Right of Union citizens and their family members to move and reside freely within the territory of the Member States
European Parliament and Council 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC.
The Directive merges into a single instrument all the legislation on the right of entry and residence for Union citizens, consisting of two regulations and nine directives. This simplification aims to make it easier not only for the general public but also for public authorities to exercise their rights. The Directive also sets out to reduce to the bare minimum the formalities which Union citizens and their families must complete in order to exercise their right of residence.
This proposal is designed to regulate:
the right of permanent residence;
restrictions on the aforementioned rights on grounds of public policy, public security or public health.
Right to move and right of residence for up to three months
All Union citizens have the right to enter another Member State by virtue of having an identity card or valid passport. Under no circumstances can an entry or exit visa be required. Where the citizens concerned do not have travel documents, the host Member State must afford them every reasonable means in obtaining the requisite documents or having them sent.
Family members who do not have the nationality of a Member State enjoy the same rights as the citizen who they have accompanied. They may be subject to a short-stay visa requirement under Regulation (EC) No 539/2001. Residence permits will be deemed equivalent to short-stay visas.
For stays of less than three months, the only requirement on Union citizens is that they possess a valid identity document or passport. The host Member State may require the persons concerned to register their presence in the country within a reasonable and non-discriminatory period of time.
Right of residence for more than three months
The right of residence for more than three months remains subject to certain conditions. Applicants must:
either be engaged in economic activity (on an employed or self-employed basis);
or have sufficient resources and sickness insurance to ensure that they do not become a burden on the social services of the host Member State during their stay. The Member States may not specify a minimum amount which they deem sufficient, but they must take account of personal circumstances;
or be following vocational training as a student and have sufficient resources and sickness insurance to ensure that they do not become a burden on the social services of the host Member State during their stay;
or be a family member of a Union citizen who falls into one of the above categories.
Residence permits are abolished for Union citizens. However, Member States may require them to register with the competent authorities within a period of not less than three months as from the date of arrival. Proof of registration will be issued immediately on presentation of:
an identity card or valid passport;
proof that the above conditions are complied with (see Article 9 of the Directive on the proof required for each category of citizen). Union citizens engaged in training must show, by means of a statement or any other means, that they have sufficient resources for themselves and for the members of their families to ensure that they do not become a burden on the social services of the host Member State. This will be sufficient to prove that they comply with the resources condition.
Family members of Union citizens who are not nationals of a Member State must apply for a residence permit for family members of Union citizens. These permits are valid for five years from their date of issue.
Under certain conditions the death of the Union citizen, his or her departure from the host Member State, divorce, annulment of marriage or termination of partnership does not affect the right of family members who are not nationals of a Member State to continue residing in the Member State in question.
Right of permanent residence
Union citizens acquire the right of permanent residence in the host Member State after a five-year period of uninterrupted legal residence, provided that an expulsion decision has not been enforced against them. This right of permanent residence is no longer subject to any conditions. The same rule applies to family members who are not nationals of a Member State and who have lived with a Union citizen for five years. The right of permanent residence is lost only in the event of more than two successive years' absence from the host Member State.
Union citizens who so request receive a document certifying their right to permanent residence. The Member States issue to third country family members permanent residence permits which are valid indefinitely and renewable automatically every ten years no later than six months after the application is made. Citizens can use any form of evidence generally accepted in the host Member State to prove that they have been continuously resident.
Common provisions on the right of residence and right of permanent residence
Union citizens qualifying for the right of residence or the right of permanent residence and the members of their family also benefit from equal treatment with host-country nationals in the areas covered by the Treaty. However, the host Member State is not obliged to grant entitlement to social security during the first three months of residence to persons other than employed or self-employed workers and the members of their family. Equally, host Member States are not required, prior to the acquisition of the permanent right of residence, to grant maintenance aid for studies, including for vocational training, in the form of grants or loans to these same persons. Family members, irrespective of their nationality, will be entitled to engage in economic activity on an employed or self-employed basis.
Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health
Union citizens or members of their family may be expelled from the host Member State on grounds of public policy, public security or public health. Under no circumstances may an expulsion decision be taken on economic grounds. Measures affecting freedom of movement and residence must comply with the proportionality principle and be based exclusively on the personal conduct of the individual concerned. Such conduct must represent a sufficiently serious and present threat which affects the fundamental interests of the state.
Previous criminal convictions do not automatically justify expulsion. The mere fact that the entry documents used by the individual concerned have expired does not constitute grounds for such a measure.
In any event, before taking an expulsion decision, the Member State must assess a number of factors such as the period for which the individual concerned has been resident, his or her age, degree of integration and family situation in the host Member State and links with the country of origin. Only in exceptional circumstances, for overriding considerations of public security, can expulsion orders be served on a Union citizen if he has resided in the host country for ten years or if he is a minor.
The person concerned by a decision refusing leave to enter or reside in a Member State must be notified of that decision under conditions enabling him to understand its content and effects. The grounds for the decision must be given and the person concerned must be informed of the appeal procedures available to them. Except in emergencies, the subject of such decisions must be allowed at least one month in which to leave the Member State.
Lifelong exclusion orders cannot be issued under any circumstances. Persons concerned by exclusion orders can apply for the situation to be reviewed after three years. The Directive also makes provision for a series of procedural guarantees. In particular the individuals concerned have access to judicial review and, where appropriate, to administrative review in the host Member State.
Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.
This Directive does not prevent the application of national legislation or administrative arrangements providing for more favorable treatment.
With effect from 30 April 2006, Articles 10 and 11 of Regulation (EEC) No 1612/68, Directive 64/221/EC, Directive 68/360/EC, Directive 72/194/EEC, Directive 73/148/EEC, Directive 75/34/EEC, Directive 75/35/EEC, Directive 90/364/EEC, Directive 90/365/EEC and Directive 93/96/EEC are withdrawn. Commission Regulation (EC) No 635/2006 of 25 April 2006 also repeals Regulation No 1251/70 pursuant to the replacement of the content of the latter with the new provisions of this Directive.
Commission Regulation (EEC) No 1251/70 has also been repealed and replaced by this Directive.
On 10 December 2008 the Commission presented a Report on the implementation of the Directive to the Council and the European Parliament.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
OJ L 158 of 30.04.2004
Communication from the Commission to the European Parliament and the Council of 2 July 2009 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 [COM(2009) 313 final – Not published in the Official Journal].
This Communication provides Member States with guidance for better application of Directive 2004/38/EC.
This guidance clarifies the rights of citizens and their family members and enlightens Member States about the measures they may take, particularly to combat abuses of rights and marriages of convenience.
In order to guarantee the correct application of Directive 2004/38/EC, the Commission undertakes to implement the following initiatives:
the updating of a guide for citizens to give them a better understanding of their rights;
the organisation of bilateral meetings with Member States.
Last updated: 28.11.2009