Initiative of the Kingdom of Spain with a view to adopting a Council Regulation on the issue of visas at the border, including the issue of such visas to seamen in transit

(2002/C 139/04)

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the initiative of the Kingdom of Spain(1),

Having regard to the opinion of the European Parliament(2),

Whereas:

(1) The rules for issuing visas at the border to seamen in transit need to be clarified and updated, in particular to allow group transit visas to be issued at the border to seamen who are of the same nationality and are travelling in a group, as long as the period of transit is limited.

(2) It is therefore necessary to replace the rules contained in the Schengen Executive Committee Decision of 19 December 1996 on issuing visas to seamen in transit (SCH/Com-ex(96) 27)(3) by the rules set out in the present Regulation. In the interests of clarity, these rules should be amalgamated with the general rules contained in Schengen Executive Committee Decision of 26 April 1994 on the issue of visas at the border (SCH/Com-ex(94) 2)(4), which also corresponds to Annex XIV of the Common Manual. The said Decisions and Annex should therefore be repealed.

(3) When deciding on the format of the separate sheet mentioned in Annex I to which the group transit visa should be affixed, Member States should take into account the uniform format, as set out in Council Regulation (EC) No 333/2002 of 18 February 2002 on 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(5).

(4) The Council reserves the right, during the transitional period of five years referred to in Article 67(1) of the Treaty, and pending a review by the Council of the conditions under which such implementing powers would be conferred on the Commission after the end of that transitional period, to amend the Annexes of this Regulation as necessary. The reservation of such implementing powers to the Council is necessary in order to have a flexible procedure in place for an initial period after the adoption of this Regulation. This allows the Member States or the Commission to propose urgent amendments to the operational instructions contained in Annex I, as well as to the form contained in Annex II, in the light of the experience gained in their use.

(5) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not participating in the adoption of this Regulation, and is not bound by it or subject to its application. Given that this Regulation aims to build upon the Schengen acquis under the provisions of Title IV of the Treaty establishing the European Community, Denmark shall, in accordance with Article 5 of the said Protocol, decide within a period of six months after the Council has adopted this Regulation whether it will implement it in its national law.

(6) As regards the Republic of Iceland and the Kingdom of Norway, this Decision constitutes a development of the provisions of the Schengen acquis falling within the area referred to in Article 1, point A, of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis(6).

(7) Pursuant to Article 1 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland and the United Kingdom are not participating in the adoption of this Regulation. Consequently, and without prejudice to the provisions referred to in Article 4 of the Protocol, the provisions of this Regulation apply neither to Ireland nor to the United Kingdom,

HAS ADOPTED THIS REGULATION:

Article 1

1. In exceptional circumstances, a third-country national who is required to be in possession of a visa when crossing the external borders of the Member States, may be issued with a short-stay visa at the border where the following conditions are satisfied:

(a) he shall fulfil the conditions laid down by the provisions of Article 5(1)(a), (c), (d) and (e) of the Convention implementing the Schengen Agreement of 1985, signed at Schengen on 19 June 1990(7), hereinafter referred to as the "Schengen Convention";

(b) he shall submit supporting documents substantiating "unforeseeable and imperative" reasons for entry; and

(c) return to his country of origin or transit to a third State shall be assured.

2. A visa issued at the border when the conditions described in paragraph 1 are satisfied may, as appropriate, be either:

(a) a uniform visa; or

(b) a visa with limited territorial validity within the meaning of the provisions of Article 10(3) of the Schengen Convention.

In both cases, the visa issued shall not be valid for more than one entry. The validity of such short-stay visas shall not exceed 15 days.

3. A third-country national who applies for a transit visa at the border shall be in possession of the visas required to continue his journey to States of transit other than Member States, and for the State of destination. The transit visa issued shall allow for direct transit through the territory of the Member State or Member States concerned.

The validity of such a transit visa shall not exceed five days.

4. A third-country national falling within a category of persons for which it is obligatory to consult one or more of the central authorities of other Member States shall not, in principle, be issued with a visa at the border.

Nevertheless, a visa may be issued at the border for such persons in exceptional cases, in accordance with the provisions of Article 5(2) of the Schengen Convention.

Article 2

1. By derogation from Article 1(1), a seaman who is required to be in possession of a visa when crossing the external borders of the Member States may be issued with a transit visa at the border where:

(a) he fulfils the requirements set out in Article 1(1)(a) and (c), and

(b) he is crossing the border in question in order to embark on or disembark from a ship on which he will work or has worked as a seaman.

The transit visa shall include a mention that the holder is a seaman.

2. Seamen who are of the same nationality and travelling in a group of between five and fifty individuals may be issued with a group transit visa at the border where the requirements of paragraph 1 above are met in respect of each of the seamen in the group.

3. Before issuing a visa at the border to a seaman or seamen in transit, the competent national authorities shall comply with the operational instructions set out in Annex I.

4. When carrying out these operational instructions, the competent national authorities of the Member States shall exchange the necessary information concerning the seaman or seamen in question by means of a duly completed form for seamen in transit as set out in Annex II.

Article 3

The Council, acting by qualified majority, at the initiative of one of its members or on a proposal from the Commission, shall amend Annexes I and II as necessary.

Article 4

This Regulation shall not affect the competence of Member States with regard to the recognition of States and territorial units and passports, travel and identity documents issued by their authorities.

Article 5

1. The following shall be repealed:

(a) Schengen Executive Committee Decision (SCH/Com-ex(94) 2) of 26 April 1994;

(b) Schengen Executive Committee Decision (SCH/Com-ex(96) 27) of 19 December 1996, and

(c) Annex XIV of the Common Manual.

2. Point 5 and point 5.1 of Part II of the Common Manual shall be replaced by a reference to the text of this Regulation as follows: "The rules on issuing visas at the border are contained in Council Regulation (EC) No .../2002 of ... on the issue of visas at the border, including the issue of such visas to seamen in transit."

3. The following sentence shall be added at the end of point 2.1.4 of Part I of the Common Consular Instructions:

"By derogation from the foregoing, group transit visas may be issued to seamen in accordance with the provisions of Council Regulation (EC) No .../2002 of ... on the issue of visas at the border, including the issue of such visas to seamen in transit."

Article 6

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

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.

Done at Brussels, ...

For the Council

The President

...

(1) ...

(2) ...

(3) OJ L 239, 22.9.2000, p. 182.

(4) OJ L 239, 22.9.2000, p. 163.

(5) OJ L 53, 23.2.2002, p. 4.

(6) OJ L 176, 10.7.1999, p. 31.

(7) OJ L 239, 22.9.2000, p. 19.

ANNEX I

OPERATIONAL INSTRUCTIONS FOR ISSUING VISAS AT THE BORDER TO SEAMEN IN TRANSIT WHO ARE SUBJECT TO VISA REQUIREMENTS

The objective of these operational instructions is to provide rules for the exchange of information between the competent authorities of the Member States applying the Schengen acquis with respect to seamen in transit subject to visa requirements. Insofar as a visa is issued at the border on the basis of the information that has been exchanged, the responsibility lies with the Member State issuing the visa.

For the purposes of these operational instructions:

"Schengen port" means a port constituting an external border of a Member State applying in full the Schengen acquis;

"Schengen airport" means an airport constituting an external border of a Member State applying in full the Schengen acquis; and

"Schengen territory" means the territory of the Member States in which the Schengen acquis is applied in full.

I. Signing on a vessel berthed or expected at a Schengen port

(a) Entry into Schengen territory via an airport situated in another Member State applying in full the Schengen acquis:

- the shipping company or its agent shall inform the competent authorities at the Schengen port where the ship is berthed or expected that seamen subject to visa requirements are due to enter via a Schengen airport. The shipping company or its agent shall sign a guarantee in respect of those seamen,

- the said competent authorities shall verify as soon as possible whether the information provided by the shipping company or its agent is correct and examine whether the other conditions for entry into the Schengen territory have been satisfied. Within the framework of that examination the travel route within the Schengen territory shall also be verified e.g. by reference to the airline tickets,

- the competent authorities at the Schengen port shall inform the competent authorities at the Schengen airport of entry, by means of a duly completed form for seamen in transit who are subject to visa requirements (as set out in Annex II), sent by fax, electronic mail or other means, of the results of the verification and indicate whether a visa can in principle be issued at the border,

- where the verification of the available data is positive and the outcome clearly concurs with the seaman's declaration or documents, the competent authorities at the Schengen airport of entry or exit shall issue a transit visa at the border with a maximum validity of five days. Furthermore, in such cases the seaman's travel document referred to above shall be stamped with a Schengen entry or exit stamp and given to the seaman concerned.

(b) Entry into the Schengen territory via a land or sea border situated in another Member State applying in full the Schengen acquis:

- the procedure is the same as that for entry via a Schengen airport except that the competent authorities at the border post via which the seaman concerned enters the Schengen territory shall be informed.

II. Leaving service from a vessel that has entered a Schengen port

(a) Exit from the Schengen territory via an airport situated in another Member State applying in full the Schengen acquis:

- the shipping company or its agent shall inform the competent authorities at the said Schengen port of the entry of seamen subject to visa requirements who are due to leave their service and exit from the Schengen territory via a Schengen airport. The shipping company or its agent shall sign a guarantee in respect of those seamen,

- the competent authorities shall verify as soon as possible whether the information provided by the shipping company or its agent is correct and examine whether the other conditions for entry into the Schengen territory have been satisfied. Within the framework of that examination the travel route within the Schengen territory shall also be verified e.g. by reference to the airline tickets,

- where the verification of the available data is positive, the competent authorities shall issue a transit visa with a maximum validity of five days.

(b) Exit from the Schengen territory via a land or sea border situated in another Member State applying in full the Schengen acquis:

- the procedure is the same as that for exit via a Schengen airport.

III. Transferring from a vessel that entered a Schengen port to a vessel that will sail from a port situated in another Member State applying in full the Schengen acquis

- The shipping company or its agent shall inform the competent authorities at the said Schengen port of the entry of seamen subject to visa requirements who are due to leave their service and exit from the Schengen territory via another Schengen port. The shipping company or its agent shall sign a guarantee in respect of those seamen,

- the competent authorities shall verify as soon as possible whether the information provided by the shipping company or its agent is correct and examine the other conditions for entry into the Schengen territory have been satisfied. The competent authorities at the Schengen port from which the seamen will leave the Schengen territory by ship shall be contacted for the examination. A check shall be carried out to establish whether the ship they are joining is berthed or expected there. Within the framework of that examination the travel route within the Schengen territory shall also be verified,

- where the verification of the available data is positive, the competent authorities issue a transit visa with a maximum validity of five days.

IV. Issue of group visas to seamen in transit at the border:

- seamen who are of the same nationality and are travelling in a group of between five and 50 individuals may be issued at the border with a group transit visa, which shall be affixed to a separate sheet,

- this separate sheet shall include, numbered in sequence, the personal data of all the seamen (surname and forename, date of birth, nationality and travel document number) covered by the visa. The data on the first and last seaman shall appear in duplicate to avoid falsifications and additions,

- for the issue of this visa, the procedures laid down in these operational instructions for the issue of individual visas to seamen shall be followed.

ANNEX II

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DETAILED DESCRIPTION OF FORM

The first four points deal with the identity of the seaman

1. A. Surname(s)(1)

B. Forename(s)

C. Nationality

D. Rank/Grade.

2. A. Place of birth

B. Date of birth.

3. A. Passport number

B. Date of issue

C. Period of validity.

4. A. A. Seaman's book number

B. Date of issue

C. Period of validity.

Points 3 and 4 have been shown separately for clarity since, depending on the nationality of the seaman and the Member State being entered, a passport or a seaman's book can be used for identification purposes.

The next four points deal with the shipping agent and the vessel concerned.

5. Name of shipping agent (the individual or corporation who represents the shipowner on the spot in all matters relating to the shipowner's duties in fitting out the vessel).

6. A. Name of vessel

B. Flag (under which the merchant vessel is sailing).

7. A. Date of arrival of vessel

B. Origin (port) of vessel

Letter "A" refers to the vessel's date of arrival in the port where the seaman is to sign on.

8. A. Date of departure of vessel

B. Destination of vessel (next port).

Points 7A and 8A give indications regarding the length of time for which the seaman may travel in order to sign on. It should be remembered that the route followed is very much subject to unexpected interferences and external factors such as storms, breakdowns, etc.

The next four points clarify the reason for the seaman's journey and his destination.

9. The "final destination" is the end of the seaman's journey. This may be either the port at which he is to sign on or the country to which he is heading if he is leaving service.

10. Reasons for application.

(a) In the case of signing on, the final destination is the port at which the seaman is to sign on.

(b) In the case of transfer to another vessel within the Schengen territory, it is also the port at which the seaman is to sign on. Transfer to a vessel situated outside the Schengen territory must be regarded as leaving service.

(c) In the case of leaving service, this can occur for various reasons, such as end of contract, accident at work, urgent family reasons, etc.

11. Means of transport

List of means used within the Schengen territory by the seaman in transit who is subject to a visa requirement to reach his final destination. On the form, the following three possibilities are envisaged:

(a) Car (or coach)

(b) Train

(c) Aeroplane.

12. Date of arrival (on the Schengen territory)

Applies primarily to a seaman at the first Schengen airport or border-crossing point (since it may not always be an airport) at the external border via which he wishes to enter the Schengen territory.

Date of transit

This is the date on which the seaman signs off at a port in the Schengen territory and heads towards another port also situated in the Schengen territory.

Date of departure

This is the date on which the seaman signs off at a port in the Schengen territory to transfer to another vessel at a port situated outside the Schengen territory or the date on which the seaman signs off at a port in the Schengen territory to return to his home (outside the Schengen territory).

After determining the three means of travel, available information should also be provided concerning those means:

(a) car, coach: registration

(b) train: name, number, etc.

(c) flight data: date, time, number.

13. Formal declaration signed by the shipping agent for the stay and, if applicable, repatriation costs.

If the seamen are travelling in a group, each one has to fill in the data for points 1A to 4C.

(1) Please give the surname(s) that appear in the passport.