CELEX: 51993PC0209
Language: en
Date: 1993-05-14
Title: Proposal for a COUNCIL DIRECTIVE on the right of residence for students

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                COM ( 93 209 final - SYN460
                                                Brussels, 14 May 1993
                              Proposal for a
                            COUNCIL PI RECTI YE
                     on the right of residence for students
                    (presented by the Commission)
Ik? 1 »
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 ---pagebreak---                                     —  A
                           EXPLANATORY MEMORANDUM
On 26 June 1989 the Commission sent to the Council a proposal for a
Directive on the right of residence for students1 based on the second
paragraph of Article 7 of the Treaty, which provides for a cooperation
procedure with Parliament. After a tortuous legislative procedure, the
Council finally adopted on the basis of Article 235 Directive 90/366/EEC
on the right of residence for students.2
The Commission opposed the change in the legal basis.
Parliament took the view that the change in the legal basis had failed
to respect its prerogatives and initiated annulment proceedings in
respect of Directive 90/366/EEC (Case C-295/90). The Commission, in its
capacity as intervener in the proceedings, supported Parliament.
 In its ruling of 7 July 1992, the Court of Justice upheld Parliament's
appeal. It annulled Directive 90/366/EEC, ruling that "the effects of
the annulled Directive shall continue to have force until the entry into
force of a directive adopted on the appropriate legal basis".
The purpose of this proposal is to set in motion the procedure that will
result in a new directive on the right of residence for students being
adopted on the appropriate legal basis.
Substance of the proposal
1. In essence, the attached proposal reproduces the version of       the
Directive as adopted by the Council, and not the substance of        the
Commission's initial proposal.
The reasons for this are the following:
    Parliament,    through   its appeal,    intended  simply   to secure
    acknowledgment that the procedure followed had failed to respect its
    prerogat ives;
    the actual substance of the Directive was not challenged; in this
    respect, the Court notes that the essential normative content of the
    Directive has not been challenged by the institutions or by the
    Member States;
    the Court has maintained the effects of the Directive, which has
    already been transposed into national law by Denmark, Spain, Greece,
     Ireland, Italy, Luxembourg, the Netherlands and Portugal.
2.  However, the text of the Directive 90/366/EEC needs to be adapted in
    two respects:
1   OJ NO C 191 of 28 July 1989, p. 2.
2   OJ No L 180 of 13 July 1990, p. 30.
 ---pagebreak---                                    - 2 -
     in order to take account of the ruling of 7 July 1992, In which the
     Court of Justice acknowledged that "the Council was competent to
     adopt the contested directive pursuant to the second paragraph of
    Article 7 of the         Treaty and that it was accordingly not
     Justified In basing itself on Article 235": the first citation in
     Directive 90/366/EEC is amended so as to refer to the second
     paragraph of Article 7 of the Treaty while the last recital, which
     refers to Article 235, is deleted. A new recital is added in order
     to include a reference to the annulment of that Directive by the
    Court of Justice; and
     in order to take account of the ruling given by the Court of Justice
    on 26 February 1992 in Raul In (C-357/89): the proposed wording of
     the third recital and of Article 1 is similar to the wording of the
     initial proposal for a Directive dated 26 June 1989 since the Court
    of Justice endorsed the Commission's analysis on which the initial
    wording was based. A fourth recital is inserted in order to
    underscore the merits of the Directive as an instrument setting out
     the framework within which the right of residence will be exercised.
3. In view of the fact that the ruling given by the Court of Justice on
7 July 1992 maintained the effects of the annulled Directive until the
entry into force of a directive adopted on the appropriate legal basis,
it is not possible to set for a new directive a date for the expiry of
the transposition deadline later than that specified in the annulled
Directive since this would run counter to the Court's ruling by granting
Member States that had not as yet transposed Directive 90/366/EEC into
national law an extension of the transposition deadline.
 ---pagebreak---                                                                                      -V
                                                    Proposal for a Council Directive on the right of residence for students
    TUG COUNCIL o r THI- HUKOIM-AN COMMUNITIES.                                                  laid down in particular in Directive 68/360/EEC                              flhnd
                                                                                                 Directive 64/22\/\UlC(l);
    Having r e g a r d t o t h e T r e a t y e s t a b l i s h i n g t h e
    European Economic Community, and i n p a r t i c u l a r
    the second paragraph o f A r t i c l e 7 § 2 t h e r e o f .                                 W l u i e a s this D i t e c t i v e iloes not a p p l y to students w h o
                                                                                                 enjoy the l i g h t o l i c s i d e i w e by v i r t u e of t h e fact that they
   Having              regard            to         the       pr o p o s a I    f r om    t he   aie oi have been e f l c c h v c l v engaged in e c o n o m i c activi-
   Commi s s i o n ,                                                                             ties oi aie m c m h e i s o l t h e f a m i l y of a m i g r a n t w o r k e r ;
    In c o o p e r a t i o n w i t h              the furopean           Parliament.              w h e r e a s , by i t s i u I i n g o f 7 J u l y 1992 i n Case
                                                                                                 C-295/90. the Court of J u s t i c e a n n u l l e d Council
   Having r e g a r d t o the o p i n i o n                         of      the    Economic       D i r e c t i v e 9 0 / 3 6 6 / C E C o f 28 June 1990 o n t h e
   and S o c i a l C o m m i t t e e .                                                            right           of    residence             for         students,         while
                                                                                                 maintaining               the        effects          of     the      annul l e d
   Whereas A r t i c l e 3 (c) of t h e T i e a t y provides that (he acti-                       Directive           until         the entry            into    force of a
   viiies of t h e C o m m u n i t y shall i n c l u d e , as p r o v i d e d in the              directive           adopted          o n t h e appropr iate               legaI
   Tieaty, t h e a b o l i t i o n , as between M e m b e i States, o l                           bas i s .
   obstacles t o f r e e d o m of m o v e m e n t for persons ;
   Whereas A r t i c l e 8a of t h e T i e a t y provides that t h e
                                                                                                 HAS ADOPTED THIS D I R E C T I V E :
   internal market must be established by 31 December
    1 9 9 2 ; wheieas t h e i n t e r n a l market c o m p i i s e s an aiea
   w i t h o u t i n t e r n a l f r o n t i e i s i n w h i c h t h e free m o v e m e n t of
   goods, persons, services a n d capital is ensured i n accor-
                                                                                                                                     Art icle 1
   dance w i t h t h e p t o v i s i o n s o l t h e Treaty ;
                                                                                                  Member States shall take the measures necessary
  Whereas, as t h e Court o f J u s t i c e has r u l e d .                                       to       facilitate             exercise          of      the right            of
  A r t i c l e s 128 a n d 7 o f t h e T r e a t y p r o h i b i t a n y                         residence            in order            to guarantee             access to
  d i s c r i m i n a t i o n b e t w e e n n a t i o n a l s o f t h e Member                    vocational            training           in a non-discriminatory
  S t a t e s as r e g a r d s a c c e s s t o v o c a t i o n a l                 training       manner.           To that end. they shall recognize the
   in       the      Community                  arid    wheieas          access       by a        right of residence to any student who is a
  national             o f o n e Meinbei                  State         to     vocational         national of a Member State and who does not
  t i o i n i n g i n a n o t h e r Member S t a t e i m p l i e s ,                     foi      enjoy          this right           under      other        provisions of
  that n a t i o n a l ,              a r i<jht o f r e% i d e n c e               in  that       Community law, and to the student's spouse and
 o t hei Membei St .i t e ;                                                                       their          dependent         children, where the student
                                                                                                  assures           the relevant             national         authority, by
 Wheieas,              accordingly,                   in order            to guarantee            means of a declaration or by such alternative
  access t o v o c a t i o n a l                    training,         the c o n d i t i o n s     means as the student may choose that are at
  l i k e l y to f a c i l i t a t e e f f e c t i v e exercise of that                            least          equivalent,            that      he has sufficient
  r i g h t o f r e s i d e n c e s h o u l d he l a i d d o w n ;                                resources to avoid becoming a burden on the
                                                                                                  social          assistance system of the host                            Member
 Wheieas t i n ' l i g h t ot lesidence f<M students f o i m s pait of                            State           during         their        period        of       residence,
 a set o l lelated measures designed to p i o m o t e vocational                                  provided           that      the student              is enrolled           in a
 tiammg .                                                                                         recognized           educational establishment                        for the
                                                                                                  principal purpose of following a vocational
 Whereas benelictanes o l t h e l i g h t o l i c s i d e n c c must not                          training course there and that they are covered
 bet ome an unieasoiiable b m d e n o n t h e p u b l i c Imances of                              by sickness insurance in respect of all risks
 die host M e m b e i State ,                                                                      in the host Member State.
 Wheieas, in the ptesenl slate of C o m m u n i t y law, assis                                                                        A ft n !<• 2
 tance granted to students, as established b y t h e case law of
 the Court of Justice, does n o t fall w i t h i n t h e scope o f t h e                        l        The light of residence shall be restricted to the dura-
Treaty w i t h i n t h e m e a n i n g of A r t i c l e 7 t h e r e o f ;                      tion ol the course of studies in question.
                                                                                               The right of residence shall be evidenfed by means of the
Wheieas the t i g h t of tesidence c a n o n l y be g e n u i n e l y
                                                                                               issue of a document known as a 'Residence permit for a
exercised if it is granted to t h e spouse a n d t h e i r d e p e n -
                                                                                               national of a Member State of the EEC', the validity of
dent c h i l d r e n ;
                                                                                               which may be limited to the duration of the course of
Wheieas t h e benelicianes of t h i s D i r e c t i v e s h o u l d be                         studies or to one year where the course lasts longer; in
covered by a d m i n i s t r a t i v e a r r a n g e m e n t s s i m i l a r to those          the latter event it shall be renewable annually. Where a
                                                                                               member of the family does not hold the nationality of a
                                                                                               Member State, he or she shall be issued with a residence
                                                                                               document of the same validity as that issued to the
                                                                                               national on whom he or she depends.
                                                                                                (f) OJ No L 257, 19. 10. 1968, p. 13.
                                                                                                $ OJ No 56, 4. 4. 1964, p. 850/64.
 ---pagebreak---                                                                     Vtt..S',-:-\'
                                                                                  <-("
  For the purpose of issuing the residence permit or docu-                   yearly intervals thereafter, draw up a report on the appli-
 ment, the Member State may requite only that the appli-                     cation of this Directive and submit it to the European
 cant present a valid identity card or passport and provide                  Parliament and the Council.
 proof that he or she meets the conditions laid down in
 Article 1.                                                                  The Commission shall pay particular attention to any
 2.     Articles 2, 3 and 9 of Directive 6 8 / 3 6 0 / E E C shall           difficulties to which the implementation of Article 1
 apply mutatis        mutandis       to the beneficiaries of this            might give rise in the Membei States ; it shall, if appro-
 Directive.                                                                  priate, submit proposals to the Council with the aim of
                                                                             remedying such difficulties.
The spouse and the dependent clnldien of a national of a
 Member Slate entitled to the light of i c s i d e i u e within the
 territory of a Member State shall be entitled to take uj>
 any employee! ot self-employed activity anywhere within                                                  A>lull   <>
 the territory of that Membei State, even if they are not
 nationals of a Member State
                                                                             Member States shall b u n g into force the law, regulations
 Member States shall not derogate from the provisions of                    and administrative provisions necessary to comply with
 this Directive save on grounds of public policy, public                     this Directive not later than 30 June 1992. They shall
security or public health : in that event, Articles 2. to 9 of              forthwith inform the Commission thereof.
 Directive 6 4 / 2 2 1 / E E C shall apply.
                                Article  .?                                    W h e n M e m b e r States adopt these provisions, these shall
                                                                               contain a reference to this Directive or shall be ac-
This Directive shall not establish any entitlement to the
                                                                               companied by such reference at the time of their official
payment of maintenance grants by the host M e m b e r State
                                                                               publication. T h e procedure for such reference shall be
on the part of students benefiting from the right of resi-
                                                                               adopted by M e m b e r States.
dence.
                                Art tile 4
                                                                                                           Article   ?
The right of residence shall remain for as long as benefi-
ciaries of that right fulfil the conditions laid down in                       This Directive is addressed to the Member States.
Article I.
                                ArtnU- 5
The Commission shall, not more than three yeais after
the date of implementation of this Directive, and at three-
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