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Corrigendum to EU Directive 2004/58/EC

Corrigendum to Directive 2004/58/EC


Corrigendum to Directive 2004/58/EC of the European Parliament and of the Council of 29 April 2004 on the
right of citizens of the Union and their family members to move and reside freely within the territory of the
Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC,
72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC


(Official Journal of the European Union L 158 of 30 April 2004)

EU Directive 2004/38/EC - Free Movement - Link to the original document


Directive 2004/58/EC should read as follows:
DIRECTIVE 2004/58/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 29 April 2004
on the right of citizens of the Union and their family members to move and reside freely within
the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives
64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC,
90/365/EEC and 93/96/EEC
(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, selfemployed
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).
29.6.2004 EN Official Journal of the European Union L 229/35
(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 (OJ C 43
E, 19.2.2004, p. 42), Council Common Position of 5 December
2003 (OJ C 54 E, 2.3.2004, p. 12) and Position of the European
Parliament of 10 March 2004 (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.
(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 (1) 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.
L 229/36 EN Official Journal of the European Union 29.6.2004
(1) 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).
(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 (1) 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 (2).
(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, to Union citizens other than
those who are workers or self-employed persons or who
retain that status or their family members, or maintenance
assistance for studies, including vocational
training, prior to acquisition of the right of permanent
residence, to these same persons.
(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 (3).
(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.
29.6.2004 EN Official Journal of the European Union L 229/37
(1) OJ L 142, 30.6.1970, p. 24.
(2) OJ L 14, 20.1.1975, p. 10.
(3) OJ 56, 4.4.1964, p. 850. Directive as last amended by Directive
75/35/EEC (OJ 14, 20.1.1975, p. 14).
(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
such as 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.
L 229/38 EN Official Journal of the European Union 29.6.2004
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
29.6.2004 EN Official Journal of the European Union L 229/39
(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 jobseeker
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.
L 229/40 EN Official Journal of the European Union 29.6.2004
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 12 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.
29.6.2004 EN Official Journal of the European Union L 229/41
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, 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 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.
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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 12 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 selfemployed
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.
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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 10 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.
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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, consisting 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, of a 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 nonnationals
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.
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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 10
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.
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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.
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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 30 April 2006 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 30 April 2006.
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 30 April
2006.
3. References made to the repealed provisions and Directives
shall be construed as being made to this Directive.
Article 39
Report
No later than 30 April 2006 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 30 April 2006.
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 Strasbourg, 29 April 2004.
For the European Parliament
The President
P. COX
For the Council
The President
M. McDOWELL
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