C-344/95
ECLI:EU:C:1996:440
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COMMISSION v BELGIUM
OPINION OF ADVOCATE GENERAL LENZ delivered on 14 November 1996
A — Introduction period of three months, without being able to extend this period in order to continue to seek employment.
1. In these proceedings for failure of a Member State to fulfil its obligations under the Treaty, the Commission claims that the defendant Member State has infringed Article 48 of the Treaty as well as Directive 2) (a) During the first six months of their 68/360/EEC 1 in several respects in framing stay workers holding employment the right of residence of employed persons for at least one year are issued with or self-employed persons from other Mem- two successive registration certifi- ber States in the Law of 15 December 1980 cates before they are finally granted a on the entry, residence, establishment and 'Residence Permit for a National of a expulsion of foreigners 2 and in the Royal Member State of the EEC'. Decree of 8 October 1981 3by which that Law was implemented (hereinafter 'the Royal Decree').
(b) In addition, a fee is payable both upon submission of an application 2. According to the Commission, the and upon the issue of a registration infringements are as follows: certificate and of a 'Residence Permit for a National of a Member State of the EEC', so that the total amount of these charges exceeds by several times (sometimes by as much as four 1) Nationals of other Member States who times) the dues and taxes charged for are in Belgium to look for work are the issue of identity cards to Belgian obliged to leave Belgian territory after a nationals.
* Original language: German. 1 — Council Directive of 15 October 1968 on the abolition of restrictions on movement and residence within the Commu- nity for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485, as last amended in OJ 1994 L 1, p. 325, 572). 2 — Loi du 15 décembre 1980 sur l'accès au territoire, le séjour, 3) Employed persons and seasonal workers, l'établissement et l'éloignement des étrangers, as amended by the Law of 6 May 1993. where their activity is not expected to 3 — As amended several times. last for more than three months, are
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issued with a residence document, for not expected to last for more than which a fee is likewise charged. three months a document relating to their residence and by requiring pay- ment for that document;
3. The Commission claims that the Court should: 2) Order the Kingdom of Belgium to pay the costs.
1) Declare that the Kingdom of Belgium has failed to fulfil its obligations under Article 48 of the EC Treaty and Council 4. In the proceedings before the Court, the Directive 68/360/EEC, Kingdom of Belgium no longer disputes the content of the individual objections. It has announced a change in the law which would take into account all the points raised by the Commission. The Commission has indicated that it was willing to abandon its action, but — by requiring nationals of other Mem- no legislative amendments had been commu- ber States who seek employment in nicated to it by the time the written pro- Belgium to leave its territory after a cedure came to an end. That is why a judg- period of three months; ment is still required.
— by issuing, during the first six months of their residence, to persons employed for a period of at least one B — Analysis year two successive registration cer- tificates instead of a Residence Permit for a National of a Member State of the EEC and by requiring payment for those certificates;
5. Although the Belgian Government no longer disputes the claim — contrary to the position it was still taking in its written reply — by issuing to employed persons and to the reasoned opinion — the legal basis of to seasonal workers whose activity is the Commission's case should be examined.
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6. 1. As regards the situation of persons Commission argues that, whereas the Mem- seeking work, the Commission argues that, ber State is obliged by Article 4 of Directive as Community law now stands following the 68/360/EEC to grant such a residence per- judgment of the Court of Justice of 26 Feb- mit, the migrant worker receives in a six- ruary 1991 in the Antonissen case, 4 nationals month period two successive registration of Member States have the right to stay in certificates which have the nature of only a the territory of other Member States in order temporary residence permit. This is an addi- to seek employment there. As far as the tional difficulty, over and above the difficul- duration of that right of residence is con- ties facing a migrant worker when he moves cerned, it may be made subject to a 'reason- to another Member State. Since the Belgian able time-limit', the expiry of which does not rules in question thus constitute a real automatically bring that right to an end, pro- obstacle to the free movement of workers, vided that the person seeking employment they are contrary to Article 48 of the Treaty. can produce evidence that he is continuing to seek employment and has genuine chances of being engaged. In Antonissen, six months was seen to be a 'reasonable time'.
9. O n the question of what would be required to make the legislation in question compatible with Article 48, the Commission does not contend that the residence permit 7. The Commission has set out the current has to be issued on the same day as an appli- legal position correctly. Contrary to that cation, accompanied by supporting docu- position, the Belgian rules in question pro- mentation, is submitted. The practical effect vide for automatic termination of the period of Article 4 of Directive 68/360/EEC at the end of three months, with no oppor- requires instead that this application be dealt tunity of extending it. These restrictive rules with within a short time; a period of three are therefore contrary to the freedom, months, let alone six months, for dealing granted in Article 48(3)(a) and (b) of the with a simple administrative formality is Treaty, to move freely within the territory of excessive. Member States in search of genuine offers of employment.
10. In my opinion, the successive issue of two registration certificates before a final 8. 2. (a) As regards the obtaining of registra- residence permit is issued, irrespective of tion certificates as a necessary preliminary whether the migrant worker has already pro- for obtaining a 'Residence Permit for a duced all the documents required to obtain a National of a Member State of the EEC', the residence permit under Article 4(3) of the Directive, including a confirmation of engagement from the employer or a certifi- 4 — Case C-292/89 [1991] ECR I-745. cate of employment, is disproportionately
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formalistic. Even though the authorities must cates. Article 9(1) of Directive 68/360/EEC be allowed to check the documents, the type provides: of documentation involved (the worker's identity papers and confirmation of engage- ment or certificate of employment) cannot justify a verification period lasting up to six months. As a general rule, the waiting period before the residence permit is issued, together with the need for numerous admin- istrative actions, is excessive. 'The residence documents granted to nation- als of a Member State of the EEC referred to in this Directive shall be issued and renewed free of charge or on payment of an amount not exceeding the dues and taxes charged for the issue of identity cards to nationals.' 5
In my opinion, this means that the sum of 11. A distinction according to whether or the charges demanded for the issue of a resi- not a confirmation of engagement or a cer- dence permit must not exceed the dues and tificate of employment exists at the time of taxes charged for the issue of identity cards the application is quite capable of affecting to nationals. the course of the procedure. But where no such distinction is made, the form of the procedure and the time entailed before a residence permit is issued must be regarded as too burdensome and therefore as a genu- ine obstacle to the free movement of work- ers, contrary to Article 48 of the E C Treaty. 13. Even if it is a matter for district authori- ties to fix the amount of the charges on each occasion, it can be seen and illustrated by figures from five representative communes provided by the Belgian Government that a charge arises for each of the administrative actions described, beginning with a charge for opening the file 6 on the issue of the reg- istration certificates and finishing with the issue of the residence permit. Even if each individual charge does not, on its own,
12. (b) Although it is raised as a separate matter, the question of charges is directly 5 — My emphasis. related to the question of registration certifi- 6 — Frais d'ouverture de dossier.
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exceed the fee payable for the issue of an issuing a residence permit. Article 8(1) identity card, the total amount of the charges defines this group of persons as follows: regularly exceeds the identity-card fee by several times. As the system of registration certificates is structured, a worker who is entitled to a residence permit within the meaning of Article 4(2) of Directive under (a): 'a worker pursuing an activity as 68/360/EEC cannot avoid going through an employed person, where the activity is each administrative step and paying a charge not expected to last for more than three each time. The way in which the administra- months ...' tive charges for obtaining a residence permit are levied must therefore be regarded as an infringement of Article 9(1) of Directive 68/360/EEC.
and under (c): 'a seasonal worker who holds a contract of employment stamped by the competent authority of the Member State on whose territory he has come to pursue his activity'.
14. 3. As regards the last separate objection, concerning the situation of workers staying 16. But Article 8(2) provides: in Belgium for less than three months, the Commission points out that the persons concerned are required, for a fee, to apply for a document which amounts to more than mere confirmation of the fact that the worker has reported his presence on Belgian 'In all cases referred to in paragraph 1, the territory: the document is, it says, akin to a competent authorities of the host Member residence permit and this requirement is con- State may require the worker to report his trary to Article 8 of Directive 68/360/EEC. presence in the territory.' 7
17. A contact with the authorities whereby a worker in one of the groups concerned reports his presence is therefore in accord- ance with the Directive. Anything going 15. Article 8 of the Directive defines the groups of workers whose right of residence the Member States are to recognize without 7 — My emphasis.
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beyond this, however, and assuming the 21. Any formality imposed on a worker nature of an authorization or a residence per- mentioned in Article 8(1) of the Directive mit, is not permissible. and going beyond a duty to report one's presence is contrary to that provision, in that a worker within the meaning of point (a) proves that he belongs to this group of per- sons by means of 'the document with which the person concerned entered the territory 18. Article 47 of the Belgian Royal Decree and a statement by the employer on the provides that, where a person reports his expected duration of the employment'. presence in the territory, a document based on one of the models appearing in the annexes to the Royal Decree 8 is to be issued.
22. Since reporting one's presence to the authorities is a unilateral act which is accom- plished by the worker and which necessitates no further action on the authorities' part, the 19. The Belgian Government considers that imposition of a charge upon this notification the issue of this document for a fee does no also represents an unnecessary obstacle. more than provide written confirmation that the immigrant worker's duty to report his presence has been fulfilled.
23. In conclusion, it may be stated that, where Directive 68/360/EEC does not pro- vide for the issue of a residence permit, the 20. The Commission disagrees: Article 5 of issue, for a fee, of a document for proving the Law of 15 December 1980 and Articles lawful residence in Belgian territory is 18 to 20 of the Royal Decree of 8 October incompatible with Article 8 of the Directive. 1981 already require all foreigners to report their presence in the territory of the Member State. These persons will be given a docu- ment based on the model appearing in Annex 3 to the Royal Decree. Article 47 of the Royal Decree does more than merely Costs require a worker to report his presence because the worker is required to produce confirmation of engagement from the employer or a certificate of employment. These documents are required in order to 24. Under Article 69(2) of the Rules of Pro- obtain a residence permit within the meaning cedure, the unsuccessful party is to be of Article 4 of the Directive. ordered to pay the costs. Since the Commis- sion has succeeded in having its claim upheld, the Kingdom of Belgium must be 8 — See Annex 22. ordered to pay the costs.
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C — Conclusion
25. In view of the foregoing considerations, I propose that the Court should rule as follows:
(1) The Kingdom of Belgium has failed to fulfil its obligations under Article 48 of the EC Treaty and Council Directive 68/360/EEC
— by requiring nationals of other Member States who seek employment in Belgium to leave its territory after a period of three months;
— by issuing, during the first six months of their residence, to persons employed for a period of at least one year two successive registration cer- tificates instead of a Residence Permit for a National of a Member State of the EEC and by requiring payment for those certificates;
— by issuing to employed persons and to seasonal workers whose activity is not expected to last for more than three months a document relating to their residence and by requiring payment for that document.
(2) The Kingdom of Belgium is ordered to pay the costs.
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