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Parliamentary questions
10 September 2008
Answer given by Mr Barrot on behalf of the Commission

Article 18 of the EC Treaty stipulates that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect. The respective limitations and conditions are to be found in 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).

Under Articles 4(1) and 5(1) of the directive, EU citizens can leave the Member State of their nationality to travel to another Member State and enter that State with a valid identity card or passport. As confirmed by the case-law(2) of the Court, even a young child can take advantage of the rights of free movement and residence guaranteed by Community law. The capacity of an EU citizen to be holder of the rights guaranteed by Community law cannot be made conditional upon the attainment by the person concerned of the age prescribed for the acquisition of legal capacity to exercise those rights personally.

The above rules on crossing the borders are without prejudice to the more favourable treatment under Schengen rules which have removed border controls at common internal borders. Removal of border controls means that passports or identity cards no longer have to be shown when crossing borders between Schengen Member States but EU citizens should always carry their passport or identity card as their right of entry and residence is conditional on presenting these documents.

The Schengen Borders Code(3) obliges border guards to pay particular attention to minors crossing the external border, whether travelling accompanied or unaccompanied. Minors should be subject to an additional check on travel documents and supporting documents to ensure that they travel with authorisation of all their parents or persons legally exercising parental care over them.

National legislation imposing a parental authorisation(4) as a condition for the exit of a minor from a Member State may be justified by a legitimate interest which is that of the protection of minors. It must be noted in this respect that Article 35 of the United Nations Convention on the Rights of the Child obliges States Parties to take all appropriate measures to prevent the abduction, the sale of or traffic in children for any purpose or in any time.

The Commission considers that the Maltese rules on travels of unaccompanied minors strike a proper balance between the fundamental right of EU citizens to move and reside freely, on one hand, and the right of children to be protected against abduction, sale or trafficking, on the other hand.

(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)Judgment of the Court of 19 October 2004 in Case C‑200/02 Zhu and Chen (Rec. 2004, p.I‑9925).
(3)Regulation (EC) No 562/2006 of Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 105 of 13 April 2006.
(4)Such a document is also often required by airlines.

OJ C 999, 01/01/2009
Last updated: 19 September 2008Legal notice