CELEX: 51997PC0106(01)
Language: en
Date: 1997-03-20
Title: Amended proposal for a COUNCIL DIRECTIVE on the right of third-countz nationals to travel in the Community

ft*ft          COMMISSION OF THE EUROPEAN COMMUNITIES
 ft ft
ft ft
 ft ft
   ft ^ft
                                               Brussels, 20.03.1997
                                               COM(97)106 final
                                               95/0199 (CNS)
                                               95/0201 (CNS)
                                 Amended proposal for a
                                COUNCIL DIRECTIVE
           on the right of third-country nationals to travel in the Community
                                 Amended proposal for a
                                 COUNCIL DIRECTIVE
          on the elimination of controls on persons crossing internal frontiers
               (presented by the Commission pursuant to Article 189a(2)
                                    of the EC Treaty)
 ---pagebreak---  ---pagebreak---                              Explanatory memorandum
1. On 24 August 1995 the Commission presented - jointly - three proposals for
   Directives relating to the free movement of persons within the Community. To be
   more precise, thefirstproposal concerns therightof third-country nationals to travel in
   the Community1 and the second concerns the elimination of controls on persons
   crossing internal frontiers,2 while the third amends Directives 68/360/EEC and
   73/148/EEC on the abolition of restrictions on movement and residence within the
   Community for certain categories of nationals of Member States and their families.3
   On 23 October 1996 Parliament adopted for each proposal a legislative resolution
   endorsing the proposal and setting out a number of amendments.
   The present amended proposals concern two of the three proposals, viz. the one
   relating to the right to travel of third-country nationals and the one relating to the
   elimination of controls. These new proposals incorporate the amendments accepted by
   the Commission during discussions with Parliament.
   The third proposal, which adapts existing secondary legislation on movement in
   Member States for citizens of the Union and their families, is not the subject of an
   amended proposal since the Commission has not taken up any of the amendments
   proposed by Parliament.
2. The amendments to the two proposals which have been accepted by the Commission
   fall into two categories:
   (i)       those which, according to Parliament, usefully supplement the arrangements
             laid down in the proposals:
                     in the case of the proposal on the right to travel, one amendment
                     inserts a new recital providing for equality of treatment regarding
                     declaration of their presence in a Member State as between
                     beneficiaries of the right to travel and citizens of the Union. A further
                     amendment includes among the categories excludedfromthe scope of
                     the Directive and listed in Article 1 persons exercising lucrative or non-
                     lucrative activities. There is also an amendment that inserts a new
                     Article 5a imposing in an expedient manner a clear obligation on
                     beneficiaries of the right to travel (namely, to leave the Member State
                     should they no longer satisfy the conditions enabling them to reside
                     temporarily in that Member State);
   OJ No C 306, 17. 11.1995, p. 5; COM(95) 346 final - CNS 95/0199.
   OJ No C 289, 31.10.1995, p. 16; COM(95) 347 final - CNS 95/0201.
   OJ No C 307, 18.11.1995, p. 18; COM(95) 348 final - COD 95/0202.
                                                 I
 ---pagebreak---             in the case of the proposal on the elimination of controls on persons,
            two amendments concerning Article 3 are designed to improve the
            definitions of 'intra-Community flight' and 'intra-Community sea
            crossing' in order to align them on those laid down within the
            framework of the draft Convention on the crossing of the external
            frontiers of the Member States and within the Schengen Convention;
(ii) those which, according to Parliament, will confirm the Community bases for
     the two proposals:
             one amendment inserts into a new first recital a reference to Article
             3(d) of the EC Treaty, which thus more closely integrates the
             proposals into theframeworkof the internal market;
             another amendment inserts the date of 31 December 1992 alongside
             the reference to Article 7a of the EC Treaty in the first recital of the
             Commission's initial proposals.
 ---pagebreak---                                                   Amended proposal for a
                                                 COUNCIL DIRECTIVE
                          on the right of third-country nationals to travel in the Community
        Text proposed by the Commission                    Amendments by the Parliament
        COM(95) 346 final - 95/0199(CNS)                    (unchanged unless mentioned below)
        JO n°C 306 of 17.11.95 p. 5-8
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 100 thereof,
Having regard to the proposal from the Commission,
Having regard      to   the  opinion  of   the  European
Parliament,
Having regard to the opinion of the Economic and
Social Committee,
Having regard to the opinion of the Committee of the
Regions,
                                                                Whereas Article 3 of the Treaty provides for an
                                                                internai market characterised, inter alia, by the
                                                                abolition, as between Member States, of obstacles
                                                                to the free movement of persons and measures
                                                                concerning the entry and movement of persons in
                                                                the internal market;
  Whereas Article 7a of the Treaty provides for the estab-        Whereas Article 7a of the Treaty provided for the
  lishment of an internal market, which is to comprise an         establishment bv 31 December 1992 of an internal
  area without internal frontiers in which the free               market, to comprise an area without internal
  movement of goods, persons, services and capital is             frontiers in which the free movement of good,
  ensured in accordance with the provisions of the Treaty;        persons, capital and services is ensured in
                                                                  accordance with the provisions of the Treaty;
 Whereas in order to achieve this objective Member
  Sûtes will have to allow third-country nationals who are
 lawfully in the territory of another Member State to
 enter their territories for short stays; whereas if there
 were no such right to travel each Member State would
 have to consider the fact that there were people in other
 Member States who were not entitled to enter its
 territory, which might be an argument for maintaining
 controls at internal frontiers;                                 H-
 ---pagebreak--- Whereas the approximation of Member States' laws on
:his question directly affects the establishment and func-
tioning of the internal market;
                                                              Whereas in principle the registration of third-
                                                              country nationals exercising their right to travel
                                                              should    no!   be. subject  to more      stringent
                                                              requirements than those applying in comparable
                                                              situations to EU citizens:
 Whereas the issue of a residence permit by a Member
 State to a third-country national, whereby the latter is
 authorized to live in that State, is an act surrounded by
 sufficient safeguards for the other Member States no
  longer to need to subject the person concerned to the
  requirement that he obtain a visa in advance from their
 own authorities and hence for them to grant him the
 right to travel; whereas, in any event, each Member
 State may expel the person concerned to the Member
 State which issued the residence permit, which is obliged
 to readmit him, if he stays unlawfully in its territory, if
 he does not fulfil the conditions governing the right to
 travel, or if he represents a threat to public order or
 public security in that State, or to its international
 relations;
 Whereas, where a third-country national who is not
 resident in the Community is in possession of a visa
 issued by a Member State which permits him to cross the
 external frontiers of all the Member Sûtes by virtue of
  its being valid throughout the Community and mutually
  recognized by the Member States for that purpose, each
  Member State enjoys sufficient safeguards for it to grant
 the person concerned the right to travel; whereas the
  same right must a fortiori be granted to third-country
  nationals who may cross the external frontiers without
  being subject to a visa requirement; whereas, in any
  event, each Member State is entitled to expel a third-
  country national if he does not fulfil the conditions
  governing the right to travel or if he represents a threat
  to public order or public security in that State, or to its
  international relations;
  Whereas persons who exercise the right to travel should
  not become a burden on the social assistance system in
  the Member States they visit; whereas the right should
  therefore be subject to the condition that such persons
  have sufficient resources to undertake the trip;
  Whereas this Directive forms part of a general body of
   Community and national provisions governing the legal
   position of third-country nationals in the Member States;
   whereas the scope of this Directive should accordingly
   be precisely defined,
 ---pagebreak--- HAS ADOPTED THIS DIRF< TIVI
                                                                                      Article I
                           Article 1                                           Introductory provision
1.     Member States shall grant third-country nationals      1.       Member States shall grant third-country
who are lawfully in a Member State the right to travel in
                                                              nationals who are lawfully in a Member State the
the territories of the other Member States in accordance
with this Directive.                                          right to travel in the territories of the other Member
                                                              States in accordance with this Directive.
                                                              2.     This Directive shall be without prejudice to
                                                              rights
 2.     This Directive shall be without prejudice to rights
                                                              - which Community law confers on third-country
 — which Community law confers on third-country               nationals who are members of the families of
     nationals who are members of the families of citizens    citizens of the Union,
     of the Union,
                                                              - which are granted to third-country nationals and to
 — which are granted to third-country nationals and to        members of their families irespective of nationality
     members of their families irrespective of nationality    where, under an agreement between the
     where, under an agreement between the Community,
     its Member Sûtes and the relevant third country,
                                                              Community, its Member States and the relevant
     they enjoy rights of entry and residence in a Member     third country, they enjoy rights of entry and
     State identical to those of citizens of the Union.       residence in a Member State identical to those of
                                                              citizens of the Union.
 3.    This Directive shall not         affect  provisions of
 Community or domestic law on
                                                              3.     This Directive shall not affect provisions of
                                                              Community or domestic law on
 — stays other than for a short time, and
                                                              - stays other than for a short time, and
 — access to employment and the uking-up of activities        - access to employment, the taking-up of activities
     as a self-employed person
                                                              as a self-employed person and other lucrative or
                                                              non-lucrative activities
 applicable to third-country nationals.
                                                              applicable to third-country nationals.
                                                                                             Article 2
                               Article 2
                                                                                            Definitions
    For the purposes of this Directive:                              For the pupose of this Directive :
    1. 'right to travel' means the right to cross internal           1. 'right to travel'means the right to cross internal
        Community borders and to remain in the territory of          Community borders and to remain in the territory of
        a Member Sute for a short suy, or to travel onward,          a Member State for a short stay, or to travel onward,
        without the person concerned being required to               without the person concerned being required to
        obuin a visa from the Member Sute or Sûtes in                obtain a visa from the Member State or States in
        whose territory the right is exercised;                      whose territory the right is excercised.
                                                                     2. 'residence permit' means any document or
  2. 'residence permit'    means any document or author-             authorization issued by the authorities in a Member
     ization issued by    the authorities in a Member Sute           State which permits a person to reside in that
     which permits a     person to reside in that Member
     Sute, and which      appears on the list referred to in
                                                                     Member State for a period of more than six months:
     Article 3 (4);
 ---pagebreak---   3. 'visa within the meaning of point (3) of Article 2'
      means a visa which is valid throughout the
      Community and which is mutually recognized for the
      purpose of crossing the external frontiers of the
      Member Sûtes;
  4. 'third-country national' means any person who is not a
      citizen of the Union within the meaning of Article 8
      (1) of the Treaty esublishing the European
      Community.
                             Article 3
   1.    Member Sûtes shall grant the right to travel to
  third-country nationals who hold a valid residence
  permit issued by another Member Sute.
 Any such person may travel in the territories of the other
 Member Sûtes for a continuous period of not more than
 three months provided that he meets the following
 requirements:
 — he must be in possession of a valid residence permit
      and a valid travel document,
 — he must have sufficient means of subsistence, both to
      cover the period of the intended suy or transit and
      to enable him to return to the Member Sute which
      issued the residence permit, or to travel to a third
      country into which he is ceruin to be admitted.
 2.     Member Sûtes7 shall, in accordance with the
 conditions laid down in the Annex, readmit any person
 to whom they have issued a residence permit and who is
 unlawfully resident in the territory of another Member
 Sute, even if the validity of that permit has expired.
 3. A third-country national who holds a residence
• permit issued by a Member Sute and who is exercising
 the right to travel may be expelled if he does not meet
 the requirements laid down in paragraph 1 or if he
 represents a threat to public order or public security in
 the Member Sute in which he is exercising the right to
 travel, or to its international relations.
 4.     Member Sûtes shall provide the Commission and
 the other Member Sûtes with a list of the documents
 they issue which are treated as equivalent to residence
 permits for the purposes of this Article, updating it as
 and-when necessary.
 The Commission shall publish the lists and any updates
 in the Official Journal of the European Communities.
                                                            T-
 ---pagebreak---                           Article 4
  1. Member Sûtes shall grant the right to travel to
 third-country nationals who hold a visa within the
 meaning of point (3) of Article 2.
 Such persons may travel in the territories of the Member
 Sûtes during the period of suy permitted by the visa,
 provided that they are in possession of a travel document
 bearing the valid visa and meet the requirement laid
 down in the second indent of Article 3(1).
 2.    Member Sûtes shall confer the right to travel on
 third-country nationals who are exempted from visa
requirements by all the Member Sûtes.
Such persons may travel in the territories of the Member
Sûtes for a toul of no more than three months within a
period of six months from the date of first entry in the
territory of one of the Member States, provided that they
are in possession of valid travel documents and meet the
requirement laid down in the second indent of Article
3 (1).
3.     Paragraph 2 shall also apply to third-country
nationals who are subject to a visa requirement in a
number of Member Sûtes.
However, the right to travel shall in their case be
restricted to the territories of such Member Sûtes as
have exempted nationals of the relevant third country
from the obligation to hold a visa, unless they do hold a
visa within the meaning of point (3) of Article 2.
In the latter event, the period of suy in the territories of
the Member Sûtes which require a visa shall be limited
to the period permitted by the visa.
4.    The provisions of this Article shall not prevent any
Member Sute from authorizing the suy in its territory
of a third-country national beyond three months.
5.    A third-country national allowed to enter the
Community for a short suy who is exercising the right
to travel may be expelled if he does not satisfy the
conditions in paragraphs 1 or 2, according to whether or
not he is subject to a visa requirement, or if he represents
a threat to public order or public security in the Member
Sute in which he is exercising the right to travel, or to
its international relations.
                          Article 5
Member Sûtes may require persons exercising the right
:o travel to report their presence in their territories.
                                                             S
 ---pagebreak---                                                                                                            Article 5a
                                                                                                          End of stay
                                                                                   1    Persons in a Member State on the basis of the
                                                                                   right to travel granted in this Directive should leave
                                                                                   the Member State's territory without delay if they
                                                                                   no longer satisfy the applicable requirements,
                                                                                   2.   If the fact that the applicalbe requirements will
                                                                                   no longer to be satisfied is predictable, they should
                                                                                   leave the Member State before they cease to satisfy
                                                                                   those requirements.
                         Article 6
Member Sûtes shall bring into force the laws, regu-
lations and administrative provisions necessary to comply
with this Directive by 31 December 1996. They shall
immediately inform the Commission thereof.
When Member Sûtes adopt these provisions, these shall
conuin a reference to this Directive or shall be accom-
panied by such reference at the time of their official
publication. The procedure for such reference shall be
adopted by Member Sûtes.
                         Article 7
This Directive shall enter into force on the 20th day
following its publication in' the Official Journal of the
European Communities.
                         Article 8
This Directive is addressed to the Member Sûtes.
                                                                   ANNEX
                       Conditions for thereadmissionby the Member States of third-country nationals who are unlawfully resident
                       in a Member Sute but who hold aresidencepermit for another Member State (Article 3 (2) ot the
                                                                   Directive)
 ---pagebreak---                                               Annex (-l)(new)
                                              -1. Member States undertake to adhere strictly to
                                              the provisions of the European Convention on the
                                              Protection of Human Rights and Fundamental
                                              Freedoms and not to expel to another Member State
                                              persons who should be afforded protection in their
                                              State on the basis of this Convention.
  unlawfully resident in the territory of another Member bute.
   The provisions do no. affect Member States' obligation* under the Dublin Asylum Convention                .
   «admr^pplicants for asylum who are unlawfully resident ,n another Member Sute.
2. W r e a person covered by point , has e n ^ d «              ^      J      ^     ^      ^      ^     j    S
    | o to another country to which he is certain to be admitted.
     „ . third-counuy nation,, wishes to go to " J * ? ™           i   ^    S    j   ^    S   S    l   S     K
     S S £       f £ Î Z £         = S s ! V b f i e Z ^ X f ™                  tber d o c u m e n t that .Uows
   him to travel, and cash or a bank deposit in order to secure his transportation and his residence in the
   country to which he may be admitted.
3 If a third-country national unlawfully resident in the territory of a Member State refuses to leave
   volÛnurUy^Member Sûtes are required to readmit him in accordance with the guidelines set out below.
    If the person holds a valid residence permit for another Member Sute, the Member Sute which has
    issued the permit is required to readmit him.
     Moreover Member Sûtes must readmit a third-country national in accordance with Article 3 (2) within
     a period of up to two months after the expiration of the validity of the residence permit.
     The obligation to readmit him is subjea to the condition that a request for readmitting him shall be
     lodged S i n one month by the authorities becoming aware of the person's unlawful presence in the
      Member Sute.
 4 The person is to be readmitted after a request has been made by the competent authorities in the
      requeuing Member Sute showing that the person in question holds a valid residence permit for the
      readmitting Member Sute.
      A Member Sute receiving a request in accordance with point 3 must reply to the request within eight
      L ^ S ï e MembeTstate doe's not respond within that time, it will be deemed to have agreed to
      rcadmission, unless it has expressly requested a one-week extension of that time limit.
      Thi- Member Sute to which the request was addressed is required to ukc in, within a month at most,
      l e oetTn it h ï l r e e d to take back. That time limit may be extended by agreement between the two
       Membe!: Sûtes c o ^ e d , upon submission by the requesting Member Sute of an explicit and justified
       application.
       Member Sûtes are to exchange lists of authorities competent to consider requests for readmission and
       of points at borders where readmission can ukc place.
   S The financial costs entailed by readmission are to be met by the person concerned. Where the person is
       Tnable"^ meetT e expenses, the expenses up to the point of readmission are as a rule to be met by the
        Member State requesting readmission.
                                                            to
 ---pagebreak---                                              Amended proposal for a
                                             ÇQVNÇII,PTOÇTIVE
                    on the elimination of controls on persons crossing internal frontiers
     Text proposed by the Commission                      Amendments by Parliament
     COM(95) 347 final - 95/0201(CNS)                      (unchanged unless mentioned below)
     JO n° C 289 of 31.10.95 p. 16-17
  THE COUNCIL OF THE EUROPEAN UNION,
  Having regard to the Treaty establishing the European
  Community, and in particular Article 100 thereof,
  Having regard to the proposal from the Commission,
  Having regard     to   the opinion   of   the  European
  Parliament,
  Having regard to the opinion of the Economic and
  Social Committee,
  Having regard to the opinion of the Committee of the
  Regions,
                                                                        Whereas Article 3 of the Treaty provides for an
                                                                        internal market characterized, inter alia, by the
                                                                        abolition, as between Member States, of obstacles
                                                                        to the free movement of persons and measures
                                                                        concerning the entry and movement of persons in
                                                                        the internal market:
Whereas Article 7a of the Treaty provides for the estab-
lishment of the internal market, which is to comprise an              Whereas Article 7A of the Treaty pieyjrjerl for the
area without internal frontiers in which the free                     establishment, by 31 December 1992. of the
movement of goods, persons, services and capital is                   internal market, to comprise an area without
ensured in accordance with the provisions of the Treaty;              internal frontiers in which the free movement of
                                                                      goods, persons, services and capital is ensured in
                                                                      accordance with the provisions of the Treaty;
                                                          i\
 ---pagebreak---  Whereas the establishment of the internal /market
 consequently calls for the abolition of all controls and
 formalities for persons crossing internal frontiers;
 whereas, in this context, seaports and airports stand
 apart, as they serve both traffic with other Member
 Sûtes and traffic with non-member countries; whereas
 application of the freedom-of-movement principle should
 nevertheless result in the elimination of controls and
 formalities for persons taking an intra-Community flight
 or making an intra-Community sea crossing;
 Whereas the Community and the Member States have
 decided to take the measures they deem essential for
 eliminating the underlying reasons for the application of
 frontier controls and formalities under national law;
Whereas the relevant accompanying measures have been
introduced satisfactorily;
Whereas, in order to fulfil the clear and unconditional
obligation enshrined in Article 7a, and in the interest of
legal certainty, it is necessary in these circumstances to
confirm that frontier controls and formalities within the
Community are to be abolished;
Whereas this Directive should relate both to controls or
formalities applied by public authorities and to those
applied by other persons under national rules;
Whereas it is necessary to stipulate the conditions in
which a Member Sute may temporarily reinstate
controls at internal frontiers in the event of a serious
threat to public policy or public security,
HAS ADOPTED THIS DIRECTIVE:
                          Article 1
 1. All persons, whatever their nationality, shall be able
 to cross Member Sûtes' frontiers within die Community
 at any point, without such crossing being subjea to any
 frontier control or formality.
 2. The elimination of controls and formalities for
 persons crossing internal frontiers shall not affect the
 exercise of the law-enforcement powers conferred on the
 competent authorities by the legislation of each Member
 Sute over the whole of its territory, nor any obligations
 to possess and carry documents which are laid down by
 its legislation.
                                                           il
 ---pagebreak---                            Article 2
 1.    A Member Sute may, in the event of a serious
threat to public policy or public security, reinstate
controls at its frontiers within the Community for a
period of not more than 30 days. Any Member Sute
uking such action shall immediately notify the
Commission and the other Member Sûtes, supplying
them with all the appropriate information.
2.     Where the serious threat to public policy security
lasts longer than 30 days, the Member State concerned
may mainuin the controls at its frontiers within the
Community for renewable periods of not more than 30
days. Each renewal shall be decided after the other
Member Sûtes and the Commission have been
consulted.
At the Member Sute's request, the Commission and the
other Member Sûtes shall treat in confidence the
information it supplies to justify mainuining these
controls.
3.     The controls referred to in paragraphs 1 and 2 and
the length of the period during which they are applied
shall not exceed what is strictly necessary to respond to
the serious threat.
                           Article 3
For the purposes of this Directive:
 1. 'a Member State's frontier within the Community'
    means:
    — the Member Sûtes' common land frontiers,
        including the rail or road terminals for links by
        bridge or tunnel between Member Sûtes,
    — their airports for intra-Community flights,
    — their seaports for intra-Community sea crossings;
2. 'intra-Community flight' means the movement of an
                                                              2. 'intra-Community flight' means the movement
    aircraft between two Community airports, without
                                                              of an aircraft between two Community airports,
    any stopovers, and which does not surt from or end
    at a non-Community airport;                               without any stopovers outside the Community, and
                                                              which does not start from or end at a non-
                                                              Community airport;
 3. Intra-Community sea crossing' means the movement          3. 'intra-Community sea-crossing'     means the
     between two Community ports, without any inter-          movement between two Community ports, without
     mediate calls, of a vessel plying regularly between two  any intermediate calls outside the Community, of a
     or more specified Community ports;                       vessel plying regularly between two or more
                                                              specified Community ports;
                                                           13
 ---pagebreak--- 4   '/f'/n/iff     tiftilful  ht jtttmuhl/'           tw*u%
          ' / ' / *iy,t,l- 'A '**   ' " / M . . f > £ ' / ' *>• it/tt,t!,!H U'/tl'*TA. V/
           die public authorities of a Member Sute or by
          other persons, under the national legislation of a
           Member Sute,
    — any formality imposed on a person in connection
          with the crossing of an internal frontier and to be
           fulfilled on the occasion of such crossing.
                                         Article 4
No later than two years after implemenution of this
Directive, and every three years thereafter, the
Commission shall report on its application to the
 European Parliament, the Council, the Economic and
Social Comittee and the Committee of the Regions.
                                        Article 5
Member Sûtes shall bring into force the laws, regu-
lations and administrative provisions necessary to comply
with this Directive not later than 31 December 1996.
They shall immediately inform the Commission thereof
and shall also transmit to it a uble showing the corre-
lation between each of the provisions of this Directive
and the relevant provisions of national law, irrespective
of whether these predate this Directive or are approved
for the specific purpose of transposing it.
When Member Sûtes adopt these provisions, these shall
conuin a reference to this Directive or shall be accom-
panied by such reference at the time of their official
publication. The procedure for such reference shall be
adopted by Member Sûtes.
                                        Article 6
This Directive shall enter into force on the 20th day
following its publication in the Official Journal of the
 European Communities.
                                         Article 7
This Directive is addressed to the Member Sûtes.
                                                                                          n
 ---pagebreak---                                                                     ISSN 0254-1475
                                                             COM(97) 106 final
                                              DOCUMENTS
EN                                                                    il io 06
                                    Catalogue number : CB-CO-97-097-EN-C
                                                              ISBN 92-78-16748-7
Office for Official Publications of the European Communities
L-2985 Luxembourg