeting at Tampere on 15 and 16 October
1999, the European Council acknowledged the need for
approximation of national
legislation on the conditions
for admission and residence of third country nationals
and asked the Council to rapidly adopt decisions on the
basis of proposals by the Commission.

(4) One of the objectives of European Community action in
education is to promote Europe as a whole as a world
centre of excellence for studies and vocational training.
Promoting the mobility of
third-country nationals to
Europe for the purpose of studies, vocational training or
voluntary service is a key factor in that strategy. The
approximation of the Member States' national legislation
on conditions of entry and residence is part of this.

(5) Migration for the purpose of studies, vocational training
or voluntary service, which is by definition temporary and
does not depend on the employment-market situation in
the host country, constitutes a form of mutual enrichment
for the migrants concerned, their country of origin and
the host country and helps to promote better familiarity
between cultures.

(10) Efforts must be made to secure transparency to ensure
that third-country nationals have access to information
on educational or vocational training establishments and
courses
are open to them in the European
that
Community.

(11) This Directive

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

fundamental

respects

rights

for

(12) The objectives of the proposed action, namely the estab-
lishment of a harmonised Community legal framework
for the conditions for entry and residence of third-country
the Member States for a
nationals in the territory of
period exceeding three months
the purposes of
studies, vocational training or voluntary service, and for
the procedures for issuing residence permits allowing
them to enter and reside in the Member States for
those purposes, cannot be sufficiently achieved by the
Member States and can, by reason of the scale or effects
the proposed action, be better achieved by the
of
Community in accordance with the subsidiarity principle
declared by Article 5 of the Treaty. In accordance with the
proportionality principle declared by Article 5,
this
Directive does not go beyond what
is necessary to
achieve these objectives.

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(13) Under Articles 1 and 2 of the Protocol on the position of
Denmark annexed to the Treaty on European Union and
the Treaty
European Community,
the
Denmark does not participate in the adoption of this
Directive. The Directive will therefore not be binding in
Denmark nor applicable there,

establishing

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject-matter

The purpose of this Directive is to determine:

(e)

‘unremunerated trainee’ means a third-country national
who has been admitted to reside in the territory of a
Member State for training without remuneration;

(f)

‘vocational training’ means a full-time course of training for
the acquisition or enhancement of vocational skills at a
public- or private-sector body accredited or financed by
the Member State in accordance with its regulations or
administrative practice or at a public- or private-sector
enterprise, culminating in an occupational qualification
recognised by a Member State in accordance with its regu-
lations or administrative practice;

(g)

‘establishment’ means a public or private establishment of
higher, vocational or secondary education accredited or
financed by a Member State in accordance with its regu-
lations or administrative practice;

(a) the conditions for entry and residence of

third-country
the Member States for a
nationals in the territory of
period exceeding three months for the purpose of studies,
vocational training or voluntary service;

(h) ‘voluntary service scheme’ means a programme of activities
of practical solidarity operated by a non-profit organisation
interest and accredited for
pursuing objectives of general
the purpose by the Member State in accordance with its
regulations or administrative practice.

(b) rules concerning the procedures

for

permits allowing third-country nationals
reside in the Member States for those purposes.

issuing residence
to enter and

Article 2

Definitions

For the purposes of this Directive:

Article 3

Scope

The provisions of this Directive apply to third-country

1.
nationals, subject to more favourable provisions of:

(a) bilateral

or multilateral

the
Community or the Community and its Member States
and one or more third countries; or

agreements

between

(a)

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

(b) bilateral or multilateral agreements between one or more

Member States and one or more third countries.

(b) ‘student’ means a third-country national admitted to reside
in the territory of a Member State to pursue a course of
study in an establishment of higher or professional
education;

2.
This Directive is without prejudice to the right of
Member States to adopt or maintain provisions that are more
favourable to the persons to whom it applies.

3.

The provisions of this Directive do not apply to:

(c)

‘course of study’ means a full-time course leading to a
diploma, certificate or other qualification, up to and
including a doctoral degree, or a preparatory year prior
to higher education;

(a) third-country nationals residing in a Member State as
asylum-seekers, or under subsidiary forms of protection
or under temporary protection schemes;

(d)

‘school pupil’ means a third-country national admitted to
reside in the territory of a Member State to follow courses
at an accredited establishment of secondary education in
the context of an exchange scheme operated by an organi-
sation accredited for the purpose by the Member State in
accordance with its regulations or administrative practice;

(b) third-country

nationals whose

expulsion

has

been

suspended for reasons of fact or of law;

(c)

third-country nationals who are members of the family of
Union citizens who have exercised their right
to free
movement in the Community;

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(d) third-country nationals who enjoy long-term resident status
in a Member State in accordance with Council Directive
[. . .] of [. . .] on [. . .] and exercise their right to reside in
another Member State in order to study or receive voca-
tional training.

(d) provides proof, if the Member State so requests, that he has
paid the fee for handling the application on the basis of
Article 22 of this Directive.

CHAPTER II

CONDITIONS OF ENTRY AND RESIDENCE

Article 4

Principle

1. Member States may authorise third-country nationals in
the categories determined by Articles 6 to 10 to enter and
reside in their territory only if a residence permit has been
issued by their authorities in accordance with this Directive.

shall

facilitate

2. Member States
the
residence permit and such visas as they require for the third-
country nationals covered by Articles 6 to 10 who participate
in Community programmes enhancing mobility towards or
within the European Union.

issuance of

the

Article 6

Specific conditions for students

1. Member States may issue a ‘student’ residence permit to a
third-country national only if,
in addition to the general
conditions stipulated in Article 5, he:

2.
A residence permit may be issued under this Directive
only if verification of documentary evidence shows that the
applicant meets the conditions laid down for issue in Article
5 and whichever of Article 6, 7, 8, 9 or 10 applies to the
relevant category.

(a)

is admitted to an establishment of higher or professional
education to follow a full-time course of study. The student
may prove that he meets this condition by presenting,
among other possibilities, a letter or certificate confirming
his definite enrolment, or evidence that he is enrolled
subject to a decision on the equivalence of his foreign
qualification or passing an entrance test;

Article 5

General conditions

1. Member States may issue a residence permit to a third-
country national under this Directive only if, in addition to the
specific conditions for the category of persons defined in
Articles 6, 7, 8, 9 or 10 to which he belongs, he:

(b) provides evidence by any lawful means that during his stay
he will have sufficient resources to cover his subsistence,
study and return travel costs. The Member States shall
publish the minimum monthly resources
required in
terms of the resources which a person pursuing studies
on their territory must generally have, without prejudice
to individual examination of each case;

(a) presents a valid passport or equivalent travel documents
and, if he is a minor under the domestic law of the host
Member State, a parental authorisation for the planned
stay;

(c) has, if the Member State so requires, sufficient knowledge
of the language of the course followed by the student;

(d) provides evidence, if the Member State so requires, that he

has paid the fees charged by the establishment.

(b) has health-care insurance cover for all risks in the host

Member State;

Students who automatically qualify

2.
for health-care
insurance as a result of enrolment at an establishment shall
be presumed to meet the condition of Article 5(1)(b).

(c)

is not regarded as a threat to public policy, public security
or public health, and provides the documentary evidence
required by the Member State. Public policy or public
security grounds
shall be based exclusively on the
personal conduct of the third-country national concerned;

3.
The Member States shall determine the entities and types
of course for which a third-country national meeting the
applicable,
conditions
1(b)
paragraph 1(d) may obtain a ‘student’ residence permit
in
order to learn a language.

and, where

paragraph

of

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Article 7

Mobility of students

2. Member States may confine the issuance of
exchange’ residence permits to nationals of
that offer the same possibility for their own nationals.

‘pupil
third countries

Without prejudice to Articles 11(2)(c) and (d), 15, 16 and
20(2), a third-country national who already holds a ‘student’
issued by a Member State and wishes to
residence permit
the studies already commenced, or add
follow part of
another course of
in another Member State shall
obtain a ‘student’ residence permit from the latter Member
State within 30 days of applying for it, if he:

study,

(a) meets the conditions laid down by Articles 5 and 6 in

relation to that Member State; and

(b) has sent, with his application for a residence permit, full
documentary evidence of his academic record and evidence
that the course he wishes to follow genuinely complements
the one he has completed.

The Member State in which the student is admitted shall, at the
request of the Member State in which a residence permit is
applied for, send information relating to the student's academic
record in establishments that are located in its territory.

Article 8

Specific conditions for school pupils participating in an
exchange scheme

1. Member States may issue a ‘pupil exchange’ residence
permit to a third-country national only if, in addition to the
general conditions stipulated in Article 5, he:

(a)

is not below the minimum age nor above the maximum
age set by the Member State concerned;

(b) provides evidence of admission to a secondary education

establishment;

(c) provides evidence of participation in a pupil exchange
scheme programme operated by an organisation accredited
that purpose by the Member State concerned in
for
accordance with its regulations or administrative practice;

(d) provides evidence that

the pupil exchange organisation
accepts responsibility for him throughout his period of
presence in the territory of the Member State concerned,
in particular as regards subsistence, study, health-care and
return travel costs;

(e)

is accommodated throughout his stay in a family meeting
the conditions set by the Member State concerned and
selected in accordance with the
the pupil
rules of
exchange scheme in which he is participating.

Article 9

Specific conditions for unremunerated trainees

Member States may issue an ‘unremunerated trainee’ residence
permit to a third-country national only if, in addition to the
general conditions stipulated in Article 5, he:

(a) has signed a training agreement, approved if need be by the
relevant authority in the Member State concerned in
accordance with its regulations or administrative practice,
for an unremunerated placement with a public- or private-
sector
training establishment
accredited or financed by the Member State in accordance
with its regulations or administrative practice;

enterprise or vocational

(b) provides evidence by any lawful means that during his stay
he will have sufficient resources to cover his subsistence,
training and return travel costs. The Member States shall
publish the minimum monthly financial resources which
they generally require an unremunerated trainee to have,
without prejudice
each
applicant's situation;

examination of

to individual

(c) receives,

if the Member State so requires, basic language
training so as to acquire the knowledge needed for the
purposes of the placement.

Article 10

Specific conditions for volunteers

Member States may issue a ‘volunteer’ residence permit to a
third-country national only if,
in addition to the general
conditions stipulated in Article 5, he:

(a)

is not below the minimum age nor above the maximum
age set by the Member State concerned;

(b) produces an agreement with the organisation responsible in
the Member State concerned for the voluntary service
scheme in which he is participating, giving a description
of tasks, the conditions in which he is supervised in the
performance of
the
resources available to cover his travel, subsistence, accom-
modation costs and pocket money throughout his stay and,
if appropriate, the training he will receive to help him
perform his service;

those tasks, his working hours,

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(c) provides evidence that the organisation responsible for the
voluntary service scheme in which he is participating has
subscribed a third-party insurance policy and accepts full
responsibility for him throughout his stay, in particular as
regards his subsistence, health-care and return travel costs;

(d) receives a basic introduction to the language, history and
political and social structures of the host Member State.

Article 13

Unremunerated trainee residence permit

1.
The period of validity of an ‘unremunerated trainee’
the
residence permit shall correspond to the duration of
placement or to one year, whichever is the shorter. In excep-
tional cases, it may be renewed, once only and exclusively for
such time as is needed to acquire a vocational qualification
recognised by a Member State in accordance with its regu-
lations or administrative practice, provided the holder still
meets the conditions laid down in Articles 5 and 9.

CHAPTER III

RESIDENCE PERMITS

Article 11

Student residence permit

1.
Except where the student is admitted subject to a decision
on the equivalence of his foreign qualification or to passing an
entrance test, a ‘student’ residence permit shall be issued for a
period of no less than one year and renewed from year to year
if the holder continues to meet the conditions of Articles 5 and
6. Where the duration of the course of study or vocational
training is less than one year, the permit shall be valid for
the duration of the course.

2. Without prejudice to Articles 15 and 16, renewal of a
‘student’ residence permit may be refused or the permit may be
withdrawn if the holder:

(a) has been admitted subject to passing an entrance test at the
to

to study and fails

establishment where he wishes
produce a certificate of enrolment;

(b) has been admitted subject to a decision on the equivalence
of his foreign qualification and has failed to obtain a
decision;

(c) does not respect the limits imposed on the exercise of his

right to work under Article 18 of this Directive;

(d) does not make acceptable progress in his studies. The
Member State may refuse to renew a residence permit on
this ground only by a decision stating specific reasons
based on the opinion of
the educational establishment,
which must be consulted on the student's progress, save
when the establishment fails to respond to a request for an
opinion within a reasonable period of time.

An ‘unremunerated trainee’

2.
withdrawn if
imposed by Article 18 on the right to work.

residence permit may be
the holder does not comply with the limits

Article 14

Volunteer residence permit

A ‘volunteer’ residence permit shall be issued only for a
non-renewable period of no more than one year.

Article 15

Withdrawal of permits

1. Member States may withdraw residence permits or visas
issued on the basis of this Directive wherever it appears that
the holder did not meet or no longer meets the conditions for
entry and residence provided for by Article 5 and whichever of
Articles 6 to 10 applies to the relevant category.

2. Member States may withdraw residence permits or visas
on grounds of public policy, public security or public health.
shall be based
Public policy or public security grounds
exclusively on the personal conduct of
the third-country
national concerned. Public health shall not be invoked by
Member States as a reason for revoking or not renewing a
residence permit or expelling the holder solely on the ground
of illness or disability suffered after the issue of the residence
permit.

Article 12

Pupil exchange residence permit

A ‘pupil exchange’ residence permit shall be issued only for a
non-renewable period of no more than one year.

Article 16

Fraud

The competent authorities shall revoke a residence permit
issued on the basis of
this Directive which has been
fraudulently acquired.

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CHAPTER IV

RIGHTS OF THIRD-COUNTRY NATIONALS

an
way of derogation,
application which has not been presented in accordance with
this Article.

a Member State may examine

Article 17

Rights

conferred on all
nationals to whom this Directive applies

categories of

third-country

During its period of validity, the holder of a residence permit
issued on the basis of this Directive shall be entitled to enter
and reside in the territory of the Member State which issued it;
Member States shall give third-country nationals every facility
for obtaining the requisite visas if they issue residence permits
exclusively within the country and demand a visa for the initial
entry.

Article 18

Work by students and unremunerated trainees

Outside their study time, students may exercise an activity in
an employed or self-employed capacity, subject to the rules
applicable to the relevant
trade. Each Member State shall
determine the maximum number of hours of work allowed,
between 10 and 20 hours per week. This limitation shall not
apply during holiday periods.

Member States may withhold this right for the first year of
residence and may withdraw it if the student does not make
sufficient progress in his studies.

Member States may authorise unremunerated trainees to work
under the same limits as those imposed on students, but they
may not be employed, directly or indirectly, by the firm with
which they have signed a training contract in accordance with
Article 9(a).

Member States may require students and unremunerated
in advance or otherwise, to an authority
trainees to report,
designated by them, that they are engaging in an employed
or self-employed activity. Their employers may also be subject
to a reporting obligation, in advance or otherwise.

CHAPTER V

PROCEDURE AND TRANSPARENCY

Article 19

Applications for residence permits

Applications for residence permits shall be presented via the
representation of the Member State competent for the country
where the applicant officially resides or directly in the territory
of the Member State concerned if the applicant has been auth-
orised to reside there for a period in excess of three months. By

Article 20

Procedural guarantees and transparency

1. Without prejudice to Article 7, decisions on applications
for admission or renewal shall be adopted and the applicant
shall be notified of them no later than 90 days after the date of
the application.

the competent authorities

If the information supplied in support of the application
2.
is inadequate,
inform the
applicant what further information they need. The period of
time allowed by paragraph 1 shall be suspended until the auth-
orities have received the requisite information.

shall

A third-country national shall be entitled to apply to the
3.
courts of the Member State concerned against any decision
refusing, amending,
refusing to renew or withdrawing a
residence permit or a visa. Such decision must give reasons
based on objective and verifiable criteria and specify the
redress procedures available and the time limits applicable to
them.

Article 21

Fast-track procedure for

issuing ‘student’ and ‘pupil

exchange’ residence permits

An agreement on the establishment of a fast-track admission
procedure allowing residence permits or visas to be issued in
the name of
the third-country national concerned may be
concluded between the authority of a Member State with
the entry and residence of students or
responsibility for
school pupils who are third-country nationals and an estab-
lishment of higher or professional education or an organisation
operating pupil exchange schemes which has been accredited
for this purpose by the Member State concerned in accordance
with its regulations or administrative practice.

Such agreement shall apply in particular to:

(a) the manner in which compliance with the conditions for
entry and residence in the territory are to be verified by the
establishment or exchange organisation on behalf of the
Member State, without prejudice to the Member State's
prerogatives under this Directive;

organisation will

(b) the details of the procedure whereby the establishment or
exchange
for
residence permits and the procedure whereby residence
permits will be issued by the competent authority in this
context;

applications

submit

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(c) the period for issuing permits, which shall be shorter than
that provided for by Article 20(1). The starting point shall
be the date when the application is presented by the estab-
lishment or the exchange organisation;

(d) the possibility of denouncing the agreement if it is found
that third-country nationals admitted under this procedure
do not meet the conditions for residence; and

(e)

the conditions,

in the event of an agreement concluded with an exchange
organisation,
the financial
conditions, to be met by the organisation in the context
of this procedure and the rules governing its responsibility
for the pupil throughout his stay in the territory of the
Member State concerned.

in particular

Article 22

Fees

Member States may request applicants to pay fees for handling
applications in accordance with this Directive. The level of fees
shall not exceed the actual administrative costs incurred.

Article 23

Transparency

Each Member State shall ensure that the fullest possible set of
regularly updated information is made available to the general
public, notably on the Internet, as regards establishments
within the meaning of Article 2(g), courses of study to which
third-country nationals may be admitted and the conditions
and procedures for entry and residence in its territory for
these purposes.

CHAPTER VI

FINAL PROVISIONS

Article 24

Non-discrimination

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 25

Penalties

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
to the Commission by the date
notify those provisions
specified in Article 27 at
the latest and shall notify it
without delay of any subsequent amendment affecting them.

Article 26

Reporting

after

the period determined by Article 27,

From time to time, and for the first time no later than three
the
years
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 27

Transposal

Member States shall bring into force the provisions necessary
to comply with this Directive no later than 31 December
2004. They shall forthwith inform the Commission thereof.

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 28

Entry into force

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

Article 29

Addressees

This Directive is addressed to the Member States.