EXPLANATORY MEMORANDUM
1. General
context and grounds for the proposal
In accordance with Article 62(2)(b)(i) of
the Treaty Establishing the European Community, the Council has adopted Council
Regulation (EC) No 539/2001[1]
listing the third countries whose nationals must be in possession of visas when
crossing the external borders (the so-called negative list) and those whose
nationals are exempt from that requirement (the so-called positive list).
Article 61 of the EC Treaty cited those lists among the flanking measures which
are directly linked to the free movement of persons in an area of freedom,
security and justice.
Hence, since its adoption, the Regulation
has been amended eight times[2].
All the recent modifications of the Regulation focused on the revision of the
positive and the negative visa lists annexed to the Regulation, most recently
with regard to the transfer of Taiwan to the positive list and also to the
outcome of the visa liberalisation dialogues by transferring the two remaining
Western-Balkan countries, Albania and Bosnia-Herzegovina to the positive visa
list.
Throughout the past years, a need arose to
make some further, technical modifications as well to the main text of the
Regulation, e.g. strengthening legal certainty by providing rules for certain
situations which were not covered yet by the Regulation and adjusting certain
definitions due to recent changes brought by secondary legislation, for
instance by the adoption of the Visa Code (Council Regulation (EC) No 810/2009)[3].
Furthermore, ten years after the
integration of the Schengen acquis into the framework of the EU and the
establishment of the common visa policy, in accordance with Article 77(2) (a)
of the TFEU, it is necessary to make progress towards further harmonisation of the
EU's common visa policy with regard to certain categories listed under Article
4 of the Regulation and left until now to the unilateral decisions of the
individual Member States.
Finally, in light of the consequences of
the entry into force of the Lisbon Treaty, further modifications are required,
such as the introduction of a safeguard clause and a modification of the
reciprocity mechanism.
1.1. Summary
of the proposed action
The present modification of the Regulation
aims at
– providing for a visa safeguard clause allowing the rapid, temporary suspension
of the visa waiver for a third country on the positive list in case of an
emergency situation, where an urgent response needs to be given to solve the
difficulties faced by Member States;
– modifying certain provisions, e.g. of the reciprocity mechanism, in
order to have them fully comply with the respective provisions of the TFEU;
– ensuring compliance with Council Regulation (EC) No 810/2009
establishing a Community Code on visas (Visa Code)[4]
applicable since 5 April 2010 by providing e.g. for appropriate definitions
concerning short stay and visa;
– ensuring that, in accordance with Article 77(2)(a) of the TFEU, the
Regulation determines exhaustively whether a third-country national is to be
subject to or exempt from the visa requirement and thus providing legal
certainty, by complementing the rules applicable to refugees and stateless
persons in order to clarify the applicable visa regime for those residing in
the United Kingdom or in Ireland;
– making progress towards a full harmonisation of the common visa
policy by providing for new, more harmonised rules with regard to the visa
requirement or exemption applicable to various categories of third country
nationals;
– providing for clear rules as regards the visa requirement/exemption
for holders of laissez-passers and different passports issued by certain
entities subject to international law, but which do not qualify as
international intergovernmental organisations;
– adopting new provision in respect of obligations for certain Member
States flowing from prior EU/international agreements implying the need to derogate
from the common visa rules.
2. Elements
of the proposal
2.1. Establishing
a visa safeguard clause for suspending visa liberalisation
The JHA Council of 8 November 2010
adopted the visa waiver for Albania and Bosnia-Herzegovina despite the
reluctance of certain Member States due to the rapid increase of asylum applications in some Member States after the
granting of visa liberalization to some Western Balkan countries. In order to
accommodate these concerns, the Commission issued a Statement to strengthen, as a matter of urgency, the post visa liberalisation
monitoring in all Western Balkan countries that achieved visa liberalisation,
and stated in particular
that in the event of sudden inflow of
nationals of one or more third countries, including nationals of the Western
Balkans, to one or more Member States, the Commission may propose that the
Council adopt provisional measures for the benefit of the Member State(s) concerned
in accordance with Article 78 of the Treaty, and a rapid suspension of visa
liberalisation.
Further to the Commission
Statement, at the end of December 2010 two Member States submitted a document
(doc. 18212/10 VISA 311 COMIX 842), in which they suggested the insertion of a
safeguard clause into Regulation 539/2001, giving the
power to the Commission to decide on a temporary suspension of the visa waiver,
in accordance with a comitology procedure, if certain conditions are met.
A safeguard clause could also help to
preserve in the future the integrity of the visa liberalisation processes and
to build credibility vis--vis the public.
Member States have moreover given general
support to this suggestion in SCIFA. It was the common understanding of Member
States that such a safeguard clause would provide a general framework for the
future, without being related to specific third countries.
The clause would be complementary to, but distinct from, the
safeguard clause in Article 78(3) of the TFEU. It should be applied only as a
temporary measure in clearly defined emergency situations.
The safeguard clause should clearly state
that it is about a suspension of the visa waiver only for a short period of
time, as a matter of urgency, and on the basis of well defined, delimited
criteria. The clause could be triggered only in case of an emergency situation,
i.e. if there is a sudden change of the situation, e.g. when the relevant figures
increase suddenly within a relatively short period of time, and where an urgent
"visa" response needs to be given to solve the difficulties faced by
affected Member States, and when measures to be based on Article 78(3) of the
TFEU would not constitute an appropriate or sufficient response.
In order to be able to react quickly in the
above situations, a decision on the temporary suspension of a visa waiver would
be adopted in comitology in accordance with Regulation (EU) No 182/2011[5]:
by conferring implementing powers on the Commission, based on Article 291 of the
TFEU.
Even if the conditions for triggering the
safeguard clause are clearly defined, the Commission shall have to assess the
situation and there should be no automatism flowing from the notifications by
Member States. When assessing the appropriateness of suspending the visa waiver
for a third country, the Commission shall take into account the number of
Member States affected by the sudden occurrence of any of the situations listed
in this proposal and the overall impact of them on the migratory situation in
the EU.
In
accordance with the comitology rules in Regulation (EU)
No 182/2011, under
the examination procedure, the European Parliament and the Council will receive
the proposal for a Commission decision suspending the visa waiver for one
or more third countries together with other relevant documents, including e.g. possible reports
of FRONTEX and EASO and the initial notifications by Member States, at the same
time as the committee members.
For suspending a visa waiver, the application
of the examination procedure seems to be
appropriate. The committee shall deliver its opinion by qualified majority. The
votes of the members shall be weighted in the manner as set out in the relevant
Treaty provision (Art. 238 (3) of the TFEU). Where the committee delivers a
positive opinion, the Commission shall adopt the implementing act. If the
committee delivers a negative opinion, the Commission shall not adopt the act.
The European Parliament and the Council
will have the right of scrutiny to ensure that the Commission does not exceed
its implementing powers in accordance with Article 11 of Regulation (EU) No
182/2011.
Furthermore, in the interest of
transparency, the Commission could exchange views with the European Parliament
at the latter's request, following a proposal to suspend temporarily the
visa waiver for one or more third countries.
Before the
end of the temporary suspension period, the Commission would send a report to
the European Parliament and the Council accompanied, where considered
appropriate, by a proposal to modify Regulation (EC) No 539/2001, in accordance
with the ordinary legislative procedure, in order to transfer the third country
to the negative visa list. In such a case the suspension measure could be
extended by a new implementing decision adopted in comitology for a period of
maximum nine months, leaving to the European Parliament and the Council
sufficient time to reject or adopt the proposal to amend the lists of
Regulation (EC) No 539/2001.
2.2. Modification
of the reciprocity mechanism
In the course of a codification exercise
concerning Regulation (EC) No 539/2001, the Consultative Working Group of the
legal experts of the Commission, the Council and the European Parliament
examined the secondary legal base established by Regulation (EC) No 851/2005[6].
Article 1 (4) (c) of Regulation (EC) No 539/2001 as amended reads as follows:
"Within 90 days after publication of that notification, the Commission, in
consultation with the Member State concerned, shall report to the Council. The
report may be accompanied by a proposal providing for the temporary restoration
of the visa requirement for nationals of the third country in question. The
Commission may also present this proposal after deliberations in Council on its
report. The Council shall act on such proposals by a qualified majority
within three months."
The Consultative Group of the Legal
Services considered that the said provision established a secondary legal base
which is not manifestly obsolete, and therefore needs to be re-examined in the
light of the judgement of the Court of Justice of 6 May 2008 in case C-133/06
with a view to either the deleting or the amending thereof.
In an area in which co-decision applies, it
is legally not possible to provide in secondary legislation a simplified
procedure allowing the Council to decide on a Commission proposal, without any
involvement of the European Parliament.
Consequently, the said provision shall be
maintained but modified on the one hand, by providing that the report should
also be addressed to the European Parliament and, on the other hand, by adding
the co-decisive role of the European Parliament to it.
The codification exercise will continue and
be finalised once the present amendment is adopted.
In this context, it should be mentioned
that a suggestion has been made by a Member State to modify the current
reciprocity mechanism in order to make it more
efficient. According to the suggestion, the Commission would be obliged to
present a proposal, within a very short period of time, for a temporary
restoration of a visa requirement for nationals of a third country, which does
not lift the visa obligation within a period of no longer than 12 months of its
introduction for a Member State.
It is
important to stress that such modification of the reciprocity mechanism would
infringe the exclusive right of initiative of the Commission and would not
necessarily lead to adoption of the proposed retaliatory measure.
The initial reciprocity mechanism of
Regulation (EC) No 539/2001 already contained a certain automatism: the notification of non-reciprocity
cases was not mandatory; the Member State concerned was free to decide to
notify or not. But if notification took place, then Member States were obliged
to impose the visa requirement for nationals of the third country concerned
provisionally and automatically, 30 days after the notifications, unless the
Council decided otherwise.
This
automatism was considered to be the weakness of the initial reciprocity
mechanism and thus it has been abandoned in 2005 as
being counter-productive. There is no reason to believe that it would entail
more efficiency now.
The current reciprocity mechanism, as
modified in 2005, is considered to be overall efficient, and the cases of
non-reciprocity have been reduced considerably. The remaining non-reciprocity
situations are mostly cases where some Member States are considered by third
countries not to meet objective criteria for visa waiver set out by these third
countries in their domestic legislation.
While the use of comitology procedure is
considered when applying the safeguard clause in cases of emergency situations
characterised by well-defined conditions (see above point 2.3), in case of
introducing the retaliatory measure of restoration of the visa requirement
against a third country in case of non-reciprocity, the overall external policy
of the European Union with the third country in question should be taken into
account, without any automatism, as well as the principle of solidarity amongst
EU Member States. A political assessment of the appropriateness of such a
measure should be made.
Most Member States also cautioned against an
"automatic" (re)imposition of a visa requirement for citizens of
third countries due to its political implications and advocated instead for a
tailor-made approach and application of provisional measures in other fields.
2.3. Definition
of the visa and of short stay without a visa
This proposal aligns the definition of
"visa" to the definition used in the Visa Code. Accordingly, a visa
is an authorisation of transit through or for an intended stay in the territory
of the Member States for a duration of no more than three months in any
six-month period from the date of first entry in the territory of the Member
States.
For the purpose of this Regulation, the airport transit visa is excluded from this definition, since the visa regime applicable by Member States to third-country nationals transiting through the international airports of Member States is regulated by and contained in the Visa Code.
Nationals of third countries on the list in
Annex II shall be exempt from the requirement set out in paragraph 1 for stays
in the territory of the Member States not exceeding three months in any
six-month period.
This definition also takes into account the
implications brought by the interpretation of the three-month short stay rule
by the European Court of Justice in case 241/05[7].
2.4. Refugees
and stateless persons residing in the United Kingdom or in Ireland
A previous amendment of Regulation (EC) No 539/2001 in 2006 (Regulation (EC) No 1932/2006) already envisaged to clarify the situation of refugees and stateless persons by adjusting the applicable visa rules distinguishing between those, who are residing in a Member State and those residing in a third country.
On the basis of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland and the United Kingdom are not participating in the adoption of Regulation (EC) No 539/2001 and its amendments. Thus, for Regulation (EC) No 539/2001 the United Kingdom and Ireland are not considered to be Member States. Consequently, the provisions of Regulation (EC) No 1932/2006 on the visa rules applicable for refugees and stateless persons do not apply to such persons when they are residing in the United Kingdom or in Ireland.
The present proposal aims at remedying this unsatisfactory situation by including a provision into the Regulation on refugees and stateless persons residing in the UK or Ireland.
As there is no mutual recognition of visas and no equivalence between a residence permit and a visa in the relationship between, on the one hand, UK and Ireland and, on the other hand, the Schengen Member States, the Regulation leaves the freedom for Member States to decide individually on visa exemption or obligation for this category of persons. Such national decisions should be notified to the Commission in accordance with Article 5 of the Regulation.
2.5. Harmonisation
of the visa requirement/exemption for certain categories listed under Article 4
(1)
Article 4 of Regulation (EC) No 539/2001
provides the possibility for Member States to exempt individually different
categories of nationals of third countries on the negative list from the visa
requirement or to submit to the visa requirement such nationals of third
countries on the positive list.
In the view of the Commission, ten years
after the integration of the Schengen acquis into the EU time has come to make
a next step towards a more harmonised common visa policy. Efforts should be
made to fully comply with the Treaty by creating a real common visa policy. For
this reason, this proposal aims at limiting the freedom of Member States to
grant visa waiver or to impose a visa requirement to various categories of
persons covered by Article 4(1) of Regulation (EC) No 539/2001 by establishing
further common rules on the visa requirement for some of these categories.
However, the proposal also takes into account the current, considerable
differences between the practices of Member States in case of certain
categories (such as diplomatic and service passport holders) by maintaining the
possibility for Member States to continue for the time being to decide
individually on the visa exemption or on the visa requirement except in cases
where the EU would negotiate visa waiver agreements for these categories with
certain third countries.
2.5.1. Further
harmonisation
The Commission endeavours further progress
towards full harmonisation with regard to the categories of Article 4(1), for
which a de facto harmonisation or quasi harmonisation already exists.
In accordance with the present
notifications provided by Member States, civilian air crew members are exempted from the visa requirement by all Member
States. In such circumstances, maintaining the possibility for Member States to
decide freely on the exemption of such category is no longer justified.
As regards civilian sea crew, all Member States but two exempt such persons from the visa
requirement in case of shore leave, while all
Member States but two maintain the visa requirement for transit purposes. This amendment will therefore set out the general,
harmonised visa exemption for the first category and visa requirement for the
second one respectively.
There is only one Member State exempting flight
crew and attendants on emergency or rescue flights and other helpers in case of
a disaster or accident from the visa requirement,
therefore this Regulation would abolish this category.
2.5.2. Maintaining
the rules
For the category of civilian crew of
ships navigating in international inland waterways the
current provisions would be maintained as from Member States' notifications it
can be seen that Member States having the Rhine or the Danube flowing across
their territories follow divergent practices with regard to the exemption or
visa requirement applicable to this category. Furthermore, there is legislative
work going on in the CCNR (Rhine Committee) on this issue, which should also be
taken into account.
The current possibility for Member States
to decide on the exemption of holders of laissez-passer issued by some
intergovernmental organisations would not be
affected by this modification either.
2.5.3. New
provision – In respect of obligations flowing from prior EU agreements
Prior to the establishment of the EU common
visa policy, the European Union and its Member States have concluded
international agreements, like association agreements, with third countries
dealing i.a. with the movement of persons and services, which might have an
impact on the visa requirement imposed on nationals of third countries. Such
international agreements concluded by the Union take primacy over provisions of
secondary EU legislation, including Regulation (EC) No 539/2001. In case such
international agreements contain a so-called 'standstill clause', it might
entail the obligation for certain Member States to derogate from the rules of
the common visa policy in accordance with their respective legislations and
practices applicable/in force on the date the standstill clause entered into
force for them.
Therefore, the Commission proposes the
introduction in Article 4 of a provision allowing Member States to exempt
service providers from the visa requirement, to the extent necessary to respect
international obligations concluded by the Community before the entry into
force of Regulation (EC) No 539/2001.
This proposal is coherent with the ruling
of the Court of Justice of the European Union of 19 February 2009 in Case
C-228/06, Mehmet Soysal and Ibrahim Savatli, in
which the Court ruled that "Article 41(1) of the Additional Protocol to
the Association Agreement with Turkey, signed on 23 November 1970 in Brussels,
is to be interpreted as meaning that it precludes the introduction, as from the
entry into force of that protocol, of a requirement that Turkish nationals such
as the appellants in the main proceedings must have a visa to enter the
territory of a Member State in order to provide services there on behalf of an
undertaking established in Turkey, since, on that date, such a visa was not
required".
Article 41 of the Additional Protocol lays
down a 'standstill' clause, which stipulates that "the Contracting Parties
shall refrain from introducing between themselves any new restrictions on the
freedom of establishment and the freedom to provide services". At present,
the Commission is not aware that other countries than Turkey benefit from a
similar 'standstill clause' established by an international agreement concluded
with the Union.
Member States concerned by such derogation
shall notify it to the Commission and the other Member States.
2.5.4. Procedure
to exempt diplomatic and service passport holders of third countries from the visa
requirement after the abolition of Council Regulation (EC) No 789/2001[8]
The current text of Article 4(1) of
Regulation (EC) No 539/2001 refers to the procedure established by Regulation
(EC) No 789/2001 to be followed when a Member State decides to exempt the
diplomatic and/or service passport holders of a third country from the visa
requirement.
Pursuant to Regulation (EC) No 789/2001,
Member States, willing to exempt holders of diplomatic and service passports of
third countries whose nationals are subject to prior consultation, should have
submitted a legislative initiative, on which the Council decided by qualified
majority (since 2006).
As regards the holders of such passports of
third countries not subject to prior consultation, Regulation (EC) No 789/2001
obliged Member States to simply communicate to the Council any amendments to
their visa rules (requirement or exemption).
However, Regulation (EC) No 789/2001 has
been repealed by Council Regulation (EC) No 810/2009 establishing a Community Code
on visas (Visa Code)[9].
It was considered that after the repeal of the above Regulation, the
appropriate place to cover these "procedural" aspects of national
decisions on visa requirement or exemption for such passport holders would be
Regulation (EC) No 539/2001, if need be.
Thus, in the framework of the present
modification, it needs to be examined whether a specific decision-making
procedure should be provided for the case when a Member State wants to abolish
the visa requirement for the diplomatic and service passport holders of a third
country subject to prior consultation.
In the view of the Commission, there is no
need to establish such a specific "common decision mechanism" for
this issue, both for institutional and substantive reasons.
As regards the institutional aspects:
After the five years transitional period
provided by the Amsterdam Treaty for Title IV of the TEC and the entry into
force of the new Treaty on the Functioning of the European Union, it is legally
no longer possible to establish a decision making procedure with a right of
initiative for a Member State; it is even unacceptable, from an institutional
point of view, to accept that a Member State's suggestion or intention (to
abolish the visa requirement for diplomatic passport holders of a country under
prior consultation) would bind the Commission's right of initiative; the
Commission cannot be obliged to present a proposal.
Moreover, if a procedure for a "common
decision" would be established, the principles and procedures provided by
the TFEU should be respected (see above on the reciprocity mechanism, point 2.2).
The Council could not decide alone; such a measure should be adopted in
co-decision procedure with the European Parliament.
As regards the substantive aspects:
The decision to ask for prior consultation
on the visa applications lodged by the nationals of a certain third country (or
certain categories of them) is a purely national decision. The Schengen
solidarity implies that the other Member States indeed, systematically, send
the visa applications concerned for prior consultation to the requesting Member
State.
In principle, the decision to lift the visa
requirement for the holders of diplomatic and service passports of countries
who figure on the negative list is also a unilateral decision by a Member
State. In principle, the other Member States do not have to accept such
measures: on the basis of such a decision, the diplomats concerned can travel
without a visa to the Member State concerned, but continue to require a visa to
travel to the other Member States. Of course, the diplomats are present in the
Schengen area without internal borders which could imply a certain risk.
However, the following elements should be
recalled:
– if one or more Member States have lifted the obligation for the
diplomatic and service passport holders of a certain third country before
another Member State adds this country to the list of countries for prior
consultation, the earlier lifting of the visa requirement is not at all affected
and continues to apply;
– even if in a procedure of prior consultation a Member State opposes
the issuing of a visa to an applicant, the Member State processing the visa
application is not obliged to refuse the visa; he can decide to issue a visa
with limited territorial validity, only allowing access to its own territory
this way. Of course, the person is present in the Schengen area without
internal borders, which – again – could imply a certain risk.
2.6. Clarifying
the situation and establishing the legal basis of the visa requirement or
exemption for other entities subject to international law which issue
diplomatic or service passport or laissez-passers to its members, but which are
not intergovernmental organisations
There are certain entities subject to
international law, which do issue diplomatic or service passports or
laissez-passers. These entities are not intergovernmental organisations, thus
they are not covered at this moment by Article 4 of Regulation (EC) No
539/2001. On the other hand they are included in the Table of travel documents
and Member States declared whether they recognise their travel documents or not
(e.g. Sovereign Order of the Knights of Malta).
It is necessary to have such entities also
covered by Regulation (EC) No 539/2001 and Member States should decide and
notify to the Commission in accordance with Article 5 whether they exempt the
holders of travel documents issued by such entities.
3. Main organisations/experts
consulted
Member States were consulted.
4. Impact assessment
Not necessary.
5. Legal basis
In view of the Treaty on the Functioning of
the European Union (TFEU), this proposal constitutes a development of the
common visa policy in accordance with Article 77(2) (a) of the TFEU.
6. Proportionality and subsidiarity principles:
Regulation (EC) No 539/2001 lists the third
countries whose nationals must be in possession of visas when crossing the
external borders (the negative list) and those whose national are exempt from
that requirement (the positive list).
The decision to change the lists, to
transfer countries from the negative to the positive list or vice versa, and
also to make other modifications to the Regulation falls within the competence
of the Union in accordance with Article 77(2) (a) of the TFEU. It constitutes a
subject matter in which full harmonisation has been pursued for a considerable
period of time for obvious efficiency reasons.
7. Choice of instruments
Regulation (EC) No 539/2001 is to be
amended by a Regulation.
8. Budgetary implication
The proposed amendment has no implication
on the budget of the EU.
2011/xxxx (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
amending Council Regulation (EC) No
539/2001 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
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN
UNION,
Having regard to the Treaty on the
functioning of the European Union, and in particular Article 77(2)(a)
thereof,
Having regard to the proposal from the European
Commission[10],
After transmission of the draft legislative
act to the national Parliaments,
Acting in accordance with the ordinary
legislative procedure,
Whereas:
(1)
This Regulation establishes a visa
safeguard clause allowing the rapid, temporary suspension of the visa waiver for
a third country on the positive list in case of an emergency situation, where
an urgent response is needed in order to resolve the difficulties faced by one
or more Member States, and taking account of the overall impact of the
emergency situation on the European Union as a whole.
(2)
In order to ensure uniform conditions
for the implementation of the visa safeguard clause, implementing powers should be conferred on the Commission. Those
powers should be exercised in
accordance with Regulation (EU) No 182/2011 of the European Parliament and of
the Council of 16 February 2011 laying down the rules and general principles
concerning mechanisms for control by the Member States of the Commission's
exercise of implementing powers[11].
(3)
The mechanism regarding reciprocity to
be implemented if one of the third countries included in Annex II to Regulation
(EC) No 539/2001 decides to make the nationals of one or more Member States
subject to the visa obligation needs to be adapted to the entry into force of
the Lisbon Treaty in combination with the case law of the Court on secondary
legal bases.
(4)
In order to ensure consistency with Regulation
(EC) No 810/2009 of the European Parliament and of the Council of
13 July 2009 establishing a Community Code on Visas (Visa Code)[12],
this Regulation aligns the definition of visa with the Visa Code.
(5)
Further progress should be made
towards a full harmonisation of the common visa policy as regards the categories
of exceptions which Article 4 of Regulation (EC) No 539/2001 allows the Member
States to provide for. To this end, this Regulation amends Article 4 of
Regulation (EC) No 539/2001 on matters where a de facto harmonisation or a
quasi harmonisation already exists on the basis of convergent practices of
Member States.
(6)
As Regulation (EC) No 1932/2006
on the visa rules applicable for refugees and stateless persons does not apply
to such persons when they are residing in the United Kingdom or Ireland, it is
necessary to clarify the situation concerning the visa requirement for certain
refugees and stateless persons who reside in the United Kingdom or in Ireland.
This Regulation leaves Member States free to decide on visa exemption or
obligation for that category of persons. Such national decisions shall be
notified to the Commission.
(7)
Having regard to certain obligations
on the Member States under international agreements concluded by the Community
before the entry into force of Regulation (EC) No 539/2001 which imply the need
to derogate from the common visa rules, this Regulation introduces a provision
allowing Member States to exempt persons providing services during their stay
from the visa requirement, to the extent necessary to respect those obligations.
(8)
This Regulation provides a legal basis
for the visa requirement or exemption of holders of laissez-passer, diplomatic
or service passports issued by certain entities subject to international law
which are not international intergovernmental organisations.
(9)
This Regulation constitutes a
development of the Schengen acquis, in accordance with the Protocol integrating
the Schengen acquis into the framework of the European Union, as defined in
Annex A to Council Decision 1999/435/EC[13]
of 20 May 1999
concerning the definition of the Schengen acquis for
the purpose of determining, in conformity with the relevant provisions of the
Treaty establishing the European Community and the Treaty on European Union,
the legal basis for each of the provisions or decisions which constitute the
acquis.
(10)
As regards Iceland and Norway, this
Regulation constitutes a development of the provisions of the Schengen acquis
within the meaning of the Agreement concluded by the Council of the European
Union and the Republic of Iceland and the Kingdom of Norway concerning the
latters' association with the implementation, application and development of
the Schengen acquis[14],
which falls within the area referred to in Article 1, point (B), of Council
Decision 1999/437/EC of 17 May 1999 on certain arrangements for
the application of that Agreement[15].
(11)
As regards Switzerland, this
Regulation constitutes a development of the provisions of the Schengen acquis
within the meaning of the Agreement concluded between the European Union, the
European Community and the Swiss Confederation on the Swiss Confederation's
association with the implementation, application and development of the
Schengen acquis[16], which fall
within the area referred to in Article 1, point (B) of Council Decision
1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC[17].
(12)
As
regards Liechtenstein, this Regulation constitutes a development of the
provisions of the Schengen acquis within the meaning of the Protocol between
the European Union, the European Community, the Swiss Confederation and the
Principality of Liechtenstein on the accession of the Principality of
Liechtenstein to the Agreement between the European Union, the European
Community and the Swiss Confederation on the Swiss Confederation's association
with the implementation, application and development of the Schengen acquis,
which fall within the area referred to in Article 1, point (B) of Council
Decision 1999/437/EC read in conjunction with Article 3 of Council
Decision [xx/2011/EU]. FN [ref. to JO, adopted on 7.3.11; not yet published][18]
(13)
This Regulation constitutes a
development of provisions of the Schengen acquis in which the United Kingdom
does not take part, in accordance with Council Decision 2000/365/EC of 29
May 2000 concerning the request of the United Kingdom of Great Britain and
Northern Ireland to take part in some of the provisions of the Schengen acquis[19].
The United Kingdom is therefore not taking part in its adoption and is not
bound by it or subject to its application.
(14)
This Regulation constitutes a
development of provisions of the Schengen acquis in which Ireland does not take
part, in accordance with Council Decision 2002/192/EC of 28 February
2002 concerning Ireland's request to take part in some of the provisions of the
Schengen acquis[20]. Ireland is
therefore not taking part in its adoption and is not bound by it or subject to
its application,
HAVE ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No
539/2001 is amended as follows:
1.
Article 1 is amended as follows:
(a)
paragraph 2 is amended as follows:
(i) the
first subparagraph is replaced by the following:
"Nationals
of third countries on the list in Annex II shall be exempt from the requirement
set out in paragraph 1 for stays not exceeding three months in any six-month
period from the date of first entry in the territory of the Member
States."
(ii) in the second subparagraph, the following
indents are added:
– "civilian air crew members;
– civilian sea crew members when they go ashore who hold a seafarer's
identity document issued in accordance with the International Labour
Organisation Conventions (No 108 of 1958 and No 185 of 2003) or the IMO London
Convention of 1965 (FAL) on the facilitation of international maritime
traffic."
(b)
in paragraph 4 point (c) is replaced
by the following:
(c)
"within 90 days after publication
of that notification, the Commission, in consultation with the Member State
concerned, shall report to the European Parliament and the Council. The report
may be accompanied by a proposal providing for the temporary restoration of the
visa requirement for nationals of the third country in question. The Commission
may also present this proposal after deliberations in the European Parliament
and the Council on its report. The European Parliament and the Council shall
act on such proposal by the ordinary legislative procedure.
2.
The following Article 1a is inserted:
"Article
1a – Safeguard clause
1. Paragraphs 2 to 5 of this Article shall
apply in the event of one or more Member States being confronted by an
emergency situation characterised by the occurrence of any of the following:
(a)
a sudden increase of at least 50%, over
a six month period, in the number of nationals of a third country listed in
Annex II found to be illegally staying in the Member State's territory, in
comparison with the previous six month period;
(b)
a sudden increase of at least 50%, over
a six month period, in comparison with the previous six month period, in the
number of asylum applications from the nationals of a third country listed in
Annex II for which the recognition rate of asylum applications was less than 3%
over that previous six month period;
(c)
a sudden increase of at least 50%, over
a six month period, in the number of rejected readmission applications
submitted by a Member State to a third country listed in Annex II for its own
nationals, in comparison with the previous six month period.
2. A Member State which is confronted by
any of the emergency situations described in paragraph 1 may notify the
Commission. This notification shall be duly motivated and shall include
relevant data and statistics as well as a detailed explanation of the
preliminary measures that the Member State concerned has taken with a view to
remedying the situation.
3. The Commission shall examine the
notification taking into account the number of Member States affected by any of
the situations described in paragraph 1 and the overall impact of the increases
on the migratory situation in the Union as the latter appears from the data
provided by the Member States as well as from reports prepared by FRONTEX
and/or the European Asylum Support Office, and, within three months following
receipt thereof, the Commission may adopt an implementing decision suspending
the exemption of visa requirement for the nationals of the third country
concerned for a period of six months. The implementing decision shall be
adopted in accordance with the procedure referred to in Article 4a (2). The
implementing decision shall determine the date on which the suspension of the
exemption of visa requirement is to take effect.
4. Before the end of the period of validity
of the implementing decision adopted pursuant to paragraph 3, the Commission,
in cooperation with the Member State(s) concerned, shall submit a report to the
European Parliament and the Council. The report may be accompanied by a
proposal amending this Regulation in order to transfer the third country
concerned to Annex I.
5. Where the Commission has proposed an
amendment to this Regulation in order to transfer a third country to Annex I
pursuant to paragraph 4, it can extend the validity of the implementing
decision adopted pursuant to paragraph 3 for a period of maximum nine months.
The decision to extend the validity of the implementing decision shall be
adopted in accordance with the procedure referred to in Article 4a (2).
3.
Article 2 is replaced by the
following:
"For the
purposes of this Regulation, "visa" shall mean an authorisation
issued by a Member State with a view to transit through or an intended stay in
the territory of the Member States of a duration of no more than three months
in any six-month period from the date of first entry in the territory of the
Member States."
4.
Article 4 is amended as follows:
(a)
Paragraph 1 is replaced by the
following:
"1.
A Member State may provide for exceptions from the visa requirement provided
for by Article 1 (1) or from the exemption from the visa requirement provided
for by Article 1 (2) as regards:
(a)
holders of diplomatic passports,
service/official passports or special passports;
(b) the civilian crew of ships navigating in international waters;
(c)
the holders of laissez-passer,
diplomatic or service passports issued by some intergovernmental international
organisations or by other entities subject to international law to their
officials."
(b)
in paragraph 2 the following point (d)
is added:
"(d)
recognised refugees and stateless persons and other persons who do not hold the
nationality of any country who reside in the
United Kingdom or in Ireland and are holders of
a travel document issued by those Member States".
(c)
A new paragraph 4 is added:
"To the extent imposed by the
application of Article 41(1) of the Additional Protocol to the Association
Agreement between Turkey and the EC, a Member State may provide for exceptions
from the visa requirement provided for by Article 1(1), as regards Turkish
nationals providing services during their stay."
5.
The following Article 4a is inserted:
"Article 4a
Committee procedure
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation
(EU) No 182/2011.
2. Where reference is made to this
paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply."
Article 2
This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding
in its entirety and directly applicable in the Member States in accordance with
the Treaties.
Done at Brussels, []
For
the European Parliament For
the Council
[1] OJ L 81, 21.3.2001, p. 1.
[2] Council Regulations (EC) No 2414/2001 of 7 December 2001 (OJ L 327, 12.12.2001, p. 1), (EC) No 453/2003 of 6 March 2003 (OJ L 69, 13.3.2003, p. 10), (EC) No 851/2005 of 2 June 2005 (OJ L 141 4.6.2005, p. 3), (EC) No 1791/2006 of 20 November 2006 (OJ L 363 20.12.2006, p. 1), (EC) No 1932/2006 of 21 December 2006 (OJ L 405 30.12.2006, p. 23), (EC) No 1244/2009 of 30 November 2009 (OJ L 336 18.12.2009, p. 1), (EU) No 1091/2010 of 24 November 2010 (OJ L 329 14.12.2010, p.1) and (EU) No 1211/2010 of 15 December 2010 (OJ L 339 22.12.2010, p.9)
[3] OJ
L 243 15.9.2009, p. 1.
[4] OJ
L 243 15.9.2009, p. 1.
[5] OJ
L 55, 28.2.2011, p. 13.
[6] OJ L 141, 4.6.2005, p. 3.
[7] In case 241/05 the European Court of Justice ruled that Article 20(1) of the Convention implementing the Schengen Agreement is to be interpreted as meaning that the term first entry in that provision refers, besides the very first entry into the territories of the Contracting States to that agreement, to the first entry into those territories taking place after the expiry of a period of six months from that very first entry and also to any other first entry taking place after the expiry of any new period of six months following an earlier date of first entry. This – by analogue interpretation – applies also to stays on the basis of a visa.
A short stay visa is a travel visa valid for one or more entries, provided that neither the length of a continuous visit nor the total length of successive visits exceeds three months in any half-year, from the date of first entry. Aliens not subject to a visa requirement may move freely within the territories of the Schengen States for a maximum period of three months during the six months following the date of first entry.
[8] OJ L 116 24.4.2001, p. 2.
[9] OJ L 243 15.9.2009, p. 1.
[10] OJ C [], [], p. [].
[11] OJ L 55, 28.2.2011, p. 13.
[12] OJ
L 243 15.9.2009, p. 1.
[13] OJ L 176, 10.7.1999, p. 1.
[14] OJ L 176, 10.7.1999, p. 36.
[15] OJ
L 176, 10.7.1999, p. 31.
[16] OJ
L 53, 27.2.2008, p. 52.
[17] OJ
L 53, 27.2.2008, p. 1.
[18] OJ L
[19] OJ L 131, 1.6.2000, p. 43.
[20] OJ L 64, 7.3.2002, p. 20.