52004AG0006

Common Position (EC) No 6/2004

adopted by the Council on 5 December 2003

with a view to adopting Directive 2004/.../EC of the European Parliament and of the Council of ... 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

(2004/C 54 E/02)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 12, 18, 40, 44 and 52 thereof,

Having regard to the proposal from the Commission(1),

Having regard to the Opinion of the European Economic and Social Committee(2),

Having regard to the Opinion of the Committee of the Regions(3),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(4),

Whereas:

(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.

(4) With a view to remedying this sector-by-sector, piecemeal approach to the right of free movement and residence and facilitating the exercise of this right, there needs to be a single legislative act to amend Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community(5), and to repeal the following acts: Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families(6), Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services(7), Council Directive 90/364/EEC of 28 June 1990 on the right of residence(8), Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity(9) and Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students(10).

(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of "family member" should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(6) In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

(7) The formalities connected with the free movement of Union citizens within the territory of Member States should be clearly defined, without prejudice to the provisions applicable to national border controls.

(8) With a view to facilitating the free movement of family members who are not nationals of a Member State, those who have already obtained a residence card should be exempted from the requirement to obtain an entry visa within the meaning of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement(11) or, where appropriate, of the applicable national legislation.

(9) Union citizens should have the right of residence in the host Member State for a period not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a valid identity card or passport, without prejudice to a more favourable treatment applicable to job-seekers as recognised by the case-law of the Court of Justice.

(10) Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions.

(11) The fundamental and personal right of residence in another Member State is conferred directly on Union citizens by the Treaty and is not dependent upon their having fulfilled administrative procedures.

(12) For periods of residence of longer than three months, Member States should have the possibility to require Union citizens to register with the competent authorities in the place of residence, attested by a registration certificate issued to that effect.

(13) The residence card requirement should be restricted to family members of Union citizens who are not nationals of a Member State for periods of residence of longer than three months.

(14) The supporting documents required by the competent authorities for the issuing of a registration certificate or of a residence card should be comprehensively specified in order to avoid divergent administrative practices or interpretations constituting an undue obstacle to the exercise of the right of residence by Union citizens and their family members.

(15) Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.

(16) 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 should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The host Member State should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion. In no case should an expulsion measure be adopted against workers, self-employed persons or job-seekers as defined by the Court of Justice save on grounds of public policy or public security.

(17) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.

(18) In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.

(19) Certain advantages specific to Union citizens who are workers or self-employed persons and to their family members, which may allow these persons to acquire a right of permanent residence before they have resided five years in the host Member State, should be maintained, as these constitute acquired rights, conferred by Commission Regulation (EEC) No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State(12) and Council Directive 75/34/EEC of 17 December 1974 concerning the right of nationals of a Member State to remain in the territory of another Member State after having pursued therein an activity in a self-employed capacity(13).

(20) In accordance with the prohibition of discrimination on grounds of nationality, all Union citizens and their family members residing in a Member State on the basis of this Directive should enjoy, in that Member State, equal treatment with nationals in areas covered by the Treaty, subject to such specific provisions as are expressly provided for in the Treaty and secondary law.

(21) However, it should be left to the host Member State to decide whether it will grant social assistance during the first three months of residence or for a longer period in the case of job-seekers, or maintenance assistance for studies, including vocational training, prior to acquisition of the right of permanent residence, to Union citizens other than those who are workers or self-employed persons or who retain that status, and to their family members.

(22) The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security or public health. In order to ensure a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their family members may be denied leave to enter or may be expelled, this Directive should replace Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals, which are justified on grounds of public policy, public security or public health(14).

(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.

(24) Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989.

(25) Procedural safeguards should also be specified in detail in order to ensure a high level of protection of the rights of Union citizens and their family members in the event of their being denied leave to enter or reside in another Member State, as well as to uphold the principle that any action taken by the authorities must be properly justified.

(26) In all events, judicial redress procedures should be available to Union citizens and their family members who have been refused leave to enter or reside in another Member State.

(27) In line with the case-law of the Court of Justice prohibiting Member States from issuing orders excluding for life persons covered by this Directive from their territory, the right of Union citizens and their family members who have been excluded from the territory of a Member State to submit a fresh application after a reasonable period, and in any event after a three year period from enforcement of the final exclusion order, should be confirmed.

(28) To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures.

(29) This Directive should not affect more favourable national provisions.

(30) With a view to examining how further to facilitate the exercise of the right of free movement and residence, a report should be prepared by the Commission in order to evaluate the opportunity to present any necessary proposals to this effect, notably on the extension of the period of residence with no conditions.

(31) This Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In accordance with the prohibition of discrimination contained in the Charter Member States should implement this Directive without discrimination between the beneficiaries of this Directive on grounds of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinion, membership of an ethnic minority, property, birth, disability, age or sexual orientation,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

General provisions

Article 1

Subject

This Directive lays down:

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.

Article 2

Definitions

For the purposes of this Directive:

1. "Union citizen" means any person having the nationality of a Member State;

2. "Family member" means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

3. "Host Member State" means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.

Article 3

Beneficiaries

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

CHAPTER II

Right of exit and entry

Article 4

Right of exit

1. Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State.

2. No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies.

3. Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality.

4. The passport shall be valid at least for all Member States and for countries through which the holder must pass when travelling between Member States. Where the law of a Member State does not provide for identity cards to be issued, the period of validity of any passport on being issued or renewed shall be not less than five years.

Article 5

Right of entry

1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.

No entry visa or equivalent formality may be imposed on Union citizens.

2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

3. The host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10.

4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

5. The Member State may require the person concerned to report his/her presence within its territory within a reasonable and non-discriminatory period of time. Failure to comply with this requirement may make the person concerned liable to proportionate and non-discriminatory sanctions.

CHAPTER III

Right of residence

Article 6

Right of residence for up to three months

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

Article 7

Right of residence for more than three months

1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) 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 in the host Member State; or

(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

- have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they 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; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).

3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as the result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.

4. By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner.

Article 8

Administrative formalities for Union citizens

1. Without prejudice to Article 5(5), for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities.

2. The deadline for registration may not be less than three months from the date of arrival. A registration certificate shall be issued immediately, stating the name and address of the person registering and the date of the registration. Failure to comply with the registration requirement may render the person concerned liable to proportionate and non-discriminatory sanctions.

3. For the registration certificate to be issued, Member States may only require that

- Union citizens to whom point (a) of Article 7(1) applies present a valid identity card or passport, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed persons;

- Union citizens to whom point (b) of Article 7(1) applies present a valid identity card or passport and provide proof that they satisfy the conditions laid down therein;

- Union citizens to whom point (c) of Article 7(1) applies present a valid identity card or passport, provide proof of enrolment at an accredited establishment and of comprehensive sickness insurance cover and the declaration or equivalent means referred to in point (c) of Article 7(1). Member States may not require this declaration to refer to any specific amount of resources.

4. Member States may not lay down a fixed amount which they regard as "sufficient resources" but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.

5. For the registration certificate to be issued to family members of Union citizens, who are themselves Union citizens, Member States may require the following documents to be presented:

(a) a valid identity card or passport;

(b) a document attesting to the existence of a family relationship or of a registered partnership;

(c) where appropriate, the registration certificate of the Union citizen whom they are accompanying or joining;

(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen.

Article 9

Administrative formalities for family members who are not nationals of a Member State

1. Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.

2. The deadline for submitting the residence card application may not be less than three months from the date of arrival.

3. Failure to comply with the requirement to apply for a residence card may make the person concerned liable to proportionate and non-discriminatory sanctions.

Article 10

Issue of residence cards

1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called "Residence card of a family member of a Union citizen" no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

2. For the residence card to be issued, Member States shall require presentation of the following documents:

(a) a valid passport;

(b) a document attesting to the existence of a family relationship or of a registered partnership;

(c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining;

(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen.

Article 11

Validity of the residence card

1. The residence card provided for by Article 10(1) shall be valid for five years from the date of issue or for the envisaged period of residence of the Union citizen, if this period is less than five years.

2. The validity of the residence card shall not be affected by temporary absences not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

Article 12

Retention of the right of residence by family members in the event of death or departure of the Union citizen

1. Without prejudice to the second subparagraph, the Union citizen's death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

2. Without prejudice to the second subparagraph of paragraph 1, the Union citizen's death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen's death.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they 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 in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on a personal basis.

3. The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.

Article 13

Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership

1. Without prejudice to the second subparagraph, divorce, annulment of the Union citizen's marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:

(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children; or

(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they 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 in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on a personal basis.

Article 14

Retention of the right of residence

1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2. Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically.

3. An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State.

4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

(a) the Union citizens are workers or self-employed persons, or

(b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.

Article 15

Procedural safeguards

1. The procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health.

2. Expiry of the identity card or passport on the basis of which the person concerned entered the host Member State and was issued with a registration certificate or residence card shall not constitute a ground for expulsion from the host Member State.

3. The host Member State may not impose a ban on entry in the context of an expulsion decision to which paragraph 1 applies.

CHAPTER IV

Right of permanent residence

Section I

Eligibility

Article 16

General rule for Union citizens and their family members

1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.

Article 17

Exemptions for persons no longer working in the host Member State and their family members

1. By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:

(a) workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years.

If the law of the host Member State does not grant the right to an old age pension to certain categories of self-employed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60;

(b) workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work.

If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in the host Member State, no condition shall be imposed as to length of residence;

(c) workers or self-employed persons who, after three years of continuous employment and residence in the host Member State, work in an employed or self-employed capacity in another Member State, while retaining their place of residence in the host Member State, to which they return, as a rule, each day or at least once a week.

For the purposes of entitlement to the rights referred to in points (a) and (b), periods of employment spent in the Member State in which the person concerned is working shall be regarded as having been spent in the host Member State.

Periods of involuntary unemployment duly recorded by the relevant employment office, periods not worked for reasons not of the person's own making and absences from work or cessation of work due to illness or accident shall be regarded as periods of employment.

2. The conditions as to length of residence and employment laid down in point (a) of paragraph 1 and the condition as to length of residence laid down in point (b) of paragraph 1 shall not apply if the worker's or the self-employed person's spouse or partner as referred to in point 2(b) of Article 2 is a national of the host Member State or has lost the nationality of that Member State by marriage to that worker or self-employed person.

3. Irrespective of nationality, the family members of a worker or a self-employed person who are residing with him in the territory of the host Member State shall have the right of permanent residence in that Member State, if the worker or self-employed person has acquired himself the right of permanent residence in that Member State on the basis of paragraph 1.

4. If, however, the worker or self-employed person dies while still working but before acquiring permanent residence status in the host Member State on the basis of paragraph 1, his family members who are residing with him in the host Member State shall acquire the right of permanent residence there, on condition that:

(a) the worker or self-employed person had, at the time of death, resided continuously on the territory of that Member State for two years; or

(b) the death resulted from an accident at work or an occupational disease; or

(c) the surviving spouse lost the nationality of that Member State following marriage to the worker or self-employed person.

Article 18

Acquisition of the right of permanent residence by certain family members who are not nationals of a Member State

Without prejudice to Article 17, the family members of a Union citizen to whom Articles 12(2) and 13(2) apply, who satisfy the conditions laid down therein, shall acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State.

Section II

Administrative formalities

Article 19

Document certifying permanent residence for Union citizens

1. Upon application Member States shall issue Union citizens entitled to permanent residence, after having verified duration of residence, with a document certifying permanent residence.

2. The document certifying permanent residence shall be issued as soon as possible.

Article 20

Permanent residence card for family members who are not nationals of a Member State

1. Member States shall issue family members who are not nationals of a Member State entitled to permanent residence with a permanent residence card within six months of the submission of the application. The permanent residence card shall be renewable automatically every ten years.

2. The application for a permanent residence card shall be submitted before the residence card expires. Failure to comply with the requirement to apply for a permanent residence card may render the person concerned liable to proportionate and non-discriminatory sanctions.

3. Interruption in residence not exceeding two consecutive years shall not affect the validity of the permanent residence card.

Article 21

Continuity of residence

For the purposes of this Directive, continuity of residence may be attested by any means of proof in use in the host Member State. Continuity of residence is broken by any expulsion decision duly enforced against the person concerned.

CHAPTER V

Provisions common to the right of residence and the right of permanent residence

Article 22

Territorial scope

The right of residence and the right of permanent residence shall cover the whole territory of the host Member State. Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals.

Article 23

Related rights

Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there.

Article 24

Equal treatment

1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

2. By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, that consist in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.

Article 25

General provisions concerning residence documents

1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.

2. All documents mentioned in paragraph 1 shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents.

Article 26

Checks

Member States may carry out checks on compliance with any requirement deriving from their national legislation for non-nationals always to carry their registration certificate or residence card, provided that the same requirement applies to their own nationals as regards their identity card. In the event of failure to comply with this requirement, Member States may impose the same sanctions as those imposed on their own nationals for failure to carry their identity card.

CHAPTER VI

Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health

Article 27

General principles

1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

3. In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting his/her presence within the territory, as provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.

4. The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy, public security, or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.

Article 28

Protection against expulsion

1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:

(a) have resided in the host Member State for the previous ten years; or

(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.

Article 29

Public health

1. The only diseases justifying measures restricting freedom of movement shall be the diseases with epidemic potential as defined by the relevant instruments of the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State.

2. Diseases occurring after a three-month period from the date of arrival shall not constitute grounds for expulsion from the territory.

3. Where there are serious indications that it is necessary, Member States may, within three months of the date of arrival, require persons entitled to the right of residence to undergo, free of charge, a medical examination to certify that they are not suffering from any of the conditions referred to in paragraph 1. Such medical examinations may not be required as a matter of routine.

Article 30

Notification of decisions

1. The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.

2. The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.

3. The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification.

Article 31

Procedural safeguards

1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

2. Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except:

- where the expulsion decision is based on a previous judicial decision; or

- where the persons concerned have had previous access to judicial review; or

- where the expulsion decision is based on imperative grounds of public security under Article 28(3).

3. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.

4. Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.

Article 32

Duration of exclusion orders

1. Persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion.

The Member State concerned shall reach a decision on this application within six months of its submission.

2. The persons referred to in paragraph 1 shall have no right of entry to the territory of the Member State concerned while their application is being considered.

Article 33

Expulsion as a penalty or legal consequence

1. Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27, 28 and 29.

2. If an expulsion order, as provided for in paragraph 1, is enforced more than two years after it was issued, the Member State shall check that the individual concerned is currently and genuinely a threat to public policy or public security and shall assess whether there has been any material change in the circumstances since the expulsion order was issued.

CHAPTER VII

Final provisions

Article 34

Publicity

Member States shall disseminate information concerning the rights and obligations of Union citizens and their family members on the subjects covered by this Directive, particularly by means of awareness-raising campaigns conducted through national and local media and other means of communication.

Article 35

Abuse of rights

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. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.

Article 36

Sanctions

Member States shall lay down provisions on the sanctions applicable to breaches of national rules adopted for the implementation of this Directive and shall take the measures required for their application. The sanctions laid down shall be effective and proportionate. Member States shall notify the Commission of these provisions not later than ...(15) and as promptly as possible in the case of any subsequent changes.

Article 37

More favourable national provisions

The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive.

Article 38

Repeals

1. Articles 10 and 11 of Regulation (EEC) No 1612/68 shall be repealed with effect from ...(16).

2. 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 shall be repealed with effect from ...(17).

3. References made to the repealed provisions and Directives shall be construed as being made to this Directive.

Article 39

Report

No later than ...(18) the Commission shall submit a report on the application of this Directive to the European Parliament and the Council, together with any necessary proposals, notably on the opportunity to extend the period of time during which Union citizens and their family members may reside in the territory of the host Member State without any conditions. The Member States shall provide the Commission with the information needed to produce the report.

Article 40

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ...(19).

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive together with a table showing how the provisions of this Directive correspond to the national provisions adopted.

Article 41

Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

Article 42

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 270 E, 25.9.2001, p. 150.

(2) OJ C 149, 21.6.2002, p. 46.

(3) OJ C 192, 12.8.2002, p. 17.

(4) Opinion of the European Parliament of 11 February 2003 (not yet published in the Official Journal), Council Common Position of 5 December 2003 and Position of the European Parliament of ... (not yet published in the Official Journal).

(5) OJ L 257, 19.10.1968, p. 2. Regulation as last amended by Regulation (EEC) No 2434/92 (OJ L 245, 26.8.1992, p. 1).

(6) OJ L 257, 19.10.1968, p. 13. Directive as last amended by the 2003 Act of Accession.

(7) OJ L 172, 28.6.1973, p. 14.

(8) OJ L 180, 13.7.1990, p. 26.

(9) OJ L 180, 13.7.1990, p. 28.

(10) OJ L 317, 18.12.1993, p. 59.

(11) OJ L 81, 21.3.2001, p. 1. Regulation as last amended by Regulation (EC) No 453/2003 (OJ L 69, 13.3.2003, p. 10).

(12) OJ L 142, 30.6.1970, p. 24.

(13) OJ L 14, 20.1.1975, p. 10.

(14) OJ 56, 4.4.1964, p. 850. Directive as last amended by Directive 75/35/EEC (OJ 14, 20.1.1975, p. 14).

(15) Two years from the date of entry into force of this Directive.

(16) Two years from the date of entry into force of this Directive.

(17) Two years from the date of entry into force of this Directive.

(18) Four years from the date of entry into force of this Directive.

(19) Two years from the date of entry into force of this Directive.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

The Commission submitted its proposal to the Council on 2 July 2001(1).

The Committee of the Regions delivered its opinion on 13 March 2002(2).

The European Economic and Social Committee delivered its Opinion on 24 April 2002(3).

The European Parliament delivered its Opinion at first reading on 11 February 2003, adopting 82 amendments to the initial proposal.

In the light of the outcome of the European Parliament's first reading, the Commission adopted an amended proposal on 15 April 2003.

The proposal is based on Articles 12, 18(2), 40, 44 and 52 of the EC Treaty. It has to be adopted in codecision with the European Parliament, the Council acting by qualified majority.

Under the codecision procedure (Article 251 EC Treaty), on 5 December 2003 the Council, having regard to Parliament's first reading, adopted its common position on the draft Directive.

II. OBJECTIVE

The proposed Directive fits into the legal and political environment established by the citizenship of the Union: Union citizens should, mutatis mutandis, be able to move between Member States on similar terms as nationals of a Member State moving around or changing their place of residence in their own country.

The proposal serves several purposes:

- to bring together the complex corpus of existing legislation into a single legislative instrument establishing a single system applicable to all categories of person (workers, students, non-active persons);

- to streamline the current legislation, taking into consideration the case law of the ECJ and the provisions of the EU Charter of Fundamental Rights regarding family unity and the protection of family life;

- to simplify the conditions and administrative formalities associated with the exercise of the right of free movement and residence in the Member States;

- to facilitate the right of free movement and residence of family members of a Union citizen, irrespective of nationality.

III. ANALYSIS OF THE COMMON POSITION AS SET OUT IN 13263/03

The Council's common position is fully consistent with the main objective of the Commission's proposal to facilitate the exercise of the right to free movement and residence by reducing administrative formalities, by providing a clearer definition of the status of family members, by creating a permanent right of residence acquired after a period of five years of legal residence in a Member State and by restricting the possibility for Member States to refuse or terminate right of residence on the grounds of public policy.

However, the Council has made a number of changes compared to the Commission's original proposal, which the Commission has been able to accept. In addition to the changes of substance mentioned below, the common position incorporates a number of editorial and technical changes, in order to clarify certain provisions, to ensure internal consistency and to update terminology.

A. European Parliament amendments which have been accepted by the Council in its common position

Amendments 3, 5, 6, 8, 9, 10, 12, 13, 25, 28, 34, 39, 40, 55, 59, 61, 64, 68, 71, 72, 74, 78, 79, 80, 82, 83, 85, 86, 89, 90 and 99 have been fully incorporated in the common position.

Amendments 7, 11, 20, 24, 30, 33, 41, 47, 49, 50, 51, 52, 54, 55, 64, 68, 74, 77, 78, 79, 82, 83, 86, 108 and 113 have been partially incorporated in the common position. In particular:

Amendment 7 (Recital 9): this amendment stipulates that stays which do not exceed six months should not be subject to any conditions. After careful consideration, the Council agreed to set the period at three months as in the existing acquis, in accordance with new Article 6. However, a more favourable treatment is applicable to job-seekers as recognised by the case-law of the Court of Justice.

Amendment 11 (Recital 20): this amendment has been incorporated in the common position slightly changed, in order to ensure consistency with the new text of Article 21.

Amendment 20 (Article 3(2)): this amendment aims at facilitating entry and residence for family members not covered by Article 2 in cases where there are serious health or humanitarian grounds for doing so. This wording has been partially included in the common position, after deletion of the reference to humanitarian grounds, as the Council considers that they already constitute part of the commitments undertaken by the Member States in the field of fundamental rights.

Amendment 24 (Article 6(2)): the Council has included the amendment in its common position, but has not retained the part of the amendment which sets five working days for issuing a visa to third country national family members. The Council considers this deadline to be too strict and has replaced it with the wording "as soon as possible on the basis of an accelerated procedure", which guarantees flexibility and a prompt issue of visas.

Amendment 30 (Article 7(3)): this amendment does not imply any changes to the text but simply a relocation of Article 8(7) and has been included in the common position. Nevertheless, the wording of point (c) has been amended by the Council, in order to make it clear that in this particular situation the status of worker shall be retained for no less than six months.

Amendment 33 (Article 8(2)): the Council has not retained the part of the amendment which states that penalties should be administrative, preferring to leave Member States to decide on the nature of applicable sanctions, in conformity with their national legislation.

Amendment 41 (Article 11(2)): the text of the common position differs from this amendment simply because it imposes a time limit of a year also for absences due to pregnancy or childbirth.

Amendments 47, 49, 50 and 51 (Article 13(1) and (2), points (a) and (b)): these amendments, which add a reference to the termination of partnerships covered by point (b) of Article 2(2), have been included in the common position, but have been restricted to registered partnerships in line with the new text of Article 2. Moreover, in point (a) the prior duration of the marriage or partnership has been extended to three years, which the Council considers to be a fair duration in order to limit abuses.

Amendment 52 (Article 13(2), point (c)): this amendment contains details of a number of difficult situations which would justify continued entitlement to the right of residence after divorce, annulment of marriage or termination of partnership. The amendment has been included in the common position, but without the reference to the humanitarian grounds.

Amendment 54 (Article 15): this new Article replaces the text of the former Article 24 (which has been deleted); it is considered more logical to locate it at the end of Chapter III as removal for reasons other than public order or public security is not possible once the person concerned has acquired permanent right of residence. A first paragraph, which has been added to make it clear that the right of residence is retained as long as the conditions for residence are complied with, has been transferred to the previous Article.

Amendment 55 (Article 16(3)): this amendment has been included in the common position, but the wording has been changed in order not to impose any time limit for absences for compulsory military service.

Amendment 64 (Article 20(3)): this amendment makes it clear that breaks in residence must last for more than two years at a time if they are to affect the duration of the permanent residence card and has been included in the common position.

Amendment 108 (Article 24(2)): the Council has accepted this amendment adding that the host Member State is not obliged to confer entitlement to social assistance during the first three months of residence, in line with new Article 6a.

Amendment 68 (Article 25(1)): this amendment makes the text clearer and specifies that the person concerned may prove entitlement to the rights stemming from the Directive by any other means.

Amendment 74 (Article 27(3)): the addition of a reference to a period of three months is to cover the situation of Member States which do not introduce the requirement to register.

Amendment 77 (Article 29(1)): a number of amendments were proposed to this paragraph, which have been included in the common position. The Council has replaced the reference to the International Health Regulation of 1951 by a more general reference to relevant instruments of the WHO.

Amendment 78 (Article 29(2)): reference to a three-month period instead of to the date of registration or the date of issue of the residence card is more in keeping with the structure of the Directive and will also encompass the situation of those Member States which do not introduce the registration requirement. Reference to refusal of the permanent residence card has been removed as it cannot be refused for reasons of public health.

Amendment 79 (Article 29(3)): reference to a three-month period is designed to restrict the period during which Member States may require persons to undergo a medical examination; this is consistent with the text of the previous paragraph.

Amendment 82 (Article 30(3)): there is now a single time limit for leaving the territory, namely one month from the date of notification.

Amendment 83 (Article 31(1)): this amendment makes it clear that there must always be judicial redress possibilities and that administrative redress is also possible if it is provided for by the host Member State.

Amendment 113 (Article 31(2)): this amendment has been incorporated in the common position as reworded in the amended Commission proposal. It foresees suspension of the enforcement of an expulsion decision, as long as a decision on the interim order to suspend the expulsion has not been taken. However, the Council decided to introduce a number of exceptions, which in its opinion do no affect the main purpose of the provision. These exceptions aim to exclude the case where the expulsion decision is based on a previous judicial decision, or where the persons concerned have had previous access to judicial review, or where the decision is based on imperative grounds of public security.

Amendment 86 (Article 32(1)): the amendments to the first subparagraph make the text clearer. The six-month deadline which replaces the three-month deadline in the second subparagraph is more realistic and has been incorporated in the common position.

B. European Parliament Amendments which have been rejected by the Council

Amendment 2 (former Recital 4): this amendment stresses that mobility of workers and self-employed persons is also one of the Union's policy priorities: it has not been included in the common position following a general approach of simplifying the text.

Amendment 11: this amendment proposed to former Recital 19 cannot be accepted, because it is inconsistent with the new wording of Article 24.

Amendments 4, 14, 15 and 16: the text of these amendments recognises as family members the spouse and registered partner, irrespective of sex, on the basis of the relevant national legislation, and the unmarried partner, irrespective of sex, with whom the Union citizen has a durable relationship, if the legislation or practice of the host and/home Member States treats unmarried couples and married couples in a corresponding manner and in accordance with the conditions laid down in any such legislation. These amendments have not be accepted for the following reasons:

With regard to marriage, the Council has been reluctant to opt for a definition of the term "spouse" which makes a specific reference to spouses of the same sex. For the moment only two Member States have legal provisions for marriages between partners of the same sex. Moreover, in its case-law the Court of Justice has made it clear that, according to the definition generally accepted by the Member States, the term "marriage" means a union between two persons of the opposite sex.

With regard to partners, whether they are registered partners or unmarried partners, the Council is of the opinion that recognition of such situations must be based exclusively on the legislation of the host Member State. Recognition for purposes of residence of non-married couples in accordance with the legislation of other Member States could pose problems for the host Member State if its family law does not recognise this possibility. To confer rights which are not recognised for its own nationals on couples from other Member States could in fact create reverse discrimination, which must be avoided.

Amendments 17 and 18: these proposed amendments, which would insert a specific reference in points (c) and (d) of Article 2(2) to relatives in the ascending and descending lines of registered partners, cannot be accepted.

Amendment 19: this proposed amendment would incorporate in Article 2(3) a definition of the home Member State and the criteria to be used for determining what constitutes a durable relationship. This reference to the legislation of the home Member State is not acceptable for the purpose of defining spouse or partner.

Amendment 21 (former Article 4): this amendment, which makes the prohibition of discrimination more specific by adding gender identity to the definition, has not been retained. The text included in Recital 31, which replaces former Article 4, follows the exact wording of Article 21 of the Charter of Fundamental Rights.

Amendments 26, 32 (in part), 42, 43 and 44: these amendments cannot be accepted as they would substantially alter the structure of the Directive and undermine the approach followed by the Commission and the Council.

Amendment 27 (Article 7(1), point (a)): this amendment includes a direct reference to recipients of services, but the Council considers that recipients of services cannot be treated on the same foot as workers or self-employed persons.

Amendment 32 (Article 8(1)): this amendment has not been included in the common position, because the Council considers that Member States should not be obliged to issue a registration certificate if they have not opted for a registration system.

Amendment 35 (Article 8(5), point (b)): this amendment has not been included in the common position, because the Council considered that a simple statement attesting to the existence of a family relationship is not sufficient to prove the family relationship. This approach is in line with the one followed for the registration system (Article 8).

Amendment 38 (Article 9): this amendment reflects the points made by the Court of Justice in its ruling of 25 July 2002 in (Case C-459/99) MRAX. It has not been included in the common position, because the Council considers it contradictory to Article 10, where there is an exhaustive list of all documents required for obtaining a residence card and the visa does not appear as one of them.

Amendment 62 (Article 20(1)): the proposal that the residence card would be valid indefinitely and also renewable every ten years seems contradictory. The text included in the common position has consequently deleted the final sentence of the paragraph on renewal and the Council has opted for the renewal of the card every ten years.

Amendment 76 (former Article 25(5a)): this amendment imposes a requirement on Member States to notify the Commission of any decision to expel Union citizens or their family members. This amendment has not been included in the common position, because the Council considers that this procedure would be too cumbersome for Member States without offering any advantages for Union citizens.

Amendment 84 (Article 31(2)): the aim of this amendment, providing for deletion of the first phrase, is to ensure that all decisions are subject to prior checks by an independent authority, not only where there is provision for administrative appeal. It has not been included in the common position because the whole paragraph has been deleted.

Amendment 88 (former Article 31a): this amendment provides for a new Article, which takes over the contents of the old Article 31(2). The Council has preferred to keep a single Article, considering that its paragraph 2 referred only to orders provided for in paragraph 1.

Amendments 91, 92 and 93 (Articles 38, 39 and 40): these amendments concern measures to be taken after the date of entry into force of the Directive. Parliament proposed July 2004 but in view of the status of proceedings this does not seem realistic. This is the reason why the Council opted for two years after the date of entry into force of the Directive.

Amendments 22, 23, 31, 45, 53, 56, 57, 58, 60, 63, 66 and 69: these amendments could not be accepted as they were considered as not being consistent with the Commission proposal.

C. New elements introduced by the Council

The main points of the common position which differ from the Commission's proposal are as follows:

- Recitals

The Recitals have been adapted in order to ensure coherence with amendments introduced in the text of Articles. References to Articles of the EC Treaty have been deleted, because they would have no sense after the entry into force of the future Constitution.

Three Recitals represent a new element in comparison with the amended Commission proposal, notably:

Recital 6: this Recital was added in order to clarify the notion of facilitation provided for in Article 3.

Recital 16: this Recital states the elements and criteria, which should be taken into consideration in order to establish if a person concerned has become an unreasonable burden and the host Member State can proceed to his expulsion. The Council considers that this recital would provide useful indication for the criteria to follow in order to establish if a person has become an unreasonable burden.

Recital 31: former Article 4 concerning the prohibition of discriminations has been deleted and its contents have been added to this Recital on fundamental rights. Since the prohibition of discriminations belongs to the general principles of community law, the Council prefers to include it in the Preamble.

- Articles

Articles 2 and 3: these Articles concerning the definition of family members and beneficiaries have been one of the core issues of the proposal and the common position has amended a number of their elements, notably:

- Concept of registered partnership and of durable relationship

The common position has restricted this definition only to registered partners, if the legislation of the host Member State treats the registered partnerships as equivalent to married couples, excluding therefore the durable relationships from the scope of Article 2. In parallel, Article 3 has been amended as to provide for the facilitation of the partner with whom the Union citizen has a durable relationship, duly attested. The concept of facilitation was clarified in Recital 6a.

- Other family members

As far as direct descendants and relatives in the ascending line of the Union citizen are concerned, the Council has decided to maintain the existing acquis, by reintroducing conditions of age and dependency.

Article 6 (new): former paragraphs 5 and 6 of Article 6 have been transferred to a new Article for clarity reasons. The common position has not accepted the extension of the period of residence without conditions to six months, preferring to maintain the existing acquis of three months. Nevertheless, a revision clause has been included in Article 39, whereby the Commission is committed to study the need to extend this period of time in the report on the application of the Directive, which it will submit two years after its transposal.

Article 7(4): the right to family unification for students has been limited to the core family, as in the existing acquis. Nevertheless, the entry and residence of dependent ascendants will be facilitated on the basis of Article 3.

Article 8: as far as administrative formalities for Union citizens are concerned and in order to prevent abuses, the common position has introduced a system, whereby Member States may require that Union citizens provide proof that they satisfy the conditions laid down in Article 7. Nevertheless, this system remains flexible since the registration certificate is issued on the spot and the fulfilment of conditions is verified only in specific cases where there is a reasonable doubt, as foreseen in Article 14(2). In paragraph 4, the possibility for Member States to provide for an amount of sufficient resources has been foreseen, but allowing to take into account the personal situation of the person concerned.

Article 11(1): the common position has added that the residence card issued to family members of a Union citizen who are not nationals of a Member State could be valid for less than five years in order to correspond to the envisaged period of residence of the Union citizen, if this period is inferior to five years.

Article 12(2): the common position has introduced the condition for family members who are not nationals of a Member state to have been residing in the host Member State for at least one year before the Union citizen's death in order to retain their right of residence. Another condition included in the common position foresees that family members retain their right of residence exclusively on a personal basis. These conditions reflect the justified concerns of delegations to prevent abuse, but in the same time establish a proportionate link with the host Member State.

Article 13(2)(d): the common position has introduced a situation, where in case of divorce, annulment of marriage or termination of the registered partnership, the spouse or partner not being a national of a Member State shall not lose the right of residence, provided that a court has ruled the right of access to a minor child in the host Member State.

Articles 14 and 15: former Article 13 has been divided in two articles and its contents have been clarified. Article 14 makes clear the circumstances, under which a Member State can expel Union citizens if they no longer meet the conditions for the right of residence.

It has been provided for that an expulsion measure cannot be the automatic consequence of recourse to the social assistance system, thus integrating in the text the case-law of the Court of Justice in case C-184/99, Grzelczyk. Moreover, new Recital 16 clarifies further the concept of unreasonable burden, which could result in an expulsion measure.

Rules concerning procedural safeguards have been included in a new Article 15, without modification.

Article 16: the period of continuous legal residence in the host Member State necessary for the acquisition of the right of permanent residence has been set at five years instead of the proposed four years. This change has made possible the inclusion of students within the beneficiaries of the right of permanent residence.

In paragraph 3, the common position has reduced the period of absence entailing the loss of the right of permanent residence to two years instead of the proposed four years. This change has also led to a change in Article 20(3) concerning the validity of the permanent residence card. This could be justified because after a two-year absence the link with the host Member State could be considered as loosened.

Article 17(4)(a): the period of residence in the host Member State prior to the acquisition of the right of permanent residence has been set at two years, as in the existing acquis. This change once again guarantees a strong link with the host Member State.

Articles 19 and 20: Union citizens are no longer obliged to have a permanent residence card. Member States shall issue them a document certifying that they have acquired the right of permanent residence. This document shall be issued upon application, after verification of the duration of residence. This approach meets the objective of reducing administrative formalities for Union citizens.

As far as family members who are not nationals of a Member State are concerned, they must possess a permanent residence card, which is renewable automatically every ten years. The time limit introduced by the common position allows for the updating of data.

Article 24: in paragraph 1 it was added that the equal treatment is subject to such specific provisions as are expressly provided for in the Treaty and secondary law. In paragraph 2, the common position has specified that Member States are not obliged to grant maintenance aid for studies that consist in student grants or student loans to persons other than workers or self-employed.

Article 27: the former third subparagraph of paragraph 2 has been deleted, because its interpretation could allow considering as a threat for public policy any behaviour punished on a domestic level. Paragraph 3 has been moved in Article 15, since the expiry of an identity document cannot be considered as contrary to public policy.

Article 28: the Council is almost unanimously against the absolute protection against expulsion, although it has accepted an increased protection for Union citizens who have been residing for a long period in the host Member State. After the acquisition of the right of permanent residence, Union citizens may be expelled only on serious grounds of public policy or public security.

Union citizens who are minor or who have resided in the host Member State for ten years may be expelled only on imperative grounds of public security.

Article 31: former paragraph 2 has been deleted, since the common position already confirms the obligation of Member States to provide for redress procedures, which allow for an examination of the facts and circumstances and there is a possibility to suspend the expulsion measure, making therefore paragraph 2 redundant.

In paragraph 4, the common position has introduced an exception to the principle of submitting one's defence in person, if the appearance may cause serious troubles to public policy or public security or when the appeal or review concerns a refusal of entry to the territory.

Article 32: paragraph 1 has been deleted and its contents included in Recital 25. In former paragraph 2 the period after which an application for lifting of an exclusion order may be submitted has been set at three years instead of the proposed two.

Article 33: in paragraph 2 it has been clarified that the assessment of whether there has been any change of circumstances since the expulsion decision was taken shall be made only if the expulsion order is enforced more than two years after it was issued.

Article 35: this new Article has been introduced, in order to clarify that Member States may refuse, terminate or withdraw any right conferred by the Directive in the case of abuse of rights or fraud.

IV. CONCLUSION

The Common Position represents an equitable and balanced solution to the issues addressed by the proposed Directive and has been designed to achieve the aim of giving substance to the concept of the Union citizenship and to reinforce the rights of Union citizens in the area of free movement and residence. A great number of the European Parliament's amendments have been fully incorporated, whereas others have been at least partially introduced or taken into account in an effort to arrive at a balanced text.

(1) OJ C 270 E, 25.9.2001, p. 150.

(2) OJ C 192, 12.8.2002, p. 17.

(3) OJ C 149, 21.6.2002, p. 46.