The Council adopted a general approach concerning certain elements of the Commission proposal to amend the rules governing the EU's visa-free regime. This allows for negotiations with the European Parliament to start.
To recall, the core of the Commission’s proposal is the introduction of a safeguard clause allowing the temporary reintroduction of the visa requirement for citizens of a third country whose nationals can normally travel to the EU without a visa.
While welcoming the safeguard clause, the Council decided to amend Article 1a. The original proposal for this article set the following condition for a Member State to notify the Commission of an emergency situation that could trigger the safeguard procedure: a sudden increase of at least 50% in relation to illegal stays and/or asylum applications and/or rejected readmission applications.
In the Council's general approach, three main changes were introduced:
The main reason for the changes proposed is to have the Commission focus on the assessment of the real situation described by the Member State presenting the notification.
The safeguard clause as it stands now also provides that, if problems regarding a third country persist, the Commission can propose to move that country permanently from Annex 2 to Annex 1, i.e. to the list of those countries whose nationals are not exempt from having a visa when travelling to the EU.
The Mixed Committee (the EU plus Norway, Iceland, Liechtenstein and Switzerland) discussed the post-visa liberalisation monitoring for the Western Balkan countries and, in particular, the Commission’s third report on the subject.
Delegations expressed concern about a considerable increase in mostly unfounded asylum applications from nationals of several Western Balkan countries and underlined the importance of taking forward measures to remedy the situation. Among other things, dialogue with the countries concerned was seen to be of major importance, and the Commission confirmed that the subject will be addressed at the forthcoming ministerial forum on justice and home affairs between the EU and the Western Balkan countries (5 and 6 November 2012 in Tirana, Albania).
In this context, a large number of delegations also asked to speed up current negotiations with the European Parliament on amendments to the rules governing the EU's visa-free regime. The discussions between Council and Parliament focus on the introduction of a safeguard clause allowing the temporary reintroduction of the visa requirement – in specific circumstances - for nationals of a third country who can normally travel to the EU without a visa (those countries in Annex II). The new rules would also strengthen the notion of reciprocity, i.e. how to deal with situations where a country in Annex II reintroduces a visa requirement for citizens of particular EU Member States or the EU as a whole.
PURPOSE: to revise certain parts of Regulation (EC) No 539/2001 listing 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).
PROPOSED ACT: Regulation of the European Parliament and of the Council.
BACKGROUND: since its adoption, Regulation (EC) No 539/2001 has been amended eight times. All the recent modifications of the Regulation focused on the revision of the positive and the negative visa lists annexed to the Regulation. Over the past few years, the 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, particularly by the adoption of the Visa Code.
Furthermore, ten years after the integration of the Schengen acquis into the framework of the EU and the establishment of the common visa policy, it is necessary to make progress towards further harmonisation of the EU's common visa policy with regard to certain categories listed in the Regulation and left until now to the unilateral decisions of individual Member States.
Lastly, as a result 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.
This proposal aims to reconcile these objectives.
IMPACT ASSESSMENT: no impact assessment was undertaken.
LEGAL BASIS: Article 77(2)(a) of the Treaty on the Functioning of the European Union. (TFEU).
CONTENT: the present modification of the Regulation aims at :
(1) making provision 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. Following the adoption of the visa waiver for Albania and Bosnia Herzegovina, certain Member States suggested the insertion of a safeguard clause into Regulation 539/2001, giving 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.
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. It should cover only a short period of time and 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 the Member States affected.
Before the safeguard clause is triggered, the Commission will have to assess the situation and there should be no automatism flowing from the notifications by Member States. The Commission will 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. The proposal makes provisions ofr information to be available in sufficient time for the European Parliament and the Council to reject or adopt the proposal to amend the lists of Regulation (EC) No 539/2001.
(2) modifying the reciprocity mechanism: 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. However, such a 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 considerably reduced. 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. 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 a tailor-made approach and application of provisional measures in other fields.
(3) ensuring compliance with the Visa Code by providing e.g. for appropriate definitions concerning short stay and visa. Accordingly, a visa is an authorisation of transit through or for an intended stay in the territory of the Member States for 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. 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.
(4) ensuring that the Regulation determines exhaustively whether a third-country national is to be subject to or exempt from the visa requirement. Apart from aligning the definition of "visa" with that in the Visa Code, the proposal seeks to ensure legal clarity 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. 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 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.
(5) 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. The 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.
The following provisions are made:
As regards the holders of such passports of third countries not subject to prior consultation, Regulation (EC) No 789/2001 obliged Member States simply to 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). 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. The Commission considers that there is no need to establish such a specific "common decision mechanism" for this issue, both for institutional and substantive reasons;
(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: 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;
(7) 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. 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.
BUDGETARY IMPLICATIONS: the proposal has no implications for the budget of the EU.
OBJECTIF : revoir certains éléments essentiels du règlement (CE) n° 539/2001 fixant la liste des pays tiers dont les ressortissants sont soumis à l'obligation de visa pour franchir les frontières extérieures des États membres (dite «liste négative») et la liste de ceux dont les ressortissants sont exemptés de cette obligation (dite «liste positive»).
ACTE PROPOSÉ : Règlement du Parlement européen et du Conseil.
CONTEXTE : depuis son adoption, le règlement (CE) n° 539/2001 a été modifié à 8 reprises. Les modifications récentes du texte portaient toutes sur la révision des listes positive et négative annexées au règlement. Au cours des dernières années, il est toutefois apparu nécessaire d'apporter d'autres modifications, d'ordre technique, au texte en vue d'en accroître la sécurité juridique en prévoyant des dispositions pour régir certaines situations qui ne relevaient pas encore du règlement, et d'adapter certaines définitions du fait de changements récemment apportés par la législation dérivée, notamment par l'adoption du code des visas.
En outre, dix ans après l'intégration de l'acquis de Schengen dans le cadre de l'Union européenne et l'instauration de la politique commune de visas, il semble nécessaire d'avancer sur la voie d'une harmonisation accrue de cette politique de l'UE en ce qui concerne certaines catégories de personnes énumérées au règlement qui faisaient l'objet de décisions unilatérales des États membres.
Enfin, les conséquences de l'entrée en vigueur du traité de Lisbonne requièrent de nouvelles modifications, telles que l'introduction d'une clause de sauvegarde ou la révision du mécanisme de réciprocité.
La présente proposition rencontre ces différents objectifs.
ANALYSE D'IMPACT : aucune analyse d'impact n'a été réalisée.
BASE JURIDIQUE : article 77, par. 2, point a) du traité sur le fonctionnement de l'Union européenne (TFUE).
CONTENU : la présente proposition de modification du règlement vise à:
1) intégrer une clause de sauvegarde sur les visas, permettant de suspendre rapidement et temporairement l'exemption de visa en faveur d'un pays tiers figurant sur la liste positive en cas de situation d'urgence, lorsqu'une prompte réaction est requise pour résoudre des difficultés auxquelles sont confrontés des États membres. En effet, à la suite de l'adoption de l'exemption de visa en faveur de l'Albanie et de la Bosnie-Herzégovine, certains États membres ont suggéré l'insertion d'une clause de sauvegarde dans le règlement donnant la possibilité à la Commission de décider une suspension temporaire de l'exemption de visa, dans le cadre d'une procédure de comitologie, si certaines conditions étaient réunies. La clause serait complémentaire, mais distincte, de la clause de sauvegarde prévue à l'article 78, paragraphe 3, du TFUE. Elle ne s'appliquerait qu'à titre de mesure temporaire dans des situations d'urgence définies avec précision. Elle serait de courte durée et ne pourrait être activée qu'en cas d'urgence, c'est-à-dire de changement soudain de la situation, par exemple si les chiffres concernés augmentaient subitement sur une période relativement courte, et si une intervention urgente en matière de visa était requise pour faire face aux difficultés rencontrées par les États membres concernés.
Préalablement à une mesure de sauvegarde, la Commission devra évaluer la situation et aucun automatisme ne devrait résulter des notifications des États membres. Dans son appréciation de l'opportunité de suspendre l'exemption de visa pour un pays tiers, la Commission tiendra compte du nombre d'États membres touchés par la survenance soudaine d'une ou plusieurs des situations énumérées dans la présente proposition et de son/leur incidence sur la situation migratoire dans l'UE.
Conformément aux règles de comitologie énoncées dans le règlement (UE) n° 182/2011, dans le cadre de la procédure d'examen, le Parlement européen et le Conseil recevront, en même temps que les membres du comité, la proposition de décision de la Commission suspendant l'exemption de visa pour un ou plusieurs pays tiers. Des dispositions très précises d'information sont en outre prévues pour permettre au Parlement européen et au Conseil d'adopter en temps voulu les modifications aux listes annexées au règlement (CE) n° 539/2001.
2) modifier le mécanisme de réciprocité : il a été suggéré de modifier le mécanisme de réciprocité actuel pour le rendre plus efficace. Selon cette suggestion, la Commission serait obligée de présenter, dans un délai très court, une proposition prévoyant le rétablissement temporaire de l'obligation de visa pour les ressortissants d'un pays tiers qui ne lève pas l'obligation de visa dans un délai maximal de 12 mois suivant son introduction à l'égard d'un État membre. Cette modification du mécanisme de réciprocité porterait toutefois atteinte au droit d'initiative exclusif de la Commission et ne conduirait pas nécessairement à l'adoption de la mesure de rétorsion proposée. Le mécanisme de réciprocité initialement prévu par le règlement (CE) n° 539/2001 comportait un certain automatisme: la notification des cas de non-réciprocité n'était pas obligatoire; l'État membre concerné décidait librement de les notifier ou non. Mais si la notification intervenait, les États membres étaient alors tenus d'imposer l'obligation de visa pour les ressortissants du pays tiers concerné, provisoirement et automatiquement, 30 jours après la notification, sauf décision contraire du Conseil. Cet automatisme était toutefois considéré comme le point faible du mécanisme de réciprocité initial et il a donc été abandonné en 2005, car jugé contreproductif. Le mécanisme de réciprocité actuel, tel qu'il a été modifié en 2005, est par contre perçu comme globalement efficace, et les cas de non-réciprocité ont été considérablement réduits. Les cas résiduels correspondent essentiellement à des situations dans lesquelles des pays tiers considèrent que certains États membres ne satisfont pas aux critères objectifs d'exemption de visa fixés dans la législation nationale de ces pays. Par ailleurs, la (ré)imposition automatique d'une obligation de visa pour les ressortissants de pays tiers aurait des implications politiques, c'est pourquoi il est préconisé d'adopter une approche adaptée à chaque situation et d'appliquer des mesures provisoires dans d'autres domaines.
3) assurer la conformité avec le code visa, en prévoyant notamment des définitions appropriées pour le court séjour et le visa. Ainsi, un visa est une autorisation de transit ou de séjour prévu sur le territoire des États membres, pour une durée totale n'excédant pas trois mois sur une période de six mois à compter de la date de la première entrée sur le territoire des États membres. Le visa de transit aéroportuaire serait exclu de la définition, puisque le régime de visa applicable par les États membres aux ressortissants de pays tiers transitant par les aéroports internationaux des États membres est régi et défini par le code des visas.
4) faire en sorte que le règlement détermine précisément les cas dans lesquels un ressortissant de pays tiers doit être soumis à l'obligation de visa ou en être exempté : outre le fait d'aligner la définition du «visa» sur celle retenue dans le code des visas, il est prévu de renforcer la sécurité juridique, en complétant les règles applicables aux réfugiés et aux apatrides afin de clarifier le régime applicable en matière de visa pour ceux qui résident au Royaume-Uni ou en Irlande. En effet, en application du protocole sur la position du Royaume-Uni et de l'Irlande annexé au traité sur l'UE et au traité instituant la Communauté européenne, ces deux pays ne participent pas à l'adoption du règlement (CE) n° 539/2001 et de ses modifications. Dès lors, du point de vue dudit règlement, ces États ne sont pas considérés comme des États membres. En conséquence, les dispositions du règlement (CE) n° 1932/2006 relatives au régime des visas applicable aux réfugiés et aux apatrides ne s'appliquent pas à ces personnes lorsqu'elles résident au Royaume-Uni ou en Irlande. La présente proposition entend remédier à cette situation peu satisfaisante en incluant dans le règlement une disposition concernant les réfugiés et apatrides résidant au Royaume-Uni ou en Irlande.
5) progresser sur la voie d'une harmonisation totale de la politique commune de visas en adoptant de nouvelles règles mieux harmonisées en ce qui concerne l'obligation ou l'exemption de visa applicable aux diverses catégories de ressortissants de pays tiers. La présente proposition vise en particulier à limiter la liberté laissée aux États membres d'accorder l'exemption de visa ou d'imposer une obligation de visa à diverses catégories de personnes mentionnées à l'article 4, par. 1, du règlement (CE) n° 539/2001.
Les mesures suivantes seraient prévues :
6) définir des règles précises concernant l'obligation ou l'exemption de visa applicable aux titulaires de laissez-passer et des différents passeports délivrés par certaines entités. Il existe des entités soumises au droit international, qui délivrent des passeports diplomatiques ou de service ou des laissez-passer, mais qui ne sont pas des organisations intergouvernementales et ne relèvent donc pas actuellement de l'article 4 du règlement (CE) n° 539/2001. En revanche, elles figurent sur le Tableau des documents de voyage et les États membres déclarent s'ils reconnaissent ou non leurs documents de voyage (par exemple, l'Ordre souverain des Chevaliers de Malte). Il convient d'inclure ces entités dans le champ d'application du règlement (CE) n° 539/2001 et les États membres devraient décider s'ils dispensent les titulaires de documents de voyage délivrés par ces entités et en informer la Commission.
7) adopter de nouvelles dispositions relatives aux obligations incombant à certains États membres en vertu d'accords ou de conventions internationaux/de l'UE antérieurs qui impliquent de déroger à la politique commune de visas. Avant l'instauration de la politique commune de l'UE en matière de visas, l'Union européenne et ses États membres avaient conclu avec les pays tiers des accords et conventions internationaux, tels que les accords d'association, traitant notamment de la circulation des personnes et des services, qui sont susceptibles d'avoir une incidence sur l'obligation de visa imposée aux ressortissants de pays tiers. Or ces accords et conventions internationaux conclus par l'Union priment sur les dispositions de la législation dérivée, dont le règlement (CE) n° 539/2001. S'ils comportent une «clause de standstill», il peut en résulter pour certains États membres l'obligation de déroger aux règles de la politique commune de visas, conformément à leurs législations et pratiques respectives applicables ou en vigueur à la date à partir de laquelle la clause de standstill est entrée en application dans ces États. La Commission propose donc d'introduire à l'article 4 une disposition autorisant les États membres à dispenser les prestataires de services de l'obligation de visa, dans la mesure nécessaire au respect des obligations internationales contractées par la Communauté avant l'entrée en vigueur du règlement (CE) n° 539/2001.
INCIDENCE BUDGÉTAIRE : la proposition n'a pas d'incidence sur le budget de l'UE.
The Council adopted a general approach concerning certain elements of the Commission proposal to amend the rules governing the EU's visa-free regime. This allows for negotiations with the European Parliament to start.
To recall, the core of the Commission’s proposal is the introduction of a safeguard clause allowing the temporary reintroduction of the visa requirement for citizens of a third country whose nationals can normally travel to the EU without a visa.
While welcoming the safeguard clause, the Council decided to amend Article 1a. The original proposal for this article set the following condition for a Member State to notify the Commission of an emergency situation that could trigger the safeguard procedure: a sudden increase of at least 50% in relation to illegal stays and/or asylum applications and/or rejected readmission applications.
In the Council's general approach, three main changes were introduced:
The main reason for the changes proposed is to have the Commission focus on the assessment of the real situation described by the Member State presenting the notification.
The safeguard clause as it stands now also provides that, if problems regarding a third country persist, the Commission can propose to move that country permanently from Annex 2 to Annex 1, i.e. to the list of those countries whose nationals are not exempt from having a visa when travelling to the EU.
The Mixed Committee (the EU plus Norway, Iceland, Liechtenstein and Switzerland) discussed the post-visa liberalisation monitoring for the Western Balkan countries and, in particular, the Commission’s third report on the subject.
Delegations expressed concern about a considerable increase in mostly unfounded asylum applications from nationals of several Western Balkan countries and underlined the importance of taking forward measures to remedy the situation. Among other things, dialogue with the countries concerned was seen to be of major importance, and the Commission confirmed that the subject will be addressed at the forthcoming ministerial forum on justice and home affairs between the EU and the Western Balkan countries (5 and 6 November 2012 in Tirana, Albania).
In this context, a large number of delegations also asked to speed up current negotiations with the European Parliament on amendments to the rules governing the EU's visa-free regime. The discussions between Council and Parliament focus on the introduction of a safeguard clause allowing the temporary reintroduction of the visa requirement – in specific circumstances - for nationals of a third country who can normally travel to the EU without a visa (those countries in Annex II). The new rules would also strengthen the notion of reciprocity, i.e. how to deal with situations where a country in Annex II reintroduces a visa requirement for citizens of particular EU Member States or the EU as a whole.
PURPOSE: to revise certain parts of Regulation (EC) No 539/2001 listing 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).
PROPOSED ACT: Regulation of the European Parliament and of the Council.
BACKGROUND: since its adoption, Regulation (EC) No 539/2001 has been amended eight times. All the recent modifications of the Regulation focused on the revision of the positive and the negative visa lists annexed to the Regulation. Over the past few years, the 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, particularly by the adoption of the Visa Code.
Furthermore, ten years after the integration of the Schengen acquis into the framework of the EU and the establishment of the common visa policy, it is necessary to make progress towards further harmonisation of the EU's common visa policy with regard to certain categories listed in the Regulation and left until now to the unilateral decisions of individual Member States.
Lastly, as a result 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.
This proposal aims to reconcile these objectives.
IMPACT ASSESSMENT: no impact assessment was undertaken.
LEGAL BASIS: Article 77(2)(a) of the Treaty on the Functioning of the European Union. (TFEU).
CONTENT: the present modification of the Regulation aims at :
(1) making provision 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. Following the adoption of the visa waiver for Albania and Bosnia Herzegovina, certain Member States suggested the insertion of a safeguard clause into Regulation 539/2001, giving 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.
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. It should cover only a short period of time and 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 the Member States affected.
Before the safeguard clause is triggered, the Commission will have to assess the situation and there should be no automatism flowing from the notifications by Member States. The Commission will 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. The proposal makes provisions ofr information to be available in sufficient time for the European Parliament and the Council to reject or adopt the proposal to amend the lists of Regulation (EC) No 539/2001.
(2) modifying the reciprocity mechanism: 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. However, such a 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 considerably reduced. 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. 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 a tailor-made approach and application of provisional measures in other fields.
(3) ensuring compliance with the Visa Code by providing e.g. for appropriate definitions concerning short stay and visa. Accordingly, a visa is an authorisation of transit through or for an intended stay in the territory of the Member States for 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. 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.
(4) ensuring that the Regulation determines exhaustively whether a third-country national is to be subject to or exempt from the visa requirement. Apart from aligning the definition of "visa" with that in the Visa Code, the proposal seeks to ensure legal clarity 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. 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 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.
(5) 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. The 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.
The following provisions are made:
As regards the holders of such passports of third countries not subject to prior consultation, Regulation (EC) No 789/2001 obliged Member States simply to 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). 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. The Commission considers that there is no need to establish such a specific "common decision mechanism" for this issue, both for institutional and substantive reasons;
(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: 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;
(7) 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. 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.
BUDGETARY IMPLICATIONS: the proposal has no implications for the budget of the EU.
PURPOSE: to revise certain parts of Regulation (EC) No 539/2001 listing 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).
PROPOSED ACT: Regulation of the European Parliament and of the Council.
BACKGROUND: since its adoption, Regulation (EC) No 539/2001 has been amended eight times. All the recent modifications of the Regulation focused on the revision of the positive and the negative visa lists annexed to the Regulation. Over the past few years, the 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, particularly by the adoption of the Visa Code.
Furthermore, ten years after the integration of the Schengen acquis into the framework of the EU and the establishment of the common visa policy, it is necessary to make progress towards further harmonisation of the EU's common visa policy with regard to certain categories listed in the Regulation and left until now to the unilateral decisions of individual Member States.
Lastly, as a result 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.
This proposal aims to reconcile these objectives.
IMPACT ASSESSMENT: no impact assessment was undertaken.
LEGAL BASIS: Article 77(2)(a) of the Treaty on the Functioning of the European Union. (TFEU).
CONTENT: the present modification of the Regulation aims at :
(1) making provision 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. Following the adoption of the visa waiver for Albania and Bosnia Herzegovina, certain Member States suggested the insertion of a safeguard clause into Regulation 539/2001, giving 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.
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. It should cover only a short period of time and 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 the Member States affected.
Before the safeguard clause is triggered, the Commission will have to assess the situation and there should be no automatism flowing from the notifications by Member States. The Commission will 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. The proposal makes provisions ofr information to be available in sufficient time for the European Parliament and the Council to reject or adopt the proposal to amend the lists of Regulation (EC) No 539/2001.
(2) modifying the reciprocity mechanism: 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. However, such a 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 considerably reduced. 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. 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 a tailor-made approach and application of provisional measures in other fields.
(3) ensuring compliance with the Visa Code by providing e.g. for appropriate definitions concerning short stay and visa. Accordingly, a visa is an authorisation of transit through or for an intended stay in the territory of the Member States for 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. 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.
(4) ensuring that the Regulation determines exhaustively whether a third-country national is to be subject to or exempt from the visa requirement. Apart from aligning the definition of "visa" with that in the Visa Code, the proposal seeks to ensure legal clarity 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. 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 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.
(5) 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. The 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.
The following provisions are made:
As regards the holders of such passports of third countries not subject to prior consultation, Regulation (EC) No 789/2001 obliged Member States simply to 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). 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. The Commission considers that there is no need to establish such a specific "common decision mechanism" for this issue, both for institutional and substantive reasons;
(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: 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;
(7) 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. 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.
BUDGETARY IMPLICATIONS: the proposal has no implications for the budget of the EU.
PURPOSE: to revise certain parts of Regulation (EC) No 539/2001 listing 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).
PROPOSED ACT: Regulation of the European Parliament and of the Council.
BACKGROUND: since its adoption, Regulation (EC) No 539/2001 has been amended eight times. All the recent modifications of the Regulation focused on the revision of the positive and the negative visa lists annexed to the Regulation. Over the past few years, the 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, particularly by the adoption of the Visa Code.
Furthermore, ten years after the integration of the Schengen acquis into the framework of the EU and the establishment of the common visa policy, it is necessary to make progress towards further harmonisation of the EU's common visa policy with regard to certain categories listed in the Regulation and left until now to the unilateral decisions of individual Member States.
Lastly, as a result 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.
This proposal aims to reconcile these objectives.
IMPACT ASSESSMENT: no impact assessment was undertaken.
LEGAL BASIS: Article 77(2)(a) of the Treaty on the Functioning of the European Union. (TFEU).
CONTENT: the present modification of the Regulation aims at :
(1) making provision 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. Following the adoption of the visa waiver for Albania and Bosnia Herzegovina, certain Member States suggested the insertion of a safeguard clause into Regulation 539/2001, giving 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.
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. It should cover only a short period of time and 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 the Member States affected.
Before the safeguard clause is triggered, the Commission will have to assess the situation and there should be no automatism flowing from the notifications by Member States. The Commission will 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. The proposal makes provisions ofr information to be available in sufficient time for the European Parliament and the Council to reject or adopt the proposal to amend the lists of Regulation (EC) No 539/2001.
(2) modifying the reciprocity mechanism: 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. However, such a 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 considerably reduced. 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. 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 a tailor-made approach and application of provisional measures in other fields.
(3) ensuring compliance with the Visa Code by providing e.g. for appropriate definitions concerning short stay and visa. Accordingly, a visa is an authorisation of transit through or for an intended stay in the territory of the Member States for 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. 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.
(4) ensuring that the Regulation determines exhaustively whether a third-country national is to be subject to or exempt from the visa requirement. Apart from aligning the definition of "visa" with that in the Visa Code, the proposal seeks to ensure legal clarity 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. 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 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.
(5) 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. The 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.
The following provisions are made:
As regards the holders of such passports of third countries not subject to prior consultation, Regulation (EC) No 789/2001 obliged Member States simply to 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). 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. The Commission considers that there is no need to establish such a specific "common decision mechanism" for this issue, both for institutional and substantive reasons;
(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: 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;
(7) 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. 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.
BUDGETARY IMPLICATIONS: the proposal has no implications for the budget of the EU.
PURPOSE: to revise certain parts of Regulation (EC) No 539/2001 listing 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).
PROPOSED ACT: Regulation of the European Parliament and of the Council.
BACKGROUND: since its adoption, Regulation (EC) No 539/2001 has been amended eight times. All the recent modifications of the Regulation focused on the revision of the positive and the negative visa lists annexed to the Regulation. Over the past few years, the 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, particularly by the adoption of the Visa Code.
Furthermore, ten years after the integration of the Schengen acquis into the framework of the EU and the establishment of the common visa policy, it is necessary to make progress towards further harmonisation of the EU's common visa policy with regard to certain categories listed in the Regulation and left until now to the unilateral decisions of individual Member States.
Lastly, as a result 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.
This proposal aims to reconcile these objectives.
IMPACT ASSESSMENT: no impact assessment was undertaken.
LEGAL BASIS: Article 77(2)(a) of the Treaty on the Functioning of the European Union. (TFEU).
CONTENT: the present modification of the Regulation aims at :
(1) making provision 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. Following the adoption of the visa waiver for Albania and Bosnia Herzegovina, certain Member States suggested the insertion of a safeguard clause into Regulation 539/2001, giving 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.
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. It should cover only a short period of time and 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 the Member States affected.
Before the safeguard clause is triggered, the Commission will have to assess the situation and there should be no automatism flowing from the notifications by Member States. The Commission will 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. The proposal makes provisions ofr information to be available in sufficient time for the European Parliament and the Council to reject or adopt the proposal to amend the lists of Regulation (EC) No 539/2001.
(2) modifying the reciprocity mechanism: 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. However, such a 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 considerably reduced. 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. 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 a tailor-made approach and application of provisional measures in other fields.
(3) ensuring compliance with the Visa Code by providing e.g. for appropriate definitions concerning short stay and visa. Accordingly, a visa is an authorisation of transit through or for an intended stay in the territory of the Member States for 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. 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.
(4) ensuring that the Regulation determines exhaustively whether a third-country national is to be subject to or exempt from the visa requirement. Apart from aligning the definition of "visa" with that in the Visa Code, the proposal seeks to ensure legal clarity 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. 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 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.
(5) 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. The 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.
The following provisions are made:
As regards the holders of such passports of third countries not subject to prior consultation, Regulation (EC) No 789/2001 obliged Member States simply to 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). 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. The Commission considers that there is no need to establish such a specific "common decision mechanism" for this issue, both for institutional and substantive reasons;
(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: 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;
(7) 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. 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.
BUDGETARY IMPLICATIONS: the proposal has no implications for the budget of the EU.
PURPOSE: to revise certain parts of Regulation (EC) No 539/2001 listing 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).
PROPOSED ACT: Regulation of the European Parliament and of the Council.
BACKGROUND: since its adoption, Regulation (EC) No 539/2001 has been amended eight times. All the recent modifications of the Regulation focused on the revision of the positive and the negative visa lists annexed to the Regulation. Over the past few years, the 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, particularly by the adoption of the Visa Code.
Furthermore, ten years after the integration of the Schengen acquis into the framework of the EU and the establishment of the common visa policy, it is necessary to make progress towards further harmonisation of the EU's common visa policy with regard to certain categories listed in the Regulation and left until now to the unilateral decisions of individual Member States.
Lastly, as a result 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.
This proposal aims to reconcile these objectives.
IMPACT ASSESSMENT: no impact assessment was undertaken.
LEGAL BASIS: Article 77(2)(a) of the Treaty on the Functioning of the European Union. (TFEU).
CONTENT: the present modification of the Regulation aims at :
(1) making provision 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. Following the adoption of the visa waiver for Albania and Bosnia Herzegovina, certain Member States suggested the insertion of a safeguard clause into Regulation 539/2001, giving 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.
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. It should cover only a short period of time and 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 the Member States affected.
Before the safeguard clause is triggered, the Commission will have to assess the situation and there should be no automatism flowing from the notifications by Member States. The Commission will 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. The proposal makes provisions ofr information to be available in sufficient time for the European Parliament and the Council to reject or adopt the proposal to amend the lists of Regulation (EC) No 539/2001.
(2) modifying the reciprocity mechanism: 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. However, such a 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 considerably reduced. 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. 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 a tailor-made approach and application of provisional measures in other fields.
(3) ensuring compliance with the Visa Code by providing e.g. for appropriate definitions concerning short stay and visa. Accordingly, a visa is an authorisation of transit through or for an intended stay in the territory of the Member States for 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. 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.
(4) ensuring that the Regulation determines exhaustively whether a third-country national is to be subject to or exempt from the visa requirement. Apart from aligning the definition of "visa" with that in the Visa Code, the proposal seeks to ensure legal clarity 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. 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 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.
(5) 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. The 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.
The following provisions are made:
As regards the holders of such passports of third countries not subject to prior consultation, Regulation (EC) No 789/2001 obliged Member States simply to 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). 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. The Commission considers that there is no need to establish such a specific "common decision mechanism" for this issue, both for institutional and substantive reasons;
(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: 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;
(7) 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. 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.
BUDGETARY IMPLICATIONS: the proposal has no implications for the budget of the EU.