Explanatory Memorandum to COM(2005)56 - Rules on local border traffic at the external land borders of the Member States and amending the Schengen Convention and the Common Consular Instructions - Main contents
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| dossier | COM(2005)56 - Rules on local border traffic at the external land borders of the Member States and amending the Schengen Convention and the ... |
|---|---|
| source | COM(2005)56  |
| date | 23-02-2005 |
The Commission Communication Towards integrated management of the external borders of the Member States of the European Union (COM (2002)233, 7.5.2002) included the development of the acquis on “local border traffic”, i.e. the regular and frequent crossing of the border by persons residing in the border area of a neighbouring country, amongst the issues that needed to be addressed in the short term in order to complete and clarify the Community legal framework on external borders. Indeed, no specific Community provisions regulating the question of local border traffic currently exist i.
The Plan for the management of the external borders of the Member States of the European Union - approved by the JHA Council on 13 June 2002 and subsequently endorsed by the Seville European Council of 21 and 22 June – confirmed the need to adopt measures on local border traffic, “particularly with a view to enlargement”.
Further, the Commission Communication on 'Wider Europe' (COM(2003)104 final, 11.3.2003), clearly stressed that both the EU and its neighbours have a common interest in ensuring that the new external border is not a barrier to trade, social and cultural interchange or regional co-operation.
In order to respond to the Council’s request, the Commission put forward two proposals for Council Regulations already in August 2003 i. The two proposals were based on Article 62 i of the EC Treaty (“measures on the crossing of the external borders of the Member States”), covering both “standards and procedures to be followed by Member States in carrying out checks on persons” (Article 62(2)(a)) and the “procedures and conditions for issuing visas by Member States” (Article 62(2)(b)(ii)), including “rules on a uniform visa” (Article 62(2)(b)(iv)).
Originally, the Commission considered that it would be possible to have the proposals adopted before 1st May 2004; however, discussions on these proposals within the Council have been very difficult and progress was thus very limited.
As of 1st May 2004 measures based on Article 62(2)(b)(ii) and on Article 62(2)(b)(iv) shall be adopted by the European Parliament and the Council in accordance with the co-decision procedure (Article 67(4)). Measures based on Article 62(2)(a) are still to be adopted unanimously by the Council after consulting the European Parliament.
The two procedures being incompatible, in accordance with a well-established case-law of the Court of Justice i, it was no longer possible to have, within the same proposal, provisions related to checks at the external borders and provisions concerning the establishment of a specific visa to be issued to border residents on grounds of local border traffic.
This is the reason why it was decided to draft two new proposals, i.e.:
1) a first proposal for a Council Regulation, based on Article 62(2)(a) (consultation procedure), laying down general rules on local border traffic, with the exception of the provisions introducing the specific visa;
2) a second proposal for a European Parliament and Council Regulation, based on Article 62(2)(b), points ii) and iv) (co-decision procedure) establishing a specific “L” visa to be issued for the purpose of local border traffic.
When adopting the new proposals, the Commission would simultaneously withdraw those adopted on 14.8.2003.
Adoption of these new proposals by the College was planned in December 2004.
However, as a consequence of the adoption of “The Hague Programme” by the European Council of 4/5 November 2004, the Council took the decision of extending the co-decision procedure to certain areas covered by Title IV of the EC Treaty, including measures related to external borders.[4]
Consequently, from 1.1.2005 both the external borders and the visa-related aspects currently covered by the two proposals on local border traffic will be subject to the co-decision procedure.
This means that it is no longer necessary to make two separate proposals on local border traffic (one on border-related aspects and a second one on the special “L” visa) and that the two proposals can be merged into one.
This new, “merged” proposal will replace the 2003 proposals, which will be withdrawn by the Commission simultaneously with the adoption of the current one.
Contents
- 2. CONTENT OF THE PROPOSAL
- 3. CHOICE OF THE LEGAL BASIS
- 4. SUBSIDIARITY AND PROPORTIONALITY
- 5. APPLICATION OF THE PROPOSAL TO THE DIFFERENT MEMBER STATES AND THIRD COUNTRIES ASSOCIATED TO THE DEVELOPMENT OF THE SCHENGEN ACQUIS
- 5.1 Consequences in relation to the various protocols annexed to the Treaties
- United Kingdom and Ireland
- Denmark
- Norway and Iceland
- Switzerland
- 5.2 Consequences in relation to the two-phase implementation procedure of acts building upon the Schengen acquis
The purpose of the proposed Regulation is to lay down common rules on the criteria and conditions for establishing a regime of local border traffic at the “external land borders” of the Member States, i.e. the common land border between:
a) a Member State and a neighbouring third country (e.g., the border between Poland and Ukraine or between Slovenia and Croatia);
b) a Member State fully implementing the Schengen acquis and a Member State bound to apply such acquis in full but for which the Council decision authorising it to fully apply that acquis has not entered into force (e.g., the border between Austria and Hungary);
c) two Member States bound to apply the Schengen acquis in full, but for which the Council decision authorising them to fully apply that acquis has not entered into force (e.g., the border between the Czech Republic and Poland).
Points b) and c) are the consequence of the so-called “two-phase implementation procedure” of the Schengen acquis, whereby new Member States only apply part of the Schengen acquis upon their accession (see also point 5.2 below). This includes the provisions on external border controls (to be applied at all borders) but, logically, not those related to the lifting of controls on persons at internal borders. This is why the proposed Regulation also covers the establishment of a local border traffic regime in order to facilitate the crossing of the “temporary external land borders” between Member States.
It shall be noted, however, that the personal scope of the draft Regulation only covers third-country nationals (with some exceptions – see below) lawfully resident in the border area of a neighbouring country for at least one year (“border residents”, as defined in Article 3(e)). EU citizens, as well as third country nationals enjoying the Community right to free movement (as defined in Article 3(d)), have been explicitly excluded from the scope because they already enjoy, under Community law, specific rights related to free movement which, generally speaking, go beyond what is foreseen in the present proposal (for instance, as regards time-limits for stay, or entry conditions). Community rules on local border traffic cannot, obviously, affect such rights.
However, where the facilitation of border crossing granted under a local border traffic regime to border residents goes beyond the right to free movement (for instance, by giving the possibility of crossing the border at specific border crossing points reserved to border residents, where there is a less systematic control, or outside authorised border crossing points and fixed hours), such facilitation shall be automatically extended to citizens of the Union and to third country nationals enjoying the Community right to free movement residing in the border area (Article 17(2)).
Apart from the practical ways of facilitating the crossing of the border provided for in Article 17, the draft Regulation defines the specific conditions and documents required for crossing the border for the purpose of local border traffic (Articles 4 and 5).
Furthermore, as regards border residents subject to the visa obligation, a specific visa (“L”, from “Local”) is introduced. The “L” visa would be a multiple-entry visa issued for at least one year and for maximum five years, entitling the holder to stay in the border area of the issuing Member State for 7 consecutive days maximum and without exceeding, in any case, three months within any half-year period.
The procedures and criteria to be followed for the issuing of such visas would be, for the Member States fully implementing the Schengen acquis, conforming to the provisions of the Common Consular Instructions (CCI) i. Member States not fully implementing the Schengen acquis would apply - until the Council authorises them to fully apply such acquis - their national legislation, which shall nevertheless be compatible with the rules laid down in this Regulation.
While this Regulation sets a Community regime on local border traffic, thus conferring on the Community external competence on this matter, it has been considered appropriate - taking into account the specific nature of a local border traffic regime, whose establishment largely depends on local geographical, social, economic and other considerations - to delegate to Member States the actual implementation of such regime via bilateral agreements. This Regulation therefore authorises Member States to negotiate bilaterally with their neighbours, if appropriate, the specific arrangements applicable to local border traffic at their common land border, provided that such arrangements comply with and do not affect the provisions established by this Regulation (see Article 14).
The possibility of envisaging a local border traffic regime with neighbouring third countries entails the need to ensure that an - at least - equivalent treatment is granted by such third countries to EU citizens and third-country nationals lawfully resident in the border area of a Member State, who wish to cross the border of a neighbouring third country and stay in its border area for the purpose of local border traffic (see Article 15).
Member States may also maintain or conclude agreements between themselves on local border traffic, provided that they are compatible with the present Regulation (Article 16). It is obvious that, once border controls will be lifted at the “temporary external borders”, these agreements will loose their raison d’être .
Taking into account its content, the present Regulation is based on both Article 62(2)(a) (rules on “standards and procedures to be followed by Member States in carrying out checks on persons at [ external ] borders”) and Article 62(2)(b), points (ii) and (iv), concerning, respectively, rules on “the procedures and conditions for issuing visas by Member States” and “on a uniform visa”.
Following the entry into force, on 1st January 2005, of Council decision 2004/927/EC providing for certain areas covered by Title IV of Part three of the Treaty establishing the European Community to be governed by the procedure referred to in Article 251 of that Treaty, the current proposal will be subject to the co-decision procedure.
The current Community provisions on the crossing of the external borders of the Member States, as well as those on the rules for issuing the uniform visa, are part of the Schengen acquis integrated into the European Union. Such acquis needs, however, to be developed and completed. The development of the existing acquis on external borders, by reasons of the scale and effects of the action, can only be achieved by adopting Community measures building upon it. As far as the rules on the uniform visa are concerned, including the procedures and conditions for issuing such visa, the Community competence is exclusive.
However, by its own nature, a regime of local border traffic can only be put in practice on the initiative of the concerned Member States, which are therefore authorised to conclude bilateral agreements with neighbouring third countries, if they consider it appropriate, in order to establish a local border traffic regime, while obviously respecting and complying with the conditions and criteria set by Community law.
Article 5 of the EC Treaty provides that “the action by the Community shall not go beyond what is necessary in order to achieve the objectives of this Treaty”. The form taken by Community action shall allow the proposal to attain its objective and to be implemented as efficiently as possible.
In this spirit, the legal instrument chosen to establish general rules on local border traffic is a Regulation addressed to the Member States, which sets the rules to be respected by Member States when establishing a local border traffic regime with neighbouring countries. As the proposed initiative is developing the Schengen acquis, the form of a Regulation has been chosen in order to assure a harmonised application in all Member States applying the Schengen acquis.
5. APPLICATION OF THE PROPOSAL TO THE DIFFERENT MEMBER STATES AND THIRD COUNTRIES ASSOCIATED TO THE DEVELOPMENT OF THE SCHENGEN ACQUIS
The legal basis for proposals concerning measures on the crossing of the external borders of Member States, as well as rules on the uniform visa, falls within Title IV of the EC Treaty and thus implies the variable situation as laid down by the protocols on the position of the United Kingdom, Ireland and Denmark. The present proposal is building upon the Schengen acquis. In this regard, the situation of Norway, Iceland and Switzerland, countries associated to the development of such acquis, shall also be taken into account. Therefore the following consequences in relation to the various protocols have to be considered:
According to Article 4 and 5 of the Protocol integrating the Schengen acquis into the framework of the European Union, “Ireland and the United Kingdom of Great Britain and Northern Ireland, which are not bound by the Schengen acquis, may at any time request to take part in some or all of the provisions of the acquis”.
This proposal constitutes a development of provisions of the Schengen acquis, in which the United Kingdom and Ireland do not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland, and Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis. The United Kingdom and Ireland are therefore not taking part in its adoption and are not bound by it or subject to its application.
By the Protocol annexed to the Amsterdam Treaty on the position of Denmark, Denmark does not take part in the adoption by the Council of measures pursuant to Title IV of the EC Treaty, with the exception of “measures determining the third countries whose nationals must be in possession of visas when crossing the external borders, or measures relating to a uniform format for visas” (former Article 100c of the EC Treaty).
As this proposal constitutes a development of the Schengen acquis and following Article 5 of the Protocol, “Denmark shall decide within a period of 6 months after the Council has decided on a proposal or initiative to build upon the Schengen acquis under the provisions of Title IV of the Treaty establishing the European Community, whether it will implement this decision in its national law”.
In accordance with Article 6 first indent of the Schengen Protocol, an agreement has been signed on 18 May 1999 between the Council, Norway and Iceland in order to associate those two countries with the implementation, application and development of the Schengen acquis i.
Article 1 of this agreement stipulates that Norway and Iceland are associated with the activities of the EC and the EU in the areas covered by the provisions referred to in Annexes A (provisions of the Schengen acquis) and B (provisions of acts of the European Community, which have replaced corresponding provisions of, or adopted pursuant to, the Schengen Convention) of the agreement as well as by those which will follow from them.
According to Article 2 of the agreement, the provisions of all acts or measures taken by the European Union amending or building upon the integrated Schengen acquis (Annex A, B) shall be implemented and applied by Norway and Iceland.
The present proposal builds upon the Schengen acquis as defined in Annex A of the agreement.
As a consequence its has to be discussed in the 'Mixed Committee' as provided for in Article 4 of the Agreement to give the possibility to Norway and Iceland 'to explain the problems they encounter in respect of' the measure and 'to express themselves on any questions concerning the development of provisions of concern to them or the implementation thereof'.
As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement signed by the European Union, the European Community and the Swiss Confederation on the latter's association with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 4 i of Council decision 2004/860/EC on the signing, on behalf of the European Union, and on the provisional application of certain provisions, of that Agreement.
The Agreement with Switzerland, signed on 26.10.2004, provides for provisional application of certain provisions upon signature, in particular the participation of Switzerland in the Mixed Committee dealing with the development of the Schengen acquis.
5.2 Consequences in relation to the two-phase implementation procedure of acts building upon the Schengen acquis
Article 3 i of the Act of Accession of the 10 new Member States provides that the provisions of the Schengen acquis, the acts building upon it or otherwise related to it, listed in the annex referred to in that Article, shall be binding on and applicable in the new Member States as from accession. The provisions and acts not referred to in that annex shall, while being binding on the new Member States as from accession, be applicable in the new Member States following a special Council decision to that effect, made in accordance with Article 3 i of the Act of Accession.
With regard to the Schengen provisions on external borders, they are listed in that annex and are thus binding and applicable in the new Member States as from accession i.
The Schengen provisions on the uniform visa are not listed in that annex and therefore, while being binding upon accession, will be applicable in the new Member States only following the Council decision referred to above i.
Therefore, the current proposal is only partly applicable to the new Member States; in particular:
- Chapters I, II, IV, and V are fully applicable to the new Member States, with the exception of Articles 4(d) and 22;
- Chapter III (on the “L” visa) will only be applicable to the new Member States from the date in which the Council takes the decision referred to in Article 3 i of the Act of Accession. This means that, until then, the new Member States will issue national visas to border residents for the purpose of local border traffic, in accordance with their national procedures. However, such visas shall be issued in the uniform format (visa sticker) established by Council Regulation No 1683/95 (as amended by Council Regulation No 334/2003), since the said Regulation is included in the annex referred to in Article 3 i of the Act of Accession i.