Explanatory Memorandum to COM(2005)381-2 - Simplified regime for the control of persons at the external borders based on the unilateral recognition by the Member States of certain residence permits issued by Switzerland and Liechtenstein for the purpose of transit through their territory - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)381-2 - Simplified regime for the control of persons at the external borders based on the unilateral recognition by the Member ... |
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| source | COM(2005)381  |
| date | 22-08-2005 |
Mutual recognition of travel documents issued by other Member States is one of the basic principles underpinning the creation of an area without internal borders. The objective pursued by this principle is to enable a third country national holder of certain documents issued by a Member State fully participating in the common area to enter and/or circulate freely within the common space without being subjected to any additional requirement. Preconditions for the successful implementation of this principle is the existence of trust and confidence between partners concerning document security and an adequate screening of persons based on common criteria and procedures in order to avoid any risk related to the mobility of this category of persons.
The current Schengen “acquis” establishes the principle of mutual recognition of uniform visa (Art.10 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 between the governments of the States of the Benelux economic union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (hereinafter referred to as the “Schengen Convention”) i, confirmed by Article 2 of Regulation (EC) No 539/2001 i stating that a visa issued by a Schengen Member State is also valid for crossing the external borders of another Schengen Member State for short stay or transit purposes. The current Schengen provisions (Articles 18 and 21 of the Schengen Convention) also foresee a system of mutual recognition of long term visas and residence permits issued by Member States fully implementing the Schengen acquis. This mutual recognition system covers transit (Article 18) and short stay (Article 21) purposes.
As far as new Member States are concerned, the so-called “Schengen two–phase implementation process” provided for in Article 3 of the Act of Accession, implies as regards the visa provisions that although they have to apply, from accession, the provisions of Regulation (EC) 539/2001 and thus to submit third country nationals listed in its Annex 1 to a visa requirement, they must continue to issue their national visas until the adoption of the Council Decision authorizing their full integration into the Schengen area.
The definition of the Schengen visa in Article 2 of Regulation No 539/2001excludes the possibility that a short term visa issued by a State fully implementing the Schengen acquis could be recognized as equivalent to a national visa issued by another Member State not fully integrated into the common area so that the latter Member State may not, on the basis of this lack of equivalence, authorize the transit and the stay in its territory of citizens of third country nationals submitted to a visa obligation without requiring its own national visa. In addition, the Regulation does not foresee the equivalence between residence permits and visas.
Further, the Schengen recognition rules applicable for transit and short stay purposes do not apply upon accession as between old and new Member States. Consequently, new Member States have the obligation upon accession to issue national visas for entry into and transit through their territory, to third country nationals submitted to a visa obligation under Regulation (EC) No 539/2001, even if the persons concerned are holders of a Schengen residence permit or visa or are holders of national long term visas issued by a Schengen state.
Although all the provisions of the “Schengen acquis” on external borders including Article 5 i of the Schengen Convention have been put in the category of Schengen provisions to be applied from accession onwards by new Member States in their mutual relations and in the relations between new and old Member States i this does not imply per se a regime of mandatory mutual recognition of residence permits for the crossing of external borders given that an indispensable basic element for such mutual recognition regime - i.e. the list of residence permits concerned and provided by Annex XI of the Common Manual- has deliberately and explicitly been excluded from category I (the provisions applicable upon accession). This is fully in line with the fact that all provisions of the Schengen acquis establishing a regime of mutual recognition of documents (visa, residence permits…) have been put in category II (provisions to be applied from a date to be determined by the Council). Article 5 i only defines and limits the conditions for entry that need to be controlled.
In the same way, Article 5 i deals with the conditions for entry for third country nationals requiring a visa, without establishing the mutual recognition of short stay visa. Article 5 i builds on the system of mandatory mutual recognition of short stay visa established by Article 10 of the Schengen Convention. This Article 5 i which is also applicable to new Member States from the date of accession does not oblige old Schengen Member States to recognise visa issued by new Member States; nor does it oblige new Member States to recognise Schengen visas.
Moreover, Article 5 i only applies to third country national holders of a residence permit who want to transit through the territory of another Member State in order to return to their residence; it does not apply to such persons who want to transit through the territory of a Member State in order to travel from the Member State of residence to a third country. Nor does the facilitation provided by Article 5 i apply to holders of short stay visa. Thus, this provision does not constitute an appropriate solution to most of the problems described above.
Before their accession to the European Union, some new Member States, due to their geographical location on main transit roads, recognised in practice short term uniform visas, long stay visas and residence permits issued by the Schengen states for transit and/or for short term purpose as equivalent to their national visas. The recognition of such documents was based on bilateral agreements concluded between new Member States and third countries or on unilateral national decisions i. New Member States pointed to the administrative difficulties they are facing since accession to the European Union when they replaced their current recognition practice with a new regime requiring them to issue national visas for transit or short stay purposes to third country nationals who are holders of a Schengen visa or a residence permit or a national long stay visa issued by a Schengen State. In particular, they highlight a significant additional administrative burden for their Embassies and Consular offices in the Member States. They stressed also that the persons concerned by these facilities do not represent any risk for new Member States as they have been submitted to several strict controls and screening by the Schengen States before the issuing of the Schengen visas, residence permits or the national visas.
In addition, the existing rules do not allow Schengen countries to recognise third country residence permits, such as the residence permits issued by Switzerland or Liechtenstein, for transit or short stay purposes into the Schengen territory. This implies that third country nationals, holders of a residence permit issued by Switzerland or Liechtenstein, who are subject to the visa obligation, must apply for a visa when in transit via the common area on return to their country of origin. Given the important seasonal mobility (i.e. during the summer holiday period) the Consular offices of certain Member States in Switzerland and Liechtenstein, which are particularly concerned by these movements because of their geographical location, face a heavy administrative burden due to the need to issue the required visas in a timely manner during the said periods. According to a survey by Switzerland’s Central Register of Foreign Nationals in April 2003, 514.250 persons would be concerned by this seasonal transit. The same concerns are also valid as regards the transit of holders of residence permits issued by Liechtenstein although the figures are smaller i.
As regards the Swiss authorities, they are currently exempting from visa (by means of a law that entered into force in July 2000) holders of residence permits issued by a European Union Member State. This unilateral recognition by Switzerland of resident permits issued by the European Union Member States as equivalent to their national visa covers the transit and the short stay purposes. In the long run, the question of recognition of the Swiss residence permit will be resolved via the Agreement signed on 25/10/2004 in view of the association of Switzerland with the Schengen acquis. However, signature and - consequently - ratification will still take some time. In addition, an evaluation of all necessary preconditions for the implementation of the Agreement needs to be carried out, before Switzerland can fully participate in the Schengen acquis. The current problem nevertheless needs a rapid solution in order to serve the Member States interests.
In the absence of specific provisions in the “acquis” allowing for a positive response to the questions raised, and in order to address the need of Member States for a suitable solution, the Commission examined the possibility of adopting a specific system based on a unilateral recognition approach.
Contents
In order to address the situations described above, Commission considered the necessity for a suitable solution ensuring a high level of security and avoiding undermining the essential principles and the smooth operation of the Schengen area.
As concerns new Member States, an EP and Council Decision establishing a simplified regime for the control of persons at the external borders based on the unilateral recognition during the transitory period by new Member States of certain documents issued by Schengen States and also foreseeing the possibility to extend the recognition regime to include documents issued by other new Member State(s) (point 2.1) .
- the specific needs of new Member States in the area of visa during the transitory period till their full integration into the Schengen area when the rules of mutual recognition foreseen in the acquis will be applicable to them;
- the strict controls and screening to which the third country nationals have been submitted before the issuing of the Schengen or national documents by the competent authorities of the Member States;
As concerns the residence permits issued by Switzerland and Liechtenstein, an EP and Council Decision establishing a simplified regime for the control of persons at the external borders based on the unilateral recognition of certain residence permits issued by Switzerland and Liechtenstein as equivalent to the visa issued by Member States for the purpose of transit through their territory (point2.2).
- the chronic administrative difficulties put forward by some Consular offices of Members States in Switzerland and Liechtenstein related to the issuing of visas to third country nationals legally living and working in these countries;
- the low level of risk for Member States from transit via their territory of holders of residence permits issued by Switzerland and Liechtenstein.