# EUR-Lex - 52011PC0461 - EN

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# 52011PC0461

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1931/2006 as regards the inclusion of the Kaliningrad area and certain Polish administrative districts in the eligible border area /* COM/2011/0461 final - 2011/0199 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

It is in the interest of the enlarged European
Union to ensure that the borders with its neighbours are no barriers to trade,
social and cultural interchange or regional cooperation with neighbouring countries.
Therefore, the Council and the European Parliament adopted in 2006 a Regulation
laying down rules on local border traffic at the external land borders of the
Member States[1]
("Local Border Traffic Regulation") which allows derogating, for
persons living in a border area, from the general rules on border checks set
out in the Schengen Borders Code. The Regulation authorises Member States to
conclude bilateral agreements with neighbouring non-EU countries, provided
these agreements fully comply with the parameters set by the Regulation.

In February 2011, the Commission concluded
in its second report[2]
that the local border traffic regime makes life significantly easier for people
living near the external land borders, while at the same time there is little
evidence that the regime is being abused.

The Commission also stated that given
the specific position of Kaliningrad -the Kaliningrad region of the Russian
Federation with a population of almost one million inhabitants became the only
enclave within the EU as a consequence of the 2004 EU enlargement- an amendment
of the Local Border Traffic Regulation may be justified.

Indeed, the Kaliningrad enclave has an exceptional
geographic position as a relatively small area which is completely surrounded
by two EU Member States; the oblast in its entirety has the character of a
border area. There are no other areas within Europe with a similar geographic
situation constituting an enclave.

In order to avoid Kaliningrad's isolation from its
immediate neighbours, there is a need to facilitate travel for its inhabitants.

Even though the EU-Russian Federation agreement on visa
facilitation in force since 2007 already is a significant step forward to
enhance opportunities for mobility, the local border traffic regime offers
additional facilitations specifically for regular, even daily, needs for travel
within the local area. For examples, applicants will not have to prove
sufficient means of subsistence, the permit may be issued free of charge, or separate
lanes and/or specific border crossing points could be reserved or set up for
local border traffic. Also, all residents of the Kaliningrad area would enjoy
these facilitations, whereas some of the facilitations in the EU-Russian
Federation visa facilitation agreement apply to certain categories of persons
only.

In order also to prevent an artificial division of the
Kaliningrad oblast, whereby some inhabitants would enjoy facilitations for
local border traffic while the majority (including the inhabitants of the city
of Kaliningrad) would not, the entire Kaliningrad area should be eligible as a
border area in a bilateral agreement between a Member State and the Russian
Federation. It should be noted that this eligible border area could not be
extended any further.

In this context, and for the Regulation to have real
effect in that region, a specific border area on the Polish side should be
included in the eligible border area as well, in order to facilitate and
enhance economic and cultural interchange between the Kaliningrad oblast on the
one hand and major centres in the North of Poland on the other.

It is underlined that this exceptional
extension of the border zone in the Kaliningrad area does not affect the
general definition of the eligible border area (the 30/50 km zone). Also, all rules
and conditions in the Local Border Traffic Regulation that guarantee the
security of the entire Schengen area continue to apply. In particular, the
local border traffic permits will continue to have the security features as set
out in the Regulation, and local border traffic permits may only be issued to
applicants who fulfil all conditions set out in the Regulation. Also, Poland is
obliged to ensure that any abuse of the local border traffic regime is subject
to effective, proportionate and dissuasive penalties, which shall include the
possibility of cancelling and revoking local border traffic permits. In this
context, the Polish authorities have already committed themselves to launch
targeted information campaigns and to mark clearly the local border traffic
area.

This proposal will contribute to further
promoting the strategic partnership between the EU and the Russian Federation,
in line with the priorities set out in the Roadmap of the Common Space on
Freedom, Security and Justice regarding cross-border cooperation and shall be
considered in the context of the overall EU - Russian Federation relationship.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES

On the basis of the second Commission
report on the functioning of the Local Border Traffic regime, Member States
discussed the opportunity of addressing the specific solution of the
Kaliningrad enclave in the relevant fora.

A majority of Member States is in favour of
such a solution, on condition that no new discussion would take place on the
general definition of the border zone, and that this exception would constitute
a specific and unique solution for the sole case of the Kaliningrad enclave.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

The proposal is based on Article 77 (2) (b)
of the Treaty on the Functioning of the European Union.

The proposal amends the Local Border
Traffic Regulation, which was based on the equivalent provision of the Treaty
establishing the European Community, i.e. Article 62 (2) (a) (external
borders).

4.           BUDGETARY IMPLICATION

The proposed amendment has no implications for
the EU budget.

2011/0199 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Regulation (EC) No 1931/2006 as
regards the inclusion of the Kaliningrad area and certain Polish administrative
districts in the eligible border area

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 77 (2) (b)
thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)
Union rules on local border traffic, established
by Regulation (EC) No 1931/2006 of the European Parliament and of the Council
of 20 December 2006 laying down rules on local border traffic at the external
land borders of the Member States and amending the provisions of the Schengen
Convention[3],
in force since 2007, have avoided creating barriers to trade, social and
cultural interchange or regional cooperation with neighbouring countries, while
preserving the security of the entire Schengen area.

(2)
The Kaliningrad oblast has an exceptional
geographic situation: as a relatively small area completely surrounded by two
Member States, it constitutes the only enclave in the EU; its shape and the
distribution of its population are such that applying the standard rules on the
definition of the border area would artificially divide the enclave, whereby
some inhabitants would enjoy facilitations for local border traffic while the
majority, including the inhabitants of the city of Kaliningrad, would not. In
light of the homogeneous nature of the Kaliningrad oblast, for trade, social and cultural interchange and regional
cooperation to be enhanced, a specific exception to Regulation (EC) No
1931/2006 should be introduced that would allow the entire Kaliningrad oblast to
be considered as a border area.

(3)
A specific border area on the Polish side should
also be recognised as eligible border area, in order for the application of
Regulation (EC) No 1931/2006 in
that region to have real effect through increased opportunities for trade, social
and cultural interchange and regional cooperation between the Kaliningrad
oblast on the one hand and major centres in the North of Poland on the other.

(4)
This Regulation is without prejudice to the general
definition of the border area and the full respect of the rules and conditions
set out in Regulation (EC) No 1931/2006, including penalties to be imposed by
Member States on border residents who abuse the local border traffic regime.

(5)
This Regulation contributes to further promoting
the strategic partnership between the European Union and the Russian Federation,
in line with the priorities set out in the Roadmap of the Common Space on
Freedom, Security and Justice and takes into account the overall European Union
– Russian Federation relationship.

(6)
Since the objective of this Regulation, namely
to provide for amendment to the existing Union rules on local border traffic,
cannot be sufficiently achieved by the Member States and can be better achieved
at Union level, the Union may adopt measures in accordance with the principle
of subsidiarity as set out in Article 5 of the Treaty on European Union. In
accordance with the principle of proportionality, as also set out in that
Article, this Regulation does not go beyond what is necessary in order to
achieve this objective.

(7)
In accordance with Articles 1 and 2 of Protocol (No
22) on the position of Denmark, annexed to the Treaty on European Union and to
the Treaty on the Functioning of the European Union, Denmark is not taking part
in adoption of this Regulation and is not bound by it or subject to its application.
Given that this Regulation builds upon the Schengen acquis, Denmark shall,
in accordance with Article 4 of that Protocol, decide within a period of six
months after the Council has decided on this Regulation whether it will
implement it in its national law.

(8)
This Regulation constitutes a development of
provisions of the Schengen acquis, in which the United Kingdom does 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 to take part in some of the provisions of the Schengen acquis[4];the United Kingdom is therefore
not taking part in its adoption and is not bound by it or subject to its application.

(9)
This Regulation constitutes a development of
provisions of the Schengen acquis in which Ireland does not participate,
in accordance with 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[5]; Ireland is therefore not taking
part in its adoption and is not bound by it or subject to its application.

(10)
As regards Iceland and Norway, this Regulation
constitutes a development of provisions of the Schengen acquis, within
the meaning of the Agreement concluded by the Council of the European Union and
the Republic of Iceland and the Kingdom of Norway concerning the association of
those two States with the implementation, application and development of the
Schengen acquis[6],
which fall within the area referred to in Article 1, point A, of Council
Decision 1999/437/EC on certain arrangements for the application of that
Agreement[7].

(11)
As regards Switzerland, this Regulation
constitutes a development of the provisions of the Schengen acquis within
the meaning of as provided for by the Agreement between the European
Union, the European Community and the Swiss Confederation on the Swiss
Confederation's association with the implementation, application and
development of the Schengen acquis[8]
which fall within the area referred to in Article 1, point A, of Decision
1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC[9].

(12)
As regards Liechtenstein, this Regulation
constitutes a development of the provisions of the Schengen acquis within
the meaning of the Protocol concluded between the European Union, the European
Community, the Swiss Confederation and the Principality of Liechtenstein on the
accession of the Principality of Liechtenstein to the Agreement between the
European Union, the European Community and the Swiss Confederation on the Swiss
Confederation’s association with the implementation, application and
development of the Schengen acquis which fall within the area referred
to in Article 1, point A, of Council Decision 1999/437/EC of 17 May 1999, read
in conjunction with Article 3 of Council Decision 2011/350/EU[10].

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EC) 1931/2006 is amended as
follows:

(1)          At the end of Article 3 point
2, the following is added:

"The areas listed in the annex to this
Regulation shall be considered as border area."

(2)          An Annex is added as
presented in the Annex to this Regulation.

Article 2

This Regulation shall enter into force on
the 20th day following that of its publication in the Official
Journal of the European Union.

This
Regulation shall be binding in its entirety and directly applicable in the
Member States in accordance with the Treaties.

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

ANNEX

‘Annex:

1. Kaliningrad Oblast

2. Polish administrative districts (powiaty) of
województwo pomorskie: pucki, m. Gdynia, m. Sopot, m. Gdańsk,
gdański, nowodworski, malborski

3. Polish administrative districts (powiaty) of województwo
warmińsko-mazurskie: m. Elbląg, elbląski,
braniewski, lidzbarski, bartoszycki, m. Olsztyn, olsztyński, kętrzyński,
mrągowski, węgorzewski, giżycki, gołdapski, olecki. ’

[1]               Regulation No 1931/2006 of 20 December 2006, OJ L
405, 30.12.2006, p1

[2]               COM (2011) 47 of 9 February 2011.

[3]               OJ L 405, 30.12.2006, p. 1.

[4]               OJ L 131, 1.6.2000, p. 43.

[5]               OJ L 64, 7.3.2002, p. 20.

[6]               OJ L 176, 10.7.1999, p. 36.

[7]               OJ L 176, 10.7.1999, p. 31.

[8]               OJ L 53, 27.2.2008, p. 52.

[9]               OJ L 53, 27.2.2008, p. 52.

[10]             OJ L 160, 18.6.2011, p
19. .