Freedom of movement within the European Union is one of the fundamental freedoms enshrined in EU law. Nevertheless, experience shows time and again that when an EU citizen moves to another Member State, this raises numerous issues relating to residence law – particularly when family members from third countries wish to move with them or join them later.
Whilst the legal framework within the European Union is largely harmonised, national procedures – and, in some cases, their practical application – differ considerably. Below, we compare the legal situation in Spain and Germany.
Common legal basis under European law
Both Spain and Germany implement the provisions of Directive 2004/38/EC (the EU Citizens’ Directive). This directive governs the right of EU citizens and their family members to enter, reside and settle within the European Union.
It follows that the substantive rights of those concerned are, in principle, comparable in both countries. However, differences arise in the national implementation and, in particular, in the administrative procedures.
The legal situation in Spain
In Spain, the residence of family members of an EU citizen is generally governed by Royal Decree 240/2007, which regulates the so-called ‘Régimen Comunitario’.
This must be distinguished from general Spanish immigration law. Ley Orgánica 4/2000 and the new Real Decreto 1155/2024 primarily govern the residence of third-country nationals outside the scope of the European right to free movement and, in principle, apply to family members of EU citizens only in a supplementary capacity.
Tarjeta de Residencia de Familiar de Ciudadano de la Unión
Family members in Spain may, upon application, be granted the ‘Tarjeta de Residencia de Familiar de Ciudadano de la Unión’, which allows them to reside in the country and grants them unrestricted access to the Spanish labour market.
An application for this residence card must be made if the family member intends to stay in Spain for longer than three months.
Possession of this card allows the holder to reside legally in Spain and to work, either as an employee or as a self-employed person, under the same conditions as a Spanish national. The permit is generally granted for a period of five years, provided that the family relationship on which the right of residence is based is maintained. After five years, there is the possibility of obtaining a permanent right of residence, in accordance with Article 10 of Royal Decree 240/2007.
The family members who are eligible for this card are those who have a direct family relationship with the EU citizen.
To apply for a residence card for a family member of an EU citizen, you must submit the application to the Foreigners’ Office in your place of residence in Spain.
The documents normally required include proof of the family relationship, the EU citizen’s certificate of residence, a joint census registration and documents proving that the EU citizen has sufficient financial resources or is working in Spain.
Please note:
Anyone moving to Spain as a family member of an EU citizen is generally not subject to general Spanish immigration law, but rather to the European right to free movement.
Good to know:
The 2025/2026 reform of Spanish immigration law has modernised numerous residence permits for third-country nationals. However, for family members of EU citizens, the specific provisions of European freedom of movement law continue to apply in most cases.
The legal situation in Germany
The German implementation is governed by the Freedom of Movement Act/EU (FreizügG/EU).
Family members of an EU citizen entitled to freedom of movement are issued with a residence card in accordance with Section 5 of the FreizügG/EU. This, too, generally confers a right of residence as well as direct access to the German labour market.
The Residence Act applies only insofar as the Freedom of Movement Act does not contain any specific provisions.
Here, too, however, it is a prerequisite that a family relationship exists in accordance with Section 3 of the FreizügG/EU and that the EU citizen has sufficient financial resources. After a period of five years, the right to permanent residence also applies in Germany, in accordance with Section 4a of the FreizügG/EU.
What are the differences?
Although both countries apply the same European directive, there are certainly differences in practice.
1. Recognition of unmarried partnerships
One of the biggest differences concerns unmarried partners.
Germany generally links the right of residence to marriage or – where applicable – a registered partnership. There are only limited options for unmarried cohabiting couples.
Spain, by contrast, takes a somewhat more flexible approach. In particular, long-term cohabiting couples (parejas estables) may also be taken into account under residence law, subject to certain conditions. As a result, Spanish law offers greater protection in individual cases than German administrative practice.
2. Eligible family members
In addition to spouses, children and dependent parents, Spanish law recognises other family configurations, in some cases more generously.
These include, for example, relatives who can prove that they are dependent on an EU citizen or who live with that person in a domestic partnership. Germany generally implements the relevant EU legal requirements more restrictively and adheres more closely to the literal wording of the Freedom of Movement Act.
3. Administrative procedures
The procedures also differ considerably.
In Germany, applications are submitted to the local immigration authority. Due to the federal administrative structure, processing times and procedural workflows can vary considerably in some cases.
In Spain, such procedures are usually handled by the Oficina de Extranjería or the Policía Nacional. Whilst there are regional differences there too, overall, numerous procedures have been digitised and standardised in recent years.
Are you an EU citizen looking to move to Spain? Please feel free to contact us: www.artemislaw-europe.com
ARTICLE BY ANNA-LENA MALCHER, TRAINEE LAWYER