Please help critique my complaint to the European Commission

[MSH]

I would like the regular posters here with experience to help review and critique my complaint to the commission against the state of Denmark.

Any feedback is greatly appreciated as well as ideas to improve upon the text.

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Formal complaint to the European Commission against the State of Denmark regarding it's implementation of Directive 2004/38/EC.

To the European Commission:

In Directive 2004/38/EC, article 10 states:

"Article 10

Issue of residence cards

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

2. For the residence card to be issued, Member States shall require presentation of the following
documents:

(a) a valid passport;

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

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

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

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

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

(http://eur-lex.europa.eu/LexUriServ/Lex ... 123:EN:PDF)

In the Commissions own guide to citizens rights the website states:

"Residence card

Your non-EU spouse, (grand)children or (grand)parents must apply for a residence document with the authorities in the new country (often the town hall or local police station) within 3 months of arriving. To do so they will need:

a valid passport

your registration certificate as an EU national or any other proof of your residence in that country

proof of your family relationship, such as a marriage or birth certificate

for (grand)children, proof they are under 21 or dependent on you

for (grand)parents, proof they are dependent on you.

No other documents may be requested."

(http://ec.europa.eu/youreurope/citizens ... nts_en.htm)

HOWEVER:

The Danish state have deliberately ignored the specific provisions laid out in article 10 of Directive 2004/38/EC and ADDED documentary proof required for the issuance of a residence card.

From the website of the Danish Ministery of Integration:

"2. Genuine and effective residence

The Danish national must have established genuine and effective residence in another EU/EEA Member State or Switzerland.

One condition that must be satisfied before a family member of a Danish national who has exercised his/her right of free movement in another EU/EEA Member State is entitled to residence under the EU rules is that the Danish national has had genuine and effective residence in the EU/EEA Member State in which s/he has worked or resided for other purposes.

The condition that a Danish national must have had genuine and effective residence in another EU/EEA Member State implies that it must be a genuine and effective move to that State. The move must be real, and a short stay at, for example, a hotel room is not sufficient.

Generally, a Danish national having stayed for a short period in a sublet room or at a c/o address with relatives or acquaintances does not satisfy the condition of having established genuine and effective residence in another EU/EEA Member State.

By contrast, a Danish national having resided for a long period in a rented flat on the basis of an indeterminate tenancy agreement or in a dwelling bought by the relevant person immediately satisfies the condition of having established genuine and effective residence.

However, a concrete and individual assessment of all specific circumstances of the case will have to be made, including the above circumstances.

On the basis of the information in the application form and the enclosed documents, the Danish Immigration Service will assess whether the condition of genuine and effective residence is deemed to be satisfied.

If the Danish Immigration Service assesses on the basis of the information received that it is questionable whether the Danish national has had genuine and effective residence in another EU/EEA Member State, further evidence of such residence will be requested.

Examples of documents that a Danish national may submit as proof of his/her genuine and effective residence in another EU Member State are:

proof of address, including a transcript from the national register that the applicant's residence has been registered
a conveyance for property, a tenancy agreement or receipts for payment of rent
evidence that the Danish national moved from his/her former residence, including evidence that s/he has terminated his/her tenancy agreement, sold his/her property or sublet his/her home for a certain period
enrolment of children at school, kindergarten, etc.
proof of a national health insurance number or a special health insurance
This not an exhaustive list of documents that a Danish national may submit to prove his/her genuine and effective residence in another EU/EEA Member State. However, family reunification cannot be refused merely with reference to the fact that a Danish national has not been able to submit one or more of the above documents.

In all circumstances, the Danish Immigration Service will make a concrete assessment of the aggregate circumstances of the case.

In connection with the application, a Danish national applying for family reunification in Denmark under EU law must solemnly declare that s/he has had genuine and effective residence in another EU/EEA Member State. The declaration forms part of the application form."

(http://www.nyidanmark.dk/en-us/coming_t ... er_eu-law/)

From the above it is clear that the documentation required for a residence card to be issued to a non-EU family member wishing to reside with their EU-spouse in Denmark is much more extensive and detailed than the list defined in the Directive.

It is also evident that the Danish state automatically assumes that anyone applying for family reunification through the right conferred to them in Directive 2004/38/EC are trying to defraud the Danish state, since everyone is checked for eligibility, EVEN those presenting a residence card issued by another member state (who must be presumed to have checked the individual's right of residence already).

this practice is clearly discriminatory and overly restrictive and is effectively a means of preventing Union citizens of using their inherent right to free movement.

How can a citizen be expected to move away from or back to Denmark if the citizen will be subjected to erratic control measures in which no set list of OBJECTIVE requirements are given? How many Union citizens have already given up moving back to Denmark because they have no means of knowing if their non-EU spouse or dependents will be allowed to live with them?

The complaintant finds this practice in place by the Danish state to be in direct conflict with both the letter and the spirit of Directive 2004/38/EC and hereby request the European Commission to formally investigate the practice.

Yours sincerely,

MSH.

[86ti]

From the above it is clear that the documentation required for a residence card to be issued to a non-EU family member wishing to reside with their EU-spouse in Denmark is much more extensive and detailed than the list defined in the Directive.

But a returning citizen is only eligilbe if they can show that they had exercised their treaty rights in another member state. Some documentary evidence will therefore certainly be required.

[...] those presenting a residence card issued by another member state (who must be presumed to have checked the individual's right of residence already).

A residence card only documents the status quo at the time of application. Member states are free to apply less stringent rules and, well, some member states probably do not trust the authorities of (certain) other member states.

[MSH]

Thanks for the great feedback!

From the above it is clear that the documentation required for a residence card to be issued to a non-EU family member wishing to reside with their EU-spouse in Denmark is much more extensive and detailed than the list defined in the Directive.

But a returning citizen is only eligilbe if they can show that they had exercised their treaty rights in another member state. Some documentary evidence will therefore certainly be required.

True, hence the Directive's text which states:

"(c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining; ". That's it. This is all whcih is required to prove residence in the other member state according to the Directive.

[...] those presenting a residence card issued by another member state (who must be presumed to have checked the individual's right of residence already).

A residence card only documents the status quo at the time of application. Member states are free to apply less stringent rules and, well, some member states probably do not trust the authorities of (certain) other member states.

That may very well be, but I don't see how this lack of trust in other member states' procedures allows for a breach of the clearly stated documentary requirements of the Directive.

Imagine the scenario in which Danish passport police routinely and consistently check the passports of people arriving from another EU member state 'because they don't really trust the authorities of those member states'.

Not a very likely scenario, right?

(Sorry about the formatting.. I don't know how to put my answers directly below your quotes).

Regards,

MSH.

[MelC]

not sure if this is what you are looking for ~

I like that you stuck with the points, I think its the way to go when making complaints ~
tell y9ou a secret, i kept the page open whilst i was making my complaint, so that if i waffled or went off at a tangent I had yours to look at and get back on track!!!

so I liked your complaint for what my opinion is worth.