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Parliamentary questions
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23 September 2008
Answer given by Mr Barrot on behalf of the Commission
Question reference: E-3947/2008

According to the information available to the Commission, the Maltese identity card issued to non-Maltese nationals is a means of identifying a person in terms of Chapter 258 of the Laws of Malta (Identity Card Act). The identity card is issued obligatorily to all persons over the age of fourteen and who have been residing in Malta for more than six months. Under Article 6A of the same Act, special information about the validity of the Maltese identity card for travel can be added in certain cases, in particular the restriction for travel based on a decision delivered by the Maltese authorities.

Pursuant to 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(1), EU citizens have the right to leave the territory of a Member State to travel to another Member State with a valid identity card or passport, both issued by their Member State of nationality. The same applies to third-country family members who must have a valid passport and a valid entry visa, if required pursuant to Council Regulation (EC) No 539/2001(2).

According to Directive 2004/38/EC, a host Member State may require EU citizens to register with the relevant authorities for periods of residence longer than three months and issue them with a registration certificate. Their third-country family members must apply for a residence card. However, the directive does not introduce an obligation to be in possession of an identity card issued by the host Member State. Thus, EU citizens or their family members could have the possibility but not the obligation to request a Maltese identity card when residing in Malta for more than three months. The Commission will assess the Identity Card Act within the framework of the ongoing overall assessment of compliance of Maltese law with Directive 2004/38/EC.

However, as Article 5(4) of the directive provides, where an EU citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents, or, if required, the necessary visa, when presenting himself at the external borders of the Union, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement (i.e. EU citizens must establish their identity and nationality and their third-country family members their identity and family ties with the EU citizen). The same applies if an EU citizen or his/her family member is checked by the police authorities within the territory of the Member States of the Union. For this particular purpose, a Maltese identity card could be used even if its issuance by the Maltese authorities may be in contradiction with Community law.

The above is without prejudice to penalties a Member State may impose on a person found not to be holding or carrying papers and documents if national law provides for such an obligation.

Finally, according to the Schengen acquis, third-country nationals travelling within the Schengen area need to be in possession of a valid travel document and a valid visa, if required pursuant to Council Regulation (EC) No 539/2001, except when they hold a valid residence permit. Therefore, third-country nationals, holders of the Maltese identity card, cannot travel on the basis of this document within the Schengen area, as it is not a valid travel document.

(1)Directive 2004/38/EC of Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing 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, OJ L 158, 30.4.2004.
(2)Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ L 81, 21.3.2001.

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