New legislation will simplify conditions and administrative formalities for applying EU citizens' right to move and reside freely throughout the European Union

The Directive 2004/38/EC on the right of citizens of the European Union and their family members to move and reside freely within the territory of the EU has been adopted by the European Parliament and the Council on 29 April 2004 (JOL 158 du 30 04 2003) and Corrigendum (PDF File 189 KB). It brings together the complex body of legislation that existed in this area. It introduces more flexibility by eliminating the need for EU citizens to obtain a residence card, introducing a permanent right of residence, defining more broadly the situation of family members and restricting the scope for the authorities to refuse or terminate residence of non national EU citizens.

"This page gives a general presentation in two parts on the European policy concerning the «European citizenship » matter. Part I covers the latest developments which occurred within the recent years. Part II gives a general view of the accomplishments and the acquis in the European plan of the matter concerned."

I) Latest developments

The Member States are currently transposing the Directive 2004/38/EG on the right of citizens of the European Union and their family members to move and reside freely within the territory of the EU. They have until 30 April 2006, to achieve the complete and correct transposition of the directive. To that end, the EU Commission has been organising meetings with Member States from June 2005 to January 2006.

The EU Commission is preparing the third report on the implementation of the three Directives on the right of residence of Union citizens and their family members, of whatever nationality, who are not economically active in the host Member State, covering the period 2003-2006.

Four major judgments were given by the EU Court of Justice on the interpretation of directives 93/96, 90/364 et 90/365. (Cases C-456/02; C-200/02; C-209/03 and C-157/03). On these occasions, the Court recalled that the right to reside in the territory of a EU Member State is conferred directly on every citizen of the Union by article 18(1) EC and that citizenship of the Union is destined to be a fundamental status of nationals of EU Member States, enabling those who find themselves in the same situation to receive the same treatment in law irrespective of their nationality. The Court also underlined the need to interpret the right of free movement in the light of fundamental rights with particular regard for the right to protection of family life and the principle of proportionality.

II) General Context

Historical developments

• Free movement of persons has existed since the foundation of the European Community in 1957. It was introduced from an economic point of view, since the right was linked to a person's status as a salaried worker and it was part of the broader project of realising a common market with free movement of capital, goods and services. The right was then extended to self-employed persons and service providers. Family members were entitled to the same rights. […] Then, this right has been progressively extended to encompass all categories of citizens.
• In years 90’s, three directives were adopted, which guarantee the rights of residence to categories of persons other than workers: retired persons, students, and inactive people.
• In 1992, the Maastricht Treaty introduced the concept of citizenship of the European Union which confers on every European citizen a fundamental and personal right to move and reside freely without reference to an economic activity. The Amsterdam Treaty, which came into force in 1999, further strengthened the rights linked to European Union citizenship by integrating the Schengen Convention into the Treaty.
• The European Court of Justice recognised the direct applicability of Article “18”of the TEC [or 12 ex 6?] , giving thus each EU citizen the right to ask for the respect of that article , subject to limitations- Arrêt 12 Mai 1998, Martinez Sala, affaire C-85/96, rec.I-2691 et Arrêt 24 Novembre 1998, Bickel et Franz, affaire C-274/96, rec.I-7637.
• The Treaty of Nice which entered into force on 15 February 2003 facilitated the legislative process by introducing qualified majority voting in the EU decision making process in the field of free movement and residence.

Free movement and right of residence

The new legal and political environment entailed by EU citizenship has allowed for a fresh look to be taken at arrangements for European citizens to exercise their rights, and fulfil their obligations in this regards through the creation of a single set of rules governing freedom of movement.

European citizens can, mutatis mutandis, move between Member States on similar terms as nationals of a Member State moving around or changing their place of residence inside their own country.

• European citizens have the right to enter, reside and remain in the territory of any other Member State for a period of up to three months simply by presenting a valid passport or national identity card: no other formality is required. If they intend to remain for a period exceeding three months, a residence permit must be obtained. The conditions for granting a residence permit depend on the status of the citizen (employed or self-employed person, student, retired or inactive person).
• Any EU citizen can take up an economic activity in another Member State either as an employed or self-employed person. In this case, he/she will be issued a residence permit by simply presenting an identity document (passport or ID) and proof of employment or self-employment.
• If a citizen wants to reside in another Member State without exercising any activity or to study, he/she can do so provided he/she can prove (and in the case of students, declare) that he/she has sufficient financial resources not to become a burden for the host Member State's social assistance system and that he/she is covered by a sickness insurance policy. He/she must also prove that he/she has sufficient financial resources and sickness insurance for each member of his/her family who is entitled to reside with him/her.
• Family members, irrespective of their nationality, have the right to accompany and establish themselves with a european citizen who is residing in the territory of another Member State. Family members who can enjoy rights under Community law include the spouse, minor (under 21) or dependent children, and dependent ascendants, though in the case of students only the spouse and dependent children enjoy this right. If the family members are not EU citizens, they may be required to hold an entry visa by the Member State where they intend accompany the EU citizen. They shall be granted this visa free of charge and with all facilities by that Member State.

More information about your precise rights when you move to another country can be obtained at: Dialogue with citizens and business site.

Flanking measures to strengthen the freedom of movement and right of residence

Over the years, the Commission has initiated a wide range of measures designed to make the right to free movement a practical reality. For example, laws relating to the recognition of academic and professional qualifications across the EU are now in place. The employment web site, EURES, offers job-seekers and employers EU-wide an information and advisory service in order to facilitate labour mobility. Country guides for people wishing to enter and/or live in another Member State are also available.

The Directive 2004/38/EC on the right of the EU citizens and their family members to move and reside freely within the territory of the Member States

Despite impressive advances, EU citizens could still face problems when they moved to another Member State. Common difficulties concerned notably the lack of information about the extent of their rights, lengthy administrative procedures in obtaining residence documents and the precise definition of the rights of family members. The Directive adopted by the Parliament and Council on 29 April 2004, on a Commission’s proposal (COM (2001) 257 in JOC 270 E of 25 09 2001) was meant to overcome these difficulties.

The main objectives of the Directive are:

• To replace all the previous EC legislation in this field by a single text instead of Regulation (EEC) n° 1612/68 and the 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 et 93/96/EEC;
• to give the rights to move and to reside to EU citizens as such and not anymore to categories of people identified as workers, students, self-employed and so on…
• To simplify the conditions and administrative formalities associated with the exercise of the right of free movement and residence in the Member States. For residence of less than three months, the only requirement is the possession of a valid identity document. For residence of more than three months, the need to hold a residence card for citizens of the Union is abolished and replaced, if provided by national legislation, by registration in the population register of the place of residence, validated by a certificate issued immediately on presentation of proof that the conditions attached to the right of residence are complied with. EU citizens must be either workers or self-employed persons or else dispose of sufficient resources not to become a burden on the social assistance system of the host Member State and a comprehensive sickness insurance. Members of the family must provide proof of identity and of the family link to an EU citizen.
• To introduce the right of permanent residence for EU citizens after five years of continuous residence. They will no longer be subject to any conditions on the exercise of their right of residence, with virtually complete equality of treatment with nationals.
• To facilitate the movement of family members irrespective of whether they are EU nationals or not. The definition of 'family members' covers for the first time registered partners under the legislation of a Member State, if the legislation of the host Member State treats registered partners as equivalent to marriage. Other partners of EU citizens will not have an automatic right to entry and residence in the host Member State. However, the host Member State will have to "facilitate" the entry and residence of the partners with whom the EU citizen has a "durable relationship duly attested", taking into consideration their relationship with the EU citizen. Family members who are nationals of third countries also enjoy greater legal protection, for example in the event of death of the EU citizen on whom they depend, or the dissolution of the marriage under certain circumstances.
• To clarify the limitations to the right of residence on grounds of public policy, public security and public health in order to ensure that citizens of the European Union enjoy better administrative and legal protection in the context of measures restricting their right of residence, and to guarantee strong protection against expulsion for minors and persons who have resided in the host Member State for a long period of time.