Issuu on Google+

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 Name of legal analyst:

Luminita Dima

Contact details:

Luminitzadima@yahoo.com

COUNTRY

ROMANIA

Date Table completed: October 2008

Short introduction on transposition context Within the context of transposing the European legislation in the area of freedom of movement for persons in the European Union and their right of residence, the Parliament of Romania adopted the Law no. 309/2004 on the free movement of citizens of the Member States of the European Union and the European Economic Area on the Romanian territory. This law was aimed at being applicable starting from the date of Romania’s accession to the European Union. Starting from the same date the Governmental Emergency Ordinance no. 194/2002 on the legal status of foreign citizens in Romania was intended to cease its applicability to the citizens of the Member States of the European Union and the European Economic Area and their family members. Having into consideration the changes in the European legislation and the necessity to establish the legal framework for the freedom of movement of the citizens of the European Union Member States, by means of reducing the administrative formalities as a measure representing a main purpose in implementing Schengen Plan, as well as by taking into account that the failure of implementing the Schengen Plan might have determined the postponement of Romania’s accession to the European Union, on 14.7.2005 the Governmental Emergency Ordinance no. 102/2005 on the free movement of citizens of the Member States of the European Union and the European Economic Area on the Romanian territory was adopted, transposing the Council 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. The Governmental Emergency Ordinance no. 102/2005 repealed the former Law no. 309/2004 and entered into force on the date of Romania’s accession to the European Union. Until the date of coming into force, the Governmental Emergency Ordinance no. 102/2005 has been several times amended.

List of transposing national legislation (including legal reference and abbreviations used in TOC) : Governmental Emergency Ordinance no. 102/2005 on the free movement of citizens of the Member States of the European Union and the European Economic Area on the Romanian territory (Official Journal of Romania no. 646/21.07.2005), amended by Law no. 260/2005 (Official Journal of Romania no. 900/07.10.2005) and by Governmental Ordinance no. 30/2006 (Official Journal no. 636/24.07.2006), as it has been modified and approved by Law no. 500/2006 (Official Journal of Romania no. 1055/30.12.2006); Abbreviation : GEO no. 102/2005 Governmental Decision no. 1864/2006 approving the Methodological Norms implementing the Governmental Emergency Ordinance no. 102/2005 on the free movement of citizens of the Member States of the European Union and the European Economic Area on the Romanian territory and establishing the form and content of the documents to be issued to the European Citizens and their family members. Governmental Emergency Ordinance no. 97/2005 on the registration, domicile, residence and identity documents of Romanian citizens (Official Journal of Romania no. 641/20.07.2005), amended by Law no. 290/2005 (Official Journal of Romania no. 959/28.10.2005), Governmental Ordinance no. 83/2006 (Official Journal no. 897/30.11.2006), Law no. 53/2007 (Official Journal of Romania no. 192/20.03.2007), Law no. 241/2007 (Official Journal of Romania no. 496/24.07.2007), Law no. 252/2007 (Official Journal of Romania no. 506/27.07.2007); Abbreviation : GEO no. 97/2005 Law no. 248/2005 on free movement of the Romanian citizens abroad (Official Journal of Romania no. 682/29.07.2005), amended and suppleented by 6 subsequent laws,

Milieu Ltd & Europa Institute, Edinburgh University

ROMANIA

1/67


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 governmental emergency ordinances and ordinances; Abbreviation: Law no. 248/2005 Law no. 21/1991 on the Romanian citizenship (republished in the Official Journal of Romania no. 98/06.03.2000), amended and suppleented by 5 subsequent laws, governmental emergency ordinances and ordinances; Abbreviation: Law no. 21/1991 Law no. 53/2003 – the Labour Code (Official Journal of Romania no. 72/05.02.2003), amended and suppleented by 8 subsequent laws and governmental emergency ordinances; Abbreviation: LC Other abbreviations • CPC: Civil Procedure Code • EU: European Union

Analysed legislation in conformity? (click as appropriate) YES or/and Stricter

Milieu Ltd & Europa Institute, Edinburgh University

NO Incomplete or/and Incorrect G I

ROMANIA

2/67


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

Art

Citation of the Article of the Directive

Chapter I

GENERAL PROVISIONS

Art. 2.1

Definitions

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 2 (1) indent 1

For the purposes of this Directive: 1) "Union citizen" means any person having the nationality of a Member State;

Art. 2.2 (a)

2) "Family member" means: (a) the spouse;

GEO no. 102/2005 Art. 2 (1) indent 3 (a)

Art. 2.2 (b)

(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;

GEO no. 102/2005 Art. 2 (1) indent 7

Art. 2.2 (c)

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in

GEO no. 102/2005 Art. 2 (1) indent 3 (b)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) Dispoziţii generale

Translation into English of national provision

Fully in accord? (y/n)

Art. 2. - (1) În aplicarea prevederilor prezentei ordonanţe de urgenţă, termenii şi expresiile de mai jos au următorul înţeles: 1. cetăţean al Uniunii Europene - orice persoană care are cetăţenia unuia dintre statele membre ale Uniunii Europene; 2. stat membru - stat membru al Uniunii Europene; 3. membru de familie: a) soţul sau soţia;

Art. 2. - (1) For the implementation of the provisions of the present emergency ordinance, the hereinafter mentioned terms and expressions shall have the following meaning: 1. European Union citizen - any person having the citizenship of one of the Member States of the European Union 2. Member State – member state of the European Union; 3. Family member: a) the spouse;

Y

Effective transposition.

Y

Literal transposition.

7. partener - persoana care convieţuieşte cu cetăţeanul Uniunii Europene, dacă parteneriatul este înregistrat conform legii din statul membru de origine ori de provenienţă sau, în cazul în care parteneriatul nu este înregistrat, relaţia de convieţuire poate fi dovedită.

7. partner – the person who lives together with the European Union citizen if the partnership is registered in accordance with the conditions laid down in the relevant legislation of the country from which they have come or in case the partnership is not registered the living together relationship can be duly attested.

n/a

Not transposed.

b) descendenţii în linie directă, indiferent de cetăţenie, care nu au împlinit vârsta de

b) direct descendents, irrespective of their nationality, who are under the age of 21 or those who are in the

Y

According to the Romanian law, the partner is not a family member (as he is not included in the list of family members). The Romanian legislation does not regulate the registered partnership and, consequently, does not treat registered partnership as equivalent to marriage. However, partners are still covered by article 3(2)(b) below, which means that their entry and residence should be facilitated, since they are assimilated to the family members (i.e. benefit of the rights granted to the family members of the Union European citizen regarding the entry and residence in/on the Romanian territory). Effective transposition.

ROMANIA

Comments/Problems

Although

the

3/67

Romanian

text


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

point (b);

Art. 2.2 (d)

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 2 (1) indent 3 (c)

Complete text of national provision (in language of Member State) 21 de ani sau care se află în întreţinerea cetăţeanului Uniunii Europene, precum şi cei ai soţului/soţiei;

Translation into English of national provision European Union citizen’s care or those of the spouse;

Fully in accord? (y/n)

c) ascendenţii în linie directă, indiferent de cetăţenie, care se află în întreţinerea cetăţeanului Uniunii Europene, precum şi cei ai soţului/soţiei;

c) direct ascendants, irrespective of their nationality, who are in the European Union citizen’s care, and those of the spouse.

Y

ROMANIA

Comments/Problems transposing Article 2.2. (c) of the Directive expressly mentions “direct descendents, irrespective of their nationality”, this does not represent an inconsistency since the provision of the Directive does not make any distinction upon nationality of the direct descendants. As well, although the Romanian text does not make any reference to the partner this does not represent a failure in transposition since the partner is not a family member under the Romanian legislation (see comments at Article 2.2. (b) above). According to the legislation in force and case law of Romanian courts, being in someone’s care (“în întreţinere”) –dependant– is a concept consistent with the interpretation given by the ECJ in cases Lebon and Jia. However, the interpretation of this concept by the authorities in implementing the legislation on free movement of citizens of the Member States of the European Union and the European Economic Area on the Romanian territory should also be checked. Effective transposition. Although the Romanian text transposing Article 2.2. (d) of the Directive expressly mentions “direct ascendants, irrespective of their nationality”, this does not represent an inconsistency since the provision of the Directive does not make any distinction upon nationality of the direct descendants. As well, although the Romanian text does not make any reference to the partner this does not

4/67


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 Art

Art. 2.3

Art. 3.1

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

3) "Host Member State" means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.

GEO no. 102/2005 Art. 1

Beneficiaries

GEO no. 102/2005 Art. 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.

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State)

Art. 1. - Prezenta ordonanţă de urgenţă stabileşte condiţiile în care cetăţenii Uniunii Europene şi ai statelor membre ale Spaţiului Economic European şi membrii acestora de familie îşi pot exercita dreptul la liberă circulaţie, de rezidenţă şi de rezidenţă permanentă pe teritoriul României (…) Art. 1. - Prezenta ordonanţă de urgenţă stabileşte condiţiile în care cetăţenii Uniunii Europene şi ai statelor membre ale Spaţiului Economic European şi membrii acestora de familie îşi pot exercita dreptul la liberă circulaţie, de rezidenţă şi de rezidenţă permanentă pe teritoriul României, precum şi

Translation into English of national provision

Fully in accord? (y/n)

Art. 1. - The present emergency ordinance lays down the conditions for governing the exercise of the right of free movement, residence and permanent residence within the Romanian territory by the citizens of Member States of European Union or European Economic Area and their family members (…)

Y

Art. 1. - The present emergency ordinance lays down the conditions for governing the exercise of the right of free movement, residence and permanent residence within the Romanian territory by the citizens of Member States of European Union or European Economic Area and their family members and the limits placed on these rights on grounds of public order, national security or

Y

ROMANIA

Comments/Problems represent a failure in transposition since the partner is nor a family member under the Romanian legislation (see comments at Article 2.2. (b) above). According to the legislation in force and case law of Romanian courts, being in someone’s care (“în întreţinere”) –dependant– is a concept consistent with the interpretation given by the ECJ in cases Lebon and Jia. However, the interpretation of this concept by the authorities in implementing the legislation on free movement of citizens of the Member States of the European Union and the European Economic Area on the Romanian territory should also be checked. Effective transposition. According to article 1 of the Romanian law it results that with respect to the application of this law the host member state is Romania.

Effective transposition. The Romanian provision ensures the applicability of the provisions of the emergency ordinance also in respect of the citizens of Member States of European Economic Area. Although, the Romanian provisions do not make reference to the family members of the European Union citizens “who accompany or join

5/67


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 Art

Art. 3.2 (a)

Citation of the Article of the Directive

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;

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 3 (2), Art. 2 (1) indent 6

Complete text of national provision (in language of Member State) limitele exercitării acestor drepturi din motive de ordine publică, securitate naţională sau sănătate publică.

Translation into English of national provision public health.

Art. 3. - (2) Persoanele aflate în întreţinere, precum şi partenerul beneficiază de drepturile membrilor de familie ai cetăţeanului Uniunii Europene privind intrarea şi rezidenţa pe teritoriul României, în condiţiile stabilite de prezenta ordonanţă de urgenţă.

Art. 3. - (2) The dependants, as well as the partner, benefit of the rights granted to the family members of the Union European citizen regarding the entry and residence in/on the Romanian territory under the conditions stipulated by the present emergency ordinance.

6. persoană aflată în întreţinere - orice alt membru de familie, indiferent de cetăţenie, care nu se încadrează în definiţia prevăzută la pct. 3 şi care, în ţara de origine ori de provenienţă, se află în întreţinerea sau gospodăreşte împreună cu cetăţeanul Uniunii Europene ori se află în situaţia în care, din motive medicale grave, este necesară asistenţa personală a acestuia;

6. Dependent – any other family member, irrespective of nationality, who is not covered by the definition provided at point 3 and who, in the country from which they have come, is in the care, is a member of the household of the European Union citizen or, due to serious health grounds, require personal care by the Union citizen.

ROMANIA

Fully in accord? (y/n)

Y

Comments/Problems them”, such requirement is ensured by the texts transposing the Directive’s provisions on right of residence. Thus, the family members are granted the right of residence under the condition of accompanying or joining the EU citizen – see below provisions of Articles 12 (2) and 13 (1¹) of the Romanian law. The right to enter and exit from Romania of family members of the EU ctizen is not conditioned by accompanying or joining the EU citizen, in accordance with the related provisions of the Directive. Effective transposition. Although the Romanian text transposing Article 3.2. (a) of the Directive does not expressly mention “Without prejudice to any right to free movement and residence the persons concerned may have in their own right”, it does not exclude the dependants and the partner, as defined, from benefiting from their own rights. Consequently, if they have their own right to free movement and residence they could exercise such rights. On the other side, the dependants are assimilated to the “family members” since they benefit of the rights granted to the family members of the Union European citizen regarding the entry and residence in/on the Romanian territory. It results that they benefit of such rights under the same conditions as the “family members”, unless otherwise expressly provided by the law (e.g.

6/67


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 Art

Art. 3.2 (b)

Citation of the Article of the Directive

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 2 (1) indent 7

Complete text of national provision (in language of Member State)

7. partener - persoana care convieţuieşte cu cetăţeanul Uniunii Europene, dacă parteneriatul este înregistrat conform legii din statul membru de origine ori de provenienţă sau, în cazul în care parteneriatul nu este înregistrat, relaţia de convieţuire poate fi dovedită.

Translation into English of national provision

7. Partner – the person who lives together with the European Union citizen if the partnership is registered in accordance with the conditions laid down in the relevant legislation of the country from which they have come or in case the partnership is not registered the living together relationship can be 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.

Milieu Ltd & Europa Institute, Edinburgh University

Fully in accord? (y/n)

Comments/Problems

Y

see below art 13 (7) of the Romanian law transposing art. 7.4 of the Directive). Effective transposition.

Y

Although the Romanian text transposing Article 3.2. (b) of the Directive does not mention the “durable” character of the relationship of the Union citizen with the partner. However, it is obvious, by taking into account the Romanian customs, that if the two persons are living together, such relationship should be considered as a durable relationship. As the Romanian text does not make any distinction upon the sex of the partner, it results that the provisions also refers to the same-sex relationships. With respect to the modality of facilitating the entry and residence see comments at Article 3.2. (a) above. Effective transposition The GEO no. 102/2005 provides only for the obligation of the authorities to justfy any denial of entry or residence in some cases – denial of entry to EU citizens and their family members – Art. 6 (3), denial of residence of family members who are not EU citizens – Art. 19 (7). So it does not provide for the requirement to undertake an extensive examination. However, since a partner in a durable relationship is treated as a core family member under Article 3 (2), they enjoy the direct right of free

ROMANIA

7/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

Comments/Problems movement. Consequently, there is no need for the extensive examination to be transposed. Please note however, that although, the Methodological Norms approved by GD 1864/2006 adopted for the implementation of the GEO 102/2005 refer to the extensive examination of the situation of the person such provision does not refer to the denial of entry or residence, but only to the decision of expulsion of the respective person when he/she is not in one of the situations entitling him/her to the right of residence. The measure of expulsion is taken according to the GEO 102/2005 in case the respective person committed a crime. Therefore, no other cases of denial of entry or residence are covered by such “extensive examination” requirement. This might create difficulties in practice.

Chapter II

RIGHT OF EXIT AND ENTRY

Art. 4.1

Right of Exit Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State.

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 7, Art. 5

Ieşirea de pe teritoriul României a cetăţenilor Uniunii Europene, precum şi a membrilor familiilor lor

Exit from the Romanian territory of the European Union citizens, as well as their family members

Art. 7. - Cetăţenii Uniunii Europene, precum şi membrii familiilor lor pot părăsi teritoriul României pe baza prezentării documentelor şi cu aplicarea corespunzătoare a prevederilor privind aplicarea ştampilei de către organele poliţiei de frontieră, prevăzute la art. 5

Art. 7. - The European Union citizens, as well as their family members may leave the Romanian territory on the basis of presenting the documents and complying with the provisions as regards placing the stamp by the border police, stipulated at art. 5.

ROMANIA

Y

Effective transposition. Fully transposed, by taking into account the provisions of Article 5 of the Romanian law (analised below). The documents refered to are passport and ID card. The requirement of presenting a passport also applies to family members.

8/67


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 Art

Citation of the Article of the Directive

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State) Art. 5. - (1) Intrarea cetăţenilor Uniunii Europene pe teritoriul României este permisă prin toate punctele de trecere a frontierei de stat deschise traficului de persoane, cu condiţia prezentării documentului naţional de identitate, a paşaportului sau a unui document eliberat în condiţiile prezentei ordonanţe de urgenţă pentru cetăţenii Uniunii Europene, valabil, fără a se aplica ştampila de intrare de către organele poliţiei de frontieră în oricare dintre aceste documente. (2) Membrii de familie care nu sunt cetăţeni ai Uniunii Europene pot intra pe teritoriul României în baza unui paşaport valabil şi a vizei de intrare, cu excepţia cazurilor în care obligativitatea obţinerii vizei este desfiinţată în condiţiile legii. (3) Misiunile diplomatice şi oficiile consulare ale României acordă persoanelor prevăzute la alin. (2) viza de intrare pe teritoriul României. Condiţiile pentru eliberarea vizei se stabilesc prin norme metodologice. (4) Membrul de familie care nu este cetăţean al Uniunii Europene, dar care este în posesia unui document valabil, care atestă rezidenţa pe teritoriul unui alt stat membru în calitate de membru de

Translation into English of national provision Art. 5. - (1) The entry of European Union citizens on Romanian territory is allowed through all the border crossing points opened for international traffic for persons, under the condition of presenting the national identity document, the passport or other valid document issued to the European Union citizens according to the present emergency ordinance, without placing the entry stamp by the Border Police on any of such documents. (2) The family members who are not citizens of the European Union may enter the Romanian territory on the basis of a valid passport and an entry visa, except those cases where the requirement to obtain an entry visa has been abolished under the conditions of the law. (3) The Romanian diplomatic missions and the consular offices shall grant the entry visa on Romanian territory to the persons stipulated under the paragraph (2). The conditions for granting the visa are laid down by methodological norms. (4) The family members who are not citizens of the European Union but are holding a valid document attesting the residence on other Member State’s territory as a family member of a European Union citizen shall be exempted from the requirement to obtain an entry visa. The border police authorities shall not apply an entry or exit stamp in the passports of these persons.

ROMANIA

Fully in accord? (y/n)

Comments/Problems

9/67


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 Art

Citation of the Article of the Directive

Art. 4.2

No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies.

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 7, Art. 5

Complete text of national provision (in language of Member State) familie al unui cetăţean al Uniunii Europene, este scutit de la obligativitatea obţinerii unei vize. Organele poliţiei de frontieră nu aplică ştampila de intrare sau de ieşire în paşaportul persoanelor din această categorie. Art. 7. - Cetăţenii Uniunii Europene, precum şi membrii familiilor lor pot părăsi teritoriul României pe baza prezentării documentelor şi cu aplicarea corespunzătoare a prevederilor privind aplicarea ştampilei de către organele poliţiei de frontieră, prevăzute la art. 5. Art. 5. - (1) Intrarea cetăţenilor Uniunii Europene pe teritoriul României este permisă prin toate punctele de trecere a frontierei de stat deschise traficului de persoane, cu condiţia prezentării documentului naţional de identitate, a paşaportului sau a unui document eliberat în condiţiile prezentei ordonanţe de urgenţă pentru cetăţenii Uniunii Europene, valabil, fără a se aplica ştampila de intrare de către organele poliţiei de frontieră în oricare dintre aceste documente. (2) Membrii de familie care nu sunt cetăţeni ai Uniunii Europene pot intra pe teritoriul României în baza unui paşaport valabil şi a vizei de

Milieu Ltd & Europa Institute, Edinburgh University

Translation into English of national provision

Fully in accord? (y/n)

Art. 7. - The European Union citizens, as well as their family members may leave the Romanian territory on the basis of presenting the documents and complying with the provisions as regards placing the stamp by the border police, stipulated at art. 5.

Y

Art. 5. - (1) The entry of European Union citizens on Romanian territory is allowed through all the border crossing points opened for international traffic for persons, under the condition of presenting the national identity document, the passport or other valid document issued to the European Union citizens according to the present emergency ordinance, without placing the entry stamp by the Border Police on any of such documents. (2) The family members who are not citizens of the European Union may enter the Romanian territory on the basis of a valid passport and an entry visa, except those cases where the requirement to obtain an entry visa has been abolished under the conditions of the law.

ROMANIA

Comments/Problems

Effective transposition For the EU citizens only the documents provided by article 5 of the Romanian law are required (valid ID or passport) A contrario, no exit visa is required. In case of family members who are not EU citizens no exit visa is required. The provisions of the Romanian law transposing article 5.2. of the Directive require entry visa except for those family members holding a valid document attesting the residence on other Member State’s territory as a family member of a European Union citizen.

10/67


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 Art

Citation of the Article of the Directive

Art. 4.3

Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality.

Corresponding national provision (legal ref. & art.)

GEO no. 97/2005 Art. 11 (1)

Law no. 248/2005 Art. 15 (1)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) intrare, cu excepţia cazurilor în care obligativitatea obţinerii vizei este desfiinţată în condiţiile legii. (3) Misiunile diplomatice şi oficiile consulare ale României acordă persoanelor prevăzute la alin. (2) viza de intrare pe teritoriul României. Condiţiile pentru eliberarea vizei se stabilesc prin norme metodologice. (4) Membrul de familie care nu este cetăţean al Uniunii Europene, dar care este în posesia unui document valabil, care atestă rezidenţa pe teritoriul unui alt stat membru în calitate de membru de familie al unui cetăţean al Uniunii Europene, este scutit de la obligativitatea obţinerii unei vize. Organele poliţiei de frontieră nu aplică ştampila de intrare sau de ieşire în paşaportul persoanelor din această categorie. Art. 11. – (1) Actul de identitate este documentul care se eliberează, în condiţiile prezentei ordonanţe de urgenţă, cetăţeanului român, şi care fac dovada identităţii, a domiciluilui şi, după caz, a reşedinţei,

Translation into English of national provision (3) The Romanian diplomatic missions and the consular offices shall grant the entry visa on Romanian territory to the persons stipulated under the paragraph (2). The conditions for granting the visa are laid down by methodological norms. (4) The family members who are not citizens of the European Union but are holding a valid document attesting the residence on other Member State’s territory as a family member of a European Union citizen shall be exempted from the requirement to obtain an entry visa. The border police authorities shall not apply an entry or exit stamp in the passports of these persons.

Fully in accord? (y/n)

Art. 11. – (1) The identity document is the document issued under the terms of the present emergency ordinance, to the Romanian citizen stating his/her identity, domicile and, by case, residence.

Y

Art. 15. – (1) Paşaportul simplu se eliberează la cerere cetăţenilor români care îndeplinesc condiţiile prevăzute de prezenta lege şi

Art. 15. – (1) The simple passport shall be issued upon request to the Romanian cizens who meet the requirements provided by the present law and who are not in one

ROMANIA

Comments/Problems

Efective transposition. The mentioned legislation also provides for the extension of validity of such documents. Suspension of the right to travel abroad may be decided in some specific cases expressly provided by the Law 248/2005 (i.e. imprisonment penal punismment, preventive penal measure of prohibition to leave Romania during a penal investigation, etc.).

11/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Law no. 21/1991 Art. 21 (1)

Art.4.4

Art. 5.1

The passport shall be valid at least for all Member States and for countries through which the holder must pass when travelling between Member States. Where the law of a Member State does not provide for identity cards to be issued, the period of validity of any passport on being issued or renewed shall be not less than five years. Right on Entry

Law no. 248/2005 Art. 6¹ (1)

GEO no. 102/2005 Art. 5 (1) and (2)

1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.

No entry visa or equivalent formality may be imposed on Union citizens.

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 5 (1)

Complete text of national provision (in language of Member State) nu se află într-una dintre situaţiile de suspendare a dreptului de a călători în străinătate.

Translation into English of national provision of the situations of suspension of the right to travel abroad.

Fully in accord? (y/n)

Art. 21. – (1) Dovada cetăţeniei române se face cu buletinul de identitate sau, după caz, cu cartea de identitate, paşaportul (…) Art. 6¹. – (1) Pentru scopurile prezentei legi, cartea de identitate valabilă constituie document de călătorie pe baza căruia cetăţenii români pot călători în statele membre ale Uniunii Europene.

Art. 21. – (1) The Romanian citizenship shall be proved by means of the identity bulletin, or, as the case may be, identity card, passport (…) Art. 6¹. – (1) For the purposes of the present law, the valid identity card represent a travel document on grounds of which the Romanian citizens are allowed to travel in the Member States of the European Union.

Art. 5. - (1) Intrarea cetăţenilor Uniunii Europene pe teritoriul României este permisă prin toate punctele de trecere a frontierei de stat deschise traficului de persoane, cu condiţia prezentării documentului naţional de identitate, a paşaportului sau a unui document eliberat în condiţiile prezentei ordonanţe de urgenţă pentru cetăţenii Uniunii Europene, valabil, (…) (2) Membrii de familie care nu sunt cetăţeni ai Uniunii Europene pot intra pe teritoriul României în baza unui paşaport valabil (…) (1) (…) fără a se aplica ştampila de intrare de către organele poliţiei de frontieră

Art. 5. - (1) The entry of European Union citizens on Romanian territory is allowed through all the border crossing points opened for international traffic for persons, under the condition of presenting the national identity document, the passport or other valid document issued to the European Union citizens according to the present emergency ordinance, (…) (2) The family members who are not citizens of the European Union may enter the Romanian territory on the basis of a valid passport (…)

Y

(1) (…) without placing the entry stamp by the Border Police.

Y

Y

Comments/Problems

Effective transposition. The Directive’s requirement is transposed since the purpose of the Romanian law is exercising by the Romanian citizen of their right of freedom of movement abroad. Effective transposition Although the Romanian text transposing article 3.1. of the Directive does not expressly mention “Without prejudice to the provisions on travel documents applicable to national border controls”, it does not exclude the applicability of such provisions. Consequently, such provisions shall apply unless exceptions are expressly mentioned. The Romanian text refers to ‘border crossing points opened for international traffic for persons’ because Romania is not part of Schengen yet. Effective transposition. The Romanian text is the last part of

ROMANIA

12/67


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 Art

Art. 5.2

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

GEO no. 102/2005 Art. 5 (2) and (4)

Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

GEO no. 102/2005 Art. 5 (3)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) în oricare dintre aceste documente.

Translation into English of national provision

(2) Membrii de familie care nu sunt cetăţeni ai Uniunii Europene pot intra pe teritoriul României în baza unui paşaport valabil şi a vizei de intrare, cu excepţia cazurilor în care obligativitatea obţinerii vizei este desfiinţată în condiţiile legii. (4) Membrul de familie care nu este cetăţean al Uniunii Europene, dar care este în posesia unui document valabil, care atestă rezidenţa pe teritoriul unui alt stat membru în calitate de membru de familie al unui cetăţean al Uniunii Europene, este scutit de la obligativitatea obţinerii unei vize. (3) Misiunile diplomatice şi oficiile consulare ale României acordă persoanelor prevăzute la alin. (2) viza de intrare pe teritoriul României. Condiţiile pentru eliberarea vizei se stabilesc prin norme metodologice.

(2) The family members who are not citizens of the European Union may enter the Romanian territory on the basis of a valid passport and an entry visa, except those cases where the requirement to obtain an entry visa has been abolished under the conditions of the law. (4) The family members who are not citizens of the European Union but are holding a valid document attesting the residence on other Member State’s territory as a family member of a European Union citizen shall be exempted from the requirement to obtain an entry visa.

Y

(3) The Romanian diplomatic missions and the consular offices shall grant the entry visa on Romanian territory to the persons stipulated under the paragraph (2). The conditions for granting the visa are laid down by methodological norms.

N, Incorrect

ROMANIA

Fully in accord? (y/n)

Comments/Problems article 5 (1) and, consequently, it refers only to the Union citizens. Article 5 (1) of the GEO 102/2005 does not expressly exclude the requirement of entry visa, but, according to Article 5.2. of this law entry visa is expressly required only for family members who are not citizens of the European Union. Effective transposition. “Abolished under the conditions of the law” refers to “Regulation 539/2001” but also to any bilateral agreements concluded by Romania, if any.

Incorrect transposition. Article 5 (3) of the Romanian law transposing the Directive’s provision, does not ensure the conditions that such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure. However, such details are ensured by the methodological norms implementing the law. Thus, according to Article 2 of the

13/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Art. 5.3

3. The host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10.

GEO no. 102/2005 Art. 5 (4)

Art. 5.4

4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove

GEO no. 102/2005 Art. 6 (1) a) and (2)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State)

(4) Membrul de familie care nu este cetăţean al Uniunii Europene, dar care este în posesia unui document valabil, care atestă rezidenţa pe teritoriul unui alt stat membru în calitate de membru de familie al unui cetăţean al Uniunii Europene, este scutit de la obligativitatea obţinerii unei vize. Organele poliţiei de frontieră nu aplică ştampila de intrare sau de ieşire în paşaportul persoanelor din această categorie Art. 6. - (1) Cetăţenilor Uniunii Europene, precum şi membrilor familiilor lor li se refuză intrarea pe teritoriul statului român numai în următoarele situaţii: a) dacă nu prezintă documentele corespunzătoare prevăzute la art. 5 şi nu fac dovada, prin orice alt mijloc, că beneficiază de dreptul la

Translation into English of national provision

Fully in accord? (y/n)

Comments/Problems

The family members who are not citizens of the European Union but are holding a valid document attesting the residence on other Member State’s territory as a family member of a European Union citizen shall be exempted from the requirement to obtain an entry visa. The border police authorities shall not apply an entry or exit stamp in the passports of these persons.

Y

methodological norms, the visa is issues to the family members who are not EU citizens by the Romanian diplomatic missions and the consular offices with previous approval from the National Center of Visas of the Ministry of Foreign Affairs, upon request, within 48 hours and free of consular taxes. Nevertherless, it is not enough to lay down the rules of visas in a methodological norm as this falls short of the principle of legal certainty and thus the transposition is incorrect. Effective transposition.

Art. 6. – (1) The entry on the Romanian territory shall be refused to the Union citizens, as well as family members, only in the following situations: a) if they do not have the necessary documents provided by art. 5 and do not prove, by means of any other modality, that they are beneficiaries of the right of free movement and residence on the Romanian territory

Y

Effective transposition.

ROMANIA

Although Article 6 (1) does not make express reference to the “family member who is not a national of a Member State”, since the text also refers to the Union citizens, the “family members” shall be those persons who are not nationals of a Member State.

14/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

by other means that they are covered by the right of free movement and residence.

Art.5.5

5. The Member State may require the person concerned to report his/ her presence within its territory within a reasonable and non-discriminatory period of time. Failure to comply with this requirement may make the person concerned liable to proportionate and non-discriminatory sanctions.

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 9 and 321 (1)

Complete text of national provision (in language of Member State) liberă circulaţie şi rezidenţă pe teritoriul României; (…) (2) În situaţia prevăzută la alin. (1) lit. a), înainte de comunicarea refuzului permiterii intrării pe teritoriul României, persoanei i se acordă o perioadă de timp pe care o consideră necesară, în care să dovedească îndeplinirea condiţiilor de intrare sau faptul că beneficiază de dreptul la liberă circulaţie şi rezidenţă pe teritoriul României. Organele poliţiei de frontieră acordă tot sprijinul necesar pentru clarificarea situaţiei persoanei în cauză, inclusiv prin eliberarea vizei de intrare, în cazuri excepţionale, după analizarea situaţiei persoanei în cauză. Art. 9. - În termen de cel mult 15 zile de la data intrării pe teritoriul României, cetăţenii Uniunii Europene sau, după caz, membrii familiilor lor au obligaţia de a se prezenta la cea mai apropiată formaţiune teritorială a Poliţiei Române, a Poliţiei de Frontieră Române sau a Autorităţii pentru străini, pentru a-şi declara prezenţa în România. Art. 321. - (1) Neîndeplinirea oricăreia dintre obligaţiile stabilite la art. 9, 10, 15, 16 şi la art. 19 alin. (1) constituie contravenţie şi se sancţionează

Translation into English of national provision (…) (2) In the situation provided for at paragraph (1) a), before the communication of the refusal of allowing the entry on the Romanian territory, this person is given the necessary period of time to prove they fulfil the entry conditions or the fact that he/she is a beneficiary of the right of free movement and residence on the Romanian territory. The border police officials shall give all the necessary support in order to clarify the situation of the concerned person including the issuing of entry visa in exceptional situations, after analysing the situation of the concerned person.

Fully in accord? (y/n)

Art. 9. - Within 15 days from the entry date on Romanian territory, the European Union citizens or their family members have to present themselves to the nearest territorial branch of Romanian Police, Romanian Border Police or Authority for Foreigners, in order to declare their presence in Romania.

Y

Comments/Problems The reference to the document provided by art. 5 is sufficient since its provisions refer to the documents required for entering the Romanian territory. Neither the law, nor the methodological norms provide for the length of the “necessary period of time”.

Effective transposition. The sanctions may be considered as proportionate if not very law (approx. from 7 up to 14 euro)

Art. 321. - (1) Failure to comply with any of the obligations provided by art. 9, 10, 15, 16 and art. 19 (1) represents an offence sanctioned by fines from 25 lei up to 50 lei.

ROMANIA

15/67


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 Art

Citation of the Article of the Directive

Chapter III

RIGHT OF RESIDENCE

Art. 6.1

Right of residence for up to three months

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 12 (1)

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

Art. 6.2

Art.7.1 (a)

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen. Right of residence for more than three months All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 12 (2)

GEO no. 102/2005 Art. 13 (1) (a) and Art. 2 (2)

Complete text of national provision (in language of Member State) cu amendă de la 25 lei la 50 lei.

Translation into English of national provision

Fully in accord? (y/n)

Comments/Problems

Art. 12. - (1) Cetăţenii Uniunii Europene, care intră pe teritoriul României, beneficiază de drept de rezidenţă pentru o perioadă de până la 3 luni de la data intrării în ţară, fără îndeplinirea vreunei condiţii suplimentare.

Art. 12. – (1) The European Union citizens, who legally entered the Romanian territory, benefit from the right of residence for a period of up to three months from the date of entry in our country, without fulfilling any supplementary conditions.

Y, (Not for jobseekers)

Effective transposition except for jobseekers

(2) Membrii de familie ai cetăţenilor Uniunii Europene, indiferent de cetăţenie, care îi însoţesc sau li se alătură ulterior beneficiază de prevederile alin. (1). Art. 13. - (1) Cetăţenii Uniunii Europene aflaţi în una dintre următoarele situaţii au dreptul de rezidenţă în România pentru o perioadă mai mare de 3 luni: a) desfăşoară pe teritoriul României activităţi dependente sau activităţi independente, în condiţiile legii;

(2) The family members of the European Union citizens, irrespective of nationality, accompanying or subsequently joining them benefit of the provisions provided at paragraph 1. Art. 13. – (1) The European Union citizens shall have the right of residence in Romania for a period longer than three months under the following circumstances: a) They carry out dependent or independent activities, according to the law; Art. 2. - (2) For the purpose of this law, the phrases dependent activity and independent activity are defined

ROMANIA

Y

Although the Romanian text transposing the provisions of article 6.1. of the Directive does not make reference to the requirement to hold a valid identity card or passport, it refers to the Union citizens who legally entered the Romanian territory and, therefore, according to article 5 (1) of the law, comply with such requirement. There is no reference to jobseekers allowing them to stay for six months, which is not in line with ECJ case Antonissen and recital 9 of the Directive. Effective transposition. See also comments above on the transposition of article 6.1. of the Directive.

Y

Effective transposition. The individuals performing dependent and independent activities mentioned by Article 13 (1) (a) of the Romanian law correspond to the meaning of workers and selfemployed persons as refered by Article 7.1. (a) of the Directive and ECJ case law.

16/67


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 Art

Art.7.1 (b)

Citation of the Article of the Directive

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 13 (1) (b) and (2)

Complete text of national provision (in language of Member State) Art. 2. - (2) În sensul prezentei ordonanţe de urgenţă, sintagmele activitate dependentă şi activitate independentă sunt definite potrivit art. 7 din Legea nr. 571/2003 privind Codul fiscal, cu modificările şi completările ulterioare

Translation into English of national provision according to art. 7 of the Law no. 571/2003 regarding Fiscal Code as subsequently modified and supplemented.

Fully in accord? (y/n)

b) deţin mijloace de întreţinere pentru ei şi membrii lor de familie, de regulă cel puţin la nivelul venitului minim garantat în România, şi asigurare de sănătate recunoscută în sistemul asigurărilor sociale de sănătate din România;

b) They have support resources for themselves and for their family members, usually, at least at the level of the minimum income guaranteed in Romania and they have medical insurance accredited (recognised) by the Romanian health insurance system.

N, Incorrect

(2) Dreptul de rezidenţă are o durată determinată de perioada în care titularul acestuia se află în mod efectiv în una dintre situaţiile prevăzute la alin. (1) care au stat la baza acordării dreptului respectiv.

(2) The right of residence has a duration determined by the period in which the entitled person is in one of the situations provided at paragraph (1) which stayed at the basis of granting the respective right.

Comments/Problems According to the Romanian Fiscal Code, dependent activity means any activity carried our by an individual person within an employment relationship and independent activity means any activity regularly carried out by an individual person, other than a dependent activity. The definitions are not very precise, but the interpretation given in practice is consistent with ECJ case law. Incorrect transposition. The provisions of Article 7.1. (b) seem to be transposed since the social assistance indemnity is granted by the public system of social assistance if the income is lower than the minimum income guaranteed in Romania. However, the meaning of “sufficient resources” is not ensured since the Romanian text refers to “support resources for themselves and for their family members, usually, at least at the level of the minimum income guaranteed in Romania”. Thus, there is no provision ensuring that the personal situation of the person shall be taken into account in case the resources are below minimum income guaranteed in Romania or below the limit under which the social assistance indemnity is granted by the public system of social assistance. As regards the sickness insurance, if the medical insurance is accredited (recognised) by the Romanian health insurance system, the respective

Milieu Ltd & Europa Institute, Edinburgh University

ROMANIA

17/67


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 Art

Art.7.1 (c)

Citation of the Article of the Directive

(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 13 (1) (c)

Complete text of national provision (in language of Member State)

c) sunt înscrişi la o instituţie din România, acreditată în condiţiile legii, având ca obiect principal de activitate desfăşurarea de activităţi de învăţământ sau de perfecţionare a pregătirii profesionale, (…)

Translation into English of national provision

c) they are enrolled at a institution from Romania, accredited by the law, having as main purpose educational and vocational training activities, (…)

ROMANIA

Fully in accord? (y/n)

Y

Comments/Problems person has comprehensive sickness insurance cover in Romania. The medical insurance is recognised in case there is an international convenant concluded by Romania with the country where the respective person is insured, under the terms of such convenant. The person who is insured in a Member State of the European Union and holds an European medical insurance card benefits from the same rights as the Romanian citizens holding medical insurance in the Romanian system. Although Article 13 (1) (b) of the Romanian law does not expressly require the compliance with such conditions “during their period of residence”, such requirement is ensured since non compliance with the conditions determines that the respective person is not anymore in one of the cirrcumstances granting the right of residence. Effective transposition. Although the Romanian text transposing Article 7.1. (c) of the Directive does not make express reference to “private or public establishment, accredited or financed by the host Member State”, all these types of establishments are covered since the text of the Romanian law does not make any distinction between private or public establishments and, referring to accredited institutions, it implicitly refers to both those financed by the state and those privately financed.

18/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

- have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

GEO no. 102/2005 Art. 13 (1) (c) and (2)

Art.7.1 (d)

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

GEO no. 102/2005 Art. 13 (1) (d)

Art. 7.2

2. The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).

GEO no. 102/2005 Art. 13 (11)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) (…) au asigurare de sănătate recunoscută în sistemul asigurărilor sociale de sănătate din România şi asigură autorităţile competente, printro declaraţie pe propria răspundere sau prin orice alt mijloc, că deţin mijloace de întreţinere pentru ei şi membrii lor de familie, de regulă cel puţin la nivelul venitului minim garantat în România;

Translation into English of national provision (…) they have social health insurance accredited (recognised) by the Romanian health insurance system and they assure the relevant national authorities, by means of a declaration or by any other means, that they have support resources for themselves and for their family members, usually, at least at the the level of the minimum income guaranteed in Romania.

Fully in accord? (y/n) N, Incorrect

d) sunt membri de familie ai unui cetăţean al Uniunii Europene care îndeplineşte una dintre condiţiile prevăzute la lit. a), b) sau c).

d) they are family members of a European Union citizen who complies with the conditions provided at points a), b) or c).

Y, More favourabl e

Art. 13. - (11) Membrii de familie care nu sunt cetăţeni ai Uniunii Europene pot beneficia de dreptul de rezidenţă pentru o perioadă de peste 3 luni dacă însoţesc sau se alătură ulterior cetăţeanului Uniunii Europene care îndeplineşte una dintre

Art. 13. - (11) Family members who do not have the European Union citizenship may benefit from the right of residence for a period longer than three months if they accompany or subsequently join the European Union citizen who fulfils one of the conditions provided at paragraph 1, points a)- c).

Y

ROMANIA

Comments/Problems Incorrect transposition. See comments above on the transposition of Article 7.1. (b). The meaning of “sufficient resources” is not ensured since the Romanian text refers to “support resources for themselves and for their family members, usually, at least at the level of the minimum income guaranteed in Romania”. Thus, there is no provision ensuring that the personal situation of the person shall be taken into account in case the resources are below minimum income guaranteed in Romania or below the limit under which the social assistance indemnity is granted by the public system of social assistance More favourable treatment. The Romanian text does not refer to family members “accompanying or joining” a Union citizen. Thus, it ensured rights of residence in Romania for a period longer than three months to all family members of a that EU citizen, independently whether they are coming in Romania for accompanying or joining the EU citizen or for other reasons. Effective transposition.

19/67


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 Art

Citation of the Article of the Directive

Art. 7.3 (a)

3. For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (a) he/she is temporarily unable to work as the result of an illness or accident;

Art. 7.3 (b)

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 13 (6)

Complete text of national provision (in language of Member State) condiţiile prevăzute la alin. (1) lit. a)-c). Art. 13. - (6) Pe perioada în care rezidentul aflat în situaţia prevăzută la alin. (1) lit. a) se află în incapacitate temporară de muncă datorată unei boli sau unui accident, beneficiază, în continuare, de dreptul de rezidenţă acordat.

Translation into English of national provision

Fully in accord? (y/n)

Art. 13. - (6) During the period when the resident referred within paragraph (1) (a) is temporarily unable to work as the result of an illness or accident, the resident shall continue to have the right of residence previously granted.

Y

LC Art. 50 (b)

Art. 50. – Contractul individual de munca sa suspenda de drept in urmatoarele situatii: b) concediu pentru incapacitate temporara de munca (…)

Art. 50. – The individual employment contract is suspended by the effect of the law in the following situations: b) temporary work incapacity leave (…)

GEO no. 102/2005 Art. 13 (3)

Art. 13. - (3) Rezidentul care s-a aflat în situaţia prevăzută la alin. (1) lit. a) pentru o

Art. 13. - (3) The resident who was in the situation provided for in paragraph (1) (a) for more than one

ROMANIA

N, Incorrect

Comments/Problems

Effective transposition The Romanian text provides that the person shall continue to have the right of residence previously granted while the Directve ensures such person the status of worker. Retaining the status of worker, is more advantageous than any right of residence. As a worker such persons cannot be considered to be an unreasonable burden on the social assistance system, for example. Also they need to retain the status of worker to benefit for the equal treatment provisions (Article 24). Also if they are not considered workers, they cannot benefit from the acquision of right of permanent residence earlier. Under the Romanian legislation, when the worker is temporarily unable to work as the result of an illness or accident, the employment contract/activity is suspended, but the worker does not loose the status of worker. In addition, the legislation on self employed persons does not provide for the suspension or cessation of the activity of such person on case of temporary work incapacity. Consequently, the self employed person retains his status during such periods. Therefore, the tramsposition of the Directive’s requirement is ensured. Incorrect transposition. According

to

the

20/67

Romanian


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

registered as a jobseeker with the relevant employment office;

Art. 7.3 (c)

(c) he/she is in duly recorded involuntary unemployment after completing a fixedterm employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

GEO no. 102/2005 Art. 13 (4)

Art.7.3 (d)

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be

GEO no. 102/2005 Art. 13 (5)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) perioadă mai mare de un an şi ulterior a devenit şomer, în condiţiile legii, beneficiază, în continuare, de dreptul de rezidenţă, pe perioada în care are această calitate.

Translation into English of national provision year and has subsequently become unemployed person, under the conditions of the law, shall have the right of residence, during the period of his unemployed status.

Fully in accord? (y/n)

Art. 13. - (4) Rezidentul care a avut un contract de muncă cu o durată determinată mai mică de un an sau care s-a aflat în situaţia prevăzută la alin. (1) lit. a) pentru o perioadă de cel mult 12 luni şi ulterior a devenit şomer, în condiţiile legii, beneficiază de dreptul de rezidenţă pentru o perioadă de 6 luni de la data obţinerii acestei calităţi. Art. 13. - (5) Rezidentul care nu se mai află în situaţia prevăzută la alin. (1) lit. a), dar care nu a devenit şomer şi

Art. 13. - (4) The resident who had a fixed-term employment contract for a period less than one year or was in the situation provided at paragraph 1 (a) for maximum 12 months and has subsequently become unemployed, under the conditions of the law, shall benefit of the right of residence for 6 months starting the date of obtaining the unemployed status.

N, Incorrect

Art. 13. - (5) The resident who was in the situation provided for in paragraph (1) (a) but has not subsequently become unemployed

N, Incorrect

ROMANIA

Comments/Problems legislation (Law no. 76/2002 on the protection of the unemployed persons) the “unemployed person” is the person who involuntarily became unemployed after having been employed for more than one year and who is also registered as a jobseeker with the relevant employment office. Although the meaning of “involuntary unemployment after having been employed for more than one year and has registered as a jobseeker with the relevant employment office” is ensured by the Romanian text, pursuant to the Romanian legislation, in case the individual became “unemployed person” he/she does not retain the status of worker. Therefore, the transposition of the Directive’s requirement is not ensured. See also comments above on transposition of Article 7 (3) (a) regarding the transposition of “retention of the status of worker”. Incorrect transposition See comments above on transposition of Article 7 (3) (a) and (b) regarding the transposition of the “retation of status of worker”. Pursuant to the Romanian legislation, in case the individual became “unemployed” he/she does not retain the status of worker. Therefore, the transposition of the Directive’s requirement is not ensured. Incorrect transposition See comments above on transposition of Article 7 (3) (a) regarding the

21/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

related to the previous employment.

Art. 7.4

Art. 8.1

4. By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner. Administrative formalities for Union citizens 1. Without prejudice to Article 5(5), for

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 13 (7)

GEO no. 102/2005 Art. 15 (1)

Complete text of national provision (in language of Member State) urmează un program de pregătire profesională la o instituţie dintre cele prevăzute la alin. (1) lit. c), beneficiază, în continuare, de dreptul de rezidenţă acordat, doar dacă pregătirea se desfăşoară în domeniul de activitate pentru care i s-a acordat acest drept.

Art. 13. - (7) Prin excepţie de la alin. (1) lit. d) şi alin. (11), numai soţul/soţia, partenerul şi copiii aflaţi în întreţinere vor avea drept de rezidenţă ca membri de familie ai unui cetăţean al Uniunii Europene care a dobândit acest drept ca urmare a îndeplinirii condiţiei prevăzute de alin. (1) lit. c). Art. 15. – (1) În vederea luării în evidenţă şi eliberării certificatului de înregistrare, cetăţenii Uniunii Europene

Translation into English of national provision and who is registered in a vocational training program at one of the institutions provided for in paragraph (1) (c), shall have the right of residence previously granted on condition that the training is related to the field of the previous job.

Fully in accord? (y/n)

transposition of the “retention of status of worker”. According to the Romanian legislation, in case the individual who is registered in a vocational training program is not a worker anymore he/she does not retain the status of worker. Therefore, the transposition of the Directive’s requirement is not ensured.

Art. 13. - (7) By exception of paragraph 1, (d) and paragraph 11, only spouse, partner and children dependants shall have right of residence as regards a family member of a European Union citizen who has obtained this right fulfilling the condition stipulated at paragraph (1) (c).

N, Incomplet e

Art. 15. – (1) In order to be registered and to be granted the registration certificate, the European Union citizens falling under the

Y

ROMANIA

Comments/Problems

The Directive differentiates between voluntary and involuntary unemployed. If voluntary, then training linked to previous work; if involuntary, no need. The Romanian text reads “has not subsequently become unemployed” which means under the Romanian law mentioned above 76/2002 that voluntary lost his workplace. The status of “unemployed persons” only applies to those who involuntarily lost their workplaces. This is the reason why the Romanian text transposing 7.3.c) does not mention the word “unemployed”. Incomplete transposition. The requirement to facilitate the right of entry and access of the persons mentioned in article 3(2) has not been transposed.

Effective transposition, but not for jobseekers Although

the

Romanian

22/67

text


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities.

Complete text of national provision (in language of Member State) aflaţi în situaţiile prevăzute la art. 13 alin. (1) lit. a), b) şi c) vor depune la sediul formaţiunii teritoriale competente a Autorităţii pentru străini, în termen de 90 de zile de la data intrării pe teritoriul României, o cerere însoţită de documentul naţional de identitate sau paşaportul, valabile, precum şi de următoarele documente, după caz (…)

Translation into English of national provision situations provided at art.13 (1) (a), (b) and (c), shall submit to the competent territorial branch of the Authority for Foreigners, within 90 days starting the date of their entry on the Romanian territory, an application accompanied by the valid national identity document or valid passport, as well as, as the case may be, the following documents (…)

Fully in accord? (y/n)

Comments/Problems transposing the provisions of Article 8.1. of the Directive does not mention “Without prejudice to Article 5(5)”, the provisions of the text transposing this Article of the Directive on declaring the presence in Romania within 15 days from the entry date shall remain applicable since no exception from its applicability has been settled. Rom law refers to 90 days instead of 3 months. According to the rules applicable in the Romanian legal system, if the law does not make express mention, 90 days shall be counted as calendar days and, therefore, such term may be less than 3 months. However the transposition has been considered correct since this is a minor problem There is no specific exception for job-seekers, so they will also have to register within 90 days.

Art. 8.2

2. The deadline for registration may not be less than three months from the date of arrival. A registration certificate shall be issued immediately, stating the name and address of the person registering and the date of the registration. Failure to comply with the registration requirement may

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 15 (1),

(…) vor depune la sediul formaţiunii teritoriale competente a Autorităţii pentru străini, în termen de 90 de zile de la data intrării pe teritoriul României (…)

(…) shall submit to the competent territorial branch of the Authority for Foreigners, within 90 days starting the date of their entry on the Romanian territory (…)

ROMANIA

N, Incorrect

Article 13 (1) (a)-(c) of the GEO 102/2005 transposing article 7.1 (a)(c) of the Directive does not make express reference to jobseekers, but as the texts do not make any distinction, the persons who fall in the categories mentioned therein may also be jobseekers. Incorrect transposition The Romanian text does not provide the requirement that the registration certificate shall state the name and address of the person register. According to the GD 1864/2006, the

23/67


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 Art

Citation of the Article of the Directive render the person concerned liable to proportionate and non-discriminatory sanctions.

Art. 8.3

3. For the registration certificate to be issued, Member States may only require that — Union citizens to whom point (a) of Article 7(1) applies present a valid identity card or passport, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed persons,

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State) Art. 17. - (1) În baza documentelor depuse de persoanele prevăzute la art. 15 şi 16, organele competente eliberează acestora certificatele de înregistrare în ziua depunerii cererii.

Translation into English of national provision Art. 17. - (1) On the basis of the documents submitted by the persons referred at Articles 15 and 16, the competent authorities are issuing the registration certificate on the same day when the application was submitted.

321.

Art. 321. - (1) Neîndeplinirea oricăreia dintre obligaţiile stabilite la art. 9, 10, 15, 16 şi la art. 19 alin. (1) constituie contravenţie şi se sancţionează cu amendă de la 25 lei la 50 lei.

Art. 321. - (1) Failure to comply with any of the obligations provided by art. 9, 10, 15, 16 and art. 19 (1) represents an offence sanctioned by fines from 25 lei up to 50 lei.

GEO no. 102/2005 Art. 15 (1) (a)

a) copie legalizată a contractului de muncă sau o adeverinţă eliberată de angajator, vizată în condiţiile legii, ori autorizaţia pentru desfăşurarea de activităţi independente, eliberată conform legii, în cazul în care solicită înregistrarea pentru scopurile prevăzute la art. 13 alin. (1) lit. a);

a) a legalised copy of the employment contract or a certificate issued by the employer approved according to the law or the authorisation for carrying out the independent activities, issued under the provisions of the law, in case he/she solicits the granting of the right for the purposes provided for in article 13 (1) (a).

17 (1) and

Fully in accord? (y/n)

Comments/Problems registration certificate must contain more information than the name and address of the person registering and the date of the registration (e.g. personal identification code, date of birth and place of birth, address in Romania, etc.)

Y

The information that the registration certificate must contain is information that can be collected from the documents presented by the person concerned (i.e. information included in the ID card: personal identification code, date of birth and place of birth, address in Romania). Effective transposition The transposition is complete. The requirement to present the valid national identity document or valid passport is mentioned within the first part of Article 15 (1) of the Romanian law. Under the Romanian legislation the conclusion of the employment contract is in writing and its registration with the labour authorities is mandatory for the employer. This is the reason why the requirements for proving the employment relationships are rather rigid. Therfore the conditions applied are the same as those requested to Romanian citizens. On the other side, the self employed persons must be authorised by the Romanian authorities. In case of persons who already became self

Milieu Ltd & Europa Institute, Edinburgh University

ROMANIA

24/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

Comments/Problems employed persons under the legislation of a EU Member State the Romanian authorities issue the authorisation on grounds of the document attesting such status.

— Union citizens to whom point (b) of Article 7(1) applies present a valid identity card or passport and provide proof that they satisfy the conditions laid down therein,

GEO no. 102/2005 Art. 15 (1) (b)

— Union citizens to whom point (c) of Article 7(1) applies present a valid identity card or passport, provide proof of enrolment at an accredited establishment and of comprehensive sickness insurance cover and the declaration or equivalent means referred to in point (c) of Article 7(1). Member States may not require this declaration to refer to any specific amount of resources.

GEO no. 102/2005 Art. 15 (1) (c)

Milieu Ltd & Europa Institute, Edinburgh University

b) dovada că deţin mijloace de întreţinere pentru ei şi, după caz, pentru membrii lor de familie, de regulă cel puţin la nivelul venitului minim garantat în România, şi că au asigurare de sănătate recunoscută în sistemul de asigurări sociale de sănătate din România, în situaţia în care solicită înregistrarea în cazul prevăzut la art. 13 alin. (1) lit. b);

b) the proof that they have support resources for themselves and, as the case may be, for their family members, usually, at least the level of the minimum income guaranteed in Romania and they have health insurance accredited (recognized) by the Romanian social health insurance system, in case he/she applies for the granting of the right for the purposes provided for in article 13(1) (b).

Y

Effective transposition

c) dovada că sunt înscrişi la o instituţie de învăţământ acreditată, dovada că au asigurare de sănătate recunoscută în sistemul naţional de asigurări sociale de sănătate din România şi declaraţia pe propria răspundere sau altă dovadă că deţin mijloace de întreţinere pentru ei şi, după caz, pentru membrii lor de familie, de regulă cel puţin la nivelul venitului minim garantat în România, în cazul în care solicită înregistrarea pentru scopul prevăzut la art. 13 alin. (1) lit. c).

c) a proof of enrollment at an the accredited educational institution where they are registered, the proof that they have health insurance accredited (recognized) by the Romanian social health insurance system and the declaration or another proof that they have support resources for themselves and, if the case may be, for their family members, usually, at least at the level of the minimum income guaranteed in Romania, in case they request the registration for one of the purpose provided for in art. 13 (1) (c).

Y

The transposition is complete. The requirement to present the valid national identity document or valid passport is mentioned within the first part of Article 15 (1) of the Romanian law. Moreover, the Romanian text makes express reference to all the conditions laid down in Article 7 (1) (b) of the directive transposed by means of Article 13 (1) (b) of the Romanian law. See also comments on the transposition of Article 8(4) Effective transposition

ROMANIA

The requirement to present the valid national identity document or valid passport is mentioned within the first part of Article 15 (1) of the Romanian law. However, it should be noted that the reference to sufficient resources, as under Article 8(4) of the Directive has not been transposed correctly. As it is required by the Directive, the Romanian legislation does not require the declaration (statement) to refer to any specific amount of resources. The reference to at least the minimum income (…) would serve as an indication for assessment but not an obligation to refer to this amount.

25/67


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 Art

Art. 8.4

Citation of the Article of the Directive

4. Member States may not lay down a fixed amount which they regard as ‘sufficient resources’, but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 15 (1) (b)

GEO no. 102/2005 Art. 15 (1) (c)

Complete text of national provision (in language of Member State)

Translation into English of national provision

(…)deţin mijloace de întreţinere pentru ei şi, după caz, pentru membrii lor de familie, de regulă cel puţin la nivelul venitului minim garantat în România, (…)

(...)they have support resources for themselves and, as the case may be, for their family members, usually, at least the level of the minimum income guaranteed in Romania (...)

(…) deţin mijloace de întreţinere pentru ei şi, după caz, pentru membrii lor de familie, de regulă cel puţin la nivelul venitului minim garantat în România (…)

(…) they have support resources for themselves and, if the case may be, for their family members, usually, at least at the level of the minimum income guaranteed in Romania (…)

ROMANIA

Fully in accord? (y/n)

N, Incorrect

Comments/Problems However, the reference to point (c) of Article 7(1) or the Directive, involves the condition of assuring that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence. Such condition is not ensured by the Romanian text which refers to “support resources for themselves and for their family members, usually, at least at the level of the minimum income guaranteed in Romania”. Thus, there is no provision ensuring that the personal situation of the person shall be taken into account in case the resources are below minimum income guaranteed in Romania or below the limit under which the social assistance indemnity is granted by the public system of social assistance. Incorrect transposition As it is allowed by the Directive, the Romanian law does not lay down a fixed amount considered as ‘sufficient resources’, but the transposition is not ensured. Thus, the meaning of “sufficient resources” is not ensured since the Romanian text refers to “support resources for themselves and for their family members, usually, at least at the level of the minimum income guaranteed in Romania”. Thus, there is no provision ensuring that the personal situation of the person shall be taken into account in case the resources are below minimum

26/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

Comments/Problems income guaranteed in Romania or below the or below the limit under which the social assistance indemnity is granted by the public system of social assistance See also comments above on transposing Article 7 (1) (b) of the Directive.

Art. 8.5

5. For the registration certificate to be issued to family members of Union citizens, who are themselves Union citizens, Member States may require the following documents to be presented:

GEO no. 102/2005 Art. 16 (1)

(a) a valid identity card or passport;

GEO no. 102/2005 Art. 16 (1)

Milieu Ltd & Europa Institute, Edinburgh University

Art. 16. - (1) În vederea luării în evidenţă şi eliberării certificatului de înregistrare, cetăţenii Uniunii Europene prevăzuţi la art. 13 alin. (1) lit. d) trebuie să depună la sediul formaţiunii teritoriale competente a Autorităţii pentru străini, în termen de 90 de zile de la data intrării pe teritoriul României, o cerere însoţită de documentul naţional de identitate sau paşaportul, valabile, precum şi de următoarele documente: o cerere însoţită de documentul naţional de identitate sau paşaportul, valabile,

(1) In order to be registered in the database and to be granted the registration certificate, the European Union citizens provided in article 13 (1) (d) shall submit to the competent territorial branch of the Authority for Foreigners, within 90 days starting the date of their entry on the Romanian territory an application accompanied by the valid national identity document or a valid passport as well as, as the case may be, the following documents:

Y

an application accompanied by the valid national identity document or a valid passport

Y

ROMANIA

However, the transposing law does not mention that the personal situation of the person concerned will be taken into account. It only says that, usually, it should at least be the level of the minimum income in Romania. The reference to “usually” could imply taking into account personal circumstances since it does not mention a fixed amount but an orientative one. Effective transposition. The European Union citizens provided in article 13 (1) (d) are family members.

Effective transposition.

27/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

(b) a document attesting to the existence of a family relationship or of a registered partnership;

GEO no. 102/2005 Art. 16 (1) (a)

(c) where appropriate, the registration certificate of the Union citizen whom they are accompanying or joining;

GEO no. 102/2005 Art. 16 (1) (b)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) a) actul de stare civilă care atestă căsătoria sau, după caz, documente care atestă legătura de rudenie cu rezidentul;

Translation into English of national provision a) the civil status document attesting the marriage or, where appropriate, documents attesting the existence of a family relationship with the resident;

Fully in accord? (y/n) Y

b) certificatul de înregistrare al cetăţeanului Uniunii Europene căruia i se alătură, dacă cetăţeanul Uniunii Europene a fost luat în evidenţă anterior.

b) the registration certificate of the European Union citizen whom they are joining, if the European Union citizen has been previously registered in the data base.

Y

ROMANIA

Comments/Problems Effective transposition. The reference to the documents attesting the registered partnership is missing from the Romanian text transposing Article 8.5. (b) of the Directive. However, under the Romanian legislation the partner is not a family member, while Article 8.5 refers only to family members – see comments on transposing Article 2.2. (b) of the Directive. Partners are treated as equivalent to family members – See below transposition of Articlr 8(5)(f). Effective transposition Such registration certificate may be provided only if previously issued, so that this provision may be applicable only when the family members are joining an European Union citizen who has been previously registered. As the text refers to the registration certificate, in case of accompanying the EU citizen the procedure of issuance shal be simultaneous, and consequently, the registration certificate of the European Union citizen cannot be provided. However, as the text imposes such condition “if the European Union citizen has been previously registered in the data base” it results per a contrario that in case of accompanying him his registration certificate shall not be required. However, this does not impeach the issuance of the registration certificate for the family member.

28/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

GEO no. 102/2005 Art. 16 (2)

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

GEO no. 102/2005 Art. 16 (3)

(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen.

GEO no. 102/2005 Art. 16 (3)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) (2) Cetăţeanul Uniunii Europene aflat în una dintre situaţiile prevăzute la art. 13 alin. (1) lit. b) şi c), căruia i se alătură membrii de familie prevăzuţi la alin. (1), este obligat să facă dovada că deţine mijloace de întreţinere pentru aceştia, de regulă cel puţin la nivelul venitului minim garantat în România, şi asigurare de sănătate recunoscută în sistemul asigurărilor sociale de sănătate din România.

Translation into English of national provision (2) The European Union citizen to whom is applicable one of the situations provided by art 13 (1) (b) and (c) who is joined by the family members mentioned in paragraph 1 is compelled to prove financial ressources for those, usually, at least at the level of the minimum income guaranteed in Romania and they have health insurance accredited (recognised) by the Romanian social health insurance system.

Fully in accord? (y/n) N, Incorrect

(3) Procedura stabilită la alin. (1) şi (2) se aplică persoanelor aflate în întreţinere şi partenerului, cetăţeni ai Uniunii Europene, situaţie în care aceştia vor prezenta documente eliberate de autoritatea competentă din statul membru de origine sau de provenienţă, care să ateste aceste calităţi, precum şi documentul prevăzut la alin. (1) lit. b). (3) Procedura stabilită la alin. (1) şi (2) se aplică persoanelor aflate în întreţinere şi partenerului, cetăţeni ai Uniunii Europene, situaţie în care aceştia vor prezenta documente eliberate de autoritatea competentă din statul membru de origine sau de provenienţă, care să ateste aceste calităţi, precum şi

(3) The procedure laid down at paragraph (1) and (2) is applicable for dependants and partner, citizens of the European Union, case in which they shall present the documents issued by competent authorities, as well as the documents issued by the competent authority in the origin or provenience country attesting these qualities, as well as document provided by paragraph 1 (b).

Y

(3) The procedure laid down at paragraph (1) and (2) is applicable for dependants and partner, citizens of the European Union, case in which they shall present the documents issued by competent authorities, as well as the documents issued by the competent authority in the origin or provenience country attesting these qualities, as well as document provided by paragraph 1

Y

ROMANIA

Comments/Problems Incorrect transposition The transposition is not correct since the provision of the Directive covers EU family members who are descendants or ascendants within the meaning of Article 2 (2) (c) and (d) independently of the situation of the EU citizen. However the Romanian text referes only to the situation when the EU citizen is included within the categories provided at Art. 13 (1) (b) – sufficient resources; and (c) (student) transposing Art. 7 (1) (b) and (c) which represent a different scope of application of the Directive’s requirement. Effective transposition. Paragraph 1.b of the Romanian provision refers to passport or ID, as well as the registration certificate of the European Union citizen whom they are joining Since there is a general reference to (1) that would also include the proof of the family link.

Effective transposition. Paragraph 1.b of the Romanian provision refers to passport or ID, as well as the registration certificate of the European Union citizen whom they are joining The Romanian provision covers both Article 3.2.a and b.

29/67


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 Art

Citation of the Article of the Directive

Art. 9.1

Administrative formalities for family members who are not nationals of a Member State.

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 19 (1)

1. Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.

Art. 9.2

Art. 9.3

Art.10.1

2. The deadline for submitting the residence card application may not be less than three months from the date of arrival.

GEO no. 102/2005 Art. 19 (1)

3. Failure to comply with the requirement to apply for a residence card may make the person concerned liable to proportionate and non-discriminatory sanctions.

GEO no. 102/2005 Art. 321.

Issue of residence cards

GEO no. 102/2005 Art. 19 (4)

1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called ‘Residence card of a family member of a Union citizen’ no later than six months from the date on which they submit the application. A certificate of

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) documentul prevăzut la alin. (1) lit. b). Art. 19. - (1) În vederea luării în evidenţă şi eliberării cărţii de rezidenţă, membrii de familie prevăzuţi la art. 13 alin. (11) trebuie să depună la sediul formaţiunii teritoriale competente a Autorităţii pentru străini, în termen de 90 de zile de la data intrării pe teritoriul României, o cerere însoţită de următoarele documente (…) trebuie să depună la sediul formaţiunii teritoriale competente a Autorităţii pentru străini, în termen de 90 de zile de la data intrării pe teritoriul României (…)

Art. 321. - (1) Neîndeplinirea oricăreia dintre obligaţiile stabilite la art. 9, 10, 15, 16 şi la art. 19 alin. (1) constituie contravenţie şi se sancţionează cu amendă de la 25 lei la 50 lei. Art. 19. - (4) La depunerea cererii prevăzute la alin. (1) organele competente eliberează solicitantului o adeverinţă care face dovada dreptului de rezidenţă până la eliberarea cărţii de rezidenţă. Cartea de rezidenţă va fi eliberată în cel mult 90 de zile de la depunerea cererii.

Translation into English of national provision

Fully in accord? (y/n)

Comments/Problems

Art. 19. - (1) In order to be registered in the data base record and to be issued the residence card, the family members provided at art. 13 (11) shall submit to the competent territorial branch of the Authority for Foreigners, within 90 days starting the date of their entry in Romania, an application accompanied by the following documents.(...)

Y

(…) shall submit territorial branch for Foreigners, starting the date Romania (…)

to the competent of the Authority within 90 days of their entry in

Y

Effective transposition

Art. 321. - (1) Failure to comply with any of the obligations provided by art. 9, 10, 15, 16 and art. 19 (1) represents an offence sanctioned by fines from 25 lei up to 50 lei.

Y

According to the rules applicable in the Romanian egal system, if the law does not make express mention, 90 days shall be counted as calendar days and, therefore, such term may be less than 3 months. However the transposition has been considered correct since this is a minor problem. Effective transposition.

Art. 19. - (4) Upon submission of the application mentioned in the paragraph (1), the competent authorities issue to the applicant a certificate, attesting the right of residence, valid until the residence card is granted. The residence card shall be issued within maximum 90 days starting the day the application was submitted.

N, Incomplet e

(b).

ROMANIA

Effective transposition. The family members provided at article 13 (11) of the Romanian law are family members who do not have the European Union citizenship and who are intended to benefit from the right of residence for a period longer than three months.

The sanctions may be considered as proportionate if not very law (approx. from 7 up to 14 euro) Incomplete transposition The Romanian text transposing Article 10.1 of the Directive does not require that the document shall be called ‘Residence card of a family member of a Union citizen’. As regards the applicability of this text to the family members of a

30/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

application for the residence card shall be issued immediately.

Comments/Problems Union citizen who are not nationals of a Member State, this is ensured since the transposing text is the paragraph (4) of an article referring to these specific family members.

Art.10.2 (a)

2. For the residence card to be issued, Member States shall require presentation of the following documents: (a) a valid passport;

GEO no. 102/2005 Art. 19 (1) (a)

Art.10.2 (b)

(b) a document attesting to the existence of a family relationship or of a registered partnership;

GEO no. 102/2005 Art. 19 (1) (b)

Art. 19. - (1) În vederea luării în evidenţă şi eliberării cărţii de rezidenţă, membrii de familie prevăzuţi la art. 13 alin. (11) trebuie să depună la sediul formaţiunii teritoriale competente a Autorităţii pentru străini, în termen de 90 de zile de la data intrării pe teritoriul României, o cerere însoţită de următoarele documente: a) paşaport valabil; b) actul de stare civilă care atestă existenţa căsătoriei sau, după caz, documentul care atestă legătura de rudenie cu cetăţeanul Uniunii Europene, însoţit de traducerea legalizată, în cazul în care nu a fost emis de autorităţile unui stat membru;

Art. 19. - (1) In order to be register in the data base record and to be issued the residence card, the family members provided at art.13 paragraph (11) shall submit to the competent territorial branch of the Authority for Foreigners, within 90 days starting the date of their entry in Romania, an application accompanied by the following documents: a) valid passport;

Y

Deadline for issuances of Residence card is more favourable: 90 days instead of 6 months. Effective transposition.

b) the civil status document attesting the marriage or, if the case, the existence of a family relationship with the European Union citizen, accompanied by a legalised translation in case the document is not issued by the authorities of a member state

Y

Effective transposition. The reference to the documents attesting the registered partnership is missing from the Romanian text transposing Article 10.2. (b) of the Directive. However, under the Romanian legislation the partner is not a family member, while Article 10.2 refers only to family members – see comments on transposing Article 2.2. (b) of the Directive. The requirement that the document should be accompanied by a legalised translation in case it is not issued by the authorities of a member state does not affect conformity. The legalized translation is not an additional

Milieu Ltd & Europa Institute, Edinburgh University

ROMANIA

31/67


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 Art

Citation of the Article of the Directive

Art.10.2 (c)

Art.10.2 (d)

Corresponding national provision (legal ref. & art.)

(c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining;

GEO no. 102/2005 Art. 19 (1) (c)

(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

GEO no. 102/2005 Art. 19 (2)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

c) certificatul de înregistrare al cetăţeanului Uniunii Europene căruia i se alătură, dacă cetăţeanul Uniunii Europene a fost luat în evidenţă anterior.

c) the registration certificate of the European Union citizen who is joined by family members , in case European Union citizen was prior registered in the data base record.

Y

(2) Cetăţeanul Uniunii Europene aflat în una dintre situaţiile prevăzute la art. 13 alin. (1) lit. b) şi c), căruia i se alătură membrii de familie prevăzuţi la alin. (1), este obligat să facă dovada că deţine mijloace de întreţinere pentru aceştia, de regulă cel puţin la nivelul venitului minim garantat în România, şi asigurare de sănătate recunoscută în sistemul

(2) The European Union citizen to whom is applicable one of the situations provided by art. 13 (1) (b) and (c) and who is joined by the family members mentioned in paragraph (1), is compelled to prove financial ressources for those, usually, at least at the level of the minimum income guaranteed in Romania and they have health insurance accredited (recognized) by the Romanian social health insurance system.

N, Incorrect

ROMANIA

Comments/Problems document, it is a translated version of the same document to ensure the correct understanding of its content. Effective transposition Such registration certificate may be provided only if previously issued, so that this provision may be applicable only when the family members are joining an European Union citizen who has been previously registered. As the text refers to the registration certificate, in case of accompanying the EU citizen the procedure of issuance shal be simultaneous, and consequently, the registration certificate of the European Union citizen cannot be provided. However, as the text imposes such condition “if the European Union citizen has been previously registered in the data base” it results per a contrario that in case of accompanying him his registration certificate shall not be required. However, this does not impeach the issuance of the registration certificate for the family member. Incorrect transposition The transposition is not correct since the provision of the Directive covers the family members who are not EU citizens bu who are descendants or ascendants in the meaning of Article 2 (2) (c) and (d) independently of the situation of the EU citizen while the Romanian text referes only to the situation when the EU citizen is included within the categories provided at Art. 13 (1) (b) and (c)

32/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Art.10.2 (e)

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

GEO no. 102/2005 Art. 19 (3)

Art.10.2 (f)

(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen.

GEO no. 102/2005 Art. 19 (3)

Art.11.1

Validity of the residence card

GEO no. 102/2005 Art. 20 (1)

1. The residence card provided for by Article 10(1) shall be valid for five years from the date of issue or for the envisaged period of residence of the Union citizen, if this period is less than five years. Art.11.2

2. The validity of the residence card shall not be affected by temporary absences

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 20 (2)

Complete text of national provision (in language of Member State) asigurărilor sociale de sănătate din România.

Translation into English of national provision

(3) Prevederile alin. (1) şi (2) se aplică în mod corespunzător persoanelor aflate în întreţinere şi partenerului, care nu sunt cetăţeni ai Uniunii Europene, situaţie în care vor prezenta documente eliberate de autoritatea competentă din statul membru de origine sau de provenienţă, care să ateste aceste calităţi, precum şi documentele prevăzute la alin. (1) lit. a) şi c). (3) Prevederile alin. (1) şi (2) se aplică în mod corespunzător persoanelor aflate în întreţinere şi partenerului, care nu sunt cetăţeni ai Uniunii Europene, situaţie în care vor prezenta documente eliberate de autoritatea competentă din statul membru de origine sau de provenienţă, care să ateste aceste calităţi, precum şi documentele prevăzute la alin. (1) lit. a) şi c). Art. 20. - (1) Valabilitatea cărţii de rezidenţă prevăzută la art. 19 alin. (4) este de până la 5 ani de la data emiterii, dar nu mai mare decât perioada de rezidenţă a cetăţeanului Uniunii Europene al cărui membru de familie este.

(3) The provisions of paragraphs (1) and (2) shall be applied accordingly to the dependants and to the partner, which are not European Union citizens, case in which shall present documents issued by the competent authority from the origin or provenience country, attesting these qualities, as wel as the documents provided for by paragraph (1) (a) and (c).

Y

transposing Art. 7 (1) (b) and (c) which represent a different scope of application of the Directive’s requirement. Effective transposition.

(3) The provisions of paragraphs (1) and (2) shall be applied accordingly to the dependants and to the partner, which are not European Union citizens, case in which shall present documents issued by the competent authority from the origin or provenience country, attesting these qualities, as wel as the documents provided for by paragraph (1) (a) and (c).

Y

Effective transposition.

Art. 20. - (1) The validity of residence card provided by the art. 19 (4) is up to 5 years from the issuing date and it shall not exceed the period of residence of the European Union citizen whose family member is.

Y

Effective transposition.

Art. 20. - (2) Cartea de rezidenţă prevăzută la art. 19

Art. 20. - (2) The residence card provided by art. 19 (4) loses its

Y

ROMANIA

Fully in accord? (y/n)

Comments/Problems

The transposition is ensured since the validity of the residence card may be less than 5 years (if the residence of the EU citizen is less). Maximum duration of 5 years follows the letter of the Directive. Effective transposition.

33/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

Art.12.1

Retention of the right of residence by family members in the event of death or departure of the Union citizen 1. Without prejudice to the second subparagraph, the Union citizen's death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State. Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 18 (1) and (2)

Complete text of national provision (in language of Member State) alin. (4) îşi pierde valabilitatea în cazul absenţei temporare de pe teritoriul României a titularului pentru mai mult de 6 luni în decurs de un an, cu următoarele excepţii:@ a) absenţa de pe teritoriul României pentru satisfacerea serviciului militar obligatoriu, indiferent de perioadă; b) absenţa de pe teritoriul României pentru motive întemeiate, precum starea de graviditate şi de naştere, boală gravă, participarea la programe de învăţământ sau pregătire profesională ori mutarea în interes de serviciu într-un alt stat membru sau o ţară terţă, pentru o perioadă de maximum 12 luni consecutive. Art. 18. - (1) Dreptul de rezidenţă al membrilor de familie care au cetăţenia Uniunii Europene este valabil pe toată perioada pentru care cetăţeanul Uniunii Europene ai cărui membri de familie sunt are drept de rezidenţă, precum şi, până la împlinirea termenului la care pot beneficia de rezidenţă permanentă, în oricare dintre următoarele situaţii: a) când cetăţeanul Uniunii Europene părăseşte România sau a decedat; (…) (2) În situaţiile prevăzute la alin. (1), dobândirea ulterioară a dreptului de rezidenţă permanentă, în condiţiile

Translation into English of national provision validity in the case of a temporary absence of the owner from the Romanian territory for more than 6 months within a year, with the following exceptions: a) the absence from the Romanian territory for the performance of compulsory military service, irrespective the period; b) the absence from the Romanian territory for justified reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country, for a period of maximum 12 consecutive months.

Fully in accord? (y/n)

Art. 18. - (1) The right of residence granted to the family members holding the European Union citizenship is valid for the whole period of the right of residence of the Union European citizen whose family members they are as well as in the following situations until the deadline for obtaining a permanent residence is fulfilled: a) when the European Union citizen leaves Romania or in case of his/her death; (......) (2) In the situations provided for by paragraph (1), the subsequent obtaining of permanent residence right, under the conditions provided for by Section 3 from the present chapter, is conditioned by the persistence of residence on

Y

ROMANIA

Comments/Problems

Effective transposition. Article 16 of the Romanian law refers to the EU citizens who are family members of a EU citizen who complies with the conditions entitling him to acquire the right of residence in Romania for a period longer than three months and Art. 13 (1) (a)-(d) of the Romanian law transpose Art. 7 (1) (a)-(d) of the Directive.

34/67


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 Art

Citation of the Article of the Directive

Art.12.2

2. Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen's death.

GEO no. 102/2005 Art. 21 (1)

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members

GEO no. 102/2005 Art. 21 (2)

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State) prevăzute în cadrul secţiunii a 3-a din prezentul capitol, este condiţionată de continuarea şederii pe teritoriul României a persoanelor prevăzute la art. 16, în oricare dintre situaţiile prevăzute la art. 13 alin. (1) lit. a)-d). Art. 21. - (1) Dreptul de rezidenţă al membrilor de familie care nu au cetăţenia Uniunii Europene este valabil pe toată perioada pentru care cetăţeanul Uniunii Europene, ai cărui membri de familie sunt, are rezidenţă în România, precum şi, până la împlinirea termenului la care pot beneficia de rezidenţă permanentă, în următoarele situaţii: a) în cazul în care cetăţeanul Uniunii Europene al cărui membru de familie este a decedat, dacă membrul de familie a avut o rezidenţă de cel puţin un an în această calitate; (…) (2) În situaţiile prevăzute la alin. (1), dobândirea ulterioară a dreptului de rezidenţă permanentă este condiţionată de continuarea şederii pe teritoriul României a persoanelor prevăzute la art. 19, în oricare dintre situaţiile prevăzute la art. 13 alin. (1) lit. a) şi b), sau în calitate de membru de familie al unei persoane care îndeplineşte una dintre aceste condiţii, dacă

Translation into English of national provision Romanian territory of persons provided in art.16, in any of the situations stipulated in art.13 (1) (a)(d).

Fully in accord? (y/n)

Art. 21. - (1) The right of residence of the family members who do not have the citizenship of European Union shall be valid for the entire period of the right of residence in Romania of the European Union citizen whose family members they are, as well as in the following situations until the deadline for obtaining the permanent residence is fulfilled: a) in case the European Union citizen whose family member they are, has died, provided that the family member has been residing for at least one year, having this status, (....)

Y

Effective transposition.

(2) In the conditions provided by paragraph (1), the further obtaining of the permanent residence right shall be conditioned by persistence of residence of the persons provided by art. 19, in every situation stipulated by the art. 13 (1) (a) and (b), or as a family member of a person fulfilling one of these conditions, if the family already exists on the Romanian territory.

Y

Effective transposition

ROMANIA

Comments/Problems

Although the Romanian text transposing the second paragraph of Article 12.2. of the Directive does not mention the modality the ‘Sufficient resources’ shall be identified, the meaning referred by the Directive’s provision is ensured by the reference to Article 13 (1) (b) referred by the Romanian text. As regards the meaning of “sufficient resources” see comments at Article 8.4. above.

35/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

of the family, already constituted in the host Member State, of a person satisfying these requirements. ‘Sufficient resources’ shall be as defined in Article 8(4).

Art.12.3

Art.13.1

Such family members shall retain their right of residence exclusively on a personal basis. 3. The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.

Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) familia este deja constituită pe teritoriul României.

Translation into English of national provision

Fully in accord? (y/n)

NT GEO no. 102/2005 Art. 18 (3) and 21 (3)

GEO no. 102/2005 Art. 18 (1) (b) and (c)

Art. 18. - (3) În situaţiile prevăzute la alin. (1) lit. a) dreptul de rezidenţă al copiilor ori părintelui în îngrijirea căruia aceştia se află rămâne valabil până la terminarea studiilor, cu respectarea următoarelor condiţii cumulative: a) copiii locuiesc în România; b) copiii sunt înscrişi la o instituţie de învăţământ din România. Art. 21. - (3) În situaţiile prevăzute la alin. (1) lit. a) dreptul de rezidenţă al copiilor ori părintelui în îngrijirea căruia aceştia se află rămâne valabil până la terminarea studiilor, cu respectarea următoarelor condiţii cumulative; a) copiii locuiesc în România; b) copiii sunt înscrişi la o instituţie de învăţământ din România Art. 18. - (1) Dreptul de rezidenţă al membrilor de familie care au cetăţenia Uniunii Europene este valabil

Art. 18. - (3) In the situations provided at paragraph 1, point a), the right of residence for children or for the parent who has actual custody of the children shall be valid until the finalisation of their studies if the following conditions are cumulatively fulfilled: a) the children live in Romania b) the children are enrolled in an educational institution in Romania. Art. 21. - (3) In the cases provided by the paragraph (1), point a), the right of residence of the children or of the parent who has actual custody of the children shall be valid until the finalisation of their studies, if the following conditions are cumulatively fulfilled: a) the children live in Romania, b) the children are enrolled in an educational institution in Romania.

Y

Art. 18. - (1) The right of residence granted to the family members holding the European Union citizenship is valid for the whole

N, Incomplet e

ROMANIA

Comments/Problems

Article 13 (1) (a) and (b) of the Romanian law transpose the provisions of article 7 (1) (a) and (b) of the Directive referring to the two categories mentioned by the provision analysed herein - second part of Article 12.2. Not transposed Effective transposition. Article 18 refers to familiy members who are EU citizens and Article 21 refers to third country famliy members.

Incomplete transposition. This provision confirms that partners are treated as family members within

36/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

1. Without prejudice to the second subparagraph, divorce, annulment of the Union citizen's marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.

Art.13.2 (a)

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

GEO no. 102/2005 Art. 18 (2)

2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where: (a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least

GEO no. 102/2005 Art. 21 (1) (b) (i) and (c)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) pe toată perioada pentru care cetăţeanul Uniunii Europene ai cărui membri de familie sunt are drept de rezidenţă, precum şi, până la împlinirea termenului la care pot beneficia de rezidenţă permanentă, în oricare dintre următoarele situaţii: (…) b) în cazul soţilor, când se desface sau se anulează căsătoria; c) în cazul partenerilor, când se desface sau se anulează parteneriatul înregistrat. (2) În situaţiile prevăzute la alin. (1), dobândirea ulterioară a dreptului de rezidenţă permanentă, în condiţiile prevăzute în cadrul secţiunii a 3-a din prezentul capitol, este condiţionată de continuarea şederii pe teritoriul României a persoanelor prevăzute la art. 16, în oricare dintre situaţiile prevăzute la art. 13 alin. (1) lit. a)-d). Art. 21. - (1) Dreptul de rezidenţă al membrilor de familie care nu au cetăţenia Uniunii Europene este valabil pe toată perioada pentru care cetăţeanul Uniunii Europene, ai cărui membri de familie sunt, are rezidenţă în România, precum şi, până la împlinirea termenului la care pot beneficia de rezidenţă permanentă, în următoarele situaţii:

Translation into English of national provision period of the right of residence of the Union European citizen whose family members they are as well as in the following situations until the deadline for obtaining a permanent residence is fulfilled: (....) a) in case of spouses, when the marriage has been dissolved or annulled. b) in case of partners, when the registered partnership is dissolved or annulled.

Fully in accord? (y/n)

(2) In the situations provided for by paragraph (1), the subsequent obtaining of permanent residence right, under the conditions provided for by Section 3 from the present chapter, is conditioned by the persistence of residence on Romanian territory of persons provided in art.16, in any of the situations stipulated in art.13 (1) (a)(d).

Y

Art. 21. - (1) The right of residence of the family members who do not have the citizenship of European Union shall be valid for the entire period of the right of residence in Romania of the European Union citizen whose family members they are, as well as in the following situations until the deadline for obtaining the permanent residence is fulfilled: (.....) b) in case of spouses, if the marriage

N, Incomplet e

ROMANIA

Comments/Problems the meaning of article 2 of the Directive. However, the Romanian texts seem to limit the retention of the right of residence to the spouse, in case of spouses, when the marriage has been dissolved or annulled, and, respectively, to the partner, in case of partners, when the registered partnership is dissolved or annulled. The Directive provides for the retention of the right of residence in the above mentioned cases for all the family members holding the European Union citizenship. Effective transposition. Art. 13 (1) (a)-(d) of the Romanian law transpose Art. 7 (1) (a)-(d) of the Directive.

Incomplete transposition. The Romanian texts transposing Article 13.2. (a) are represented by separate provisions for divorce, annulment/declaring the nullity of the marriage, on the one side and, termination of the registered partnership, on the other side. The Romanian texts seem to limit the retention of the right of residence to the spouse, in case of spouses, when

37/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

three years, including one year in the host Member State; or

Art.13.2 (b)

(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children; or

GEO no. 102/2005 Art. 21 (1) (b) (ii) and (c)

Art.13.2 (c)

(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

GEO no. 102/2005 Art. 21 (1) (b) (iii) and (c)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) (…) b) în cazul soţilor, dacă se desface sau se anulează căsătoria în oricare dintre următoarele condiţii: (i) de la încheierea căsătoriei şi până la sesizarea instanţei de judecată competente pentru desfacerea, declararea nulităţii sau anularea căsătoriei au trecut cel puţin 3 ani, din care o perioadă de cel puţin un an pe teritoriul României; c) în cazul partenerilor, când se desface sau se anulează parteneriatul înregistrat, cu aplicarea în mod corespunzător a condiţiilor prevăzute la lit. b). (ii) prin acordul soţilor ori prin hotărâre judecătorească, soţului/soţiei care nu are cetăţenia Uniunii Europene i-a fost încredinţat spre creştere şi educare copilul cetăţeanului Uniunii Europene; c) în cazul partenerilor, când se desface sau se anulează parteneriatul înregistrat, cu aplicarea în mod corespunzător a condiţiilor prevăzute la lit. b). (iii) instanţa de judecată a hotărât desfacerea căsătoriei numai din vina soţului/soţiei care este cetăţean al Uniunii Europene; c) în cazul partenerilor, când se desface sau se anulează

Translation into English of national provision is dissolved or annulled in the following conditions: i) at least 3 years had passed from the conclusion of marriage up to the moment when the competent court was notified for dissolving, declaring the nullity or annulling the marriage, from which a period of at least 1 year they lived having this status on the Romanian territory;

Fully in accord? (y/n)

Comments/Problems the marriage has been dissolved or annulled, and, respectively, to the partner, in case of partners, when the registered partnership is dissolved or annulled. The Directive provides for the retention of the right of residence in the above mentioned cases for all the family members who do not have the citizenship of European Union.

c) in the case of partners, when the registered partnership is dissolved or annulled, the conditions provided for by point b) are accordingly applicable.

ii) by the spouses agreement or by court decision, the spouse who is not European Union citizen was entrusted custody of (to bring up and educate) the child of the European Union citizen; c) in the case of partners, when the registered partnership is dissolved or annulled, the conditions provided for by point b) are accordingly applicable.

Y

iii) the court decided the dissolution of the marriage based on the fault of the European Union citizen; c) in the case of partners, when the registered partnership is dissolved or annulled, the conditions provided for by point b) are accordingly

N, Incorrect

ROMANIA

Effective transposition. See also comments above transposition of Article 13.2. (a).

on

Incorrect transposition The Romanian provisions transposing Article 13.2 (c) of the Directive does not refer to domestic violence. The Romanian texts refer to the

38/67


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 Art

Citation of the Article of the Directive

Art.13.2 (d)

Corresponding national provision (legal ref. & art.)

d) by agreement between the spouses or partners referred to in point 2 (b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

GEO no. 102/2005 Art. 21 (1) (b) (iv) and (c)

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of

GEO no. 102/2005 Art. 21 (2)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) parteneriatul înregistrat, cu aplicarea în mod corespunzător a condiţiilor prevăzute la lit. b).

Translation into English of national provision applicable.

(iv) în urma acordului soţilor ori prin hotărâre judecătorească, instanţa de judecată stabileşte dreptul soţului/soţiei care nu are cetăţenia Uniunii Europene de a vizita copilul minor. În acest caz, instanţa de judecată trebuie să precizeze în dispozitivul hotărârii judecătoreşti că vizitele se vor efectua pe teritoriul României, cu indicarea exactă a perioadei de timp pentru care acest drept este acordat. c) în cazul partenerilor, când se desface sau se anulează parteneriatul înregistrat, cu aplicarea în mod corespunzător a condiţiilor prevăzute la lit. b). (2) În situaţiile prevăzute la alin. (1), dobândirea ulterioară a dreptului de rezidenţă permanentă este condiţionată de continuarea şederii pe teritoriul României a persoanelor prevăzute la art. 19, în oricare dintre situaţiile prevăzute la art. 13 alin. (1) lit. a) şi b), sau în calitate de

iv) by the spouses agreement or by court decision, the court establishes the right of the spouse who is not European Union citizen to visit the minor child. In this case, the court has to specify in the decision that the visits shall be done on the Romanian territory, stating precisely the period of time for which the right is granted. c) in the case of partners, when the registered partnership is dissolved or annulled, the conditions provided for by point b) are accordingly applicable.

Y

(2) In the conditions provided by paragraph (1), the further obtaining of the permanent residence right shall be conditioned by persistence of residence of the persons provided by art. 19, in every situation stipulated by the art.13 (1) (a) and (b), or as a family member of a person fulfilling one of these conditions, if the family already

Y

ROMANIA

Fully in accord? (y/n)

Comments/Problems dissolution of the marriage or partnership based on the fault of the European Union citizen, which does not cover all cases of domestic violence victimisation of the spouse/partner who is not citizen of a Member State (i.e. both spouses’ fault). The transposition should be larger than a court dissolution based on fault. Incorrect transposition. Effective transposition. See also comments above on transposition of Article 13.2. (a). In the view of avoiding the problems related to the interpretation of the wording “for as long as is required”, the Romanian law makes reference to the court’s decision mentioning that it should state precisely the period of time for which the right is granted.

Effective transposition. Although the Romanian text transposing the second paragraph of Article 13.2. last part of the Directive does not mention the modality the ‘Sufficient resources’ shall be identified, the meaning referred by the Directive’s provision is ensured by the reference to Article 13 (1) (b)

39/67


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 Art

Citation of the Article of the Directive

Art.14.1

residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. 'Sufficient resources' shall be as defined in Article 8(4). Such family members shall retain their right of residence exclusively on personal basis. Retention of the right of residence

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 241 (1)

2. Union citizens and their family Members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

GEO no. 102/2005 Art. 241 (2)

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically.

GEO no. 102/2005 Art. 241 (3)

Milieu Ltd & Europa Institute, Edinburgh University

Translation into English of national provision exists on the Romanian territory.

Fully in accord? (y/n)

Comments/Problems referred by the Romanian text. As well the detailed list of requirements has been transposed by reference to Article 13 (1) (a) and (b) of the Romanian law which transpose such requirements.

NT

Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

Art.14.2

Complete text of national provision (in language of Member State) membru de familie al unei persoane care îndeplineşte una dintre aceste condiţii, dacă familia este deja constituită pe teritoriul României.

Not transposed

Art. 241. - (1) Cetăţenii Uniunii Europene şi membrii de familie ai acestora beneficiază de dreptul de rezidenţă prevăzut la art. 12 atât timp cât nu devin o sarcină excesivă pentru sistemul asigurărilor sociale din România.

Art. 24¹. - (1) The European Union citizens and their family members shall have the right of residence provided for by art.12 as long as they do not become an excessive burden to the Romanian social insurance system.

Y

Effective transposition.

(2) Cetăţenii Uniunii Europene şi membrii de familie ai acestora beneficiază de dreptul de rezidenţă prevăzut în secţiunea a 2-a atât timp cât îndeplinesc condiţiile prevăzute la art. 13, 18 şi 21. (3) Autoritatea pentru străini poate verifica îndeplinirea condiţiilor pentru exercitarea dreptului de rezidenţă de către cetăţenii Uniunii Europene şi membrii de familie ai acestora

(2) The European Union citizens and their family members shall benefit of the residence right provided for by Section 2 as long as they fulfil the conditions stipulated by art. 13, 18 and art.21.

Y

Article 12 of the Romanian law transposes Article 6 of the Directive In practice the wording of the Romanian text (“social insurance system”) is interpreted as referring to the “social assistance”. Thus, the social insurance system involves payment of contributions to such system for a specific period to be insured, and one cannot become “excessive burden” in such an insurance system. Effective transposition.

(3) Authority for Foreigners may verify the compliance with conditions for exercising the right of residence by the European Union citizens and their family members.

N, Incomplet e

ROMANIA

Incomplete transposition The Romanian text transposing the last part of Article 14.2 of the Directive does not limit the verification of fulfilment of these conditions to the “specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the

40/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

3. An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State.

GEO no. 102/2005 Art. 242 (1)

Art.14.4 (a)

4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if: (a) the Union citizens are workers or selfemployed persons, or

GEO no. 102/2005 Art. 243 (a)

Art.14.4 (b)

(b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case,

GEO no. 102/2005 Art. 243 (b)

Art.14.3

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

Art. 242. - (1) Împotriva cetăţenilor Uniunii Europene şi membrilor de familie ai acestora care nu îndeplinesc condiţiile de exercitare a dreptului de rezidenţă, potrivit art. 241, Autoritatea pentru străini poate emite o decizie de părăsire a teritoriului României.

Art. 24². - (1) Authority for Foreigners may take a decision of leaving the Romanian territory against the European Union citizens and their family members who do not comply with the conditions for exercising the residence right under the provisions of art.241.

N, Incorrect

Art. 243. - Decizia de părăsire a teritoriului României nu poate fi emisă împotriva cetăţenilor Uniunii Europene şi a membrilor de familie ai acestora, dacă: a) cetăţeanul Uniunii Europene desfăşoară activităţi dependente sau independente;

Art. 24³. - The order of leaving the Romanian territory cannot be issued against European Union citizens and their family members, if: a) European Union citizen carries out dependent or independent activities.

Y

b) cetăţeanul Uniunii Europene dovedeşte prin orice mijloc că este în căutarea unui

b) European Union citizen proves by any means that is searching for employment and has real chances to

N, Incomplet e

ROMANIA

Comments/Problems conditions”. Moreover, the requirement that such verification “shall not be carried out systematically” is not transposed. The transposing provision is therefore too general and does not grant the same level of protection to EU citizens and familiy members as the Directive. Incorrect transposition The corresponding text in the Romanian law does not ensure the requirement that the expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State. It seems that in Romania one can become an unreasonable burden for taking recourse to social assistance. Effective transposition. Although the Romanian text transposing the provisions of Article 14.4. of the Directive does not mention “By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI”, the provisions of the text transposing this Article shall remain applicable since no exception from its applicability has been settled and it may represent in fact derogatopn from paragraphs 1 and 2. See also comments abve on the transposition of article 7.1. (a) of the Directive. Incomplete transposition The Romanian text does not ensure

41/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.

Art.15.1

Procedural safeguards The procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health.

Art.15.2

2. Expiry of the identity card or passport on the basis of which the person concerned entered the host Member State and was issued with a registration certificate or residence card shall not

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 17 (3), Art. 19 (8), Art. 24² (4)

Complete text of national provision (in language of Member State) loc de muncă şi că are posibilităţi reale de a fi angajat.

Translation into English of national provision be employed.

Art. 17. - (3) Împotriva refuzului eliberării certificatului de înregistrare se poate face acţiune la instanţa de contencios administrativ competentă.

Art. 17. - (3) The refusal of issuing the register certificate may be contested to the competent specialised administrative court.

Art. 19. - (8) Împotriva refuzului eliberării cărţii de rezidenţă se poate face acţiune la instanţa de contencios administrativ competentă.

GEO no. 102/2005 Art. 25 (1)

Art. 24². – (4) Împotriva deciziei de părăsire a teritoriului României se poate face acţiune la instanţa de contencios administrativ competentă. Exercitarea unei căi de atac întrerupe curgerea termenului în care persoana are obligaţia să părăsească teritoriul României. Art. 25. - (1) Autorităţile române competente pot restrânge exercitarea dreptului la liberă circulaţie pe teritoriul României de către cetăţenii

Fully in accord? (y/n)

N, Incomplet e

Art. 19. - (8) The refusal of granting residence card can be appealed before the competent specialised administrative court. Art. 24². - (4) The leaving order of Romanian territory can be appealed before the competent specialised administrative court. Using a mean of attack of this decision interrupt the calculation of the term within which the person is compelled to leave Romanian territory

Art. 25. - (1) The Romanian authorities may restrict the exercising of the right of free movement on Romanian territory by the European Union citizens or by

ROMANIA

Y

Comments/Problems the requirement that the Union citizens entered the territory of Romania in order to seek employment. This is a fault in tansposition since this provisions is specifically designed for job-seekers who do not have to comply with any conditions to enter and reside a MS for 6 months. For other types of jobseekers (those who have lost a job once already in the country) there are other provisions in the Directive. Incomplete transposition Although they refer to “the decision of restricting the right of free movement” the provisions of article 30 and 31 have not been completely transposed by the Romanian law. There are both incorrect and incomplete transposition cases. Therefore, the transposition is incomplete.

Effective transposition The transposition is ensured since the exercising of the right of free movement on Romanian territory by

42/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

constitute a ground for expulsion from the host Member State.

Art.15.3

3. The host Member State may not impose a ban on entry in the context of an expulsion decision to which paragraph 1 applies.

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 25 (1)

Complete text of national provision (in language of Member State) Uniunii Europene sau de către membrii de familie ai acestora numai din raţiuni de ordine publică, securitate naţională ori sănătate publică.

Art. 25. - (1) Autorităţile române competente pot restrânge exercitarea dreptului la liberă circulaţie pe teritoriul României de către cetăţenii Uniunii Europene sau de către membrii de familie ai acestora numai din raţiuni de ordine publică, securitate naţională ori sănătate publică.

Translation into English of national provision their family members only on grounds of public order, national security or public health.

Art. 25. - (1) The Romanian authorities may restrict the exercising of the right of free movement on Romanian territory by the European Union citizens or by their family members only on grounds of public order, national security or public health.

ROMANIA

Fully in accord? (y/n)

Comments/Problems the European Union citizens or by their family members may be restricted only on grounds of public order, national security or public health, Per a contrario, such restriction (including expulsion) cannot be imposed in case of expiry of the identity card or passport. In addition the order to leave Romania under Article 242 can only be decided for not meeting the conditions (see comments to transposition of Article 14(3) above), which do not include the grounds listed in Article 15(2) fof the Directive.

Y

However, to avoind misunderstandings this requirement could have been expressly transposed. Effective transposition The transposition is ensured since the exercising of the right of free movement on Romanian territory by the European Union citizens or by their family members may be restricted only on grounds of public order, national security or public health, Per a contrario, such restriction (including the ban on entry) cannot be imposed in those cases mentioned by Art. 15. 1 of the Directive (on grounds other than public policy, public security or public health).

43/67


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 Art

Citation of the Article of the Directive

Chapter IV

RIGHT OF PERMANENT RESIDENCE Section I. Eligibility General rule for Union citizens and their family members 1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

Art.16.1

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 22 (1)

Art.16.2

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

GEO no. 102/2005 Art. 22 (2)

Art.16.3

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

GEO no. 102/2005 Art. 22 (3)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

Art. 22. - (1) Cetăţenii Uniunii Europene care au o rezidenţă continuă şi legală pe teritoriul României pentru o perioadă de cel puţin 5 ani beneficiază de dreptul de rezidenţă permanentă.

Art. 22. - (1) The European Union citizens who have resided legally for a continuous period of at least 5 years in Romania shall have the right of permanent residence there.

Y

Effective transposition.

(2) Persoanele care nu au cetăţenia Uniunii Europene şi care au o rezidenţă continuă pe teritoriul României pentru o perioadă de cel puţin 5 ani, în calitate de membri de familie ai unui cetăţean al Uniunii Europene rezident sau rezident permanent, beneficiază de prevederile alin. (1). (3) La stabilirea continuităţii perioadei de rezidenţă nu sunt considerate întreruperi: a) absenţele temporare de pe teritoriul României care nu depăşesc 6 luni în decurs de un an; b) absenţa de pe teritoriul României pentru satisfacerea serviciului militar obligatoriu; c) absenţa de pe teritoriul României pentru motive întemeiate, precum starea de graviditate şi de naştere, boală gravă, participarea la programe de învăţământ sau pregătire profesională ori mutarea în interes de serviciu într-un alt stat membru sau o

(2) The persons who do not have the European Union citizenship and who have resided legally for a continuous period of at least 5 years in Romania as family members of a European Union citizen who is a resident or permanent resident, shall benefit of the provisions of paragraph (1).

Y

Although the Romanian text does not mention that “This right shall not be subject to the conditions provided for in Chapter III”, it results that the right of permanent residence shall be obtained without being necessary to comply with such requirements. Effective transposition.

(3) Continuity of residence shall not be affected by: (a) temporary absences not exceeding a total of six months a year; (b) absences from the Romanian territory for compulsory military service; (c) absence of a maximum of twelve consecutive months from the Romanian territory for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

Y

Effective transposition.

ROMANIA

Comments/Problems

44/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Art.16.4

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.

GEO no. 102/2005 Art. 22 (4)

Art.17.1 (a)

Exemptions for persons no longer working in the host Member State and their family members

GEO no. 102/2005 Art. 23 (1) (a)

1. By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by: (a) workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years. If the law of the host Member State does not grant the right to an old age pension to certain categories of self-employed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60;

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 23 (1) (a), last part

Complete text of national provision (in language of Member State) ţară terţă, pentru o perioadă de maximum 12 luni consecutive. (4) Dreptul de rezidenţă permanentă se pierde în cazul unei absenţe de pe teritoriul României pentru o perioadă mai mare de 2 ani consecutivi. Art. 23. - (1) Prin excepţie de la prevederile art. 22, rezidenţii beneficiază de rezidenţă permanentă, anterior împlinirii perioadei continue de 5 ani de şedere, atunci când: a) desfăşoară activităţi dependente sau activităţi independente şi care, în momentul încetării activităţii, au dreptul de pensie pentru limită de vârstă sau celor al căror contract de muncă încetează cu drept de pensionare anticipată în condiţiile legii, dacă au fost angajaţi în România în ultimele 12 luni cel puţin şi au avut o şedere continuă mai mare de 3 ani pe teritoriul României. Pentru rezidenţii care desfăşoară profesii liberale condiţia referitoare la vârsta de pensionare se consideră îndeplinită în momentul împlinirii vârstei de 60 de ani, dacă legea nu prevede altfel;

Translation into English of national provision

Fully in accord? (y/n)

(4) The right of permanent residence shall be lost in the case of an absence from the Romanian territory longer than two consecutive years.

Y

Effective transposition.

Art. 23. - (1) By way of derogation from the provisions of article 22, the right of permanent residence shall be granted, before completion of a continuous period of 5 years, to the residents who: a) are carrying out dependent or independent activities and who, at the moment they stop working, have the right to an old age pension or whose work contract ceases with entitlement to early retirement according to the law, provided that they have been working in Romania for at least the preceding twelve months and have continuously resided for more than 3 years on the Romanian territory.

Y

Effective transposition.

For the residences carrying out a liberal profession the conditions referring to the retirement age shall be considered fulfilled when reaching the age of 60 years unless otherwise provided by the law.

Y

ROMANIA

Comments/Problems

Article 22 of the Romanian law transposes Article 16 of the Directive. The conditions of retirement and early retirement are provided by a special law regulating the public system of pensions (Law no. 19/2000). Under the Romanian legislation the notion of persons carrying out dependent and independent activities are consistent with notions of workers and self-employed persons in the meaning of the EU legislation and ECJ case law.

Effective transposition. The Romanian text refers to the liberal professions which covers selfemployed persons benefiting from special regulations. For all the other self-employed persons the general rules provided for the employees (workers) are also applicable. Therefore, it is not necessary to have a special provision for these persons.

45/67


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 Art

Citation of the Article of the Directive

Art.17.1 (b)

(b) workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work. If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in the host Member State, no condition shall be imposed as to length of residence;

GEO no. 102/2005 Art. 23 (1) (b)

Art.17.1 (c)

(c) workers or self-employed persons who, after three years of continuous employment and residence in the host Member State, work in an employed or self-employed capacity in another Member State, while retaining their place of residence in the host Member State, to which they return, as a rule, each day or at least once a week.

GEO no. 102/2005 Art. 23 (1) (c)

For the purposes of entitlement to the rights referred to in points (a) and (b), periods of employment spent in the Member State in which the person concerned is working shall be regarded as having been spent in the host Member State.

GEO no. 102/2005 Art. 23 (1) (c) final part

Periods of involuntary unemployment duly recorded by the relevant employment office, periods not worked for reasons not of the person's own making and absences from work or cessation of work due to illness or

GEO no. 102/2005 Art. 23 (2)

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State) b) desfăşoară activităţi dependente sau activităţi independente, au o şedere continuă pe teritoriul României pentru o perioadă mai mare de 2 ani şi încetează munca datorită pierderii totale sau a cel puţin jumătate din capacitatea de muncă. Dacă această incapacitate este rezultatul unui accident de muncă sau al unei boli profesionale, condiţia referitoare la durata şederii nu se aplică;

Translation into English of national provision b) are carrying out dependent or independent activities and who have a continuous stay on the Romanian territory for more than 2 years and stop working due to totally loosing or losing at least half of the capacity to work. If such incapacity is the result of an accident at work or an occupational disease, no condition shall be imposed as to length of residence;

Fully in accord? (y/n) Y

c) după o perioadă de 3 ani de rezidenţă, în condiţiile prevăzute la art. 13 alin. (1) lit. a), îşi desfăşoară activitatea într-un alt stat membru, menţinându-şi, în acelaşi timp, reşedinţa pe teritoriul României, unde se întorc, regulat, în fiecare zi sau cel puţin o dată pe săptămână. La acordarea drepturilor prevăzute la lit. a) şi b), perioadele de angajare petrecute în statul membru în care persoana în cauză lucrează vor fi considerate ca fiind petrecute pe teritoriul României. (2) Perioadele de şomaj, de concediu medical sau de încetare a activităţii datorate îmbolnăvirii ori unui accident, precum şi orice alte perioade de încetare a activităţii pentru

c) after three years of residence, meeting the conditions provided in article 13(1)(a), work in another Member State, while retaining their place of residence in Romania, to which they return, as a rule, each day or at least once a week.

Y

The Romanian text transposing the Directive’s requirement refers to “to totally loosing or losing at least half of the capacity to work” while in accordance with the Directive the requirement is “permanent incapacity to work”. Thus, the provision of the Romanian law also refers to incapacity to work (totally loosing or losing at least half of the capacity to work) that is not permanent. As a consequence, the transposition is more favourable since such persons also enjoy the right of permanent residence. Effective transposition.

When granting the rights provided in points (a) and (b) above, periods of employment spent in the member state where the person concerned works shall be considered as spent on the Romanian territory.

Y

Effective transposition.

(2) Periods of being unemployed person, medical leave or ceasing of activity due to illness or accident, as well as any other periods of ceasing activity for reasons which are not imputable to the person concerned

Y, More favourabl e

ROMANIA

Comments/Problems Effective transposition

More favourable treatment. The status of unemployed persons involves, as per the Romanian legislation, involuntary unemployment duly recorded by the

46/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

accident shall be regarded as periods of employment.

Art.17.2

Art.17.3

Art.17.4 (a)

2. The conditions as to length of residence and employment laid down in point (a) of paragraph 1 and the condition as to length of residence laid down in point (b) of paragraph 1 shall not apply if the worker's or the self-employed person's spouse or partner as referred to in point 2(b) of Article 2 is a national of the host Member State or has lost the nationality of that Member State by marriage to that worker or self-employed person. 3. Irrespective of nationality, the family members of a worker or a self-employed person who are residing with him in the territory of the host Member State shall have the right of permanent residence in that Member State, if the worker or selfemployed person has acquired himself the right of permanent residence in that Member State on the basis of paragraph 1. 4. If, however, the worker or selfemployed person dies while still working but before acquiring permanent residence status in the host Member State on the basis of paragraph 1, his family members who are residing with him in the host Member State shall acquire the right of permanent residence there, on condition that: (a) the worker or self-employed person

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 23 (3)

GEO no. 102/2005 Art. 23 (4)

GEO no. 102/2005 Art. 23 (5) (a)

Complete text of national provision (in language of Member State) motive neimputabile persoanei în cauză se iau în calcul la stabilirea continuităţii perioadelor prevăzute la alin. (1).

Translation into English of national provision shall be taken into account when establishing continuity of the periods provided in paragraph (1).

Fully in accord? (y/n)

(3) Condiţiile referitoare la durata rezidenţei şi angajării, stabilite la alin. (1) lit. a), şi condiţia referitoare la durata rezidenţei, stabilită la alin. (1) lit. b), nu se vor aplica dacă persoana care este angajată sau desfăşoară activităţi economice în mod independent este căsătorită cu un cetăţean român.

(3) The conditions as to length of residence and employment provided in paragraph (1)(a) and the condition as to length of residence provided in paragraph (1)(b) shall not apply if the person concerned who is employed or carries out independent economic activities is married to a Romanian national.

Y

(4) În cazul în care cetăţeanul Uniunii Europene dobândeşte dreptul de rezidenţă permanentă în baza alin. (1), membrii de familie ai acestuia, indiferent de cetăţenie, au drept de rezidenţă permanentă numai dacă gospodăresc împreună cu acesta pe teritoriul României. (5) În cazul în care rezidentul care desfăşura activităţi dependente sau independente decedează în perioada de activitate, dar anterior dobândirii, în condiţiile stabilite la alin. (1), a dreptului de şedere permanentă, membrii de familie care au gospodărit împreună cu acesta

(4) Irrespective of nationality, the family members of the European Union national who has permanent residence on basis of paragraph (1), are entitled to permanent residence only if they are members of the household of the respective EU national.

Y

(5) If, however, the resident who carries out dependent or independent activities dies while still working but before acquiring the right of permanent residence on the basis of paragraph 1, his family members who are also members of the household shall acquire the right of permanent residence, on condition that:

Y

ROMANIA

Comments/Problems relevant employment office. Therefore, the requirement of the Directive is fully transposed. This treatment is even more favourable as it not only includes the involuntarily unemployed, but also the employees who have quit their job, and register with the relevant employment service. Effective transposition. According to the Romanian legislation, a person cannot lose the Romanian nationality upon marriage.

Effective transposition. Under the Romanian legislation the wording “residing with somebody” is not used. The meaning of ‘members of the same household’ is that the persons live together, in the same house/apartment. Effective transposition. Under the Romanian legislation the wording “residing with somebody” is not used. The meaning of ‘members of the same household’ is that the persons live together, in the same house/apartment. The previous law on the free movement of citizens of the Member

47/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

had, at the time of death, resided continuously on the territory of that Member State for two years; or

Art.17.4 (b)

(b) the death resulted from an accident at work or an occupational disease; or

GEO no. 102/2005 Art. 23 (5) (b)

Art.17.4 (c)

(c) the surviving spouse lost the nationality of that Member State following marriage to the worker or selfemployed person.

GEO no. 102/2005 Art. 23 (5) (c)

Acquisition of the right of permanent residence by certain family members who are not nationals of a Member State.

GEO no. 102/2005 Art. 22 (2)

Art.18

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) pe teritoriul României pot dobândi dreptul de rezidenţă permanentă, dacă: a) la data decesului rezidentul avea o şedere continuă de 2 ani pe teritoriul României;

Translation into English of national provision a) the resident had, at the time of death, resided continuously on the territory Romania for two years; or

Fully in accord? (y/n)

b) decesul a survenit în urma unui accident de muncă sau a unei boli profesionale; c) soţul supravieţuitor a pierdut cetăţenia română după căsătoria cu cetăţeanul Uniunii Europene, titular al dreptului de şedere principal.

b) the death resulted from an accident at work or an occupational disease; or c) the surviving spouse lost the Romanian nationality following marriage to the EU national, bearer of the primary stay right

Y

States of the European Union and the European Economic Area (Law 309/2004) used a different wording but it was never in force (aimed to enter into force on the date of Romania’s accession to the EU, has been replaced meanwhile by GEO 102/2005) Effective transposition.

Y

Effective transposition.

Art. 22. - (2) Persoanele care nu au cetăţenia Uniunii Europene şi care au o rezidenţă continuă pe teritoriul României pentru o perioadă de

Art. 22 - (2) The persons who do not have the European Union citizenship and who have resided legally for a continuous period of at least 5 years in Romania as family

Y

According to the Romanian legislation a Romanian citizen cannot lose Romanian nationality upon marriage except in case he expressly renounces to the Romanian nationality. Therefore Romanian law is being more generous than the Directive giving also the right to Romanian citizens who voluntarily gave up Romanian nationality upon marriage. According to the previous law on the free movement of citizens of the Member States of the European Union and the European Economic Area (Law 309/2004) the condition was “the surviving spouse is a Romanian citizen”. However, such law was never in force since, although aimed to enter into force on the date of Romania’s accession to the EU, it has been replaced meanwhile by GEO 102/2005). Effective transposition.

ROMANIA

Comments/Problems

The persons to whom Articles 12 (2) and 13 (2) apply are the family members who are not nationals of a

48/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Without prejudice to Article 17, the family members of a Union citizen to whom Articles 12(2) and 13(2) apply, who satisfy the conditions laid down therein, shall acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State.

Chapter IV Art.19.1

RIGHT OF PERMANENT RESIDENCE Section I. Administrative formalities Document certifying permanent residence for Union citizens

GEO no. 102/2005 Art. 24 (1)

1. Upon application Member States shall issue Union citizens entitled to permanent residence, after having verified duration of residence, with a document certifying permanent residence.

Art.19.2

2. The document certifying permanent residence shall be issued as soon as possible.

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 24 (3)

Complete text of national provision (in language of Member State) cel puţin 5 ani, în calitate de membri de familie ai unui cetăţean al Uniunii Europene rezident sau rezident permanent, beneficiază de prevederile alin. (1)

Translation into English of national provision members of a European Union citizen who is a resident or permanent resident, shall benefit of the provisions of paragraph (1).

Fully in accord? (y/n)

Art. 24. - (1) Persoanele care îndeplinesc condiţiile prevăzute la art. 22 şi 23 pot solicita formaţiunilor teritoriale competente ale Autorităţii pentru străini eliberarea cărţii de rezidenţă permanentă pentru cetăţenii Uniunii Europene, respectiv a cărţii de rezidenţă permanentă pentru membrii de familie care nu sunt cetăţeni ai Uniunii Europene Art. 24. - (3) Dacă Autoritatea pentru străini constată îndeplinirea condiţiilor pentru emiterea documentelor prevăzute la alin. (1), eliberează, în termen de 30 de zile de la depunerea cererii, cartea de rezidenţă permanentă pentru cetăţenii Uniunii Europene (…)

Art. 24. - (1) The persons fulfilling the conditions set by the articles 22 and 23 may submit to the competent territorial branch of the Authority for Foreigners an application for issuing the permanent residence card for European Union citizens, or respectively the permanent residence card for family members who are not citizens of the European Union.

N, Incorrect

Art. 24. - (3) If Authority for Foreigners ascertain the fulfilling the conditions for issuing documents stipulated in paragraph (1) it shall grant within 30 days from the date of submitting the application the permanent residence card for European Union citizens or (....)

Y

ROMANIA

Comments/Problems Member State and who have been residing in the host Member State as family members for a specific period. Art. 18 extends or, by case, adds the duration of the residence to a period of five consecutive years. Both elements have been transposed by Art. 22 (2) of the Romanian law also by taking into account that such persons have been allowed to reside only if complying with the requirement s provided by Art. 21 (1) of the Romanian law, transposing Articles 12 (2) and 13 (2) of the Directive.

Incorrect transposition. This is a permanent residence card issued by the Romanian authority.

Effective transposition. 30 days is the general term for the issuance of any administrative act.

49/67


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 Art

Citation of the Article of the Directive

Art.20.1

Permanent residence card for family members who are not nationals of a Member State 1. Member States shall issue family members who are not nationals of a Member State entitled to permanent residence with a permanent residence card within six months of the submission of the application. The permanent residence card shall be renewable automatically every 10 years.

Art.20.2

Corresponding national provision (legal ref. & art.) GEO no. 102/2005 Art. 24 (1), (2) and (3)

Complete text of national provision (in language of Member State) Art. 24. - (1) Persoanele care îndeplinesc condiţiile prevăzute la art. 22 şi 23 pot solicita formaţiunilor teritoriale competente ale Autorităţii pentru străini eliberarea cărţii de rezidenţă permanentă pentru cetăţenii Uniunii Europene, respectiv a cărţii de rezidenţă permanentă pentru membrii de familie care nu sunt cetăţeni ai Uniunii Europene. (2) Valabilitatea cărţii de rezidenţă permanentă pentru membrii de familie care nu sunt cetăţeni ai Uniunii Europene este de 10 ani de la data emiterii şi se reînnoieşte la cerere. (3) Dacă Autoritatea pentru străini constată îndeplinirea condiţiilor pentru emiterea documentelor prevăzute la alin. (1), eliberează, în termen de 30 de zile de la depunerea cererii, cartea de rezidenţă permanentă pentru cetăţenii Uniunii Europene, respectiv în termen de 90 de zile de la depunerea cererii, cartea de rezidenţă permanentă pentru membrii de familie care nu sunt cetăţeni ai Uniunii Europene.

Translation into English of national provision Art. 24. - (1) The persons fulfilling the conditions set by the articles 22 and 23 shall submit to the competent territorial branch of the Authority for Foreigners an application for issuing the permanent residence card for European Union citizens, respectively permanent residence card for family members who are not citizens of the European Union. (2) The validity of the permanent resident card for family members who are not European Union citizens shall be of 10 years from the issuing date and shall be renewed upon request. (3) If Authority for Foreigners ascertain the fulfilling the conditions for issuing documents stipulated in paragraph (1) it shall grant within 30 days from the date of submitting the application the permanent residence card for European Union citizens or within 90 days from the date of submitting the application the permanent residence card for family members who are not European Union citizens.

2. The application for a permanent residence card shall be submitted before the residence card expires. Failure to comply with the requirement to apply for a permanent residence card may render the person concerned liable to

Milieu Ltd & Europa Institute, Edinburgh University

Fully in accord? (y/n) N, Incomplet e

Y, More favourabl e

ROMANIA

Comments/Problems Incomplete transposition The transposition is incomplete, since the Romanian texts do not ensure automatic renewal evary 10 years, by excluding the reverification of the conditions.

More favourable treatment There is no deadline for submission of the application to obtain a residence card. As distinct from the cases of applying for a residence

50/67


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 Art

Citation of the Article of the Directive proportionate sanctions.

Art.20.3

Art. 21

Chapter V Art. 22

and

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

non-discriminatory

3. Interruption in residence not exceeding two consecutive years shall not affect the validity of the permanent residence card.

GEO no. 102/2005 Art. 22 (4)

(4) Dreptul de rezidenţă permanentă se pierde în cazul unei absenţe de pe teritoriul României pentru o perioadă mai mare de 2 ani consecutivi.

(4) The right of permanent residence shall be lost in case of absence from Romania’s territory for a periof exceeding two consecutive years..

NT

Continuity of residence For the purposes of this Directive, continuity of residence may be attested by any means of proof in use in the host Member State. Continuity of residence is broken by any expulsion decision duly enforced against the person concerned. PROVISIONS COMMON TO THE RIGHT OF RESIDENCE AND THE RIGHT OF PERMANENT RESIDENCE Territorial scope The right of residence and the right of permanent residence shall cover the whole territory of the host Member State.

Milieu Ltd & Europa Institute, Edinburgh University

Y

Comments/Problems card, there are no sanctions for failure to apply for a permanent residence card. The provisions of the Romanian law transposing Articles 8(2) and 9(3) of the Directive cannot be applicable since they refer to specific obligations and deadlines. Effective transposition by per a contrario interpretation. Article 22 is applicable in respect of both Union citizens and their family members who are not nationals of a Member State. Not transposed. In the administrative law area, the means of proof are mainly the documents and very rarely witnesses. However, if there is a factual situation to be proved rather than a legal act, any means of proof may be used.

GEO no. 102/2005 Art. 3 (1) (b)

Art. 3. – (1) Cetăţenii Uniunii Europene, precum şi membrii familiilor lor, care îşi exercită dreptul la liberă circulaţie şi rezidenţă pe teritoriul României, beneficiază de drepturile şi libertăţile recunoscute prin Tratatul privind Uniunea Europeană, cum ar fi: (…) b) se pot deplasa liber şi îşi pot stabili reşedinţa sau, după caz, domiciliul oriunde pe teritoriul României;

Art. 3. - (1) The European Union citizens and their family members who exert the right of free movement and residence on Romanian territory shall benefit from the following rights and freedoms recognized by the Treaty: (...) b) They may move freely and establish their residence or, by case, domicile anywhere on the Romanian territory;

ROMANIA

Y

Effective transposition.

51/67


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 Art

Citation of the Article of the Directive

Art.23

Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals. Related rights

Corresponding national provision (legal ref. & art.) GEO no. 102/2005 Art. 3 (1) (b)

GEO no. 102/2005 Art. 3 (1) (e)

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.

Art.24.1

Equal treatment 1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 3 (1)

Complete text of national provision (in language of Member State) b) se pot deplasa liber şi îşi pot stabili reşedinţa sau, după caz, domiciliul oriunde pe teritoriul României;

Translation into English of national provision b) They may move freely and establish their residence or, by case, domicile anywhere on the Romanian territory;

Fully in accord? (y/n) Y

Art. 3. – (1) Cetăţenii Uniunii Europene, precum şi membrii familiilor lor, care îşi exercită dreptul la liberă circulaţie şi rezidenţă pe teritoriul României, beneficiază de drepturile şi libertăţile recunoscute prin Tratatul privind Uniunea Europeană, cum ar fi:

Art. 3 - (1) The European Union citizens and their family members who exert the right of free movement and residence on Romanian territory shall benefit from the following rights and freedoms recognized by the Treaty: (...) e) They have unlimited access to the Romanian labour force market, under the condition, if the case may be, of applying the provisions of the transitory measures stipulated in the Treaty of Romanian Accession to EU, as well as they are allowed to carry on other economic activities, according to the law applicable to the Romanian citizens.

Y

Effective transposition.

(1) The European Union citizens and their family members who exert the right of free movement and residence on Romanian territory shall benefit from the following rights and freedoms recognized by the Treaty, such as: a) General protection of persons and property, guaranteed by the Constitution and other laws, as well as from other rights provided for by the European Union and other international treaties Romania is a party to. b) They may move freely and

N, Incorrect

Incorrect transposition

e) au acces neîngrădit pe piaţa forţei de muncă din România, sub rezerva aplicării măsurilor tranzitorii prevăzute în Tratatul de aderare a României la Uniunea Europeană, precum şi la desfăşurarea altor activităţi de natură economică, în condiţiile legii aplicabile cetăţenilor români; Art. 3. - Cetăţenii Uniunii Europene, precum şi membrii familiilor lor, care îşi exercită dreptul la liberă circulaţie şi rezidenţă pe teritoriul României, beneficiază de drepturile şi libertăţile recunoscute prin Tratatul privind Uniunea Europeană, cum ar fi: a) se bucură de protecţia generală a persoanelor şi a averilor, garantată de Constituţie şi de alte legi, precum şi de drepturile

ROMANIA

Comments/Problems Effective transposition There are not territorial restrictions applicable in Romania for anyone.

Although stating some of the rights of the European Union citizens and their family members who exert the right of free movement and residence on Romanian territory the Romanian text transposing the Directive’s requirement does not ensure the principle of equal treatment which is applicable in all areas and with respect to all the rights of these persons. The Romanian text mentions only in some of the cases “under the same conditions as the Romanian

52/67


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 Art

Citation of the Article of the Directive

Art.24.2

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State) prevăzute în tratatele Uniunii Europene şi în alte tratate internaţionale la care România este parte; b) se pot deplasa liber şi îşi pot stabili reşedinţa sau, după caz, domiciliul oriunde pe teritoriul României; c) beneficiază de măsuri de protecţie socială din partea statului, în aceleaşi condiţii ca şi cetăţenii români; d) au dreptul să verifice datele personale înscrise în documentele oficiale eliberate de autorităţile române şi, când este cazul, să solicite corectarea sau eliminarea unor date care nu corespund realităţii; e) au acces neîngrădit pe piaţa forţei de muncă din România, sub rezerva aplicării măsurilor tranzitorii prevăzute în Tratatul de aderare a României la Uniunea Europeană, precum şi la desfăşurarea altor activităţi de natură economică, în condiţiile legii aplicabile cetăţenilor români; f) au acces neîngrădit la activităţile şcolare şi de instruire în cadrul sistemului naţional de învăţământ.

Translation into English of national provision establish their residence or, by case, domicile anywhere on the Romanian territory; c) Social protection measures from the state, under the same conditions as the Romanian citizens; d) They have the right to check the personal data written on official documents issued by Romanian authorities and, if the case may be, to request the correction or exclusion of data that do not correspond to reality; e) They have unlimited access to the Romanian labour force market, under the provisions of the transitory measures stipulated in the Treaty of Romanian Accession to EU, as well as they are allowed to carry on other economic activities, according to the law applicable to the Romanian citizens. f) They have unlimited access to the educational and training activities within the national educational system.

2. By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to

Milieu Ltd & Europa Institute, Edinburgh University

Fully in accord? (y/n)

citizens”

Y

ROMANIA

Comments/Problems

Generally, the Romanian social security legislation grants for social assistance and social insurance to the citizens of other countries who have their residence in Romania. There is no distinction upon the duration of the residence right.

53/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, selfemployed persons, persons who retain such status and members of their families.

Art.25.1

Art.25.2

Art.26

General provisions residence documents

concerning

1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof. 2. All documents mentioned in paragraph 1 shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents. Checks Member States may carry out checks on compliance with any requirement deriving from their national legislation for non-nationals always to carry their registration certificate or residence card, provided that the same requirement applies to their own nationals as regards their identity card. In the event of failure

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 3 (3)

Art. 3. (3) Exercitarea unui drept sau îndeplinirea unei formalităţi administrative de către cetăţenii Uniunii Europene ori de către membrii lor de familie nu este condiţionată de posesia unui document eliberat de autorităţile române în condiţiile prezentei ordonanţe de urgenţă, dacă, prin orice alt mijloc de probă, persoana interesată dovedeşte că este beneficiară a acelui drept.

(3) Exerting any rights or fulfilling any administrative formality by the European Union citizens or their family members shall not be conditioned by the possession of documents issued by the Romanian authorities under the provisions of the present law, if the concerned person proves by any means of proof that he/she is the beneficiary of that right.

Y

NT

Comments/Problems According to the provisions of the Education Law no. 84/1995 starting from the date of Romania’s accession to the European Union the EU citizens are granted the access to all forms and levels of education within the same conditions as the Romanian citizens (this includes also the access to grants) –further examination will be carried out in the Conformity study after contacts with authorities Effective transposition.

Not transposed. The issue of fees will be checked for the conformity study.

GEO no. 102/2005 Art. 11

Art. 11. - Pe durata şederii în România, cetăţenii Uniunii Europene sau, după caz, membrii familiilor lor au obligaţia de a se supune controalelor de specialitate ale organelor competente române, efectuate în aceleaşi condiţii ca şi cele aplicabile cetăţenilor români

Art. 11. - During the stay in Romania, the European Union citizens or their family members shall be bound to obey to the specialised controls of the Romanian competent authorities, carried out in the same conditions as those applicable to the Romanian citizens.

ROMANIA

Y

Effective transposition.

54/67


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 Art

Citation of the Article of the Directive

Chapter VI

to comply with this requirement, Member States may impose the same sanctions as those imposed on their own nationals for failure to carry their identity card. RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH General principles

Art.27.1

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 25 (1)

1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

Art.27.2

2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

GEO no. 102/2005 Art. 25 (41)

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests

GEO no. 102/2005 Art. 25 (41)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

Art. 25. - (1) Autorităţile române competente pot restrânge exercitarea dreptului la liberă circulaţie pe teritoriul României de către cetăţenii Uniunii Europene sau de către membrii de familie ai acestora numai din raţiuni de ordine publică, securitate naţională ori sănătate publică.

Art. 25. - (1) The Romanian authorities may restrict the exercising of the right of free movement on Romanian territory by the European Union citizens or by their family members only on grounds of public order, national security or public health.

N, Incomplet e

Dispunerea oricărei (41) măsuri de restrângere a dreptului de liberă circulaţie pe teritoriul României al cetăţenilor Uniunii Europene şi al membrilor familiilor lor trebuie luată numai cu respectarea principiului proporţionalităţii şi trebuie să aibă la bază exclusiv comportamentul persoanei în cauză. (…) O astfel de măsură nu poate fi bazată exclusiv pe existenţa unei condamnări penale anterioare. Acest comportament trebuie să reprezinte o ameninţare reală, actuală şi suficient de gravă pentru valorile

(41) Any measures of restriction of right of free movement on Romanian territory of the European Union citizens and their family members shall be taken only in accordance whit the principle of proportionality and shall be based exclusively on the personal conduct of the concern person. (…) Such measures can not be based exclusively on existence of prior criminal convictions.

Y

This conduct shall represent a current and serious enough threat to the fundamental values of the society.

N, Incomplet e

ROMANIA

Comments/Problems

Incomplete transposition The Romanian text transposing Article 27.1 of the Directive refers only to the possibility to restrict the freedom of movement and not the residence of Union citizens and their family members. In this regard transposition is more favourable. The requirement that “These grounds shall not be invoked to serve economic ends” has not been transposed. Effective transposition.

Incomplete transposition The requirement that “Justifications that are isolated from the particulars

55/67


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 Art

Citation of the Article of the Directive

Art.27.3

Art.27.4

Art.28

of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. 3. In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting his/her presence within the territory, as provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months. 4. The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy, public security, or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute. Protection against expulsion 1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 25 (4)

Complete text of national provision (in language of Member State) fundamentale ale societăţii.

Art. 25. - (4) Adoptarea de către organele competente a oricărei decizii de restrângere a dreptului la libera circulaţie, în special a celor cu privire la îndepărtarea de pe teritoriul României, dispuse în condiţiile legii, se face numai

Translation into English of national provision

Art. 25. - (4) Adopting by the competent authorities of any decision of restricting the right of free movement, specially of those regarding the removal from the Romanian territory, disposed according to the law, shall be made only by taking into consideration the

ROMANIA

Fully in accord? (y/n)

Comments/Problems

NT

of the case or that rely on considerations of general prevention shall not be accepted” has not been transposed. Not transposed.

NT

Not transposed.

Y

It is possible that the authorities refuse to allow re-entrance on Romania’s territory without any formality to the holder of the passport or identity card no longer valid or in case the nationality of the holder is in dispute. Effective transposition

56/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

GEO no. 102/2005 Art. 25 (2)

3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: (a) have resided in the host Member State for the previous 10 years; or

GEO no. 102/2005 Art. 25 (3) (a)

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) cu luarea în considerare a duratei efective a şederii persoanei în cauză pe teritoriul României, a vârstei acesteia, a stării de sănătate, a situaţiei familiale şi economice, a gradului de integrare socială şi culturală în România şi al asigurării menţinerii legăturilor sale cu ţara de origine. (2) Împotriva cetăţenilor Uniunii Europene sau membrilor de familie ai acestora, indiferent de cetăţenie, care au drept de rezidenţă permanentă, se pot dispune, în condiţiile legii, măsuri specifice de restrângere a dreptului la liberă circulaţie numai dacă reprezintă un pericol iminent pentru ordinea publică şi securitatea naţională.

Translation into English of national provision effective duration of the stay of the person concerned on the Romanian territory, his/her age, the health status, the familial and economic situation, the level of social and cultural integration in Romania and the assurance of maintaining his/her links with the origin country.

Fully in accord? (y/n)

(2) Against the European Union citizens and their family members, irrespective their nationality, who have right of permanent residence, may be disposed specific measures for restricting the right of free movement, according to the law, only if they represent an imminent danger for public order and national security.

Y

Effective transposition.

(3) Dreptul la liberă circulaţie pe teritoriul României, în cazul următoarelor categorii de cetăţeni ai Uniunii Europene, poate fi restrâns numai pentru motive imperative de securitate naţională: a) rezidenţii cu şedere continuă şi legală pe teritoriul României în ultimii 10 ani;

(3) In the cases of the following categories of European Union citizens, the right of free movement on the Romanian territory may be restricted only on imperative grounds of national security: a) the residents with continuous and legal stay on the Romanian territory in the last 10 years;

Y

Representing an imminent danger for public order and national security is not the same as serious grounds of public policy or public security. On the other side, the Romanian text transposing Article 28.2 of the Directive refers to the “restricton of the right of free movement” while the Directive’s provision regulates only “taking of an expulsion decision”. Thus, the Romanian text allows any kind of restriction of the right of free movement, only if representing an imminent danger for public order and national security. Effective transposition.

ROMANIA

Comments/Problems

More favourable since the Romanian text transposing Article 28.3 of the Directive refers to the “restriction of the right of free movement” while the Directive’s provision regulates “taking of an expulsion decision”. Thus, the Romanian text allows any kind of restriction of the right of free movement, only on imperative grounds of national security.

57/67


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 Art

Citation of the Article of the Directive

Art. 29.1

Art.29.2

Art.29.3

Corresponding national provision (legal ref. & art.)

(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.

GEO no. 102/2005 Art. 25 (3) (b)

Public health

GEO no. 102/2005 Art. 32 (3)

1. The only diseases justifying measures restricting freedom of movement shall be the diseases with epidemic potential as defined by the relevant instruments of the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State. 2. Diseases occurring after a three-month period from the date of arrival shall not constitute grounds for expulsion from the territory. 3. Where there are serious indications that it is necessary, Member States may, within three months of the date of arrival, require persons entitled to the right of residence to undergo, free of charge, a medical examination to certify that they are not suffering from any of the conditions referred to in paragraph 1. Such medical examinations may not be required as a matter of routine.

Milieu Ltd & Europa Institute, Edinburgh University

Complete text of national provision (in language of Member State) b) minorii, cu excepţia cazului în care îndepărtarea este necesară pentru interesul copilului, conform prevederilor Convenţiei Naţiunilor Unite privind Drepturile Copilului din 20 noiembrie 1989, ratificată prin Legea nr. 18/1990, republicată. Art. 32. - (3) Lista afecţiunilor care justifică măsura nepermiterii sau a îndepărtării de pe teritoriul României se aprobă prin ordin al ministrului sănătăţii care se publică în Monitorul Oficial al României, Partea I, şi se stabileşte în conformitate cu recomandările Organizaţiei Mondiale a Sănătăţii

Translation into English of national provision b) the minors, excepting the case when the removal is necessary for the best interest of the child, according to the provisions of the United Nations Convention on the Rights of the Child of 20 November 1989, ratified by Law no. 18/1990, republished.

Fully in accord? (y/n) Y

Art. 32. - (3) The list of diseases which may justify the measures of denial of entry or removal from the territory of Romania is approved by order of the minister of Health which shall conform to the recommendations of the World Health Organisation and shall be published in the Official Journal of Romania, Part I.

N, Incomplet e

Incomplete transposition

Y

Effective transposition.

Y

Transposition results from the per a contrario interpretation or Article 32 (1) and (2) below. Effective transposition.

GEO no. 102/2005 Art. 32 (1) and (2)

GEO no. 102/2005 Art. 32 (1) and (2)

Art. 32. - (1) Măsura îndepărtării de pe teritoriul României pentru motive de sănătate publică a cetăţenilor Uniunii Europene sau a membrilor de familie ai acestora poate fi dispusă de Autoritatea pentru străini, la solicitarea structurilor specializate ale Ministerului Sănătăţii Publice, numai în cazul în care, pe baza analizelor medicale efectuate de către persoana în cauză la un interval de cel mult 3 luni

Art. 32. - (1) The measure of removing European Union citizens or their family members from the Romanian territory on grounds of public health may be ordered by the Authority for Foreigners upon request of the specialised institutions within the Ministry of Public Health only in the case if on the basis of the result of medical investigations undertook by the concerned persons within no more than 3 months following the of the his/her date of entry on Romanian territory, can be proved the

ROMANIA

Comments/Problems Effective transposition.

The Romanian text does not make express reference to the “diseases with epidemic potential” and “other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State”.

“Not a matter of routine” should be interpretend in connection with the provisions of the first part of Art. 29. 3 where there are serious indications, so that transposition is ensured by the wording “only in case there are serious indication”.

58/67


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 Art

Citation of the Article of the Directive

Art.30.1

Notification of decisions 1. The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.

Art.30.2

2. The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 25 (6)

Complete text of national provision (in language of Member State) de la intrarea pe teritoriul României, se constată existenţa unei afecţiuni dintre cele stabilite potrivit prevederilor alin. (3). (2) Efectuarea analizelor prevăzute la alin. (1) de către persoana în cauză este scutită de taxe şi poate fi dispusă de structurile specializate ale Ministerului Sănătăţii Publice numai în cazul în care există indicii temeinice că, la data intrării pe teritoriul României, suferea de una dintre afecţiunile stabilite potrivit alin. (3). Art. 25 - (6) Decizia de restrângere a dreptului de liberă circulaţie se comunică cetăţeanului Uniunii Europene sau membrului de familie al acestuia, în scris, de către autoritatea care a dispus o astfel de măsură, în condiţiile legii. Decizia trebuie să conţină motivele care au stat la baza dispunerii unei astfel de măsuri, implicaţiile acesteia pentru persoana în cauză, (…) Art. 25 - (6) Decizia de restrângere a dreptului de liberă circulaţie se comunică cetăţeanului Uniunii Europene sau membrului de familie al acestuia, în scris, de către autoritatea care a dispus o astfel de măsură, în condiţiile legii. Decizia trebuie să conţină motivele care au stat la baza dispunerii unei astfel

Translation into English of national provision existence of one of the diseases established according to provisions of paragraph (3) (2) The medical investigations provided in paragraph (1) and undertaken by the person concerned, are exempted of fees and may be disposed by the specialised structures of the Ministry of Public Health, only in case there are serious indications that at the time of arrival on the Romanian territory the person concerned already suffered one of the diseased provided in paragraph (3).

Fully in accord? (y/n)

Art. 25 - (6) The decision of restricting the right of free movement shall be notified in written to the European Union citizen or his /her family member, by the authority which disposed this measure according to the law. The decision shall contain the reasons which state at the basis of disposing such a measure, the implications of this decision for the concerned person, (…)

N, Incorrect

Art. 25 - (6) The decision of restricting the right of free movement shall be notified in written to the European Union citizen or his /her family member, by the authority which disposed this measure according to the law. The decision shall contain the reasons which state at the basis of disposing such a measure, the consequences of this decision for the concerned

NT

ROMANIA

Comments/Problems

Incorrect transposition. Although the decision contains the reasons this does not ensure the requirement that the persons should be able to comprehend its content (e.g. the reasons may be unclear, not sufficient, etc.)

Not transposed. Neither the general legislation applicable to the administrative acts contains such express provisions. Although, the legal literature appreciates that the principle of mentioning the grounds of the decision taken by the administrative body results from the constitutional provisions on the right of the

59/67


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 Art

Citation of the Article of the Directive

Art.30.3

Art.31.1

3. The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification. Procedural safeguards 1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 25 (6), last part

GEO no. 102/2005 Art. 25 (6) and (7) and Art. 29 (1)

Complete text of national provision (in language of Member State) de măsuri, implicaţiile acesteia pentru persoana în cauză, informaţii privind instanţa unde poate fi atacată decizia şi termenul de introducere a acţiunii şi, dacă este cazul, termenul în care cetăţeanul Uniunii Europene sau membrul de familie al acestuia trebuie să părăsească teritoriul României. (…) informaţii privind instanţa unde poate fi atacată decizia şi termenul de introducere a acţiunii şi, dacă este cazul, termenul în care cetăţeanul Uniunii Europene sau membrul de familie al acestuia trebuie să părăsească teritoriul României

Translation into English of national provision person, information regarding the court and a period of time within the decision can be appealed and if the case the period of time in which the European Union citizen or his/her family member have to leave the Romanian territory.

Fully in accord? (y/n)

(…) information regarding the court and a period of time within the decision can be appealed and if the case the period of time in which the European Union citizen or his/her family member have to leave the Romanian territory.

N, Incomplet e

Art. 25 - (6) Decizia de restrângere a dreptului de liberă circulaţie se comunică cetăţeanului Uniunii Europene sau membrului de familie al acestuia, în scris, de către autoritatea care a dispus o astfel de măsură, în condiţiile legii. Decizia trebuie să conţină motivele care au stat la baza dispunerii unei astfel de măsuri, implicaţiile acesteia pentru persoana în cauză, informaţii privind instanţa unde poate fi atacată decizia şi termenul de introducere a acţiunii şi, dacă este cazul, termenul în care cetăţeanul Uniunii Europene sau membrul de familie al acestuia

Art. 25 - (6) The decision of restricting the right of free movement shall be notified in written to the European Union citizen or his /her family member, by the authority which disposed this measure according to the law. The decision shall contain the reasons which state at the basis of disposing such a measure, the consequences of this decision for the concerned person, information regarding the court and a period of time within the decision can be appealed and if the case the period of time in which the European Union citizen or his/her family member have to leave the Romanian territory. (7) The court which examine the appeal against the decision of

Y

ROMANIA

Comments/Problems Romanian citizens to be correctly informed by the public authorities on personal interest issues, by taking into account the details of the Directive’s provisions, we appreciate that such specific provisions should have been expressly transposed.

Incomplete transposition The provision of the Romanian law transposing Article 30.3 of the Directive does not transpose the requirement that “Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification”. Effective transposition Although the Romanian texts do not refer to “any decision taken against them on the grounds of public policy, public security or public health”, it refers to the “decision of restricting the right of free movement” and consequently, by also taking into account the chapter the Directive’s text, it covers the scope of application of the Directive’s provision. Art. 25 (6) and (7) regulate the appeal against the “decision of restricting the right of free movement” and Article 29 (1) refers to the “decision of declaring the foreigner undesirable”. Such restrictions are regulated by distinct texts. In all acse the access to judicial procedures is ensured.

60/67


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 Art

Citation of the Article of the Directive

Art.31.2

2. Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except: — where the expulsion decision is based on a previous judicial decision; or — where the persons concerned have had previous access to judicial review; or — where the expulsion decision is based on imperative grounds of public security

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 29 (2)

Complete text of national provision (in language of Member State) trebuie să părăsească teritoriul României. (7) Instanţa care judecă acţiunea introdusă împotriva unei decizii de restrângere a dreptului la liberă circulaţie analizează legalitatea deciziei, respectarea principiului proporţionalităţii măsurii dispuse şi a condiţiilor stabilite la alin. (1)-(6), precum şi faptele şi circumstanţele care justifică măsura dispusă Art. 29. - (1) Ordonanţa de declarare ca indezirabil poate fi atacată de străinul împotriva căruia a fost dispusă, în termen de 5 zile lucrătoare de la data comunicării, la secţia de contencios administrativ a Curţii de Apel Bucureşti. Instanţa se pronunţă în termen de 3 zile de la data primirii cererii. Hotărârea este definitivă şi irevocabilă. (2) Exercitarea căii de atac prevăzute la alin. (1) suspendă punerea în executare a ordonanţei de declarare ca indezirabil, cu excepţia situaţiei în care măsura are caracter de urgenţă, având la bază o ameninţare iminentă la adresa securităţii naţionale. Caracterul de urgenţă este stabilit de procuror prin ordonanţa emisă în condiţiile art. 27 alin. (3).

Translation into English of national provision restriction of free movement shall analyze the legitimacy of the decision, the compliance of the disposed measure with the principle of proportionality, with condition established in paragraph (1) - (6), as well as the fact and the circumstances justified the disposed measure. Art. 29. - (1) The decision of declaring the foreigner undesirable may be attacked by the respective foreigner within 5 days as from the notification date, to the Bucharest Court of Appeal. The court of justice shall deliver a sentence within 3 days as from receiving the request. The decision of the court shall be final an irrevocable.

Fully in accord? (y/n)

(2) Exercising the means of appeal provided in paragraph (1) shall suspend the enforcement of the ordinance of declaring the foreigner as undesirable; exempt the situation when this decision has an emergency character, based on an imminent threat on national security. The emergency character is established by the prosecutor by the ordinance issued according to the conditions of Article 27 paragraph (3).

N, Incorrect

ROMANIA

Comments/Problems

Incorrect transposition. The Romanian text does not list the situations provided by Article 31.2. when, however, the removal from the territory may take place until such time as the decision on the interim order has been taken. In addition, the situation of expulsion on imperative grounds of public security refered by the Directive, was incorrectly transposed since its meaning is not ensured by the Romanian text providing for the

61/67


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 Art

Citation of the Article of the Directive

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

under Article 28(3).

Art.31.3

3. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.

GEO no. 102/2005 Art. 25 (7)

Art.31.4

4. Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/ her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory. Duration of exclusion orders

CPC Art. 67 (1)

Art.32.1

1. Persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion.

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. Art. 292 (1) and (2)

(7) Instanţa care judecă acţiunea introdusă împotriva unei decizii de restrângere a dreptului la liberă circulaţie analizează legalitatea deciziei, respectarea principiului proporţionalităţii măsurii dispuse şi a condiţiilor stabilite la alin. (1)-(6), precum şi faptele şi circumstanţele care justifică măsura dispusă. Art. 67. – (1) Părţile pot să exercite drepturile procedurale personal sau prin mandatar.

Art. 291. - (1) După împlinirea a jumătate din perioada interdicţiei dispuse în condiţiile art. 27 sau după 3 ani de la data dispunerii acesteia, persoana declarată indezirabilă poate solicita ridicarea interdicţiei. (2) Ridicarea interdicţiei se poate dispune luându-se în considerare schimbările survenite faţă de împrejurările care au determinat dispunerea acesteia.

Comments/Problems

(7) The court which examine the appeal against the decision of restriction of free movement shall analyze the legitimacy of the decision, the compliance of the disposed measure with the principle of proportionality, with condition established in paragraph (1) - (6), as well as the fact and the circumstances justified the disposed measure.

Y

situation when the decision has an emergency character, based on an imminent threat on national security. Effective transposition.

Art. 67. – (1) The parties may exercise their procedural rights personally or through an emplowered person.

Y

Effective transposition

Art. 291. - (1) After a half of the interdiction period disposed under the conditions of Article 27 has been completed, or after 3 years since its disposal, the foreigner declared undesirable person may apply for lifting the interdiction. (2) The decision for canceling the interdiction measure can be disposed taken into consideration the changes occurred in comparison with the initial circumstances which determined the disposal of interdiction.

N, Incorrect

ROMANIA

Transposition is ensured since any restriction of the rights mentioned by the legislation in force may only be provided by the law and the legislation does not provide for any prohibition preventing the individual from submitting his/her defence in person. Incorrect transposition. Article 27 of the Romanian law refers to the situation when the respective person has been declared as indesirable. The Romanian text does not provide for the requirement that the person may submit such application by putting forward arguments. The Romanian text provides for the right to apply for the lifting of the interdinction after half of the interdiction period disposed under the conditions of Article 27 has been completed, or after 3 years since its

62/67


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 Art

Citation of the Article of the Directive

The Member State concerned shall reach a decision on this application within six months of its submission.

Art.32.2

Art.33.1

2. The persons referred to in paragraph 1 shall have no right of entry to the territory of the Member State concerned while their application is being considered. Expulsion as a penalty or legal consequence 1. Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27, 28 and 29.

Milieu Ltd & Europa Institute, Edinburgh University

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. Art. 292 (3) and (4)

Complete text of national provision (in language of Member State)

(3) Cererea de ridicare a interdicţiei se depune la curtea de apel pe lângă care funcţionează parchetul din cadrul căruia face parte procurorul care a dispus această măsură. Cererea se judecă în camera de consiliu. (4) Instanţa soluţionează cauza de urgenţă şi cu precădere.

Translation into English of national provision

(3) The request for removing of the interdiction shall be submitted to the Court of Appeal to which the department of the prosecutor disposing the measure is affiliated. The request shall be analysed in counseling chamber. (4) The court shall rule a decision with emergency and priority.

Fully in accord? (y/n)

N, Incomplet e

NT

GEO no. 102/2005 Art. Art. 30 (1)

Art. 30. - (1) Împotriva cetăţeanului Uniunii Europene sau a membrului de familie al acestuia, care a săvârşit o infracţiune pe teritoriul României, poate fi dispusă măsura expulzării în condiţiile prevăzute de Codul penal şi Codul de procedură penală, cu respectarea prevederilor art. 25. (2) Instanţa poate dispune interzicerea intrării pe teritoriul României persoanei împotriva căreia s-a dispus măsura expulzării, pe o perioadă cuprinsă între 1 şi 5 ani. Perioada de interdicţie

(1) The measure of expulsion may be ordered against the European Union national or his family member who committed a crime on the Romanian territory under the conditions provided by the Penal Code and the Penal Procedure Code, without prejudice to the provisions of article 25. (2) The court may decide the interdiction of entry on Romanian territory of the person against whom the measure of expulsion have been disposed for a period from one up to five years. The period of interdiction shall be calculated from the day of leaving the country. (3) In case of the family members

ROMANIA

Y

Comments/Problems disposal, while the Directive allows such application after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order. Incomplete transposition The requirement of the Directive that the decision must be issued within 6 months of the date the application has been submitted has not been transposed since the text of the Romanian law stated only that “the court shall rule the request with emergency and priority”. There are no rules on procedural law for such reaching a decision under this procedure. Not transposed.

Effective transposition The Romanian text transposing Article 33.1. of the Directive makes reference only to the provisions of Article 25 of the Romanian law, which transposes only Articles 27 and 28 of the Directive, while no reference is made to the text transposing Article 29 of the Directive (on public health). This could be considered as being in conformity since an expulsion for reasons of public health may not be based on a provision of the Criminal Code. Public policy and public security will most likely be the basis

63/67


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 Art

Citation of the Article of the Directive

Art.33.2

Art.34

2. If an expulsion order, as provided for in paragraph 1, is enforced more than two years after it was issued, the Member State shall check that the individual concerned is currently and genuinely a threat to public policy or public security and shall assess whether there has been any material change in the circumstances since the expulsion order was issued.

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. Art. 312 (1) and (2)

Complete text of national provision (in language of Member State) curge de la data ieşirii din ţară. (3) În cazul membrilor de familie care nu sunt cetăţeni ai Uniunii Europene, aflaţi în situaţia prevăzută la alin. (1), la propunerea Autorităţii pentru străini, procurorul anume desemnat de la Parchetul de pe lângă Curtea de Apel Bucureşti poate dispune ca, până la efectuarea expulzării, persoana să fie luată în custodie publică, aplicându-se în mod corespunzător prevederile Ordonanţei de urgenţă a Guvernului nr. 194/2002, republicată, cu modificările şi completările ulterioare, cu privire la luarea în custodie publică şi, după caz, la tolerarea rămânerii pe teritoriul României. Art. 312. - (1) După împlinirea a jumătate din perioada interdicţiei dispuse în condiţiile art. 30 alin. (2), persoana expulzată poate solicita ridicarea interdicţiei. (2) Ridicarea interdicţiei se poate dispune luându-se în considerare schimbările survenite faţă de împrejurările care au determinat dispunerea acesteia.

Translation into English of national provision who are not European Union citizens who are in the situation stipulated in paragraph (1), upon Authority for Foreigner’s proposal, the prosecutor expressly designated from the Prosecutor Department affiliated to the Court Appeal of Bucharest may dispose that, till the enforcement of the expulsion measure, the person shall be taken into public custody, applying accordingly the provision regarding taking into public custody and if the case may be, tolerated status, of the provisions of Government Emergency Ordinance no 194/2002 on foreigner’s regime in Romania, republished with the further modifications and additions, shall be applicable.

Fully in accord? (y/n)

Art. 312. - (1) The expelled person may request the removal of interdiction after the completion of half of the interdiction period disposed under the conditions of art. 30 (2). (2) The cancelling of interdiction may be disposed taken into consideration the changes occurred in comparison with the initial circumstances which determined its disposal.

N, Incorrect

of an expulsion decisions under the the Criminal Code, unless the person has intentionally caused a threat to public health in the contry.

Incorrect transposition The Directive’s provision provides for the obligation of the authority to perform check on the situation of the individual concerned, while the Romanian text transposing such provision regulates the rights of the respective person to request the removal of the interdiction. No campaigns carried out. More information to be provided in the conformity study.

Publicity Member States shall disseminate information concerning the rights and obligations of Union citizens and their family members on the subjects covered

Milieu Ltd & Europa Institute, Edinburgh University

Comments/Problems

ROMANIA

64/67


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 Art

Citation of the Article of the Directive

Art.35

by this Directive, particularly by means of awareness-raising campaigns conducted through national and local media and other means of communication. Abuse of rights

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. Art. 292 (3)

Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.

Art.36

Sanctions Member States shall lay down provisions on the sanctions applicable to breaches of national rules adopted for the implementation of this Directive and shall take the measures required for their application. The sanctions laid down shall be effective and proportionate. Member States shall notify the Commission of these provisions not later than 30 April 2006 and as promptly as possible in the case of any subsequent changes.

Milieu Ltd & Europa Institute, Edinburgh University

GEO no. 102/2005 Art. 321 (1) (2) and (3)

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

Art. 19. - (5) În termenul prevăzut la alin. (4) organele competente efectuează toate verificările necesare pentru constatarea îndeplinirii condiţiilor pentru emiterea cărţii de rezidenţă, inclusiv, după caz, cele referitoare la elementele pe baza cărora se poate stabili faptul că este o căsătorie de convenienţă, potrivit prevederilor Ordonanţei de urgenţă a Guvernului nr. 194/2002 privind regimul străinilor în România, republicată, cu modificările şi completările ulterioare Art. 321. - (1) Neîndeplinirea oricăreia dintre obligaţiile stabilite la art. 9, 10, 15, 16 şi la art. 19 alin. (1) constituie contravenţie şi se sancţionează cu amendă de la 25 lei la 50 lei. (2) Constatarea contravenţiilor şi aplicarea sancţiunilor se fac de către lucrători anume desemnaţi din cadrul Ministerului Administraţiei şi Internelor. (3) În cazul contravenţiilor prevăzute la alin. (1), contravenientul poate achita în termen de cel mult 48 de ore de la data încheierii

Art. 19. - (5) Within the period provided for by paragraph (4), the competent authorities do all the necessary checks, ascertaining that the conditions for granting the residence card are fulfilled, including, if the case may be, the conditions referring to the elements on which can be proved a convenience marriage, in compliance with the provisions of the Government Emergency Ordinance no. 194/2002, on foreigner’s regime in Romania republished, as modified and supplemented.

Y, More favourabl e

Art. 321. - ( (1) Not complying with the any obligations established under article 9, 10, 15, 16 and article 19, paragraph (1) shall be considered as minor offences and shall be sanctioned with fine from 25 to 50 LEI. (2) Ascertaining cases of minor offences and enforcing the corresponding sanctions shall be made through appointed workers within Ministry of Administration and Interior. (3) In the case of minor offences provided at paragraph 1, the offender may pay half of the minimum fee within maximum 48 hours from the date of concluding

Y

ROMANIA

Comments/Problems

More favourable treatment The Romanian text transposing the Directive’s requirement refers only to the refusal of the right of residence in case of marriage of convenience. This provision is more favourable since it means that fraud is not a ground to expel somebody of the territory neither affiliation of convenience.

Effective transposition. The sanctions may be considered as proportionate if not very law (approx. from 7 up to 14 euro). The Romanian texts compliance with the discrimination principle.

65/67

ensure non-


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 Art

Citation of the Article of the Directive

Art.37

More favourable national provisions

Art.38

Art.39

The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive. 1. Articles 10 and 11 of Regulation (EEC) No 1612/68 shall be repealed with effect from 30 April 2006. 2. Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC shall be repealed with effect from 30 April 2006. 3. References made to the repealed provisions and Directives shall be construed as being made to this Directive.

Corresponding national provision (legal ref. & art.)

GEO no. 102/2005 Art. 33 (2)

Complete text of national provision (in language of Member State) procesului-verbal ori, după caz, de la data comunicării acestuia jumătate din minimul amenzii prevăzute la alin. (1), agentul constatator făcând menţiune despre această posibilitate în procesul-verbal. (4) Contravenţiei prevăzute la alin. (1) îi sunt aplicabile prevederile Ordonanţei Guvernului nr. 2/2001 privind regimul juridic al contravenţiilor, aprobată cu modificări şi completări prin Legea nr. 180/2002, cu modificările şi completările ulterioare

Translation into English of national provision or, as the case may be, of notifying the minute, possibility which shall be mentioned in the minute by the special agents. (4) For the minor offences provided at paragraph (1) shall be applicable the provisions of Government Ordinance no. 2/2001 regarding the legal regime for minor offences, approved with further amendments through Law no. 180/2002 with further modifications and completions.

Fully in accord? (y/n)

Art. 33. - (2) Pe data intrării în vigoare a prezentei ordonanţe de urgenţă se abrogă Legea nr. 309/2004 privind libera circulaţie pe teritoriul României a cetăţenilor statelor membre ale Uniunii Europene şi Spaţiului Economic European, publicată în Monitorul Oficial al României, Partea I, nr. 593 din 1 iulie 2004

Art. 33. - (2) On the date of entry into force of the present Emergency Ordinance, Law no. 309/2004 on the free movement of citizens of the Member States of the European Union and the European Economic Area on the Romanian territory, published in the Official Journal no. 593/1 July 2004, shall be repealed

N, Incomplet e

Comments/Problems

Incomplete transposition The requirement that references made to the repealed legislation to be construed as being made to this Law is not ensured.

No later than 30 April 2008 the Commission shall submit a report on the application of this Directive to the European Parliament and the Council,

Milieu Ltd & Europa Institute, Edinburgh University

ROMANIA

66/67


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 Art

Citation of the Article of the Directive

Art.40

together with any necessary proposals, notably on the opportunity to extend the period of time during which Union citizens and their family members may reside in the territory of the host Member State without any conditions. The Member States shall provide the Commission with the information needed to produce the report. Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 April 2006. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

Corresponding national provision (legal ref. & art.)

Complete text of national provision (in language of Member State)

Translation into English of national provision

Fully in accord? (y/n)

Comments/Problems

GEO no. 102/2005 Art. 34

Art. 35. - Prezenta ordonanţă de urgenţă intră în vigoare la data aderării României la Uniunea Europeană

Art. 35. - The present Emergency Ordinance shall enter into force on the date of Romania’s accession to the European Union.

Y

Effective transposition.

GEO no. 102/2005 Art. 34

Art. 34. - Prezenta ordonanţă de urgenţă transpune Directiva Consiliului nr. 38/2004/CE a Parlamentului European şi a Consiliului din 29 aprilie 2004 privind libera circulaţie şi şedere a cetăţenilor Uniunii Europene şi membrilor de familie pe teritoriul statelor membre.

Art. 34. - The present Emergency Ordinance ensures transposition of Directive 2004/38/EC of The European 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

Y

Effective transposition.

2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive together with a table showing how the provisions of this Directive correspond to the national provisions adopted.

Milieu Ltd & Europa Institute, Edinburgh University

ROMANIA

67/67


romania_table_of_correspondence_en