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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

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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 Name of legal analyst: Borut Šantej Date Table completed: October 2008 Contact details: Work address: IPO Cesta Dolomitskega odreda 10 SI-1000 Ljubljana, Slovenia. E-mail: [email protected] Telephone. +386 1 2573 148 COUNTRY: SLOVENIA Short introduction Most of the provisions of the Directive were transposed by the ZTuj. This is the only statute that was explicitly enacted with the aim of transposing Directive 2004/38/EC. ZTuj is a general act regulating aliens and their rights and obligations. Thus, EU nationals and their rights are only a small part of the law - the most important section of ZTuj for Union citizens is Chapter XII, which contains articles 93.a to 93.ac). On the basis of ZTuj, two implementing rules were issued by the Minister of Internal Affairs regulating some aspects of the Directive: Prav2 (Rules on the content, form, issuing and termination of certificates and permits on the residence of the EU citizens, their family members, and family members of Slovenian citizens) regulates the content, form, issuing and termination of certificates and permits on the residence, and Navod ( Instructions concerning the refusal of entry to the Republic of Slovenia of EU citizens) regulates the refusal of entry of EU citizens to Slovenia. Some substantive aspects of the transposition of the Directive 2004/38 are covered by other legislation. ZZDT (The Law on the Employment and Work of Foreign Citizens) enables equal rights of EU nationals at workplace. The same is true to Prav1( Rules on the method of determining the right to free access to the labour market with regard to nationals of the EU and the EEA and their family members) which regulates free access to the labour market with regard to nationals of the EU and the EEA and their family members. The majority of the procedural provisions of the Directive were not specifically transposed by the Ztuj. The Ztuj refers to the existing framework laws that regulate the administrative and judicial procedures. ZUP ( The Administrative Procedure Act) and ZUS-1(The Administrative Disputes Act) regulate the administrative procedure and judicial review of administrative decisions in general; all decisions, issued by state and local administrations have to adhere to these two laws. The ZK (Criminal Code) prescribes the crimes and their sanctions. ZP-1 (The Minor Offences Act) is a statute that regulates the misdemeanours. Legislation transposing Directive 2004/38/EC Note: all of the cited legislation is available online on www.pisrs.si. Since most of the relevant legislation has been many times ammended, the hyperlink to the initial act would not result in the up-to-date legal act. The best way is to copy the Slovenian title of the act into the search engine at www.pisrs.si. The result of the search will show the complete citation of the act (first bullet), followed by the bulleted hyperlinks to complete texts of each amendment, most recent first.. - The Aliens Act, Zakon o tujcih, adopted: Ur. I. RS, nr. 61/99 (amended: Ur.l.RS, nr. 9/01, 87/02, 96/02, 93/05 in 79/06, 111/07 and 44/08), (ZTuj) - The Law on the Passports of the Citizens of the Republic of Slovenia, Zakon o potnih listinah državljanov Republike Slovenije, adopted: Ur. l. RS, nr. 65/00, (amended: Ur.l.RS, nr. 98/05) (ZPLD-1) - The Law on the Personal Identity Card, Zakon o osebni izkaznici, adopted: Ur. l. RS, nr. 75/97 (amended: Ur.l. RS, nr. 100/2005) (ZOIzk) 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 - The Law on the Employment and Work of Foreign Citizens, Zakon o zaposlovanju in delu tujcev, adopted: Ur. l. RS, nr. 66/00 (amended: 101/05 in 52/07), (ZZDT) - The Criminal Code of the Republic of Slovenia, Kazenski zakonik Republike Slovenije, adopted: Ur. l. RS, nr. 63/94 (amended: Ur.l. RS, nr. 23/1999, 60/1999 Odl.US: U-I-226/95, 40/2004, 37/2005 Odl.US: U-I-335/02-20, 17/2006 Odl.US: U-I-192/04-16) (KZ) - The Administrative Procedure Act, Zakon o splošnem upravnem postopku, adopted: Ur. I. RS, nr. 80/99 (amended: Ur.l. RS, nr. 70/2000, 52/2002, 73/2004, 119/2005, 105/2006, 126/2007), (ZUP) - The Minor Offences Act, Zakon o prekrških, adopted: Ur.l. RS, nr. 7/03 (amended: Ur.l. RS, nr. 45/2004-ZdZPKG, 86/2004, 34/2005 Odl.US: U-I-19/05-11, 40/2006 (51/2006 popr.), 115/2006, 139/2006 Odl.US: U-I-69/06-16, 29/2007 Odl.US: U-I-56/06-31, 58/2007 Odl.US: U-I-34/05-9, 17/2008), (ZP-1) - Rules on the method of determining the right to free access to the labour market with regard to nationals of the EU and the EEA and their family members, Pravilnik o načinu ugotavljanja pravice do prostega dostopa na trg dela državljanov EU in EGP ter njihovih družinskih članov (Ur.l. RS, nr. 70/06) (Prav1) - Instructions concerning the refusal of entry to the Republic of Slovenia of EU citizens, Navodilo o zavrnitvi vstopa v Republiko Slovenijo državljanu Evropske Unije, adopted: Ur.l. RS, nr. 74/06, (Navod) - The Administrative Disputes Act, Zakon o upravnem sporu Adopted Ur.l. RS, nr. 105/2006) (ZUS-1) - Rules on the content, form, issuing and termination of certificates and permits on the residence of the EU citizens, their family members, and family members of Slovenian citizens, Pravilnik o vsebini, obliki, načinu izdaje ter prenehanja potrdil o prijavi prebivanja in dovoljenj za prebivanje za državljane držav članic Evropske unije in njihove družinske člane ter družinske člane slovenskih državljanov Ur.l. RS, nr. 70/2007 (Prav2) Analysed legislation in conformity? (click as appropriate) YES NO or/and Stricter Incomplete or/and Incorrect G I Milieu Ltd SLOVENIA 2/68 Europa Institute, Edinburgh University 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 Art Citation of the Article of the Corresponding Complete text of national Translation into English of Fully in Comments/Problems Directive national provision provision (in language of national accord? (legal ref. & art.) Member State) provision (y/n) Chapter I. GENERAL PROVISIONS Art. 2.1 Definitions ZTuj Art 2(1) point - Državljan EU je tujec z - An alien shall be any person Y Effective transposition. 1and (2) državljanstvom druge države who does not have citizenship of For the purposes of this članice Evropske unije. the Republic of Slovenia. ZTuj Art. 2 defines “alien” as anyone who Directive: does not have the citizenship of the Republic 1) "Union citizen" means any ZTuj Art 93.a(2) (2) Državljan države članice 2) For the purposes of this Act of Slovenia. Therefore any “alien” with an EU person having the nationality Evropske unije po tem zakonu the national of an EU Member member state citizenship is an “EU citizen”. of a Member State; (v nadaljnjem besedilu: State (hereinafter: EU citizen) državljan EU) je tujec z means an alien with the Note: državljanstvom druge države nationality of another EU For no apparent reason, the definition is članice Evropske unije. Member State. repeated twice in ZTuj, each time in a slightly different wording. This can however not cause any confusion and is not damaging for the clarity of the statute. Slovenian nationals are not regulated by ZTuj since they are not aliens in Slovenia and have all rights that come with the citizenship. See Article 3(1) for more details. Art. 2.2 2) "Family member" means: ZTuj Art. 93.k(1) (1) Družinski člani državljana (1) For the purposes of this Act Y Effective transposition. (a) (a) the spouse; EU in družinski člani family members of EU citizens slovenskega državljana (v and family members of Slovene Slovenia does not allow same sex marriages; nadaljnjem besedilu: družinski nationals (hereinafter: family nothing in ZTuj, however, speaks against član) po tem zakonu so: members) are: recognising same sex marriages concluded in – zakonec; - the spouse; other MS. Art. 2.2 (b) the partner with whom the n/a Not transposed, since the Slovenian legislation (b) Union citizen has contracted a does not recognise registered partnerships. registered partnership, on the basis of the legislation of a However, see below at transposition of Article Member State, if the 3(2)(b) and the status under Slovenian law of legislation of the host Member “unregistered partnerships” State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; Art. 2.2 (c) the direct descendants who ZTuj Art 93.k(1) – neporočeni otroci do - unmarried children under the N, Incomplete transposition (c) are under the age of 21 or are points 2 to 5 dopolnjenega 21 leta starosti; age of 21; Incomplete dependants and those of the – neporočeni otroci zakonca - unmarried children of the ZTuj is incomplete in the following: Milieu Ltd SLOVENIA 3/68 Europa Institute, Edinburgh University 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 Art Citation of the Article of the Corresponding Complete text of national Translation into English of Fully in Comments/Problems Directive national provision provision (in language of national accord? (legal ref. & art.) Member State) provision (y/n) spouse or partner as defined in do dopolnjenega 21 leta spouse under the age of 21; - it only mentions children and not other direct point (b); starosti; - unmarried children above the descendants; – neporočeni otroci, starejši age of 21 and parents whom the - it only mentions unmarried (and not married) od 21 let, in starši, katere je EU citizen or the Slovene children.
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