COMMISSION OF THE EUROPEAN COMMUNITIES
Brussels, COM(2008) 840/3
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL
on the application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States
(Text with EEA relevance)
1. INTRODUCTION
The purpose of this Report is to present a comprehensive overview of how Directive 2004/38/EC1 is transposed into national law and how it is applied in everyday life. With this report, the Commission is discharging its obligation under Article 39(1) of the Directive to draw up a report on the application of the Directive and to submit it to the European Parliament and the Council2.
The Commission will keep this matter under constant review and will issue further reports and guidelines in due course.
Free movement of persons constitutes one of the fundamental freedoms of the internal market, to the benefit of EU citizens, of the Member States and of the competitiveness of European economy. It is one of the rights mentioned in the Charter of Fundamental Rights of the European Union (Article 45). In the first days of the European project, only workers benefited from free movement (Article 39 of the EC Treaty). Over time, this right was extended to all EU citizens. Citizenship of the Union confers on every EU citizen a primary and individual right to move and reside freely on the territory of the Union, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect (Article 18 of the EC Treaty). Such limitations and conditions are to be found in Directive 2004/38/EC. The Directive codified the existing legislation and case-law in the area of free movement, and simplified it in the interest of reader-friendliness and clarity.
Citizens from Member States that joined the EU recently enjoy unrestricted right of free movement. Transitional arrangements apply only to access to labour markets.
The Directive is fundamental not only for more than 8 million3 EU citizens who reside in another Member State and their family members, but also for the millions of EU citizens travelling every year inside the EU.
The significance of the right of free movement is underlined by the expectations of EU citizens. A recent survey4 has shown that 88% of respondents know of this right5, an increase of 4% since the last such survey in 2002.
This Report has been drawn up on the basis of many sources, including a study6 analysing the conformity of national provisions with the Directive, a questionnaire on practical implementation of the Directive answered by the Member States, the Commission’s own investigations, individual complaints, co-operation with the European Parliament, Parliamentary resolutions, questions and petitions and discussions with Member States on practical issues arising from application of the Directive.
2. MONITORING OF TRANSPOSITION OF THE DIRECTIVE
As stipulated in Article 40(1) of the Directive, Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 30 April 2006.
The Commission organised two meetings with Member States to answer questions concerning the interpretation of the Directive in June 2005 and January 2006.
Communication by Member States of national implementing measures was incomplete and late in a large number of cases. Between June 2006 and February 2007 the Commission initiated infringement proceedings under Article 226 of the EC Treaty against 19 Member States7 for their failure to communicate the text of the provisions of national law adopted to transpose the Directive. Since then, as all Member States have gradually adopted the transposition measures, the infringement proceedings for non-communication have been closed.
The Directive has been already incorporated8 into the EEA Agreement but it is not applicable yet in the non-EU EEA countries, as the fulfilment of the national constitutional requirements is still pending in Norway.
3. COMPLIANCE OF THE TRANSPOSITION MEASURES
The overall transposition of Directive 2004/38/EC is rather disappointing. Not one Member State has transposed the Directive effectively and correctly in its entirety. Not one Article of the Directive has been transposed effectively and correctly by all Member States.
On the other hand, Member States in some areas adopted transposition measures that are more favourable to EU citizens and their family members than required by the Directive itself9.
Although in Cyprus, Greece, Finland, Luxembourg, Malta, Portugal and Spain the problems of compliance are linked only to some provisions of the Directive, considerable parts and crucial provisions of the Directive have been incorrectly transposed in most Member States.
This part of the Report sets out issues of compliance following the structure of the Directive.
3.1. Family members
Generally speaking, the transposition of the definition of family members under Article 2(2) is satisfactory.
Transposition with regard to the rights of other family members under Article 3(2) is less satisfactory. Thirteen 10 Member States [IT included] have failed to transpose Article 3(2) correctly. On the other hand, ten Member States11 transposed it in a more favourable way by extending the automatic right to reside with the EU citizen also to this category of family members.
Same-sex couples enjoy full rights of free movement and residence in thirteen Member States12 [IT included in the footnotes… !?!?, not in fact] which consider registered partners as family members.
Following a judgment of the Court of Justice on 23 September 200313, Denmark, Ireland, Finland and the UK made the right of residence of third country family members conditional upon their prior lawful residence in another Member State. Seven Member States14 adopted the same interpretation through administrative guidelines.
The application of this additional requirement, not provided for in the Directive, resulted in a high number of complaints.
On 25 July 2008 in case C-127/08 Metock, the Court of Justice ruled that the requirement of lawful prior residence is contrary to the Directive. It is important to underline that, according to the referring national court, none of the marriages in the Metock case was a marriage of convenience. The Court of Justice recalled that the Directive does not prevent Member States from fighting against abuse of Community rights, including marriages of convenience, as stipulated in Article 35.
This judgment caused considerable controversy in some Member States, notably in Denmark, where it was suggested that a loophole in immigration law had been created that could make it easier for third country nationals to “regulariseâ€
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