Proposal for a Council Regulation extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No […] to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality

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Tekst

Delegations will find attached a note from the Austrian delegation with a view to the next meeting

of the Social Questions Working Party, on 27 January 2009.

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ANNEX

Note from the Austrian delegation

  • 1) 
    We would like to propose a new text concerning the relationship between the right to reside and entitlements under this Regulation. (This text could be a new Article or replace Recital No. 8): "The rights emanating from this Regulation are without prejudice to the right of the Member States to refuse, to withdraw or to refuse to renew a permit to reside or to work in the Member State concerned." Justification: We think that all Member States agree on this principle; nevertheless we think the current wording of Recitals 8 is not clear enough. The structure of our proposal corresponds to Art. 12 (3) of the proposal for a single permit Directive (Doc. 16673/08) and to Art. 15 (3) of the proposal for a highly qualified workers Directive (Doc. 16952/08). 2) We request an Annex Entry for Austria with the same wording as in Reg. (EC) No. 859/2003 and also an amendment of Art. 1 of the draft to refer to this Annex as Art. 1 of Reg. (EC) No. 859/2003 does. Justification: As legal residence could also mean legal "stay" for a shorter period or an only temporary residence/stay without any long term perspective (e.g. for study purposes) and practice has shown that sometimes it is very easy to take up employment or self employment in another Member State (from our point of view the legality of that employment is not relevant for the application of the Regulation once legal residence is taken up in another Member State) which opens automatically the application of the Regulation we have to insist on the fulfilment of the conditions under Austrian legislation. These conditions are that the persons concerned have a special residence permit which entitles them to stay for a longer period in Austria. It has to be admitted that there might be not many cases. But as the matter is sensitive from the political point of view already one case in the media could be catastrophic for the process of European integration. 3) We recommend the deletion of Art. 2 of the draft Justification: In applying Reg. 883/2004 we also apply Art. 87 of that Regulation in relation to third country nationals. A separate transitional provision endangers legal clarity. E.g. the text proposed could lead to the question if also a third country national could make use of Art. 87 (8) of Reg. 883/2004 when this person has already been active in the Community before the entry into force of Reg. 883/2004.

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