Explanatory Memorandum to COM(2010)662 - List of travel documents entitling the holder to cross the external borders and which may be endorsed with a visa and on setting up a mechanism for establishing this list - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)662 - List of travel documents entitling the holder to cross the external borders and which may be endorsed with a visa and on ... |
|---|---|
| source | COM(2010)662  |
| date | 12-11-2010 |
Article 17 i (a) of the Convention Implementing the Schengen Agreement (CSA) established that "the Executive Committee shall also take the necessary decisions on … the travel documents to which a visa may be affixed. In accordance with that Article, two Executive Committee decisions were drawn up in 1998 and in 1999 'concerning the compilation of a manual of documents to which a visa may be affixed' (SCH/Com-ex (98)56 and SCH/Com-ex (99) 14) and consequently the existing 'Table of travel documents of third country nationals for the purpose of visa issuance and the crossing of borders' was drawn up. Annex 11 to the Common Consular Instructions (CCI) listed certain 'criteria for determining whether a travel document may bear a visa.' However, on 5 April 2010 Regulation 810/2009 of the European Parliament and the Council establishing a Community Code on Visas ("the Visa Code") repealed both Article 17 i of the CSA, which was the legal basis for SCH/Com-ex (98)56, SCH/Com-ex (99)14 and the CCI.
Article 2 i of Council Regulation (EC) No 789/2001 established that "Each Member State shall communicate to the Secretary-General of the Council such amendments as it wishes to make to …… the manual of documents to which a visa may be affixed…". Article 3 of the same Regulation established that "The General Secretariat of the Council shall be responsible for the preparation of revised versions of ….. the manual of documents to which a visa may be affixed…". Also Regulation 789/2001 in turn was also repealed by the Visa Code.
The existing 'Table of travel documents of third country nationals for the purpose of visa issuance and the crossing of borders' (hereinafter referred to 'the Table') consists of five parts:
I: Travel documents to which a visa may be affixed listing documents issued by all third countries whose nationals are subject to visa requirements, the third countries whose nationals are not subject to such requirements and Member States not yet applying the Schengen acquis in full.
II: Aliens' passports issued by the Schengen States to which a visa may be affixed listing the aliens travel document (or alien's passport or non-nationals passport), refugees travel document (Geneva Convention of 28 July 1951), and the stateless persons travel document (New York Convention of 28 September 1954).
III: A list of travel documents issued by international organisations listing 12 documents issued by international organisations.
IV: Gradual compilation of a documentary register containing copies of originals (this part was never drawn up).
V: Information on known fictitious passports.
The Table is periodically updated on the basis of Member States' notifications to the Council General Secretariat. Consolidated versions are published generally once a year.
The purpose of the Table is twofold: on the one hand it allows border control authorities to verify whether a given document is recognised for the purpose of crossing the external borders and on the other it allows consular staff to verify whether all Member States applying the common visa policy recognise a given document for the purpose of affixing the visa sticker. The territorial validity of the visa issued and affixed must correspond to the territory of the Member States recognising the travel document, i.e. if a Member State does not recognise a given travel document, the holder of the travel document will not have access to the territory of that Member State. The rules for issuing visas in such cases are set out in Article 25 i of the Visa Code.
Under Article 5 i (a) of the Schengen Borders Code (SBC), "'third country nationals must possess a valid travel document or documents authorising them to cross the border".
The existing 'Table of Travel documents' which dates back to the intergovernmental period of the Schengen cooperation needs to be adapted to the institutional and legal framework of the European Union .The legal basis for the Schengen provisions on visa policy and on "the standards and procedures to be followed … in carrying out checks on persons at [external] borders" is Article 77 i (a) and (b) of the Treaty on the Functioning of the European Union (TFEU).
Certain provisions of the Visa Code refer to Member States' recognition or non-recognition of travel documents issued by third countries. There is only one implicit reference in the Schengen Borders Code to Member States' recognition or non-recognition of travel documents held by third country nationals wishing to cross the external borders. The existing Table also lists documents entitling their holder to cross the external borders.
To date there is no systematic monitoring of the lists of travel documents issued by third countries. Consequently Member States do not have to indicate their position in relation to recognition or non-recognition of all the documents listed. This creates legal uncertainty for the holders of certain travel documents who risk refusal of entry or who are issued with a visa with limited territorial validity allowing them to travel only to the Member States who recognise their travel document. Moreover, the 'non-recognition' indicated in the Table is often the result not of deliberate decision by the Member State concerned not to recognise the travel document but of a failure to take a position on the travel document in question.
Given Member States exclusive powers over recognition of travel documents it is not possible to set out rules on harmonisation of the recognition of travel documents. This proposal is therefore limited to setting up a mechanism to ensure that the list of travel documents issued by third countries is constantly updated, to establish a centralised mechanism for the technical assessment of such travel documents and, finally, to ensure that Member States express their position in relation to recognition or non-recognition of all the listed travel documents. However, the proposal also allows for exchanges of information within an advisory committee with the aim of reaching a common position amongst Member States on recognition or non-recognition of any given travel document.
Contents
The purpose of the proposal is to set up a mechanism to ensure that the list of travel documents issued by third countries is constantly updated, to establish a centralised mechanism for the technical assessment of such travel documents and, finally, to ensure that Member States express their position in relation to the recognition or non-recognition of these documents. The structure of the list of travel documents has been modernised and linked to Regulation 539/2001, listing the third countries whose nationals must be in possession of a visa when crossing the external borders and those whose nationals are exempt from that requirement.
The Table will also contain information on: travel documents issued by Member States not applying the Schengen acquis on travel documents issued by Member States to third country nationals, to refugees under the Geneva Convention of 28 July 1951 and to stateless persons under the New York Convention of 28 September 1954 and on travel documents issued by international organisations, e.g. the United Nations, the European Union, the North Atlantic Treaty Organisation and the International Committee of the Red Cross.
A link has also been created to the provisions in the Visa Code on local Schengen cooperation (Article 48). Article 48 i (c) stipulates that 'an exhaustive list of travel documents issued by the host country' should be established. This will contribute to keeping the data updated.
The proposal does not include Part V of the existing Table - 'Information on known fictitious passports'. The list of 'non-recognisable' fictitious travel documents cannot be considered as exhaustive and therefore offers little added value.
The legal basis of the proposal is Article 77 i of the TFEU as this is the EU legal basis given to Schengen Executive Committee Decisions SCH/Com-ex (98) 56 and SCH/Com-ex (99) 14 in Council Decision No 1999/436/EC of 20 May 1999 determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen acquis (Annex C, Article 4) i.
The proposal provides for simplification of administrative procedures for public authorities (EU or national). Creation of a centralised mechanism, in the form of an advisory committee which can carry out a technical assessment of travel documents issued by third countries and their level of security will share the burden, as the results of such assessments will be shared between all Member States thus preventing duplication of effort.
Adoption of the proposal will lead to the repeal of existing legislation.
On 3rd October 2008 an experts' meeting on the revision of the Table of travel documents was organised by Commission staff. Experts from 23 Member States participated.
Member States called for a legal instrument:
o establishing a mechanism to ensure that the entries concerning the documents issued by third countries are constantly up to date;
o establishing a centralised mechanism for Member States to carry out a technical assessment of travel documents issued by third countries in order to support Member States' decision-making process on recognition of travel documents;
o establishing a mechanism placing an obligation on Member States to express their position on all travel documents listed;
o possibly, providing for a harmonised position on 'traditional' types of travel documents (ordinary, diplomatic and service/official/special passports);
o basing the Table on Lists I and II of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement;
o maintaining the current structure of the Table but deleting of Part V;
o ensuring that the Table is 'online' and maintained by the Commission. The electronic database should contain specimens of all travel documents listed.
This proposal by the Commission has taken into account all the suggestions made by the experts, except for the wish for greater harmonisation of recognition given the above-mentioned legal constraints and for establishment of an online database containing specimen of all travel documents. While fully supporting the latter, the Commission is of the opinion that the main concerns in relation to the current Table of Travel Documents are the unstructured updating of entries concerning the documents issued by third countries and the negative effects at operational level (in particular in terms of issuing uniform visas) of Member States' failure to take a position on to the recognition or non-recognition. Therefore the first priority should be to establish channels and procedures for solving those problems. Establishment of such a database would take time and consume resources and would simply delay the adoption of the legal instrument to remedy the more pressing problems. On the long-term basis, synergies with the FADO (online system for exchanging information on false and authentic documents set up under the Joint Action 98/700/JHA and operated by the Council General Secretariat) could be obtained by basing an online Table of travel documents on certain elements of the FADO (e.g. images of specimens of travel documents) and thus avoiding onerous overlapping of efforts. The list of travel documents as suggested by the Commission, and subsequent updates, will be available in electronic form in the Circa database.
A meeting document drawn up by the Commission staff for the purpose of the expert meeting, held in October 2008 set out a number of options that were considered by Member States' experts.
The option of establishing a legal instrument providing for a mechanism to provide a list of Travel documents constantly updated in terms of both the information on the travel documents issued by third countries and of the indication of Member States' recognition or non-recognition of these documents was chosen in order to enhance harmonisation while preserving Member States' exclusive powers over recognition of travel documents.
Given that the objectives of the proposal are to adapt the already existing 'Table of Travel documents' to the institutional and legal framework of the European Union, to make the existing system more efficient, and to establish a framework for exchange of information on decisions taken by Member States at national level an impact assessment is not relevant.
The Table of Travel Documents is an indispensable part of the Schengen acquis on borders and visas. The objectives of the proposal are to adapt the already existing 'Table of Travel documents' to the institutional and legal framework of the European Union, to make the existing system more efficient and to establish a framework for exchanges of information on decisions taken by Member States at national level.
Recognition of travel documents is relevant for to the implementation of existing Union legislation (i.e. the Schengen Borders Code and the Visa Code): it is intrinsically linked to application of the provisions of the Schengen acquis relating to checks on persons at the external borders and the issuing of short stay visas. However, given Member States' exclusive powers over the recognition of travel documents, the instrument will take the form of a Decision of the European Parliament and the Council as it is limited to a revision and modernisation of the Table of travel documents.
The proposed Decision has no implication on the European Union budget.