Clarification on 2004/38 and Non-EU spouse

[Parker]

Hello,
I have what I see as a very simple question/scenario, but the more I research and read about the topic the more confused/worried/skeptical I get. When I read the pamphlets put out by the EU on 2004/38 it seems very simple, but then when I talk to people in various embassies, online, read in forums, who are either well or not so well informed, it seems to get a lot more confusing.

I am a US Citizen, married to a Portuguese national. The marriage was performed in Portugal in April 2011. We are currently living in Portugal, where I have a residency card as a family member of an EU national.
We would like to move to the Netherlands for purposes of work. As I understand from 2004/38, if I move with my EU spouse to any other EU country, I am afforded the same rights so long as they are exercising their treaty rights (working, looking for work, self-sufficient). So we (really, I) could move to the Netherlands without any preexisting commitment (Job contact waiting), and register with the relevant local authorities (in this case the Dutch IND) and get a Dutch residency card, based on my marriage to my EU spouse. Then I would be able to work, without restrictions, just as EU citizen.

This means, that a company would not need to do anything special to hire me, they would not need to ask for a work permit, or anything of the such.
Nor would I need to apply for a work permit in addition to the residency card.

In effect, I am free to seek out employment in the Netherlands and do not require a work permit to work there, so long as my EU spouse moves with me when I move there to take up work?

Thank you for any clarification you might be able to provide. If you have any questions about the situation, let me know.

Edit: I have read here: http://europa.eu/youreurope/citizens/re ... nts_en.htm

Under "Staying abroad for up to 3 months"
"During their stay, they (Non-EU spouse) should be treated as nationals of the country, notably as regards access to employment, pay, benefits facilitating access to work, enrolment in schools etc."

Does this imply that, if I were to go to the Netherlands with my EU spouse, as say, a tourist, I could apply to companies and assure them of the fact that I have the ability to work in the Netherlands without any restrictions? Even though I have yet to register with the local authorities and receive a residence card?

And then, only after the 3 months have elapsed, I would be required to register with the authorities to obtain a residence document. On the same link above, under "Staying abroad for more than 3 months" it says that the residence document must be delivered within 6 months. Imagine it does take 6 months. Am I able to undertake employment during those 6 months? Or am I only able to work once I have the residence document in my possession?

[acme4242]

In effect, I am free to seek out employment in the Netherlands and do not require a work permit to work there, so long as my EU spouse moves with me when I move there to take up work?

As long as your EU spouse moves to the Netherlands to exercise her treaty rights, and is either employed, self-employed, a registered student, or fully self-sufficient.
Then you are also free to move with her and take up work without a work permit per se. You will need to apply for a EU family residence card.
But I don't know the rules if its you that works, and your spouse becomes a housewife.

You are immediately able to work in the Netherlands, even
before the residence card is issued and you don't need a work permit.
However I don't know in practice if the Dutch Employers or Tax authorities
require proof of application for residence card.

See
http://ec.europa.eu/justice/doc_centre/ ... udy_en.pdf

2.5.2 Right to take up employment by family members (Article 23)
Article 23 provides a right for family members who have the right of residence to take up
employment. This is adequately transposed by Dutch law. Article 3 of the Foreign Nationals
(Employment) Act provides that no employment permit can be required from aliens who are entitled
to work without restrictions under EC law. In an Annex to the Act it is explained that this concerns in
particular citizens of a Member State of the EEC or their family members to which Article 11 of
Regulation (EEC) nr. 1612/68 applies. That provision was repealed by the Directive, and therefore the
Act should have been amended in this respect where a provision of dynamic implementation is absent.
In practice it can however be assumed that the main rule applies and suffices to ensure that aliens are
entitled to take up employment or self employment in the Netherlands.

and
http://ec.europa.eu/justice/doc_centre/ ... nce_en.pdf

Citation of the Article of the Directive
Article 23
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
selfemployment there.

Corresponding Dutch national
provision (legal ref. & art.)
Article 3 para 1(a) Foreign
Nationals (Employment) Act
(Wet arbeid vreemdelingen or
WAV)
and Annex to the WAV
Implementation and Delegation
Decree (Delegatie- en
uitvoeringsbesluit Wav);

Complete text of national
provision (in language of
Member State)
Artikel 3 WAV
1. Het verbod, bedoeld in artikel
2, eerste lid, is niet van toepassing
met betrekking tot:
a. een vreemdeling ten aanzien
van wie ingevolge bepalingen,
(…) bij een voor Nederland
verbindend besluit van een
volkenrechtelijke organisatie, een
tewerkstellingsvergunning niet
mag worden verlangd.
Bijlage Mededeling als bedoeld in
artikel 3, tweede lid, van de WAV
Ten aanzien van de hierna te
noemen vreemdelingen mag
ingevolge de daarbij vermelde
bepalingen, vastgesteld (…) bij
een voor Nederland verbindend
besluit van een volkenrechtelijke
organisatie, geen
tewerkstellingsvergunning worden
verlangd:
1. onderdanen van een Lid-Staat
van de Europese Economische
Gemeenschap waarop artikel 1
dan wel gezinsleden van
dergelijke onderdanen waarop
artikel 11 van verordening (EEG)
nr. 1612/68 (…) van toepassing
is;
2. onderdanen van een Staat die
partij is bij de Overeenkomst

Translation into English of Dutch
national provision
Article 3 Foreign Nationals
(Employment) Act
1. The prohibition, referred to in
article 2, para 1, does not apply
to:
a. an alien for whom no
employment permit can be
required as a result of provisions
(…) in a decision that is binding
for the Netherlands of an
international organisation.
Annex to WAV as referred to in
article 3 para 2
Where the following aliens are
concerned, no work permit will
be required under the applicable
decisions that are binding for the
Netherlands of an international
organisation:
1. citizens of a Member-State of
the EEC or their family members
to which article 11 of Regulation
(EEC) nr. 1612/68 (…) applies;
2. citizens of a State that is a
party to the European Economic
Area (…) to which article 1
applies or their family members
to which article 11 of
Regulation (EEC) nr. 1612/68
(…) applies;

Comments/Problems

The main rule is expressed in the
Foreign Nationals (Employment)
Act: no employment permit can be
required from aliens who under EC
law are entitled to work without
restrictions. In an Annex to the Act it
is explained that this notably
concerns citizens of a Member State
of the EEC or their family members
to which article 11 of Regulation
(EEC) nr. 1612/68 applies. That
provision was repealed by the
Directive, and thus the Act should
have been amended in this respect
where a provision of dynamic
implementation (“or any subsequent
EC decision”) is absent. In practice
however it can be assumed that the
main rule applies and suffices to
ensure that aliens are entitled to take
up employment or selfemployment in
the Netherlands.

[EUsmileWEallsmile]

Your ability to work depends on your spouse's status. If they work, then it's really easy, you can too. I

f they are not-working, but are self-sufficient and have comprehensive sickness insurance (CSI) then you could work. Self-sufficient essentially means that they have sufficient funds to live without public assistance; your savings or earnings would count. I understand that the Netherlands has a mandatory health insurance, which you must join if you work and I expect that it would cover family members. I imagine that would count as CSI.

[fysicus]

Parker,

your situation is very straightforward. As long as your Portuguese spouse resides with you in the Netherlands, and you don't need financial support from the government, you're fine.
You have to register in person with the IND and apply for a residence card. They will then put a sticker in your passport as proof that you applied for it, and this sticker confirms to employers that you don't need a work permit. The RC is normally issued within a few weeks after the application, so don't worry about the six month limit (it is an issue in the UK but not in Holland).

If you want to apply for jobs before IND registration (for example while you are still living in Portugal), it is of course advisable to include proof that you are married to a Portuguese national, to convince employers of your EU rights.

Look at http://english.ind.nl/Brochures_en_Form ... index.aspx for the relevant brochures and application forms

[Parker]

Thank you all for the informed replies.

Regrading the issue of health insurance/coverage. My spouse and I are both covered at the moment by the Portuguese health system. To move to the Netherlands and take up residency will we need to take out a form of private insurance? Can we apply for the European Health Insurance Card, and will that prove that we have health coverage (http://ec.europa.eu/social/main.jsp?catId=559)

About the self sufficiency, I have searched for but am not able to find an exact definition of how much money/assets/resources this implies, or how one is able to prove this, ie Must the resources be in the form of cash, in a dutch bank account? Can the resources be in cash but in USD in my account back in the USA?

Thank you

[fysicus]

Your Portuguese health insurance provider should have issued you with an EHIC long ago already, as you would need it for any short trip abroad (within the EU), for example on holidays or business trips.

As soon as you have registered yourself with the Dutch authorities as actually living there, you have to take health insurance from a Dutch insurance company (zorgverzekeraar). This is mandatory for everybody living in the Netherlands; there are no exceptions. Read the info on http://en.wikipedia.org/wiki/Healthcare ... etherlands

There are basically no fixed rules for self-sufficiency, except that you cannot apply for support from the social security system. Even if you don't have any savings yourself but rely on support from family or friends, that is acceptable. Of course it helps if you can show enough assets to live on (modestly) for about a year, say 18000 euro or more.

[fysicus]

I understand that the Netherlands has a mandatory health insurance, which you must join if you work and I expect that it would cover family members. I imagine that would count as CSI.

Health insurance in the Netherlands is indeed mandatory for everybody who lives there, regardless of immigration status or whether you work or not. Hence the provisions in Directive 2004/38 about CSI are irrelevant in the Netherlands, as everybody needs to have it anyway.
Many employers do offer enhanced health insurance schemes (beyond the mandatory basic insurance) which usually covers family members of the employee as well. Sometimes the employer pays for this in full, but usually some contribution towards the cost is expected from the employee, in which case the scheme is of course voluntary.

[Parker]

Your Portuguese health insurance provider should have issued you with an EHIC long ago already, as you would need it for any short trip abroad (within the EU), for example on holidays or business trips.

As soon as you have registered yourself with the Dutch authorities as actually living there, you have to take health insurance from a Dutch insurance company (zorgverzekeraar). This is mandatory for everybody living in the Netherlands; there are no exceptions. Read the info on http://en.wikipedia.org/wiki/Healthcare ... etherlands

There are basically no fixed rules for self-sufficiency, except that you cannot apply for support from the social security system. Even if you don't have any savings yourself but rely on support from family or friends, that is acceptable. Of course it helps if you can show enough assets to live on (modestly) for about a year, say 18000 euro or more.

Thank you again for the reply.

About the self-sufficiency, When I first moved to Europe a couple years ago on a student visa to do my MSc in the UK, the authorities there were very specific with regard to the sufficient funds in the bank. I had to have x number of GBP or the USD equivalent in a bank account and for three months prior to my application for the visa at no point could the value of that account fall below the specified figure.
So basically the provision of self sufficiency is another way of saying you cannot apply for any social support. Luckily this is not an issue I face, but I just was trying to understand if there is any way I needed to explicitly prove this.

[EUsmileWEallsmile]

Your Portuguese health insurance provider should have issued you with an EHIC long ago already, as you would need it for any short trip abroad (within the EU), for example on holidays or business trips.

As soon as you have registered yourself with the Dutch authorities as actually living there, you have to take health insurance from a Dutch insurance company (zorgverzekeraar). This is mandatory for everybody living in the Netherlands; there are no exceptions. Read the info on http://en.wikipedia.org/wiki/Healthcare ... etherlands

There are basically no fixed rules for self-sufficiency, except that you cannot apply for support from the social security system. Even if you don't have any savings yourself but rely on support from family or friends, that is acceptable. Of course it helps if you can show enough assets to live on (modestly) for about a year, say 18000 euro or more.

Thank you again for the reply.

About the self-sufficiency, When I first moved to Europe a couple years ago on a student visa to do my MSc in the UK, the authorities there were very specific with regard to the sufficient funds in the bank. I had to have x number of GBP or the USD equivalent in a bank account and for three months prior to my application for the visa at no point could the value of that account fall below the specified figure.
So basically the provision of self sufficiency is another way of saying you cannot apply for any social support. Luckily this is not an issue I face, but I just was trying to understand if there is any way I needed to explicitly prove this.

It would be useful to know how you get on.

[Directive/2004/38/EC]

So basically the provision of self sufficiency is another way of saying you cannot apply for any social support.

You can not become an excessive burden. But you can apply for some social support. For instance, if you and your spouse move to the UK with a baby, you can apply for the normal small-child money that ALL UK citizens and resident EU citizens can apply for.