Council Directive 2004/114/EC of 13 december 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service
Date: 2004-12-13
Institutions: Council of the European Union
Subjects: EU migration policy, educational exchange, foreign national, foreign student, residence permit, third country, unpaid work, vocational training

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Official Journal of the European Union

23.12.2004

COUNCIL DIRECTIVE 2004/114/EC

of 13 december 2004

on the conditions of admission of third-country nationals for the purposes of studies, pupil
exchange, unremunerated training or voluntary service

THE COUNCIL OF THE EUROPEAN UNION,

(6)

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

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Parliament (1),

(7)

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

Whereas:

(1)

(2)

(3)

(4)

(5)

For the gradual establishment of an area of
freedom,
security and justice, the Treaty provides for measures to
be adopted in the fields of asylum, immigration and the
protection of the rights of third-country nationals.

that

the Council

to adopt
The Treaty provides
measures on immigration policy relating to conditions
of entry and residence, and standards on procedures
for the issue by Member States of long-term visas and
residence permits.

is

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

rights and
This Directive respects
observes the principles recognised by the Charter of
Fundamental Rights of the European Union.

the fundamental

The Member States should give effect to the provisions of
this Directive without discrimination on the basis of sex,
race, colour, ethnic or social origin, genetic features,
language,
religion or belief, political or any other
opinions, membership of a national minority, property,
birth, disability, age or sexual orientation.

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

Migration for the purposes set out
in this Directive,
which is by definition temporary and does not depend
on the labour-market situation in the host country,
constitutes
the
migrants concerned,
their country of origin and the
host Member State and helps to promote better famil-
iarity among cultures.

form of mutual

enrichment

for

a

(8)

(9)

(10)

(11)

The term admission covers the entry and residence of
third-country nationals for the purposes set out in this
Directive.

The new Community rules are based on definitions of
student, trainee, educational establishment and volunteer
in particular in the
already in use in Community law,
various Community programmes
the
mobility of
the relevant persons (Socrates, European
Voluntary Service etc.).

to promote

The duration and other conditions of preparatory courses
for students covered by the present Directive should be
determined by Member States in accordance with their
national legislation.

Third-country nationals who fall
into the categories of
unremunerated trainees and volunteers and who are
considered, by virtue of their activities or the kind of
remuneration received, as workers
compensation or
under national
legislation are not covered by this
Directive. The admission of third-country nationals who
intend to carry out specialisation studies in the field of
medicine should be determined by the Member States.

(12)

Evidence of acceptance of a student by an establishment
of higher education could include, among other possibi-
lities, a letter or certificate confirming his/her enrolment.

(1) OJ C 68 E, 18.3.2004, p. 107.
(2) OJ C 133, 6.6.2003, p. 29.
(3) OJ C 244, 10.10.2003, p. 5.

(13)

Fellowships may be taken into account in assessing the
availability of sufficient resources.

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if

a Member

(14) Admission for the purposes set out in this Directive may
In particular,
be refused on duly justified grounds.
admission could be
State
refused
considers, based on an assessment of the facts, that the
third-country national concerned is a potential threat to
public policy or public security. The notion of public
policy may cover a conviction for committing a serious
crime. In this context it has to be noted that the notions
of public policy and public security also cover cases in
which a third-country national belongs or has belonged
to an association which supports terrorism, supports or
has supported such an association, or has or has had
extremist aspirations.

(15)

(16)

(17)

(18)

In case of doubts concerning the grounds of the appli-
cation of admission, Member States should be able to
require
its
evidence necessary
all
in particular on the basis of the applicant's
coherence,
in order to fight against abuse and
proposed studies,
misuse of the procedure set out in this Directive.

to assess

the

The mobility of students who are third-country nationals
studying in several Member States must be facilitated, as
must the admission of third-country nationals partici-
pating in Community programmes to promote mobility
within and towards the Community for the purposes set
out in this Directive.

In order to allow initial entry into their territory, Member
States should be able to issue in a timely manner a
residence permit or, if they issue residence permits exclu-
sively on their territory, a visa.

to allow students who are third-country
In order
nationals to cover part of the cost of their studies, they
should be given access to the labour market under the
conditions set out
in this Directive. The principle of
access for students to the labour market under the
conditions set out in this Directive should be a general
rule; however,
in exceptional circumstances Member
States should be able to take into account the situation
of their national labour markets.

(19)

The notion of prior authorisation includes the granting
of work permits to students who wish to exercise an
economic activity.

(23)

(24)

(25)

(26)

to which third-country nationals may be admitted and
the conditions and procedures for entry and residence in
its territory for those purposes.

This Directive should not in any circumstances affect the
application of Council Regulation (EC) No 1030/2002 of
13 June 2002 laying down a uniform format
for
residence permits for third-country nationals (1).

Since the objective of this Directive, namely to determine
the conditions of admission of third-country nationals
for the purposes of study, pupil exchange, unremun-
erated training or voluntary service, cannot be sufficiently
achieved by the Member States and can, by reason of its
scale or effects, be better achieved at Community level,
the Community may adopt measures, in accordance with
the principle of subsidiarity as set out in Article 5 of the
In accordance with the principle of propor-
Treaty.
tionality as set out in that Article, this Directive does
not go beyond what
is necessary to achieve that
objective.

In accordance with Articles 1 and 2 of the Protocol on
the position of the United Kingdom and Ireland, annexed
to the Treaty on European Union and to the Treaty
establishing the European Community, and without
prejudice to Article 4 of
these
Member States are not taking part in the adoption of
this Directive and are not bound by it or subject to its
application.

the said Protocol,

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark, annexed to the Treaty on
European Union and to the Treaty establishing the
European Community, Denmark is not taking part in
the adoption of this Directive and is not bound by it
or subject to its application,

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

(20)

This Directive does not affect national legislation in the
area of part-time work.

The purpose of this Directive is to determine:

(21)

(22)

Provision should be made for
fast-track admission
procedures for study purposes or for pupil exchange
schemes operated by recognised organisations in the
Member States.

(a)

the conditions for admission of third-country nationals to
the territory of the Member States for a period exceeding
three months for the purposes of studies, pupil exchange,
unremunerated training or voluntary service;

Each Member State should ensure that the fullest possible
set of regularly updated information is made available to
the general public, notably on the Internet, as regards the
establishments defined in this Directive, courses of study

(b) the rules concerning the procedures for admitting third-
the Member States

country nationals to the territory of
for those purposes.

(1) OJ L 157, 15.6.2002, p. 1.

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Article 2

Definitions

For the purposes of this Directive:

(a)

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

(b) ‘student’ means a third-country national accepted by an
establishment of higher education and admitted to the
territory of a Member State to pursue as his/her main
activity a full-time course of study leading to a higher
education qualification recognised by the Member State,
including diplomas, certificates or doctoral degrees in an
establishment of higher education, which may cover a
preparatory course prior to such education according to
its national legislation;

(c)

‘school pupil’ means a third-country national admitted to
the territory of a Member State to follow a recognised
programme of secondary education in the context of an
exchange scheme operated by an organisation recognised
for that purpose by the Member State in accordance with
its national legislation or administrative practice;

(d) ‘unremunerated trainee’ means a third-country national who
has been admitted to the territory of a Member State for a
training period without remuneration in accordance with its
national legislation;

(e)

‘establishment’ means a public or private establishment
recognised by the host Member State and/or whose
courses of study are recognised in accordance with its
national
the
legislation or
purposes set out in this Directive;

administrative practice

for

(f)

‘voluntary service scheme’ means a programme of activities
of practical solidarity, based on a State or a Community
scheme, pursuing objectives of general interest;

(g)

‘residence permit’ means any authorisation issued by the
authorities of a Member State allowing a third-country
national to stay legally in its territory, in accordance with
Article 1(2)(a) of Regulation (EC) No 1030/2002.

Article 3

Scope

2.

This Directive shall not apply to:

(a)

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

(b) third-country

nationals whose

expulsion

has

been

suspended for reasons of fact or of law;

(c)

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

(d) third-country nationals who enjoy long-term resident status
in a Member State in accordance with Council Directive
2003/109/EC of 25 November 2003 on the status of
third-country nationals who are long-term residents (1) and
exercise their right to reside in another Member State in
order to study or receive vocational training;

(e)

third-country nationals considered under the national legis-
lation of the Member State concerned as workers or self-
employed persons.

Article 4

More favourable provisions

1.
This Directive
favourable provisions of:

shall be without prejudice

to more

(a) bilateral or multilateral agreements between the Community
or the Community and its Member States and one or more
third countries; or

(b) bilateral or multilateral agreements between one or more

Member States and one or more third countries.

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

CHAPTER II

CONDITIONS OF ADMISSION

Article 5

Principle

1.
This Directive shall apply to third-country nationals who
apply to be admitted to the territory of a Member State for the
purpose of studies.

Member States may also decide to apply this Directive to third-
country nationals who apply to be admitted for the purposes of
pupil exchange, unremunerated training or voluntary service.

The admission of a third-country national under this Directive
shall be subject to the verification of documentary evidence
showing that he/she meets the conditions laid down in Article
6 and in whichever of Articles 7 to 11 applies to the relevant
category.

(1) OJ L 16, 23.1.2004, p. 44.

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Article 6

General conditions

A third-country national who applies to be admitted for

1.
the purposes set out in Articles 7 to 11 shall:

(a) present a valid travel document as determined by national
legislation. Member States may require the period of validity
of the travel document to cover at least the duration of the
planned stay;

(b) if he/she is a minor under the national

legislation of the
host Member State, present a parental authorisation for the
planned stay;

(c) have sickness insurance in respect of all risks normally
in the Member State

its own nationals

covered for
concerned;

(d) not be regarded as a threat to public policy, public security

or public health;

(e) provide proof, if the Member State so requests, that he/she
has paid the fee for processing the application on the basis
of Article 20.

2. Member States shall facilitate the admission procedure for
the third-country nationals covered by Articles 7 to 11 who
participate in Community programmes enhancing mobility
towards or within the Community.

Students who automatically qualify for sickness insurance
2.
in respect of all risks normally covered for the nationals of the
Member State concerned as a result of enrolment at an estab-
lishment shall be presumed to meet the condition of Article
6(1)(c).

Article 8

Mobility of students

1. Without prejudice to Articles 12(2), 16 and 18(2), a third-
country national who has already been admitted as a student
and applies to follow in another Member State part of the
studies already commenced, or to complement them with a
related course of study in another Member State, shall be
admitted by the latter Member State within a period that does
not hamper the pursuit of the relevant studies, whilst leaving
the competent authorities sufficient time to process the appli-
cation, if he/she:

(a) meets the conditions laid down by Articles 6 and 7 in

relation to that Member State; and

(b) has sent, with his/her application for admission, full docu-
mentary evidence of his/her academic record and evidence
that
to follow genuinely
complements the one he/she has completed; and

course he/she wishes

the

(c) participates

in a Community or
programme or has been admitted as a student
Member State for no less than two years.

bilateral

exchange
in a

Article 7

Specific conditions for students

2.
The requirements referred to in paragraph 1(c), shall not
apply in the case where the student, in the framework of his/her
programme of studies,
is obliged to attend a part of his/her
courses in an establishment of another Member State.

In addition to the general conditions stipulated in Article
1.
6, a third-country national who applies to be admitted for the
purpose of study shall:

(a) have been accepted by an establishment of higher education

to follow a course of study;

(b) provide the evidence requested by a Member State that
during his/her stay he/she will have sufficient resources to
cover his/her subsistence, study and return travel costs.
Member States shall make public the minimum monthly
resources
this provision,
without prejudice to individual examination of each case;

the purpose of

required for

(c) provide evidence,

the Member State so requires, of
sufficient knowledge of the language of the course to be
followed by him/her;

if

the request of

The competent authorities of the first Member State shall,
3.
at
the second
the competent authorities of
Member State, provide the appropriate information in relation
to the stay of the student in the territory of the first Member
State.

Article 9

Specific conditions for school pupils

1.
Subject to Article 3, a third-country national who applies
to be admitted in a pupil exchange scheme shall, in addition to
the general conditions stipulated in Article 6:

(a) not be below the minimum age nor above the maximum

age set by the Member State concerned;

(d) provide evidence,

the Member State so requires,
he/she has paid the fees charged by the establishment.

if

that

(b) provide evidence of acceptance by a secondary education

establishment;

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

those tasks, his/her working hours,

the
performance of
resources available to cover his travel, subsistence, accom-
modation costs and pocket money throughout his/her stay
and,
the training he will receive to help
him/her perform his/her service;

if appropriate,

(d) provides evidence that

responsibility

the pupil exchange organisation
accepts
throughout his/her
for him/her
period of presence in the territory of the Member State
study,
concerned,
healthcare and return travel costs;

in particular as

subsistence,

regards

(e) be accommodated throughout his/her stay by a family
State
set
meeting
concerned and selected in accordance with the rules of
the pupil exchange scheme in which he/she is participating.

the Member

conditions

the

by

2. Member States may confine the admission of school
pupils participating in an exchange scheme to nationals of
third countries which offer the same possibility for their own
nationals.

Article 10

Specific conditions for unremunerated trainees

Subject to Article 3, a third-country national who applies to be
admitted as an unremunerated trainee shall, in addition to the
general conditions stipulated in Article 6:

(a) have signed a training agreement, approved if need be by
the relevant authority in the Member State concerned in
legislation or administrative
accordance with its national
practice, for an unremunerated placement with a public-
or private-sector enterprise or vocational
training estab-
lishment recognised by the Member State in accordance
with its national legislation or administrative practice;

(b) provide the evidence requested by a Member State that
during his/her stay he/she will have sufficient resources to
cover his/her subsistence, training and return travel costs.
shall make public the minimum
The Member States
monthly resources
this
provision, without prejudice to individual examination of
each case;

the purpose of

required for

(c) receive,

if

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

Article 11

Specific conditions for volunteers

Subject to Article 3, a third-country national who applies to be
admitted to a voluntary service scheme shall, in addition to the
general conditions stipulated in Article 6:

(a) not be below the minimum age nor above the maximum

age set by the Member State concerned;

(b) produce an agreement with the organisation responsible in
the Member State concerned for
the voluntary service
scheme in which he/she is participating, giving a description
of tasks, the conditions in which he/she is supervised in the

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

(d) and, if the host Member State specifically requires it, receive
a basic introduction to the language, history and political
and social structures of that Member State.

CHAPTER III

RESIDENCE PERMITS

Article 12

Residence permit issued to students

A residence permit shall be issued to the student for a
1.
period of at
the holder
least one year and renewable if
continues to meet the conditions of Articles 6 and 7. Where
the duration of the course of study is less than one year, the
permit shall be valid for the duration of the course.

2. Without prejudice to Article 16, renewal of a residence
permit may be refused or the permit may be withdrawn if the
holder:

(a) does not respect the limits imposed on access to economic

activities under Article 17;

(b) does not make acceptable progress in his/her studies in
administrative

legislation or

accordance with national
practice.

Article 13

Residence permit issued to school pupils

A residence permit issued to school pupils shall be issued for a
period of no more than one year.

Article 14

Residence permit issued to unremunerated trainees

shall

correspond to the duration of

The period of validity of a residence permit issued to unremun-
erated trainees
the
placement or shall be for a maximum of one year. In excep-
tional cases, it may be renewed, once only and exclusively for
such time as is needed to acquire a vocational qualification
recognised by a Member State in accordance with its national
legislation or administrative practice, provided the holder still
meets the conditions laid down in Articles 6 and 10.

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Article 15

Residence permit issued to volunteers

employers may also be subject to a reporting obligation,
advance or otherwise.

in

A residence permit issued to volunteers shall be issued for a
period of no more than one year. In exceptional cases, if the
duration of the relevant programme is longer than one year, the
duration of the validity of the residence permit may correspond
to the period concerned.

Article 16

Withdrawal or non-renewal of residence permits

1. Member States may withdraw or
refuse to renew a
residence permit issued on the basis of this Directive when it
has been fraudulently acquired or wherever it appears that the
holder did not meet or no longer meets the conditions for entry
and residence laid down in Article 6 and in whichever of
Articles 7 to 11 applies to the relevant category.

refuse to renew a
2. Member States may withdraw or
residence permit on grounds of public policy, public security
or public health.

CHAPTER IV

TREATMENT OF THE THIRD-COUNTRY NATIONALS
CONCERNED

Article 17

Economic activities by students

1.
Outside their study time and subject to the rules and
conditions applicable to the relevant activity in the host
Member State, students shall be entitled to be employed and
may be entitled to exercise self-employed economic activity. The
situation of the labour market in the host Member State may be
taken into account.

Where necessary, Member States shall grant students and/or
employers prior authorisation in accordance with national legis-
lation.

2.
Each Member State shall determine the maximum number
of hours per week or days or months per year allowed for such
an activity, which shall not be less than 10 hours per week, or
the equivalent in days or months per year.

Access to economic activities for the first year of residence

3.
may be restricted by the host Member State.

4. Member States may require students to report, in advance
or otherwise, to an authority designated by the Member State
concerned, that they are engaging in an economic activity. Their

CHAPTER V

PROCEDURE AND TRANSPARENCY

Article 18

Procedural guarantees and transparency

A decision on an application to obtain or

1.
renew a
residence permit shall be adopted, and the applicant shall be
notified of it, within a period that does not hamper the pursuit
of the relevant studies, whilst leaving the competent authorities
sufficient time to process the application.

2.
If the information supplied in support of the application is
inadequate, processing of the application may be suspended and
inform the applicant of any
the competent authorities shall
further information they need.

shall be notified to the

Any decision rejecting an application for a residence
3.
permit
third-country national
concerned in accordance with the notification procedures
provided for under the relevant national legislation. The notifi-
cation shall specify the possible redress procedures available and
the time limit for taking action.

4. Where an application is rejected or a residence permit
the
issued in accordance with this Directive is withdrawn,
person concerned shall have the right
to mount a legal
challenge before the authorities of the Member State concerned.

Article 19

Fast-track procedure for issuing residence permits or visas
to students and school pupils

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

the entry and residence of

Article 20

Fees

Member States may require applicants to pay fees for the
processing of applications in accordance with this Directive.

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CHAPTER VI

FINAL PROVISIONS

Article 21

Reporting

Periodically, and for the first time by 12 January 2010, the
Commission shall report to the European Parliament and the
Council on the application of this Directive in the Member
States and propose amendments if appropriate.

Article 22

Transposition

Member States shall bring into force the laws, regulations and
to comply with this
administrative provisions necessary
forthwith inform
Directive by 12 January 2007. They shall
the Commission thereof.

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

Article 24

Time limits

Without prejudice to the second subparagraph of Article 4(2) of
Directive 2003/109/EC, Member States shall not be obliged to
take into account the time during which the student, exchange
pupil, unremunerated trainee or volunteer has resided as such in
their territory for the purpose of granting further rights under
national law to the third-country nationals concerned.

Article 25

Entry into force

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

Article 26

Addressees

This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.

Article 23

Transitional provision

Done at Brussels, 13 December 2004.

By way of derogation from the provisions set out in Chapter III
and for a period of up to two years after the date set out in
Article 22, Member States are not obliged to issue permits in
accordance with this Directive in the form of a residence permit.

For the Council
The President

B. R. BOT