Free movement of families of Union citizens:
Commission pursues infringement proceedings against Spain

IP/02/940

Brussels, 27 June 2002

Free movement of families of Union citizens: Commission pursues infringement proceedings against Spain

The European Commission has decided to press ahead with infringement proceedings against Spain for decisions refusing members of the family of Union citizens visas and entry to its territory on the grounds that their names had been entered in the Schengen Information System (SIS) for the purposes of non-admission. The Commission believes that Spanish practice infringes the basic guarantees regarding substance and form which Member States must observe when taking decisions restricting the free movement of beneficiaries of Community law on the grounds of public policy.

The infringement case began when the Commission received complaints from two nationals of non-EU countries married to Union citizens and residing with their spouses in the United Kingdom and Ireland respectively. Both complainants had been refused visas and entry to Spain on the grounds that another Member State had alerted the SIS for the purposes of refusing them entry.

The Commission has decided to send a reasoned opinion to Spain setting out the following objections:

Members of the families of Union citizens enjoy the "traditional" right of freedom of movement and are covered by the Directives on entry and residence. A decision restricting the free movement of such persons must comply with Directive 64/221 as interpreted by the Court of Justice. This means that the interested party must pose a current, genuine and sufficiently serious threat to public policy. In theory, an alert for the purposes of refusing entry cannot therefore be issued for persons entitled to freedom of movement. There are a whole series of reasons which justify an SIS alert, but fail to meet the requirements of Directive 64/221.

The Commission argues that the Spanish authorities have undermined the complainants' fundamental right to free movement by automatically applying in their case an SIS alert issued by another Member State, without knowing the reasons behind it or requesting any information from the Member State concerned.

The Commission also considers that the Spanish authorities failed to observe the formal requirements arising from Directive 64/221 by merely informing the complainants of the existence of an SIS alert. This does not satisfy the requirement laid down in Directive 64/221 that the person concerned must be informed of the grounds of public policy underlying the decision taken in his case, unless this is contrary to the interests of the security of the State involved.

The sending of a reasoned opinion is the second stage of the infringement procedure provided for in Article 226 of the Treaty. Should the Member State concerned fail to provide a satisfactory reply within two months of the date on which it receives the opinion, the Commission may bring the case before the European Court of Justice.

European Commission press release