Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research
Date: 2005-10-12
Institutions: Council of the European Union
Subjects: admission of aliens, foreign national, research body, research staff, scientific research, third country

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COUNCIL DIRECTIVE 2005/71/EC

of 12 October 2005

on a specific procedure for admitting third-country nationals for the purposes of scientific
research

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (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

Whereas:

(4) The number of researchers which the Community will
need by 2010 to meet the target set by the Barcelona
European Council in March 2002 of 3 % of GDP invested
in research is estimated at 700 000. This target is to be
met through a series of interlocking measures, such as
making scientific careers more attractive to young
people, promoting women’s involvement in scientific
research, extending the opportunities for training and
improving career prospects for
mobility in research,
researchers in the Community and opening up the
Community to third-country nationals who might be
admitted for the purposes of research.

(5) This Directive is intended to contribute to achieving these
goals by fostering the admission and mobility for
research purposes of third-country nationals for stays
of more than three months,
in order to make the
Community more attractive to researchers from around
the world and to boost its position as an international
centre for research.

(1) With a view to consolidating and giving structure to
European research policy, the Commission considered it
necessary in January 2000 to establish the European
Research Area as the lynchpin of the Community’s future
action in this field.

(2)

Endorsing the European Research Area,
the Lisbon
European Council in March 2000 set the Community
the objective of becoming the most competitive and
dynamic knowledge-based economy in the world by
2010.

(3) The globalisation of

the economy calls for greater
mobility of researchers, something which was recognised
by the sixth framework programme of the European
Community (4), when it opened up its programmes
further to researchers from outside the European Union.

(6)

(7)

Implementation of this Directive should not encourage a
brain drain from emerging or developing countries.
Back-up measures to support researchers’ reintegration
into their countries of origin as well as the movement of
researchers should be taken in partnership with the
countries of origin with a view to establishing a
comprehensive migration policy.

For the achievement of the objectives of the Lisbon
process it is also important to foster the mobility within
the Union of researchers who are EU citizens, and in
particular researchers from the Member States which
the purpose of carrying out
acceded in 2004,
scientific research.

for

(1) Opinion of 12 April 2005 (not yet published in the Official

Journal).

(2) OJ C 120, 20.5.2005, p. 60.
(3) OJ C 71, 22.3.2005, p. 6.
(4) Decision No 1513/2002/EC of the European Parliament and of
the Council of 27 June 2002 concerning the sixth framework
programme of
research,
technological development and demonstration activities, con-
tributing to the creation of the European Research Area and to
innovation (2002 to 2006)
(OJ L 232, 29.8.2002, p. 1).
Decision amended by Decision No 786/2004/EC (OJ L 138,
30.4.2004, p. 7).

the European Community for

(8) Given the openness imposed by changes in the world
economy and the likely requirements to meet the 3 % of
GDP target for investment in research, third-country
researchers potentially eligible under
this Directive
should be defined broadly in accordance with their
qualifications and the research project which they intend
to carry out.

(9) As the effort to be made to achieve the said 3 % target
largely concerns the private sector, which must therefore
recruit more researchers in the years to come,
the
this
research organisations potentially eligible under
Directive belong to both the public and private sectors.

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(10) Each Member State should ensure that

the most
comprehensive information possible, regularly kept up
to date, is made publicly available, via the Internet in
particular, on the research organisations, approved under
this Directive, with which researchers could conclude a
hosting agreement, and on the conditions and proce-
dures for entry and residence on its territory for the
purposes of carrying out research, as adopted under this
Directive.

(11)

It is appropriate to facilitate the admission of researchers
by establishing an admission procedure which does not
depend on their legal relationship with the host research
organisation and by no longer requiring a work permit in
addition to a residence permit. Member States could
apply similar rules for third-country nationals requesting
admission for the purposes of
teaching in a higher
in accordance with national
education establishment
legislation or administrative practice, in the context of a
research project.

employment

and traineeship)

(12) At the same time, the traditional avenues of admission
(such as
should be
maintained, especially for doctoral students carrying
out research as students, who should be excluded from
the scope of this Directive and are covered by 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 (1).

(13) The specific procedure for

researchers is based on
collaboration between the research organisations and
the immigration authorities in the Member States: it gives
the former a key role in the admission procedure with a
view to facilitating and speeding up the entry and
residence of third-country researchers in the Community
while preserving Member States’ prerogatives with
respect to immigration policing.

(14) Research organisations approved in advance by the
Member States
should be able to sign a hosting
agreement with a third-country national for the purposes
of carrying out a research project. Member States will
issue a residence permit on the basis of the hosting
agreement if the conditions for entry and residence are
met.

nationals of the host Member State in a number of
areas and the possibility to teach in higher education
establishments.

social

security as

(16) This Directive adds a very important improvement in the
field of
the non-discrimination
principle also applies directly to persons coming to a
Member State directly from a third country. Nevertheless,
this Directive should not confer more rights than those
already provided in existing Community legislation in the
field of social security for third-country nationals who
have cross-border elements between Member States. This
Directive furthermore should not grant rights in relation
to situations which lie outside the scope of Community
legislation like for example family members residing in a
third country.

(17)

It is important to foster the mobility of third-country
nationals admitted for the purposes of carrying out
scientific research as a means of developing and
consolidating contacts and networks between partners
and establishing the role of the European Research Area
at world level. Researchers should be able to exercise
mobility under
the conditions established by this
Directive. The conditions for exercising mobility under
the rules currently
this Directive should not affect
governing recognition of
the travel
documents.

the validity of

the preservation of

(18) Special attention should be paid to the facilitation and
support of
family
members of the researchers, according to the Council
Recommendation of 12 October 2005 to facilitate the
admission of
to carry out
third-country nationals
scientific research in the European Community (2).

the unity of

(19)

In order to preserve family unity and to enable mobility,
family members should be able to join the researcher in
another Member State under the conditions determined
by the national law of such Member State, including its
obligations arising from bilateral or multilateral agree-
ments.

(20) Holders of residence permits should be in principle
allowed to submit an application for admission while
remaining on the territory of
the Member State
concerned.

(15)

In order to make the Community more attractive to
third-country researchers, they should be granted, during
social and economic rights with
their

stay, equal

(21) Member States should have the right to charge applicants
for the processing of applications for residence permits.

(1) OJ L 375, 23.12.2004, p. 12.

(2)

See page 26 of this Official Journal.

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(22) This Directive should not affect in any circumstances 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).

Kingdom is not participating in the adoption of this
Directive and is not bound by it or subject
to its
application.

(23) The objectives of this Directive, namely the introduction
of a special admission procedure and the adoption of
conditions of entry and residence applicable to third-
country nationals for stays of more than three months in
the Member States for the purposes of conducting a
research project under a hosting agreement with a
research organisation, cannot be sufficiently achieved by
regards ensuring
the Member States, especially as
mobility between Member States, and can therefore be
better achieved by the Community. The Community is
therefore entitled to take measures in accordance with
the subsidiarity principle laid down in Article 5 of the
Treaty. In accordance with the principle of proportion-
ality set out in that article, this Directive does not go
beyond what is necessary to achieve those objectives.

(24) 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 characteristics,
language, religion or beliefs, political or other opinions,
fortune, birth,
membership of a national minority,
disabilities, age or sexual orientation.

(25) This Directive respects

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

the fundamental

(29)

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on
European Union and the Treaty establishing the
European Community, Denmark does not take 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

Purpose

This Directive lays down the conditions for the admission of
third-country researchers to the Member States for more than
three months for the purposes of carrying out a research
project under hosting agreements with research organisations.

Article 2

Definitions

(26)

In accordance with paragraph 34 of the Interinstitutional
agreement on better law-making, Member States will be
encouraged to draw up, for themselves and in the interest
of the Community, their own tables, which will, as far as
possible, illustrate the correlation between this Directive
and the transposition measures, and to make them
public.

(27)

In accordance with Article 3 of the Protocol on the
position of the United Kingdom and Ireland, annexed to
the Treaty on European Union and the Treaty establish-
ing the European Community, Ireland has given notice
by letter of 1 July 2004 of its wish to participate in the
adoption and application of this Directive.

(28)

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 the Treaty
establishing the European Community, and without
prejudice to Article 4 of the said Protocol, the United

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

For the purposes of this Directive:

(a)

(b)

(c)

(d)

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

‘research’ means creative work undertaken on a systema-
tic basis in order to increase the stock of knowledge,
including knowledge of man, culture and society, and the
use of this stock of knowledge to devise new applica-
tions;

‘research organisation’ means any public or private
organisations which conducts research and which has
been approved for the purposes of this Directive by a
Member State in accordance with the latter's legislation
or administrative practice;

‘researcher’ means a third-country national holding an
appropriate higher education qualification, which gives
access to doctoral programmes, who is selected by a
research organisation for carrying out a research project
for which the above qualification is normally required;

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(e)

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

territory,

CHAPTER II

RESEARCH ORGANISATIONS

Article 3

Scope

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 carrying out a research project.

2. This Directive shall not apply to:

(a)

(b)

(c)

third-country nationals staying in a Member State as
applicants for international protection or under tempor-
ary protection schemes;

third-country nationals applying to reside in a Member
State as students within the meaning of Directive 2004/
114/EC in order to carry out research leading to a
doctoral degree;

third-country nationals whose
suspended for reasons of fact or law;

expulsion has been

(d)

researchers seconded by a research organisation to
another research organisation in another Member State.

Article 4

More favourable provisions

1. This Directive shall be without prejudice to more
favourable provisions of:

(a)

bilateral or multilateral agreements concluded between
the Community or between the Community and its
Member States on the one hand and one or more third
countries on the other;

(b) bilateral or multilateral agreements concluded between
one or more Member States and one or more third
countries.

Article 5

Approval

1. Any research organisation wishing to host a researcher
under the admission procedure laid down in this Directive
shall first be approved for that purpose by the Member State
concerned.

2. The approval of the research organisations shall be in
accordance with procedures set out in the national law or
administrative practice of the Member States. Applications for
approval by both public and private organisations shall be
made in accordance with those procedures and be based on
their statutory tasks or corporate purposes as appropriate and
on proof that they conduct research.

The approval granted to a research organisation shall be for a
minimum period of five years. In exceptional cases, Member
States may grant approval for a shorter period.

3. Member States may require, in accordance with national
legislation, a written undertaking of the research organisation
that
in cases where a researcher remains illegally in the
territory of the Member State concerned, the said organisation
is responsible for reimbursing the costs related to his/her stay
and return incurred by public funds. The financial responsi-
bility of the research organisation shall end at the latest six
months after the termination of the hosting agreement.

4. Member States may provide that, within two months of
the date of expiry of the hosting agreement concerned, the
approved organisation shall provide the competent authorities
designated for
the purpose by the Member States with
confirmation that the work has been carried out for each of
the research projects in respect of which a hosting agreement
has been signed pursuant to Article 6.

2. This Directive shall not affect the right of Member States
to adopt or retain more favourable provisions for persons to
whom it applies.

5. The competent authorities in each Member State shall
publish and update regularly lists of the research organisations
approved for the purposes of this Directive.

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6. A Member State may, among other measures, refuse to
renew or decide to withdraw the approval of a research
organisation which no longer meets the conditions laid down
in paragraphs 2, 3 and 4 or in cases where the approval has
been fraudulently acquired or where a research organisation
has signed a hosting agreement with a third-country national
fraudulently or negligently. Where approval has been refused
or withdrawn, the organisation concerned may be banned
from reapplying for approval up to five years from the date of
publication of the decision on withdrawal or non-renewal.

7. Member States may determine in their national legislation
the consequences of the withdrawal of the approval or refusal
to renew the approval for the existing hosting agreements,
concluded in accordance with Article 6, as well as the
consequences for the residence permits of the researchers
concerned.

the research
3. Once the hosting agreement
in accordance with national
organisation may be required,
legislation,
to provide the researcher with an individual
statement that for costs within the meaning of Article 5(3)
financial responsibility has been assumed.

is signed,

4. The hosting agreement shall automatically lapse when the
researcher is not admitted or when the legal relationship
between the researcher and the research organisation is
terminated.

5. Research organisations shall promptly inform the author-
ity designated for the purpose by the Member States of any
occurrence likely to prevent implementation of the hosting
agreement.

Article 6

Hosting agreement

1. A research organisation wishing to host a researcher shall
sign a hosting agreement with the latter whereby the
researcher undertakes to complete the research project and
the organisation undertakes to host the researcher for that
purpose without prejudice to Article 7.

2. Research organisations may sign hosting agreements only
if the following conditions are met:

(a)

the research project has been accepted by the relevant
authorities in the organisation, after examination of:

CHAPTER III

ADMISSION OF RESEARCHERS

Article 7

Conditions for admission

1. A third-country national who applies to be admitted for
the purposes set out in this Directive shall:

(a)

present a valid travel document, as determined by
national law. Member States may require the period of
the validity of the travel document to cover at least the
duration of the residence permit;

(i)

(ii)

the purpose and duration of the research, and the
availability of the necessary financial resources for it
to be carried out;

(b) present a hosting agreement signed with a research

organisation in accordance with Article 6(2);

the researcher’s qualifications in the light of the
research objectives, as evidenced by a certified copy
of his/her qualification in accordance with Article 2
(d);

(b) during his/her stay the researcher has sufficient monthly
resources to meet his/her expenses and return travel costs
in accordance with the minimum amount published for
the purpose by the Member State, without having
recourse to the Member State’s social assistance system;

(c)

during his/her stay the researcher has sickness insurance
for all the risks normally covered for nationals of the
Member State concerned;

(d)

the hosting agreement specifies the legal relationship and
working conditions of the researchers.

(c) where appropriate, present a statement of

financial
responsibility issued by the research organisation in
accordance with Article 6(3); and

(d) not be considered to pose a threat to public policy, public

security or public health.

Member States shall check that all the conditions referred to in
points (a), (b), (c) and (d) are met.

2. Member States may also check the terms upon which the
hosting agreement has been based and concluded.

3. Once the checks referred to in paragraphs 1 and 2 have
been positively concluded, researchers shall be admitted on
the territory of the Member States to carry out the hosting
agreement.

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Article 8

2. Member States may set a maximum number of hours or
of days for the activity of teaching.

Duration of residence permit

Member States shall issue a residence permit for a period of at
least one year and shall renew it if the conditions laid down in
Articles 6 and 7 are still met.
the research project is
scheduled to last less than one year, the residence permit shall
be issued for the duration of the project.

If

Article 12

Equal treatment

Article 9

Family members

1. When a Member State decides to grant a residence permit
to the family members of a researcher, the duration of validity
of their residence permit shall be the same as that of the
residence permit issued to the researcher insofar as the period
of validity of their travel documents allows it. In duly justified
cases, the duration of the residence permit of the family
member of the researcher may be shortened.

2. The issue of the residence permit to the family members
of the researcher admitted to a Member State shall not be
made dependent on the requirement of a minimum period of
residence of the researcher.

Article 10

Withdrawal or non-renewal of the residence permit

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 provided by Articles 6 and 7 or is residing
for purposes other that that for which he was authorised to
reside.

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

CHAPTER IV

RESEARCHERS’ RIGHTS

Article 11

Teaching

1. Researchers admitted under this Directive may teach in
accordance with national legislation.

Holders of a residence permit shall be entitled to equal
treatment with nationals as regards:

(a)

recognition of diplomas, certificates and other profes-
sional qualifications in accordance with the relevant
national procedures;

(b) working conditions, including pay and dismissal;

(c)

social

branches of
security as defined in Council
Regulation (EEC) No 1408/71 of 14 June 1971 on the
application of social security schemes to employed
persons, to self-employed persons and to members of
their families moving within the Community (1). The
special provisions in the Annex to Council Regulation
(EC) No 859/2003 of 14 May 2003 extending the
provisions of Regulation (EEC) No 1408/71 and
Regulation (EEC) No 574/72 to nationals of
third
countries who are not already covered by these
provisions solely on the ground of their nationality (2)
shall apply accordingly;

(d)

tax benefits;

(e)

access to goods and services and the supply of goods and
services made available to the public.

Article 13

Mobility between Member States

1. A third-country national who has been admitted as a
researcher under this Directive shall be allowed to carry out
part of his/her research in another Member State under the
conditions as set out in this Article.

(1) OJ L 149, 5.7.1971, p. 2. Regulation as last amended by
Regulation (EC) No 647/2005 of the European Parliament and
of the Council (OJ L 117, 4.5.2005, p. 1).

(2) OJ L 124, 20.5.2003, p. 1.

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If the researcher stays in another Member State for a
2.
period of up to three months, the research may be carried out
on the basis of the hosting agreement concluded in the first
Member State, provided that he has sufficient resources in the
other Member State and is not considered as a threat to public
policy, public security or public health in the second Member
State.

If the researcher stays in another Member State for more
3.
than three months, Member States may require a new hosting
agreement to carry out the research in that Member State. At
all events, the conditions set out in Articles 6 and 7 shall be
met in relation to the Member State concerned.

4. Where the relevant legislation provides for the require-
ment of a visa or a residence permit, for exercising mobility,
such a visa or permit shall be granted in a timely manner
within a period that does not hamper the pursuit of the
research, whilst leaving the competent authorities sufficient
time to process the applications.

5. Member States shall not require the researcher to leave
their territory in order to submit applications for the visas or
residence permits.

Article 15

Procedural safeguards

1. The competent authorities of the Member States shall
adopt a decision on the complete application as soon as
possible and, where appropriate, provide for accelerated
procedures.

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

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

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

CHAPTER V

PROCEDURE AND TRANSPARENCY

Article 14

Applications for admission

CHAPTER VI

FINAL PROVISIONS

Article 16

Reports

1. Member States shall determine whether applications for
residence permits are to be made by the researcher or by the
research organisation concerned.

Periodically, and for the first time no later than three years
after the entry into force of this Directive, the Commission
shall report to the European Parliament and the Council on
the application of this Directive in the Member States and shall
propose any amendments that are necessary.

2. The application shall be considered and examined when
the third-country national concerned is residing outside the
territory of the Member States to which he/she wishes to be
admitted.

Article 17

Transposition

3. Member States may accept,
in accordance with their
national legislation, an application submitted when the third-
country national concerned is already in their territory.

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 12 October 2007.

4. The Member State concerned shall grant
the third-
country national who has submitted an application and who
meets the conditions of Articles 6 and 7 every facility to
obtain the requisite visas.

When Member States adopt these 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
Member States.

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2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt
in the field covered by this Directive.

Article 20

Entry into force

Article 18

Transitional provision

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

By way of derogation from the provisions
in
Chapter III, Member States shall not be obliged to issue
permits in accordance with this Directive in the form of a
residence permit for a period of up to two years, after the date
referred to in Article 17(1).

set out

Article 21

Addressees

Article 19

Common Travel Area

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

Nothing in this Directive shall affect the right of Ireland to
maintain the Common Travel Area arrangements referred to
in the Protocol, annexed by the Treaty of Amsterdam to the
Treaty on European Union and the Treaty establishing the
European Community, on the application of certain aspects of
Article 14 of the Treaty establishing the European Community
to the United Kingdom and Ireland.

Done at Luxembourg, 12 October 2005.

For the Council

The President

C. CLARKE