[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 28.7.2006

COM(2006) 403 final/2

2006/0142 (COD)

CorrigendumTitre et fautes de frappeConcerne les versions : FR DE EN.

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

establishing a Community Code on Visas

(presented by the Commission) {SEC(2006) 957}{SEC(2006) 958}

EXPLANATORY MEMORANDUM

1) CONTEXT OF THE PROPOSAL

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- Grounds for and objectives of the proposal

Within the closer Schengen cooperation, a common visa policy was identified as a fundamental component of the creation of a common area without internal border controls.

The Schengen acquis on visa policy, including the Common Consular Instructions (CCI), which were drawn up in the framework of the Schengen intergovernmental cooperation, was incorporated into the institutional and legal framework of the European Union following the entry into force of the Treaty of Amsterdam. The Schengen provisions on visa policy have been allocated a legal basis[1] (Article 62(2)(b)) and are therefore full part of Community law). The CCI are currently the basic instrument governing the procedures and conditions for the issuance of short-stay visas, transit visas and airport transit visas, although certain principles also appear in the Schengen Convention itself and a number of provisions feature in other separate decisions.

The Hague Programme "underlines the need for further development of the common visa policy as part of a multi-layered system aimed at facilitating legitimate travel and tackling illegal immigration through further harmonisation of national legislation and handling practices at local consular missions." To this end, among other measures, the Commission was invited "to review the Common Consular Instructions”. In order to meet the objectives of the Hague Programme and reinforce the coherence of the common visa policy on the issuance of the above-mentioned types of visas, the proposed Regulation:

- incorporates all legal instruments governing decisions in relation to visas into one Code on Visas,

- develops certain parts of the current legislation in order to take account of recent developments and new dimensions of the visa issuance process and to fill in existing gaps;

- enhances transparency and legal certainty by clarifying the legal status of the provisions of the CCI and its annexes by removing provisions that are redundant or of a practical operational nature from the legal instrument;

- strengthens procedural guarantees by laying down rules on the mandatory motivation of refusals of visa applications;

- reinforces the equal treatment of visa applicants by clarifying a number of issues in order to enhance the harmonised application of the legislative provisions.

- General context

The issuance of short-stay visas is currently governed by various legal instruments, as set out in the chapter below. Thus the "reviewing" exercise will simplify the legal framework, as the common visa policy will henceforth be governed by the four legal instruments listed below:

- 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 (legal basis: TEC 62(2)(b)(i);

- Council Regulation (EC) No 1683/95 of 29 May 1995 laying down the uniform format for visas (legal basis: TEC 62(2)(b)(iii);

- Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form (legal basis: TEC 62(2)(b)(iii);

- the present Regulation establishing a Code on Visas (legal basis: TEC 62(2)(a), (b)(ii) and (iv) and 62(3)).

It is recalled that due to the difference in legal basis, and the "variable geometry" linked to the legal basis, the maintenance of four separate instruments is necessary.130

- Existing provisions in the area of the proposal

- 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;

- Council Regulation (EC) No 1683/95 of 29 May 1995 laying down the uniform format for visas;

- the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders (in particular articles 9-18, which lay down common and uniform principles in that field);

- Council Regulation No 415/2003 of 27 February 2003 on the issue of visas at the border, including the issue of such visas to seamen in transit;

- the Common Consular Instructions on visas for the diplomatic missions and consular posts (CCI) which set out detailed rules for implementing these principles and bring together nearly all provisions related to the issuance of short-stay visas;

- Council Regulation (EC) No 1091/2001 of 28 May 2001 on the freedom of movement with a long-stay visa;

- Decisions of the Schengen Executive Committee (SCH/Com-ex (93) 21, SCH/Com-ex (93) 24, SCH/Com-ex (94) 25, SCH/Com-ex (98) 12 and SCH/Com-ex (98) 57;

- Joint Action 96/197/JHA of 4 March 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union sets out arrangements for airport transit visas.

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- Consistency with the other policies and objectives of the Union

In the review and amendment of current rules on the issuance of visas, account has been taken of the recently adopted Schengen Borders Code in order to ensure coherence in legislation.

Processing of visa applications should be conducted in a professional and respectful manner and be proportionate to the objectives pursued. While performing their tasks, consular staff shall not discriminate against persons on any of the following grounds: sex, racial origin, religion or belief, disability, age or sexual orientation.

2) CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT

- Consultation of interested parties

Due account have been taken to problems raised by the authorities of third countries in relation to Member States treatment of visa applicants and to complaints submitted by individual visa applicants or their relatives.

- Collection and use of expertise

Account has been taken of discussion among Member States delegates in the Council Visa Working Party on problems in relation to the issuance of visa, as well as of findings of experts in both the Targeted Missions on local consular cooperation, the Schengen evaluation missions.

- Impact assessment

The Commission carried out an impact assessment which analysed six options for action: maintaining "status quo", establishment of common training of Member States' consular staff, reinforcement of local consular cooperation, minimal revision of current legislation, recast of current legislation, creation of common consular offices. The latter option of reviewing has been chosen as the solution to establish a coherent and exhaustive legislation and enhancing harmonisation in the most satisfactory and comprehensive manner. The impact assessment is attached to this proposal.

3) LEGAL ELEMENTS OF THE PROPOSAL 305

- Summary of the proposed action

By incorporating all legal instruments governing the conditions and procedures for issuing visas into one Code on Visas, enhancing transparency and clarifying existing rules, introducing measures intended to increase the harmonisation of procedures, strengthen legal certainty and procedural guarantees, a full common policy with equal treatment of visa applicants is ensured.310

- Legal basis

The proposed legal basis for this regulation are the following:

- basically, Articles 62(2)(b)(ii) of the EC Treaty (TEC) because the proposed legislation establishes common "rules on visas for intended stays of no more than three months";

- also Article 62(2)(a) of the TEC on "standards and procedures to be followed by Member States in carrying out checks on persons at such external borders", in order to integrate provisions on airport transit visa (ATV) into the unique Code on Visas. The ATV is not a "proper" visa intended for a stay in the territory of the Member States and, thus, does not fall under the notion of visa as per Article 62(2)(b). It is an authorisation given prior to a third country national's transit through the international area of Member States' airports, in order to prevent illegal entries. It can thus be considered as "standards and procedures" relating to border control and prevention of illegal immigration.

Subsidiarity principle

Under Article 62(1) and (2)(b) of the EC Treaty, the Community has the power – and even the obligation - to adopt measures relating to rules on visas for intended stays of no more than three months. Such measures must be adopted within five years of the entry into force of the Treaty of Amsterdam.

The current Community provisions on short-stay and transit visas form part of the Schengen acquis that has been integrated into the framework of the European Union. However, the existing acquis needs to be clarified, developed and supplemented. This is also the case for the current provisions on airport transit visas. Obviously, the existing acquis on short-stay and transit visas and airport transit visas can only be developed by adopting Community measures based on the EC Treaty.

Given that the proposed initiative - the creation of a Community Code on Visas - the instrument is to be in the form of a regulation, in order to ensure that it is applied in the same way in all the Member States that apply the Schengen acquis.

The objective of this exercise is to review existing legislation on the common visa policy and to enhance harmonisation. Thus, individual action on the part of Member States would be impossible for legal reasons.

Community action is the only possible way to achieve the objectives of the proposal for the following reason(s):

Only EU action is possible given the legal basis and the objectives of the proposal.

The proposal therefore complies with the subsidiarity principle.

- Proportionality principle

The proposal complies with the proportionality principle for the following reason(s).

Article 5 of the EC Treaty states that "action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty".

The form chosen for this Community action must enable the proposal to achieve its objective and be implemented as effectively as possible.

The proposed Regulation has no financial impact on Member States' diplomatic missions or consular offices and the administrative impact of the new requirement is proportionate to the objective pursued.

- Choice of instruments

Proposed instruments: Regulation.

The provisions on the procedures for all decisions in relation to visas are mandatory for all Member States applying the Schengen acquis in full and thus a regulation is the only adequate legal instrument.

4) BUDGETARY IMPLICATION

The proposal has no implication for the Community budget.

5) ADDITIONAL INFORMATION

- Simplification

The proposal provides for simplification of legislation.

Various legal instruments governing the procedures and conditions for issuing visas are put into one Code on Visas.

- Repeal of existing legislation

The adoption of the proposal will lead to the repeal of existing legislation.

- Reviewing

The proposal involves reviewing.

- Correlation table

A correlation table indicating the provisions taken on board from CCI and Schengen agreement is attached to this proposal.

- Detailed explanation of the proposal

1. Incorporation into one Code on Visas of all provisions governing the issuance of visas and decisions in relation to refusal, extension, annulment, revocation and shortening of visas issued

1.1. Airport Transit Visa (ATV)

The provisions of the Joint Action, mentioned above, are contained in the CCI, to which the lists of nationals who are subject to this requirement are annexed. In order to enhance transparency and harmonisation the large number of - generally identical - "unilateral" exemptions of certain categories of persons from this requirement have been harmonised.

In order to achieve the general objective of harmonisation of all aspects of visa policy, the possibility for individual Member States to impose an ATV requirement on certain nationalities has been abandoned.

1.2. The issuance of visas at the border

Council Regulation (EC) No 415/2003 on the exceptional issuance of visas at the border, including the issuance of such visas to seamen in transit has been integrated into this Regulation.

1.3. Annulment and revocation of the validity of a visa

Currently the rules on annulment and revocation of the validity of an issued visa are contained in SCH/Com-ex (93) 24 and in the CCI, Annex 14, section 2. All of these provisions have been merged into two separate articles, which clearly define which authorities are responsible for these tasks.

1.4. Extension of an issued visa

A third-country national present in the territory of the Member States on the basis of a valid visa, may have justified reasons for remaining beyond the date of expiration of his/her initial visa. The rules governing such situations (SCH Com-ex (93) 21) have been rendered more visible and a harmonised approach has been proposed, i.e. extensions should only take the form of a stamp, corresponding to the model contained in an annex to the Regulation, as such extensions are in most cases granted by Member States' national authorities, who are unlikely for reasons of security to hold stocks of the highly secured visa stickers.

1.5. Exchange of statistics

Given the fact that analysis of statistics in relation to the number of visas issued and of refusals is a valuable management tool at both local and central level the regulation establishes that such information shall be exchanged in a common format shall be notified to the Commission twice a year (the Commission will be responsible for publishing the data) and within each jurisdiction every month. Despite the existence of two SCH/Com-ex decisions on the exchange of statistics ((94) 25 and (98) 12) useful and comparative data on the number of visas issued and refused do not exist currently.

2. New dimensions of the visa issuance procedure

The establishment of the Visa Information System on the exchange of data between Member States on short-stay visas (VIS) will fundamentally change the processing of visa applications. On the one hand, Member States will automatically gain access to information on all persons having applied for a visa (within the 5-year period of retention of data) which will facilitate the examination of subsequent visa applications. On the other hand, the introduction of biometric identifiers as a requirement for applying for a visa will have a considerable impact on the practical aspects of receiving applications.

As the VIS should become operational already 2007, the Commission has chosen to update the CCI in a separate legal proposal, which sets the standards for the biometric identifiers to be collected and provides for a series of options for the practical organisation of Member States' diplomatic missions and consular posts for the enrolment of visa applicants as well as for a legal framework for Member States' cooperation with external service providers.

The contents of that proposal are inserted into and adapted to the structure of the present proposal, which will be amended once negotiations on the separate proposal have been finalised.

The provisions for the cooperation with commercial intermediaries, such as travel agencies and tour operators, have been strengthened, in order to take account of this new situation (see below).

3. Developing certain parts of the acquis

3.1. Enhanced transparency and reinforcement of the equal treatment of visa applicants

Specific provisions on Member States' obligation to provide the general public with all relevant information in relation to the issuance of visas have been introduced. Moreover, provisions have been added, introducing:

a) a maximum issuing time

b) a clear distinction between inadmissible applications and formally refused applications

c) full transparency as to the list of third countries whose nationals are subject to prior consultation

d) shorter deadlines for the response time in the case of prior consultation

e) a harmonised form providing proof of invitation, sponsorship and accommodation

f) an obligation for Member States to notify and motivate negative decisions

g) a legal framework to assure a harmonised approach to cooperation both between Member States' diplomatic missions and consular posts and with external commercial service providers

h) mandatory rules for the cooperation between Member States' diplomatic missions and consular posts with commercial intermediaries.

3.1.1. Prior consultation

While acknowledging that Member States' central authorities may have legitimate reasons for wishing to be consulted before visas are issued to nationals of certain third countries or to specific categories of these nationals, the Commission proposes speeding up the current procedure for prior consultation in the light of technical developments (faster access to and exchange of information) and in order to avoid prolonging the processing of visa applications unnecessarily and prevent adverse side effects such as "visa shopping".

It should be recalled that the designation of additional third countries for such compulsory prior consultation has on numerous occasions given rise to political discontent on the part of the third country concerned. Given that in most cases only one or a few Member States require to be consulted, this penalises the remaining Member States as they have to await replies from the consulted Member State before a final decision can be taken on the visa applications. Finally, certain Member States have provided proof that the added value of the prior consultation procedure in terms of objection to the issuance of a visa is very limited.

In order to avoid some of these adverse effects, the Commission suggests substantially shortening the deadlines for responding to consultations, and introducing the possibility for a Member State to request to merely be informed of visas issued to nationals of certain third countries or specific categories of these nationals, as some Member States have stated that the primary objective of consultation is for their central authorities to be informed of issuances rather than requesting refusals.

In order to enhance transparency, the Commission favours declassifying the lists of third countries subject to prior consultation, which are currently classified as "EU RESTREINT". The confidentiality of this annex to the CCI is only relative, as in practical terms the length of the processing time for applications by certain categories of persons reveals which third countries are listed. Furthermore the contents of these classified Annexes are already available to the public via websites of Member States' diplomatic missions or consular posts.

Finally, it could be questioned whether once the VIS is operational, and despite the fact that the VIS is not equipped with an alert function, there will be the same need for maintaining the consultation procedure, as central authorities of individual Member States will have access to information on all visas issued by all other Member States.

3.1.2. Inadmissibility

Currently, there is no clear distinction between those visa applications that have been formally refused after full examination of the file and cases where such in-depth examination was not carried out because the applicant failed to provide additional information. The Regulation introduces the notion of "inadmissibility", to be indicated in the VIS as distinct from a formal refusal.

3.1.3. Harmonised rules in relation to refusals

Currently the notification and motivation of refusals are governed by Member States' national legislation with the result that some neither notify nor motivate grounds for refusal to the applicant, whereas others only motivate refusals of certain categories of applicants. The recently adopted Schengen Borders Code introduces provisions requiring the relevant authorities to substantiate decisions on refusal of entry, stating the precise reasons by means of a standard form to be given to the refused third-country national.

For reasons of transparency and equal treatment of visa applicants and in order ensure coherence in related legislation, the common visa policy must also cover this crucial issue. To this end, provisions have been introduced rendering it mandatory for Member States' diplomatic missions and consular posts both to notify and indicate grounds for refusal in all cases.

3.2. Harmonisation of practices at operational level

3.2.1. Stamp indicating that an application has been lodged

Despite the existence of common rules on the use of the stamp indicating that an application has been lodged as well as on the content of this stamp, practices vary significantly. Thus, provisions have been introduced to cover both aspects, thereby ensuring a harmonised implementation.

3.2.2. Harmonised form providing proof of invitation, sponsorship and accommodation

The CCI, Annex 15, contains "harmonised" forms, but only three Member States have forwarded specimens, the contents of which differ. This Regulation introduces a harmonised form to be used by all Member States.

3.3 Local Consular Cooperation - strengthening of the harmonised application of the common visa policy

While acknowledging that the core legislation is directly applicable by Member States, the Commission is also aware that the diversity of individual cases and local conditions makes it very difficult to draw up detailed rules valid in all circumstances and covering all situations. This is why the current acquis already acknowledges the essential role played by diplomatic and consular posts, in particular in assessing migratory risk (it should be noted that this particular aspect of the current acquis was reinforced by a legislative amendment in 2003).

On the basis of the findings of the targeted missions on local consular cooperation (2004-2005) in particular, a proper legal framework for local consular cooperation has been drawn up establishing the tasks to be carried out at local level and ensuring the essential link to the relevant central authorities and Council and to guarantee transparency. This new organisation of LCC also takes into account the Community institutional framework.

4. Clarification of certain issues in order to enhance the harmonised application of legislative provisions

- Visa with Limited Territorial Validity (LTV)

Currently the provisions concerning LTV visas are split between different articles in various legal instruments (the Schengen Convention and the CCI). This has led to uncertainty as to the conditions for issuing this type of visa and to a certain degree of misuse and varying practices among Member States. Furthermore, it appears that both at operational and at central level there is little awareness of the scope of the obligation to inform other States of LTV visas issued. All provisions concerning the issuance of LTV visas have been integrated into one article, and the requirement to inform other Member States of the issuance of LTV visas has been restricted to those cases where the reason for issuing a visa with limited territorial validity is the negative response from a Member State within the procedure for prior consultation or when a visa is issued to a third-country national who does not meet the entry conditions laid down in the Schengen Borders Code.

- Travel Medical Insurance (TMI)

Council Decision 2004/17/EC as regards the inclusion of the requirement to be in possession of a travel medical insurance as one of the mandatory supporting documents for the grant of a uniform visa entered into force on 1 June 2004. As the application of this new measure was rather problematic in a number of locations, among other things because of loopholes and ambiguities in the original Decision, additional guidelines for the application of the Decision were drawn up in October 2004. This Regulation clarifies the ambiguities of the original text and turns some of the additional guidelines into binding rules. Based on the analysis of Member States' replies to a questionnaire on the application of the travel medical insurance requirement (circulated in October 2005), the Commission proposes a streamlining and clarification of the provisions on this matter. Moreover, persons being - exceptionally - granted a visa at the border, seafarers, when exercising their profession, as well as persons holding diplomatic passports and person applying for airport transit visa are systematically exempted from this requirement. In the first case the urgent circumstances in which such persons apply for a visa render it disproportionate to require them to contract a travel medical insurance. As far as seafarers are concerned they are generally sufficiently covered by means of their work contract to comply with the Community provisions.

5. Clarification of the legal status of the annexes to the CCI

The current Common Consular Instructions contain eighteen annexes including a number of legal provisions and various pieces of information, based on other legal sources or notifications by Member States: lists of third-country nationals subject to visa requirements, exemptions for holders of certain types of travel documents, table of representation, documents entitling the holder to entry without a visa, technical specifications (specimen of visa stickers, harmonised forms providing proof of invitation etc.), practical operational information (guidelines for filling in the visa sticker), information on individual "practices" (reference amounts, information to be entered into the "comments" section).

In order to clarify the legal status of these annexes, the Commission has decided, as was the case with the recent recast of the Common Manual, only to keep those annexes that are directly linked to the implementation of the provisions contained in the body of the text, namely annexes I-XIII to the Regulation. These annexes will, in future, be subject to amendment via a committee procedure, in accordance with Article 202 of the EC Treaty and Council Decision 1999/468/EC, as the Commission considers that these practical provisions are in fact measures implementing the principles set out in Title V of the Regulation.

6. Deletions

6.1. National visas

As the Regulation concerns the issuance of Schengen short-stay and transit visas as well as airport transit visas, all reference to national visas ("D" visas) has been deleted.

6.1.2. Long-stay national visa valid concurrently as a short-stay Schengen visa ("D+C" visas)

This type of visa was introduced on the basis of a Member State's initiative in 2001 (Regulation (EC) No 1091/2001. The "D+C" visa is valid concurrently as a uniform short-stay visa for a period of not more than three months from its initial date of validity. On the basis of available information, it appears that most Member States either do not issue D+C visas at all or only issue very small numbers[2]. It has also been noted on numerous occasions that there is little or no knowledge at all among consular staff of this type of visa or the conditions under which it can be issued, and thus applicants are not informed of this possibility. Moreover, it has been established that in many case the national visa registration and processing programmes do not even allow for the possibility of considering applications for such a visa or the printing of the visa sticker. At the same time a number of Member States allow their diplomatic missions and consular posts to issue residence permits, thus rendering the D+C visa superfluous. Moreover, once the period of three months from the initial date of validity of the D+C visa has expired, the holders - by then legally present on the territory of the Member State that has issued the visa - are no longer allowed to circulate within the entire territory of the Member States.

Therefore, the Commission proposes to abolish this type of visa in order to simplify matters and require Member States to speed up the issuance of residence permits to those third-country nationals entitled to receive them.

6.2. Abolishment of group visas

With the introduction of biometric identifiers as part of the data to be provided by visa applicants and the registration of individual applicants in the VIS, it is not possible to maintain the possibility of a group visa. Each applicant, even spouses and children travelling on the same passport, must fill in individual application forms and individual visa stickers must be issued by means of the separate sheet for affixing visas.

6.3. "Removal" of Annex 2 to the CCI

It is recalled that Annex 2 of the CCI contains the list of third countries, listed in Annex I to Regulation (EC) No 539/2001, whose nationals are exempt from visa requirements when holding "diplomatic, official and service passports" and the list of third countries, listed in Annex II to Regulation (EC) No 539/2001, whose nationals are subject of visa requirements when holding "diplomatic passports, service/official and special passports". Currently Regulation (EC) No 789/2001 governs the procedures for Member States’ notification of amendments to Annex 2 despite the fact that the legal basis for Member States' unilateral exemptions is Regulation (EC) No 539/2001, which states that information on the exemptions pursuant to Article 4 of that Regulation shall be notified to the Commission (who is responsible for timely and regular publication of this information). In order to avoid the overlapping of procedures and as there is no legal link between the exceptions form the visa requirement under (EC) Regulation No 539/2001 and the Regulation on the Code governing the conditions and procedures for issuing visas this information is not be annexed to the Code on Visas.

6.4. Deletion of Annex 6

According to the rules proposed for access to data in the VIS regulation, honorary consuls shall no longer be authorised to issue visas.

7. Harmonised application at operational level of the "Code on Visas"

As mentioned above, the Code on Visas shall only contain legal provisions on the issuance of short-stay and transit visas as well as airport transit visas. In order to ensure that Member States henceforth refrain from their current practice of drawing up national instructions to "superimpose" the common rules, one single common set of instructions on the practical application of the legislation shall be drawn up.

While preparing the proposal on the Code on Visas, the Commission in parallel considered the format and content of the practical "Instructions on the practical application of the Code on Visas" establishing the harmonised practices and procedures to be followed by Member States' diplomatic missions and consular posts when processing visa applications.

These Instructions, which will be drawn up within the procedure provided for in Title V of the Regulation, will by no means add any legal obligations to the Visa Code but be of a purely operational nature. They shall be finalised by the date of entry into force of the Code.

6) CONSEQUENCES OF THE VARIOUS PROTOCOLS ANNEXED TO THE TREATIES

The legal bases for the proposals on measures relating to the rules on short-stay and transit visas are to be found in Title IV of the EC Treaty, with the result that the system of “variable geometry”, provided for in the protocols on the position of the United Kingdom, Ireland and Denmark and the Schengen protocol, applies.

This proposal builds upon the Schengen acquis. Therefore the following consequences in relation to the various protocols have to be considered:

Iceland and Norway:

The procedures laid down in the Association Agreement[3] concluded by the Council and the Republic of Iceland and the Kingdom of Norway concerning the latter's association with the implementation, application and development of the Schengen acquis are applicable, since the present proposal builds on the Schengen acquis as defined in Annex A of this Agreement.

Denmark:

Pursuant to the Protocol on the position of Denmark annexed to the TEU and the TEC, Denmark will not participate in the adoption of the Regulation and is therefore not bound by it or subject to its application. Given the fact that the Regulation is an act which aims to build upon the Schengen acquis in accordance with the provisions of Title IV of the TEC, Article 5 of the above-mentioned Protocol applies.

United Kingdom and Ireland:

According to Articles 4 and 5 of the Protocol integrating the Schengen acquis into the framework of the European Union and Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland[4], 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 [5], the United Kingdom and Ireland are not taking part in the adoption of the Regulation and are not bound by it or subject to its application.

Switzerland:

As regards Switzerland, this proposal 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(1) of the Council Decision 2004/860/EC[6] on the signing, on behalf of the European Community, and on the provisional application of certain provisions of this Agreement.

The Agreement with Switzerland, signed on 26 October 2004, provides for the 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.

7) CONSEQUENCES FOR THE NEW MEMBER STATES OF THE TWO-STAGE PROCEDURE FOR IMPLEMENTING INSTRUMENTS BUILDING ON THE SCHENGEN ACQUIS

Article 3(1) of the Act of Accession states that the provisions of the Schengen acquis and the acts building upon it or otherwise related to it, listed in Annex I to the Act, will be binding on and applicable in the new Member States from the date of accession[7]. Provisions and acts not referred to in the Annex, while binding on the new Member States from the date of accession, will only apply in a new Member State pursuant to a Council decision to that effect taken in accordance with the article (Article 3(2) of the Act of Accession).

This is the two-stage implementation procedure, whereby certain provisions of the Schengen acquis are binding and applicable from the date of accession to the Union whereas others, specifically those linked intrinsically to the removal of checks at the internal borders, are binding from the date of accession but applicable in the new Member States only after the Council decision referred to above.

The Schengen provisions on visa policy (Articles 9 to 17 of the Schengen Convention and their implementing decisions, in particular the Common Consular Instructions, except for its annexes 1, 7, 8 and 15) are not listed in the Annex.

As a result, this proposal, which replaces and builds on the Common Consular Instructions and certain provisions of the Schengen Convention with a view to establishing a Community Code on the rules on Visas, when adopted, will not be applicable to the new Member State, except for the provisions in relation to the issuance of airport transit visa.

8) COMMENTS ON THE ARTICLES

General comment

In order to take account of the Community framework and terminology the term "Contracting Party(ies)" has been replaced by “Member State(s)” in the definitions and throughout the proposal. Obviously, references to “Member State(s)” should be read in the light of, firstly, the Schengen Protocol, as regards the application of the Schengen acquis by the United Kingdom and Ireland (see point 6 above) and, secondly, Article 3 of the Treaty of Accession providing for the application of the Schengen acquis by the new Member States in two stages (see point 7 above). In addition, the special position of Norway, Iceland and Switzerland with respect to the Schengen acquis must also be taken into account, as explained in point 6 of the explanatory memorandum.

Title I: General provisions

Article 1: Objective and scope

Paragraph 1 of this article defines the objective of the regulation, namely to lay down conditions and procedures for the processing of visa applications for stays not exceeding 3 months in a 6 months period.

Paragraph 2 establishes that the regulation applies to third country nationals subject to this requirement in accordance with Council Regulation (EC) No 539/2001. Moreover, a general reference is made to the rights of free movement enjoyed by specific categories of third-country nationals under Community legislation.

Paragraph (3) covers the lists of third countries whose nationals are subject to airport transit visas. The common list (Annex VII) is defined in the present regulation (and not Council Regulation (EC) No 539/2001).

Article 2: Definitions

Most of the definitions set out in this article are essentially taken from the Schengen Convention and the Common Consular Instructions (CCI), although account has been taken of the need to clarify and develop some of these definitions and add a few. The definitions listed in the regulation correspond to the definitions used in Regulation (EC) No 539/2001 and in the Schengen Borders Code.

The concept of “third-country national” is defined by default, by excluding citizens of the European Union within the meaning of Article 17(1) of the EC Treaty. It therefore also includes refugees and stateless persons.

The definition of a “visa” corresponds to the definition in Regulation (EC) No 539/2001 with the addition of the reference to airport transit, which is distinct from “stay” and the ordinary meaning of “transit”. This addition has also been necessary because of the integration of the Joint Action on airport transit into the Community legislative framework.

The notion “uniform” in the meaning of one visa allowing the holder, once given entry, to circulate in/transit through several or all Member States has been maintained as opposed to the visa with “limited territorial validity” (LTV) allowing the holder to stay in only one or a number of Member States and the “airport transit visa”, which is needed for certain third country nationals in order to transit through the international transit areas of Member States’ airports.

As one of the conditions for the issuing of “uniform” visas is that all Member States recognise the travel document presented by the applicant, it has been judged necessary to specify what is meant by a “recognised travel document” means. In the current formulations in the Schengen Convention and the CCI, the term “valid” is used to describe both authenticity, temporal validity and recognition, giving rise to some confusion. In order for Member States’ diplomatic missions and consular posts to know whether a uniform visa can be issued or whether an LTV visa must be issued, this notion is important. Given the legal basis of the present proposal, it is not possible to cover the decisions of the Schengen Executive Committee SCH/Com-ex (98) 56 and (99)14 setting out the provisions for the compilation of the Manual of travel documents entitling the holder to cross the external borders and which may be endorsed with a visa.

However, it would only seem logical to integrate this fundamental document into the Community legislative framework.

The definition of “visa sticker” refers to the definitions set out in Regulation (EC) No 1683/95 and the wording is the one used in the VIS Regulation.

The “separate sheet for affixing a visa” is defined referring to Regulation (EC) No 333/2002 on the uniform format for forms for affixing visas issued by Member States to persons holding travel document not recognised by the Member State drawing up the form.

Title II: Receipt and processing of the visa application

Chapter I: Authorities taking part in the processing visa applications

Article 3: Authorities competent for processing visa applications

These provisions have been taken over from the CCI as well as the Schengen Convention, however, specifying the notion of processing , in the sense of examining visa applications, which should always be carried out by Member States’ diplomatic missions and consular posts. As a result of recent developments (increasing numbers of visa applications, security risks for consular staff etc.) and the forthcoming introduction of the collection of biometric identifiers as one of the requirements for applying for a visa, Member States’ diplomatic missions and consular posts are no longer exclusively receiving visa applications.

However, Annex 6 to the CCI has been repealed in order to exclude honorary consuls from being involved in the processing of visa applications.

The provisions of Council Regulation (EC) No 415/2003 on the issuance of visa at the border have been taken on board in the Regulation (paragraph 2)

Article 4: Territorial competence

In the CCI it is indicated that “when” non-residents apply, their applications should be dealt with in a certain manner. As Member States’ practice differ on this point, the Regulation establishes clearly that third-country nationals must apply for visas in their country of origin (paragraph 1) and only non-residents legally present in a country different form their country of residence, and who have justified reasons for applying, may do so (paragraph 2). Generally, Member States’ diplomatic missions or consular posts shall contact in such cases their colleagues in the country of residence of the applicant or their central authorities before issuing a visa (paragraph 3).

Article 5: Member State responsible for processing the visa application

These provisions have been carried over from the CCI and set out the criteria for determining which diplomatic mission or consular post is responsible for processing a visa application. Applications for multiple entry visas shall be submitted to the consular post of the Member State where the applicant usually goes (which is the justification for applying for a multiple entry visa), although the holder would be allowed to travel to other destinations within the Member States. The reason why such visas can only be issued in the applicant’s country of residence is that only the consular post situated there will be able to fully assess the integrity of the applicant.

Article 6: Competence in relation to issuance of visas to third country nationals legally present within a Member State’s territory

Currently a fairly high number of visas are issued within the territory of Member States despite the fact that such persons will not cross the external borders. However, explicit rules should be introduced to cover situations where third country nationals, legally present on the territory of one Member State, and having justified reasons for travelling to another Member State but without holding the documents allowing them to circulate.

Article 7: Arrangements on representation

Most of the content of this article has been taken from the CCI. However, efforts have been made to restructure the provisions to make them clearer and specific rules have been added ensuring timely information of applicants and other Member States both locally and centrally about the entry into force or interruption of agreements on representation. Member States taking the initiative to outsource part of the visa handling procedure must inform the Member State(s) they represent before starting such cooperation.

Paragraph 6 clarifies the situation in cases where the diplomatic mission or consular post of the representing Member States envisages refusing a visa applicant. In such case the entire file shall be submitted to the central authorities of the represented Member State in order for them to take the final decision on refusal and Article 23(3) on information of the refused applicant shall apply. In this manner, it is ensured that a final decision it taken on the application, and the applicant is not, as it is currently often the case, just asked to submit the application again to the nearest consular office of the represented Member State.

Paragraph 2 shall be amended in order to take account of the outcome of negotiations on the Proposal amending the CCI in relation to the introduction of biometrics including the setting up of Common Application Centres.

Article 8: Prior consultation of the Member State’s own central authorities

The procedure of prior consultation of the central authorities of the issuing diplomatic mission or consular post before visas to specific categories of persons or nationals of specific third countries already exists and the list of third countries for which such consultation is required is set out in Annex 5 to the CCI (classified “EU RESTREINT”). Paragraph 2 establishes that such consultation must not prolong the processing of the visa application.

Paragraph 3 establishes that within the framework of representation arrangements, it is the central authorities of the representing Member State that must consult the control authorities of the represented Member States (for third countries listed in Annex I).

Article 9: Prior consultation and information of central authorities of other Member States

Paragraph 1 sets out provisions on a Member States’ central authorities request for being consulted before other Member States’ diplomatic missions or consular posts issue visas to specific categories of persons or to nationals of specific third countries.

Paragraph 2 sets the deadlines for response by the consulted Member State which shall be three working days. In the absence of a reply within the deadline, the consulting Member State may allow its diplomatic mission or consular post to issue the visa for which the consultation had been launched.

In paragraph 3 a procedure for simple information is introduced, thus responding to the wish of a number of Member States expressed during discussions in 2002-2003: rather than being consulted Member States’ central authorities wish to be informed about the issuance of visa to nationals of specific third countries or to specific categories of these nationals.

Paragraph 5 establishes that within the framework of representation arrangements, it is the central authorities of the representing Member State that must consult other Member States’ central authorities (for third countries listed in Annex II).

Chapter II: The application

Article 10: Practical modalities for submission of the application

This article is new, in the sense that it sets out the general principles for the “material” submission of application and is linked to Article 11, where the concept of “admissibility” is introduced. Paragraph 1 indicating that applications can not be applied for earlier than three months ahead of the planned journey is currently only mentioned at a note on 1 of Annex 13 to the CCI. It is important that visas are not issued too long before the journey is to take place to avoid that the applicant’s situation on the basis of which a visa has been issued does not change.

Paragraph 2 refers to the requirement of all first time applicants to submit their application in person for the purpose of capturing biometric data, which must happen at the moment of the submission of the application.

Paragraphs 3 and 4 are necessary, as an increasing number of Member States diplomatic missions and consular offices have introduced appointment systems. Paragraph 5 shall be read in conjunction with Articles 11 and 19.

Article 11: Capturing of biometric data

This article sets out the requirements for the capturing of biometric data, the categories of persons exempted. The content of this Article corresponds to the proposal for a Regulation of the European Parliament and of the Council amending the Common Consular Instructions on visas for diplomatic missions and consular posts in relation to the introduction of biometrics including provisions on the organisation of the reception and processing of visa applications presented by the Commission on 31 May 2006 [COM(2006) 269].

Article 12: Submission of a visa application

This article lists the requirements in terms of the documentation that an applicant must present in order for his/her application to be considered admissible. Establishing such rules will make it easier for applicants to prepare their application and expedite the examination as the diplomatic mission or consular post will receive complete files. In addition, as Member States are increasingly allowing diplomatic missions and consular posts to cooperate with external service providers, it is essential – given this intermediary between the applicant and the staff that examines the application - that precise information is obtained from the outset, thus saving the applicant from having to provide additional information. By doing so, this Article defines when a visa application can be considered as being submitted. If all the elements listed in Article 12 are present, the visa application is "admissible".

This is also important in order to distinguish “rejections” of applications before proper examination has started from formally refused applications. The introduction of this distinction will moreover bring about more realistic statistics as formal refusals will be distinguished from cases where examination has not been completed, and thus the refusal rates will give the true picture of the situation. Comparison of refusal rates is an important management tool for Member States’ diplomatic missions and consular posts within the same jurisdiction.

Article 13: The application form

Paragraph 1 has been taken over from the CCI, but with the addition of requiring accompanying persons included in the passport of the applicant to fill in individual application forms. Subsequently individual visa stickers will be issued (Article 26) and group visas will cease to exist.

Paragraph 2 settles a number of practical issues which were not covered so far. Paragraph 3 sets out rules for the possible translation of the application form into the language of the host country and how to present such translations. In order to ensure harmonisation and cost-saving, Member States’ diplomatic missions within the same jurisdiction shall use the same translated version. Paragraphs 2 and 3 are mainly based on the Commission Staff Paper JAI/723/2003.

Finally paragraph 4 requires Member States’ diplomatic missions and consular posts to make sure that applicants are informed about the languages they can use for filling in the application form.

Article 14: Supporting documents

The contents of this article, as well as Annex IV, establishing a non-exhaustive list of required supporting documents to be submitted by applicants, has been taken over from the CCI, and both have been structured in a more user-friendly manner. Moreover the supporting documents have been listed in such a manner as to taking account of the purpose of the intended stay/transit. A new harmonised form providing proof of invitation, sponsorship and accommodation has been drawn up, in order to fill in the gap in the existing legislation. Although the CCI contained an annex of the so-called harmonised forms used by individual Member States, only three have submitted such rather diverging forms so far. This Article is in line with the Schengen Borders Code.

There may be a need to differentiate the types of documentation that applicants must and can provide due to local circumstances. Within local consular cooperation the need for drawing up lists of the documents to be provided for the purposes set out in this Article and the corresponding Annex shall be assessed, as an element which is essential to avoid visa shopping.

Article 15: Travel medical insurance (TMI)

This article has been taken over from the CCI, but the provisions have been amended to clarify a number of loopholes and ambiguities in the original Decision and account has been taken both of the guidelines for the application of this measure drawn up in 2004 and of the evaluation of the application of the measure carried out on the basis of a questionnaire circulated to Member States diplomatic missions and consular posts in 2005.

General exemption from the TMI requirement has been introduced for holders of diplomatic passports and seafarers at it is judged that within their professional context they are sufficiently covered. Moreover, third country nationals applying for a visa at the border – which should an exceptional occurrence – for reasons of emergency – have been exempted as well, as it would seem disproportionate and often impossible for such persons to contact a TMI.

Article 16: The handling fee

This article sets out the rules for the fee to be paid by applicants. The fee is to cover the administrative costs of processing a visa application. The amount of the fee corresponds to the amount provided for by Council Decision 2006/440/EC of 1 June 2006[8]. The remaining part of paragraph 1 stating that it is to be charged in EUR or the currency of the host country and that the handling fee is not refundable, remain valid. Paragraph 2 ensures that applicants receive both a receipt and are informed in writing that the fee is not refundable. Paragraph 3 refers to the problems occurring when the handling fee is charged in local currency. In order to avoid the negative effects for applicants of that Member States’ differences in calculations of exchange rates with different intervals, it is proposed to use the same exchange rate, the euro foreign exchange reference rate (ECB). Paragraphs 4 lists categories of persons for which the handling fee is waived as provided for in Council decision 2006/440/EC. Paragraph 5 enables Member States to waive or reduce the handling fee on a case by case basis. This already existing possibility was confirmed by Council Decision 2006/444/EC. Paragraph 6 maintains the existing fee during a provisional period for nationals of third countries in respect of which a mandate to negotiate a visa facilitation agreement has been given by 1 January 2007.

Paragraph 7 has been added to avoid penalising a third country national holding a travel document not recognised by a Member State, and who have been issued a visa with limited territorial validity, is obliged to pay a second handling fee, because he/she has to apply for a second visa in order to travel to a Member State whose territory is not covered by the first visa.

Paragraph 8 introduces an urgency fee: the handling fee is doubled for applications lodged at a very late stage without justification.

Article 17: Stamp indicating that an application has been lodged

The requirement of Member States’ diplomatic missions and consular posts to stamp applicants’ travel document when an application has been lodged has been taken over from the CCI. The purpose of this measure is to prevent the same person from lodging applications with several Member States at the same time. Given the considerable problems with applying this measure in practice, the Regulation clarifies the rules for the use of the stamp and a harmonised model of the stamp has been created. The latter has been deemed necessary, as numerous examples of both incorrect stamps and additional irregular codes have been detected over the years. Account has been taken in paragraph 1 of the changes in the reception of visa applications (see Article 33), as it shall be the diplomatic mission or consular post that shall stamp the applicant’s travel document.

The CCI allow Member States to decide unilaterally not to put this stamp into diplomatic passports. In order to ensure a harmonised approach, this exemption has been made general, whereas Member States diplomatic missions and consular post must agree within local consular cooperation on the exemption of other specific categories of persons.

To avoid that applicants or local authorities misunderstand the purpose of the stamp, Member States’ diplomatic missions and consular posts shall inform the general public that the stamp has no legal implications and that it merely serves as an indication that a visa has been applied for.

Once Member States start transmitting data to the VIS, this stamp becomes redundant, as other Member States’ diplomatic missions and consular posts will have access to information on the applicant’s possible simultaneous submission of an application at another consulate.

Chapter III: Examination and processing visa applications

Article 18: Examination of the application

Paragraphs 1 and 2 of this crucial article have been taken over from the CCI and establish the basic criteria for examining visa applications: the two main issues to be borne in mind by consular staff when examining visa applications, namely the migratory risk and security risks. Given the new forms of submitting visa applications via various types of intermediaries, it is emphasised that in case the written documentation submitted is not sufficient to prove the purpose of stay and intention of return, the applicant can be called for a personal interview

The contents of paragraph 4 have been taken over from the CCI, but more detail are listed as to the types of verifications to be carried out. Particular attention is drawn to sub-paragraph (e), where reference is made to the means of subsistence indicating that the assessment of this shall take into account the reference amounts as referred to in the Schengen Borders Code as well as the statement on accommodation/bearing of costs (Annex IV).

The reference amounts established by Member States were previously set out in Annex 7 to the CCI. Since the Schengen Borders Code imposes on Member States the obligation to notify thee reference amounts, there is no need to include an annex on reference amounts in the Visa Code itself. However, for practical reasons, these reference amounts will be included in the "Instructions on the practical application of the Visa Code” (Article 45) to be drawn up later.

Given the fact that holders of airport transit visas do not enter into the territory of Member States paragraph 6 establishes that the verification of such application should only cover the requirements set out in paragraph 2(a) (valid and authentic travel document), (b) (no danger to public order, public security, public health, internal relations) and (d) (use of previous uniform visas), although the purpose of the onwards journey must be verified.

Paragraph 7 has been taken over form the CCI, and can be summarised to “in case of doubt, do not issue a visa”.

Article 19: Inadmissibility

This article is directly linked to Article 10(4). In case the applicant fails to provide the additional information requested, his/her application will be declared inadmissible and recorded in the VIS as such. The notion of inadmissibility have been introduced in order to distinguish between formal refusals based on the examination of the visa application and cases where such examination has not been carried out because the applicant has failed to provide the information requested. Currently, formal refusals and examinations that have not been completed are often counted in statistics as “refusals/rejection” and thus the true number of refusals and effective refusal rate is hidden.

As inadmissibility is not a formal refusal of an application, the applicant can not claim any right of appeal. Therefore an application can also be declared inadmissible by the diplomatic mission or consular post of a representing Member State.

Article 20: Decision on the visa application

In order to enhance the equal treatment of visa applicants, a fixed maximum issuing times have been introduced in paragraph 1.

Paragraph 2 sets out the general principle for the determination of the adequate visa to issue and the calculation of the period of validity and duration of stay to grant. In order to allow for unexpected changes of the timing of the planned journey for reasons beyond the control of the applicant (for instance cancellation of flights, postponement of commercial or cultural events, business meetings), a reasonable number of additional days, i.e. a period of grace, shall be added to the number of days needed for the visit/transit or passage through the international transit area of airports.

It should be noted that the current Annex 13 to the CCI, giving practical examples of filled in visa stickers will be updated and be part of the “Instructions on the practical application of the Visa Code” to accompany the final version of the Code on Visa.

Paragraph (3) on the issuance of multiple entry visas has been carried over from the CCI, but a profile of applicants to who such visas may be issued has been set up in detail (i.e. need for frequent travel to the Member States and integrity).

Article 21: Visas with Limited Territorial Validity (LTV)

This article covers all the aspects of the issuance of LTVs which are currently scattered around in various instruments that also often repeat the same provisions (the Schengen Convention, Articles 11(2), 14(1) and 16, CCI, Part V, 3 and Annex 14).

Paragraph 1 in detail lists the cases, where an LTV shall be issued.

In paragraph 2 it is clarified when information of other Member States is necessary. Despite the fact that information on issued visas will be stored in the VIS, it is necessary actively to inform central authorities about the individual cases in order for them to check the details in the VIS.

As the issuance of LTVs on the grounds set out in sub-paragraphs (a) and (b) allows persons, who do not fulfil the usual conditions for entry into the territory of the Member States, to enter the territory of the issuing Member State, the central authorities of the issuing Member State must inform the central authorities of other Member States about this.

On the contrary, in the case referred to in the second alinea of paragraph 1, the holder of the travel document not recognised by one or the other Member States fulfils the entry conditions, and thus information on the issuance an LTV is not relevant.

Since the necessity of issuing LTVs valid only for the issuing Member State in the cases referred to in the second alinea of paragraph 1 is not linked to any of the reasons given in (a) and (b), and that the person concerned who have been issued short-stay visas previously, have not misused them, information of other Member States is not necessary either.

Article 22: Airport Transit Visas

This article establishes a harmonised approach on Airport Transit Visas. It takes on board the provisions of the CCI and in order to enhance transparency, Member States’ individual exemptions (mainly of holders of diplomatic passports) from this requirement have been made general in relation to the nationals of third countries on the common list.

Paragraph (2)(a)–(d) lists the different categories exempted. In addition to those covered in the CCI, family members of EU citizens have been added.

Article 23: Refusal of a visa

The current CCI refers to national legislation on notification and motivation of refusals and only if such legislation requires visa refusals to be notified and motivated, a harmonised general text of such notification should be used. In order to enhance the Community approach and equal treatment of applicants, this article renders these aspects mandatory.

Paragraph 1 lists a number of precise criteria for refusing a visa, which is in line with the Schengen Borders Code. The current CCI does not contain such a specific list.

Paragraph 2 specifies that refusals must be notified in writing by means of the form set out in Annex IX. The harmonised forms shall also be used when visa applications are refused at the border (cf. Articles 32 and 33).

Paragraph 3 makes clear that appeals against visa refusals remain within the Member States' competence.

Paragraph 4 refers to the cases where one Member State is representing another for issuing visas, and where the represented Member State takes the final decision on refusing an applicant. The representing Member State’s diplomatic mission shall inform the applicant about the refusal decided by the represented Member State

Paragraph 5 is meant as a formal guarantee that each application is assessed on its own merit and that due consideration is given to the applicant’s situation at the moment of application.

Article 24: Rights flowing from an issued visa

It is important to give visibility to the basic and essential principle that possession of a visa merely allows the holder to present himself at the external border. It has been judged useful to express this in this Article, and thus recalling that border control authorities check that entry conditions are fulfilled when the holder of the visa presents himself at the border.

Article 25: Filling in the visa sticker

This article has been taken over from the CCI and additional provisions are set out in Annex X. Although the Code on Visas does not cover national long-stay visas, a reference has been made in Annex X, point 7, to the code to enter on the visa sticker for such visas. In accordance with Article 18 of the Schengen Convention, national long stay visas, "D" visas, allow the holder, provided the additional conditions listed in that Article are fulfilled, to transit through the territories of other Member States in order to reach the territory of the Member State which issued the "D" visa. The Commission therefore finds that this reference to the code is appropriate.

Article 26: Invalidation of completed visa stickers

This article has been taken over from the CCI and provisions have been added to make sure that such invalidation of stickers is recorded in the VIS.

Article 27: Affixing visa stickers to travel documents

This article has been taken over from the CCI. Paragraphs 1–3 cover the most commonplace situation, where the visa issuing Member State recognises the applicant’s travel document. The second subparagraph of paragraph 1 has been taken over from Annex 10 (otherwise deleted), as it has often been seen in practice that consular staff affix the sticker in such a manner that it can not be machine-read. Paragraph (4) refers to the situation where the visa issuing Member Sate does not recognise the applicant’s travel document. In such cases the separate sheet for affixing a visa should be used.

Chapter IV: Modifying the period of validity of an issued visa

Article 28: Extension

The SCH/Com-ex (93) 21 decision on the extension of the validity of a visa is not covered by the CCI, and is herewith taken on board in the Regulation and more detailed provisions are introduced.

The title indicates that extension of visas take place within the territory of the Member States. In case the holder’s situation has changed before he or she uses the issued visa, the diplomatic mission or consular post that issued the visa will be responsible for cancelling the first visa and issuing a new one, if need be.

Paragraph 1 establishes the reasons that may warrant for an extension of the period of validity and/or the duration of stay of an issued short stay or transit visa to be extended, without the type of visa being changed or the duration of stay being more than 90 days (paragraph 2). The maximum duration of transit in the case of extension a transit visa is not regulated by current legislation. By allowing for a maximum duration of a transit to 10 days, which may seem exaggerated because it doubles the maximum set for transit, common standards have been introduced.

The administrative authority may decide to change the territorial validity of the visa issued by limiting its validity to the territory of the Member States where the request for extension is submitted (paragraph 3) or only to a number of Member States.

Paragraph 4 is partly taken over from the Com-ex decision and establishes that information on the relevant competent authorities (currently listed in the Com-ex and not updated since 2000) must be notified to the Commission who will then publish the list (cf. Article 47).

In order to introduce a harmonised approach, a mandatory fee of 30 EUR to be charged for extending a visa is introduced in paragraph 5. As extension will not introduce the capturing of biometric identifiers this fee does not need to correspond to the fee charged for the issuance of a visa.

Currently, Member States may extend a visa either by issuing a new visa sticker or by putting a stamp on the original one. Paragraph 6 establishes that extension shall only take the form of a uniform stamp set out in Annex XI. By introducing one method clarity about the authenticity of extensions is ensured and the local authorities (often police authorities) competent for extending visa are not required permanently to keep stocks of highly secured visa stickers.

Information on extension of visa shall be entered into the VIS as stated in paragraph 7.

Article 29: Annulment

The provisions of Article 28, 29 and 30 of the Regulation are currently “hidden” in Annex 14 to the CCI which mainly reproduces the content of the SCH/Com-ex decision (93) 24 . In order to clarify matters, the three issues have been separated in individual articles to distinguish between the different purposes of the actions.

The purpose of annulment is to prevent the holder of the visa to enter into the territory of the Member States. Article 29(1) establishes which authorities may annul a visa at what point in time. Sub-paragraph (a) covers the case where the holder of the visa has not used the issued visa yet, and thus the diplomatic mission or consular post that issued the visa may annul it.

Border control authorities (sub-paragraph (b)) may, if the holder of the visa does not fulfil entry conditions, annul the visa, or finally law enforcement authorities on the territory of the Member States may annul the visa if the holder no longer fulfils the conditions for staying, although the visa is still valid.

In case a visa is annulled by the competent authorities of a Member States different from the one whose diplomatic mission or consular post issued the visa, the issuing Member State shall be informed about the annulment.

Article 30: Revocation of a visa

Revocation means annulment the remaining period of stay after the holder of the visa has entered the territory of the Member States. Paragraph 1 establishes two cases where an issued visa may be revoked: (a) in case the holder requests that the visa be revoked or (b) if the competent authorities judges that the holder no longer fulfils the entry conditions after he/she has entered the territory of the Member States.

In case a visa is revoked by the competent authorities of a Member States different from the one whose diplomatic mission or consular post issued the visa, the issuing Member State shall be informed about the revocation.

Article 31: Shortening the duration of stay authorised by a visa

In case border authorities judge that the holder of the visa does not have enough means to support himself/herself during the intended stay, they may shorten the duration of stay authorised by the visa in order to adapt the duration of stay to the means of subsistence that the visa holder effectively possess.

Chapter V: Visas issued at the external borders

Article 32: Visas issued at the external borders

Articles 32 and 33 take on board the content of Council Regulation (EC) No 415/2003 while dividing it in to two articles to separate the general provisions on the issuance of visas at the border from the particular issues related to seafarers in transit.

In Article 32(6) it is specified that the general provisions on notification and motivation of refusals as well as the information on the possibilities of appeal apply when visas are applied for – and refused - at the border.

Article 33: Visas issued to seamen at the external borders

This article contains the specific provisions governing the issuance of visas at the border to seafarers in transit. The two annexes to Council Regulation (EC) No 415/2003 (“operational instructions” and the “form for seafarers in transit” are contained in Annex XII, Parts 1 and 2 to the Regulation.

TITLE III: Administrative management and organisation

Article 34: Organisation of visa sections

This article has mainly been taken over from the CCI, Part VII. Despite the possible changes in the reception of visa applicants as provided for in Article 37, Member States’ diplomatic missions and consular posts will remain responsible for the processing of visa applications and the eventual decision on these applications.

The retention period for individual files (hard copy) set out in the second paragraph of paragraph 3 corresponds to the retention period set out in the VIS Regulation.

Article 35: Resources for processing visa applications and monitoring of diplomatic missions and consular posts

This article corresponds to an article on the same issues in the Schengen Borders Code.

Article 36: Conduct of staff processing visa applications

This article has been introduced in order to ensure that staff of the Member States’ diplomatic missions and consular posts respect of the European Charter of Fundamental Rights when dealing with visa applicants and applications.

Articles 37, 38 and 39: Forms of cooperation in relation to the reception and processing of visa applications

The purpose of these articles is to provide for a legal framework for the Member States to choose among a number of organisational options in order to be able to collect biometric data from visa applicants.

Article 38 set out specific rules to be respected, if Member States decide to cooperate with external service providers.

Article 39 deals with certain organisational aspects in particular in order to ensure transparency on the forms of cooperation chosen. Paragraph 2 allows a Member State to decide that despite the choice of a form of cooperation, visa applicants can have direct access to its consular posts.

These articles shall be amended in order to take account of the outcome of negotiations on the Proposal amending the CCI in relation to the introduction of biometrics including the setting up of Common Application Centres.

Article 40: Submission of visa applications by commercial intermediaries

This article takes on board the contents of Part VIII, section 5, which in its original wording is somewhat unclear and outdated.

Paragraph 1 defines the tasks that such commercial intermediaries may carry out rather than trying, as it is the case in the CCI, to define the various types of intermediaries as it is bound to be very imprecise. It should be noted that they can not collect biometric data from applicants and thus first time applicants can not be submitted via commercial intermediaries.

Paragraph 2 lists the various aspects to be verified before accreditation is granted.

Paragraph 3 sets out provisions on the constant monitoring of these intermediaries and paragraph 4 establishes the negative results of such monitoring must be communicated to the diplomatic passions and consular posts of other Member States within local consular cooperation. In general, lists of accredited commercial intermediaries shall both be communicated to other diplomatic missions and consular posts and to the general public (paragraph 5).

Article 41: Information of the general public

It is essential that applicants are well informed primarily of the criteria and procedures for applying for a visa. Given recent developments, where call centres, appointment systems and outsourcing is introduced, efforts must be made to ensure that applicants are well informed about where and how to submit their application.

Paragraph 2 recalls the need for Member States concluding agreements on representation to inform the general public at least 3 months before the start of such cooperation, and to specify the categories of applications that such representation covers. The deadline of three months corresponds to the maximum deadline for submitting applications ahead of the planned visit (as set out in Article 10(1)).

Given the problems encountered in practice, a provision is introduced in paragraph 3 indicating that the general public must be informed that the stamp indicating that an application has been lodged has no legal implications.

Paragraph 4 states that clear information must be given about issuance times and about the requirement of prior consultation for nationals of certain third countries or specific categories of these nationals.

Paragraph 5 sets out requirements for informing the general public about their rights in case of refusal.

Paragraph 6 underlines the need to inform the general public that mere possession of a visa does not confer automatic right of entry and that they may be requested to present supporting documents at the border, when the fulfilment of entry conditions is checked. The latter is not mentioned in the current acquis.

TITLE IV: Local Consular Cooperation

Article 42: Member States’ diplomatic missions and consular posts’ application of Local Consular Cooperation

The CCI contains a chapter on local consular cooperation, which in general terms sets out the framework of consular cooperation at local level as well as a number of issues to be adapted to local circumstances. However, since the practical implementation of local consular cooperation in relation the issuance of visa has been rather unsatisfactory so far, as demonstrated in the Targeted missions’ (TM) reports, the Regulation, on the basis of the conclusions drawn on the TM reports and endorsed by the relevant Council bodies, in clear terms establishes which tasks are to be carried out by whom and with what frequency. Moreover, the organisation of local consular cooperation is adapted to the Community institutional framework. It is not compatible with this framework that Member States' diplomatic missions and consular posts would take decisions that create legally binding rights and obligations for visa applicants. Therefore, LCC should assess the need to adapt certain provisions to local circumstances. In case of a positive assessment, the common "local" rules have to be decided in accordance with the comitology procedure, of course, based on an input from the LCC.

Paragraph 1 concerns provisions aiming at assessing the need for harmonising practices among Member States’ diplomatic missions and consular posts in the same jurisdiction in relation to the information of applicants before they submit their application and equal treatment of applicants once they lodge the application (a)–(c). Such equal treatment will also contribute to preventing visa shopping. Sub-paragraph (c) refers to the travel documents issued by third countries as it is important both locally and centrally that updated lists on the actual travel documents issued by third countries are available. The last sentence of this sub-paragraph refers to the fact that currently some Member States require certain types of official travel documents to be accompanied by verbal notes whereas others do not.

Also the need for a harmonised approach on the involvement of either external service providers or commercial intermediaries in order to avoid visa shopping must be assessed locally (paragraph d).

Paragraph 2 states that for reasons of ensuring full transparency and equal treatment, a common information sheet should be establish within the framework of LCC.

Paragraph 3 sets out the list of information to be exchanged either monthly (statistics (a)) or regularly (specific information linked to individual jurisdictions (b)).

By exchanging and examining statistics monthly, the local diplomatic missions and consular posts have a constantly updated picture of the trends and sudden changes of them within their jurisdiction and solutions can be found immediately to possible negative effects of such changes. By compiling general information on the host country/location (socio-economic structures, sources of information at local level, use of false and falsified documents, illegal immigration routes etc.), this essential “collective” knowledge will not be lost even if consular staff change regularly, and it will help new expatriate staff to become operational and familiar with local circumstances more quickly.

Paragraph 4 sets out provisions on how to render the consular cooperation in relation to the common visa policy more efficient taking also into account the institutional framework of the EC. As consular cooperation in general covers a large variety of issues, it is important to dedicate specific meetings to the technical issues related to the issuing of visas with the participation of representatives of Member States applying Community acquis in full and involved in the processing of visa applications.

Paragraph 5 introduces the mandatory requirement of drawing up reports for each meeting and for each diplomatic mission and consular post to forward these reports to their central authorities. This would bring about the link between the operation level and central authorities and eventually the legislative level [in the relevant Council bodies], covered in paragraph 7.

Paragraph 6 opens for the possibility of inviting on an ad hoc basis, representatives of Member States not applying the Community acquis in full or of third countries to contribute to discussions on specific issues related to the issuance of visas in the jurisdiction.

Title V: Final provisions

Article 43: Exceptional arrangements

In 2004, a Member State applying the Schengen acquis, hosted the Olympic Games and the Paralympic Games for the first time. In order for that Member State on the one hand to respect the requirements of the Schengen acquis while fulfilling the commitments arising for the Olympic Charter and on the other hand to avoid undermining future bids to organise these events by another Member State applying the Schengen acquis, it was agreed that the most appropriate solution was to draw up special measures to facilitate the issuance of visas and the crossing of external borders. The Regulation was successfully implemented by Greece in 2004 and appropriate amendments were made in 2005, in order to allow Italy to follow the same procedure for issuing visas to members of the Olympic Family. In order to facilitate, in future, this aspect of the organisation of the Olympic Games by a Member State applying the Schengen acquis in full, the specific procedures and conditions to be used are attached to the Visa Code, which could be swiftly used avoiding lengthy legislative procedures.

Article 44: Amendments to the annexes

This article provides that Annexes III, IV, V, VI, VIII, IX, X and XI to the Regulation are to be amended in accordance with the committee procedure referred to in Article 46(2). The reason for proposing the use of a committee procedure is that the Annexes contain measures implementing the general rules on the receipt and processing of the visa application laid down by Title II of this Regulation.

Article 45: “Instructions on the practical application of the Visa Code”

This article stipulates that the “Visa Committee” shall draw up the accompanying “operational instructions" on the practical application of the Visa Code. Such practical instructions are necessary to ensure the harmonised application of the legislation at operational level and to avoid that Member States draw up national parallel instructions. The Instructions shall be finalised by the time that the Regulation on the Community Code on Visas enter into force.

Article 46: Committee

This is the standard article on committee procedures to be followed for the adoption of measures implementing the Regulation in accordance with Decision 1999/468/EC. The regulatory procedure is provided for as measures of general scope within the meaning of Article 2 of the Decision are involved; Articles 5 and 7 of the Decision apply.

The time-limit under Article 5(6) of Decision 1999/468/EC for the Council to give its qualified-majority decision on the Commission's proposal for measures to be adopted where they are not in conformity with the Committee's opinion is set at two months.

Article 47: Notification

Member States shall notify the information listed in paragraph 1 to the Commission, who shall be in charge of publishing the information.

Member States shall also notify to the Commission the envisaged changes of annexes I and II (prior consultation). Because of the fact that these changes directly affect the rights and obligations of visa applicants, a simple notification procedure is not sufficient in the institutional context of the EC. Therefore, the changes of these annexes have to decide pursuant to the comitology procedure.

Article 48: Repeals

This article sets out the legal instruments repealed by the Regulation.

Given the fact that the VIS Regulation has been based on the current acquis, it must be adapted to the amended acquis as provided for in the Code on Visas. Such a proposal will have to be based on the appropriate legal basis (Article 66 TCE). Moreover, the VIS Regulation not having been adopted yet, it is impossible at this stage to provide the exact modifications that will be required.

Article 49: Entry into force

This is the standard clause on entry into force and direct applicability.

The application of the Regulation is deferred for six months following entry into force, [given the scale of the exercise] and the need to finalise the Instructions on the practical application of the Visa Code. However, Member States are to start notifying the Commission of the various issues listed in Article 47 immediately after the entry into force. Also the Committee should be able to prepare the implementing measures and therefore, also Article 44 should apply from the date of entry into force.

Annexes

Annexes have been listed in “order of appearance” in the Regulation.

The corresponding reference in the CCI for each of the deleted provisions can be found in the following table.

Provisions of the Common Consular Instructions not taken over

Provisions of the Common Consular Instructions not taken over | Ground(s) |

Part I, Point 2.1.4 Group visas | For reasons of security and given the fact that all individual visa applicants must submit individual application forms and all first time applicants must provide biometric identifiers upon submission, group visas are not longer acceptable. |

Part I, 2.2 Long-stay visas | The Community Code on visa does not cover the issuance of visas for stays exceeding 3 months (Article 1(1)) and long stay visas concurrently valid as uniform short stay visas have been abolished. |

Part IV Legal basis | This part merely reproduces provisions of the Schengen Convention (Articles 5, 11(2), 14(1), 15 and 16 and is redundant |

Part V, 2.3 Procedure to be followed in cases of prior consultation with the central authorities of the other Contracting Parties | This part mainly contains guidelines of a practical rather than a legal nature |

ANNEXES |

Annex 1 Joint list of third countries whose citizens are required to have a visa by Member States bound by Regulation (EC) No 539/2001*, as amended by Regulation (EC) No 2414/2001** and Regulation (EC) No 453/2003***. Joint list of third countries whose citizens are exempted from the visa requirement by Member States bound by Regulation (EC) No 539/2001*, as amended by Regulation (EC) No 2414/2001** and Regulation (EC) No 453/2003***. | This Annex merely reproduces the lists contained in the Regulation referred to. |

Annex 2 Regulations governing the movement of holders of diplomatic, official and service passports and holders of laissez-passers issued by certain International Intergovernmental Organisations to their officials. Schedule A and B | Since exemptions from visa requirements of holders of diplomatic passports, service/official passports and special passports are governed by Regulation (EC) No 539/2001 – and amending Regulations – this annex should not be attached to the Visa Code |

Annex 3, Part II | Complete harmonization of the list of third countries who nationals are required to be in possession of an Airport Transit Visa. No more possibility of Member State to submit third country nationals to this requirement. |

Annex 4 List of documents entitling holders to entry without a visa | According to the Schengen Borders ‘ Code, Article 5(1)(b) establishes that third country nationals possessing a valid residence permit can enter the territory of the Member States and according to Article 34 (1) (a) of the Schengen Borders Code the list of such residence permits shall be notified to the Commission. This list should therefore not be duplicated in the Code on Visas |

Annex 6 List of honorary consuls authorised to issue uniform visas in exceptional cases and on a temporary basis | Since Article 3 of this Regulation establishes that only Member States’ diplomatic missions and consular posts as well as, exceptionally, border control authorities are entitled to process visa application, this Annex has not been taken over. |

Annex 7 Reference amounts determined annually by the national authorities for the crossing of borders. | As indicated in the title, the provisions on reference amounts are linked to the crossing of borders, and thus governed by the Schengen Borders Code (Article 5(3)). |

Annex 8 Uniform format for visa stickers and information on their technical specifications and security features | This annex merely reproduces Council Regulation (EC) No 1683/95 and Regulation (EC) No 334/2002 and thus it is inappropriate in the Code on Visas |

Annex 9 Information to be entered by the Contracting Parties, if necessary, in the "comments" section | These national comments should be notified to the Commission in conformity with Article 46(1)(d), who shall be in charge of publishing them |

Annex 10 Instructions on inserting information in the optical reading area | The definitions (1) contained in this annex are superfluous and the descriptions of the automatic reading area is outdated as it was meant as information to consular posts without "computer facilities". |

Annex 11 Criteria for determining whether a travel document may bear a visa. | The contents of this Annex are not covered by the legal basis of the Code on Visas and thus it has not been taken over. The subjects are linked to SCH/Com-ex (98) 57 which should be brought into the Community legislative framework. |

Annex 12 Fees to be charged in EURO corresponding to the administrative costs of processing the visa application | Since a flat rate for the handling fee to be charged for the processing of applications for all types of visa was introduced in 2003, there is not need for reproducing the table. Moreover, the Code on visas does not cover “D” visas, “D+C” visas have been abolished and no general exemption should be granted for visas applied for at the external borders. The three “rules” set out in the Annex have been integrated into the body of the Regulation (Article 16). |

Annex 13 Filling in visa stickers | This Annex reproduces examples of filled in visa stickers. Such practical instructions should not be part of a legislative instrument. Therefore, an updated version of this annex should be attached to the Instructions on the practical application of the Visa Code (Article 43). The provision set out on page 1 of this Annex in relation to the maximum deadline for applying for a visa has been inserted into Article 10(1). |

Annex 14 Obligations as regards information to be sent by Contracting Parties when visas with limited territorial validity are issued, when the period of validity of uniform visas is cancelled, revoked or reduced and when national residence permits are issued | This annex contains a number of issues which are not connected. All provisions on - LTVs have been inserted into Article 21 - annulment of a visa have been inserted into Article 29 - revocation of a visa have been inserted into Article 30 - shortening the length of duration of stay authorised by a visa have been inserted into Article 31 Part 3 of the current Annex 14 dealing with residence permits is not relevant in the Code on Visas. |

Annex 17 Facilitated Transit Document (FTD) and Facilitated Rail Transit Document (FRTD) | This annex merely reproduces Council Regulations (EC) No 693/2003 and (EC) No 694/2003 thus it is inappropriate in the Code on Visas |

Annex 18 Table of representation for issuing uniform visas | These situations of representation should be notified to the Commission in conformity with Article 46(1)(a), who shall be in charge of publishing them |

2006/0142 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

establishing a Community Code on Visas

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 62 (2) (a) and(b) (ii) thereof,

Having regard to the proposal from the Commission[9],

Acting in accordance with the procedure laid down in Article 251 of the Treaty[10],

Whereas:

(1) In accordance with Article 61 of the Treaty, the creation of an area in which persons may move freely should be accompanied by measures with respect to external border controls, asylum and immigration.

(2) Under Article 62(2) of the Treaty, measures on the crossing of the external borders of the Member States must establish rules on visas for intended stays of no more than three months, for example the procedures and conditions for issuing visas by Member States.

(3) As regards visa policy, the establishment of a “common corpus” of legislation, particularly via consolidation and development of the acquis (the relevant provisions of the Convention implementing the Schengen Agreement of 14 June 1985[11] and the Common Consular Instructions[12]), is one of the fundamental components of “further development of the common visa policy as part of a multi-layer system aimed at facilitating legitimate travel and tackling illegal immigration through further harmonisation of national legislation and handling practices at local consular missions”, as defined in the Hague Programme: strengthening freedom, security and justice in the European Union[13].

(4) Member States should be represented for visa purposes in all third countries whose nationals are subject to visa requirements. They may decide that visa applications from nationals of specific third countries or applications for a particular type of visa must be submitted directly at a permanent consular post or diplomatic mission of the State that is the applicant’s main destination.

(5) Local consular cooperation is crucial for the harmonised application of the common visa policy and for proper assessment of migratory risk. Given the differences in local circumstances, the operational application of particular legislative provisions should be assessed among the Member States’ diplomatic missions and consular posts in individual locations as differences in their application of the legal provisions may not only give rise to “visa shopping” but also lead to different treatment of visa applicants.

(6) It is necessary to set out rules on the transit through international areas of airports in order to combat illegal immigration. Thus nationals from a common list of third countries should be required to hold airport transit visas, while putting an end to the possibility for Member States to require this type of visa from nationals of additional third countries.

(7) When a Member State hosts the Olympic Games and the Paralympic Games, a particular scheme facilitating the issuance of visas to members of the Olympic Family should apply.

(8) Bilateral agreements concluded between the Community and third-countries aiming at facilitating the processing of applications for short-stay visas may derogate from the provisions set out in this Regulation.

(9) The reception arrangements for applicants should be made with due respect for human dignity. Processing of visa applications should be conducted in a professional and respectful manner and be proportionate to the objectives pursued.

(10) Member States should ensure that the quality of the service offered to the public is reasonable and follows good administrative practices. To this end they should allocate appropriate numbers of trained staff as well as sufficient resources.

(11) The integration of biometric identifiers is an important step towards the use of new elements, which establish a more reliable link between the visa holder and the passport in order to avoid false identities. Therefore the personal appearance of the visa applicant - at least for the first application - should be one of the basic requirements for issuing a visa with the registration of biometric identifiers in the Visa Information System (VIS); first time applicants should not be allowed to submit applications via commercial intermediaries, such as travel agencies.

(12) New options for the organisation of consular offices such as co-location, common application centres and outsourcing should be introduced for receiving visa applications and capturing biometrics. An appropriate legal framework for these options should be established, in particular with regard to data protection. These forms of consular cooperation and outsourcing should be established in strict compliance with the general principles for issuing visas, respecting the data protection requirements set out in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

(13) The applicant should appear in person for the first enrolment of biometric identifiers. In order to facilitate the procedure of any subsequent application, it should be possible to copy the biometric data from the first application within a time frame of 48 months taking into account the retention period laid down in the VIS. After this period the biometric identifiers should be captured again.

(14) Statistical data is an important means of monitoring migratory movements and can serve as an efficient management tool. Therefore, such data should be compiled regularly in a common format.

(15) Provision should be made for a procedure enabling the Commission to adapt certain detailed practical rules governing the issuance of short-stay visas. In these cases, the measures needed to implement this Regulation should be taken pursuant to Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission[14].

(16) In order to assure the harmonised application of the Regulation at operational level, instructions should be drawn up on the practice and procedures to be followed by Member States’ diplomatic missions and consular posts when proces