EN Official Journal of the European Union C 108/65

Opinion of the European Economic and Social Committee on the ‘proposal for a Council Regulation on the establishment of a regime of local border traffic at the external land borders of the Member States’ and the ‘proposal for a Council Regulation on the establishment of a regime of local border traffic at the temporary external land borders between Member States’

(COM(2003) 502 final – 2003/0193 (CNS) – 2003/0194 (CNS))

(2004/C 108/13)

On 18 September 2003, the Council decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposals.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 6 January 2004. The rapporteur was Mr Simons.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 28 January), the European Economic and Social Committee adopted the following opinion by 52 votes to three, with no abstentions.

Introduction

The purpose of the European Commission's proposals on the establishment of a regime of local border traffic at the external land borders of the EU Member States (1) and at the temporary external land borders between Member States (2) is to facilitate border crossing for bona fide border residents having legitimate reasons to frequently cross the external land borders and, at the same time, to take account of the need to prevent illegal immigration and potential threats to security posed by criminal activities.

1. Gist of the Commission proposals

1.1 Under the proposal for a regulation submitted as document 2003/0193, the existing and, from 1 May 2004, the new Member States that have a common land border with a neighbouring third country may, if desired, elaborate further on the rules on local border traffic set out below through bilateral, reciprocal agreements.

1.2 Under the proposal for a regulation submitted as document 2003/194, an existing and a new Member State, or two new Member States, that have a common border may, if desired, also elaborate further on the rules set out below through agreements of this kind.

1.2.1 These are temporary rules that may be applied from 1 May 2004 but which will cease to be operative once the new Member States concerned implement the Schengen acquis in full and controls at the common borders are lifted.

1.3 The Commission's purpose in submitting these two proposals is to facilitate border crossing for bona fide border residents having legitimate reasons to frequently cross the external land borders, and also to take account of the need to prevent illegal immigration and potential threats to security posed by criminal activities.

1.4 The European Commission is thus proposing that third-country nationals who regularly reside in an area bordering a neighbouring Member State for a minimum of one year be allowed to cross the external land borders frequently for family, social, cultural, economic or other reasons, outside authorised border crossing points and hours, and be allowed to remain for a maximum of seven consecutive days provided the total duration of the successive visits does not exceed three months within any half-year period.

1.5 Those concerned must have the requisite travel documents. Third-country nationals not requiring a visa will be granted entry on production of their identity card or a specific permit.

1.5.1 Third-country nationals requiring a visa will have to have a specific ‘L’ visa which will be valid for a minimum of one, and a maximum of five years, and will have a uniform format (standard model).

1.6 Those affected by these measures are given access only to the border area, which does not extend more than 50 km and within which zones or towns may be specified as subject to the local border traffic regime.

2. General comments

2.1 The Committee endorses the proposals' objective but wonders about arrangements for establishing that the maximum authorised duration of stay has not been exceeded, especially as, for practical and other reasons, the travel documents concerned cannot or need not be stamped upon entry and exit.

2.2 The European Commission clearly assumes that the checks made for granting the ‘L’ visa are sufficient for the party concerned to be considered bona fide after the visa has been issued. However, as this visa may be valid for anything up to five years, it will be difficult to check that the parties crossing the border – at any rate if they do so outside authorised border crossing points and hours – continue to meet the visa requirements and, for instance, are not in the meantime subject to an alert refusing them entry.

2.3 In any case, this approach is not a satisfactory way to monitor the stays of third-country nationals not requiring a visa who, in this instance, may enter simply on production of their identity card.

2.4 If any parties covered by these measures are nonetheless discovered outside the border area on the territory of another Member State, their stay is considered to be unlawful and they must be expelled from that territory. It would be expedient to lay down that the appropriate Schengen provisions for such expulsions are to apply in cases where no return or readmission agreement is in place with the countries concerned.

3. Specific comments

3.1 Proposal for a Council Regulation on the establishment of a regime of local border traffic at the external land borders of the Member States (2003/0193 (CNS))

3.1.1 Article 3 (definitions)

3.1.1.1 The definition of ‘transfrontier workers’ under point (h) of this article is taken from a proposal for a Council Directive that is still to be adopted on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities.

3.1.1.2 This raises the question, therefore, of whether the provisions laid down for transfrontier workers in the present regulation are, in fact, to apply, or whether they will be replaced by the appropriate provisions of the above-mentioned directive once it has been adopted and transposed into national law.

3.1.2 Article 4 (non-discrimination clause)

3.1.2.1 Given that all Member States have endorsed the Charter of Fundamental Rights of the European Union, it is clear that they will also comply with the provisions of Article 4.

3.1.2.2 While, in matters of readmission or asylum, it is worthwhile pointing out that third-country nationals may not be expelled to or via a third country, and that Member States may recognise them as refugees if they run a genuine risk of persecution in the third country concerned for the reasons set out in Article 4, it seems superfluous to include this clause in provisions relating to local border traffic.

3.1.3 Article 10 (format of the visa)

3.1.3.1 This article stipulates that the visa is to be issued in a uniform format and marked with the distinctive letter ‘L’. This implies that the Schengen area inspection officials must be given clear instructions on this matter, particularly since the letter ‘L’ is also used as the country code for Luxembourg on visas limited to the territory of that country.

3.1.4 Article 20 (Amendment of the Common Consular Instructions)

3.1.4.1 These instructions set out the visa-issuing rules for the visa-issuing bodies. Hence, it is necessary to amend not only Part I, point 2 (definition and types of visa) but also Part V (examination of applications and decisions taken), point 3, and Part VI (how to fill in visa-stickers). The bodies concerned can hardly be expected to have to read an annex to the instructions, before they are able to issue a visa.

3.1.4.2 The Committee would also ask why the second paragraph of point (a) stipulates the minimum, but not the maximum period of validity.

3.1.4.3 Lastly, border inspection officials will also have to be briefed about the rules for local border traffic. The Common Manual of External Borders will thus also have to be modified, but no amendments have been incorporated into the final provisions.

3.1.5 Article 21 (Amendment of the Convention implementing the Schengen agreement)

3.1.5.1 The Commission's purpose in including this article is to delete Article 136(3) of the Convention.

3.1.5.2 A regulation may render certain provisions of the convention inapplicable, but it cannot delete them.

3.2 Proposal for a Council Regulation on the establishment of a regime of local border traffic at the temporary external land borders between Member States (2003/0194 (CNS))

3.2.1 The above comments on the proposal on the establishment of a regime of local border traffic at the external borders of the Member States (document 2003/0193) also apply, as appropriate, to the provisions of this proposal on local border traffic at the temporary external borders between Member States.

4. Conclusions

4.1 The Committee endorses the aims of both proposals on local border traffic – notably to facilitate border crossing for bona fide border residents and, at the same time, to take account of the need to prevent illegal immigration and potential threats to security posed by criminal activities.

4.2 To the extent that this twofold objective cannot be achieved under existing Community law (including the Schengen acquis), the Committee would recommend the following in relation to the proposal for a Council regulation submitted as document 2003/0193:

4.2.1 In order to be able to monitor the maximum authorised duration of stay, the possibility of crossing the border outside authorised crossing points and fixed hours should not be offered (cf. Article 18).

4.2.2 In order to regularly check the bona fide credentials of those concerned by these measures, specific visas should be valid for not more than one year (cf. Article 12).

4.2.3 A reference might be inserted in Article 2 of document 2003/0193 to indicate that Article 23 of the Schengen agreement also applies in cases of expulsion of any third-country nationals discovered outside the border area and thus illegally present elsewhere in the Schengen zone.

4.2.4 As the status of transfrontier workers is not yet settled at Community level, and the Council deliberations on a directive to be adopted on this issue are not yet complete, the definition contained in Article 3(h) (and Article 15 which also refers to transfrontier workers) must be deleted, or at any rate included conditionally, subject to the adoption of that directive.

4.2.5 Article 4 is unnecessary as Member States have to comply with the principle of non-discrimination in the application not just of this regulation, but of all Community and national law. Moreover, to include such an article gives the impression that, in the case of local border traffic, Member States do not intend to comply with this principle at all times. If desired, reference may be made to this fundamental right in the recitals.

4.2.6 As the letter ‘L’ is used as the country code for Luxembourg in visas limited to the territory of that country and thus may confuse inspection officials, care must be taken to ensure that none of the letters used in the specific visa under Article 9 are the same as EU country codes.

4.2.7 To help visa-issuing bodies and border inspection officials, appropriate, more detailed instructions must be set out in the final provisions, both in Article 20 and in a new article.

4.2.8 Article 21 must be omitted or, if necessary, reworded, as an article of the Convention implementing the Schengen agreement cannot be deleted by virtue of a regulation.

Brussels, 28 January 2004. The President of the European Economic and Social Committee Roger BRIESCH

(1) COM(2003) 502 final – 2003/0193 (CNS)

(2) COM(2003) 502 final – 2003/0194 (CNS)