Second Commission Report to the Council and Parliament on the implementation of Directives 90/364, 90/365 and 93/96 (right of residence)
Date: 2003-03-05
Institutions: European Commission
Subjects: European citizenship, foreign student, free movement of persons, non-working population, report, residence permit

EN

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 5.3.2003
COM(2003) 101 final

SECOND COMMISSION REPORT TO THE COUNCIL AND PARLIAMENT 

on the implementation of Directives 90/364, 90/365 and 93/96 (right of residence)

 
SUMMARY

This  is  the  second  report  on  the  implementation  of  the  three  Directives  on  the  right  of
residence of Union  citizens and  their family members,  of  whatever  nationality,  who  are  not
economically active in the host Member State, covering the period 1999-2002.

First of all, a series of judgments given by the Court of Justice have established or confirmed
a  number  of  very  important  principles  for  implementation  of  the  three  Directives,  in
particular:

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– 

– 

– 

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students do not have to prove that they have sufficient resources of a given amount; a
mere statement to that effect is enough;

Member States  may  not  restrict  the  permissible  forms  of  evidence  of  sufficient
resources  or  sickness  insurance,  nor  require  certain  documents  to  be  delivered  or
countersigned by the authority of another Member State;

beneficiaries  of 
the  principle  of
non-discrimination  and  are  entitled  to  non-contributory  social  assistance  benefits
such as minimum subsistence, except if expressly provided otherwise;

three  Directives  are  covered  by 

the 

where  beneficiaries  of  the  three  Directives  apply  for  social  assistance  in  the  host
Member State, that State may not automatically terminate their right of residence but
must show solidarity when they face temporary difficulties;

irregular  entry  or  failure  to  hold  the  valid  visa  required  by  Community  law  do  not
provide  the  Member States  with  grounds  for  refusing  to  issue  a  residence  card  to
third-country nationals who are members of the family of a Union citizen within the
meaning of Community law;

Article 18 of the EC Treaty, which sanctions the freedom of movement and residence
of  Union  citizens,  has  direct  effect,  but  the  limitations  and  conditions  remain
applicable;

the provisions concerning free movement of persons must be interpreted in the light
of  the  requirement  of  respect  for  family  life  provided  for  by  Article  8  of  the
European  Convention  on  Human  Rights  (ECHR);  consequently,  a  parent,
irrespective  of  nationality,  who  has  custody  of  children  enjoying  the  right  of
residence  in  the  host  country  under  Article  12  of  Regulation  1612/68  also  has  the
right of residence on this basis, even if the parents have meanwhile divorced or the
parent  who  has  Union  citizen  status  is  no  longer  a  migrant  worker  in  the  host
Member State.

The  Commission  has  stepped  up  its  efforts  to  secure  proper  implementation  of  the  three
Directives  by  commencing  infringement  proceedings  against  Member States  on  various
issues,  such  as  the  origin  of  resources,  the  period  of  validity  of  the  residence  card,  the
documents which can be requested, etc.  It will continue  to  ensure  proper  implementation of
the three Directives on the basis of the implications of the Charter of Fundamental Rights of
the European Union and of Union citizen status.

Lastly, the Commission proposal of 29 June 2001 for a new Council and Parliament Directive
on the right of residence, which will replace the various legal instruments currently in force, if

2

the  Council  and  the  European  parliament  adopt  it,  demonstrates  the  Commission's  political
will to solve the problems resulting from the three Directives:

– 

– 

– 

by extending the right of residence without condition or formality from three to six
months; 

for stays of more than six months, by replacing the residence card by a registration
and proof of sufficient resources and health-care insurance by a simple declaration,
as is currently the case for students with regard to sufficient resources; and 

by introducing a permanent residence right acquired after four years’ residence in the
host  Member State,  which  abolishes  the  conditions  for  the  right  of  residence  and
means  that  beneficiaries  are  permanently  treated  in  the  same  way  as  nationals  for
social security purposes.

INTRODUCTION

This is the second report on the implementation of Council Directives 90/364/EEC of 28 June
1990 on the right of residence (OJ L 180, 13.7.1990, p. 26), 90/365/EEC of 28 June 1990 on
the  right  of  residence  for  employed  and  self-employed  persons  who  have  ceased  their
occupational activity (OJ L 180, 13.7.1990, p. 28), and 93/96/EEC of 29 October 1993 on the
right of residence for students (OJ L 317, 18.12.1993, p. 59), the three Directives on the right
of residence for Union citizens and their family members, irrespective of nationality, who do
not  carry  out  an  economic  activity  in  the  host  Member  State.  The  adoption  of  these  three
Directives marks the transition from free movement of persons for the purposes of economic
activity to free movement of persons as citizens whether or not they are economically active.

With this report, the Commission  is discharging its  obligation  under  Article  4  of  Directives
90/364 and 90/365 and Article 5 of Directive 93/96 to report every three years to Parliament
and  the  Council.  The  first  report  was  presented  on  17  March  1999;1  the  second  covers  the
period since then. And the third Commission report on Union citizenship,2 which covers the
period 1997-2001, covers developments relating to Union citizenship, in particular freedom of
movement, which is at the heart of the rights attaching to Union citizenship. In addition, the
second  paragraph  of  Article  5  of  the  Directive  93/96  on  the  right  of  residence  for  students
calls on the Commission to pay close attention to any difficulties to which the implementation
of Article 1 might give rise in the Member States3 and to submit proposals to the Council with
the aim of remedying them. The Commission has not so far identified any such  difficulties,
nor  have  the  Member States  informed  it  of  problems  caused  by  an  influx  of  students  from
other Member States or by unreasonable burdens on their public finance. 

1

2

3

COM(1999) 127 final.
COM(2001) 506 final, 7 September 2001.
This Article provides: "In order to lay down conditions to facilitate the exercise of the right of residence
and  with  a  view  to  guaranteeing  access  to  vocational  training  in  a  non-discriminatory  manner  for  a
national  of  a  Member State  who  has  been  accepted  to  attend  a  vocational  training  course  in  another
Member State,  the  Member States  shall  recognise  the  right  of  residence  for  any  student  who  is  a
national  of  a  Member State  and  who  does  not  enjoy  that  right  under  other  provisions  of  Community
law, and for the student's spouse and their dependent children,  where  the  student  assures  the  relevant
national authority, by  means of a declaration or by  such alternative  means as the student  may  choose
that are at least equivalent, that  he  has  sufficient  resources  to  avoid  becoming  a  burden  on  the  social
assistance system of the host Member State during their period of residence, provided that the student is
enrolled in a recognised educational establishment for the principal purpose of following a vocational
training  course  there  and  that  he  is  covered  by  sickness  insurance  in  respect  of  all  risks  in  the  host
Member State”. 

3

                                                
The  first  report  described  in  detail  the  slowness  and  difficulties  of  transposing  the  three
Directives  into  the  domestic  law  of  the  Member States,  completed  when  Italy  enacted
Legislative  Decree  358  on  2  August  1999,  a  few  months  before  the  Court  of  Justice  gave
judgment in Case C-424/98 Commission v Italy on 25 May 2000. 

Despite  transposal,  there  were  still  individual  cases  of  incorrect  application,  discovered
following  complaints  addressed  to  the  Commission  or  petitions  addressed  to  Parliament’s
Petitions Committee.

During  the  report  period  the  Commission  intensified  its  efforts  to  initiate  and  complete
infringement  proceedings  against  Member States  whose  legislation,  regulations,  circulars,
instructions  or  administrative  practices  were  in  breach  of  their  obligations  under  the
Directives; there were also major developments in the case-law of the Court of Justice which,
proceeding from the concept of Union citizenship, interprets the conditions laid down by the
Directives  for  recognising  the  right  of  residence  more  flexibly.  There  was  also  a  major
legislative  initiative  to  facilitate  and  simplify  the  exercise  of  the  right  of  Union  citizens  to
move and reside freely in the territory of the Member States by means of a single instrument
replacing the plethora of existing instruments.

Lastly, the  signing  and proclamation of the  Charter of  Fundamental Rights of  the  European
Union  by  the  Presidents  of  the  Parliament,  the  Council  and  the  Commission  at  Nice  on  7
December 2000 is vitally important for the free movement of persons, not so much because its
chapter on Citizenship, and in particular Article 45, sanctions the right of any Union citizen to
move  and  reside  freely  in  the  territory  of  the  Member States  subject  to  the  conditions  and
limits provided for by Community law,4 which makes no real change to Community law on
the free movement of persons, but because the Charter codifies and presents in a visible and
clear  form  fundamental  rights,  binding  the  three  Union  institutions,  particularly  the
Commission, and giving them guidance for interpreting the current law and providing a basis
for current or future legislative initiatives.

I.

THE CONTRIBUTION OF THE CASE LAW OF THE COURT OF JUSTICE 

Four judgments were given by the Court of Justice5 in the report period, the first of them in
the Commission action against Italy for incorrect transposal of the three Directives.

Three lessons can be learnt from the judgment given by the Court in Case C-424/98.6

a)  Regarding  the  incomes  of  family  members  of  the  beneficiaries  of  Directive  90/364,  in
comparison with the beneficiaries of Directive 90/365 

The  Court  of  Justice,  overruling  the  Commission,  held  that  where  a  Member State  granted
more  favourable  treatment  to  the  family  members  of  persons  who  had  previously  been
gainfully employed than to beneficiaries of Directive 90/364, this did not in itself constitute

4

5

6

Article 52(2) of the Charter. 
Case C-424/98 Commission v Italian Republic [2000] ECR I-4001 (judgment given on 25 May 2000),
Case C-184/99 Grzelczyk [2001] ECR I-6193 (judgment given on 20 September 2001), Case C-459/99
MRAX [2002] ECR I-6591 (judgment given on 25 July 2002) and Case C-413/99 Baumbast and R, not
yet reported (judgment given on 17 September 2002). 
Commission v Italy [2000] ECR I-4001 (judgment given on 25 May 2000).

4

                                                
evidence that the higher amount required from the latter exceeded the Member States’  room
for manoeuvre.7 

The  Commission’s  objection  was  to  the  specific  differentiation  provided  for  by  the  Italian
legislation,  and  it  is  consequently  difficult  to  deduce  from  the  grounds  for  the  judgment  a
general principle that Member States are free to fix different amounts of sufficient resources
for the beneficiaries of the two Directives. The Court also reaffirms that Member States must
exercise their powers in full respect for the  fundamental freedoms guaranteed by the Treaty
and to give full effect to the provisions of the Directives abolishing barriers to free movement
of  persons  between  them  so  as  to  facilitate  the  exercise  of  the  right  of  residence  of  Union
citizens and their family members in the territory of any Member State.

But  the  problem  is  purely  theoretical,  as  the  only  Member State  (Italy)  which  provided  for
differentiation abolished it before the Court of Justice gave judgment.

b) Regarding the documents that beneficiaries of Directives 90/364 and 90/365 are required to
submit 

On the basis of the same principle, the Court of Justice held that Member States must exploit
the various possibilities offered by other rules of Community law with regard in particular to
evidence, accepting certificates issued by national social security organisations at the request
of the interested parties to the effect that they are covered by a given social security scheme
and certificates as to the amount of pensions and incomes paid by these bodies; it further held
that, by limiting the forms of evidence that may be relied upon, and in particular by providing
that certain documents must be issued or certified by the authority of another Member State,
the Italian Republic had failed to fulfil its obligations.

The  Court  thus  confirms  the  flexibility  of  the  methods  for  proving  compliance  with  the
conditions  imposed  by  the  two  Directives  and,  indirectly,  the  freedom  of  choice  of  the
interested party.  It follows that beneficiaries of  Directives  90/364 and  90/365 have  a choice
between  several  forms  of  evidence  that  they  have  sufficient  resources  and  health-care
insurance and cannot be asked to present only documents emanating from or countersigned by
an authority of a Member State, and that a Member State cannot limit the forms of evidence
by  requiring,  for  example,  in  a  restrictive  way,  a  bank  statement  or  a  document  emanating
from another Member State or countersigned by its consular services. The Member State must
leave the interested party free to choose between the forms of evidence that can be supplied,
whether they be public or private documents.

c) Regarding the provisions on students’ resources 

The Court of Justice upheld the Commission’s view that the system of Directive 93/96 on the
right  of  residence  for  students  differs  from  that  of  the  two  other  Directives  with  regard  to
sufficient resources.  Having noted  that  Directive 93/96 contains  no  requirement  regarding  a
given  amount  or  moreover  the  furnishing  of  evidence  thereof  in  the  form  of  specific
documents, it concluded that a Member State could not require a student benefiting from this
Directive  to  provide  evidence  or  a  guarantee  of  a  given  amount  of  resources  but  must  be
satisfied with a declaration or equivalent, at the choice of the interested party, even if he was
accompanied by family members. In Case C-184/99 Grzelczyk (infra), the Court held that "…

7

The Italian legislation provides that the minimum amount of sufficient resources for a  member of the
family of a beneficiary of Directive 90/364 must be one third higher than the same amount required of a
member of the family of a beneficiary of Directive 90/365.

5

                                                
a  student's  financial  position  may  change  with  the  passage  of  time  for  reasons  beyond  his
control. The  truthfulness of  a student's declaration is  therefore  to  be  assessed  only  as  at  the
time when it is made” (paragraph 45).

It  follows  from  these  cases  that,  by  requiring  a  student  benefiting  from  Directive  93/96  to
submit  a  specific  document,  such  as  an  account  statement,  to  prove  that  he  meets  the
sufficient resources condition set out therein, a national authority is in breach of the Directive. 

d) The right of residence of inactive persons after applying for social assistance

Article 3 of Directives 90/364 and 90/365 and Article 4 of Directive 93/96 stipulate that the
right of residence remains as long  as beneficiaries of the right fulfil the sufficient  resources
and  health-care  insurance  conditions.  On  the  basis  of  this  provision,  Member States
automatically  end  the  right  of  residence  for  beneficiaries  of  the  three  Directives  when  they
apply for social assistance.

In  Case  C-184/99  Grzelczyk8  the  Court  of  Justice  limited  the  possibility  for  Member States
under  the  above  provisions  of  the  three  Directives  to  end  the  right  of  residence  of
beneficiaries if, in the absence of sufficient resources, they apply for social assistance. 

Recognising that a Member State can consider that a student applying for social assistance no
longer meets the conditions to which his right of residence was subject and can  accordingly
end his right of residence, the Court of Justice admits that this must  have  effect "within the
limits imposed by Community law” (paragraph 42), implying the principle of proportionality,
and that "in no case may such measures become the automatic consequence of a student who
is  a  national  of  another  Member State  having  recourse  to  the  host  Member State's  social
assistance  system”  (paragraph  43).  The  Court  of  Justice  thus  categorically  excludes  in  all
cases, without exception, any automatic link between recourse to social assistance and end of
the right of residence. 

The Court of Justice  bases its  appraisal  on the sixth  recital to Directive  93/96,  according  to
which beneficiaries of the right of  residence must not become  an  "unreasonable” burden on
the public finances of the host Member State, from which it follows, according to the Court,
that  "Directive  93/96,  like  Directives  90/364  and  90/365,  thus  accepts  a  certain  degree  of
financial  solidarity  between  nationals  of  a  host  Member State  and  nationals  of  other
Member States,  particularly  if  the  difficulties  which  a  beneficiary  of  the  right  of  residence
encounters are temporary” (paragraph 44).

It is clear from the reference to Directives 90/364 and 90/365 and from the unity of the system
set  up  by  the  three  Directives  that  the  Court’s  ruling  could  be  applied  not  only  to  students,
chiefly concerned by the case, but also, by analogy, to the beneficiaries of Directives 90/364
and 90/365. In addition, the Court excludes the possibility for the Member States to end the
right  of  residence  of  students  and  other  inactive  persons  when  they  encounter  temporary
financial difficulties.

It follows from the foregoing that the Court excluded for students and other inactive persons,
in all cases and without exception, any automatic link between recourse  to social  assistance
and end of the right of residence, thus making incompatible with Community law all national

8

[2001] ECR I-6193 (judgment given on 20 September 2001).

6

                                                
provisions which envisage such an automatic link,9 and the possibility for Member States to
end  the  right  of  residence  when  beneficiaries  of  the  three  Directives  encounter  temporary
difficulties. The Commission will ensure that Member States take the measures necessary to
this end.

e)  Regarding  the  principle  of  the  prohibition  of  discrimination  on  the  ground  of  nationality
and the recognition of Union citizen status 

Confirming  its  decision  in  Martinez  Sala,10  the  Court  of  Justice  repeats  in  Grzelczyk  that  a
Union  citizen  can  avail  himself  of  the  non-discrimination  principle  of  Article  12  of  the  EC
Treaty in all situations within the scope ratione materiae of Community law, which include
those  involving  the  exercise  of  freedom  to  move  and  remain  on  the  territory  of  the
Member States, conferred by Article 18 of the EC Treaty. 

On the basis of Article 12, read with the Treaty provisions on Union citizenship, the Court of
Justice held in Grzelczyk that "Union citizenship  is  destined to be the  fundamental status of
nationals of the Member States, enabling those who find themselves in the same situation to
enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as
are expressly provided for” (paragraph 31).11 

It could be concluded that inactive Union citizens who reside legally in another Member State
are eligible, by reason of their Union citizenship, for equal treatment with nationals. But the
Court  of  Justice  admits  limitations  to  this  rule  when  there  are  "such  exceptions  as  are
expressly provided for” by Community law. In Grzelczyk it implicitly admits the right of the
host Member State not to pay maintenance grants to students enjoying the right of residence
on  the  basis  of  Article  3  of  Directive  93/96.12  Students  are  entitled  to  equal  treatment  in
relation to all assistance in respect of access to education (registration and tuition fees).13 But
the Court of Justice notes that "on the other hand, there are no provisions in the Directive that
preclude those to whom it applies from receiving social security benefits” (paragraph 39) and
concludes  on  the  basis  of  Articles  12  and  17  of  the  EC  Treaty  that  a  Member State  cannot
exclude  from  a  non-contributory  social  benefit,  such  as  the  minimum  income,  nationals  of
Member States  other  than  the  host  Member State  in  whose  territory  such  nationals  legally
reside  on  the  simple  ground  that  they  are  not  within  the  scope  of  Regulation  No  1612/68,
when no such condition applies to its nationals. 

It is clear, therefore, that the beneficiaries of Directives 90/364, 90/365 and 93/96 are entitled
under  Articles  12  and  17  of  the  EC  Treaty  to  equal  treatment  with  nationals  and  to
non-contributory  social  benefits,  unless  otherwise  provided  by  Community  law.  They  are
even entitled to social assistance, and the host Member State cannot automatically end their

9

10

11

12

13

Following the judgment of the Court of Justice of 20 September 2001, the Commission has already sent
a  supplementary  letter  of  formal  notice  to  a  Member State  whose  legislation  provides  for  such  an
automatic  link  mentioned  specifically  on  the  residence  card  itself.  The  relevant  Member State  has
undertaken to amend its legislation in line with the judgment.
Case C-85/96 [1998] ECR I-2691 (judgment given on 12 May 1998). 
In Case C-224/98 De Hoop [2002] ECR I-6191 (judgment given on 11 July 2002) the Court of Justice
held that Union citizenship offers a guarantee of the same legal treatment in the exercise of freedom of
movement (paragraph 35).
This Article provides: "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”. 
The seventh recital to Directive 93/96 states that "in the present state of Community law, as established
by the case law of the Court of Justice, maintenance assistance granted to students does not fall within
the scope of the Treaty within the meaning of Article 7 thereof”. The English version omits by error the
word "maintenance” before "assistance granted to students”.

7

                                                
right of residence, in particular when their financial difficulties are temporary. But the right of
residence  enjoyed  by  the  beneficiaries  of  Directives  90/364,  90/36514  and  93/96  remains
subject  to  the  limitation  that  they  must  not  become  an  unreasonable  burden  on  the  public
finances  of  the  host  Member State,  and  in  such  a  case  the  host  Member State  can  end  their
right  of  residence  and,  consequently,  their  right  to  social  assistance,  in  compliance  with
Community law, and in particular the principle of proportionality.

f) Refusal to issue a residence card on grounds of irregular entry or expired visa 

In its judgment of 25 July 2002 in MRAX the Court of Justice reaffirmed the importance of
ensuring the  protection  of the family life  of nationals of  the  Member States  benefiting  from
Community  legislation  concerning  freedom  of  movement.  The  Court  held  that  the  right  of
residence  for  the  Community  citizens’  spouses  who  are  third-country  nationals  is  conferred
directly by Community rules and not by the issuing of a residence card  by a Member State.
The issuing of a residence card is designed to  record the individual’s situation in relation to
Community law. 

But the Court of Justice also held that a Member State may make the issuing of this residence
card conditional on presentation of the document under which the interested party entered its
territory. The competent national authorities may impose penalties for failure to comply with
measures concerning control of foreigners, provided they are proportionate. A Member State
may  also take measures which derogate  from  freedom  of  movement  if  there  are  grounds  of
public  order,  public  security  or  public  health,  but  they  must  be  based  exclusively  on  the
personal conduct of the individual concerned.

On the other hand, refusal to issue a residence card and expulsion decisions based exclusively
on  failure  to  complete  legal  formalities  for  the  control  of  foreigners  -  such  as  entering  a
Member State  without  a  visa  -  are  disproportionate  and  therefore  contrary  to  Community
rules, when the  interested  party  can  provide  evidence  of  his  identity  and  of  his  marital  link
with a Union citizen.

Where a residence  card is applied for after  expiry of the visa, the  Court  of  Justice  held that
Community rules do not require a valid visa for the issuing of a residence card. In addition, an
expulsion order based solely on the expiry of the visa would obviously be a disproportionate
penalty in relation to the gravity of the offence against national regulations concerning control
of foreigners. 

g) The direct effect of Article 18 of the EC Treaty – Conditions and limitations to be applied
in the light of the principles of proportionality and protection of family life 

Judgment of the Court of Justice of 17 September 2002 in Case C-413/99 Baumbast and R 

The Court of Justice recognised that the Treaty does not require Union citizens to be gainfully
employed in order to enjoy the rights attaching to Union citizenship, in particular freedom of
movement and residence on the territory of the Member States. It also recognised that Article

14

The English, Swedish and Finnish versions of Article 1 of the Directive 90/365 speak about burden «on
the  social  security  system  of  the  host  Member  State  (EN)»,  «ligga  det  sociala  tryghetssystemet  i
värdmedlemsstaten  (SV)»  et  «kuuluvan  vastaanottavan  jäsenvaltion  sosiaaliturvajärjestelmään  (FI)».
This  should  be  understood  as  a  burden  «on  the  social  assistance  system  of  the  host  Member  State
(EN)»,  «ligga  det  sociala  bidragssystemet  i  värdmedlemsstaten  (SV)»  et  «kuuluvan  vastaanottavan
jäsenvaltion  sosiaalihuoltojärjestelmään  (FI)»,  in  line  with  the  other  language  versions  of  the  same
Directive and of Directives 90/364 and 93/96. 

8

                                                
18(1) of the EC Treaty is a clear and precise provision, that application of the limitations and
conditions  accepted  in  this  provision  is  subject  to  judicial  review  and  recognises  that  this
provision confers rights on private individuals that they can rely on in legal proceedings and
that the national courts must therefore safeguard. 

The Court of Justice admits that the limitations and conditions provided for by Article 18 of
the  EC  Treaty  and  by  Directive  90/364  remain  applicable  because  exercise  of  the  right  of
residence of Union citizens can be subordinated to protection of the legitimate interests of the
Member States. But this must be done in compliance with the limits imposed by Community
law  and  in  accordance  with  the  general  principles  of  Community  law,  in  particular  the
proportionality principle.

Applying the latter principle to the circumstances of the Baumbast case, the Court concludes
that it is a disproportionate interference with the exercise of the right of residence for the host
Member State to withhold the right of residence on the ground that the healthcare insurance of
the person concerned does not cover the emergency treatment administered in this State when
he  and  his  family  have  comprehensive  healthcare  insurance  in  another  Member State  and
Article 19(1)(a) of Regulation 1408/71 guarantees them the right to receive sickness benefits
in  kind  provided  by  the  institution  of  Member State  of  residence  at  the  expense  of  the
competent Member State.

Protection of family life 

In Baumbast and R the Court of Justice also confirmed the principle declared in Case C-60/00
Carpenter,15 whereby the provisions of Community law concerning free movement of persons
must be interpreted in the light of the requirement for respect for family life, provided for by
Article 8 of the Convention on the Protection of Human Rights and  Fundamental Freedoms
(ECHR), this respect being one of the basic rights recognised by Community law.

Applying  this  principle,  the  Court  held  that  where  children  enjoy  a  right  of  residence  in  a
Member State to follow courses of general  education there in accordance with Article 12 of
Regulation No 1612/68, this provision, if it is not to be deprived of its useful effect, must be
interpreted  as  allowing  the  parent  who  has  actual  care  of  the  children,  irrespective  of
nationality, to remain with them so as to facilitate the exercise of that right, even if the parents
are divorced or the parent who has Union citizenship is no longer a migrant worker in the host
Member State.

It follows from this judgment that the parent, irrespective of nationality, who has actual care
of  the  child,  even  if  he  or  she  is  not  gainfully  employed  in  the  host  Member State,  has  the
right  of  residence  and  cannot  be  obliged  to  prove  that  he  or  she  has  sufficient  resources  or
healthcare insurance, because the right of residence is based not on Directive 90/364 but on
Article 12 of Regulation No 1612/68, which does not impose such conditions. 

15

[2002] ECR I-6279  (judgment  given  on  11  July  2002).  In  this  judgment,  the  Court  of  Justice,  on  the
basis of Article 49 of the EC Treaty, read in the light of the fundamental right to respect for family life,
held  that  the  Member State  of  origin  of  a  provider  of  services  established  in  that  Member State  who
provides services to recipients established in other Member States cannot refuse the right to reside in its
territory  to  that  provider's  spouse,  who  is  a  national  of  a  third  country.  After  holding  that  "the
Community  legislature  has  recognised  the  importance  of  ensuring  the  protection  of  the  family  life  of
nationals  of  the  Member States  in  order  to  eliminate  obstacles  to  the  exercise  of  the  fundamental
freedoms guaranteed by the Treaty” (paragraph 38), the Court went on to rule that "… the removal of a
person from a country where close members of his family are living may amount to an infringement of
the right to respect for family life …” (paragraph 42). 

9

                                                
II.

THE  ACTION  OF  THE  COMMISSION  AS  GUARDIAN  OF  THE
APPLICATION OF COMMUNITY LAW 

Introduction 

Following  the  rulings  of  the  Court  of  Justice  set  out  above,  the  Commission,  in  its  role  as
guardian of Community law on the free movement of persons, will be guided and supported
by two main principles: first Union citizenship, which, according to the formula used by the
Court of Justice, is likely to become the fundamental status of nationals of the Member States;
and second, the  fundamental  rights  recognised  by the Charter of  Fundamental Rights of  the
European  Union  and  international  instruments,  which,  as  general  principles  of  law,  are  an
integral part of Community law and protected by it.

Union citizenship means first, that the principle of the prohibition of direct or indirect national
discrimination is fully applicable to nationals of other Member States who are not engaged in
economic activity in the host Member State, though without prejudice to exceptions expressly
provided  for  by  Community  law,  and  second  that  Member States  must  show  a  degree  of
solidarity with regard to these persons, provided they do not become an unreasonable burden
on the public finances of the host Member State. 

The  protection  of  fundamental  rights  has  become  an  important  and  decisive  factor  in  the
interpretation  of  Community  law.  Without  wishing  to  anticipate  the  legal  effects  of  the
Charter of Fundamental Rights of the European Union and its future status, the Commission
takes several provisions of the Charter, alongside those of the Convention on the Protection of
Human Rights and Fundamental Freedoms (ECHR), as the basis for interpreting Community
provisions on the right of Union citizens and their family members, of whatever nationality, to
move and reside freely in the territory of the Member States. In particular: 

a)  Articles  33  (protection  of  family  life),  7  (respect  for  private  and  family  life),  9  (right  to
marry  and  found  a  family)  and  14  (right  to  education)  in  the  context  of  the  Community
provisions concerning family reunification; 

b) Articles 8 (protection of personal data) and 41 (right to good administration) for contacts
between  Union  citizens  and  the  national  authorities  responsible  for  applying  the  three
Directives; and 

c)  Articles  20  (equality  before  the  law),  21  (non-discrimination),  22  (cultural,  religious  and
linguistic  diversity),  25  (rights  of  the  elderly),  34  (social  security  and  social  assistance),  35
(health  care)  and  36  (access  to  services  of  general  economic  interest),  to  ensure  proper
implementation of the principles of solidarity and non-discrimination in relation to nationals. 

Infringement proceedings initiated by the Commission 

Commission  action  during  the  three  years  covered  by  this  report  focused  on  the  following
subjects:

10

Source of the sufficient resources under Directive 90/364

Despite the fact that Directive 90/364 does not specify the source of the sufficient resources
required  of  a  Union  citizen  claiming  the  right  of  residence  pursuant  to  it,  certain
Member States  require  him  to  have  sufficient  resources  in  his  own  right,  and  they  do  not
accept resources originating from a person other than a spouse or child.

The Commission issued a number of reasoned opinions, considering that the requirement that
the  interested  party  must  have  sufficient  resources  of  his  own  or  originating  only  from  the
spouse or a child adds a supplementary condition to the Directive and that this is contrary to
it, since the Directive does not exclude the possibility of sufficient resources coming from a
third person such as a parent or unmarried partner.

Other Member States  have  also added the  arbitrary requirement that the sufficient  resources
must  be  personal.  Following  intervention  by  the  Commission,  Sweden  has  removed  this
condition from the legislation applied since 10 April 2001.

Durability of resources and period of validity of the residence card 

Certain Member States have made the duration of the residence card dependent on evidence
of the durability of sufficient resources. Given the provision of Directives 90/364 and 90/365
that validity of the residence card may be limited to five years, renewable, and the possibility
of  revalidating  the  residence  card  after  the  first  two  years  of  stay,  national  authorities
delivered  a  one-year  or  five-year  residence  card,  depending  on  whether  the  interested  party
could prove sufficient resources for one year or five years. Complaints revealed that national
authorities  required  resources  sufficient  for  five  years  deposited  on  a  bank  account  before
issuing a five-year residence card. 

Following intervention by the Commission, certain Member States, such as Sweden, amended
their legislation to provide that beneficiaries of Directives 90/364 and 90/365 always receive a
five-year card. 

The Commission points out that the residence card must be issued for five years, even if the
possibility of revalidating it after the first two years of stay is in conformity with Community
law. This solution is in line with the general five-year rule for the validity of the Community
residence card and in harmony with the system of freedom of movement for workers, which
envisages a residence card valid for at least five years. 

Documents required for the issuing of the residence card 

The  documents  that  the  national  authorities  can  require  are  listed  exhaustively  in  the  three
Directives,  as  is  clear  from  the  Directives  themselves  ("For  the  purpose  of  issuing  the
residence  card  or  document,  the  Member State  may  require  only  that  the  applicant
present …").

The  documents  specified  are  the  identity  card  or  the  passport  and  evidence  of  sufficient
resources and of sickness insurance or, for students, a declaration of sufficient resources and
evidence of sickness insurance. 

The practice of Member States of requiring additional documents on top of those mentioned
above is accordingly contrary to the three  Directives and acts  as a  barrier to exercise of the
right of residence by their beneficiaries. Certain Member States sometimes still require:

11

1) a birth certificate, sometimes with an official translation: but the main items on it (date and
place of birth) are also on the identity card or passport; the result is that this requirement is
unjustified and bureaucratic;

2)  a  certificate  of  nationality:  the  same  applies  to  this  document,  and  the  requirement  is
unjustified  since  Community  law  requires  Member States  to  issue  their  nationals  with  an
identity card  or a  passport specifying in particular their nationality; in the event  of  doubt,  a
Member State  may check the  authenticity of the  identity  card or passport,  but  it  may  not  in
any circumstances require a certificate of nationality;

3)  extract  from  criminal  record  or  certificate  of  good  conduct  or  similar:  a  Member State
cannot  require  such  a  document,  because  it  is  not  provided  for  by  Community  law;  if  a
Member State  wishes  to  exercise  the  public  order  or  public  security  reservation,  it  must
follow the procedure provided for in Article 5(2) of Directive 64/221 and apply to the other
Member States for information. 

In  one  Member State,  all  nationals  of  other  Member States  must  state  their  previous
convictions; those who refuse are systematically checked. This practice is contrary to Article
5(2) of Directive 64/221,16 which provides that consultation of other Member States may not
be systematic. 

The Commission has already warned Member States that the requirement of such documents
is incompatible with Community law, and it will pursue the infringement proceedings already
open against Member States which refuse to comply.

Discriminatory penalties for failure to obtain or renew a residence card 

Under Spanish legislation, Union citizens who fail to obtain or renew their residence card are
liable to penalties of up to €3 000, whereas nationals who fail to obtain or renew their identity
card  are  liable  to  a  penalty  of  up  to  €300.  Several  complaints  revealed  cases  of  penalty  of
€240 for a 14-month delay in renewing a card or €540 for failure to obtain a residence card
over a period of four years.

The Commission sent Spain a reasoned opinion on this on 5 April 2002 and, in view of the
answer received, it has decided to refer the case to the Court of Justice. 

Time taken to issue a residence card 

The Commission has received numerous complaints about the length of time taken to issue a
residence  card,  often  exceeding  six  months,  or  long  queues,  or  the  absence  of  a  special
queuing point for Union citizens, and the inappropriate conduct of the issuing offices. 

With  regard  to  the  length  of  time  taken,  Article  5(1)  of  Directive  64/221  stipulates  that  the
decision granting or refusing the first residence card must be taken as soon as possible and no
later than six months after the application. It follows from this provision, which is contained
in  the  Directive  on  measures  justified  on  grounds  of  public  order,  public  security  or  public
health, that the residence card must be issued as soon as possible. In very exceptional cases,
where  public  order  considerations  require  consultation  with  other  Member States,  a

16

Council  Directive  64/221/EEC  of  25  February  1964  on  the  co-ordination  of  special  measures
concerning the movement and residence of  foreign nationals which are justified on grounds of public
policy, public security or public health (OJ 56, 4.4.1964, p. 850).

12

                                                
Member State can make use of the maximum six-month period. But it may never exceed this
six-month deadline.

With  regard  to  the  absence  of  a  special  queuing  point  for  Union  citizens,  it  should  be
remembered  that  such a measure  is  not  provided  for  by  Community  law,  as  it  is  for  border
controls,  though  certain  Member States  and  certain  cities  do  have  it.  But  the  existence  of  a
separate  queuing  point  for  Union  citizens  and  their  family  members  for  contacts  with  the
immigration  police  would  be  worthwhile  in  organisational  terms  for  the  administrative
authorities  facilitating  the  exercise  of  Union  citizens’  right  of  residence,  since  it  is  much
simpler to process their applications for residence cards than those of third-country nationals.
This would not discriminate against third-country nationals, since the ground for the measure
would be that the two categories of person do not have the same legal status. In the interests
of  speed,  different  treatment  of  applications  from  the  two  categories  would  therefore  be
desirable. 

Lastly, with regard to the operation of the national administrative authorities and the conduct
of  national  civil  servants,  it  must  be  remembered  that  the  organisation  of  national
administrative  authorities  is,  by  virtue  of  the  subsidiarity  principle,  a  matter  for  the
Member States  alone.  But  the  Member States  must  take  all  the  necessary  measures  to
discharge  their  obligations  under  Community  law  and  cannot  plead  economic  or  financial
grounds for failing to do so. The Commission intends to initiate proceedings for failure to act
against Member States where poor administrative organisation or failure to allocate the proper
staff  to  deal  with  applications  from  nationals  of  other  Member States  create  barriers  to  the
exercise of the right of residence of Union citizens and their family members irrespective of
nationality. 

Application of national rules to unmarried partners instead of Directive 90/364

The  right  of  residence  of  Union  citizens  can  be  subject  only  to  the  system  provided  for  by
Community law. If a Union citizen is not covered by Directives 68/360, 73/148, 90/365 and
93/96  or  Regulations  Nos 1612/68  and  1251/70,  the  last  resort  open  to  him  is  to  obtain  the
right  of  residence  on  the  basis  of  Directive  90/364,  which  sanctions  the  general  right  of
residence; but  he  must  still  meet  the  Directive’s  sufficient  resources  and  sickness  insurance
conditions. Only if he does not meet these two conditions will he be subject to national rules. 

Member States must accordingly examine as last resort the possibility of recognising the right
of residence on the basis of the Directive 90/364 and inform the applicant of the outcome; if
the  applicant  does  not  meet  the  conditions  of  the  Directive,  national  rules  granting  him  the
right of residence can be applied.

Certain  Member States  automatically  apply  their  legislation  governing  unmarried  partners17
despite  the  fact  that  the  applicant  is  a  Union  citizen  and  meets  the  conditions  of  Directive
90/364.  The  Commission  has  drawn  their  attention  to  the  fact  that  this  is  contrary  to
Community  law.  It  takes  the  line  that  the  applicant’s  sufficient  resources  can  come  from  a
third person and that this third party can be an unmarried partner. 

Residence visa 

17

Often this legislation provides for conditions that can be regarded as undermining human dignity, such
as the obligation to submit a certificate of good conduct. 

13

                                                
Spanish  legislation  requires  a  third-country  national  who  is  the  spouse  or  another  family
member of a Union citizen and settles with him in Spain to obtain a residence visa (visado de
residencia).  Exemption  may  be  given  in  exceptional  cases.  According  to  the  Spanish
authorities, as a stay of more than three months is involved, a Member State has the right to
require third-country nationals to hold a national visa. 

On  5  April  2002  the  Commission  sent  Spain  a  reasoned  opinion,  on  the  grounds  that
third-country nationals who are members of the family of a Union citizen and settle with him
in the host Member State cannot be  required  to obtain a  residence visa or  any other  type of
national  visa  other  than  the  Community  Schengen  visa  if,  under  Community  law,  they  are
required to hold such a visa to enter a Member State. But Spain stands by its position. 

The Commission position is strengthened by the Court judgment in MRAX (paragraphs 89 to
91),  which  holds  that  a  Member State  cannot  make  the  issuing  of  a  residence  card  to  a
third-country  national  who  is  the  spouse  of  a  Union  citizen  conditional  on  his  or  her  visa
being valid. A fortiori, the person in question cannot be subject to a national visa requirement.
Article 18 of the Convention implementing the Schengen Agreement, which permits national
visas for stays of more than three months, does not concern the beneficiaries of Community
law and, if it did, it would be inapplicable as contrary to Community law (Article 134 of the
Convention).  The  Commission  has  decided  to  refer  the  Spanish  position  to  the  Court  of
Justice. 

Permanent residence card – nationality discrimination

French  legislation  provides  for  a  permanent  residence  card —  valid  for  ten  years —  to  be
issued when an EC national renews his/her residence card for the first time, provided that the
country of origin gives French citizens the same advantage.

On  24  April  2002  the  Commission  sent  France  a  reasoned  opinion,  as  it  regarded  this  as
discrimination against nationals of  the other Member States and  the  reciprocity  condition as
incompatible with Community law. 

III.

THE COMMISSION’S LEGISLATIVE INITIATIVE

On  29  June  2001  the  Commission  presented  a  proposal  for  a  Parliament  and  Council
Directive on the right of citizens of the Union and their family members to move and reside
freely  within  the  territory  of  the  Member States.18  The  proposal  is  under  discussion  in  the
Council  and  Parliament  and  should  be  adopted  in  the  beginning  of  2004.19  The  major
innovations for economically inactive people are as follows.

a) Union citizens and their family members will be subject to no conditions or formalities for
stays up to six months instead of the current three months,. This will exempt pensioners who
are  accustomed  to  spend  a  few  months  in  their  holiday  residence  in  another  Member State
from  the  administrative  formalities  and  expense  of  obtaining  a  residence  card.  Similarly,
students who move inside the Union under Community student exchange programmes will no
longer have to obtain a residence card, as they currently do; 

18

19

OJ C 270 E, 25.9.2001, p. 150.
Annex I to the Presidency conclusions of the Nice European Council of 7, 8 and 9 December 2000, Part
I - More and better jobs, point h), states that to facilitate mobility for European citizens and encourage
the free movement of persons, it is necessary to amend, by 2003, the directives on the right of residence
and to encourage improvement of the rules on the free movement of workers.

14

                                                
b) For stays of more than six months, the requirement to apply for and obtain a residence card
will be replaced by the possibility for Member States to require Union citizens to register with
the competent authorities at their place of residence and obtain a certificate of registration. In
addition, issuing this certificate may be made condition only on the interested party assuring
the relevant  authority, by means of  a  declaration  or  equivalent —such  as  he  may  choose —
that he has sufficient resources and sickness insurance not to become a burden on the social
assistance system of the host Member State.

In  other  words,  the  Commission  proposal  not  only  abolishes  the  residence  card  during  an
initial four-year period (except for third-country nationals who are members of the family of a
Union  citizen),  but  also  extends  the  system  provided  for  by  the  Directive  on  the  right  of
residence  for  students  with  regard  to  sufficient  resources  to  pensioners  and  other  inactive
people: exercise of the right of Union citizens to reside freely in the Member States will thus
be facilitated by elimination of the difficulties connected with having to furnish documentary
evidence of their resources;

c) The third major innovation of the Commission proposal is the introduction of a permanent
right of residence, acquired after four years’ continuous residence in the host Member State.
This  right  will  be  evidenced  by  a  permanent  residence  card  with  unlimited  duration,
renewable automatically every ten years.

This solution will give Union citizens and  their  family  members,  irrespective of nationality,
greater stability of resident status comparable to  that  enjoyed by  a  national since,  once  they
acquire a permanent right of residence, such right of residence would no longer be conditional
and beneficiaries would be totally protected from the risk of expulsion on grounds of public
order or public security. In addition, with regard to social assistance, the permanent right of
residence will align the status of beneficiaries on that of nationals.

If the Commission proposal is adopted by Parliament and the Council, exercise of the right of
residence  by  the  beneficiaries  of  the  three  Directives  in  question  will  be  facilitated  by  the
extension of the right from three to six months without conditions or formalities and by the
substantial reduction in the administrative formalities and expenses for rights of residence of
more  than  six  months.  In  addition,  replacement  of  the  evidence  of  sufficient  resources  and
sickness  insurance  by  a  statement  will  facilitate  citizens’  mobility  in  the  Union.  Lastly,  the
permanent right of residence will not only consolidate the right of residence but also align it
closely on that enjoyed by nationals.

However, in the context of ongoing debates in Parliament and the Council, the Commission
will  have  to  consider  the  advisability  of  amending  the  proposal  in  the  light  of  recent
developments in the case law of the Court of Justice, mentioned above.

IV.

CONCLUSIONS

Twelve years after the adoption of the three Directives on the right of residence of those who
are  not  economically  active  and  a  few  years  after  their  transposal  into  national  law,  their
application  is  basically  satisfactory,  as  the  declining  number  of  complaints  received  by  the
Commission shows. But there are still individual cases of incorrect application. They are due
mainly to misinterpretation  and  to  administrative  practices  based  on  such  misinterpretations
by  national  administrative  authorities,  in  particular  the  immigration  police,  who  are  often
short of personnel with training in Community law to implement the relevant provisions with
the flexibility that the spirit of the Directives requires. 

15

The Commission is available to provide both national authorities and Union citizens with the
assistance  and  information  they  need.  Any  Union  citizen  can,  by  simple  letter,  ask  the
Commission  to  intervene  if  he  has  problems  connected  with  application  of  the  Directives.
Intervention by the Commission has the advantage of being free for the citizen and effective
because  of  the  importance  attached  to  it  by  the  national  authorities.  But,  in  the  absence  of
direct contact with the national authorities involved in an individual case and the constraints
imposed  by  infringement  proceedings,  intervention  by  the  Commission  takes  time,  whereas
the situation might need a rapid solution. However, there are systems such as the "SOLVIT”
network20 to help Union citizens find a rapid solution to a specific problem, or the  citizens’
advice service21 to provide useful information.

Adoption  of  the  Commission  proposal  of  29  June  2001  would  not  only  result  in  a  single,
simple legal instrument  but  would  also  reduce  bureaucracy,  facilitate  the  mobility  of  Union
citizens  and  align  the  status  of  beneficiaries  of  the  three  Directives  more  closely  on  that  of
nationals after four years of residence in the host Member State.

20

21

"Effective  problem  solving  in  the  internal  market  ("SOLVIT")”,  Commission  Communication  to  the
Council,  Parliament,  the  Economic  and  Social  Committee  and  the  Committee  of  the  Regions
(COM(2001) 702, 27 November 2001). http://europa.eu.int/comm/internal_market/solvit/
http://europa.eu.int/abc/cit3_en.htm. Freephone number: 0800-67891011 

16