Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States
Date: 2009-07-02
Institutions: European Commission
Subjects: EU visa policy, European citizenship, foreign national, free movement of persons, freedom of movement, limitation of legal proceedings, report, residence permit

EN 

EN 

   EN 

 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 2.7.2009 
COM(2009) 313 final 

COMMUNICATION FROM THE COMMISSION  
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

on guidance for better transposition and application of Directive 2004/38/EC on the 
right of citizens of the Union and their family members to move and reside freely within 
the territory of the Member States 

EN 

   EN 

 
 
  
COMMUNICATION FROM THE COMMISSION  
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

on guidance for better transposition and application of Directive 2004/38/EC on the 
right of citizens of the Union and their family members to move and reside freely within 
the territory of the Member States 

(Text with EEA relevance) 

1. 

INTRODUCTION 

On  10  December  2008,  the  Commission  adopted  its  report1  on  the  application  of  Directive 
2004/38/EC2 which presented a comprehensive overview of how the Directive is transposed 
into national law and how it is applied in everyday life. 

The report concluded that the overall transposition of the Directive was rather disappointing, 
particularly as regards Chapter VI (which provides for the right of Member States to restrict 
the  right  of  EU  citizens  and  their  family  members  on  grounds  of  public  policy  or  public 
security) and Article 35 (which authorises Member States to adopt measures to prevent abuse 
and fraud, such as marriages of convenience). 

The Commission announced in the report its intention to offer information and assistance to 
both  Member  States  and  EU  citizens  by  issuing  guidelines  in  the  first  half  of  2009  on  the 
issues identified as problematic in transposition or application. This intention was welcomed 
by  the  Council3  and  by  the  European  Parliament4.  The  guidelines  state  the  views  of  the 
Commission and are without prejudice to the case-law of the Court of Justice (“the Court”) 
and its development. 

This Communication aims to provide guidance to Member States on how to apply Directive 
2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members 
to  move  and  reside  freely  within  the  territory  of  the  Member  States  correctly;  with  the 
objective of bringing a real improvement for all EU citizens and of making the EU an area of 
security, freedom and justice. 

The  report  also  identified  frequent  problems  relating  to  the  right  of  entry  and  residence  of 
third  country  family  members  of  EU  citizens,  and  to  requirements  to  submit  with  the 
applications  for  residence  additional  documents  not  foreseen  in  the  Directive.  The 
Commission announced in the report that it will step up its efforts to ensure that the Directive 
is correctly transposed and implemented. In order to achieve this objective, the Commission 
will  continue  to  inform  citizens  about  their  rights  under  the  Directive,  in  particular  by 

1 
2 

3 
4 

COM (2008) 840 final 
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of 
citizens  of  the  Union  and  their  family  members  to  move  and  reside  freely  within  the  territory  of  the 
Member States 
Conclusions of the JHA Council meetings in November 2008 and February 2009 
Resolution  of  the  European  Parliament  of  2  April  2009  on  the  application  of  Directive  2004/38/EC 
(2008/2184(INI)) 

EN 

2 

   EN 

 
                                                 
distributing  a  simplified  guide  for  EU  citizens  and  by  making  the  best  use  of  the  Internet. 
Moreover,  the  Commission  will  meet  Member  States  bilaterally  to  discuss  issues  of 
implementation and application and will use fully its powers under the Treaty.  

Today  more  than  8  million  Union  citizens  have  taken  advantage  of  their  right  to  move  and 
reside  freely  and  now  live  in  another  Member  State  of  the  Union.  The  free  movement  of 
citizens constitutes one of the fundamental freedoms of the internal market and is at the heart 
of the European project. Directive 2004/38/EC codified and reviewed the existing Community 
instruments in order to simplify and strengthen the right of free movement and residence for 
Union citizens and their family members. As a general remark, the Commission recalls that 
the  Directive  must  be  interpreted  and  applied  in  accordance  with  fundamental  rights5,  in 
particular the right to respect for private and family life, the principle of non-discrimination, 
the  rights  of  the  child  and  the  right  to  an  effective  remedy  as  guaranteed  in  the  European 
Convention  of  Human  Rights  (ECHR)  and  as  reflected  in  the  EU  Charter  of  Fundamental 
Rights. 

The  freedom  of  movement  of  persons  is  one  of  the  foundations  of  the  EU.  Consequently 
derogations  from  that  principle  must  be  interpreted  strictly6.  However,  the  right  of  free 
movement  within  the  EU  is  not  unlimited  and  carries  with  it  obligations  on  the  part  of  its 
beneficiaries, which implies to obey the laws of their host country. 

2. 

EU  CITIZENS  AND  THEIR  THIRD  COUNTRY  FAMILY  MEMBERS  –  ENTRY  AND 
RESIDENCE 

The  Directive7  applies  only  to  EU  citizens  who  move  to  or  reside  in  a  Member  State  other 
than that of which they are a national, and to their family members who accompany or join 
them. 

T., a third country national, resides in the host Member State for some time. She wants to be 
joined  there  by  her  third  country  spouse.  As  no  EU  citizen  is  involved,  the  couple  cannot 
benefit  from  the  rights  under  the  Directive  and  it  remains  fully  up  to  the  Member  State 
concerned to lay down rules on the right of third country spouses to join other third country 
nationals, taking due account of other instruments of Community law, if applicable. 

EU citizens residing in the Member State of their nationality do not normally benefit from the 
rights granted by Community law on free movement of persons and their third country family 
members  remain  to  be  covered  by  national  immigration  rules.  However,  EU  citizens  who 
return  to  their  home  Member  State  after  having  resided  in  another  Member  State8  and  in 
certain circumstances also those EU citizens who have exercised their rights to free movement 
in  another  Member  State  without  residing  there9  (for  example  by  providing  services  in 
another  Member  State  without  residing  there)  benefit  as  well  from  the  rules  on  free 
movement of persons. 

5 
6 
7 
8 
9 

Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri (paras 97-98) and C-127/08 Metock (para 79) 
Cases 139/85 Kempf (para 13) and C-33/07 Jipa (para 23) 
Article 3(1) 
Cases C-370/90 Singh and C-291/05 Eind 
Case C-60/00 Carpenter 

EN 

3 

   EN 

                                                 
P.  resides  in  the  Member  State  of  his  nationality.  He  likes  it  there  and  has  not  resided  in 
another  Member  State  before.  When  he  wants  to  bring  his  third  country  spouse,  the  couple 
cannot benefit from the rights under the Directive and it remains fully up to the Member State 
concerned to lay down rules on the right of third country spouses to join its own nationals. 

Frontier workers are covered by Community law in both countries (as a migrant worker in the 
Member  State  of  employment  and  as  a  self-sufficient  person  in  the  Member  State  of 
residence). 

2.1. 

Family members and other beneficiaries 

2.1.1. 

Spouses and partners  

Marriages  validly  contracted  anywhere  in  the  world  must  be  in  principle  recognized  for  the 
purpose of the application of the Directive. Forced marriages, in which one or both parties is 
married  without  his  or  her  consent  or  against  his  or  her  will,  are  not  protected  by 
international10  or  Community  law.  Forced  marriages  must  be  distinguished  from  arranged 
marriages, where both parties fully and freely consent to the marriage, although a third party 
takes a leading role in the choice of partner, and from marriages of convenience, defined in 
Section 4.2 below. 

Member States are not obliged to recognise polygamous marriages, contracted lawfully in a 
third country, which may be in conflict with their own legal order11. This is without prejudice 
to the obligation to take due account of the best interests of children of such marriages. 

The Directive must be applied in accordance with the non-discrimination principle enshrined 
in particular in Article 21 of the EU Charter.  

Partners  with  whom  an  EU  citizen  has  a  de  facto  durable  relationship,  duly  attested,  are 
covered  by  Article  3(2)(b).  Persons  who  derive  their  rights  under  the  Directive  from  being 
durable partners may be required to present documentary evidence that they are partners of 
an  EU  citizen  and  that  the  partnership  is  durable.  Evidence  may  be  adduced  by  any 
appropriate means. 

The requirement of durability of the relationship must be assessed in the light of the objective 
of  the  Directive  to  maintain  the  unity  of  the  family  in  a  broad  sense12.  National  rules  on 
durability of partnership can refer to a minimum amount of time as a criterion for whether a 
partnership can be considered as durable. However, in this case national rules would need to 
foresee that other relevant aspects (such as for example a joint mortgage to buy a home) are 
also taken into account. Any denial of entry or residence must be fully justified in writing and 
open to appeal. 

2.1.2.  Family members in direct line 

Without  prejudice  to  issues  related  to  recognition  of  decisions  of  national  authorities,  the 
notion  of  direct  relatives  in  the  descending  and  ascending  lines  extends  to  adoptive 

10 

11 
12 

Inter  alia,  Article  16(2)  of  the  Universal  Declaration  of  Human  Rights  or  Article  16(1)(b)  of  the 
Convention to Eliminate All Forms of Discrimination Against Women 
ECtHR case Alilouch El Abasse v Netherlands (6 January 1992) 
Recital 6 

EN 

4 

   EN 

                                                 
relationships13 or minors in custody of a permanent legal guardian. Foster children and foster 
parents who have temporary custody may have rights under the Directive, depending upon the 
strength of the ties in the particular case. There is no restriction as to the degree of relatedness. 
National authorities may request evidence of the claimed family relationship. 

In  implementing  the  Directive,  Member  States  must  always  act  in  the  best  interests  of  the 
child,  as  provided  for  in  the  United  Nations  Convention  on  the  Rights  of  the  Child  of  20 
November 1989. 

2.1.3.  Other family members  

Article  3(2)(a)  does  not  lay  down  any  restrictions  as  to  the  degree  of  relatedness  when 
referring to ‘other family members’. 

2.1.4.  Dependent family members 

According  to  the  case-law14  of  the  Court,  the  status  of  ‘dependent’  family  member  is  the 
result of a factual situation characterised by the fact that material support15 for that family 
member  is  provided  by  the  EU  citizen  or  by  his  spouse/partner.  The  status  of  dependent 
family  members  does  not  presuppose  a  right  to  maintenance.  There  is  no  need  to  examine 
whether  the  family  members  concerned  would  in  theory  be  able  to  support  themselves,  for 
example by taking up paid employment. 

In  order  to  determine  whether  family  members  are  dependent,  it  must  be  assessed  in  the 
individual  case  whether,  having  regard  to  their  financial  and  social  conditions,  they  need 
material  support  to  meet  their essential  needs  in  their  country  of  origin or  the  country  from 
which  they  came  at  the  time  when  they  applied  to  join  the  EU  citizen  (i.e.  not  in  the  host 
Member State where the EU citizen resides). In its judgments on the concept of dependency, 
the Court did not refer to any level of standard of living for determining the need for financial 
support by the EU citizen16. 

The  Directive  does  not  lay  down  any  requirement  as  to  the  minimum  duration  of  the 
dependency or the amount of material support provided, as long as the dependency is genuine 
and structural in character. 

Dependent  family  members  are  required  to  present  documentary  evidence  that  they  are 
dependent. Evidence may be adduced by any appropriate means, as confirmed by the Court17. 
Where  the  family  members  concerned  are  able  to  provide  evidence  of  their  dependency  by 
means  other  than  a  certifying  document  issued  by  the  relevant  authority  of  the  country  of 
origin or the country from which the family members are arriving, the host Member State may 
not  refuse  to  recognise  their  rights.  However,  a  mere  undertaking  from  the  EU  citizen  to 

13 

14 
15 

16 

17 

Adoptive  children  are  fully  protected  by  Article  8  of  the  ECHR  (ECtHR  cases  X  v  Belgium  and 
Netherlands (10 July 19750, X v France (5 October 1982) as well as X, Y and Z v. UK (22 April 1997)). 
Cases 316/85 Lebon (para 22) and C-1/05 Jia (paras 36-37) 
Emotional dependence is not taken into account, see AG Tizzano in case C-200/02 Zhu and Chen, para 
84 
The  test  of  dependency  should  primarily  be  whether,  in  the  light  of  their  personal  circumstances,  the 
financial means of the family members permit them to live at the minimum level of subsistence in the 
country of their normal residence (AG Geelhoed in case C-1/05 Jia, para 96). 
Cases C-215/03 Oulane (para 53) and C-1/05 Jia (para 41) 

EN 

5 

   EN 

                                                 
support  the  family  member  concerned  is  not  sufficient  in  itself  to  establish  the  existence  of 
dependence. 

In accordance with Article 3(2), Member States have a certain degree of discretion in laying 
down  criteria  to  be  taken  into  account  when  deciding  whether  to  grant  the  rights  under  the 
Directive  to  "other  dependent  family  members".  However,  Member  States  do  not  enjoy 
unrestricted liberty in laying down such criteria. In order to maintain the unity of the family in 
a broad sense, the national legislation must provide for a careful examination of the relevant 
personal  circumstances  of  the  applicants  concerned,  taking  into  consideration  their 
relationship with the EU citizen or any other circumstances, such as their financial or physical 
dependence, as stipulated in Recital 6. 

Any negative decision is subject to all the material and procedural safeguards of the Directive. 
It must be fully justified in writing and open to appeal. 

2.2. 

Entry and residence of third country family members 

2.2.1.  Entry visas 

As  provided  in  Article  5(2),  Member  States  may  require  third  country  family  members 
moving  with  or  joining  an  EU  citizen  to  whom  the  Directive  applies  to  have  an  entry  visa. 
Such family members have not only the right to enter the territory of the Member State, but 
also  the  right  to  obtain  an  entry  visa18.  This  distinguishes  them  from  other  third  country 
nationals, who have no such right. 

Third country family members should be issued as soon as possible and on the basis of an 
accelerated procedure with a free of charge short-term entry visa. By analogy with Article 
23 of the Visa Code19 the Commission considers that delays of more than four weeks are not 
reasonable. The authorities of the Member States should guide the family members as to the 
type  of  visa  they  should  apply  for,  and  they  cannot  require  them  to  apply  for  long-term, 
residence or family reunification visas. Member States must grant such family members every 
facility to obtain the necessary visas. Member States may use premium call lines or services 
of an external company to set up an appointment but must offer the possibility of direct access 
to the consulate to third country family members. 

As  the  right  to  be  issued  with  an  entry  visa  is  derived  from  the  family  link  with  the  EU 
citizen, Member States may require only the presentation of a valid passport and evidence 
of the family link20 (and also dependency, serious health grounds, durability of partnerships, 
where  applicable).  No  additional  documents,  such  as  a  proof  of  accommodation,  sufficient 
resources, an invitation letter or return ticket, can be required. 

18 
19 
20 

Case C-503/03 Commission v Spain (para 42) 
COM(2006) 403 final/2. 
Articles 8(5) and 10(2) 

EN 

6 

   EN 

                                                 
Member  States  may  encourage  integration  of  EU  citizens  and  their  third  country  family 
members  by  offering  language  and  other  targeted  courses  on  a  voluntary  basis21.  No 
consequence can be attached to the refusal to attend them. 

Residence cards issued under Article 10 of the Directive to a family member of an EU citizen 
residing  in  the  host  Member  State,  including  those  issued  by  other  Member  States,  exempt 
their holders from the visa requirement when they travel together with the EU citizen or join 
him/her in the host Member State. 

Residence  cards  not  issued  under  the  Directive  can  exempt  the  holder  from  the  visa 
requirement under Schengen rules22. 

2.2.2.  Residence cards 

As  stipulated  in  Article  10(1),  the  right  of  residence  of  third  country  family  members  is 
evidenced by the issuing of a document called "Residence card of a family member of a Union 
citizen".  The  denomination  of  this  residence  card  must  not  deviate  from  the  wording 
prescribed  by  the  Directive  as  different  titles  would  make  it  materially  impossible  for  the 
residence card to be recognised in other Member States as exempting its holder from the visa 
requirement under Article 5(2). 

The format of the residence card is not fixed, so Member States are free to lay it down as they 
see fit23. However, the residence card must be issued as a self-standing document and not in 
form  of  a  sticker  in  a  passport,  as  this  could  limit  the  validity  of  the  card  in  violation  of 
Article 11(1). 

The  residence  card  must  be  issued  within  six  months  from  the  date  of  application.  The 
deadline must be interpreted in light of Article 10 of the EC Treaty and the maximum period 
of six months is justified only in cases where examination of the application involves public 
policy considerations24. 

The  list  of  documents25  to  be  presented  with  the  application  for  a  residence  card  is 
exhaustive, as confirmed by Recital 14. No additional documents can be requested. 

Member States may require that documents be translated, notarised or legalised where the 
national  authority  concerned  cannot  understand  the  language  in  which  the  particular 
document is written, or have a suspicion about the authenticity of the issuing authority. 

21 

22 

23 

24 
25 

Cf. the Communication from the Commission to the European Parliament, the Council, the European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  on  multilingualism:  an  asset  for 
Europe and a shared commitment - COM (2008) 566. 
Article 5 of Regulation (EC) No 562/2006 establishing a Community Code on the rules governing the 
movement of persons across borders (Schengen Borders Code) 
Council Regulation (EC) No 1030/2002 laying down a uniform format for residence permits for third-
country  nationals  does  not  apply  to  family  members  of  EU  citizens  exercising  their  right  to  free 
movement (Article 5) and Article 21 of the Convention implementing the Schengen Agreement. 
COM(1999)372 (point 3.2) 
Article 10(2) 

EN 

7 

   EN 

                                                 
2.3. 

Residence of EU citizens for more than three months  

EU citizens have a right of residence in the host Member State if they are economically active 
there.  Students  and  economically  inactive  EU  citizens  must  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. 

The  list  of  documents  to  be  presented  with  the  application  for  residence  is  exhaustive.  No 
additional documents can be requested. 

2.3.1. 

Sufficient resources 

The notion of ‘sufficient resources’ must be interpreted in the light of the objective of the 
Directive,  which  is  to  facilitate  free  movement,  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. 

The first step to assess the existence of sufficient resources should be whether the EU citizen 
(and  family  members  who  derive  their  right  of  residence  from  him  or  her)  would  meet  the 
national criteria to be granted the basic social assistance benefit. 

EU  citizens  have  sufficient  resources  where  the  level  of  their  resources  is  higher  than  the 
threshold  under  which  a  minimum  subsistence  benefit  is  granted  in  the  host  Member  State. 
Where this criterion is not applicable, the minimum social security pension should be taken 
into account. 

Article  8(4)  prohibits  Member  States  from  laying  down  a  fixed  amount  to  be  regarded  as 
"sufficient resources", either directly or indirectly, below which the right of residence can be 
automatically  refused.  The  authorities  of  the  Member  States  must  take  into  account  the 
personal  situation  of  the  individual  concerned.  Resources  from  a  third  person  must  be 
accepted26. 

National  authorities  can,  when  necessary,  undertake  checks  as  to  the  existence  of  the 
resources, their lawfulness, amount and availability. The resources do not have to be periodic 
and can be in the form of accumulated capital. The evidence of sufficient resources cannot be 
limited27. 

In  assessing  whether  an  individual  whose  resources  can  no  longer  be  regarded  as  sufficient 
and  who  was  granted  the  minimum  subsistence  benefit  is  or  has  become  an  unreasonable 
burden,  the  authorities  of  the  Member  States  must  carry  out  a  proportionality  test.  To  this 
end, Member States may develop for example a points-based scheme as an indicator. Recital 
16 of Directive 2004/38 provides three sets of criteria for this purpose: 

26 
27 

Case C-408/03 Commission v Belgium (para 40 et seq.) 
Case C-424/98 Commission v Italy (para 37) 

EN 

8 

   EN 

                                                 
(1) 

duration 

•  For how long is the benefit being granted? 

•  Outlook: is it likely that the EU citizen will get out of the safety net soon? 

•  How long has the residence lasted in the host Member State? 

(2) 

personal situation 

•  What  is  the  level  of  connection  of  the  EU  citizen  and  his/her  family  members  with  the 

society of the host Member State? 

•  Are  there  any  considerations  pertaining  to  age,  state  of  health,  family  and  economic 

situation that need to be taken into account? 

(3) 

amount 

•  Total amount of aid granted? 

•  Does the EU citizen have a history of relying heavily on social assistance? 

•  Does the EU citizen have a history of contributing to the financing of social assistance in 

the host Member State? 

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  cannot  be  expelled  for  this 
reason28. 

Only receipt of social assistance benefits can be considered relevant to determining whether 
the person concerned is a burden on the social assistance system. 

2.3.2. 

Sickness insurance 

Any insurance cover, private or public, contracted in the host Member State or elsewhere, is 
acceptable in principle, as long as it provides comprehensive coverage and does not create a 
burden  on  the  public  finances  of  the  host  Member  State.  In  protecting  their  public  finances 
while assessing the comprehensiveness of sickness insurance cover, Member States must act 
in  compliance  with  the  limits  imposed  by  Community  law  and  in  accordance  with  the 
principle of proportionality29. 

Pensioners fulfil the condition of comprehensive sickness insurance cover if they are entitled 
to health treatment on behalf of the Member State which pays their pension30. 

28 
29 
30 

Article 14(3) 
Case C-413/99 Baumbast (paras 89-94) 
Articles 27, 28 and 28a of Regulation (EEC) No 1408/71 on the application of social security schemes 
to employed persons, to self-employed persons and to the members of their families moving within the 
Community. As of 1 March 2010, Regulation (EC) No 883/04 will replace it but the same principles 
will apply. 

EN 

9 

   EN 

                                                 
The European Health Insurance Card offers such comprehensive cover when the EU citizen 
concerned does not move the residence in the sense of Regulation (EEC) No 1408/71 to the 
host Member State and has the intention to return, e.g. studies or posting to another Member 
State. 

3. 

RESTRICTIONS  OF  THE  RIGHT  TO  MOVE  AND  RESIDE  FREELY  ON  GROUNDS  OF 
PUBLIC POLICY OR PUBLIC SECURITY 

This section builds on the Communication of 199931 on the special measures concerning the 
movement  and  residence  of  EU  citizens  which  are  justified  on  grounds  of  public  policy, 
public  security  or  public  health.  The  content  of  the  1999  Communication  is  still  generally 
valid,  even  if  it  refers  to  Directive  64/221,  which  was  repealed  by  Directive  2004/38.  The 
purpose of this section is to update the content of the 1999 Communication in the light of the 
recent case-law of the Court and to clarify certain questions raised during the process of the 
implementation of the Directive. 

Freedom of  movement for  persons is one of the foundations of the EU. Consequently the 
provisions granting that freedom must be given a broad interpretation, whereas derogations 
from that principle must be interpreted strictly32. 

3.1. 

Public policy and public security 

Member  States  may  restrict  the  freedom  of  movement  of  EU  citizens  on  grounds  of  public 
policy or public security. Chapter VI of the Directive applies to any action taken on grounds 
of  public  policy  or  public  security  which  affects  the  right  of  persons  coming  under  the 
Directive to enter and reside freely in the host Member State under the same conditions as the 
nationals of that State33. 

Member States retain the freedom to determine the requirements of public policy and public 
security  in  accordance  with  their  needs,  which  can  vary  from  one  Member  State  to  another 
and from one period to another. However, when they do so in the context of the application of 
the Directive, they must interpret those requirements strictly34. 

It is crucial that Member States define clearly the protected interests of society, and make a 
clear distinction between public policy and public security. The latter cannot be extended to 
measures that should be covered by the former. 

Public  security  is  generally  interpreted  to  cover  both  internal  and  external  security35  along 
the  lines  of  preserving  the  integrity  of  the  territory  of  a  Member  State  and  its  institutions. 
Public  policy  is  generally  interpreted  along  the  lines  of  preventing  disturbance  of  social 
order. 

31 
32 
33 
34 
35 

COM(1999)372 
Cases 139/85 Kempf (para 13) and C-33/07 Jipa (para 23) 
Cases 36/75 Rutili (paras 8-21) and 30/77 Bouchereau (paras 6-24) 
Cases 36/75 Rutili (para 27), 30/77 Bouchereau (para 33) and C-33/07 Jipa (para 23) 
Cases C-423/98 Albore (para 18 et seq.) and C-285/98 Kreil (para 15) 

EN 

10 

   EN 

                                                 
EU citizens may be expelled only for conduct punished by the law of the host Member State 
or  with  regard  to  which  other  genuine  and  effective  measures  intended  to  combat  such 
conduct were taken, as confirmed by the case-law36 of the Court. 

In any case, failure to comply with the registration requirement is not of such a nature as to 
constitute in itself conduct threatening public policy and public security and cannot therefore 
by itself justify the expulsion of the person37. 

3.2. 

Personal conduct and the threat 

Restrictive measures may be taken only on a case-by-case basis where the personal conduct of 
an individual represents a genuine, present and sufficiently serious threat affecting one of the 
fundamental interests of the society of the host Member State38. Restrictive measures cannot 
be  based  solely  on  considerations  pertaining  to  the  protection  of  public  policy  or  public 
security advanced by another Member State39. 

Community  law  precludes  the  adoption  of  restrictive  measures  on  general  preventive 
grounds40.  Restrictive  measures  must  be  based  on  an  actual  threat  and  cannot  be  justified 
merely  by  a  general  risk41.  Restrictive  measures  following  a  criminal  conviction  cannot  be 
automatic and must take into account the personal conduct of the offender and the threat that 
it  represents  for  the  requirements  of  public  policy42.  Grounds  extraneous  to  the  personal 
conduct of an individual cannot be invoked. Automatic expulsions are not allowed under the 
Directive43. 

Individuals can have their rights restricted only if their personal conduct represents a threat, 
i.e.  indicates  the  likelihood  of  a  serious  prejudice  to  the  requirements  of  public  policy  or 
public security. 

A threat that is only presumed is not genuine. The threat must be present. Past conduct may 
be taken into account only where there is a likelihood of reoffending44. The threat must exist 
at the moment when the restrictive measure is adopted by the national authorities or reviewed 
by  the  courts45.  Suspension  of  sentence  constitutes  an  important  factor  in  the  assessment  of 
the threat as it suggests that the individual concerned no longer represents a real danger. 

Present  membership  of  an  organisation  may  be  taken  into  account  where  the  individual 
concerned  participates  in  the  activities  of  the  organization  and  identifies  with  its  aims  or 
designs46. Member States do not have to criminalize or to ban the activities of an organisation 
to  be  in  a  position  to  restrict  the  rights  under  the  Directive,  as  long  as  some  administrative 

36 
37 
38 
39 
40 
41 

42 
43 
44 
45 
46 

Cases 115/81 Adoui and Cornuaille (paras 5-9) and C-268/99 Jany (para 61) 
Case 48/75 Royer (para 51). 
All criteria are cumulative. 
Cases C-33/07 Jipa (para 25) and C-503/03 Commission v Spain (para 62) 
Case 67/74 Bonsignore (paras 5-7) 
General  prevention  in  specific  circumstances,  such  as  sport  events,  is  covered  in  the  1999 
Communication (cfr point 3.3). 
Cases C-348/96 Calfa (paras 17-27) and 67/74 Bonsignore (paras 5-7) 
Case C-408/03 Commission v Belgium (paras 68-72). 
Case 30/77 Bouchereau (paras 25-30) 
Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri (para 82) 
Case 41/74 van Duyn (para 17 et seq.) 

EN 

11 

   EN 

                                                 
measures  to  counteract  the  activities  of  that  organisation  are  in  place.  Past  associations47 
cannot, in general, constitute present threat. 

A  previous  criminal  conviction  can  be  taken  into  account,  but  only  in  so  far  as  the 
circumstances  which  gave  rise  to  that  conviction  are  evidence  of  personal  conduct 
constituting a present threat to the requirements of public policy48. The authorities must base 
their decision on an assessment of the future conduct of the individual concerned. The kind 
and number of previous convictions  must  form  a  significant  element  in  this  assessment  and 
particular  regard  must  be  had  to  the  seriousness  and  frequency  of  the  crimes  committed. 
While the danger of re-offending is of considerable importance, a remote possibility of new 
offences is not sufficient49. 

A. and I. have finished serving their two year sentence for robbery. The authorities assess if 
the personal conduct of the two sisters represents a threat, i.e. if it involves the likelihood of a 
new and serious prejudice to public policy. 

This was A.’s first conviction. She behaved well in prison. Since she left prison, she has found 
a  job.  The  authorities  find  nothing  in  her  behaviour  that  represents  a  genuine,  present  and 
sufficiently serious threat. 

As  for  I.,  this  was  already  her  fourth  conviction.  The  seriousness  of  her  crimes  has  grown 
over  time.  Her  behaviour  in  prison  was  far  from  exemplary  and  her  two  requests  to  be 
released  on  parole  were  refused.  In  less  than  two  weeks,  she  is  caught  planning  another 
robbery. The authorities conclude that I.'s conduct is a threat to public policy. 

In certain circumstances, persistent petty criminality may represent a threat to public policy, 
despite  the  fact  that  any  single  crime/offence,  taken  individually,  would  be  insufficient  to 
represent  a  sufficiently  serious  threat  as  defined  above.  National  authorities  must  show  that 
the  personal  conduct  of  the  individual  concerned  represents  a  threat  to  the  requirements  of 
public policy50. When assessing the existence of the threat to public policy in these cases, the 
authorities may in particular take into account the following factors: 

•  the nature of the offences; 

•  their frequency; 

•  damage or harm caused. 

The existence of multiple convictions is not enough, in itself. 

47 
48 

49 

50 

Ibid 
Cases C-482/01 and 493/01 Orfanopoulos and Oliveri (paras 82 and 100) and C-50/06 Commission v 
Netherlands (paras 42-45) 
For example, the danger of re-offending may be considered greater in the case of drug dependency if 
there is a risk of further criminal offences committed in order to fund the dependency: AG Stix-Hackl in 
Joined cases C-482/01 and C-493/01 Orfanopoulos and Oliveri 
Case C-349/06 Polat (para 35) 

EN 

12 

   EN 

                                                 
3.3. 

Proportionality assessment 

Chapter VI of the Directive cannot be regarded as imposing a precondition to the acquisition 
and maintenance of a right of entry and residence, but as providing exclusively the possibility 
to restrict, where justified, the exercise of a right derived directly from the Treaty51. 

Once the authorities have established that the personal conduct of the individual represents a 
threat  that  is  serious  enough  to  warrant  a  restrictive  measure,  they  must  carry  out  a 
proportionality assessment to decide whether the person concerned can be denied entry or 
removed on grounds of public policy or public security. 

National  authorities  must  identify  protected  interests.  It  is  in  the  light  of  these  interests  that 
they  must  carry  out  an  analysis  of  the  characteristics  of  the  threat.  The  following  factors 
could be taken into account: 

•  degree of social danger resulting from the presence of the person concerned on the territory 

of that Member State; 

•  nature of the offending activities, their frequency, cumulative danger and damage caused; 

•  time elapsed since acts committed and behaviour of the person concerned (NB: also good 

behaviour in prison and possible release on parole could be taken into account). 

The personal and family situation of the individual concerned must be assessed carefully with 
a view to establishing whether the envisaged measure is appropriate and does not go beyond 
what  is  strictly  necessary  to  achieve  the  objective  pursued,  and  whether  there  are  less 
stringent measures to achieve that objective. The following factors, outlined in an indicative 
list in Article 28(1), should be taken into account52: 

•  impact of expulsion on the economic, personal and family life of the individual (including 
on other family members who would have the right to remain in the host Member State); 

•  the  seriousness  of  the  difficulties  which  the  spouse/partner  and  any  of  their  children  risk 

facing in the country of origin of the person concerned; 

•  strength of ties (relatives, visits, language skills) – or lack of ties – with the Member State 
of origin and with the host Member State (for example, the person concerned was born in 
the host Member State or lived there from an early age); 

•  length of residence in the host Member State (the situation of a tourist is different from the 

situation of someone who has lived for many years in the host Member State); 

•  age and state of health. 

51 
52 

Case 321/87 Commission v Belgium (para 10) 
In relation to the fundamental rights, see the case-law of the ECtHR in cases Berrehab, Moustaquim, 
Beldjoudi, Boujlifa, El Boujaidi and Dalia. 

EN 

13 

   EN 

                                                 
3.4. 

Increased protection against expulsion 

EU  citizens  and  their  family  members  who  are  permanent  residents  (after  five  years)  in  the 
host  Member  State  can  be  expelled  only  on  serious  grounds  of  public  policy  or  public 
security. EU citizens residing for more than after ten years and children can be expelled only 
on imperative grounds of public security (not public policy). There must be a clear distinction 
between normal, ‘serious’ and ‘imperative’ grounds on which the expulsion can be taken. 

As  a  rule,  Member  States  are  not  obliged  to  take  time  actually  spent  behind  bars  into 
account when calculating the duration of residence under Article 28 where no links with the 
host Member State are built. 

3.5. 

Urgency 

Under Article 30(3), the time allowed to leave the territory must be at least one month, save in 
duly substantiated cases of urgency. The justification of an urgent removal must be genuine 
and  proportionate53.  In  assessing  the  need  to  reduce  this  time  in  cases  of  urgency,  the 
authorities  must  take  into  account  the  impact  of  an  immediate  or  urgent  removal  on  the 
personal and family life of the person concerned (e.g. need to give notice at work, terminate a 
lease, need to arrange for personal belongings to be sent to the place of new residence, the 
education of children, etc.). Adopting an expulsion measure on imperative or serious grounds 
does not necessarily mean that there is urgency. The assessment of urgency must be clearly 
and separately substantiated. 

3.6. 

Procedural safeguards 

The  person  concerned  must  always  be  notified  of  any  measure  taken  on  grounds  of  public 
policy or public security, as required by Article 30. 

Decisions must be fully reasoned and list all the specific factual and legal grounds on which 
they  are  taken  so  that  the  person  concerned  may  take  effective  steps  to  ensure  his  or  her 
defence54 and national courts may review the case in accordance with the right to an effective 
remedy,  which  is  a  general  principle  of  Community  law  reflected  in  Article  47  of  the  EU 
Charter. In this respect, forms may be used to notify the decisions but must always allow for a 
full justification of the grounds on which the decision was taken (just indicating one or more 
of several options by ticking a box is not acceptable). 

4. 

ABUSE AND FRAUD 

Community  law  cannot  be  relied  in  case  of  abuse55.  Article  35  allows  Member  States  to 
take effective and necessary measures to fight against abuse and fraud in areas falling within 
the material scope of Community law on free movement of persons by refusing, terminating 
or  withdrawing  any  right  conferred  by  the  Directive  in  the  case  of  abuse  of  rights  or  fraud, 
such as marriages of convenience. Any such measure must be proportionate and subject to the 
procedural safeguards provided for in the Directive56. 

53 
54 
55 
56 

AG Stix-Hackl in case C-441/02 Commission v Germany 
Case 36/75 Rutili (paras 37-39) 
Cases 33/74 van Binsbergen (para 13), C-370/90 Singh (para 24) and C-212/97 Centros (paras 24-25) 
Case C-127/08 Metock (paras 74-75) 

EN 

14 

   EN 

                                                 
Community law promotes the mobility of EU citizens and protects those who have made 
use of it57. There is no abuse where EU citizens and their family members obtain a right of 
residence  under  Community  law  in  a  Member  State  other  than  that  of  the  EU  citizen’s 
nationality  as  they  are  benefiting  from  an  advantage  inherent  in  the  exercise  of  the  right  of 
free  movement  protected  by  the  Treaty58,  regardless  of  the  purpose  of  their  move  to  that 
State59.  By  the  same  token,  Community  law  protects  EU  citizens  who  return  home  after 
having exercised their free movement rights. 

4.1. 

Concepts of abuse and fraud 

4.1.1.  Fraud 

For  the  purposes  of  the  Directive,  fraud  may  be  defined  as  deliberate  deception  or 
contrivance made to obtain the right of free movement and residence under the Directive. In 
the  context  of  the  Directive,  fraud  is  likely  to  be  limited  to  forgery  of  documents  or  false 
representation of a material fact concerning the conditions attached to the right of residence. 
Persons  who  have  been  issued  with  a  residence  document  only  as  a  result  of  fraudulent 
conduct  in  respect  of  which  they  have  been  convicted,  may  have  their  rights  under  the 
Directive refused, terminated or withdrawn60. 

4.1.2.  Abuse 

For the purposes of the Directive, abuse may be defined as an artificial conduct entered into 
solely  with  the  purpose  of  obtaining  the  right  of  free  movement  and  residence  under 
Community law which, albeit formally observing of the conditions laid down by Community 
rules, does not comply with the purpose of those rules61. 

4.2.  Marriages of convenience 

Recital 28 defines marriages of convenience for the purposes of the Directive as marriages 
contracted for  the sole purpose of enjoying the right of  free  movement  and  residence  under 
the Directive that someone would not have otherwise. A marriage cannot be considered as a 
marriage  of  convenience  simply  because  it  brings  an  immigration  advantage,  or  indeed  any 
other advantage. The quality of the relationship is immaterial to the application of Article 35. 

The  definition  of  marriages  of  convenience  can  be  extended  by  analogy  to  other  forms  of 
relationships  contracted  for  the  sole  purpose  of  enjoying  the  right  of  free  movement  and 
residence,  such  as  (registered)  partnership  of  convenience,  fake  adoption  or  where  an  EU 
citizen  declares  to  be  a  father  of  a  third  country  child  to  convey  nationality  and  a  right  of 
residence  on  the  child  and  its  mother,  knowing  that  he  is  not  its  father  and  not  willing  to 
assume parental responsibilities. 

Measures taken by Member States to fight against marriages of convenience may not be such 
as  to  deter  EU  citizens  and  their  family  members  from  making  use  of  their  right  to  free 
movement  or  unduly  encroach  on  their  legitimate  rights.  They  must  not  undermine  the 
effectiveness of Community law or discriminate on grounds of nationality. 

57 
58 
59 
60 
61 

Cases C-370/90 Singh, C-291/05 Eind and C-60/00 Carpenter 
Cases C-212/97 Centros (para 27) and C-147/03 Commission v Austria (paras 67-68) 
Cases C-109/01 Akrich (para 55) and C-1/05 Jia (para 31) 
Cases C-285/95 Kol (para 29) and C-63/99 Gloszczuk (para 75) 
Cases C-110/99 Emsland-Stärke (para 52 et seq.) and C-212/97 Centros (para 25) 

EN 

15 

   EN 

                                                 
When interpreting the notion of abuse in the context of the Directive, due attention must be 
given  to  the  status  of  the  EU  citizen.  In  accordance  with  the  principle  of  supremacy  of 
Community law, the assessment of whether Community law was abused must be carried out 
in  the  framework  of  Community  law,  and  not  with  regard  to  national  migration  laws.  The 
Directive does not prevent Member States from investigating individual cases where there is 
a well-founded suspicion of abuse. However, Community law prohibits systematic checks62. 
Member  States  may  rely  on  previous  analyses  and  experience  showing  a  clear  correlation 
between proven cases of abuse and certain characteristics of such cases. 

In order to avoid creating unnecessary burdens and obstacles, it is possible to identify a set of 
indicative criteria suggesting that there is unlikely to be an abuse of Community rights: 

•  the third country spouse would have no problem obtaining a right of residence in his/her 
own capacity or has already lawfully resided in the EU citizen’s Member State beforehand; 

•  the couple was in a relationship for a long time; 

•  the couple had a common domicile/household for a long time63; 

•  the  couple  have  already  entered  a  serious  long-term  legal/financial  commitment  with 

shared responsibilities (mortgage to buy a home, etc); 

•  the marriage has lasted for a long time. 

Member States may define a set of indicative criteria suggesting the possible intention to 
abuse the rights conferred by the Directive for the sole purpose of contravening national 
immigration  laws.  National  authorities  may  in  particular  take  into  account  the  following 
factors: 

•  the couple have never met before their marriage; 

•  the couple are inconsistent about their respective personal details, about the circumstances 

of their first meeting, or about other important personal information concerning them; 

•  the couple do not speak a language understood by both; 

•  evidence of a sum of money or gifts handed over in order for the marriage to be contracted 
(with the exception of money or gifts given in the form of a dowry in cultures where this is 
common practice); 

•  the past history of one or both of the spouses contains evidence of previous marriages of 

convenience or other forms of abuse and fraud to acquire a right of residence; 

•  development of family life only after the expulsion order was adopted; 

62 

63 

The prohibition includes not only checks on all migrants, but also checks on whole classes of migrants 
(e.g. those from a given ethnic origin). 
Community law does not require third country family spouses to live with the EU citizen to qualify for 
a right of residence – case 267/83 Diatta (para 15 et seq.). 

EN 

16 

   EN 

                                                 
•  the couple divorces shortly after the third country national in question has acquired a right 

of residence. 

The  above  criteria  should  be  considered  possible  triggers  for  investigation,  without  any 
automatic inferences from results or subsequent investigations. Member States may not rely 
on one sole attribute; due attention has to be given to all the circumstances of the individual 
case. The investigation may involve a separate interview with each of the two spouses. 

S.,  a  third  country  national,  was  ordered  to  leave  in  one  month  as  she  had  overstayed  her 
tourist visa. After two weeks, she married O., an EU national who had just arrived to the host 
Member State. The authorities suspect that the marriage might have been concluded only to 
avoid expulsion. They contact the authorities in O.’s Member State and find out that after the 
wedding his family shop was finally able to pay a debt of 5000 EUR, which it had been unable 
to repay for two years. 

They invite the newly-weds for an interview, during which they find out that O. has meanwhile 
already  left  the  host  Member  State  to  return  home  to  his  job,  that  the  couple  is  not  able  to 
communicate in a common language and that they met for the first time one week before the 
marriage.  There  are  strong  indications  that  the  couple  may  have  married  with  the  sole 
purpose of contravening national immigration laws. 

The  burden  of  proof  lies  on  the  authorities  of  the  Member  States  seeking  to  restrict  rights 
under the Directive. The authorities must be able to build a convincing case while respecting 
all the material safeguards described in the previous section. On appeal, it is for the national 
courts to verify the existence of abuse in individual cases, evidence of which must be adduced 
in  accordance  with  the  rules  of  national  law,  provided  that  the  effectiveness  of  Community 
law is not thereby undermined64. 

Investigations must be carried out in accordance with fundamental rights, in particular with 
Articles 8 (right to respect for private and family life) and 12 (right to marry) of the ECHR 
(Articles 7 and 9 of the EU Charter). 

On  going  investigation  of  suspected  cases  of  marriages  of  convenience  cannot  justify 
derogation from the rights of third country family members under the Directive, such as the 
prohibition of the right to work,  seizure of  passport  or dely of the issue of a residence card 
within six months from the date of application. These rights can be withdrawn at any time as a 
result of subsequent investigations. 

4.3. 

Other forms of abuse 

Abuse could also occur when EU citizens, unable to be joined by their third country family 
members in their Member State of origin because of the application of national immigration 
rules  preventing  it,  move  to  another  Member  State  with  the  sole  purpose  to  evade,  upon 
returning  to  their  home  Member  State,  the  national  law  that  frustrated  their  family 
reunification efforts, invoking their rights under Community law. 

The defining characteristics of the line between genuine and abusive use of Community law 
should be based on the assessment of whether the exercise of Community rights in a Member 

64 

Cases C-110/99 Emsland-Stärke (para 54) and C-215/03 Oulane (para 56) 

EN 

17 

   EN 

                                                 
State from which the EU citizens and their family members return was genuine and effective. 
In  such  case,  EU  citizens  and  their  families  are  protected  by  Community  law  on  free 
movement  of  persons.  This  assessment  can  only  be  made  on  a  case-by-case  basis.  If,  in  a 
concrete case of return, the use of Community rights was genuine and effective, the Member 
State of origin should not inquire into the personal motives that triggered the previous move. 

When  necessary,  Member  States  may  define  a  set  of  indicative  criteria  to  assess  whether 
residence in the host Member State was genuine and effective. National authorities may in 
particular take into account the following factors: 

•  the circumstances under which the EU citizen concerned moved to the host Member State 
(previous  unsuccessful  attempts  to  acquire  residence  for  a  third  country  spouse  under 
national law, job offer in the host Member State, capacity in which the EU citizen resides 
in the host Member State); 

•  degree of effectiveness and genuineness of residence in the host Member State (envisaged 
and  actual  residence  in  the  host  Member  State,  efforts  made  to  establish  in  the  host 
Member  State,  including  national  registration  formalities  and  securing  accommodation, 
enrolling children at an educational establishment); 

•  circumstances  under  which  the  EU  citizen  concerned  moved  back  home  (return 

immediately after marrying a third country national in another Member State). 

The  above  criteria  should  be  considered  possible  triggers  for  investigation,  without  any 
automatic  inferences  from  results  or  subsequent  investigations.  In  assessing  whether  the 
exercise  of  the  right  to  move  and  reside  freely  in  another  Member  State  of  the  EU  was 
genuine and effective, national authorities may not rely on a sole attribute but must pay due 
attention  to  all  the  circumstances  of  the  individual  case.  They  must  assess  the  conduct  of 
persons  concerned  in  the  light  of  the  objectives  pursued  by  Community  law  and  act  on  the 
basis of objective evidence65. 

J. returns home from another Member State with S., his third country spouse. S. unsuccessfuly 
attempted twice to acquire residence in J.’s Member State. J. continued to work home during 
his alleged residence in another Member State. 

The authorities contact the authorities of the host Member State and find out that J. returned 
home only after three weeks. The couple stayed in a tourist hotel and paid for the three weeks 
of accommodation in advance. Taking all of this into account, J. and S. do not benefit from 
the provisions of the Directive. 

It cannot be inferred that the residence in the host Member State is not genuine and effective 
only because an EU citizen maintains some ties to the home Member State, all the more if his 
status in the host country is unstable (e.g. a work contract of limited duration). The mere fact 
that  a  person  consciously  places  himself  in  a  situation  conferring  a  right  does  not  in  itself 
constitute a sufficient basis for assuming that there is abuse66. 

65 
66 

Case C-206/94 Brennet v Paletta (para 25) 
Case C-212/97 Centros (para 27) 

EN 

18 

   EN 

                                                 
All relevant considerations set out above on investigation, material and procedural safeguards, 
co-operation  between  Member  States  relating  to  marriages  of  convenience  apply  mutatis 
mutandis. 

4.4.  Measures and sanctions against abuse and fraud 

Article 35 entitles Member States to adopt the necessary measures in cases of abuse of rights 
or fraud. These measures can be taken at any point of time and may entail: 

•  the refusal to confer rights under Community law on free movement (e.g. to issue an entry 

visa or a residence card); 

•  the termination or withdrawal of rights under Community law on free movement (e.g. the 
decision to terminate validity of a residence card and to expel the person concerned who 
acquired rights by abuse or fraud). 

Community  law  does  not  at  present  provide  for  any  specific  sanctions  Member  States  may 
take in the framework of fight against abuse or fraud. Member States may lay down sanctions 
under  civil  (e.g.  cancelling  the  effects  of  a  proven  marriage  of  convenience  on  the  right  of 
residence),  administrative  or  criminal  law  (fine  or  imprisonment),  provided  these  sanctions 
are effective, non-discriminatory and proportionate. 

EN 

19 

   EN