EU reviews Directive 2004/38/EC progress

The European Commission has finally released the required review of how well member states are implementing Directive 2004/38/EC.

The focus of this review is on comparing the sections of the Directive (each of which is required to be implemented by the member state) with corresponding sections of the member state implementation law or regulations.

All Member States have adopted national laws to protect the right of EU citizens and their families to move and reside freely within the EU.

Although national laws in some areas treat EU citizens and their families better than EU law requires, not one single 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.

The overall transposition of the Directive is rather disappointing.

Unfortunately the review is mainly at this legal level.  There was little attempt to capture how smoothly things have been implemented for citizens on the ground, such as whether visas are actually issued “as soon as possible and on the basis of an accelerated process”, or whether Residence Cards are truly issued as soon as possible and in no cases later than 6 months after the application.

The European Commission release has three interesting pieces:

1. A report from the European Comission to the European Parliament and the Council discussing implementation progress of Directive 2004/38/EC
2. A video of a press conference by Jacques Barrot discussing issues raised by the report and by implementation of the Directive (The audio has two separate channels.  One side is English translation of the Q&A, and the other side is the original language version)
3. A revised “Guide to getting the most out of Directive 2004/38/EC“

political theatre by Mr. Maroni and Mr. Berlusconi

http://www.guardian.co.uk/world/2008/may/22/italy1/print

In a move that appeared certain to cause controversy, the interior minister, Roberto Maroni, said local authorities would be empowered to check on the living conditions of citizens from other EU nations before granting them right of residence.

This is clearly illegal and will by struck down by ECJ.   It is political theatre by Mr. Maroni and Mr. Berlusconi.

What can be legally required is that citizens from other EU nations are working, are students, or are self sufficient.   There is no requirement about where and how they live, unless there is exactly the same requirement for Italian citizens.

The nice thing is that Roma who are denied residence will be able to bring a lawsuit for compensation from the Italian government.

other family members who are beneficiaries

There are other people who are also direct beneficiaries of Directive 2004/38/EC. These are people who do not fall into the explicit definition of “family member“, but who are none the less “part of the family”.

 

For these beneficiaries, Directive 2004/38/EC says in the preamble:

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.

Later, in the text of the Directive, it becomes a little more explicit about who these other beneficiaries are:

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.

 

Who can be a beneficiary of Directive 2004/38/EC is worth breaking up and looking at in more detail, category by category:

“other beneficiary”	Notes and interpretation
2 (a) any other family members [...] who, in the country from which they have come, are [either] dependants or members of the household of the Union citizen	This covers two separate groups, either: other family members who are dependent on the EU citizen, or other family members who live (or have lived recently) in the same household (even if they are not dependent). Another key phrase is “in the country from which they have come“. The phrase is quite open and covers a number of situations. For a Japanese person, it can include their original home country (e.g. Japan), a country they have recently lived in (e.g. USA) or where they currently live (e.g. France). Real examples: UK resident non-EU parent of a UK citizen child (for Irish visitors visa) Brother of the non-EU wife of an EU citizen (previously part of household in Singapore, rejoining family in Ireland) Non-EU cousin of the non-EU spouse of an EU citizen (for Schengen visa)
2 (a) (continued) or where serious health grounds strictly require the personal care of the family member by the Union citizen;	Any good or real examples? e.g. a non-EU parent who has been quite independent but who now needs intensive assistance because of a medical condition such as a stroke or Alzheimer’s
2 (b) the partner with whom the Union citizen has a durable relationship, duly attested	This category covers all other long term “durable” partnerships, including both opposite-sex and same-sex relationships. There is no official definition of how long the relationship must have existed. Some countries expect to see two years of living together, but if you have a child with somebody and live with them it would clearly be incompatible with the Directive to require two years of relationship history. When a member-state does not recognize civil partnerships as equivalent to marriage, this is the category which is used for entry.

 

They key thing for people in this category is proving the family relationship to the EU citizen. Once that is done, the provisions of Directive 2004/38/EC have effect, irrespective of how the national government views the relationship. Ireland provides a good example, where there is norecognition of registered partnerships. This following is part of a press release originally issued by the Irish DOJ for the start of Directive 2004/38/EC.

As Irish legislation does not treat registered partnerships as equivalent to marriage Ireland is not be obliged to recognise registered partners as family members. However, Ireland is obliged to facilitate the entry and residence of the partner with whom the Union citizen has a durable relationship, duly attested. In doing so an extensive examination of the personal circumstances of such relations must be undertaken.

Directive 2004/38/EC’s definition of “Family Member”

Directive 2004/38/EC defines a “Family member” (in point 2 of Article 2) to be one of the following:

“family member”	Notes and interpretation
(a) the spouse;	Would a legal Canadian same-sex marriage be considered a “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;	This applies when the member state treats registered partnership “as equivalent to marriage”. Where that is not true, the partner is not considered a “family member” in this definition, but still has a right of entry as a beneficiary (see beneficiary below). This only covers registered partnerships done by an EU member state. Registered partnerships done in Canada or the US would likely be handled as a beneficiary (see beneficiary below).
(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);	Children (or grandchildren!) under 21 or those who are older than 21 but still dependent (e.g. students supported by their parents). The child can be of the EU citizen or of the non-EU citizen. This would include a child from a previous relationship or from before the EU-citizen obtained their citizenship. It also covers the spouse or partner of the descendant, independent of their age.
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);	Dependent parents and dependent grandparents of either the EU citizen or of the non-EU spouse or partner. Dependent usually means financially dependent, though there may be other legally reasonable interpretations. For non-dependent parents, see beneficiary below.

These are the people who have the easy-evidence route through the Directive. They can usually prove their relationship with a simple document, like a birth certificate or a marriage certificate. These “family members” (as the Directive states) “enjoy an automatic right of entry and residence in the host Member State” when they are with their EU citizen relative.

There are other people who are also direct beneficiaries of Directive 2004/38/EC. These are people who do not fall into this explicit definition of “family member“, but who are none the less “part of the family”. See the information about Other Beneficiaries of Directive 2004/38/EC

Some European Commission observations on Directive 2004/38/EC

The European commission comments on implementation of Directive 2004/38/EC in their REPORT FROM THE COMMISSION, Fifth Report on Citizenship of the Union (1 May 2004 – 30 June 2007) 15.2.2008

Directive 2004/38/EC

The control of the correct implementation of the Directive is an absolute priority for the Commission. Between June 2006 and February 2007, 19 infringement procedures were opened for non-communication of national implementing measures: in June 2007 15 of them were open, 4 of which had been referred to the ECJ. In 2007 the Commission launched a study examining the conformity of transposition measures. Certain problem areas of incorrect implementation of the Directive have, however, already been identified on the basis of individual complaints, petitions and EP questions.

Third country family members continue to encounter problems, not only with regard to authorisation of their entry but also with the issuing of residence cards. They have the right to reside with the Union citizens on grounds of their family link alone but some Member States require them to present documents or undergo procedures not allowed by the Directive. The Commission used and will continue to use its powers under Article 226 EC in order to ensure compliance with the Directive.

Many complaints concern obstacles to free movement encountered by Union citizens travelling to another Member State due to the documents demanded by border authorities and air carriers. In June 2005 the Commission invited all Member States to verify that national legislation and practice, including the rules and regulations applied to and by airlines, are in accordance with EC law. Following the Commission’s intervention, there were essentially no further complaints in this particular area.

In a number of judgments (cases C-200/02 Chen, C-215/03 Oulane, C-157/03 Commission v Spain, C-503/03 Commission v Spain, C-258/04 Ioannidis, C-1/05 Jia, C-50/06 Commission v The Netherlands) the ECJ recalled that the right to reside in the territory of a Member State is conferred directly on every Union citizen by Article 18 EC and underlined the need to interpret the right of free movement in the light of fundamental rights and in particular of the right to protection of family life and the principle of proportionality.

Research into migration

Migration Information Source is a great NGO research group looking at migration in different parts of the world.  They often have interesting material that puts migration into a new perspective.   http://migrationinformation.org/

EU case law blog

http://www.eucaselaw.info/category/free-movement-of-persons/ is an interesting blog looking at EU case law

Comments by Franco Frattini about Roma in Italy

There is a widely supported MEP resolution stating that Parliament “believes that the recent statements to the Italian press by Mr Franco Frattini, a Commission Vice-President, in connection with the serious incidents in Rome were contrary to the spirit and the letter of Directive 2004/38/EC, a directive with which he is called upon to comply in full.“   Another take on it it is at EurActiv

Chindamo and Directive 2004/38/EC protections

There is a nice post at the Free Movement blog about the Chindamo and Directive 2004/38/EC protections.

progress in implementing Directive 2004/38/EC and registered partnerships

A response from the European Commission to a written question by UK MEP Graham Watson. Since Belgium and Luxembourg have not transposed the Directive, it now has direct effect as law in each country.

E-2822/07EN
Answer given by Mr Frattini
on behalf of the Commission
(16.7.2007)

Directive 2004/38/EC of 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 provides for the right of registered partners to accompany or join a Union citizen in the host Member State which treats registered partnerships as equivalent to marriage. Such a right is granted in accordance with conditions laid down in the relevant legislation of the host Member State.

The Czech Republic, Denmark, Estonia, Finland, Lithuania, the Netherlands, Portugal, Spain, Sweden and the United Kingdom have informed the Commission that they recognise registered partnerships as equivalent to marriage for the purposes of free movement under the Directive.

Belgium and Luxembourg have not yet transposed the Directive but national law of the former provides for same-sex marriages and that of the latter for registered partnerships.

No information is available at the moment for Bulgaria and Romania.

The remaining Member States do not recognise registered partnerships as equivalent to marriage for the purposes of free movement under the Directive.

Without prejudice to the right of non-discrimination with regard to nationals, a Member State which does not treat registered partnerships as equivalent to marriage is obliged to facilitate entry and residence of registered partners in accordance with its national legislation under Article 3(2) of the Directive. It must undertake an extensive examination of personal circumstances of the registered partners, notably by taking into consideration their relationship with the Union citizen. Refusal of entry and residence must be justified, notified in writing and is subject to an appeal.

The Commission has no detailed information on how this obligation is dispatched by the national administrations in practice.

With regard to the obligation of the Commission to submit a report on the application of this Directive to Parliament and the Council, laid down by Article 39 of the Directive, the date of 30 April 2006 was an obvious error and a corrigendum to the Directive specified that Article 39 of the Directive should read that the report shall be submitted no later than 30 April 2008.