COUNCIL OF

THE EUROPEAN UNION

 

Brussels, 2 February 2004

 

 

Interinstitutional File:

2002/0242 (CNS)

 

 

5528/04

 

 

LIMITE

 

 

 

 

 

MIGR  2    

 

 

OUTCOME OF PROCEEDINGS

of :

Working Party on Migration and Expulsion

on :

14-15 January 2004

No. prev. doc. :

16117/03 MIGR 112

Subject :

Proposal for a Council Directive on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service

 

 

At its meeting held on 15 and 16 January 2004 the Working Party completed the second reading of the above Proposal.

 

The text of the entire draft Directive is set out below, with the comments and reservations of the delegations in footnotes.

 

_______________________

 

Proposal for a

COUNCIL DIRECTIVE

on the conditions of admission of third‑country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service[1]

Chapter I

General Provisions

Article 1: Subject‑matter

The purpose of this Directive is to determine:

a)            the conditions for admission[2] of third‑country nationals to the territory of the Member States for a period exceeding three months for the purpose of studies, pupil exchange[3], unremunerated training[4] or voluntary service[5];

b)           rules concerning the procedures for admitting third‑country nationals to the territory of the Member States for those purposes.

 

 

 

 

                                                     Article 2: Definitions[6]

For the purposes of this Directive:

a)           third‑country national means any person who is not a citizen of the European Union within the meaning of Article 17(1) of the Treaty;

b)[7]          student means a third‑country national admitted to the territory of a Member State to pursue as his / her main activity a full‑time course of study leading to a higher education qualification recognised by the Member State, including diplomas, certificates or doctoral degrees in an establishment of higher education[8] including a preparatory course prior to such education according to national legislation;

c)           school pupil means a third‑country national admitted to the territory of a Member State to follow courses at a recognised establishment of secondary education in the context of an exchange scheme operated by an organisation recognised for the purpose by the Member State in accordance with its regulations or administrative practice;

d)           unremunerated trainee means a third‑country national who has been admitted to the territory of a Member State for a training period without remuneration, in accordance with national law;

e)           establishment means a public or private establishment[9] recognised[10][11] by the host Member State in accordance with its regulations or administrative practice for the purposes set out in this Directive;

f)[12]          voluntary service scheme means a programme of activities of practical solidarity, based on a State or a Community scheme, pursuing objectives of general interest.


Article 3: Scope[13]

1.                 This Directive applies to third‑country nationals who wish to be admitted to the territory of a Member State for the purposes of studies.

This Directive also applies to third‑country nationals who wish to be admitted to the territory of a Member State for the purposes of pupil exchange, unremunerated training[14] or voluntary service, on condition that the Member State concerned provides for the possibility of admitting such categories of third country nationals[15].

2.           The provisions of this Directive do not apply to:

a)           third‑country nationals residing in a Member State as asylum‑seekers, or under subsidiary forms of protection or under temporary protection schemes;

b)           third‑country nationals whose expulsion has been suspended for reasons of fact or of law;

c)           third‑country nationals who are members of the family of Union citizens who have exercised their right to free movement in the Community;

d)           third‑country nationals who enjoy long‑term resident status in a Member State in accordance with Council Directive [...] of [...] on [...] and exercise their right to reside in another Member State in order to study or receive vocational training.

 

Article 4: More favourable provisions

 

1.           This Directive is without prejudice to more favourable provisions of:

a)           bilateral or multilateral agreements between the Community or the Community and its Member States and one or more third countries; or

b)           bilateral or multilateral agreements between one or more Member States and one or more third countries.

2.           This Directive is without prejudice to the right of Member States to adopt or maintain provisions that are more favourable to the persons to whom it applies.

 

Chapter II

Conditions of admission

(Former) Article 4: Principle

[Deleted[16]]

Article 5: General conditions

1.           A third country national who wishes to be admitted for the purposes set out in Articles 6-10 shall:

a)                 present a valid travel document or its certified copy[17] and, if he /she is a minor under the national law of the host Member State, a parental authorisation for the planned stay;

b)           have sickness insurance in respect of all risks normally covered for its own nationals in the Member State concerned;

c)           not be regarded as a threat to public policy, public security or public health.

d)           provide proof, if the Member State so requests, that he / she has paid the fee for handling the application on the basis of Article 22 of this Directive.

2.         Member States shall facilitate the admission of the third‑country nationals covered by Articles 6 to 10 who participate in Community programmes enhancing mobility towards or within the European Union[18].

 

Article 6: Specific conditions for students

1.         In addition to the general conditions stipulated in Article 5, a third country national who wishes to be admitted for study purposes shall:

a)           have been accepted by an establishment of higher education to follow a course of study. The student may prove that he / she meets this condition by presenting, among other possibilities, a letter or certificate confirming his /her enrolment, or evidence that he / she is enrolled subject to a decision on the equivalence of his /her foreign qualification or passing an entrance test[19];

b)           provide evidence requested[20] by a Member State that during his /her stay he /she will have sufficient resources to cover his /her subsistence, study and return travel costs[21]. Member States shall make public the minimum monthly resources required for the purpose of this provision, without prejudice to individual examination of each case;

c)           have, if the Member State so requires, sufficient knowledge of the language of the course followed by the student;

d)           provide evidence, if the Member State so requires, that he / she has paid the fees charged by the establishment.

2.         Students who automatically qualify for sickness insurance as a result of enrolment at an establishment shall be presumed to meet the condition of Article 5(1)(b).

 

Article 7: Mobility of students[22]

1.      Without prejudice to Articles 11(2)(c) and (d), 15, 16 and 20(2), a third‑country national who has already been admitted as a student and wishes to follow part of the studies already commenced, or complement them with a related course of study in another Member State shall be admitted by the latter Member State within a period that does not hamper the pursuit of the relevant studies[23], if he /she:

a)  meets the conditions laid down by Articles 5 and 6 in relation to that Member State; and

b) has sent, with his /her application for admission, full documentary evidence of his /her academic record and evidence that the course he /she wishes to follow genuinely complements the one he /she has completed.

 

2.      The first Member State shall, at the request of the second Member State provide the appropriate information in relation to the stay of the third country national student in the territory of the first Member State.


Article 8:
Specific conditions for school pupils participating in an exchange scheme[24]

1.         Where a Member State provides for the possibility of admitting third country nationals for the participation in pupil exchange schemes, a third country national who wishes to be admitted as pupil shall in addition to the general conditions stipulated in Article 5:

a)         not be below the minimum age nor above the maximum age set by the Member State concerned;

b)         provide evidence of acceptance to a secondary education establishment;

c)         provides evidence of participation in a pupil exchange scheme programme operated by an organisation recognised for that purpose by the Member State concerned in accordance with its regulations or administrative practice;

d)         provides evidence that the pupil exchange organisation accepts responsibility for him /her throughout his /her period of presence in the territory of the Member State concerned, in particular as regards subsistence, study, health‑care and return travel costs;

e)         be accommodated throughout his /her stay by a family meeting the conditions set by the Member State concerned and selected in accordance with the rules of the pupil exchange scheme in which he / she is participating.

2.         Member States may confine the admission of school pupils participating in an exchange scheme to nationals of third countries which offer the same possibility for their own nationals.

Article 9: Specific conditions for unremunerated trainees[25]

Where a Member State provides for the possibility of admitting third country nationals as unremunerated trainees, a third country national who wishes to be admitted as unremunerated trainee, shall, in addition to the general conditions stipulated in Article 5:

a)           have signed a training agreement[26], approved if need be by the relevant authority in the Member State concerned in accordance with its regulations or administrative practice, for an unremunerated placement with a public‑ or private‑sector enterprise or vocational training establishment recognised or financed by the Member State in accordance with its regulations or administrative practice;

b)           provide evidence requested by a Member State that during his / her stay he / she will have sufficient resources to cover his / her subsistence, training and return travel costs. The Member States shall make public the minimum monthly resources required for the purpose of this provision, without prejudice to individual examination of each case;

c)           receive, if the Member State so requires, basic language training so as to acquire the knowledge needed for the purposes of the placement.

 

Article 10: Specific conditions for volunteers[27]

Where a Member State provides for the possibility of admitting third country nationals as volunteers, a third country national who wishes to be admitted as volunteer shall, in addition to the general conditions stipulated in Article 5:

a)       not be below the minimum age nor above the maximum age set by the Member State concerned;

b)      produce an agreement with the organisation responsible in the Member State concerned for the voluntary service scheme in which he is participating, giving a description of tasks, the conditions in which he is supervised in the performance of those tasks, his working hours, the resources available to cover his travel, subsistence, accommodation costs and pocket money throughout his stay and, if appropriate, the training he will receive to help him perform his service;

c)       provide evidence that the organisation responsible for the voluntary service scheme in which he /her is participating has subscribed a third‑party insurance policy and accepts full responsibility for him throughout his stay, in particular as regards his subsistence, health‑care and return travel costs;

d)          and - if a Member State specifically requires it - receives a basic introduction to the language, history and political and social structures of the host Member State.

 

Chapter III

Residence permits

Article 11: Residence permit[28] issued to students[29]

1.         Except where the student is admitted subject to a decision on the equivalence of his / her foreign qualification or to passing an entrance test[30], a residence permit shall be issued to the student for a period of at least one year and renewable if the holder continues to meet the conditions of Articles 5 and 6. Where the duration of the course of study is less than one year, the permit shall be valid for the duration of the course.

2.         Without prejudice to Article 15, renewal of a residence permit may be refused or the permit may be withdrawn if the holder:

a)           has been admitted subject to passing an entrance test at the establishment where he wishes to study and fails to produce a certificate of enrolment in this establishment;

b)           has been admitted subject to a decision on the equivalence of his foreign qualification and has failed to obtain a decision;

c)           does not respect the limits imposed on access to economic activities under Article 18 of this Directive;

d)           does not make acceptable progress in his studies in accordance with national legislation or administrative practice[31][32].

Article 12: Residence permit issued to school pupils[33]

A residence permit issued to school pupils shall be issued only for a maximum of one year

 

Article 13: Residence permit issued to unremunerated trainees[34]

1.         The period of validity of a residence permit issued to unremunerated trainees shall correspond to the duration of the placement or for a maximum of one year. In exceptional cases, it may be renewed, once only and exclusively for such time as is needed to acquire a vocational qualification recognised by a Member State in accordance with its regulations or administrative practice, provided the holder still meets the conditions laid down in Articles 5 and 9.

 

Article 14: Residence permit issued to volunteers[35]

A residence permit issued to volunteers shall be issued only for a maximum of one year.

In exceptional circumstances, if the duration of the relevant programme is longer than one year, the duration of the validity of the residence permit may correspond to the period concerned.

 

Article 15: Withdrawal of permits

1.         Member States may withdraw a residence permit or a visa[36] issued on the basis of this Directive when it has been fraudulently acquired or wherever it appears that the holder did not meet or no longer meets the conditions for entry and residence provided for by Article 5 and whichever of Articles 6 to 10 inclusive applies to the relevant category.

2.         Member States may withdraw residence permits or visas on grounds of public policy, public security or public health.

 

Article 16 Fraud

 

[deleted]

 

Chapter IV

Treatment of the third‑country nationals concerned

Article 17: Entry and residence[37]

1.      During its period of validity, the holder of a residence permit issued on the basis of this Directive shall be entitled to enter and reside[38] in the territory of the Member State which issued it.

 

2.      As soon as an application has been accepted the Member State concerned shall grant such person every facility for obtaining the requisite visas[39] if the Member State issues residence permits exclusively within the country and demands a visa for the initial entry.

Article 18: Economic activities by students[40]

1.      Outside their study time, students may exercise an economic activity[41], subject to the rules applicable to the relevant trade[42]. Each Member State shall[43] determine the maximum number of hours of work allowed, between 10 and 20 hours per week. This limitation shall not apply during holiday periods[44].

2.      Member States may withhold this access to economic activities for the first year of residence and may withdraw it if the student does not make sufficient progress in his studies[45].

3.      Member States may require students to report, in advance or otherwise, to an authority designated by them, that they are engaging in an economic activity. Their employers may also be subject to a reporting obligation, in advance or otherwise[46].

 

 

Chapter V

Procedure and transparency

Article 19: Applications for admission

The application shall be submitted and examined when the third country national concerned is residing outside the territory of the Member State to which he /she wishes to be admitted.

By way of derogation, a Member State may, in appropriate circumstances[47], accept an application submitted when the third country national is already in its territory[48].

 

Article 20: Procedural guarantees and transparency[49]

1.                 Without prejudice to Article 7, a decision on an application for admission or renewal shall be adopted and the applicant shall be notified of them no later than 90 days[50] after the date of the application.

2.          If the information supplied in support of the application is inadequate, the competent authorities shall inform the applicant what further information they need. The period of time allowed by paragraph 1 shall be suspended until the authorities have received the requisite information.

3.           In exceptional circumstances linked with the complexity of the examination of the application, the time limit referred to in paragraph 1 may be extended. In such cases the competent national authorities shall inform the applicant thereof[51]..

4.         Reasons shall be given for any decision rejecting an application[52]. It shall be notified to the third‑country national concerned in accordance with the notification procedures under the relevant national legislation. The notification shall specify the possible redress procedures available and the time limit for taking action. Any consequences of no decision being taken by the end of the period referred to in paragraph 1, subject to paragraphs 2 and 3, shall be determined by the national legislation of the relevant Member State[53].

5.         Where an application is rejected, or a residence permit or a visa, issued in accordance with this Directive, is withdrawn, the person concerned shall have the right to mount a legal challenge in the Member State concerned[54][55].

 

Article 21: Fast‑track procedure for issuing residence permits or visas to student and school pupils[56]

An agreement on the establishment of a fast‑track admission procedure allowing residence permits or visas to be issued in the name of the third‑country national concerned may be concluded between the authority of a Member State with responsibility for the entry and residence of students or school pupils who are third‑country nationals and an establishment of higher education or an organisation operating pupil exchange schemes which has been recognised for this purpose by the Member State concerned in accordance with its regulations or administrative practice.

Such agreement shall apply in particular to:

a)         the manner in which compliance with the conditions for entry and residence in the territory are to be verified by the establishment or exchange organisation on behalf of the Member State, without prejudice to the Member States prerogatives under this Directive;

b)         the details of the procedure whereby the establishment or exchange organisation will submit applications for residence permits and the procedure whereby residence permits will be issued by the competent authority in this context;

c)         the period for issuing permits, which shall be shorter than that provided for by Article 20(1). The starting point shall be the date when the application is presented by the establishment or the exchange organisation;

d)         the possibility of denouncing the agreement if it is found that third‑country nationals admitted under this procedure do not meet the conditions for residence; and

e)         in the event of an agreement concluded with an exchange organisation, the conditions, in particular the financial conditions, to be met by the organisation in the context of this procedure and the rules governing its responsibility for the pupil throughout his stay in the territory of the Member State concerned.

Article 22: Fees

Member States may request applicants to pay fees for handling applications in accordance with this Directive.

Article 23: Transparency

[To be moved to the Preamble]

 

 

Chapter VI

Final provisions

Article 24: Non discrimination

[To be moved to the Preamble]

Article 25: Penalties

[To be deleted]

Article 26: Reporting

From time to time, and for the first time no later than three years after the period determined by Article 27, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and propose amendments if appropriate.

Article 27: Transposal

Member States shall bring into force the provisions necessary to comply with this Directive no later than.twenty - four months after the date of entry into force of this Directive. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 28: Entry into force

This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.

Article 29: Addressees

This Directive is addressed to the Member States.

Done at Brussels,

                                                                       For the Council

                                                                       The President

 

______________


[1]        A maintained its general scrutiny reservation on the whole Draft Directive mainly linked with the question of access of students to the labour market. D and A entered a general linguistic reservation on the German version of the Draft Directive, which was not in line with the negotiated text.

[2]        Most delegations welcomed the use of the comprehensive term admission instead of entry and residence. EL questioned the compatibility of this term with the relevant EC Treaty provision (Article 63 paragraph 3a).

[3]        F favoured the limitation of the scope of the Proposal to students and volunteers exclusively, while suggested that the pupil exchanges and unremunerated trainees should be excluded, preferably, or become optional. Some delegations (B, D and A) advocated for keeping pupil exchanges into the scope of the Proposal, while NL suggested that they should be on an optional basis. The Pres suggested maintaining them on optional basis for the Member States.

[4]        The Working Party endorsed the suggestion by the Cion to replace the term vocational training in the Proposal (whose definition has been deleted in Article 2) with the term unremunerated training. Most delegations consented to this proposal, while D entered a scrutiny reservation. The Pres pointed out the optional character of the provision concerning unremunerated trainees (Article 9).

[5]        B maintained its reservation on the inclusion of voluntary service in the Proposal. EL also questioned the inclusion of volunteerism in the scope of the draft Directive, while NL suggested regulating it on optional basis. As for the above provision, the Pres underscored the fact that the relevant provision (Article 10) is drafted on optional basis.

[6]        D entered a scrutiny reservation on the deletion of the definition on vocational training, which was quoted in the 16117/03 MIGR 112 as point f) in Article 2.

[7]        This provision consists of the merging of former points b) and c) of this Article.

[8]        D entered a scrutiny reservation on the deletion of the term in an establishment of professional education. The Pres noted that the deletion of the word professional is linked with the removal of the definition of vocational training.

[9]        B maintained its reservation on the word private. Moreover, asking to specify that the establishment should be only for educational purposes, B entered a reservation on the general character of the term establishment in this provision.

[10]       NL maintained its reservation on the definition because pursuant to its system the accreditation refers to the courses rather than to the establishment. The Pres pointed out that the recognition is carried out in accordance with the national regulations and practices, and that if the course is accredited then the institution is automatically accredited / recognised too. In order to overcome the problem raised by NL the Pres suggested to use the wording recognised or accredited.

[11]       B entered a scrutiny reservation on the deletion of the wording after recognised: or financed by, which was supported by all the other delegations.

[12]       EL reiterated its objection to the inclusion of volunteerism in the scope of the Proposal and NL repeated its preference for an optional provision (see footnote 5 on page 2).

        

[13]       E, supported by EL, repeated its suggestion to add the following paragraph to the text in order to accommodate its concerns for medical students whose studies involve paid training:

         Member States may determine the conditions of entry and residence of third country nationals who intend to carry out specialisation studies in the field of Medicine, taking into account the situation of their national labour market.

         The Pres pointed out that the fact that this special category of students may be paid during training does not affect the structure of the Proposal. F added that the University Authorities of the Member States maintain their full discretion in respect of the admission of these third country nationals, even by applying a numerus clausus in their admission policy. As a compromise this delegation suggested the insertion of a general recital whereby Member States, when deciding upon applications based on this Draft Directive, may take into account the situation in their labour market.

         In order to overcome the problem raised by E, D suggested introducing in paragraph 2, a new category of third country nationals to whom this Directive shall not apply. It suggested a clause such as the following:

         e) Third county nationals who under national law are considered as falling under the category of workers.

[14]       FIN felt that the issue of unremunerated training should not be dealt with in this Proposal, since it would more appropriately be addressed in the Directive on entry and residence for employment purposes.

[15]       Several delegations (B, EL, F and NL) preferred a clause which would clearly state that Member States have the option to decide whether or not to apply the provisions of this Directive to the categories of pupil exchange, unremunerated training and voluntary service schemes. EL went further suggesting limiting the scope of this Directive only to students and to unremunerated trainees (the latter on optional basis). F, pointing out that the text should focus on the students, wondered why the principle of subsidiarity in favour of the national legislation could not be applied for the other three aforementioned categories, especially if they comprise only very few third country nationals. The Cion underscored that to make the application of the Directive to the other categories completely optional would deprive the instrument from its added value in respect of these categories.

[16]       B expressed its concerns for the deletion of the former Article 4, stating that it introduced the important principle of verification of documentary evidence for meeting the conditions laid out in Articles 5 -10 of the Proposal, as a prerequisite for the issue of the residence permit to the applicant. It proposed the following text:

         Les ressortissants de pays tiers viss larticle 3, paragraphe 1, sont admis par les Etats Membres sur leurs territoires si aprs vrification de leur dossier, il apparat quils remplissent les conditions prvues  ce sujet conformment larticle 5 et, selon la catgorie concerne, larticle 6, 7, 8, 9 ou 10.

         The Pres took the view that the use of the term admission has rendered the Article redundant.

[17]       Many delegations (D, EL, F, FIN and A) preferred the option of producing certified copies of valid travel documents to be deleted. NL supported the current wording of the provision. It was suggested to clarify that copies of travel documents may only be accepted if certified by the competent Authorities of the host Member State.

[18]       F supported by EL, suggested deleting the wording Community programmes enhancing mobility towards or within the European Union and replacing it by programmes arising from the application of Community Law.

[19]       EL and L suggested providing for a sort of bank guarantee given by the student for his / her return trip if he /she is finally not enrolled to the establishment concerned. According to L this money of lodging this money in an account in the name of the competent Authority of the Ministry concerned.

[20]       D suggested the following wording: provide evidence in a reasonable form as requested by a Member State...

[21]       D suggested introducing to the Preamble the following recital in respect of this provision:

         It has to be ensured that the persons falling under this Directive do not become a burden to the social security system of the Member State, but rather that they have sufficient resources themselves to cover their subsistence, health, and return travel costs, as well as all costs resulting from their study.

         P raised the question of whether scholarships and grants given to students could be included in the monthly resources. The Pres, supported by the Cion, took the view that it is possible by virtue of the present paragraph, and suggested the drafting of a relevant clarifying recital.

[22]       F, supported by EL, felt it might be advisable to separate in the text the case where the mobility to another Member State is obligatory by the programme of studies, in which occasion it is a right for the student and the case where the mobility is at the initiative of the student concerned, in which occasion Member States are entitled to accept the application or not.

[23]       NL, unlike most other delegations which opted for a more flexible wording in respect of the time to deal with the application, supported the maintenance of the 30 day time limit, which was contained in 166117/03 MIGR 112.

         D maintained its reservation on the new wording pointing out, that it may cause legal uncertainty. It suggested that a maximum time of processing the relevant application could be envisaged instead.

[24]       EL, F, I and NL, entering a scrutiny reservation asked for a clearly optional provision, the application of which should lie at the Member States discretion.

         According to EL and F this category should be withdrawn from the scope of the Proposal.

         F suggested clarifying the optional character of this provision at the Article 3 concerning the scope of the Directive, which under the current drafting can, according to this delegation, oblige the Member States to introduce such schemes.

[25]       EL, IT and L maintained their scrutiny reservations. B and F maintained their reservation on the inclusion of this category to the scope of the Draft Directive.

         D and NL wondered whether, under this Proposal, unremunerated trainees could receive some allowance money or free board and lodging. The Cion took the view that providing such allowances or other benefits would not be incompatible with the Draft Directive. The Pres recalled that in accordance to Article 2 d) the admission of the above trainees is effected in accordance with the national legislation.

[26]       F entered a scrutiny reservation on the nature of the contractual relations of the unremunerated trainees.

[27]       EL maintained its general scrutiny reservation on the inclusion of this category to the scope of the Proposal. I also maintained its scrutiny reservation on the provision.

[28]       P entered a reservation for the use of the term residence permit throughout this Chapter, pointing out that according to its legislation third country nationals who wish to enter the country as students are granted long-term visas and not residence permits. E underlined that it shared the concerns of P, since the granting of a residence permit, in accordance with its legislation, could give rise to permanent residence rights and eventually the granting of the Spanish nationality. This delegation entered also a scrutiny reservation on the last sentence of paragraph 1. These two delegations added that the same concerns also apply to the other provisions of this Chapter.

         While aware of the problems raised by E and P, the Cion, took the view that the issue of residence permits on the basis of the standard format provided for in Regulation 1030/02 would be the preferable approach, in particular, because the holder would benefit from the rights emanating from the residence permit.

         A feeling that in spite of the changes introduced in this provision, Member State would still have to issue a specific residence permit for students maintained its scrutiny reservation. The Pres pointed out that this provision does not a create a specific residence permit for students allowing Member States to use their own titles. D supported the current wording,, which in accordance with this delegation, gives flexibility to lay down the purpose of residence in each case.

         A also suggested to insert a provision whereby a Member State may issue a residence permit for a period of less than one year if the travel documents of the applicant expire earlier.

[29]       EL and I maintained their general scrutiny reservation on the whole Article.

[30]       B and I entered scrutiny reservations and EL expressed its concerns on whether the Member States would be obliged by virtue of this provision to issue residence permits for third country nationals who had entered to wait for the equivalence or sit entrance tests but were not eventually admitted to the sought studies.

         The Pres took the view that Member States are not obliged to issue a residence permit in these cases.

[31]       E and EL maintained their scrutiny reservations. EL wondered whether the introduction of an upper time limit for the conclusion of the studies (violation of which by the student could entail the non-renewal of the residence permit) would be compatible with the Directive. The Pres felt that setting time limits for the duration of the studies could be a legitimate way to assess the progress of the student.

[32]       E entered a scrutiny reservation on the deletion of the last sentence of this paragraph as it was in the 16117/03 MIGR 112: [The Member State may refuse to renew a residence permit on this ground only by a decision stating specific reasons based on the opinion of the educational establishment, which must be consulted on the students progress, save when the establishment fails to respond to a request for an opinion within a reasonable period of time]

 

[33]       EL maintained its reservation on this provision.

[34]       EL maintained its reservation on this provision.

[35]       EL maintained its reservation on this provision, whose consideration would be linked with the formation of the scope of this Proposal in Article 3.

[36]       F suggested the deletion of the wording or a visa in paragraphs 1 and 2 as incompatible with the rest of this Chapter. E re-underlined its problem because of its national system of issuing long term visas (see footnote 1 on page 11).

[37]       D felt that this Article is superfluous and suggesting deleting it.

[38]       A entered a scrutiny reservation on the term reside preferring instead the word stay. Also this delegation, supported by I, expressed its concerns about the added value of this provision and whether the current wording of this Article may impose an obligation to Member States to issue visas under all circumstances.

         F suggested to replace the current wording by the following:

         shall be authorised to reside in the territory of the Member State which issued it and when necessary to enter it.

         L wondered whether the third country nationals who are granted a residence permit are allowed to circulate to other Member States apart from the issuing one.

[39]      EL, supported by I, pointed out that the granting of visas could not be based on the admission of the third country national concerned to a University.

         The Cion argued that it is the Member States discretion to issue visas to third country nationals and that this provision only provides for a facilitation of the procedure once everything has been checked and the application for admission has been approved. In this context the Cion suggested considering an alternative clause such as:

         the Member State concerned shall grant such person a facilitated procedure.

[40]       B and EL maintained their reservation on the provision considering it too analytical and suggesting to leave the subject at Member States legislation. P entered a scrutiny reservation on this Article.

[41]       D, supported by B and NL, entered a scrutiny reservation on the term economic activities, pointing out that this term may contain more activities than just employment, for example piano private courses and wondered whether these activities should always be related with the subject matter of the pursued studies. It also suggested to calculate the maximum number of hours, or days allowed to work /per semester instead per week. A maintaining its scrutiny reservation on the provision, pointed out that it would prefer that the Member States would have discretion concerning the admission of the third country national to the labour market.

[42]       F, supported by B, E and L, suggested distinguishing employed and independent economic activities, access to the latter of which should lie at the discretion of the Member States. L drew attention to the fact that in order to set up a business a lengthy procedure may be required for obtaining the relevant authorisation. E preferred that these activities should be related with the pursued studies.

[43]       FIN, considering this provision too binding, preferred an optional one.

[44]       NL suggested letting national legislation to decide about the maximum number of working hours per week allowed during regular and holidays time. F pointed out that this provision should be more flexible taking into account that the main purpose of the student is to complete his / her studies. S maintained its reservation on the above point, arguing that it is too detailed and the student may work for as much as he / she wants.

[45]       EL entered a reservation on this provision deeming it as unnecessary, stressing that the withdrawal of the residence permit may be an effective sanction for the student who is not having sufficient progress in his /her studies.

[46]       NL preferred that this provision becomes optional and refers to the national legislation.

[47]       NL maintained its scrutiny reservation on the provision. It suggested replacing in appropriate circumstances with where it is provided for by national legislation.

[48]       L suggested deleting the second paragraph and invoking Article 4 in regard to more favourable provisions applied by Member States. The Cion did not favour this idea pointing out that this Directive should give some guidance for procedural issues too and reduce legal uncertainty.

[49]       I entered a scrutiny reservation on paragraphs 3-5.

[50]       B entered a reservation on the 90 - day deadline.

[51]       D and S entered scrutiny reservations on the obligation to inform applicants where consideration of their application would take more than 90 days.

[52]       D and P, which entered a reservation, as well as EL, NL and S, which expressed their concerns, did not favour the idea of being obliged to provide reasons for rejecting applications for visas, taking into account that the granting thereof is not a right for third country nationals. In this context it was suggested to introduce a clear distinction between the rejection of an application for a residence permit for which it appears justifiable to provide reasons, and a refusal of an application for a visa for which Member States should not be obliged to provide reasoning.

[53]       B and F entered scrutiny reservations on the wording of the last sentence of this provision, suggesting deleting it.

[54]       D, in relation with the reservation described in footnote 4, entered a reservation on the obligation to provide justification for the rejection of a visa application.

[55]       F remarked that the legal challenge might take place outside the Member State concerned.

[56]       F entered a reservation on the inclusion of pupil schemes in the scope of this Proposal (see footnote 3 on page 2). FIN also entered a scrutiny reservation on this Article.