Conformity Study for Lithuania Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within

Transcription

1 Conformity Study for Lithuania 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

2

3 This National Conformity Study has been prepared by Milieu Ltd. in consortium with the, Edinburgh University under Contract No JLS/2007/C4/ CE / The actual conformity checking was carried out in Lithuania by Domas Balandis and was concluded on 1 August. The study does not take into account any subsequent changes in EU law and national legislation and/or administrative practice. The views expressed herein are those of the consultants alone and do not necessarily represent the official views of the European Commission. The national report reflects that legal situation as it stands on 1 August No subsequent changes have been taken into account. Milieu Ltd. (Belgium), 29 rue des Pierres, B-1000 Brussels, tel: ; Fax ; sophie.vancauwenbergh@milieu.be; web address:

4 ANALYSIS OF THE LEGISLATION TRANSPOSING DIRECTIVE 2004/38/EC ON FREE MOVEMENT OF UNION CITIZENS TABLE OF CONTENTS EXECUTIVE SUMMARY... 6 SUMMARY DATASHEET ABBREVIATIONS USED INTRODUCTION OVERVIEW OF THE LEGAL FRAMEWORK IN LITHUANIA FRAMEWORK FOR TRANSPOSITION & IMPLEMENTATION OF DIRECTIVE 2004/38/EC IN LITHUANIA Distribution of competences according to the national Constitution General description of organisation of national authorities implementing Directive 2004/38/EC Lithuania LEGAL ANALYSIS OF THE TRANSPOSING MEASURES FOR DIRECTIVE 2004/38/EC Definitions, family members and beneficiaries Rights of exit and entry Right of residence Right of permanent residence Common provisions (Articles 22-26) Restrictions on the right of entry and residence on grounds of public policy, public security and public health Procedural safeguards against decisions restricting free movement (Article 15, and Articles 30-31) Final provisions (Chapter VII) Recent developments...46 Bibliography ANNEX I: ANNEX II: ANNEX III: ANNEX IV: Table of concordance for Directive 2004/38/EC List of relevant national legislation and administrative acts Selected national case law Application format for issuance of the EC Residence permit Conformity Study Directive 2004/38/EC for Lithuania /60

5

6 EXECUTIVE SUMMARY 1. Introduction The Lithuanian legal system is based on a codification that follows the legal traditions of the European continental model and more precisely, the German model. The Constitution of the Republic of Lithuania was adopted by referendum on 25 October It created the legal bases for the legal system and distributed competences between the Parliament (Seimas), the President of the Republic and the Government, and the Judiciary. The Lithuanian legal system consists of codes and the other laws as independent instruments for regulating specific branches of public relations. Government resolutions and other regulations may regulate relations only in the cases and to the extent determined by the codes and the other laws adopted by the Parliament. International and the Community laws are superior to national law. Jurisprudence and legal precedents are not a source of law but the Supreme Court of the Republic of Lithuania and the Supreme Administrative Court of the Republic of Lithuania are considered as competent to interpret laws and other legal acts. Their interpretations found in the decisions or rulings must be taken into account by courts and other institutions as well as by other entities when applying the law or other legal acts. 2. Introduction to the main particularities of the legal system of the Member State relating to the transposition of Directive 2004/38/EC. Transposition of Directive 2004/2004/38/EC is mainly the result of the adoption of the Law on Legal Status of Aliens and its amendments. The first partial transposition was obtained through the adoption of the Law on the Legal Status of Aliens (Lietuvos Respublikos įstatymas dėl užsieniečių teisinės padėties) No IX-2206 of 29 April , which entered into force on 30 April The second partial transposition was obtained through adoption of the amendments to the Law on Legal Status of Aliens by Law No X-924 of 28 November , which entered into force on 16 of December The third part of transposition is the result of the amendments to the Law on Legal Status of Aliens by Law No X-1442 of 1 February , which entered into force on 22 February The other laws regulate specific issues related to the rights of Union citizens and their family members. For example, the Civil Code defines the concept of marriage; the Law on Declaration of Residence Place establishes the obligation to register the residence place in Lithuania, etc. It is established practice in Lithuania that laws establish principal provisions and the Government and the ministries regulate procedures by the secondary legislation; full transposition of the Directive is split into a variety of secondary legal acts. However, some of those legal acts are still in preparation. The Minister of Internal Affairs is the member of the Government with responsibility for immigration. The Minister has almost complete control of all relevant legal and administrative provisions for implementing the Directive. The Migration Department under the Ministry of Internal Affairs is 1 Lietuvos Respublikos įstatymas dėl užsieniečių teisinės padėties, Valstybės žinios, 2004, No , 2 Įstatymo Dėl užsieniečių teisinės padėties 2, 6, 7, 8, 11, 17, 18, 21, 25, 26, 28, 33, 34, 35, 40, 43, 46, 50, 51, 53, 54, 55, 56, 64, 79, 88, 90, 93, 97, 99, 100, 101, 102, 104, 106, 113, 115, 127, 130, 131, 132, 136, 138, 140 straipsnių pakeitimo, įstatymo papildymo 49(1), 101(1), 140(1) straipsniais, 30, 105 straipsnių pripažinimo netekusiais galios, X skyriaus pavadinimo pakeitimo bei Įstatymo priedo pakeitimo ir papildymo įstatymas, Valstybės žinios, 2006, No Įstatymo Dėl užsieniečių teisinės padėties 2, 5, 8, 26, 32, 35, 40, 43, 46, 50, 53, 71, 72, 90, 99, 104, 113, 124, 125, 126, 127, 131, 133, 134 straipsnių, III skyriaus pirmojo skirsnio ir priedo pakeitimo ir papildymo, Įstatymo papildymo 49(2) straipsniu ir 7 straipsnio pripažinimo netekusiu galios įstatymas, Valstybės žinios, 2008, Nr Conformity Study Directive 2004/38/EC for Lithuania /60

7 responsible for implementation of provisions of the Law on Legal Status of Aliens related to declaration/registration of the residence place; visas; organisation of issuance of identity documents to citizens of the Republic of Lithuania, citizens of any other foreign states and stateless persons; implementation and security of new identity documents and the compliance thereof with the European Union standards; preparation of the drafts of legal acts related to the legal status of foreigners. 3. Conclusions of the legal analysis of the transposing measures for Directive 2004/38/EC. The requirements of Directive 2004/38/EC are mainly correctly transposed by the Law on Legal Status of Aliens and its amendments. The Law on Legal status of Aliens regulates both the legal status of Union citizens and legal status of other foreigners. Such an approach renders transposition quite complex. It seems that the legislator sought to achieve transposition of the Directive by changing a minimum part of the provisions in the Law on Legal Status of Aliens; therefore, the provisions of the said Law are too general. A large amount of secondary legislation is needed to specify and clarify those provisions. The secondary legal acts transpose the requirements, particularly those provisions related to administrative formalities (registration of residence place, issuance of resident permits, etc). The fragmentation of the transposing provisions into a variety of secondary legal acts leads to several inconsistencies in the transposing provisions. The secondary legal acts have not been always properly transposed. The conformity problems mainly concern issues of incomplete and incorrect transposition. Incomplete transposition partially occurs due to the fact that the Lithuanian legislation often refers to the Schengen Border Code instead of transposing the Directive s provisions. However, the Schengen Border Code not always covers all possible situations referred to in the Directive. The analysis below specifies how the conformity problems have an impact on practical implementation and on the enforceability of the provisions referred to in Directive 2004/38/EC. i. Incomplete transposition Article 3(2): Other family members Article 3(2) a) of the Directive requires MS to facilitate entry and residence for any other family members not falling under the definition in point 2 of Article 2 of the Directive 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. The Lithuanian legislation does not provide such facilitation for entry and residence for any other family members who do not fall under the definition of family members of an EU Member State citizen, provided in Article 2, section 4 of the Law on Legal Status of Aliens. The same comment is pertinent for Article 3(2) b) of the Directive regarding a partner with whom the Union citizen has a durable relationship, duly attested. Article 5(4): Opportunity to obtain the necessary documents to cross the border The Lithuanian legislation does not provide a specific regime for Union citizens or their family members crossing the border. It establishes a common regime for all foreigners in accordance with the Schengen Border Code. However, the Schengen Borders Code does not cover all possible situations where third country family members or Union citizens may not have the necessary documents to cross the border referred to in Article 5(4) of the Directive. It should be noted that in this context, in practice Lithuania ensures Union citizens and their family members reasonable opportunities and a reasonable period of time: a concerned persons can reach the embassy of his state, use telephone/fax and other communication means to communicate with the authorities and to receive relevant documents. Conformity Study Directive 2004/38/EC for Lithuania /60

8 Article 7(3): Retention of the status of workers Lithuania does not provide that involuntary unemployment after having been employed for more than one year and being registered as a jobseeker with the relevant employment office forms a ground for retention of the status of worker or self-employed person Article 7(3) b). Nor it has transposed letters c) (about involuntary unemployment after completing a fixed term contract of less than 1 year) and d) (on vocational training). Article 8: Administrative formalities for EU citizens Article 8 of the Directive provides that for a period of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities. In such a case the registration certificate must be issued immediately (Article 8(2) of the Directive). Article 99, section 3 of the Law on Legal Status of Aliens, as last amended by the Law of 1 st February 2008, requires the Ministry of Internal Affairs to establish a procedure regulating the issuance of the certificates for Union citizens who entered Lithuania for residence longer than 3 months in a 6-month period confirming their rights to reside in Lithuania. Following the above obligation, the Ministry of Internal Affairs on 25 July 2008 adopted order No 1V-290 on approval of Procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union and Procedures on issuance, extension and revocation of residence permits for European Union citizen s family members who are not nationals of a Member State of EU. Due to the fact that this secondary legal act came into force on 3rd August 2008, (i.e. after this analysis had been completed), its provisions have not been analysed. Only those comments to the provisions which will be affected by this legal act are provided in section 3 of this study Recent Developments. The Law on Declaration of Place of Residence requires possession of a document certifying the Union citizens rights to reside in Lithuania. Article 4, section 1, paragraph 2 of this Law provides that a citizen of the European Union who has entered the Republic of Lithuania for more than three months in half a year and has obtained the residence rights provided by the Republic of Lithuania Law on the Legal Status of Aliens must declare their place of residence in Lithuania. Under paragraph of the Rules on Declaration of Place of Residence Data Management, when declaring their place of residence, Union citizens have to submit: either the European Community citizen s residence permit ; or a document certifying that a person has obtained the right to live in the Republic of Lithuania; or the European Community citizen s permanent residence permit ; or the document certifying that a person has obtained the right to live in the Republic of Lithuania permanently. Lack of a secondary legal act establishing the procedures on issuing the certificates confirming the Union citizens rights to reside in Lithuania makes it unclear how a Union citizen can obtain the documents needed for declaration of his place of residence. Article 14(4)(b): Protection against expulsion for jobseekers The Lithuanian legislation does not provide an explicit prohibition of expulsion of jobseekers. Even if the legislation does not provide expulsion measures against the Union citizens who entered the territory of Lithuania in order to seek employment, such measures should be provided. Article 27: Not using public policy/public security as economic grounds Overall, Article 27 of the Directive cannot be considered as transposed. This gap in transposition may be interpreted as not granting the same guarantees provided by the Directive regarding the personal conduct and the non consideration of previous convictions; and this even the rights of entry and residence can only be restricted in accordance with the Law on Administrative proceedings, which provides general legal principles of proportionality and requires the judges in administrative cases to actively participate in the examination of evidence, establishing all material circumstances for the case and make a comprehensive and objective review of the circumstances. Conformity Study Directive 2004/38/EC for Lithuania /60

9 Article 28: Special protection against expulsion The Lithuanian legislation does not provide that an expulsion decision against Union citizens who have resided in the host Member State for the previous 10 years, may not be taken, except on imperative grounds (Article 28 (3) a)). Other instances of incomplete transposition are provided in section 2 below. ii. Incorrect transposition Article 6 (1) : Special status of jobseekers: Lithuanian legislation does not provide that jobseekers can stay in Lithuania for 6 months without fulfilling any conditions Article 7(2): Right of residence for family members who are not nationals of a Member State The Lithuanian legislation does not state clearly the residence rights of Union citizen s family members who are not citizens of the member states. The Law provides only the obligation to obtain an EU residence permit. This should be treated as incorrect transposition. Article 10: Residence cards for third country family members Article 10 (1) of the Directive provides that 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. Article 99, sections 2 and 3 of the Law on Legal Status of Aliens, as last amended by Law of 1 st February 2008, requires that family members of an EU Member State national who are not citizens of the EU Member State, when entering the Republic of Lithuania for residence for longer than 3 months in a 6-month period accompanying the national of the EU Member State or joining him/her, must obtain the EU residence permit. Procedure regulating issuance, extension and withdrawal of the EU residence permit to the family members of the EU Member State national must be established by the Minister of the Internal Affairs. However, neither the existing procedures relating the issuing of the EU residence permit nor the other legal act foresee the issuance of a document called Residence card of a family member of a Union citizen. Article 16: Acquisition of the right of permanent residence after 5 years of residence The Directive provides that 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. The Lithuanian legislation establishes a stricter term as compared to the Directive since it requires living for the last 5 years. Article 20: Permanent residence cards for third country family members There is incorrect transposition of Article 20(2) of the Directive, since the Lithuanian legislation establishes different conditions for family members of a Lithuanian citizen who are not citizens of an EU Member State, and for family members of other Union citizens who are not citizens of an EU Member State. The national Law provides that a family member of a Lithuanian citizen shall have the right to obtain the EU residence permit, while, a family member of a Union citizen must obtain an EU residence permit. Other cases of incorrect transposition are provided in section 2 below. Conformity Study Directive 2004/38/EC for Lithuania /60

10 iii. Minor instances of non-conformity Article 2(2): The definition of family member Article 2(2)(b) of the Directive considers the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State as a family member. The Civil Code of Lithuania treats registered partnership as equivalent to marriage. Neither the Civil Code nor the Law on Legal Status of Aliens provide that a registered partnership must be contracted on the basis of the legislation of a Member State. Therefore the definition of family member, referred to in Art. 2(2)(b) of the Directive has been transposed incompletely. The missing words on the basis of the legislation of a Member State determines that a partnership registered on the basis of the legislation of any 3 rd country has the same legal status as a partnership registered on the basis of legislation of a Member State. This does not create a conformity problem since the Lithuanian legislation creates in this respect more favourable conditions for acquiring the status of a family member of a Union citizen. However, implementation problems occur due to the lack of procedures on registration of partnership in the Lithuanian legislation, although the Civil Code requires that such procedures must be established by the law. The Supreme Court of Lithuania explained that until the procedures are established by a Law on Procedures for Registration of Partnership, partners can not register their partnership (Judgment of the Supreme Court of Lithuania of 26 April 2006 in civil case No 3K-3-302/2006) 4. Minor instances of non-conformity also occur when transposing Articles 8(3) and 8(5) of the Directive due to inconsistency in the Lithuanian legislation regarding the issuing of a document called EC residence permit. 4 Conformity Study Directive 2004/38/EC for Lithuania /60

11 Conformity Study Directive 2004/38/EC for Lithuania /60

12 SUMMARY DATASHEET 1. Transposing legislation Transposition of Directive 2004/38/EC is mainly the result of three laws adopted by the Parliament of Lithuania (Seimas). The first partial transposition was obtained through the adoption of the Law on the Legal Status of Aliens (Lietuvos Respublikos įstatymas dėl užsieniečių teisinės padėties) No IX-2206 of 29 April 2004, 5 which entered into force on 30 April The second partial transposition was obtained through the adoption of the amendments to the Law on Legal Status of Aliens by Law No X- 924 of 28 November 2006, 6 which entered into force on 16 of December The third part of transposition is the result of the amendments to the Law on Legal Status of Aliens by Law No X-1442 of 1 February , which entered into force on 22 February The following legal acts have been adopted or amended in order to transpose Directive 2004/38/EC: Format for the Certificate Confirming a Union citizen s Residence Rights in Lithuania, approved by the Ministry of Internal Affairs order No IV-158 of 6 May 2008; 8 The Law on Declaration of Residence Place No VIII-840 of 2 July 1998, as amended by No X-961 of , 9 which regulates declaration of residence place in Lithuania including the declaration of residence place of Union citizens and their family members; Rules on Declaration of Residence Place Data Management, approved by the Director of Citizen Register Service under the Ministry of Internal Affairs order No (29)4R-18 of 8 April 2008, 10 which specifies procedures on declaration of residence place in Lithuania; Statutes on the Register of Foreigners, approved by the Government of the Republic of Lithuania resolution No 1342 of 14 December 2005; 11 Procedures on issuance of permanent residence certificates for citizens of Member States of the European Union, approved by the Ministry of Internal Affairs of the Republic of Lithuania order No 1V-369 of 25 October 2007; 12 5 Lietuvos Respublikos įstatymas dėl užsieniečių teisinės padėties, Valstybės žinios, 2004, No , 6 Įstatymo Dėl užsieniečių teisinės padėties 2, 6, 7, 8, 11, 17, 18, 21, 25, 26, 28, 33, 34, 35, 40, 43, 46, 50, 51, 53, 54, 55, 56, 64, 79, 88, 90, 93, 97, 99, 100, 101, 102, 104, 106, 113, 115, 127, 130, 131, 132, 136, 138, 140 straipsnių pakeitimo, įstatymo papildymo 49(1), 101(1), 140(1) straipsniais, 30, 105 straipsnių pripažinimo netekusiais galios, X skyriaus pavadinimo pakeitimo bei Įstatymo priedo pakeitimo ir papildymo įstatymas, Valstybės žinios, 2006, No Įstatymo Dėl užsieniečių teisinės padėties 2, 5, 8, 26, 32, 35, 40, 43, 46, 50, 53, 71, 72, 90, 99, 104, 113, 124, 125, 126, 127, 131, 133, 134 straipsnių, III skyriaus pirmojo skirsnio ir priedo pakeitimo ir papildymo, Įstatymo papildymo 49(2) straipsniu ir 7 straipsnio pripažinimo netekusiu galios įstatymas, Valstybės žinios, 2008, Nr Pažymos Europos Sąjungos valstybės narės piliečiui jo teisei gyventi Lietuvos Respublikoje patvirtinti formą, Valstybės žinios, 2008, Nr Lietuvos Respublikos gyvenamosios vietos deklaravimo įstatymas, Valstybės žinios, Nr , 10 Gyvenamosios vietos deklaravimo ir deklaravimo duomenų tvarkymo taisyklės, Valstybės žinios, 2008, Nr Užsieniečių registro nuostatai, Valstybės žinios, 2005, No Užsieniečių registro nuostatai, Valstybės žinios, 2005, No Pažymos Europos Sąjungos valstybės narės piliečio teisei nuolat gyventi Lietuvos Respublikoje patvirtinti išdavimo tvarkos aprašas, Valstybės žinios, 2007, No Europos Sąjungos valstybės narės piliečio šeimos nario leidimo gyventi Lietuvos Respublikoje išdavimo, pratęsimo ir panaikinimo Europos Sąjungos valstybės narės piliečio šeimos nariams, kurie nėra Europos Sąjungos valstybės narės piliečiai, tvarkos aprašą, Valstybės žinios, 2007, No Conformity Study Directive 2004/38/EC for Lithuania /60

13 Procedures on issuance, extension and revocation of residence permits for European Union citizen s family members who are not nationals of a Member State of EU), approved by the Ministry of Internal Affairs of the Republic of Lithuania order No 1V-369 of 25 October The Ministry of Internal Affairs order No 1V-290 of 25 July 2008 on approval of Procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union and Procedures on issuance, extension and revocation of residence permits for European Union citizen s family members who are not nationals of a Member State of EU 14 (it came into force on 3rd August 2008, therefore its provisions are only commented in section 3 Recent Developments ). Specific provisions that are relevant for the transposition of the Directive are included in the following acts: Law on Identity Cards (Lietuvos Respublikos asmens tapatybės kortelės įstatymas) No IX- 577 of 6 November 2001; Passport Law (Lietuvos Respublikos paso įstatymas No IX-590 of 8 November 2001, as amended by No X-705 of 20 June 2006; Description of Passport Format (Paso formos aprašymas), approved by the Minister of Internal Affairs of the Republic of Lithuania order No 1V-498 of 28 December 2006 ; Rules on drawing up and administration of the list of foreigners to whom exit to the Republic of Lithuania is refused (Užsieniečių, kuriems draudžiama atvykti į Lietuvos Respubliką, sąrašo sudarymo ir tvarkymo taisyklės), approved by the Government of the Republic of Lithuania resolution No 436 of 20 April 2005; Statutes on the Register of Foreigners (Užsieniečių registro nuostatai), approved by the Government of the Republic of Lithuania resolution No 1342 of 14 December 2005; Procedures for Recognition of Travel Documents Giving the Rights for Entry to Lithuanian Republic (Kelionės dokumentų, kurie suteikia teisę užsieniečiui atvykti į Lietuvos Respubliką, pripažinimo tvarkos aprašas), approved by Order No V-101/1V-397 of the Minister of Internal Affairs of the Republic of Lithuania and the Minister of Foreign Affairs of the Republic of Lithuania of 21 November 2007; Manual on Stamping of Travel Documents for Persons Crossing the Border (Asmenų, vykstančių per valstybės sieną, kelionės dokumentų žymėjimo instrukciją), approved by the State Border Protection Service upon the Minister of the Internal Affairs together with the Minister of Foreign Affairs Order (No of 6 October 2006, as amended by order No of 16 November 2006; Rules on submission of documents for issue of a visa, on visa issue at border control posts, on the extension of a period of stay in the Republic of Lithuania in possession of a visa and on cancellation of a visa (Dokumentų vizai gauti pateikimo, vizos išdavimo, taip pat ir vizos išdavimo pasienio kontrolės punktuose, buvimo Lietuvos Respublikoje turint vizą laiko pratęsimo, vizos panaikinimo taisyklės), approved by Order No 1V-280/V-109 of the Minister of the Internal Affairs of the Republic of Lithuania and the Minister of Foreign Affairs of the Republic of Lithuania of 2 September 2004; Law on Consular Fees (Lietuvos Respublikos konsulinio mokesčio įstatymas), as amended by Law No X-1300 of ; Consular fees tariffs of the Reublic of Lithuania (Lietuvos Respublikos konsulinio mokesčio tarifai), approved by the Government Resolution No 1135 of 16 November 1994, as amended by No 1347 of 27 October 2004; The Minister of Labour and Social Security order No A1-22 of 29 January 2007 on settlement of livelihood size which may be treated as sufficient resources for aliens requesting of residence permit in the Republic of Lithuania (Lietuvos Respublikos socialinės apsaugos ir Conformity Study Directive 2004/38/EC for Lithuania /60

14 darbo ministro 2007 m. sausio 29 d. įsakymas Nr. A1-22,,Dėl pragyvenimo Lietuvos Respublikoje lėšų dydžio, kuris gali būti laikomas pakankamu pragyventi Lietuvos Respublikoje užsieniečiui, prašančiam išduoti leidimą gyventi, nustatymo); Republic of Lithuania Law on Social Services (Lietuvos Respublikos socialinių paslaugų įstatymas) No X-493 of 19 January 2006; Rules on issuance of temporary residence permit in the Republic of Lithuania for aliens and assessment of fictitious marriage (Leidimų laikinai gyventi Lietuvos Respublikoje užsieniečiams išdavimo bei fiktyvios santuokos sudarymo įvertinimo taisyklės), approved by the Minister of the Internal Affairs of the Republic of Lithuania order No 1V-329 of 12 October 2005 as amended by No 1V-242 of 28 June Rules on making and implementation of decisions on expulsion, expulsion, re-entering and transit of foreigners through the border of the republic of Lithuania (Sprendimų dėl užsieniečio įpareigojimo išvykti, išsiuntimo, grąžinimo ir vykimo tranzitu per Lietuvos Respublikos teritoriją priėmimo ir jų vykdymo taisyklės), adopted by the Minister of Internal Affairs order No 1v-429 of 24 December 2004; The Labour Code (Lietuvos Respublikos darbo kodeksas), No IX-926 of 4 July 2002, as amended by No X-458 of 20 December 2005; The Civil Code of the Republic of Lithuania (Lietuvos Respublikos civilinis kodeksas), No VIII-1864 of 18 July Assessment of the transposition Lithuanian authorities made a great effort to transpose the Directive. However, some of the transposing legal acts are still under preparation. Conformity problems concern issues of incomplete transposition; some non-transpositions cases appear due to inconsistencies of the transposing provisions, particularly when transposing administrative formalities related to the issuance of the documents certifying the residence for Union citizens and their family members. The tables below provide an overview of the conformity problems. a) Incomplete transposition or non-transposition Article 3(2)(a) Article 10(2)(e) (f) Article 3(2)(b) Article 3(2)(b), 2 nd subparagraph Article 5(4) Article 7(3) (b), (c), (d) Article 8(2) Incomplete transposition: the Lithuanian legislation has not provided specific measures related to the facilitation for Union citizens family members who 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. This Article is incompletely transposed, because Lithuania has not provided specific measures for the facilitation for Union citizens family members who are the partner with whom the Union citizen has a durable relationship, duly attested. Incomplete transposition, although the application of general administrative rules gives the authorities the obligation to examine whether the conditions laid down in any legislation are fulfilled, and to justify any denial of right. However, Lithuania does not oblige the administration to undertake an extensive examination of the personal circumstances. Incomplete transposition. Lithuania does not provide a specific regime for Union citizens and their family members who are not nationals of a MS to obtain the necessary travel documents or to corroborate or prove the right of free movement or residence when the individual does not have the necessary travel documents. Incomplete transposition of par. b), c) and d) - on the retention of the status of worker or selfemployed person). The Lithuanian legislation foresees the unemployment insurance benefit for persons who are dismissed from work without any fault on the part of the concerned employee. It also foresees vocational training for persons, who have been notified about dismissal from work without any fault on the part of the concerned employee. However, the Lithuanian legislation does not provide that such termination of the employment contract or the vocational training form grounds for retention of the status of worker or self-employed person. Incomplete transposition since The procedure regulating the issue of the certificate for an EU Conformity Study Directive 2004/38/EC for Lithuania /60

15 Article 8(5) (e) (f) Art.13.2 (b) (d) Art. 14(2) second indent Article 14(4)(b) Article 20(1) Article 20(2) Article 27(1) Article 27(2) Article 27(4) Article 28(2) Article 28(3) (a) (b) Article 29 (1) and (2) Article 32(1) member state national confirming his right to reside in the Republic of Lithuania as referred to in Article 99, section 3 of the Law on Legal Status of Aliens, had not existed when analysing the conformity. Note: The Ministry of Internal Affairs order No 1V-290 of 25 July 2008 on approval of Procedures on issuance of certificate confirming residence rights for a Citizen of a Member State of the European Union and Procedures on issuance, extension and revocation of residence permits for European Union citizen s family members who are not nationals of a Member State of EU came into force on 3rd August 2008, therefore its provisions have not been analysed. Only comments to provisions which will be affected by this legal act are provided in section 3 of this study. The Lithuanian legislation does not provide any facilitation for entry and residence for any other family members not falling under the definition of family members of an EU Member State citizen. No documents are requested because there is no specific regime applicable. For this reason, the lack of transposition cannot be considered as a more favorable treatment. Incomplete transposition since the Lithuanian legislation does not include agreement between the spouses as a ground for not to losing the rights of residence. Lithuania does not provide that verifications can only be carried out in specific cases, where there is a reasonable doubt as to whether a Union citizen and their family members satisfy the conditions. This can be treated as a gap in transposition. Incomplete transposition occurs since the Lithuanian legislation does not provide an explicit prohibition of expulsion of jobseekers. The time-limit for issuance has not been transposed. Incomplete transposition, since the Lithuanian legislation does not require the submission of the application before an EC Residence permit expires. A family member, who is not a national of a Member State, has the right to apply for the renewal of his/her EC residence permit when his/her EC residence permit expires. Incomplete transposition, since the Lithuanian legislation does not include the Directive s provision that the grounds for restriction of the freedom of movement and residence of Union citizens and their family members shall not be invoked to serve economic ends. Gap in transposition occurs. Although the rights of entry and the rights of residence can be restricted only in accordance with the Law on Administrative proceedings, which provides general legal principles of proportionality and requires the judges in administrative cases to actively participate in the examination of evidence, establishing all the material circumstances for the case and to make a comprehensive and objective review of the said circumstances, non transposition of Article 27(2) of the Directive may be interpreted as not granting the same guarantees provided by the Directive regarding the personal conduct and the non consideration of previous convictions. Not transposed. Incomplete transposition. The Directive provides that an expulsion decision against Union citizens and their family members, who have the rights of permanent residence, may not be taken, except on serious grounds of public policy or public security. However, Art. 106, section 1 in conjunction with Art. 106, section 4 of LLSoA does not include serious grounds of public policy or public security. Therefore, the Lithuanian legislation allows the expulsions on less serious grounds. Gap in transposition occurs. The Lithuanian legislation does not provide that an expulsion decision against Union citizens, who have resided in the host Member state for the previous 10 years, may not be taken, except on imperative grounds of public security, as defined by the Member State. Lithuania also does not provide that an expulsion decision against Union citizens who is 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), may not be taken, except on imperative grounds of public security, as defined by the Member State. Therefore, the Lithuanian legislation allows the expulsions on less serious grounds. Incomplete transposition. The Directive provides specific categories of diseases, which can only justify measures restricting freedom of movement. The Lithuanian legislation only includes general provisions that freedom of movement may be restricted in the Republic of Lithuania only in the interests of state security or public order, or public health or morals, for crime prevention purposes or seeking to protect the rights and freedoms of other persons. Therefore, transposition of Article 29 is incomplete. Specific provisions referred to in Article 32(1) of the Directive are not transposed. The Conformity Study Directive 2004/38/EC for Lithuania /60

16 Lithuanian legislation includes the material circumstances of the case as a ground for lifting of the exclusion decision in accordance with renewal administrative proceedings. Providing the rights for the persons concerned to submit a petition for the renewal of the proceedings, the Lithuanian legislation provides for grounds for applying to the court for renewal of the proceedings. b) Incorrect or imprecise/ambiguous transposition Article 6 (1) Article 7(2) Article 8(1) Article 9(1) Article 10(1) Article 13(2)(c) Article 16(1) Article 16(2) Article 16(3) Article 25(1) Lithuanian legislation does not provide that jobseekers can stay in Lithuania for 6 months without fulfilling any conditions The Lithuanian legislation does not state clearly the residence rights of Union citizen s family members who are not citizens of the member states. The Law provides only the obligation to obtain an EU residence permit. This should be treated as incorrect transposition. The transposition of Article 8(1) of the Directive is incorrect, since the Directive defines the period of residence from the date of arrival (see: article 8(2) of the Directive) but the Lithuanian legislation defines an aggregated residence in half a year. Incorrect transposition: the Directive requires the issuance of a Residence card of a family member of a Union citizen, while the Lithuanian legislation (Art. 99, section 2 of the Law on Legal Status of Aliens) requires the issuance of an EU residence permit (full title: Residence permit in the Republic of Lithuania of a family member of a citizen of an EU Member State). Transposition is incorrect, since particularly difficult circumstances is transposed as situations caused by fault of the spouse who is the Union citizen Incorrect transposition. the Directive provides that Union citizens who have legally resided for a continuous period of five years in the host Member State shall have the right of permanent residence. In this regard the Lithuanian legislation establishes a stricter term than the Directive. Article 104, section 1 and section 2 of the Law on Legal Status of Aliens require living for the last 5 years. Incorrect transposition. The Lithuanian legislation (Article 2, section 4 (1) of LLSoA) defines Residence permit in the Republic of Lithuania of a family member of a citizen of an EU Member State as a document granting a member of the family of the citizen of an EU Member State, who is not a citizen of an EU Member State, the right to live in the Republic of Lithuania. In general, under the Lithuanian legislation the documents should be requested before a person can exercise a right. c) Minor instances of non-conformity Article 2(2) (b) Article 40 Minor instances of non-conformity due to missing of words on the basis of the legislation of a Member State when transposing the definition of family member referred to in Article 2(2)(b) of the Directive. Delays with the transposition occurred. LLSoA was amended on 1st of February 2008 in order to comply with the requirements of the Directive. Conformity Study Directive 2004/38/EC for Lithuania /60

17 ABBREVIATIONS USED ECJ Art. LDRP: LLSoA MoI MoSSL MS Schengen Borders Code: European Court of Justice Article The Republic of Lithuania Law on Declaration of Place of Residence Law on Legal Status of Aliens Ministry of Internal Affairs Ministry of Social Security and Labour Member State(s) Regulation (EC) No 562/2006 of the European Parliament and the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders Conformity Study Directive 2004/38/EC for Ireland /60

18 1 INTRODUCTION This conformity study analyses in detail the provisions of Directive 2004/38/EC on the free movement of EU citizens in its consolidated version, and it compares it with the legislation in place in Lithuania. Directive 2004/38/EC repealed the earlier directives on free movement of persons (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) as from 30 April EU citizenship gives every Union citizen the right to move and to reside freely within the territory of the Member States. The facilitation and promotion of this right, which is at the same time one of the fundamental freedoms of the internal market, is the objective of Directive 2004/38/EC. A second objective of Directive 2004/38/EC was to codify and review the various pieces of legislation and caselaw dealing with this issue. Free movement as a fundamental freedom of the internal market Free movement is one of the fundamental freedoms of the internal market and can therefore only be restricted in a limited number of pre-determined circumstances. Thus, national legislation cannot adopt more restrictive legislation than provided for in the Directive. Directive 2004/38/EC introduces, on the one hand, a uniform approach regarding the formalities that Member States can impose upon EU citizens residing in their territory. These formalities are expressly established in the Directive and restricted in function of the duration of the stay in the Member States. For a stay of less than three months, the only formality a Member State can impose is the presentation of a valid passport or national identity card. For residence of more than three months, a Member State can only require the EU citizen to register in the population register of the place of residence. This registration needs to be validated immediately if a certain number of conditions are to be complied with. The Member State can only require the EU citizen to present proof that he/she is a worker, self-employed person, a student or has sufficient resources not to become a burden upon the social security system of the Member State. Member States cannot lay down a fixed amount of what they consider to be sufficient resources, but must always take into account the personal situation of the person concerned. Family members of the EU citizen will have to present an identity document and proof of the family link to an EU citizen. After five years of continuous residence in a Member State, an EU citizen obtains a right to permanent residence. The host Member State shall issue a document certifying permanent residence. A permanent resident has the right to be treated equally to a national of the Member State. On the other hand, the Directive also determines and clarifies the only acceptable reasons for restriction of the free movement of citizens by Member State authorities, namely for reasons of public order, public security and public health. (For the interpretation and conditions of such exceptions, it is important to rely upon the case-law of the Court of Justice.) These measures guarantee a strong protection against expulsion for EU citizens who have been longterm residents in another Member State. Such measures need to be proportionate and shall always look at the personal conduct of the individual concerned which must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. In addition, the Directive establishes some procedural safeguards in case an expulsion decision is considered. Conformity Study Directive 2004/38/EC for Ireland /60

19 1.1 OVERVIEW OF THE LEGAL FRAMEWORK IN LITHUANIA The Lithuanian legal system is based on a codification that follows the legal traditions of the European continental model and more precisely, the German model. During the Soviet occupation this legal model was altered to conform to the Soviet legal system. Since restoration of statehood of the Republic of Lithuania in 11 March 1990, the legal system has been reformed to meet the demands of social and economic changes. The priority of the reform was the harmonisation of the Lithuanian legal provisions with the European Union legislation and improving the functioning of the system of administration and the court system. The Constitution of the Republic of Lithuania was adopted by referendum on 25 October It created the legal bases for the overall legal system. The Lithuanian legal system consists of codes (the Civil Code; the Civil Procedure Code; the Criminal Code; the Criminal Procedure Code; the Code of Administrative Offences, etc) and other laws (e.g. the Law on Legal Status of Aliens) as independent instruments for regulating specific branches of public relations. International and the Community laws are superior to national law. Jurisprudence and legal precedents are not a source of law, however. The Supreme Court of the Republic of Lithuania and the Supreme Administrative Court of the Republic of Lithuania are competent to interpret laws and other legal acts. Their interpretations found in decisions or rulings must be taken into account by courts and other institutions as well as by other entities when applying the law or other legal acts. The courts are fundamental tools for the implementation of the constitutional principle to ensure access to justice for any person who considers that his rights are infringed or legally protected interests are damaged. 1.2 FRAMEWORK FOR TRANSPOSITION & IMPLEMENTATION OF DIRECTIVE 2004/38/EC IN LITHUANIA Distribution of competences according to the national Constitution The Constitution of the Republic of Lithuania created the legal bases for distribution of competences between the Parliament (Seimas), the President of the Republic and the Government, and the Judiciary. Under the Constitution, the Government resolutions and other regulations may regulate relations only in the cases and to the extent determined by the codes and the other laws adopted by the Parliament. Under the Law on Public Administration, any administrative act, e.g., a statute, rules, regulations or other legal act, including an individual administrative act, for the purpose of implementation of the laws made by an administrative body must be issued within the scope of its legal authority (legality principle). The Law provides that administrative bodies and officials must act in good faith and in proportion to the purpose for which the power has been conferred (proportionality principle), and administrative bodies must take into account relevant considerations, acting reasonably and objectively. The Law on Legal Status of Aliens provides general principles: foreigners enjoy the rights and freedoms provided by the Constitution of the Republic of Lithuania, international agreements, laws of the Republic of Lithuania and legal acts of the European Union; foreigners are equal before the law without distinction as to sex, race, nationality, language, religion, origin, social status, religion, convictions or views; foreigners must observe the Constitution of the Republic of Lithuania, laws and other legal acts of the Republic of Lithuania. These general principles are developed by the secondary legislation. Conformity Study Directive 2004/38/EC for Ireland /60

20 Distribution of competences concerning transposition and implementation of Directive 2004/38/EC is mainly the result of the provisions of the Law on Legal Status of Aliens. Pursuant to the Law on Legal Status of Aliens the Minister of Internal Affairs is responsible for development of the majority of secondary legal acts and administrative provisions for implementing the Directive. The main responsibilities of the Ministry of Internal Affairs are in the following areas: Adoption of procedures regulating issuance of the certificate for EU Member State nationals confirming their rights to reside in Lithuania and issuance, extension and withdrawal of the EU residence permit to the family members of the EU member state nationals; Establishment of exceptional cases when the right to permanently reside in Lithuania is granted to an EU member state national and his family members who have been legally resident in the Republic of Lithuania for less than 5 years; Establishment of procedures on making decisions to depart and expulsion; Establishment of procedures on issuance of alien s passport for foreign nationals who are entitled to temporary or permanent residence in the Republic of Lithuania but do not possess a valid passport of a foreign national or an equivalent travel document; or if it has been lost or destroyed and the foreign national cannot receive it from the competent institutions of his country of origin for objective reasons. Some of the secondary legal acts have been developed by two ministries: the Ministry of Internal Affairs and the Ministry of Foreign Affairs. Those are: procedures regulating the recognition of valid travel documents of aliens, entitling the alien to come to Lithuania; establishment of conditions for the issue of a visa at the border checkpoint; and listing of the institutions and agencies where aliens are issued visas General description of organisation of national authorities implementing Directive 2004/38/EC Lithuania The Ministry of Internal Affairs and its institutions are responsible for the implementation of the state policy in the fields of legal status of foreigners. The Migration Department under the Ministry of Internal Affairs is responsible for the implementation of the provisions of the Law on Legal Status Aliens. The Migration Department issues identity documents to citizens of the Republic of Lithuania and to citizens of any other foreign states and stateless persons. It also issues visas and the registration certificates and EC residence permits. The State Border Protection Service under the Ministry of the Internal Affairs at the behest of the General Commissar of the Police of Lithuania may apply to Vilnius district administrative court with a request to adopt a decision to withdraw the alien s right to reside in Lithuania and/or expel the alien from Lithuania on the grounds of threat he poses to public policy, indicated in the Law on Legal Status of Aliens. Conformity Study Directive 2004/38/EC for Ireland /60