Head of Unit
Secretariat‐General
Unit SG.A.3 - Transparency & Ethics
European Commission

Dear Ms X,

The European Ombudsman has received a query from the Office of the Chancellor of Justice of Estonia related to the application of Directive 2004/38/EC on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

The query, which is attached to this letter, has been submitted in the context of a case currently pending before the Chancellor of Justice concerning an EU citizen and his spouse, a third-country national, who have been resident in Estonia since February 2020. In particular, the case concerns the requirements regarding the renewal of the temporary residence card of the spouse, and the related fees, and the rights of the spouse to apply for a permanent residence card.

Third-country nationals are required to have ‘residence permit cards’ in Estonia, whereas Estonian citizens and other EU citizens who reside for more than three months are required to have identity cards. While the spouse’s residence card was issued only in June 2020, it expired in April 2025 (the date the identity card of her EU citizen spouse expired). Consequently, she is required to apply for a new card. Since 1 January 2025, Estonia has introduced new statutory fees for such cards, with a fee of EUR 115 for residence cards and EUR 45 for identity cards. The Chancellor of Justice would like to know whether these higher fees comply with Article 25(2) of Directive 2004/38/EC.

According to the applicable law, third-country nationals who have been continuously resident in Estonia for five years may apply for a permanent residence. However, even though the spouse has been resident in Estonia since February 2020, according to the rules in force, she will be able to apply for a permanent residence only in June 2025, five years after her temporary residence card was issued. The Chancellor of Justice would like to know whether these provisions comply with Directive 2004/38/EC and, notably the periods of residence that should be taken into account when a third-country national family member of an EU citizen applies for permanent residence status on the basis of Articles 6, 7, 11 and 16 of the Directive.

To this end, the Ombudsman would like to ask the Commission to reply to the following questions, submitted by the Estonian Chancellor of Justice:

Statutory fees for a residence card

1. Does Article 25(2) of Directive 2004/38/EC require that the charges for issuing residence cards certifying the right of residence for third-country national family members of EU citizens not exceed the statutory fees imposed on Estonian nationals for issuing similar documents (for example, identity cards)? Or is it appropriate that, as with the third-country national family members of Estonian citizens, third-country national family members of EU citizens are also charged a higher fee for residence cards, as opposed to the fees for identity cards for Estonian nationals and other EU citizen residents?

2. Can the statutory fees be higher for residence cards for third-country national family members of EU citizens, when compared with the fees for identity cards of nationals, due to the need for authorities to verify whether the family member meets the conditions specified in the Directive for entitlement to the right of temporary or permanent residence (and for the purpose of issuing a residence card)?

3. By its nature, does Article 25(2) of the Directive have direct effect?

Periods to be taken into account for the purpose of permanent residence status

4. Should the five-year continuous legal residence period be calculated from the moment when the competent authorities took a decision that a person has the right of temporary residence as a family member of an EU citizen, that is when they issued a temporary residence card, or should preceding periods, when that person was legally resident, also be taken into account? This will be further elaborated in the following questions.

5. Does the notion "legally resided for a continuous period of five years" also include the time during which the family member lived in the Member State under Article 7(2) (’Right of residence for more than three months’), but before the national authorities made a decision on their entitlement to temporary residence and issued a residence card?

6. Should the period of residence under Article 6 (’Right of residence for up to three months’) be considered when calculating the five-year period for eligibility for permanent residence, provided that this period forms part of the same continuous residence and the individual can prove their stay in the Member State?

7. Is it in line with the Directive for a Member State to issue a residence card to a family member of an EU citizen for a period shorter than five years, solely to ensure that the expiry date of the card is the same as that of the EU citizen, who received their identity card earlier? Can this be justified even if there is no indication that the EU citizen intends to leave the Member State once their identity card expires?

8. More generally, has the Commission reviewed whether Estonian law and administrative practice complies with Directive 2004/38? If so, has the Commission issued or does it plan to issue any comments to the Estonian authorities regarding these matters?

The Chancellor of Justice also raises the question of a potential issue with the Estonian translation of the Directive, namely its Articles 9-11, 15, 20 and 25, which concern the issuing and validity of "residence cards". However, in the Estonian language version of the Directive, these provisions refer to the issuing and validity of "residence permits".

I would appreciate it if the Commission could respond to this query and the questions above as soon as possible and by 7 July 2025 at the latest, so that the Ombudsman can forward the information to the Chancellor of Justice of Estonia.

A copy of this letter, and of the Commission’s reply, will be made available on the Ombudsman’s website.

Yours sincerely,

Rosita Hickey
Director of Inquiries

Strasbourg, 05/06/2025