Common Position (EC) No 6/2004 of 5 December 2003 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance)
Date: 2003-12-05
Institutions: Council of the European Union
Subjects: Community migration, European citizenship, free movement of persons, residence permit

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COMMON POSITION (EC) No 6/2004

adopted by the Council on 5 December 2003

with a view to adopting Directive 2004/. . ./EC of the European Parliament and of the Council of
. . . on the right of citizens of the Union and their family members to move and reside freely
within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing
Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC,
90/365/EEC and 93/96/EEC

(2004/C 54 E/02)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Articles 12, 18, 40, 44 and 52
thereof,

Having regard to the proposal from the Commission (1),

Having regard to the Opinion of the European Economic and
Social Committee (2),

Having regard to the Opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4),

Whereas:

(1) Citizenship of the Union confers on every citizen of the
Union a primary and individual right to move and reside
freely within the territory of the Member States, subject to
the limitations and conditions laid down in the Treaty and
to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of

the
the internal market, which
fundamental
comprises an area without
in which
frontiers,
internal
freedom is ensured in accordance with the provisions of
the Treaty.

freedoms of

free movement and residence.

(3) Union citizenship should be the fundamental status of
nationals of the Member States when they exercise their
right of
is therefore
necessary to codify and review the existing Community
instruments dealing separately with workers, self-employed
persons, as well as students and other inactive persons in
order
free
to simplify and strengthen the right of
movement and residence of all Union citizens.

It

(4) With a view to remedying this sector-by-sector, piecemeal
approach to the right of free movement and residence and

(1) OJ C 270 E, 25.9.2001, p. 150.
(2) OJ C 149, 21.6.2002, p. 46.
(3) OJ C 192, 12.8.2002, p. 17.
(4) Opinion of the European Parliament of 11 February 2003 (not yet
published in the Official
Journal), Council Common Position of
5 December 2003 and Position of the European Parliament of . . .
(not yet published in the Official Journal).

facilitating the exercise of this right, there needs to be a
single legislative act to amend Council Regulation (EEC)
No 1612/68 of 15 October 1968 on freedom of
movement for workers within the Community (5), and to
repeal the following acts: Council Directive 68/360/EEC of
15 October 1968 on the abolition of restrictions on
movement and residence within the Community for
workers of Member States and their families (6), Council
Directive 73/148/EEC of 21 May 1973 on the abolition of
restrictions on movement and residence within the
Community for nationals of Member States with regard
services (7),
to establishment
Council Directive 90/364/EEC of 28 June 1990 on the
right of residence (8), Council Directive 90/365/EEC of
28 June 1990 on the right of residence for employees
and self-employed persons who have ceased their occupa-
tional activity (9) and Council Directive 93/96/EEC of
29 October 1993 on the
for
students (10).

and the provision of

residence

right of

(5) The right of all Union citizens to move and reside freely
within the territory of the Member States should, if it is to
be exercised under objective conditions of freedom and
dignity, be also granted to their family members,
irre-
spective of nationality. For the purposes of this Directive,
the definition of ‘family member’ should also include the
registered partner if the legislation of the host Member
State
to
registered partnership as
marriage.

equivalent

treats

(6)

In order to maintain the unity of the family in a broader
sense and without prejudice to the prohibition of discrimi-
nation on grounds of nationality, the situation of those
persons who are not included in the definition of family
members under this Directive, and who therefore do not
enjoy an automatic right of entry and residence in the host
Member State, should be examined by the host Member
State on the basis of its own national legislation, in order
to decide whether entry and residence could be granted to
such persons, taking into consideration their relationship
with the Union citizen or any other circumstances, such as
their
financial or physical dependence on the Union
citizen.

(5) OJ L 257, 19.10.1968, p. 2. Regulation as last amended by Regu-

lation (EEC) No 2434/92 (OJ L 245, 26.8.1992, p. 1).

(6) OJ L 257, 19.10.1968, p. 13. Directive as last amended by the

2003 Act of Accession.
(7) OJ L 172, 28.6.1973, p. 14.
(8) OJ L 180, 13.7.1990, p. 26.
(9) OJ L 180, 13.7.1990, p. 28.
(10) OJ L 317, 18.12.1993, p. 59.

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(7) The formalities connected with the free movement of
Union citizens within the territory of Member States
should be clearly defined, without prejudice to the
provisions applicable to national border controls.

(8) With a view to facilitating the free movement of family
members who are not nationals of a Member State, those
who have already obtained a residence card should be
exempted from the requirement to obtain an entry visa
within
(EC)
No 539/2001 of 15 March 2001 listing the third
countries whose nationals must be in possession of visas
when crossing the external borders and those whose
nationals are exempt from that requirement (1) or, where
appropriate, of the applicable national legislation.

of Council Regulation

the meaning

(9) Union citizens should have the right of residence in the
host Member State for a period not exceeding three
months without being subject to any conditions or any
formalities other than the requirement
to hold a valid
identity card or passport, without prejudice to a more
as
applicable
favourable
recognised by the case-law of the Court of Justice.

job-seekers

treatment

to

(10) Persons exercising their right of residence should not,
however, become an unreasonable burden on the social
assistance system of the host Member State during an
initial period of
right of
residence for Union citizens and their family members
for periods in excess of three months should be subject
to conditions.

residence. Therefore,

the

(11) The fundamental and personal

residence in
another Member State is conferred directly on Union
citizens by the Treaty and is not dependent upon their
having fulfilled administrative procedures.

right of

(12) For periods of residence of

longer than three months,
Member States should have the possibility to require
Union citizens to register with the competent authorities
in the place of
residence, attested by a registration
certificate issued to that effect.

(13) The residence card requirement should be restricted to
family members of Union citizens who are not nationals
of a Member State for periods of residence of longer than
three months.

(14) The supporting documents required by the competent
authorities for the issuing of a registration certificate or
of a residence card should be comprehensively specified in
order to avoid divergent administrative practices or inter-
pretations constituting an undue obstacle to the exercise of
the right of residence by Union citizens and their family
members.

(15) Family members should be legally safeguarded in the event
of the death of the Union citizen, divorce, annulment of
marriage or termination of a registered partnership. With
due regard for family life and human dignity, and in
to guard against abuse, measures
certain conditions
should therefore be taken to ensure that in such circum-
stances
family members already residing within the
territory of the host Member State retain their right of
residence exclusively on a personal basis.

(16) As long as the beneficiaries of the right of residence do
not become an unreasonable burden on the
social
assistance system of the host Member State they should
not be expelled. Therefore, an expulsion measure should
not be the automatic consequence of recourse to the social
assistance system. The host Member State should examine
whether it is a case of temporary difficulties and take into
account the duration of residence, the personal circum-
stances and the amount of aid granted in order
to
consider whether the beneficiary has become an unreaso-
nable burden on its social assistance system and to
proceed to his expulsion. In no case should an expulsion
self-employed
adopted against workers,
measure be
persons or job-seekers as defined by the Court of Justice
save on grounds of public policy or public security.

(17) Enjoyment of permanent residence by Union citizens who
have chosen to settle long term in the host Member State
would strengthen the feeling of Union citizenship and is a
key element in promoting social cohesion, which is one of
the Union. A right of
the fundamental objectives of
permanent residence should therefore be laid down for
all Union citizens and their family members who have
resided in the host Member State in compliance with the
conditions laid down in this Directive during a continuous
period of
to an
expulsion measure.

five years without becoming subject

(18) In order to be a genuine vehicle for integration into the
society of the host Member State in which the Union
citizen resides,
the right of permanent residence, once
obtained, should not be subject to any conditions.

these

constitute

(19) Certain advantages specific to Union citizens who are
workers or self-employed persons and to their family
members, which may allow these persons to acquire a
right of permanent residence before they have resided
five years in the host Member State, should be maintained,
as
by
acquired
Commission Regulation (EEC) No 1251/70 of 29 June
1970 on the right of workers to remain in the territory
of a Member State after having been employed in that
State (2)
of
17 December 1974 concerning the right of nationals of
a Member State to remain in the territory of another
Member State after having pursued therein an activity in
a self-employed capacity (3).

75/34/EEC

conferred

Directive

Council

rights,

and

(1) OJ L 81, 21.3.2001, p. 1. Regulation as last amended by Regulation

(EC) No 453/2003 (OJ L 69, 13.3.2003, p. 10).

(2) OJ L 142, 30.6.1970, p. 24.
(3) OJ L 14, 20.1.1975, p. 10.

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(20) In accordance with the prohibition of discrimination on
grounds of nationality, all Union citizens and their family
members residing in a Member State on the basis of this
Directive should enjoy,
in that Member State, equal
treatment with nationals in areas covered by the Treaty,
subject
to such specific provisions as are expressly
provided for in the Treaty and secondary law.

(21) However,

it should be left to the host Member State to
decide whether it will grant social assistance during the
first three months of residence or for a longer period in
the case of
job-seekers, or maintenance assistance for
studies, including vocational training, prior to acquisition
of the right of permanent residence, to Union citizens
other
self-employed
persons or who retain that status, and to their family
members.

than those who are workers or

(22) The Treaty allows restrictions to be placed on the right of
free movement and residence on grounds of public policy,
public security or public health.
In order to ensure a
tighter definition of
the circumstances and procedural
safeguards subject
to which Union citizens and their
family members may be denied leave to enter or may be
expelled, this Directive should replace Council Directive
64/221/EEC of 25 February 1964 on the coordination
of
and
residence of
foreign nationals, which are justified on
grounds of public policy, public security or public
health (1).

concerning the movement

special measures

(23) Expulsion of Union citizens and their family members on
grounds of public policy or public security is a measure
that can seriously harm persons who, having availed them-
selves of the rights and freedoms conferred on them by
the Treaty, have become genuinely integrated into the host
should
Member State. The scope for
therefore be limited in accordance with the principle of
inte-
proportionality to take account of
gration of
their
the persons concerned,
residence in the host Member State, their age, state of
health, family and economic situation and the links with
their country of origin.

the degree of
the length of

such measures

the greater

(24) Accordingly, the greater the degree of integration of Union
citizens and their family members in the host Member
State,
the degree of protection against
expulsion should be. Only in exceptional circumstances,
where there are imperative grounds of public security,
should an expulsion measure be taken against Union
citizens who have resided for many years in the territory
of the host Member State, in particular when they were
born and have resided there throughout
In
their life.
should also
circumstances
addition,
apply to an expulsion measure taken against minors, in

such exceptional

(1) OJ 56, 4.4.1964, p. 850. Directive as last amended by Directive

75/35/EEC (OJ 14, 20.1.1975, p. 14).

order to protect their links with their family, in accordance
with the United Nations Convention on the Rights of the
Child, of 20 November 1989.

(25) Procedural safeguards should also be specified in detail in
order to ensure a high level of protection of the rights of
Union citizens and their family members in the event of
their being denied leave to enter or reside in another
Member State, as well as to uphold the principle that
any action taken by the authorities must be properly
justified.

(26) In all events,

judicial

should be
available to Union citizens and their family members
who have been refused leave to enter or
reside in
another Member State.

redress procedures

(27) In line with the case-law of the Court of Justice prohibiting
Member States from issuing orders excluding for life
persons covered by this Directive from their territory,
the right of Union citizens and their family members
who have been excluded from the territory of a Member
State to submit a fresh application after a reasonable
period, and in any event after a three year period from
enforcement of
should be
confirmed.

the final exclusion order,

(28) To guard against abuse of

rights or

convenience or

fraud, notably
marriages of
form of
relationships contracted for the sole purpose of enjoying
the right of free movement and residence, Member States
the necessary
the possibility to adopt
should have
measures.

any other

(29) This Directive should not affect more favourable national

provisions.

(30) With a view to examining how further to facilitate the
exercise of the right of free movement and residence, a
report should be prepared by the Commission in order to
evaluate
any necessary
proposals to this effect, notably on the extension of the
period of residence with no conditions.

the opportunity

to present

(31) This Directive

rights

fundamental

the
the principles

respects
and
recognised in
freedoms and observes
particular by the Charter of Fundamental Rights of the
European Union. In accordance with the prohibition of
discrimination contained in the Charter Member States
should implement this Directive without discrimination
between the beneficiaries of this Directive on grounds of
sex, race, colour, ethnic or social origin, genetic charac-
teristics,
language, religion or beliefs, political or other
opinion, membership of an ethnic minority, property,
birth, disability, age or sexual orientation,

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HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

General provisions

Article 1

Subject

This Directive lays down:

(a) the conditions governing the exercise of the right of free
movement and residence within the territory of
the
Member States by Union citizens and their family members;

(b) the right of permanent residence in the territory of the
family
for Union citizens

and their

Member States
members;

(c) the limits placed on the rights set out in (a) and (b) on
grounds of public policy, public security or public health.

Article 2

Definitions

For the purposes of this Directive:

1.

‘Union citizen’ means any person having the nationality of a
Member State;

2.

‘Family member’ means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted
a registered partnership, on the basis of the legislation
of a Member State, if the legislation of the host Member
State treats registered partnerships as equivalent
to
marriage and in accordance with the conditions laid
down in the relevant legislation of the host Member
State;

(c) the direct descendants who are under the age of 21 or
are dependants and those of the spouse or partner as
defined in point (b);

(d) the dependent direct relatives in the ascending line and
those of the spouse or partner as defined in point (b);

3.

‘Host Member State’ means the Member State to which a
Union citizen moves in order to exercise his/her right of
free movement and residence.

Article 3

Beneficiaries

1.
This Directive shall apply to all Union citizens who move
to or reside in a Member State other than that of which they
are a national, and to their family members as defined in point
2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and
residence the persons concerned may have in their own
in accordance with its
right,
national
the
following persons:

facilitate entry and residence for

the host Member State shall,

legislation,

(a) any other family members, irrespective of their nationality,
not falling under the definition in point 2 of Article 2 who,
in the country from which they have come, are dependants
or members of the household of the Union citizen having
the primary right of residence, or where serious health
grounds strictly require the personal care of the family
member by the Union citizen;

(b) the partner with whom the Union citizen has a durable

relationship, duly attested.

The host Member State shall undertake an extensive exam-
ination of the personal circumstances and shall
justify any
denial of entry or residence to these people.

CHAPTER II

Right of exit and entry

Article 4

Right of exit

1. Without prejudice to the provisions on travel documents
applicable to national border controls, all Union citizens with a
valid identity card or passport and their family members who
are not nationals of a Member State and who hold a valid
passport shall have the right
to leave the territory of a
Member State to travel to another Member State.

No exit visa or equivalent formality may be imposed on

2.
the persons to whom paragraph 1 applies.

3. Member States shall, acting in accordance with their laws,
issue to their own nationals, and renew, an identity card or
passport stating their nationality.

4.
The passport shall be valid at least for all Member States
and for countries through which the holder must pass when
travelling between Member States. Where the law of a Member
State does not provide for identity cards to be issued, the
period of validity of any passport on being issued or
renewed shall be not less than five years.

Article 5

Right of entry

1. Without prejudice to the provisions on travel documents
applicable to national border controls, Member States shall
grant Union citizens leave to enter their territory with a
valid identity card or passport
family
members who are not nationals of a Member State leave to
enter their territory with a valid passport.

and shall grant

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No entry visa or equivalent
Union citizens.

formality may be imposed on

(a) are workers or self-employed persons in the host Member

State; or

2.
Family members who are not nationals of a Member State
shall only be required to have an entry visa in accordance with
Regulation (EC) No 539/2001 or, where appropriate, with
national law. For the purposes of this Directive, possession of
the valid residence card referred to in Article 10 shall exempt
such family members from the visa requirement.

(b) have sufficient resources for themselves and their family
members not to become a burden on the social assistance
system of the host Member State during their period of
residence and have comprehensive
insurance
cover in the host Member State; or

sickness

Member States shall grant such persons every facility to obtain
the necessary visas. Such visas shall be issued free of charge as
soon as possible and on the basis of an accelerated procedure.

The host Member State shall not place an entry or exit
3.
stamp in the passport of
family members who are not
nationals of a Member State provided that they present the
residence card provided for in Article 10.

4. Where a Union citizen, or a family member who is not a
national of a Member State, does not have the necessary travel
documents or,
if required, the necessary visas, the Member
State concerned shall, before turning them back, give such
persons every reasonable opportunity to obtain the necessary
documents or have them brought to them within a reasonable
period of time or to corroborate or prove by other means that
they are covered by the right of free movement and residence.

(c) — are enrolled at a private or public establishment,
accredited or financed by the host Member State on
the basis of its legislation or administrative practice,
following a course of
for the principal purpose of
study, including vocational training; and

— have comprehensive sickness insurance cover in the
host Member State and assure the relevant national
authority, by means of a declaration or by such
equivalent means as they may choose, that they have
sufficient
family
to become a burden on the social
members not
the host Member State during
assistance system of
their period of residence; or

resources for themselves and their

(d) are family members accompanying or joining a Union
citizen who satisfies the conditions referred to in points
(a), (b) or (c).

5.
The Member State may require the person concerned to
report his/her presence within its territory within a reasonable
and non-discriminatory period of time. Failure to comply with
this requirement may make the person concerned liable to
proportionate and non-discriminatory sanctions.

2.
The right of residence provided for in paragraph 1 shall
extend to family members who are not nationals of a Member
State, accompanying or joining the Union citizen in the host
Member State, provided that such Union citizen satisfies the
conditions referred to in paragraph 1(a), (b) or (c).

CHAPTER III

Right of residence

Article 6

Right of residence for up to three months

1.
Union citizens shall have the right of residence on the
territory of another Member State for a period of up to three
months without any conditions or any formalities other than
the requirement to hold a valid identity card or passport.

2.
The provisions of paragraph 1 shall also apply to family
members in possession of a valid passport who are not
nationals of a Member State, accompanying or joining the
Union citizen.

Article 7

3.
For the purposes of paragraph 1(a), a Union citizen who
is no longer a worker or self-employed person shall retain the
status of worker or self-employed person in the following
circumstances:

(a) he/she is temporarily unable to work as the result of an

illness or accident;

(b) he/she is in duly recorded involuntary unemployment after
having been employed for more than one year and has
registered as a job-seeker with the relevant employment
office;

(c) he/she is in duly recorded involuntary unemployment after
completing a fixed-term employment contract of less than
a year or after having become involuntarily unemployed
during the first twelve months and has registered as a
job-seeker with the relevant employment office.
In this
case, the status of worker shall be retained for no less
than six months;

Right of residence for more than three months

1.
All Union citizens shall have the right of residence on the
territory of another Member State for a period of longer than
three months if they:

(d) he/she embarks on vocational training. Unless he/she is
involuntarily unemployed, the retention of the status of
worker shall require the training to be related to the
previous employment.

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By way of derogation from paragraphs 1(d) and 2 above,
4.
only the spouse, the registered partner provided for in Article
2(2)(b) and dependent children shall have the right of residence
as family members of a Union citizen meeting the conditions
under 1(c) above. Article 3(2) shall apply to his/her dependent
direct relatives in the ascending lines and those of his/her
spouse or registered partner.

Article 8

Administrative formalities for Union citizens

1. Without prejudice to Article 5(5), for periods of residence
longer than three months, the host Member State may require
Union citizens to register with the relevant authorities.

2.
The deadline for registration may not be less than three
months from the date of arrival. A registration certificate shall
be issued immediately, stating the name and address of the
person registering and the date of the registration. Failure to
comply with the registration requirement may render
the
person concerned liable to proportionate and non-discrimi-
natory sanctions.

For the registration certificate to be issued, Member States

3.
may only require that

— Union citizens to whom point (a) of Article 7(1) applies
present a valid identity card or passport, a confirmation of
engagement
certificate of
employment, or proof that they are self-employed persons;

employer or

from the

a

(c) where appropriate, the registration certificate of the Union

citizen whom they are accompanying or joining;

(d) in cases falling under points (c) and (d) of Article 2(2),
laid down

the conditions

documentary evidence that
therein are met;

(e)

in cases falling under Article 3(2)(a), a document issued by
the relevant authority in the country of origin or country
from which they are arriving certifying that
they are
dependants or members of the household of the Union
citizen, or proof of
serious health
grounds which strictly require the personal care of the
family member by the Union citizen;

the existence of

(f)

in cases falling under Article 3(2)(b), proof of the existence
of a durable relationship with the Union citizen.

Article 9

Administrative formalities for family members who are
not nationals of a Member State

1. Member States shall
issue a residence card to family
members of a Union citizen who are not nationals of a
Member State, where the planned period of residence is for
more than three months.

The

deadline

2.
card
application may not be less than three months from the date
of arrival.

submitting

residence

the

for

— Union citizens to whom point (b) of Article 7(1) applies
present a valid identity card or passport and provide proof
that they satisfy the conditions laid down therein;

— Union citizens to whom point (c) of Article 7(1) applies
present a valid identity card or passport, provide proof of
enrolment at an accredited establishment and of compre-
hensive sickness insurance cover and the declaration or
equivalent means referred to in point (c) of Article 7(1).
Member States may not require this declaration to refer to
any specific amount of resources.

4. Member States may not lay down a fixed amount which
they regard as ‘sufficient resources’ but they must take into
account the personal situation of the person concerned. In all
cases this amount shall not be higher than the threshold below
which nationals of the host Member State become eligible for
social assistance, or, where this criterion is not applicable,
higher than the minimum social security pension paid by the
host Member State.

5.
For the registration certificate to be issued to family
members of Union citizens, who are themselves Union
citizens, Member States may require the following documents
to be presented:

(a) a valid identity card or passport;

(b) a document

attesting to the

existence of

a

family

relationship or of a registered partnership;

3.
Failure to comply with the requirement to apply for a
residence card may make the person concerned liable to
proportionate and non-discriminatory sanctions.

Article 10

Issue of residence cards

1.
The right of residence of family members of a Union
citizen who are not nationals of a Member State shall be
evidenced by the issuing of a document called ‘Residence
card of a family member of a Union citizen’ no later than
six months
the
application. A certificate of application for the residence card
shall be issued immediately.

from the date on which they submit

For the residence card to be issued, Member States shall

2.
require presentation of the following documents:

(a) a valid passport;

(b) a document

attesting to the

existence of

a

family

relationship or of a registered partnership;

(c)

the registration certificate or,
in the absence of a regis-
tration system, any other proof of residence in the host
Member State of the Union citizen whom they are accom-
panying or joining;

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(d) in cases falling under points (c) and (d) of Article 2(2),
laid down

the conditions

documentary evidence that
therein are met;

(e)

in cases falling under Article 3(2)(a), a document issued by
the relevant authority in the country of origin or country
from which they are arriving certifying that
they are
dependants or members of the household of the Union
serious health
citizen, or proof of
grounds which strictly require the personal care of the
family member by the Union citizen;

the existence of

(f)

in cases falling under Article 3(2)(b), proof of the existence
of a durable relationship with the Union citizen.

Article 11

Validity of the residence card

1.
The residence card provided for by Article 10(1) shall be
valid for five years from the date of issue or for the envisaged
period of residence of the Union citizen, if this period is less
than five years.

2.
The validity of the residence card shall not be affected by
temporary absences not exceeding six months a year, or by
absences of a longer duration for compulsory military service
or by one absence of a maximum of
twelve consecutive
months
such as pregnancy and
reasons
childbirth, serious illness, study or vocational training, or a
posting in another Member State or a third country.

important

for

Article 12

Retention of the right of residence by family members in
the event of death or departure of the Union citizen

1. Without prejudice to the second subparagraph, the Union
citizen's death or departure from the host Member State shall
not affect the right of residence of his/her family members who
are nationals of a Member State.

Before acquiring the right of permanent residence, the persons
concerned must meet the conditions laid down in points (a),
(b), (c) or (d) of Article 7(1).

second subparagraph of
to the
2. Without prejudice
paragraph 1, the Union citizen's death shall not entail loss of
the right of residence of his/her family members who are not
nationals of a Member State and who have been residing in the
host Member State as family members for at least one year
before the Union citizen's death.

sickness insurance cover in the host Member State, or that they
are members of the family, already constituted in the host
Member State, of a person satisfying these requirements.
‘Sufficient resources’ shall be as defined in Article 8(4).

Such family members shall retain their right of residence
exclusively on a personal basis.

The Union citizen's departure from the host Member
3.
State or his/her death shall not entail
loss of the right of
residence of his/her children or of the parent who has actual
custody of
the
children reside in the host Member State and are enrolled at
an educational establishment, for the purpose of studying there,
until the completion of their studies.

irrespective of nationality,

the children,

if

Article 13

Retention of the right of residence by family members in
the event of divorce, annulment of marriage or termi-
nation of registered partnership

1. Without prejudice to the second subparagraph, divorce,
annulment of the Union citizen's marriage or termination of
his/her registered partnership, as referred to in point 2(b) of
Article 2 shall not affect the right of residence of his/her family
members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons
concerned must meet the conditions laid down in points (a),
(b), (c) or (d) of Article 7(1).

2. Without prejudice to the second subparagraph, divorce,
annulment of marriage or termination of the registered part-
nership referred to in point 2(b) of Article 2 shall not entail
loss of
the right of residence of a Union citizen's family
members who are not nationals of a Member State where:

(a) prior to initiation of the divorce or annulment proceedings
or termination of the registered partnership referred to in
point 2(b) of Article 2, the marriage or registered part-
nership has lasted at least three years, including one year
in the host Member State; or

(b) by agreement between the spouses or the partners referred
to in point 2(b) of Article 2 or by court order, the spouse
or partner who is not a national of a Member State has
custody of the Union citizen's children; or

(c)

this is warranted by particularly difficult circumstances,
such as having been a victim of domestic violence while
the marriage or registered partnership was subsisting; or

Before acquiring the right of permanent residence, the right of
residence of the persons concerned shall remain subject to the
requirement that they are able to show that they are workers
or self-employed persons or that they have sufficient resources
for themselves and their family members not to become a
burden on the social assistance system of the host Member
State during their period of residence and have comprehensive

(d) by agreement between the spouses or partners referred to
in point 2(b) of Article 2 or by court order, the spouse or
partner who is not a national of a Member State has the
right of access to a minor child, provided that the court has
ruled that such access must be in the host Member State,
and for as long as is required.

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Before acquiring the right of permanent residence, the right of
residence of the persons concerned shall remain subject to the
requirement that they are able to show that they are workers
or self-employed persons or that they have sufficient resources
for themselves and their family members not to become a
burden on the social assistance system of the host Member
State during their period of residence and have comprehensive
sickness insurance cover in the host Member State, or that they
are members of the family, already constituted in the host
Member State, of a person satisfying these requirements.
‘Sufficient resources’ shall be as defined in Article 8(4).

Such family members shall retain their right of residence
exclusively on a personal basis.

Article 14

Retention of the right of residence

1.
Union citizens and their family members shall have the
right of residence provided for in Article 6, as long as they do
not become an unreasonable burden on the social assistance
system of the host Member State.

2.
Union citizens and their family members shall have the
right of residence provided for in Articles 7, 12 and 13 as long
as they meet the conditions set out therein.

In specific cases where there is a reasonable doubt as to
whether a Union citizen or his/her family members satisfies
in Articles 7, 12 and 13, Member
the conditions set out
States may verify if these conditions are fulfilled. This verifi-
cation shall not be carried out systematically.

An expulsion measure shall not be the automatic conse-
3.
quence of a Union citizen's or his or her family member's
recourse to the social assistance system of the host Member
State.

By way of derogation from paragraphs 1 and 2 and
4.
without prejudice
to the provisions of Chapter VI, an
expulsion measure may in no case be adopted against Union
citizens or their family members if:

(a) the Union citizens are workers or self-employed persons, or

(b) the Union citizens entered the territory of the host Member
State in order to seek employment. In this case, the Union
citizens and their family members may not be expelled for
as long as the Union citizens can provide evidence that
they are continuing to seek employment and that they
have a genuine chance of being engaged.

Expiry of the identity card or passport on the basis of
2.
which the person concerned entered the host Member State
and was issued with a registration certificate or residence
card shall not constitute a ground for expulsion from the
host Member State.

3.
The host Member State may not impose a ban on entry
in the context of an expulsion decision to which paragraph 1
applies.

CHAPTER IV

Right of permanent residence

S e c t i o n I

E l i g i b i l i t y

Article 16

General rule for Union citizens and their family members

1.
Union citizens who have resided legally for a continuous
period of five years in the host Member State shall have the
right of permanent residence there. This right shall not be
subject to the conditions provided for in Chapter III.

2.
Paragraph 1 shall apply also to family members who are
not nationals of a Member State and have legally resided with
the Union citizen in the host Member State for a continuous
period of five years.

residence

shall not be

Continuity of

3.
affected by
temporary absences not exceeding a total of six months a
year, or by absences of a longer duration for compulsory
military service, or by one absence of a maximum of twelve
consecutive months for important reasons such as pregnancy
and childbirth, serious illness, study or vocational training, or a
posting in another Member State or a third country.

4.
Once acquired, the right of permanent residence shall be
lost only through absence from the host Member State for a
period exceeding two consecutive years.

Article 17

Exemptions for persons no longer working in the host
Member State and their family members

By way of derogation from Article 16,

1.
permanent
enjoyed before completion of a continuous period of
years of residence by:

the right of
residence in the host Member State shall be
five

Article 15

Procedural safeguards

1.
The procedures provided for by Articles 30 and 31 shall
apply by analogy to all decisions restricting free movement of
Union citizens and their family members on grounds other
than public policy, public security or public health.

(a) workers or self-employed persons who, at the time they
stop working, have reached the age laid down by the law
of that Member State for entitlement to an old age pension
or workers who cease paid employment
to take early
retirement, provided that they have been working in that
Member State for at least the preceding twelve months and
have resided there continuously for more than three years.

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If the law of the host Member State does not grant the
right to an old age pension to certain categories of self-
employed persons, the age condition shall be deemed to
have been met once the person concerned has reached the
age of 60;

(b) the death resulted from an accident at work or an occupa-

tional disease; or

(c)

the surviving spouse lost the nationality of that Member
State following marriage to the worker or self-employed
person.

(b) workers or

self-employed persons who have

resided
continuously in the host Member State for more than
two years
result of
permanent incapacity to work.

and stop working there

as

a

If such incapacity is the result of an accident at work or an
occupational disease entitling the person concerned to a
benefit payable in full or in part by an institution in the
host Member State, no condition shall be imposed as to
length of residence;

(c) workers or self-employed persons who, after three years of
continuous employment and residence in the host Member
State, work in an employed or self-employed capacity in
another Member State, while retaining their place of
residence in the host Member State, to which they return,
as a rule, each day or at least once a week.

For the purposes of entitlement to the rights referred to in
points (a) and (b), periods of employment spent
in the
Member State in which the person concerned is working
shall be regarded as having been spent in the host Member
State.

Periods of involuntary unemployment duly recorded by the
relevant employment office, periods not worked for reasons
not of the person's own making and absences from work or
cessation of work due to illness or accident shall be regarded as
periods of employment.

2.
The conditions as to length of residence and employment
laid down in point (a) of paragraph 1 and the condition as to
length of residence laid down in point (b) of paragraph 1 shall
not apply if the worker's or the self-employed person's spouse
or partner as referred to in point 2(b) of Article 2 is a national
of the host Member State or has lost the nationality of that
Member State by marriage to that worker or self-employed
person.

Irrespective of nationality,

3.
the family members of a
worker or a self-employed person who are residing with him
in the territory of the host Member State shall have the right of
permanent residence in that Member State, if the worker or
right of
self-employed person has acquired himself
permanent residence in that Member State on the basis of
paragraph 1.

the

If, however,

the worker or self-employed person dies
4.
while still working but before acquiring permanent residence
status in the host Member State on the basis of paragraph 1,
his family members who are residing with him in the host
Member State shall acquire the right of permanent residence
there, on condition that:

(a) the worker or self-employed person had, at the time of
that

resided continuously on the

territory of

death,
Member State for two years; or

Article 18

Acquisition of the right of permanent residence by certain
family members who are not nationals of a Member State

Without prejudice to Article 17, the family members of a
Union citizen to whom Articles 12(2) and 13(2) apply, who
satisfy the conditions laid down therein, shall acquire the right
of permanent residence after residing legally for a period of five
consecutive years in the host Member State.

S e c t i o n I I

A d m i n i s t r a t i v e f o r m a l i t i e s

Article 19

Document certifying permanent

residence for Union

citizens

Upon application Member States

issue Union
1.
citizens entitled to permanent residence, after having verified
duration of residence, with a document certifying permanent
residence.

shall

The document certifying permanent residence shall be

2.
issued as soon as possible.

Article 20

Permanent residence card for family members who are
not nationals of a Member State

1. Member States shall issue family members who are not
nationals of a Member State entitled to permanent residence
with a permanent residence card within six months of the
submission of the application. The permanent residence card
shall be renewable automatically every ten years.

2.
The application for a permanent residence card shall be
submitted before the residence card expires. Failure to comply
with the requirement to apply for a permanent residence card
may render the person concerned liable to proportionate and
non-discriminatory sanctions.

3.
Interruption in residence not exceeding two consecutive
years shall not affect the validity of the permanent residence
card.

Article 21

Continuity of residence

For the purposes of this Directive, continuity of residence may
be attested by any means of proof in use in the host Member
State. Continuity of residence is broken by any expulsion
decision duly enforced against the person concerned.

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CHAPTER V

Provisions common to the right of residence and the right of
permanent residence

All documents mentioned in paragraph 1 shall be issued
2.
free of charge or for a charge not exceeding that imposed on
nationals for the issuing of similar documents.

Article 22

Territorial scope

The right of residence and the right of permanent residence
the host Member State.
shall cover the whole territory of
Member States may impose territorial
restrictions on the
right of residence and the right of permanent residence only
where the same restrictions apply to their own nationals.

Article 23

Related rights

Article 26

Checks

Member States may carry out checks on compliance with any
requirement deriving from their national
legislation for
non-nationals always to carry their registration certificate or
residence card, provided that the same requirement applies to
their own nationals as regards their identity card. In the event
of failure to comply with this requirement, Member States may
impose the same sanctions as those imposed on their own
nationals for failure to carry their identity card.

Irrespective of nationality, the family members of a Union
citizen who have the right of
the right of
permanent residence in a Member State shall be entitled to
take up employment or self-employment there.

residence or

CHAPTER VI

Restrictions on the right of entry and the right of residence
on grounds of public policy, public security or public health

Article 24

Equal treatment

Subject

1.
to such specific provisions as are expressly
provided for in the Treaty and secondary law, all Union
citizens residing on the basis of this Directive in the territory
of the host Member State shall enjoy equal treatment with the
nationals of that Member State within the scope of the Treaty.
The benefit of this right shall be extended to family members
who are not nationals of a Member State and who have the
right of residence or permanent residence.

By way of derogation from paragraph 1,

the host
2.
Member State shall not be obliged to confer entitlement to
social assistance during the first three months of residence
the longer period provided for in
or, where appropriate,
it be obliged, prior to acquisition
Article 14(4)(b), nor shall
to grant maintenance
of the right of permanent residence,
including vocational training, that consist in
aid for studies,
student grants or
than
workers,
self-employed persons, persons who retain such
status and members of their families.

to persons other

student

loans

Article 25

General provisions concerning residence documents

1.
Possession of a registration certificate as referred to in
Article 8, of a document certifying permanent residence, of a
certificate attesting submission of an application for a family
member residence card, or of a permanent residence card, may
under no circumstances be made a precondition for
the
exercise of a right or the completion of an administrative
formality, as entitlement
to rights may be attested by any
other means of proof.

Article 27

General principles

1.
Subject to the provisions of this Chapter, Member States
may restrict the freedom of movement and residence of Union
citizens and their family members, irrespective of nationality,
on grounds of public policy, public security or public health.
These grounds shall not be invoked to serve economic ends.

2. Measures taken on grounds of public policy or public
security shall comply with the principle of proportionality
and shall be based exclusively on the personal conduct of the
individual concerned. Previous criminal convictions shall not in
themselves constitute grounds for taking such measures.

The personal conduct of
the individual concerned must
represent a genuine, present and sufficiently serious threat
interests of society. Justifi-
affecting one of the fundamental
cations that are isolated from the particulars of the case or
that rely on considerations of general prevention shall not be
accepted.

to ascertain whether

the person concerned
3.
In order
represents a danger
for public policy or public security,
when issuing the registration certificate or, in the absence of
a registration system, not later than three months from the
date of arrival of the person concerned on its territory or
from the date of reporting his/her presence within the territory,
as provided for in Article 5(5), or when issuing the residence
the host Member State may, should it consider this
card,
essential, request the Member State of origin and, if need be,
other Member States to provide information concerning any
previous police record the person concerned may have. Such
enquiries shall not be made as a matter of routine. The
Member State consulted shall give its reply within two months.

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The Member State which issued the passport or identity
4.
card shall allow the holder of the document who has been
expelled on grounds of public policy, public security, or
public health from another Member State to re-enter
its
territory without any formality even if the document is no
longer valid or the nationality of the holder is in dispute.

the conditions referred to in
not suffering from any of
paragraph 1. Such medical examinations may not be required
as a matter of routine.

Article 30

Notification of decisions

Article 28

Protection against expulsion

The persons concerned shall be notified in writing of any
1.
decision taken under Article 27(1), in such a way that they are
able to comprehend its content and the implications for them.

1.
Before taking an expulsion decision on grounds of public
policy or public security, the host Member State shall take
account of considerations such as how long the individual
concerned has resided on its territory, his/her age, state of
health, family and economic situation, social and cultural inte-
gration into the host Member State and the extent of his/her
links with the country of origin.

The host Member State may not

2.
take an expulsion
decision against Union citizens or their family members, irre-
spective of nationality, who have the right of permanent
residence on its
territory, except on serious grounds of
public policy or public security.

3.
An expulsion decision may not be taken against Union
citizens, except if the decision is based on imperative grounds
of public security, as defined by Member States, if they:

(a) have resided in the host Member State for the previous ten

years; or

(b) are a minor, except if the expulsion is necessary for the
best interests of the child, as provided for in the United
Nations Convention on the Rights of
the Child of
20 November 1989.

Article 29

Public health

1.
The only diseases justifying measures restricting freedom
of movement shall be the diseases with epidemic potential as
the World Health
defined by the relevant
instruments of
infectious diseases or contagious
Organisation and other
parasitic diseases
subject of protection
provisions applying to nationals of the host Member State.

they are

the

if

2.
The persons concerned shall be informed, precisely and
in full, of the public policy, public security or public health
grounds on which the decision taken in their case is based,
unless this is contrary to the interests of State security.

3.
The notification shall specify the court or administrative
authority with which the person concerned may lodge an
appeal, the time limit for the appeal and, where applicable,
the time allowed for the person to leave the territory of the
Member State. Save in duly substantiated cases of urgency, the
time allowed to leave the territory shall be not less than one
month from the date of notification.

Article 31

Procedural safeguards

1.
The persons concerned shall have access to judicial and,
where appropriate, administrative redress procedures in the
host Member State to appeal against or seek review of any
decision taken against them on the grounds of public policy,
public security or public health.

2. Where the application for appeal against or
judicial
the expulsion decision is accompanied by an
review of
application for an interim order to suspend enforcement of
that decision, actual removal from the territory may not take
place until such time as the decision on the interim order has
been taken, except:

— where the expulsion decision is based on a previous judicial

decision; or

— where the persons concerned have had previous access to

judicial review; or

2.
Diseases occurring after a three-month period from the
date of arrival shall not constitute grounds for expulsion from
the territory.

— where the expulsion decision is based on imperative

grounds of public security under Article 28(3).

3. Where there are serious indications that it is necessary,
Member States may, within three months of the date of arrival,
require persons entitled to the right of residence to undergo,
free of charge, a medical examination to certify that they are

3.
The redress procedures shall allow for an examination of
the legality of the decision, as well as of the facts and circum-
stances on which the proposed measure is based. They shall
ensure that the decision is not disproportionate, particularly in
view of the requirements laid down in Article 28.

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4. Member States may exclude the individual concerned
from their territory pending the redress procedure, but they
may not prevent
from submitting his/her
defence in person, except when his/her appearance may
cause serious troubles to public policy or public security or
when the appeal or judicial review concerns a denial of entry
to the territory.

the individual

Article 32

Duration of exclusion orders

Persons excluded on grounds of public policy or public
1.
security may submit an application for lifting of the exclusion
order after a reasonable period, depending on the circum-
stances, and in any event after three years from enforcement
of the final exclusion order which has been validly adopted in
forward
accordance with Community
arguments to establish that there has been a material change
in the circumstances which justified the decision ordering their
exclusion.

law, by putting

The Member State concerned shall reach a decision on this
application within six months of its submission.

Article 35

Abuse of rights

Member States may adopt the necessary measures to refuse,
terminate or withdraw any right conferred by this Directive
in the case of abuse of rights or fraud, such as marriages of
convenience. Any such measure shall be proportionate and
subject to the procedural safeguards provided for in Articles
30 and 31.

Article 36

Sanctions

lay down provisions on the sanctions
Member States shall
applicable to breaches of national
the
implementation of this Directive and shall take the measures
required for their application. The sanctions laid down shall be
effective and proportionate. Member States shall notify the
Commission of these provisions not later than . . . (*) and as
promptly as possible in the case of any subsequent changes.

rules adopted for

Article 37

More favourable national provisions

2.
The persons referred to in paragraph 1 shall have no
right of entry to the territory of the Member State concerned
while their application is being considered.

The provisions of this Directive shall not affect any laws, regu-
lations or administrative provisions laid down by a Member
State which would be more favourable to the persons covered
by this Directive.

Article 33

Expulsion as a penalty or legal consequence

1.
Expulsion orders may not be issued by the host Member
State as a penalty or legal consequence of a custodial penalty,
unless they conform to the requirements of Articles 27, 28
and 29.

2.
If an expulsion order, as provided for in paragraph 1, is
enforced more than two years after it was issued, the Member
State shall check that the individual concerned is currently and
genuinely a threat to public policy or public security and shall
assess whether there has been any material change in the
circumstances since the expulsion order was issued.

CHAPTER VII

Final provisions

Article 34

Publicity

Member States shall disseminate information concerning the
rights and obligations of Union citizens and their
family
members on the subjects covered by this Directive, particularly
by means of awareness-raising campaigns conducted through
national and local media and other means of communication.

Article 38

Repeals

Articles 10 and 11 of Regulation (EEC) No 1612/68 shall

1.
be repealed with effect from . . . (*).

Directives

72/194/EEC,
2.
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC
and 93/96/EEC shall be repealed with effect from . . . (*).

64/221/EEC,

68/360/EEC,

References made

and
3.
Directives shall be construed as being made to this Directive.

repealed provisions

to the

Article 39

Report

No later than . . . (**) the Commission shall submit a report on
the application of this Directive to the European Parliament
together with any necessary proposals,
and the Council,
notably on the opportunity to extend the period of
time
during which Union citizens and their family members may
reside in the territory of the host Member State without any
conditions. The Member States shall provide the Commission
with the information needed to produce the report.

(*) Two years from the date of entry into force of this Directive.
(**) Four years from the date of entry into force of this Directive.

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Article 40

Transposition

Article 41

Entry into force

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by . . . (*).

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Union.

When Member States adopt those measures, they shall contain
a reference to this Directive or shall be accompanied by such a
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by the
Member States.

2. Member States shall communicate to the Commission the
text of the provisions of national law which they adopt in the
field covered by this Directive together with a table showing
how the provisions of this Directive correspond to the national
provisions adopted.

Article 42

Addressees

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(*) Two years from the date of entry into force of this Directive.

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STATEMENT OF THE COUNCIL'S REASONS

I.

INTRODUCTION

The Commission submitted its proposal to the Council on 2 July 2001 (1).

The Committee of the Regions delivered its opinion on 13 March 2002 (2).

The European Economic and Social Committee delivered its Opinion on 24 April 2002 (3).

The European Parliament delivered its Opinion at first reading on 11 February 2003, adopting 82
amendments to the initial proposal.

In the light of the outcome of the European Parliament's first reading, the Commission adopted an
amended proposal on 15 April 2003.

The proposal is based on Articles 12, 18(2), 40, 44 and 52 of the EC Treaty. It has to be adopted in
codecision with the European Parliament, the Council acting by qualified majority.

Under the codecision procedure (Article 251 EC Treaty), on 5 December 2003 the Council, having
regard to Parliament's first reading, adopted its common position on the draft Directive.

II. OBJECTIVE

The proposed Directive fits into the legal and political environment established by the citizenship of the
Union: Union citizens should, mutatis mutandis, be able to move between Member States on similar
terms as nationals of a Member State moving around or changing their place of residence in their own
country.

The proposal serves several purposes:

— to bring together the complex corpus of existing legislation into a single legislative instrument
establishing a single system applicable to all categories of person (workers, students, non-active
persons);

— to streamline the current legislation, taking into consideration the case law of the ECJ and the
provisions of the EU Charter of Fundamental Rights regarding family unity and the protection of
family life;

— to simplify the conditions and administrative formalities associated with the exercise of the right of

free movement and residence in the Member States;

— to facilitate the right of free movement and residence of family members of a Union citizen,

irrespective of nationality.

III. ANALYSIS OF THE COMMON POSITION AS SET OUT IN 13263/03

The Council's common position is fully consistent with the main objective of the Commission's
proposal to facilitate the exercise of the right to free movement and residence by reducing adminis-
trative formalities, by providing a clearer definition of the status of family members, by creating a
permanent right of residence acquired after a period of five years of legal residence in a Member State
and by restricting the possibility for Member States to refuse or terminate right of residence on the
grounds of public policy.

(1) OJ C 270 E, 25.9.2001, p. 150.
(2) OJ C 192, 12.8.2002, p. 17.
(3) OJ C 149, 21.6.2002, p. 46.

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However, the Council has made a number of changes compared to the Commission's original proposal,
which the Commission has been able to accept. In addition to the changes of substance mentioned
below, the common position incorporates a number of editorial and technical changes, in order to
clarify certain provisions, to ensure internal consistency and to update terminology.

A. European Parliament amendments which have been accepted by the Council in its common

position

Amendments 3, 5, 6, 8, 9, 10, 12, 13, 25, 28, 34, 39, 40, 55, 59, 61, 64, 68, 71, 72, 74, 78, 79,
80, 82, 83, 85, 86, 89, 90 and 99 have been fully incorporated in the common position.

Amendments 7, 11, 20, 24, 30, 33, 41, 47, 49, 50, 51, 52, 54, 55, 64, 68, 74, 77, 78, 79, 82, 83,
86, 108 and 113 have been partially incorporated in the common position. In particular:

Amendment 7 (Recital 9): this amendment stipulates that stays which do not exceed six months
should not be subject to any conditions. After careful consideration, the Council agreed to set the
period at three months as in the existing acquis, in accordance with new Article 6. However, a
more favourable treatment is applicable to job-seekers as recognised by the case-law of the Court of
Justice.

Amendment 11 (Recital 20): this amendment has been incorporated in the common position
slightly changed, in order to ensure consistency with the new text of Article 21.

Amendment 20 (Article 3(2)): this amendment aims at facilitating entry and residence for family
members not covered by Article 2 in cases where there are serious health or humanitarian grounds
for doing so. This wording has been partially included in the common position, after deletion of the
reference to humanitarian grounds, as the Council considers that they already constitute part of the
commitments undertaken by the Member States in the field of fundamental rights.

Amendment 24 (Article 6(2)): the Council has included the amendment in its common position,
but has not retained the part of the amendment which sets five working days for issuing a visa to
third country national family members. The Council considers this deadline to be too strict and has
replaced it with the wording ‘as soon as possible on the basis of an accelerated procedure’, which
guarantees flexibility and a prompt issue of visas.

Amendment 30 (Article 7(3)): this amendment does not imply any changes to the text but simply
a relocation of Article 8(7) and has been included in the common position. Nevertheless, the
wording of point (c) has been amended by the Council, in order to make it clear that in this
particular situation the status of worker shall be retained for no less than six months.

Amendment 33 (Article 8(2)): the Council has not retained the part of the amendment which states
that penalties should be administrative, preferring to leave Member States to decide on the nature of
applicable sanctions, in conformity with their national legislation.

Amendment 41 (Article 11(2)): the text of the common position differs from this amendment
simply because it imposes a time limit of a year also for absences due to pregnancy or childbirth.

Amendments 47, 49, 50 and 51 (Article 13(1) and (2), points (a) and (b)): these amendments,
which add a reference to the termination of partnerships covered by point (b) of Article 2(2), have
been included in the common position, but have been restricted to registered partnerships in line
with the new text of Article 2. Moreover,
in point (a) the prior duration of the marriage or
partnership has been extended to three years, which the Council considers to be a fair duration
in order to limit abuses.

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Amendment 52 (Article 13(2), point (c)): this amendment contains details of a number of difficult
situations which would justify continued entitlement
to the right of residence after divorce,
annulment of marriage or termination of partnership. The amendment has been included in the
common position, but without the reference to the humanitarian grounds.

Amendment 54 (Article 15): this new Article replaces the text of the former Article 24 (which has
been deleted); it is considered more logical to locate it at the end of Chapter III as removal for
reasons other than public order or public security is not possible once the person concerned has
acquired permanent right of residence. A first paragraph, which has been added to make it clear
that the right of residence is retained as long as the conditions for residence are complied with, has
been transferred to the previous Article.

Amendment 55 (Article 16(3)): this amendment has been included in the common position, but
the wording has been changed in order not to impose any time limit for absences for compulsory
military service.

Amendment 64 (Article 20(3)): this amendment makes it clear that breaks in residence must last
for more than two years at a time if they are to affect the duration of the permanent residence card
and has been included in the common position.

Amendment 108 (Article 24(2)): the Council has accepted this amendment adding that the host
Member State is not obliged to confer entitlement to social assistance during the first three months
of residence, in line with new Article 6a.

Amendment 68 (Article 25(1)): this amendment makes the text clearer and specifies that the
person concerned may prove entitlement
to the rights stemming from the Directive by any
other means.

Amendment 74 (Article 27(3)): the addition of a reference to a period of three months is to cover
the situation of Member States which do not introduce the requirement to register.

Amendment 77 (Article 29(1)): a number of amendments were proposed to this paragraph, which
have been included in the common position. The Council has replaced the reference to the Inter-
national Health Regulation of 1951 by a more general reference to relevant instruments of the
WHO.

Amendment 78 (Article 29(2)): reference to a three-month period instead of to the date of regis-
tration or the date of issue of the residence card is more in keeping with the structure of the
Directive and will also encompass the situation of those Member States which do not introduce the
registration requirement. Reference to refusal of the permanent residence card has been removed as
it cannot be refused for reasons of public health.

Amendment 79 (Article 29(3)): reference to a three-month period is designed to restrict the period
during which Member States may require persons to undergo a medical examination; this is
consistent with the text of the previous paragraph.

Amendment 82 (Article 30(3)): there is now a single time limit for leaving the territory, namely
one month from the date of notification.

Amendment 83 (Article 31(1)): this amendment makes it clear that there must always be judicial
redress possibilities and that administrative redress is also possible if it is provided for by the host
Member State.

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Amendment 113 (Article 31(2)): this amendment has been incorporated in the common position
as reworded in the amended Commission proposal. It foresees suspension of the enforcement of an
expulsion decision, as long as a decision on the interim order to suspend the expulsion has not
been taken. However, the Council decided to introduce a number of exceptions, which in its
opinion do no affect the main purpose of the provision. These exceptions aim to exclude the
case where the expulsion decision is based on a previous judicial decision, or where the persons
concerned have had previous access to judicial review, or where the decision is based on imperative
grounds of public security.

Amendment 86 (Article 32(1)): the amendments to the first subparagraph make the text clearer.
The six-month deadline which replaces the three-month deadline in the second subparagraph is
more realistic and has been incorporated in the common position.

B. European Parliament Amendments which have been rejected by the Council

Amendment 2 (former Recital 4): this amendment stresses that mobility of workers and self-
it has not been included in the
employed persons is also one of the Union's policy priorities:
common position following a general approach of simplifying the text.

Amendment 11: this amendment proposed to former Recital 19 cannot be accepted, because it is
inconsistent with the new wording of Article 24.

Amendments 4, 14, 15 and 16: the text of these amendments recognises as family members the
spouse and registered partner, irrespective of sex, on the basis of the relevant national legislation,
and the unmarried partner,
irrespective of sex, with whom the Union citizen has a durable
relationship, if the legislation or practice of the host and/home Member States treats unmarried
couples and married couples in a corresponding manner and in accordance with the conditions laid
down in any such legislation. These amendments have not be accepted for the following reasons:

With regard to marriage, the Council has been reluctant to opt for a definition of the term ‘spouse’
which makes a specific reference to spouses of the same sex. For the moment only two Member
States have legal provisions for marriages between partners of the same sex. Moreover,
in its
Justice has made it clear that, according to the definition generally
case-law the Court of
accepted by the Member States, the term ‘marriage’ means a union between two persons of the
opposite sex.

With regard to partners, whether they are registered partners or unmarried partners, the Council is
of the opinion that recognition of such situations must be based exclusively on the legislation of the
host Member State. Recognition for purposes of residence of non-married couples in accordance
with the legislation of other Member States could pose problems for the host Member State if its
family law does not recognise this possibility. To confer rights which are not recognised for its own
nationals on couples from other Member States could in fact create reverse discrimination, which
must be avoided.

Amendments 17 and 18: these proposed amendments, which would insert a specific reference in
points (c) and (d) of Article 2(2) to relatives in the ascending and descending lines of registered
partners, cannot be accepted.

Amendment 19: this proposed amendment would incorporate in Article 2(3) a definition of the
home Member State and the criteria to be used for determining what constitutes a durable
relationship. This reference to the legislation of the home Member State is not acceptable for the
purpose of defining spouse or partner.

Amendment 21 (former Article 4): this amendment, which makes the prohibition of discrimination
more specific by adding gender identity to the definition, has not been retained. The text included in
Recital 31, which replaces former Article 4, follows the exact wording of Article 21 of the Charter
of Fundamental Rights.

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Amendments 26, 32 (in part), 42, 43 and 44: these amendments cannot be accepted as they
would substantially alter the structure of the Directive and undermine the approach followed by the
Commission and the Council.

Amendment 27 (Article 7(1), point (a)): this amendment includes a direct reference to recipients of
services, but the Council considers that recipients of services cannot be treated on the same foot as
workers or self-employed persons.

Amendment 32 (Article 8(1)): this amendment has not been included in the common position,
because the Council considers that Member States should not be obliged to issue a registration
certificate if they have not opted for a registration system.

Amendment 35 (Article 8(5), point (b)): this amendment has not been included in the common
position, because the Council considered that a simple statement attesting to the existence of a
family relationship is not sufficient to prove the family relationship. This approach is in line with
the one followed for the registration system (Article 8).

Amendment 38 (Article 9): this amendment reflects the points made by the Court of Justice in its
ruling of 25 July 2002 in (Case C-459/99) MRAX. It has not been included in the common
position, because the Council considers it contradictory to Article 10, where there is an exhaustive
list of all documents required for obtaining a residence card and the visa does not appear as one of
them.

Amendment 62 (Article 20(1)): the proposal that the residence card would be valid indefinitely and
also renewable every ten years seems contradictory. The text included in the common position has
consequently deleted the final sentence of the paragraph on renewal and the Council has opted for
the renewal of the card every ten years.

Amendment 76 (former Article 25(5a)): this amendment imposes a requirement on Member States
to notify the Commission of any decision to expel Union citizens or their family members. This
amendment has not been included in the common position, because the Council considers that this
procedure would be too cumbersome for Member States without offering any advantages for Union
citizens.

Amendment 84 (Article 31(2)): the aim of this amendment, providing for deletion of the first
phrase, is to ensure that all decisions are subject to prior checks by an independent authority, not
only where there is provision for administrative appeal. It has not been included in the common
position because the whole paragraph has been deleted.

Amendment 88 (former Article 31a): this amendment provides for a new Article, which takes over
the contents of the old Article 31(2). The Council has preferred to keep a single Article, considering
that its paragraph 2 referred only to orders provided for in paragraph 1.

Amendments 91, 92 and 93 (Articles 38, 39 and 40): these amendments concern measures to be
taken after the date of entry into force of the Directive. Parliament proposed July 2004 but in view
of the status of proceedings this does not seem realistic. This is the reason why the Council opted
for two years after the date of entry into force of the Directive.

Amendments 22, 23, 31, 45, 53, 56, 57, 58, 60, 63, 66 and 69: these amendments could not be
accepted as they were considered as not being consistent with the Commission proposal.

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C. New elements introduced by the Council

The main points of the common position which differ from the Commission's proposal are as
follows:

— Recitals

The Recitals have been adapted in order to ensure coherence with amendments introduced in
the text of Articles. References to Articles of the EC Treaty have been deleted, because they
would have no sense after the entry into force of the future Constitution.

Three Recitals represent a new element in comparison with the amended Commission proposal,
notably:

Recital 6: this Recital was added in order to clarify the notion of facilitation provided for in
Article 3.

this Recital

Recital 16:
states the elements and criteria, which should be taken into
consideration in order to establish if a person concerned has become an unreasonable burden
and the host Member State can proceed to his expulsion. The Council considers that this recital
would provide useful indication for the criteria to follow in order to establish if a person has
become an unreasonable burden.

Recital 31: former Article 4 concerning the prohibition of discriminations has been deleted and
its contents have been added to this Recital on fundamental rights. Since the prohibition of
discriminations belongs to the general principles of community law, the Council prefers to
include it in the Preamble.

— Articles

Articles 2 and 3: these Articles concerning the definition of family members and beneficiaries
have been one of the core issues of the proposal and the common position has amended a
number of their elements, notably:

— Concept of registered partnership and of durable relationship

The common position has restricted this definition only to registered partners, if the legis-
lation of the host Member State treats the registered partnerships as equivalent to married
couples, excluding therefore the durable relationships from the scope of Article 2. In parallel,
Article 3 has been amended as to provide for the facilitation of the partner with whom the
Union citizen has a durable relationship, duly attested. The concept of facilitation was
clarified in Recital 6a.

— Other family members

As far as direct descendants and relatives in the ascending line of the Union citizen are
concerned,
the Council has decided to maintain the existing acquis, by reintroducing
conditions of age and dependency.

Article 6 (new): former paragraphs 5 and 6 of Article 6 have been transferred to a new Article
for clarity reasons. The common position has not accepted the extension of the period of
residence without conditions to six months, preferring to maintain the existing acquis of
three months. Nevertheless, a revision clause has been included in Article 39, whereby the
Commission is committed to study the need to extend this period of time in the report on
the application of the Directive, which it will submit two years after its transposal.

Article 7(4): the right to family unification for students has been limited to the core family, as
in the existing acquis. Nevertheless, the entry and residence of dependent ascendants will be
facilitated on the basis of Article 3.

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Article 8: as far as administrative formalities for Union citizens are concerned and in order to
prevent abuses, the common position has introduced a system, whereby Member States may
require that Union citizens provide proof that they satisfy the conditions laid down in Article 7.
Nevertheless, this system remains flexible since the registration certificate is issued on the spot
and the fulfilment of conditions is verified only in specific cases where there is a reasonable
doubt, as foreseen in Article 14(2). In paragraph 4, the possibility for Member States to provide
for an amount of sufficient resources has been foreseen, but allowing to take into account the
personal situation of the person concerned.

Article 11(1): the common position has added that the residence card issued to family members
of a Union citizen who are not nationals of a Member State could be valid for less than five
years in order to correspond to the envisaged period of residence of the Union citizen, if this
period is inferior to five years.

Article 12(2): the common position has introduced the condition for family members who are
not nationals of a Member state to have been residing in the host Member State for at least one
year before the Union citizen's death in order to retain their right of residence. Another
condition included in the common position foresees that family members retain their right of
residence exclusively on a personal basis. These conditions reflect the justified concerns of
delegations to prevent abuse, but in the same time establish a proportionate link with the
host Member State.

Article 13(2)(d): the common position has introduced a situation, where in case of divorce,
annulment of marriage or termination of the registered partnership, the spouse or partner not
being a national of a Member State shall not lose the right of residence, provided that a court
has ruled the right of access to a minor child in the host Member State.

Articles 14 and 15: former Article 13 has been divided in two articles and its contents have
been clarified. Article 14 makes clear the circumstances, under which a Member State can expel
Union citizens if they no longer meet the conditions for the right of residence.

It has been provided for that an expulsion measure cannot be the automatic consequence of
recourse to the social assistance system, thus integrating in the text the case-law of the Court of
Justice in case C-184/99, Grzelczyk. Moreover, new Recital 16 clarifies further the concept of
unreasonable burden, which could result in an expulsion measure.

Rules concerning procedural safeguards have been included in a new Article 15, without
modification.

Article 16: the period of continuous legal residence in the host Member State necessary for the
acquisition of the right of permanent residence has been set at five years instead of the proposed
four years. This change has made possible the inclusion of students within the beneficiaries of
the right of permanent residence.

In paragraph 3, the common position has reduced the period of absence entailing the loss of the
right of permanent residence to two years instead of the proposed four years. This change has
also led to a change in Article 20(3) concerning the validity of the permanent residence card.
This could be justified because after a two-year absence the link with the host Member State
could be considered as loosened.

Article 17(4)(a): the period of residence in the host Member State prior to the acquisition of the
right of permanent residence has been set at two years, as in the existing acquis. This change
once again guarantees a strong link with the host Member State.

Articles 19 and 20: Union citizens are no longer obliged to have a permanent residence card.
Member States shall
issue them a document certifying that they have acquired the right of
permanent residence. This document shall be issued upon application, after verification of the
duration of residence. This approach meets the objective of reducing administrative formalities
for Union citizens.

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As far as family members who are not nationals of a Member State are concerned, they must
possess a permanent residence card, which is renewable automatically every ten years. The time
limit introduced by the common position allows for the updating of data.

Article 24: in paragraph 1 it was added that the equal treatment is subject to such specific
provisions as are expressly provided for in the Treaty and secondary law. In paragraph 2, the
common position has specified that Member States are not obliged to grant maintenance aid for
studies that consist in student grants or student loans to persons other than workers or self-
employed.

Article 27: the former third subparagraph of paragraph 2 has been deleted, because its inter-
pretation could allow considering as a threat for public policy any behaviour punished on a
domestic level. Paragraph 3 has been moved in Article 15, since the expiry of an identity
document cannot be considered as contrary to public policy.

Article 28: the Council is almost unanimously against the absolute protection against expulsion,
although it has accepted an increased protection for Union citizens who have been residing for a
long period in the host Member State. After the acquisition of the right of permanent residence,
Union citizens may be expelled only on serious grounds of public policy or public security.

Union citizens who are minor or who have resided in the host Member State for ten years may
be expelled only on imperative grounds of public security.

Article 31: former paragraph 2 has been deleted, since the common position already confirms
the obligation of Member States to provide for redress procedures, which allow for an exam-
ination of the facts and circumstances and there is a possibility to suspend the expulsion
measure, making therefore paragraph 2 redundant.

the common position has introduced an exception to the principle of
In paragraph 4,
submitting one's defence in person,
if the appearance may cause serious troubles to public
policy or public security or when the appeal or review concerns a refusal of entry to the
territory.

Article 32: paragraph 1 has been deleted and its contents included in Recital 25. In former
paragraph 2 the period after which an application for lifting of an exclusion order may be
submitted has been set at three years instead of the proposed two.

Article 33: in paragraph 2 it has been clarified that the assessment of whether there has been
any change of circumstances since the expulsion decision was taken shall be made only if the
expulsion order is enforced more than two years after it was issued.

Article 35: this new Article has been introduced, in order to clarify that Member States may
refuse, terminate or withdraw any right conferred by the Directive in the case of abuse of rights
or fraud.

IV. CONCLUSION

The Common Position represents an equitable and balanced solution to the issues addressed by the
proposed Directive and has been designed to achieve the aim of giving substance to the concept of the
Union citizenship and to reinforce the rights of Union citizens in the area of free movement and
residence. A great number of the European Parliament's amendments have been fully incorporated,
whereas others have been at least partially introduced or taken into account in an effort to arrive at a
balanced text.