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.

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