COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the Position of the Council on the adoption of a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing
Date: 2016-04-05
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU visa policy, educational exchange, foreign national, foreign student, research staff, residence permit, traineeship, voluntary work

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   EUROPEAN COMMISSION  Brussels, 5.4.2016  COM(2016) 184 final 2013/0081 (COD)   COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT  pursuant to Article 294(6) of the Treaty on the Functioning of the European Union  concerning the Position of the Council on the adoption of a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing  
 
 
2013/0081 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

Position of the Council on the adoption of a Directive of the European Parliament and of 
the Council on the conditions of entry and residence of third-country nationals for the 
purposes of research, studies, training, voluntary service, pupil exchange schemes or 
educational projects and au pairing 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2013) 151 final – 2013/0081 COD)) 

26.03.2013 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

18.09.2013 

Date of the position of the European Parliament, first reading: 

25.02.2014 

Date of transmission of the amended proposal: 

n/a 

Foreseen date of adoption of the position of the Council: 

10.03.2016 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

The  proposal  was  a  recast  merging  the  existing  students  (2004/114/EC)  and  researchers 
(2005/71/EC)  Directives.  It  aimed  at  remedying  the  weaknesses  identified  in  these 
instruments,  thereby  rendering  the  EU  more  attractive  as  a  destination  for  the  groups 
concerned.  The  proposal  enlarged  the  scope  of  EU  rules,  as  previously  the  admission  rules 
had  been  mandatory  for  students  and  researchers  only,  and  optional  for  school  pupils, 
unremunerated  trainees  and  volunteers.  The  proposal  covered  all  categories  through 
mandatory rules (including the newly added categories of remunerated trainees and au pairs). 
The  proposal  made  improvements  in  particular  regarding  admission  procedures,  equal 
treatment rights, students' rights to access the labour market during studies, intra-EU mobility 
as well as procedural guarantees. It also created the possibility for graduates and researchers, 
after finalisation of research or studies, to seek a job or to set up a business. 

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

Political  agreement  was  reached  between  co-legislators  at  the  trilogue  meeting  of  17 
November 2015, and  was endorsed by COREPER on 25 November 2015, and by the LIBE 
Committee on 30 November 2015. 

The  main  differences  between  the  Common  Position  and  the  original  Commission  proposal 
are set out below. 

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Scope (Article 2) 

The  Common  position  limits  the  scope  of  the  mandatory  rules  to  researchers,  students, 
trainees and volunteers covered by the European Voluntary Service. Rules for school pupils, 
volunteers not covered by the European Voluntary Service and au pairs are optional. 

Regarding trainees, the Common position abolishes the distinction between remunerated and 
unremunerated trainees.  

General admission conditions (Article 7) 

The Common position gives Member States the possibility to require the applicant to provide 
the address where he or she will be residing on its territory. It makes it obligatory for Member 
States  to  examine  applications  also  when  the  third-country  national  concerned  is  already 
residing in that Member State. 

Approval  of  research  organisations  (Article  9);  Approval  of  higher  education 
institutions, education establishments, organisations responsible for a voluntary service 
scheme or entities hosting trainees (Article 15) 

The Common position makes the approval procedure for research organisations optional, and 
introduces  an  optional  approval  procedure  for  higher  education  institutions,  education 
establishments,  organisations  responsible  for  a  voluntary  service  scheme  or  entities  hosting 
trainees. In case a Member State introduces such procedures, applications are facilitated. 

Specific conditions for trainees (Article 13) 

The Common position introduces the limitation that  applicants  must  have  obtained a higher 
education  degree  within  the  two  years  preceding  the  date  of  application  or  be  pursuing  a 
course  of  study  that  leads  to  a  higher  education  degree.  It  also  allows  Member  States  to 
require the traineeship to be in the same field and at the same qualification level as the higher 
education degree obtained or the course of study being pursued. 

Duration of authorisations (Article 18) 

The Common position provides for a duration of authorisations for students and researchers 
covered by programmes of a minimum of two years (instead of one year for those not covered 
by  programmes).  The  Commission  proposal  did  not  foresee  a  longer  duration  of 
authorisations for students and researchers covered by programmes, except in the context of 
intra-EU mobility. 

Grounds for rejection (Article 20) 

The Common position to a great extent aligns the grounds for rejection to those of the Intra 
Corporate Transferee Directive (hereinafter "ICT Directive")1. At the same time the position 
adds a ground which allows Member States to reject an application where the Member State 
has  evidence  or  serious  and  objective  grounds  to  establish  that  the  third-country  national 

1 

Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions 
of  entry  and  residence  of  third-country  nationals  in  the  framework  of  an  intra-corporate  transfer, 
27.5.2014, OJ L 157, p. 1 

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would reside for purposes other than those for which he or she applies to be admitted (Article 
20(2)(f)).  Both  the  Commission  and  the  European  Parliament  had  reservations  on  the  latter 
provision,  which  was  eventually  accepted  and  accompanied  by  the  following  declaration  of 
the two Institutions: 

The European Parliament and the Commission understand point (f) of Article 20(2) 
of this Directive as allowing Member States to reject an application only on a case-
by-case basis and taking into account the specific circumstances of the third-country 
national and the principle of proportionality and on the basis of evidence or serious 
and  objective  reasons.  The  Commission  will  ensure  that  Member  States  implement 
this provision in line with this interpretation when transposing the Directive, and will 
inform  the  Parliament  and  the  Council  thereof,  in  the  framework  of  its  obligations 
under Article 39.  

The  European  Parliament  and  the  Commission  consider  that  the  inclusion  of  this 
provision  in  this  Directive  should  not  constitute  a  precedent  for  future  legal 
migration instruments. 

Grounds for withdrawal or non-renewal of an authorisation (Article 21) 

Similarly  to  the  grounds  for  rejection,  the  Common  position  to  a  great  extent  aligns  the 
grounds for withdrawal or non-renewal to those of the ICT Directive. 

Equal treatment (Article 22) 

While the Common position provides Member States with the possibility to make the granting 
of family benefits to researchers dependent on a minimum length of stay (once more in line 
with  the ICT Directive), overall it still reflects the objective of the Commission  proposal to 
make  more transparent  which equal treatment rights,  based on the Single Permit Directive2, 
the various categories covered by the recast are entitled to. 

Economic activities by students (Article 24) 

The Common position increases the minimum number of hours that students have access to 
the  labour  market  to  15  hours  per  week  (up  from  10  hours  per  week  in  Directive 
2004/114/EC, however lower than the 20 hours per week the Commission had proposed). The 
Common  position  does  not  alter  the  proposed  deletion,  in  the  Commission  proposal,  of  the 
provision of Directive 2004/114/EC that allowed Member States to deny access to the labour 
market for the first year of stay. 

Job-searching/setting-up of a business for students who finished studies and researchers 
who finalised research (Article 25) 

The Common position limits the period for job-seeking/setting-up of a business to 9 months. 
It  also  gives  Member  States  the  possibility  to  require  that  the  employment  a  third-country 
national is seeking or the business he or she is in the process of setting up corresponds to the 

2 

Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single 
application procedure for a single permit for third-country nationals to reside and work in the territory 
of  a  Member  State  and  on  a  common  set  of  rights  for  third-country  workers  legally  residing  in  a 
Member State, 23.12.2011, OJ L 343, p. 1 

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level  of  research  or  of  studies  completed.  Regarding  students,  the  Common  position  gives 
Member  States  the  possibility  to  apply  these  provisions  only  to  those  having  achieved  a 
minimum level of academic degree (which must not be higher than level 7 of the European 
Qualifications Framework, i.e. Masters level). 

Intra-EU mobility (Articles 27 – 32) 

The Common position includes intra-EU mobility provisions only for students and researchers 
as  opposed  to  the  Commission  proposal  which  had  foreseen  such  provisions  also  for 
remunerated trainees. The Common position introduces the "notification" procedure (as in the 
ICT  Directive),  a  simplified  procedure  whereby  students  and  researchers  can  move  to  a 
second Member State on the basis of the authorisation of the first Member State.  

For  researchers,  this  procedure  applies  in  the  case  of  short-term  mobility  (up  to  180  days; 
Article  28).  For  mobility  going  beyond  this  period  (Article  29),  Member  State  can  apply 
either the notification procedure, or alternatively an application procedure. 

Researchers' family members are entitled to move with the researcher on the basis of the same 
rules (Article 30). 

The Common position limits students' intra-EU mobility to students covered by a programme 
that  comprises  mobility  measures,  but  at  the  same  time  extends  the  duration  of  stay  in  the 
second Member State to up to 360 days (Article 31). 

Procedural guarantees (Article 34) 

The Common position foresees a maximum period of 90 days for Member States to decide on 
applications,  except  when  the  admission  procedure  is  related  to  an  approved  host  entity.  In 
this case, the deadline is 60 days.  

4. 

CONCLUSION 

Despite  the  changes  that  the  Common  position  has  introduced,  the  text  of  the  Common 
position  still  meets  the  Commission's  original  objective  to  make  the  EU  more  attractive  for 
the  categories  concerned,  and  to  make  the  legal  framework  governing  their  entry  and 
residence  more  clear  and  transparent.  Overall,  the  substance  of  the  Council's  position  is 
broadly in line with the Commission's proposal and can therefore be supported. 

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