Explanatory Memorandum to COM(2000)577 - List of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (presented by the Commission pursuant to Article 250(2) of the EC Treaty) Corrigendum - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2000)577 - List of third countries whose nationals must be in possession of visas when crossing the external borders and those whose ... |
|---|---|
| source | COM(2000)577  |
| date | 21-09-2000 |
The Commission is presenting this amended proposal for a Regulation both in response to Parliament's legislative resolution of 5 July 2000 on its proposal of 26 January 2000 and to take account of the work done so far on the proposal within the Council.
The Lehne report adopted on 21 June 2000 by the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs gave firm support to the Commission's proposal and also suggested eight amendments. At Parliament's sitting of 3 July 2000 the Commission set out its position on those amendments and this amended proposal reflects the undertakings it gave.
The work done in the Council was another valuable contribution, prompting further reflection on the original proposal. Building on this, the Commission has enhanced or improved the proposed text without undermining the objectives it had in mind when submitting the original proposal. The amended proposal thus reflects the outcome of discussions in the Council on a number of points.
The following commentary on the articles and annexes explains the proposed amendments and indicates the reasons behind them, some of them reflecting both Parliament's resolution and the discussions in the Council.
2.1. Recitals:
(a) Recital 2 (new): The addition of this recital is a consequence of the position taken by the Commission before Parliament on two amendments and also reflects discussions in the Council. In both instances a wish was expressed that the provisions of the Regulation itself should clarify the links between it and other existing provisions or instruments. The Commission explained to the House that it could not agree to the inclusion of such clarifications (already partly covered by the explanatory memorandum) in the form of articles, but that it was not opposed to including them in the form of a recital. This is the purpose of the proposed new recital 2.
(b) Recital 3 (former recital 2): This recital has been expanded to take account of the addition to Article 1 i of a new subparagraph concerning reciprocity (see the commentary on Article 1 below).
(c) Former recital 3: The proposed deletion of this recital is a consequence of the proposed deletion of former Article 3 (see commentary on that Article).
(d) Recital 4 (new): The addition of this recital is due to the deletion of the reference to Iceland, Liechtenstein and Norway in Annex II to the Regulation (see the commentary on Annex II).
(e) Recital 10: The addition of this recital reflects the wish expressed during discussions in the Council to clarify the position of Iceland and Norway in respect of the Regulation.
2.2. Articles:
(a) Article 1
-Paragraph 2: It is proposed that the phrase 'for stays of no more than three months' should be added at the end of the first subparagraph. The original version of the Regulation specified the maximum length of stay covered by a visa (see the visa definition in Article 2) but was silent on the maximum length of stay that was exempt from the visa requirement. Under the Treaty the period is the same for both types of stay. The proposed addition is therefore intended to fill the gap left in the original proposal.
-It is also proposed to add a new subparagraph to paragraph 2. This addition is the result of discussions in the Council and represents a major improvement to the proposed Regulation. The discussions highlighted that the Regulation is silent on how to react in situations where the appropriate response mechanisms are currently laid down in bilateral visa exemption agreements that the Member States have concluded with various third countries. These agreements are based on the principle of reciprocity, whereby the unilateral reimposition of the visa requirement by one of the parties to such an agreement generally entails the reimposition of that same requirement by the other party to the agreement. This kind of response is implemented by invoking the suspension or denunciation clauses of the bilateral agreement. The proposed new subparagraph, based on work done by the Council on the issue, aims to set in place a reciprocal mechanism making it possible to react against any third country in Annex II that might reimpose a visa requirement on nationals of a Member State. However, any such reaction now falls within the new context of Article 62(2)(b)(i): determining the countries whose nationals are exempt from the visa requirement is a matter of exclusive Community competence and therefore, pending the conclusion of future agreements between the Community and third countries on exemption from the visa requirement, suspending any such exemption must now be done by means of a Community mechanism. This is the purpose of the new subparagraph.
-Paragraph 3: The proposed addition of the word 'new' is a drafting improvement, making it clearer that it refers to the case where a State is succeeded by new ones.
(b) Article 2
-The proposed wording changes are in response not only to two of Parliament's amendments but also to the concerns expressed during discussions in the Council.
-The changes are intended to avoid formulations that pose a danger of conflict with existing provisions elsewhere under the Schengen acquis. Although the Regulation does not affect provisions on visas elsewhere that do not relate to the country lists, as stressed in the explanatory memorandum of the initial proposal and now reflected in a new recital in this amended proposal for a Regulation, it is still essential for the sake of legal certainty to avoid any contradiction with other existing provisions elsewhere.
-The deletion of the phrase 'for entry into its territory' makes the wording compatible with the Schengen rule whereby a uniform Schengen visa issued by Schengen State A enables the holder to enter the territory of Schengen State B.
-The rewording of the second indent is also designed to avoid contradiction with the Schengen rules, using the term 'airport transit' that appears in point 2.1.1. of the Common Consular Instructions.
(c) Former Article 3
-In its legislative opinion the European Parliament voted in favour of an amendment deleting Article 3. The Commission stated that it was prepared to accept the amendment. Doubts had also been expressed as to whether the Article was justified.
-The amended proposal therefore no longer includes the original Article 3. The view is that equivalence between a residence permit issued by a Member State and a visa for crossing the external borders could be incorporated in a future instrument on rules for a uniform visa. The deletion of Article 3 poses no danger of a legal void since the Schengen States already apply the rule that a residence permit is equivalent to a visa, while the non-Schengen States (Ireland and the United Kingdom) are not involved in the adoption of the proposed Regulation since they did not exercise their option to participate under the terms of Protocol annexed to the Treaty of Amsterdam on the position of those Member States.
(d) Article 3 (former Article 4)
-The purpose of the additions is to incorporate the specific references that appeared in the explanatory memorandum accompanying the original proposal.
(e) Article 4 (former Article 5)
-Paragraph 1: The layout of the opening of this paragraph has been changed to make it clearer, by the use of two indents, that exceptions can work both ways, applying either to the visa requirement or to exemption from that requirement. As far as exceptions to exemption are concerned, the wording now states explicitly that this question will in due course be covered by agreements to be concluded between the Community and the third countries.
-The words added to point (d) do not affect the substance, but are merely intended to make it clearer. The change to point (e), reducing the scope in terms of persons covered by exemption, is justified by the need to avoid contradiction with the Schengen rules (Annex 2 to the Common Consular Instructions).
-New point f: Discussions in the Council brought to light a factor that had not been taken into account in the Commission's original proposal. Some Member States exclude persons entering their territory to pursue a gainful activity from the exemption from the visa requirement. The existence of such exclusions is indicated for information in the Commission communication on the implementation of Regulation (EC) No 574/99. So that these exclusions are not prohibited when the new Regulation comes into force, it was deemed necessary to provide for the possibility of such exceptions to exemption from the visa requirement.
-The wording of the proposed new point (f) takes account of the future implications of the institutional context. Such exceptions should, at some future stage, be covered by an agreement between the Community and any particular third country.
(f) Article 5 (former Article 6)
-This amendment is due to the deletion of Article 3.
(g) Article 6 (former Article 7)
-Only parts I, II and III of Annex 5 of the Common Manual correspond to Annex 1 of the Common Consular Instructions. Part IV of Annex 5 to the Common Manual is therefore not affected, which is reflected in the proposed addition.
(a) Annex I:
-The tenor of Annex I remains unchanged as compared with the original proposal.
(b) Annex II:
-In the original proposal Iceland, Norway and Liechtenstein appeared at the end of Annex II, with a footnote reference to the European Economic Area. It was considered preferable not to include these three countries in Annex II but to add an explanatory recital (see above) including a reference to the European Economic Area.
-As regards Hong Kong and Macao, the heading of the second part of the Annex was considered inappropriate in view of the characteristics of the two entities concerned. It was thought preferable to use the administrative denomination applicable to them. The original proposal referred in Annex II to the two entities without further particulars, leaving some doubt as to precisely which persons came within the scope of exemption from the visa requirement. The amended proposal indicates in a footnote that it applies only to holders of passports issued by these two administrative regions.