52003SC1293

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

2001/0111 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

1. BACKGROUND

Date of transmission of proposal to EP and Council (document COM(2001) 257 final - 2001/0111 (COD)): // 29 June 2001

Date of opinion of European Economic and Social Committee: // 24 April 2002

Date of opinion of Committee of the Regions: // 13 March 2002

Date of opinion of European Parliament at first reading: // 11 February 2003

Date of transmission of amended proposal: // 15 April 2003

Date of adoption of common position: // 5 December 2003

2. PURPOSE OF THE COMMISSION'S PROPOSAL

The proposal is designed to replace and supplement the various pieces of legislation in force concerning free movement of Union citizens. It falls within the legal and political environment created by introduction of Union citizenship. It lays down the arrangements for exercising the fundamental right of freedom of movement and residence, a right which is conferred directly by the Treaty on each Union citizen and accordingly incorporated in the Charter of Fundamental Rights of the Union.

The proposal is thus a major step forward in giving real substance to Union citizenship, as is evident from the basic concept of the proposal which is that Union citizens should enjoy freedom of movement and residence in the Member States, mutatis mutandis, in conditions similar to those enjoyed by citizens of a Member State moving and changing residence within their own country.

The main objective of the proposal is to facilitate exercise of the right of freedom of movement and residence by reducing administrative formalities to the absolute minimum, by defining as clearly as possible the status of family members, by creating a right of permanent residence to be given after a number of years of continuous legal residence in a Member State and by restricting the possibility for Member States to refuse or terminate right of residence on public policy grounds.

3. COMMENTS ON THE COMMON POSITION

3.1. General comment

The political agreement which the Council reached by qualified majority on 22 September 2003 was taken over in the common position adopted on 5 December 2003.

The Council's common position preserves the essentials of the Commission's initial proposal as amended by the amended proposal.

The main changes made in the common position concern:

- the concept of family: the definition in Article 2(2)(b) has been confined to registered partnership where the legislation of the host Member State regards this situation as equivalent to marriage. Unlike the amended proposal, it does not cover de facto durable relationships. This restriction is, however, offset by the addition of a new provision in Article 3 by which the Member States will have to facilitate the entry and residence of a partner in a durable relationship with the Union citizen having the primary right of residence;

- the common position does not accept the extension of unconditional and formality-free right of residence from three to six months. In view of the difficulties of extending this period to family members who are not nationals of a Member State, the Council has preferred to retain the present situation of three months;

- the length of residence required to give entitlement to permanent residence has been raised to five years instead of the four proposed by the Commission;

- the proposed absolute protection against removal for minors and persons who have acquired the right of permanent residence has not been accepted. The Council has, however, agreed to increase the protection for Union citizens who have been long-standing residents in the host Member State.

The Commission has accepted the common position which, although less ambitious than the Commission's original proposal as amended following Parliament's opinion, strikes a balance between the positions of the Member States and marks a major step forward in terms of freedom of movement and residence in relation to the existing situation.

3.2. Parliament amendments incorporated in the common position

3.2.1. Amendments taken over in full or in part in the amended proposal and in the common position

3.2.1.1 Recitals

Amendments 3, 5, 6, 8, 9, 10, 12 and 13 have been taken over as they stand in the common position.

Amendments 7 and 11 have been taken over in part. The changes made are discussed in detail below.

Recital 9 (amendment 7): the amendment was designed to make it quite clear that stays of up to six months are not subject to any condition; this amendment has been taken over, but the period reduced to three months, in line with the new Article 6, which the Commission has accepted. However, Court of Justice judgments allow job-seekers the unconditional right to stay for at least six months and for even longer, if they can prove that are actively looking for a job and they have a real chance of finding one. An appropriate reference has therefore been included in the recital.

Recital 21 (amendment 11): this amendment has been taken over in the common position, but it has been altered slightly to bring it into line with the new wording of Article 24, as accepted by the Commission, to which it refers.

3.2.1.2 Articles

Amendments 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 taken over as they stand in the common position.

Amendments 20, 24, 30, 33, 41, 47, 49, 50, 51, 52, 54, 55, 64, 68, 74, 77, 78, 79, 82, 83, 86, 108 and 116 have been taken over in part in the common position. The changes made by the Council are discussed below.

Article 3(2) (amendment 20): the amendment was designed to facilitate entry and stay of any family member not covered by Article 2, where there are serious health or humanitarian grounds. This addition has been taken over in part in the common position: the Council decided to remove the reference to humanitarian grounds, arguing that it was too broad a concept, open to abuse. The Commission has agreed to this change, since humanitarian grounds are already covered by the undertakings on fundamental rights given by all Member States; there is therefore no need for a specific reference to humanitarian grounds.

Article 5(2) (amendment 24): the first change made by the amendment -- the addition of a reference to national legislation, thereby covering the situation of countries which do not apply Regulation No 539/2001 on visas -- has been taken over unchanged in the common position.

The second change, designed to make the text more correct from a legal point of view, has also been taken over.

The change to the second subparagraph, however, which specified the time-limit within which the visa has to be issued, has not been taken over in the common position. The Council felt that five working days was too tight and did not allow for special situations; it therefore stated instead that it should be done as quickly as possible on the basis of an accelerated procedure. The Commission has agreed to this new wording, which at all events guarantees rapid processing of the visa application.

Article 7(3) (amendment 30): this amendment, which merely moved Article 8(7), has been taken over in the common position. The wording of point (c) has, however, been changed by the Council and accepted by the Commission to state that in this case worker status is retained for up to six months, in line with the present position.

Article 8(2) (amendment 33): the part of the amendment designed to make it clear that the registration certificate is not evidence of right of residence but simply an administrative formality has been taken over as it stands in the common position. The Council has, however, removed the stipulation that penalties must be administrative, something which is spelt out in all the articles concerning penalties. The Commission has accepted this change, which leaves Member States free to decide on the penalty arrangements in accordance with their internal law, the proportionate and non-discriminatory nature of the penalties still being specified in the article.

Article 11(2) (amendment 41): this amendment makes the text clearer. It lays down a time-limit for absence, which seems fair. The wording of the common position differs from Parliament's amendment in that it lays down a time-limit of one year for absences due to pregnancy or childbirth too. The Commission has accepted this change, taking the view that one year's absence, for whatever reason, can be regarded as grounds for allowing Member States to check that the person concerned is still entitled to right of residence, in particular for family members who are not nationals of a Member State. In this connection, it should be borne in mind that this provision does not call into question the right of residence, but simply requires those concerned to apply for a new residence card.

Article 13(1) and (2)(a), (b) and (d) (amendments 47, 49, 50 and 51): these amendments were designed to make the text consistent with the content of Article 2 by incorporating a reference to the termination of partnerships covered by Article 2(2)(b). The common position takes over this amendment but restricts it to the termination of registered partnerships, in line with the new Article 2.

In point (a), the length of the marriage or partnership has been increased to three years rather than the two requested by Parliament. This is, however, less than the Commission's initial proposal of five years. The Commission has accepted this change, considering the proposed length to be reasonable.

Article 13(2)(c) (amendment 52): Parliament's amendment was designed to spell out certain difficult circumstances which would justify retaining right of residence after divorce, annulment of marriage or termination of a partnership. The content of the amendment has been take over in the common position, but the reference to humanitarian grounds has been removed. The Commission has accepted this change (see above comment on Article 3, amendment 20).

Article 15 (amendment 54): the amendment was to insert a new article taking over the old Article 24 of the Commission's original proposal. The common position makes this adjustment: it is more logical to include this article at the end of Chapter III, as removal is no longer possible once the person concerned has acquired the right of permanent residence, except on grounds of public policy. The first paragraph, however, which had been added to specify that right of residence is retained as long as the conditions of residence are complied with, has been transferred to the previous article. The Commission has accepted this change, which makes the text more coherent (see Section 3.3.2 below, comment on Articles 14 and 15).

Article 16 (amendment 55): the amendment has been taken over in the common position, with a change to the wording to rule out any time limit for absences due to military service. The Commission has accepted this change which makes this Article consistent with Article 11.

Article 24(2) (amendment 108): this amendment was designed to remove the provision that persons not engaged in gainful activity are not entitled to social assistance until they have acquired the right of permanent residence. The Council has accepted this amendment, but added that Union citizens may be refused entitlement to social assistance during the first three months of their stay. The Commission considers this change acceptable as during this initial period these persons are exempt from any conditions and formalities on residence, which is good reason for not giving them entitlement to social assistance (which is also in line with the present situation).

Article 29(1) (amendment 77): the amendment in question proposed a number of changes to this paragraph which have all been taken over in the common position. The Council has simply made a further change, removing the reference to the 1951 health regulation and replacing it by a more general reference to the relevant WHO instruments. The Commission has accepted this change, considering the new reference far more appropriate.

Article 31(3) (amendment 113): the amendment has been taken over in the common position in the wording of the amended proposal. The amendment is to suspend enforcement of a removal decision until such time as a court has ruled on the suspensory effect of the appeal. Some exceptions have been introduced, however, to exclude the case where removal is based on a judicial decision or where the person has already had access to a judicial review procedure or when there are overriding grounds of public safety. The Commission has accepted these changes, taking the view that the principle objective of the provision is intact: to guarantee individuals the possibility of actually appealing against a removal decision, by ensuring that they cannot be removed before they have had the opportunity to lodge an appeal. The public safety exception has been accepted as it is warranted by the seriousness of such situations.

3.2.2. Amendments included in the amended proposal but not taken over in the common position

3.2.2.1. Recitals

Recital 4 (amendment 2): the amendment designed to state that mobility of employed or self-employed workers is also one of the Union's political priorities has not been taken over in order to keep the text simple.

3.2.2.2. Articles

Article 4 (amendment 21): Parliament had requested that sexual identity be included as one of the grounds on which no discrimination was allowed; this addition has not been made in the recital which replaces Article 4. The Commission has accepted this change, as the text in the common position corresponds to the wording of Article 21 of the Charter of Fundamental Rights, which does not lay down an exhaustive list.

Article 7(1)(a) (amendment 27): the express reference to recipients of services has not been retained in the common position: the Council quite rightly considered that recipients of services cannot be likened to employed or self-employed workers.

Article 8(1) (amendment 32): Parliament's amendment, which would have allowed all Union citizens who so wished to be registered even in States which do no impose this obligation has not been taken up in the common position. The Council felt that the Member States should not be obliged to provide a certificate if they opt not to introduce the registration formality. What is more, the fact that such a certificate can be obtained could have the effect in practice of obliging all citizens to apply for one. The Commission has accepted these arguments and agrees with the change made, which restores the original wording of the proposal.

Article 8(5)(b) (amendment 35): the Council has not accepted that a simple statement is sufficient to prove family relationship. This change is in line with the approach the Council has taken on the registration system under Article 8 which the Commission has accepted (see Section 3.3.2 below, comment on Article 8).

Article 9(3) (amendment 38): Parliament's amendment was to insert in the text points taken from the Court of Justice judgment in Case C-459/99 MRAX of 25 July 2002. The Council has not taken up this amendment for the simple reason that it was in conflict with Article 10. That Article contains an exhaustive list of the documents that can be required of family members who are not nationals of a Member State in order to obtain a residence card: a visa is not one of these documents. It would therefore be something of a contradiction to state that a residence card may not be refused on the grounds that the persons concerned do not have a visa. The Commission agrees with the Council that the text is clearer without the amendment.

Article 20(1) (amendment 62): the Commission's initial proposal stated that residence cards should be valid indefinitely and renewable every ten years; this was a contradiction. Parliament had therefore proposed keeping only the sentence about indefinite validity. The Council, on the other hand, has chosen, in agreement with the Commission, to provide for renewal every ten years. (see Section 3.3.2 below, comment on Article 20).

Article 27(5a) (amendment 76): this amendment required Member States to inform the Commission of any decision to remove Union citizens or their family members. The Council has not kept this amendment, considering it to be a heavy procedure which in practice would not provide Union citizens with any real benefits. The Commission has therefore accepted that the paragraph be dropped.

Article 31(2) (amendment 84): the amendment could not be taken up as the paragraph has been deleted, with the Commission's agreement (see Section 3.3.2 below, comment on Article 31).

Article 33 (amendment 88): this amendment by Parliament would have divided the content of Article 33 into two separate articles. The Council has preferred to retain the entire Article 33, taking the view that paragraph 2 refers solely to the decisions covered by paragraph 1. The Commission shares this view and has therefore agreed to restore a single article.

Articles 38, 39 and 40 (amendments 91, 92 and 93): these amendments proposed a change to the date of entry into force of the Directive. Parliament proposed July 2004, but this no longer seems realistic. The amendments have not therefore been taken over in the common position.

3.3. New provisions inserted by the Council

3.3.1 Recitals

The recitals have been adapted to ensure consistency with the amendments made to the articles: this is the case, for example, for the recitals concerning Articles 6, 8 and 28.

Other amendments are intended to make the text simpler and clearer. For example, recitals 1, 2 and 3 have been reworked to emphasise the importance of the concept of citizenship of the Union on which this directive is based.

Another change concerns the deletion of any reference to articles of the EC Treaty, because such a reference will be immediately superseded as soon as the future Constitution enters into force. In any case it is not necessary in the recitals.

The recitals which are new compared with the text of the amended proposal or which do not fall into the categories mentioned above are examined below.

Recital 6: this recital has been added to define the concept of facilitation provided for in Article 3. This concept, which is included in the existing acquis on the free movement of employed and self-employed persons, has never been interpreted by the Court of Justice. The Commission considers that this new recital is very useful, because it provides the Member States with information regarding the practical application of Article 3.

Recital 16: according to the case-law of the Court of Justice (Case C-184/99, Grzelczyk), the Member States may not expel a Union citizen who has obtained social assistance in the host Member State without having the right to it unless he becomes an unreasonable burden. The Commission considers that this new recital is very useful because it indicates what elements should be taken into consideration to establish whether the person concerned has become an unreasonable burden, for example the duration and amount of the assistance requested.

Recital 17: in order to clarify the content of the term "legal residence", a sentence has been added at the end of this recital.

Recital 31: former Article 4 on non-discrimination has been deleted and its content added to the recital concerning the respect of fundamental rights. The Commission has nothing against this. Since the prohibition of discrimination is one of the general principles of Community law, its transfer to a recital does not change the scope of this right.

3.3.2. Articles

Articles 2 and 3: these articles, on the definition of the family and persons entitled, have been amended in several places:

- the concept of registered partner and durable relationship.

The definition given in Article 2(2)(b) of the amended proposal included both registered partners and partners having a de facto relationship, if the law of the host Member State recognises this type of situation. The Council has decided to restrict this definition to registered partners, if the law of the host Member States treats registered partnerships as equivalent to marriage.

At the same time, the text of Article 3 has been amended to provide that any Member State must facilitate the entry and residence of the partner to whom the Union citizen is linked by a duly attested durable relationship. The Commission has accepted the approach proposed by the Council. While it is true that the definition of Article 2(2)(b) is more limited than the text of the amended proposal, it must be considered that the content of Article 3 has been extended to include any type of durable relationship. The Commission considers that the concept of durable relationship may cover different situations: same-sex marriage, registered partnership, legal cohabitation and common-law marriage. The concept of facilitation has been clarified in recital 6a.

The Commission considers that the text of the common position represents a fair compromise which makes it possible to facilitate the right to free movement and residence of unmarried partners of Union citizens without imposing changes in the national law of the Member States.

- Other family members

As regards relatives in the ascending line and descendants of the Union citizen having the primary right of residence, covered by Article 2(2)(c) and (d), the Council decided unanimously to revert to the acquis by reintroducing age and dependency conditions for descendants and relatives in the ascending line. The Commission has accepted this amendment, which was endorsed by all delegations, by way of compromise.

Article 6 (new): the former paragraphs 5 and 6 of Article 6 have been transferred to a new article in the chapter on "Right of residence", which has the advantage of clarity. However, the extension to six months of the unconditional right of residence was not accepted. The Member States emphasised the difficulty, for reasons relating to visas, of extending to six months the period which is not subject to any formality for family members who are nationals of third countries. To resolve these difficulties, the Commission has agreed to revert to the current acquis, which lays down a period of three months that is not subject to conditions or formalities.

However, the Commission has expressly undertaken to examine the possibility of proposing an extension to six months in the report that it will present two years after the directive enters into force (Article 36).

To ensure consistency, all the articles which referred to the six-month period have had to be adapted. These are Article 7(1), Article 8(1) and (2), Article 9(1) and (2), Article 24(2), Article 27(3), and Article 29(2) and (3).

Article 7(4): students' right to family reunification has been limited to the spouse, partner and dependent descendants. Dependent relatives in the ascending line have been excluded, as in the current acquis. However, their entry and residence will be facilitated on the basis of Article 3. The Commission has accepted this restriction, in line with the acquis, which has made it possible to ensure, as part of the overall compromise, that students enjoy all the rights provided for by the directive.

Article 8: as regards the formalities required in order to obtain registration, the Council has made changes to the system proposed by the Commission. The common position introduces a system whereby the Union citizen will have to provide the competent administration with proof, explicitly enumerated, that he satisfies the conditions laid down in Article 7 (depending on the case: being an employed or self-employed worker, having sufficient resources or sickness insurance, etc.). However, this system remains very flexible, because the certificate of registration is issued immediately and checks on effective compliance with the conditions of residence may only be carried out when there is reasonable doubt, as specified in Article 14. In this new context, it has become necessary to specify, in paragraph 4 of the article, the level of resources considered sufficient, while introducing a certain flexibility in order to oblige the Member States to take into account the personal situation of the individual concerned.

The Commission has accepted the Council's approach, because it represents a fair balance between the legitimate concern of the Member States to prevent abuse and the introduction of a more flexible system for citizens than the current acquis, as the Commission wanted.

Article 11(1): the Council added that the period of validity of the residence card issued to family members who do not have the nationality of a Member State may be less than five years and correspond to the planned duration of the stay of the Union citizen, if the planned stay is less than five years. The Commission has accepted this amendment which, in its opinion, is logical.

Article 12(2): a condition of prior residence of one year before the death of the Union citizen has been introduced in order to allow the family member who does not have the nationality of a Member State to retain his right of residence in the host Member State. The Commission has accepted this amendment because it responds to justified concerns and the duration of one year seems proportionate in terms of establishing a link with the host Member State and avoiding abuse.

Article 13(2)(d): the Council added another situation where residence by the non-Community spouse or partner could be justified following divorce or termination of the partnership; namely where the individual concerned has obtained visiting rights to the children who are the offspring of his relationship with the Union citizen. The Commission has accepted this addition, which is intended to cover a perfectly legitimate situation.

Articles 14 and 15: the content of former Article 13 of the amended proposal has been divided into two separate articles and its content clarified.

On the one hand, Article 14 clarifies the circumstances in which a Member State may expel a citizen of the Union when he no longer fulfils the conditions of the right of residence. It does so by incorporating the case-law of the Court of Justice, Case C-184/99, Grzelczyk, into the text of the provision: an expulsion measure may not be the automatic consequence of recourse to social assistance in the host Member State. Furthermore, the new recital 16 further clarifies the concept of unreasonable burden, which could potentially lead to the expulsion of the person who has obtained social assistance without being entitled to it.

On the other hand, the rules concerning procedural guarantees have been transferred to a specific article, Article 15, without the content having been changed.

The Commission can endorse this approach, which clarifies the conditions in which the Union citizen's right of residence is lost, while respecting the current acquis and the case-law of the Court of Justice on the subject. It also considers that the division into two articles makes the text clearer and more coherent.

Article 16(1) and (2): the period of prior continuous residence in the host Member State needed to obtain the right of permanent residence has been set at five years instead of four. The Commission has accepted this change because the addition of this extra year has overcome the reluctance of some Member States as regards the inclusion of students among those entitled to a right of permanent residence.

Article 16(3): the Council shortened the period of absence leading to the loss of the right of permanent residence to two years, rather than the four years specified in the amended proposal. This change also requires a change in Article 20 on the duration of the permanent residence card. The Commission has accepted this change because, after two years of absence, it may be considered that the strong link with the host Member State, which justifies the entitlement to the right of permanent residence, has been broken.

Article 17(4)(a): the length of prior residence in the host Member State has been extended to two years, as specified in the current acquis (Commission Regulation No 1251/70). The Commission has accepted this change, in accordance with the acquis, which guarantees a close link with the host Member State justifying the acquisition of the right of permanent residence by these persons.

Articles 19 and 20: the obligation to obtain a permanent residence card has been abolished for Union citizens. For them it will be possible to obtain, if they consider it necessary or useful, a document certifying that they have acquired the right of permanent residence. This document will be issued to them as soon as possible after the request and after verification of the length of their residence. The Commission has endorsed this approach because it considers that this amendment meets the directive's objective of reducing to a minimum the administrative formalities to which Union citizens are subject.

However, family members who do not have the nationality of a Member State remain subject, in their own interest, to the obligation to obtain a residence card. The only difference between the common position and the amended text of the proposal concerns the duration of this card, which the Council preferred to limit to ten years, to enable the data (e.g. the photo) to be updated while retaining automatic renewal of the card.

Article 24: a provision has been added to the first paragraph stating that equal treatment applies, subject to other provisions of the Treaty and of the secondary legislation, in line with what is contained in Article 12 of the EC Treaty.

In the second paragraph, the Council wanted to specify that students and persons not exercising an occupational activity are excluded from maintenance support which may consist of either maintenance grants or loans. The addition of the exclusion from maintenance loans is intended to take into account the case of Member States which do not have this system of assistance for students. The Commission has accepted this addition, which falls within the objective for this provision, namely to exclude from maintenance assistance any person who is not employed or self-employed. However, it should be noted that these persons will have the right to any kind of assistance concerning access to studies such as, for example, a grant covering tuition fees.

Article 27(2): the third subparagraph of this paragraph, which provided that personal conduct could not be considered a threat to public policy unless the host Member State took enforcement measures against the same conduct on the part of its own nationals, has been deleted. The Commission considers that this deletion improves the text. This paragraph partly took over the judgment by the Court of Justice of 18 May 1982 in the joint cases Adoui and Cornuaille; however, outside the context of the judgment, the Commission realised that this provision could be interpreted in such a way as to allow any conduct penalised at national level to be considered a danger to public policy. For this reason, it has accepted the deletion of the paragraph.

Article 27(3): the paragraph has been moved to Article 15(3), which is more logical, because expiry of an identity document cannot be considered as representing conduct contrary to public policy.

Article 28(2): the Member States were almost unanimously opposed to absolute protection against expulsion for Union citizens and the members of their families who have acquired the right of permanent residence in the host Member State. However, they did agree to increased protection for Union citizens who have lived for a number of years in the host Member State. Consequently, the compromise included in the common position takes the form of increased protection depending on the length of residence in the territory of the host Member State.

Once they have acquired the right of permanent residence, citizens of the Union and the members of their families may be expelled only for particularly serious reasons of public policy or public security.

After ten years of residence in the host Member State, Union citizens can be expelled only for overriding public security reasons.

In addition, absolute protection is provided for Union citizens who are minors, regardless of the length of residence in the host Member State, except when the expulsion is based on imperative grounds of public security or when it is necessary for the best interest of the child.

The Commission has accepted these solutions, which, while less ambitious than its proposal, do represent an advance on the existing acquis, by laying down strict conditions for the expulsion of Union citizens who have very strong ties in the host Member State. It should also be emphasised that this paragraph comes on top of the other provisions in the chapter which strongly improve protection against measures restricting free movement for any Union citizens and the members of his family, regardless of the length of residence in the host Member State.

Former Article 29(2): the Council decided, with the Commission's agreement, to delete this paragraph. The content of this provision repeated the content of Article 9 of Directive 64/221/EEC requiring the Member States to consult an independent authority before taking a removal decision, where the host Member State does not provide for appeal to a court of law, or where such appeal may only be in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect. However, given that the common position confirms the obligation on the Member States to always provide for the possibility of judicial redress (Article 31(1)), that this redress must refer to the facts and circumstances (Article 31(2)), and that enforcement of the removal measure may be suspended (Article 31(3)), the Council considered, in agreement with the Commission, that this paragraph is no longer necessary.

Article 31(4): the common position has introduced an exception to the principle of appearance in person, when such appearance could be a cause of disturbance to public policy or when the decision contested concerns refoulement.

The Commission has accepted these changes. Exclusion from this provision of persons who have never entered the territory of the host Member State (because they are subject to a refoulement measure) is justified, as is that of persons whose presence on the territory could endanger public policy in that State.

Article 32(1) and (2): the first paragraph has been deleted and its content taken over in recital 27. The Commission does not see any problem with this, since the prohibition of life expulsion is a consequence of the second paragraph, which is retained in the article.

In the second paragraph, the period after which the person concerned may submit an application for lifting of the exclusion order has been extended to three years, as opposed to the two years proposed by the Commission. The Commission considers this period reasonable.

Article 33(2): it has been clarified that the evaluation intended to establish whether the person represents a danger for public policy must be carried out only when the expulsion is enforced two years after the decision is taken.

The Commission considers this clarification to be positive and totally in line with the objective of the provision, which is to require the Member States to examine the situation when, between the decision to expel and the actual enforcement of the decision, there is a long period during which the circumstances on which the decision was based may have changed.

Article 35: this new article on the abuse of rights has been added. Its content clarifies that the Member States may refuse or terminate the rights conferred by the directive if they have been obtained by fraud or abuse.

4. CONCLUSIONS

The Commission accepts the common position, considering that it includes the key elements included in its initial proposal and in Parliament's amendments as taken over in its amended proposal.

This text represents a fair, balanced compromise, enabling Union citizens' rights to be strengthened in matters of freedom of movement and residence.