Proposal for a regulation, based on Article 100C of the Treaty establishing the European Community, determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States
Date: 1993-12-10
Institutions: European Commission
Subjects: admission of aliens, approximation of policies, exchange of information, foreign national, frontier, third country

COMMISSION OF THE EUROPEAN  COMMUNITIES 

C0M(93)684 

f i n al 

Brussels,  10  December  1993 

fin"Mtlf^Klttffn 

frtffl  t t tt 

frMWlIftion 

to  the  Council 

arm the European Parliament 

(I) 

(fi) 

Proposal  for a decision,  based on Article K3 of the Treaty on 
European  Union establishing  the  Convention on the crossing of 
the external  frontiers of the Member States. 

Proposa»  for a regulation, based on Article 1QPÇ of the  Treaty 
establishing  the  European  Community,  determining  the  third 
countries whose nationals must  be In possession of a visa  when 
crossing the external  borders of the Member  states. 

COMMISSION OF T HE E U R O P E AN  COMMUNITIES 

Communication  from  the Commission  to  the  Council 
and  the European  Parliament 

( I ) 

Proposal  for  a  decision,  based  on  Article  K3  of  the  Treaty  on 

European  Union  establishing  the  Convention  on  the  crossing  of 
the external  frontiers of  the Member  States. 

(II) 

Proposal  for  a  regulation,  based  on  Article  100C  of  the  Treaty 
establishing  the  European  Community,  determining  the  third 
countries whose  nationals  must  be  in possession  of  a  visa  when 
crossing  the external  borders of  the Member  States. 

1.  The Commission  herewith  transmits  to  the Council  and  the  Parliament 
two  proposals  which  are  closely  linked  and  need  to  be  examined 
together. 

2.  The  need  for  a  revised  draft  of  the  Convention  on  the  crossing  of 
the  external  frontiers  of  the  Member  States  results  from  a  number  of 
relevant  developments  which  have  taken  place  since  negotiations  on  the 
earlier  draft,  conducted  by  Ministers  responsible  for  immigration 
policy,  were  broken  off  in  June  1991  when  it  proved  impossible  to  find 
(the  territorial 
a  solution  to  the  sole  outstanding  question 
application  article)  which  was  preventing  the  signature  of  the 
Convention.  The  text  proposed  by  the  Commission  does  not  attempt  to 
solve  this  question  which  will  therefore  require  sustained  further 
bilateral  negotiations  between  the  two  Member  States  principally 
concerned. 

3.  The  most  significant  such  development  was  the  entry  into  force  on 
1 November  1993  of  the  Treaty  on  European  Union  itself,  particularly 
its  Article  100C.  This  article  provides  that  certain  aspects  of  visa 
policy,  hitherto  covered  by  articles  in  the  draft  Convention,  should 
pass  to  Community  competence  and  be  adopted  on  the  basis  of  Community 
instruments. 

4.  Together  these  draft  proposals  cover  all  the  substantive  elements 
previously  brought  together  in the  single  instrument  represented  by  the 
draft  Convention.  The  explanation  of  why  each  of  the  changes  to  the 
Convention  is necessary  is set  out  in the explanatory  memorandum. 

5.  These  proposals,  once  adopted,  will  provide  the  legislative  base 
for  establishing  the  agreed  rules  for  crossing  the  external  borders  in 
which  all  Member  States  can  have  confidence.  As  the  European  Council 
has  often  stated,  most  recently  at  its  meeting  in  Edinburgh  in 
December  1992,  this  is an  essential  element  in  the  creation  of  an  area 
without  internal  frontiers, as provided  for  in Article  7A  of  the  Treaty 
on  European  Union. 

Rue de la Loi 200 - B-1049 Bruxelles, Belgium - Office: 
Telephone: direct  line (+32-2)29 
Telex: COMEU B 21877 - Telegraphic addrett: COMEUR Bruxelles 

standard 299.11.11 - F a x: 296.56.97 

S)éL 

PROPOSAL  FOR  A  COUNCIL  DECISION 

ESTABLISHING  A  CONVENTION 

ON  CONTROLS  ON  PERSONS 

CROSSING  EXTERNAL  FRONTIERS 

(presented  by  the  Commission  to  the  Council 
in  accordance  with  Article  K.3(2) 
of  the Treaty  on  European  Union) 

Ak 

CONTENTS 

Explanatory  memorandum 

Proposal  for  a Council  Decision 

Proposed  Convention  on Controls 
on  Persons  Crossing  External  Frontiers 

page 3 

page  13 

page  17 

EXPLANATORY  MEMORANDUM 

1. 
The  efforts  of  the  Ministers  responsible  for  immigration,  working  through 
intergovernmental  cooperation,  to  conclude  a  Convention  on  crossings  at  the external 
frontiers  of  the  Member  States  of  the  European  Community  -  something  which  they 
regard as vital  for the establishment  of an area without  internal  frontiers  as required by 
Article 7a of the Treaty establishing  the European  Community - have been overtaken by 
events  in  the  shape  of  the  European  Union.  For  the  Treaty  on  European  Union 
introduces a specific  procedure for the conclusion  of conventions  in the fields  of justice 
and home affairs. 

On the formal  side,  the work done in the past cannot  have any  formal  status  since the 
Convention,  not  having been  signed,  does  not exist  legally.  As  regards  the substance, 
however,  there is^îttll the political outcome of the negotiations conducted between  1989 
and  1991,  in the course of which a consensus  had emerged  between  the Member States 
on  the basic  rules  that should  govern  crossings  at external  frontiers,  even  though that 
agreement  never  took  concrete  shape  because  of  the  difference  between  the  United 
Kingdom  and Spain over Gibraltar. 

2. 
The  aim  of  this  proposal  is to  preserve  that  political  consensus  by  adapting 
the text in line with the legal  requirements of the Union Treaty  - in particular Title VI 
- and of  the future  European  Economic  Area. 

I.  ORIGIN  OF THE DRAFT  CONVENTION 

Earlier work 

3. 
Following  the  programme  approved  by  the  Madrid  European  Council  for  the 
establishment  of  an  area  without  internal  frontiers  as  required  by  Article  7a  ("Palma 
document"),  the Member States  started  work at intergovernmental  level  on drawing up 
a Convention  on crossings  at the external  frontiers  of the Member States.  Supported by 
successive  European Councils, this work, conducted under the authority of the Ministers 
responsible  for  immigration,  resulted  in the Member States reaching agreement  in June 
1991  on a set of principles  that were to be given  formal  shape  in a Convention,  which 
the  Ministers  were  due to sign  at the end of  the Luxembourg  Presidency. 

4. 
In the final  stages  of  the negotiations,  however,  a difference  arose  between  the 
United  Kingdom  and Spain over  the territorial  extent of  the Convention  with  regard  to 
Gibraltar.  Despite  two  years  of  attempts  by  successive  presidencies  to  find  a 
compromise,  the Convention was never signed.  Nevertheless,  in the absence of a formal 
conclusion  by  the  Ministers,  it  was  decided  that  all  the  other  provisions  of  the 
Convention  would  be deemed to have been  accepted tie facto  by  the Member States. 

5. 
There matters stood until the entry into force of the Union Treaty on  1  November 
1993. Title VI of the Treaty provides  for cooperation  between the Member States in the 
fields  of justice  and home affairs. 

As regards the substance,  Article K. 1  states that inter alia "rules governing  the crossing 
by  persons  of  the external  borders  of  the  Member  States  and  the exercise  of  controls 
thereon" (point (2)) shall  be regarded as matters of common  interest  "[fjoi* the purposes 
of achieving the objectives of the Union,  in particular the free movement of persons, and 
without prejudice  to the powers of  the European  Community".  As  far as the means are 
concerned,  Article  K.3(2)  spells  out  three  courses  open  to  the  Council,  including  the 
option  of  "draw[ing]  up conventions,  which  it  shall  recommend  to  the  Member  States 
for adoption in accordance with their respective constitutional  requirements"  (point (c)). 
The  special  procedure  applicable  is  laid down  in Title  VI. 

Need  for  adoption  of  the Convention 

The Ministers  responsible  for immigration,  recognizing  the need to abide by this 
6. 
new legal  framework,  are concerned to preserve  the political consensus arrived at in the 
earlier  negotiations.  Thus  at their  meeting  in Copenhagen  on  1 and 2 June  1993: 

"Ministers  took  note  of  the possible  impact  of  the Treaty  on  European 
Union and  the Agreement  on  the European  Economic  Area  on  the draft 
Convention  on the crossing  of external  frontiers.  Ministers  agreed  that: 

any changes made to the draft Convention  to bring it into line with 
the Treaty on European Union should be technical  in character and 
confined  to  what  is  strictly  necessary;  there  is  no  question  of 
reopening negotiations on any other articles than those which need 
to be revised  for  that purpose; 
this is a purely  technical  matter and must not be allowed  to cause 
an impasse on legal  grounds; 
there  must be no legal  vacuum." 

The  main  developments  since  1991  requiring  amendments  to  the  text  are  as 

7. 
follows: 

(a) 

Changes  in  the Community  framework 

Firstly,  in  July  1991  the  full  range  of  Community  legislation  to  remove 
controls  on  goods at  internal  frontiers  had  not  yet been  adopted.  This  is 
now  fully  in  place  and  controls  have  effectively  been  removed  since  1 
January  1993. 

Secondly,  on  2  May  1992  the  Community  concluded  the  Agreement 
establishing  the  European  Economic  Area,  which  -  once  it  enters  into 
force  -  will  give  nationals  of  the  EFTA  countries  covered  by  that 
Agreement  the  same  rights  of  entry  and  residence  as  nationals  of  the 
Member  States. 

(b) 

Procedure  introduced  by Title  VI  of  the  Union  Treaty 

Article  K.3 of the Treaty  lays down a special  procedure  for  the adoption  of  legal 
instruments  in  the  context  of  cooperation  in  the  fields  specified  in  Title  VI, 
including  in  particular  the  right  of  initiative  for  the  Commission  as  well  as  the 
Member  States, consultation of Parliament  (by the Presidency),  and the option of 
granting jurisdiction  to the Court of Justice.  Now that the Treaty  has entered  into 
force,  the Member  States can  therefore  no longer conclude conventions  between 
one another  in the areas listed  in Article  K. 1  in the traditional  manner  prescribed 
by  public  international  law. 

(c) 

Community  competence  regarding  visas 

Under the new Article  100c of the EC Treaty,  the tasks of determining  "the third 
countries  whose  nationals  must  be  in  possession  of  a  visa  when  crossing  the 
external  borders  of  the  Member  States"  and  preparing  "measures  relating  to  a 
uniform  format  for  visas"  are  matters  of  Community  competence.  They  must, 
then,  be dealt with through  decisions  taken  under the procedures  laid down  in the 
EC  Treaty  rather  than  in Title  VI  of  the  Union  Treaty. 

II.  AMENDMENTS  REQUIRED 

Grounds  for  the Commission  initiative 

8. 
Under  the intergovernmental  approach  followed  in preparing  the  1991 draft,  the 
Commission  enjoyed  no right  of  initiative.  Now  that the  Union  Treaty  has entered  into 
force,  it does have a legal right of initiative, a right also enjoyed  by the Member  States 
(first  indent  of  Article  K.3(2)).  As  guardian  of  the Treaty,  it  must  act  to  prevent  any 
danger  of  further  delay  in  ensuring  the  free  movement  of  persons  in  accordance  with 
Article 7a of the EC Treaty  that might result  from  failure  to adopt the Convention.  The 
Edinburgh  European  Council  clearly  stated  that  one  of  the  essential  instruments  was 
implementation of the Convention. The issue should therefore  be referred  to the Council 
as  soon  as  possible. 

Form  of  the proposal 

9. 
Article K.3 defines  the Council's  role in the following  terms:  "The Council  may 
...  draw  up conventions  which  it  shall  recommend  ...  for  adoption".  Article  220 of  the 
EEC  Treaty  simply  provided  that:  "The  Member  States  shall  ...  enter  into  negotiations 
with  each  other  with  a  view  to  securing  ...".  Consequently  the  Convention  should  no 
longer  take the form  of a traditional  instrument  of public international  law concluded  by 
the plenipotentiaries  of  the Heads of  State. 

The  Council,  then,  is  now  entitled  to  draw  up  conventions.  It  has a  specific  power  to 
recommend  their  adoption  by  the  Member  States  in  accordance  with  their  respective 
constitutional  requirements.  These two functions  will be reflected  in a specific act of the 
Council,  signed  solely  by  its  President  and  distinct  from  the Convention  itself. 

10. 
Since the Treaty  gives no indication  as to the legal  nature of the act by which  the 
Council  is  to  exercise  this  specific  power  and  Article  189  of  the  EC  Treaty  does  not 
apply  to Title  VI,  the act  must  necessarily  be a decision  sui generis.  Thus  the  present 
proposal  comprises  two separate parts: a "Council Decision"  and, annexed to it,  the text 
of  the  Convention. 

Proposed  Council  Decision1 

11. 
The  preamble  comprises  the  normal  citations  (legal  basis,  reference  to  the 
Commission's  proposal,  Parliament's  involvement as prescribed  by Article  K.6)  plus a 
series  of  recitals  giving  the grounds  not  only  for  the  Decision  itself  but  also  for  the 
Convention annexed to it.  The recitals  originally  preceding  the body of  the Convention 
are  now  included  with  the  Decision.  Their  wording  has  been  altered  in  line  with  the 
Treaty  to include references  to closer cooperation on visa policies (fourth  recital) and to 
the European  Convention  on Human  Rights  (eighth recital). 

A further recital has been added, referring  to Article K. 1  and in particular to the fact that 
the Convention  is without prejudice to the powers of the Community.  This  replaces the 
former  Article  27(2),  which  is  not  now  needed  as  the  Convention  comes  under  the 
institutional  arrangements  of  the Union. 

12. 
The substantive provisions  embody the Council's exercise of its powers.  Besides 
formally  establishing  the text of  the Convention  annexed  to  the  Decision,  Article  1(1) 
spells out the recommendation  to the Member States to adopt it in accordance with their 
respective  constitutional  requirements.  For  this  provision  to be  effective,  a time  limit 
needs  to be specified.  Since  the Convention  serves  an objective  for  which  the deadline 
was  1  January  1993,  the  time  limit  must  needs  be  short  and  is  therefore  set  at 
31  December  1994.  The  Convention  will,  then,  enter  into  force  by  1 January  1995, 
which was the date specified  in Article 6 laying down a derogation applicable to airports; 
this  reference  is  thus  superfluous  and  can  be  deleted  in  paragraphs  1 and  4  of  that 
Article.  This  does  not affect  the timing. 

13. 
Since  the  Decision  is  the operative  instrument,  it  should  include  the  provisions 
governing  the Convention's entry into force that were contained in the former Article 32 
of  the Convention.  These  comprise  the obligation  on  Member  States  to give  notice of 
their adoption  of  the Convention  within  the time limit  laid down  (Article  1(2))  and the 
rules  governing  the Convention's  entry  into force  (Article 2). 

Furthermore,  as  the  Convention  is  being  concluded  under  the  European  Union,  the 
instruments  of  ratification  now  have  to be deposited  with  the Secretary-General  of  the 
Council,  as  for conventions  concluded  under  Article 220 of  the EC Treaty. 

Comparisons  and references  (former  Article  ...)  are to the July  1991  proposal. 

Amendments  to the text of the Convention  itself 

14. 
The main element behind the amendments made to the July  1991 text is the entry 
into force of the Union Treaty.  There is also the need to ensure that the Convention will 
be compatible with the Agreement on the European Economic Area once that comes into 
force.  To  make  the  structure  clearer,  the  Convention  has  been  divided  into  titles and 
articles,  each of  them carrying  a heading. 

(a) 

Amendments  required by the Treaty  on  European  Union 

(i) 

Purely  formal 

15. 
Being  concluded  in the framework  of  the Union,  the Convention  is  necessarily 
between  the  Member  States.  It  is,  then,  unnecessary  to  mention  this  explicitly  every 
time: this change has been  made in the title and throughout the body of the Convention. 
The former Articles 33 and 34 on the accession of future Member States and the revision 
of the Convention should also be deleted,  these matters now being governed  by Articles 
O and K.3  of  the Union Treaty. 

With  the  recitals  incorporated  in  the  Decision,  there  is  no  need  to  repeat  them  in the 
Convention. Furthermore, since the Convention is annexed to the Decision, no provision 
needs to be made for  its signature by the plenipotentiaries  of the Heads of  State.  These 
deletions do not affect  the substance  in any way. 

16. 
The  Convention  falls  under  the  Union  Treaty,  which  must  be  applied  without 
prejudice  to  the  powers  of  the  Community,  and  so  it  cannot  include  a  definition  of 
internal  frontiers,  since that is a matter which  falls  under the EC Treaty.  Consequently 
reference  should be made to the relevant Community instruments.  The new Article 1(h), 
replacing  the  former  Article  1(0  and  (g),  no  longer  gives  a substantive  definition  but 
merely  refers  to the Community  instruments  defining  intra-Community  flights  and sea 
crossings.2  This change does not affect  the substance. 

The  same  is  true  of  Article  13(2):  work  to  prepare  the  computerized  system  is 
proceeding  under the Convention  establishing  a European  Information  System.  This  is 
simply  a clarification. 

At present these are paragraphs 3 and 5 of Article 2 of Council Regulation (EEC) 
N°  3925/91  of  19 December  1991. 

(ii)  Formal  amendments  with practical  consequences 

17. 
The  Treaty  now  contains  rules  on  the  procedures  for  the  application  of 
conventions,  and  so  the  relevant  provisions  of  the  Convention  must  be  amended 
accordingly.  The Committee set up in the former  Article 26 as a decision-making  body 
need no longer be defined  at all.  This  power  now  rests  with  the Council,  but that need 
not  be spelled  out because  the second  subparagraph  of  Article  K.3(2)(c)  does  so.  It is 
sufficient  to  refer  to the measures  adopted  in  implementation  of  the Convention.  This 
change is  reflected  in the many articles  which  referred  to the Committee. 

These  rules  must  conform  to  the  principle  laid  down  in  Title  VI  of  the  Treaty:  a 
two-thirds  majority  is  the  rule,  while  unanimity  is  the  exception.  The  scope  of  such 
exceptions  must  be  expressly  stated  in  the  Convention.  Consequently  except  where 
provision  is made for some other procedure,  reference to "measures in implementation" 
implies  recourse  to  the  procedure  laid  down  in  the  second  subparagraph  of  Article 
K.3(2)(c) (which applies unless a convention provides otherwise). This involves adoption 
within  the  Council  by  a  majority  of  two  thirds.  For  practicality's  sake,  the  same  rule 
should  apply  for  all  implementing  measures  provided  for  under  the  Convention. 
Realistically,  to  safeguard  the  interests  of  the Member  States  it is  reasonable  to make 
provision  for  recourse  to  unanimity  for  measures  not  expressly  provided  for  in  the 
Convention.  Article 26 is  now worded  accordingly. 

18. 
As  regards  the  territorial  extent  of  the  Convention,  the  Gibraltar  issue  that 
blocked  progress  in  1991  remains  unresolved,  so  the Commission  feels  unable  to take 
a  position.  A  solution  can  only  come  from  the  bilateral  negotiations  that  have  been 
under way since  1991.  The Commission  therefore  proposes  that the relevant  article be 
left  blank  for  the  time  being  so  that  negotiations  can  proceed  undisturbed.  This  will 
enable the Council  to go ahead with considering the text straight away and to incorporate 
whatever  emerges  from  the parties'  efforts  when  the time comes. 

19. 
The Convention is now established by the Union and should not therefore include 
a Final  Act.  The Member States could,  however,  submit declarations  to be recorded in 
the Council  minutes. 

10 

(iii) 

Substantive  amendments  reflecting  transfers  of  powers  and  secondary 
legislation 

Under  Article  100c  of  the  EC  Treaty  the  Community  is  now  responsible  for 
20. 
certain aspects of visa policy: determining which countries'  nationals are subject to visa 
requirements and deciding on a uniform  format for visas. This transfer of powers means 
that the Council  will  have to adopt Community  legislation.  To ensure consistency  with 
the Treaty  and  any  future  Community  decisions,  the provisions  in  the old  text  of  the 
Convention  that  now  fall  within  the  scope  of  Article  100c  have  to  be  deleted.  The 
relevant passages in Articles  17,  18,  19(3) and 21 have therefore been removed and the 
rest of the text amended accordingly.  Likewise there needs to be a definition of "uniform 
visa";  this  is added by the new Article  1(f). 

Article  K.l  clearly  states  that Title  VI applies  "without prejudice  to the powers 
21. 
of the European  Community",, and therefore  allowance has to be made for the fact that 
Community  law already deals to some extent with the crossing  of  frontiers,  although no 
distinction  is  made  between  internal  and  external  frontiers.  The  Convention  cannot 
undermine this division of responsibilities  and therefore applies primarily to persons not 
entitled  under Community  law.  This is spelled out in the new paragraph 2 of  Article  1, 
making  it possible  thereafter  to refer  simply  to "persons".  Nevertheless  common  rules 
applicable  to  all  travellers  are  still  necessary.  It  is  essential  to  be  able  to  distinguish 
between persons entitled  under Community law and other travellers.  These are the only 
controls  that  apply  to  all  travellers  regardless  of  their  situation.  The  Convention  can 
make this distinction  because these provisions  are not contrary  to Community  law. The 
principle  is  stated  in  the second  recital.  The arrangements  governing  such  controls are 
laid  down  in  Article 2. 

The July  1991  version  of  the Convention  was drawn  up before  the adoption  of 
22. 
the legislation  on goods  transport  and so does not reflect  those provisions.  Firstly,  the 
title of  the Convention  itself  needs  to be amended  to  make clear  that  it  relates  only to 
controls on persons.  Secondly,  since Articles 5(5) and 6(2) deal inter alia with controls 
on baggage,  they  now also  state that such controls  are to be effected  without  prejudice 
to Community  provisions.3 

In particular  this  means Council  Regulation  N°  3925/91  of  19 December  1991 
concerning  the elimination of controls and formalities applicable to the cabin and 
hold  baggage  of  persons  taking  an  intra-Community  flight  and  the baggage  of 
persons making an intra-Community sea crossing and Com mission Regulation N° 
1823/92 of  3 July  1992 implementing  the Council  Regulation. 

11 

(iv) 

Substantive amendments reflecting  the new legal framework  laid down by 
Title VI 

Article  K.3  of  the Treaty  states  that  M[s]uch conventions  may  stipulate  that the 
23. 
Court of Justice  shall  have jurisdiction  to interpret  their provisions  and to rule on any 
disputes regarding  their application,  in accordance with such arrangements  as they may 
lay down." The Commission considers  that recourse  to this provision  is warranted both 
to ensure the uniform interpretation of the Convention, given the link between the subject 
of  the  Convention  and  matters  falling  under  the  EC  Treaty,  and  to  resolve  any 
differences  that may arise over its implementation.  Such a provision also serves to meet 
the concerns  of  the European  Parliament and non-governmental  organizations. 

Provision  for  uniform  interpretation  is  made through  the preliminary  ruling  procedure 
in accordance with Article  177 of the EC Treaty.  The Court of Justice will also be able 
to rule on any dispute regarding the implementation of the Convention on application by 
a  Member  State or the Commission.  That is the purpose  of  the new  Article 29. 

(b) 

Amendments  required  by the future  European  Economic  Area 

24.  Once it enters into force the Agreement of 2 May  1992 establishing  the European 
Economic  Area  will  allow  nationals  of  the  EFTA  member  countries  covered  by  the 
Agreement  to be treated  in the same  way  as  nationals of  Community  countries  for the 
purposes  of  entry  controls  and  residence.  The  Commission  considers  that  this 
development can best be catered  for by replacing the term "national of a Member State" 
by "person entitled under Community  law",  newly defined  at (a) of  Article  1  to include 
not only  Union citizens but also third-country  nationals who, by agreement between the 
European  Community  and such countries,  have identical  rights  of entry  and residence. 

This approach also makes it possible  to stipulate that the family  members,  as defined in 
Article  10 of  Council  Regulation  N°  1612/68  of  15 October  1968,  of  a  national  of a 
Member State who have third-country  nationality  may not be subjected,  under the terms 
of  Directives  68/360,  73/148,  90/364,  90/365  and  93/...  on  entry  and  residence,  to 
controls beyond those applied to nationals of  Member States,  with the sole exception of 
an entry visa  requirement  (this exception  is contained  in the second  sentence of  Article 
5(2)). 

25. 
These,  then,  are  the  amendments  to  the  draft  Convention  required  by  legal 
developments  since July  1991. The resulting  text reflects  the endeavour to conform  to 
the conclusions  adopted  by  the Ministers  responsible  for  immigration  on  1 June  1993 
and, above all, not to reopen negotiations on a text already agreed in substance,  the swift 
adoption  of  which  is  a  top political  priority  in  order  to  secure  the  free  movement  of 
persons. 

12 

PROPOSAL FOR  A COUNCIL  DECISION 

ESTABLISHING  A CONVENTION  ON 

CONTROLS  ON  PERSONS  CROSSING 

EXTERNAL  FRONTIERS 

13 

PROPOSAL  FOR  COUNCIL  DECISION  N° 
of 

establishing  a  Convention 
on  Controls  on  Persons  Crossing 
External  Frontiers 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard  to the Treaty on European  Union, and in particular Article K.3(2) thereof, 

Having  regard  to the proposal  from  the Commission,' 

Having  regard  to the opinion  of  the European  Parliament, 

Whereas the rules governing crossings by persons at the external  frontiers  of the Member 
States and  the exercise of controls on such crossings  are,  by virtue of Article  K. 1  of the 
Treaty  on  European  Union  and  without  prejudice  to  the  powers  of  the  European 
Community,  matters of common  interest  which  may be the subject  of cooperation  under 
Title  VI; 

Whereas  the rules governing crossings  at the external  frontiers  of the Member  States by 
citizens  of  the  Union  and  other  persons  entitled  under  Community  law  fall  within  the 
scope  of  the  Treaty  establishing  the  European  Community;  whereas  this  Convention 
primarily  defines  the  rules  applicable  to  persons  not  entitled  under  Community  law; 
whereas  controls  on crossings  at external  frontiers  must cover  all  persons  arriving  at a 
frontier  to the extent necessary  to distinguish  those entitled  under  Community  law  from 
other  persons; 

Whereas Article 7a of the Treaty establishing the European  Community sets the common 
objective  of an area  without internal  frontiers  in which  the free  movement of persons  is 
ensured; 

OJ 

14 

Whereas  attainment  of  this objective  requires  effective  controls,  in  line  with  common 
criteria,  on  persons  at  the external  frontiers  of  those  States  and closer  cooperation  on 
implementing  a common  visa policy; 

Whereas the controls on persons conducted by each Member State at its external frontiers 
must  be carried  out according  to rules  which  should  be adopted  in common,  with due 
regard  for  the interests  of  all  Member States; 

Whereas the aim of such controls is to enable threats to public policy and public security 
to  be  eliminated  in  the  Member  States  of  the  European  Union  and  to  combat  illegal 
immigration,  while preserving  the openness  of those States to the rest of  the world and 
their intensive exchanges with other countries,  particularly in the cultural,  scientific and 
economic  spheres; 

Whereas  the  introduction  of  a  system  of  controls  at  external  frontiers  requires  that 
particular attention be paid to the questions of infrastructure  and frontier  surveillance on 
the part of countries which, because of their geographical  position and configuration,  are 
exposed  to increased  migratory  pressure; 

Whereas  the Member  States  intend  to conduct  these controls  in compliance  with  their 
common  international  commitments,  in  particular  the  European  Convention  for  the 
Protection  of  Human  Rights and Fundamental  Freedoms  of  4  November  1950 and the 
Geneva  Convention  of  28  July  1951,  as  amended  by  the  New  York  Protocol  of  31 
January  1967,  relating  to  the  Status  of  Refugees  as  well  as  with  more  favourable 
constitutional  provisions  on asylum, 

HAS  DECIDED  AS FOLLOWS: 

15 

Article  J 

1. 

2. 

It is recommended  that the Member States adopt the Convention on Controls on 
Persons  Crossing  External  Frontiers  established  by  this  Decision,  the  text  of 
which  is  annexed  hereto,  in  accordance  with  their  respective  constitutional 
requirements  by 31  December  1994. 

The  Member  States  shall  notify  the  General  Secretariat  of  the  Council  of  the 
instruments  attesting  completion  of  the  procedures  for  the  adoption  of  the 
Convention  in accordance with their respective constitutional  requirements,  and 
deposit  them with it. 

Article 2 

1. 

The  Convention  shall  enter  into  force  on  the  first  day  of  the  second  month 
following  the deposit of  the instrument  of adoption  with  the General  Secretariat 
of  the Council  by the last Member  State to take that step. 

The  provisions  concerning  the  adoption  of  measures  in  implementation  of  the 
Convention shall apply from the date of its entry into force.  The other provisions 
shall  apply  from  the first day of  the third  month  following  that date. 

2. 

The Secretary-General  of the Council shall inform the Member  States of the date 
of  entry  into force  of  this Convention. 

Article 3 

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

Done at Brussels, 

For the Council 

The  President 

16 

CONVENTION 
ON CONTROLS ON PERSONS 
CROSSING EXTERNAL FRONTIERS 

-17-

TITLE I 

GENERAL 

ARTICLE 1 

Definitions 

1. 

For the purposes of this Convention: 

(a) 

'persons entitled under Community  law' means: 

(i) citizens of the Union within the meaning of Article 8(1) of 

the Treaty establishing the European Community; 

(ii) members of the family of such citizens who are nationals of 
a third State and have the right of entry and residence in 
a Member State by virtue of an instrument enacted under the 
Treaty establishing  the European Community; 

(iii) nationals  of  third  States  who,  by  agreement  between  the 
European  Community  and  its  Member  States  and  such 
countries, have rights of entry and  residence  in a Member 
State which are identical with those enjoyed by citizens of 
the Union, and members of  the  family  of  such persons who 
are nationals of a third State and have the right of entry 
and residence in a Member State under any such agreement. 

(b) 

(c) 

'residence  permit'  means  any  authorization  issued  by  the 
authorities of a Member State authorizing  a person  not entitled 
under Community  law to stay in its territory, with the exception 
of  visas  and  the  provisional  residence  permit  referred  to  in 
Articles 8 and 15; 

'entry visa' means authorization or decision  by a Member State, 
given in accordance with decisions adopted under Article  100c of 
the  Treaty  establishing  the  European  Community,  to  enable  a 
person to enter  its territory who is required to hold a visa to 
do so, subject to other entry conditions being  fulfilled; 

-18-

(d) 

(e) 

(f) 

(g) 

'transit visa' means authorization or decision by a Member State, 
given in accordance with decisions adopted under Article  100c of 
the  Treaty  establishing  the  European  Community,  to  enable  a 
person  to transit  through  its territory  or  through  the transit 
zone of a port or airport who  is required  to hold  a visa to do 
so, subject to other transit conditions being fulfilled; the time 
taken to transit shall not exceed  five days; 

're-entry visa' means authorization by a State enabling a person 
who  is not  a national  of  that  State  and  who  is present  in the 
territory  of  that  State  to  re-enter  within  a  specified  period 
without re-obtaining an entry visa to that State; 

'uniform  visa'  means  entry,  transit  or  re-entry  visa  of  the 
uniform  format  provided  for  in  Article 100c(3)  of  the  Treaty 
establishing  the  European  Community,  issued  under  the  rules 
specified  in Articles 19 to 22 of this Convention; 

'short stay' means an uninterrupted  stay or successive stays in 
the territories of the Member States the length of which does not 
exceed three months, calculated over six months from the date of 
first entry; 

(h) 

'external  frontiers' means: 

(i) a Member State's land frontier which is not contiguous with 
a frontier of another Member State, and maritime frontiers; 

(ii) airports and seaports, except where they are considered to 
be internal  frontiers  for purposes of  instruments enacted 
under the Treaty establishing  the European Community; 

(i) 

'local  frontier  traffic'  means  the  movement,  within  a  limited 
geographical  area defined  in a convention concluded by a Member 
State  with  a  contiguous  State  which  is  not  a  member  of  the 
European  Communities, of  persons  who  come  within  the  scope  of 
that  convention  and  are thereby  entitled  to  cross the  external 
land  frontier  of  the  Member  State  concerned  under  special 
conditions. 

2. 

This Convention applies, except where there is an express statement to 
the contrary, to all persons other than those entitled under Community 
law. 

-19-

TITLE II 

GENERAL  PRINCIPLES 

ARTICLE 2 

Crossing external  frontiers 

1. 

2. 

All persons crossing the external  frontiers  shall do so at authorized 
crossing points permanently controlled by the Member States. 

Persons crossing external frontiers at any point other than authorized 
crossing  points  shall  be  liable  to  penalties  as  determined  by  each 
Member State. 

3.,  Each Member State shall determine the location and opening  conditions 
of  authorized  crossing  points  on  its  external  frontiers  and  shall 
communicate  this  information  and  any  changes  thereto  to  the  General 
Secretariat of the Council, which shall inform the other Member States 
accordingly.  Crossing  at  crossing  points  outside  their  opening  hours 
shall not be permitted. 

4. 

5. 

By  way  of  exception,  as provided  in Article  1(2), this  Article  also 
applies to persons entitled under Community  law who cross the external 
frontiers, unless otherwise stipulated  in the  law of the Member  State 
concerned. 

The exceptions and specific rules applying to particular categories of 
maritime  traffic  for  the  crossing  of  external  frontiers,  and  the 
arrangements  for  local  frontier  traffic,  shall  be  determined  by 
measures to give effect to this Convention. 

-20-

ARTICLE 3 

j 

Surveillance of external  frontiers 

External  frontier  stretches  other  than  authorized  crossing  points  shall  be 
kept  under  effective  surveillance  by  mobile  units  or  by  other  appropriate 
means.  Member  States  undertake  to  provide  surveillance  yielding  similarly 
effective  results  along  all  their  external  frontiers;  their  surveillance 
agencies shall consult and cooperate to that end. 

ARTICLE 4 

Controls at external  frontiers 

The  crossing  of  external  frontiers  shall  be  subject  to  control  by  the 
competent authorities of the Member State concerned. Controls shall be carried 
out  in accordance with national  law, with due regard  for the provisions of 
this Convention. 

-21-

ARTICLE 5 

Nature of controls at external  frontiers 

, 

1. 

2. 

3. 

4. 

5. 

When  crossing  an  external  frontier  upon  entering  or  leaving  the 
territories  of  the Member  States, all  persons  shall  be  subject  to a 
visual  control  under  conditions  which  permit  their  identity  to  be 
established by examination of their travel documents. 

Upon entry, persons shall also be subject to a control to ensure that 
they fulfil the conditions set out in Article 7.  By way of exception, 
as provided  in Article 1(2), persons entitled  under Community  law who 
are  third-country  nationals  shall  be  subject  to  the  condition  in 
Article 7(1) (b)  if  they  are  required  to  hold  a  visa  by  virtue  of 
instruments enacted under Article 100c of the Treaty establishing the 
European Community. 

Detailed  rules  for  applying  the  controls  shall  be  determined  by 
measures to give effect to this Convention. 

Certain controls may, exceptionally, be relaxed, due regard being had 
for any conditions that may be laid down by measures to give effect to 
Controls  upon  entry  shall  take  precedence  over 
this  Convention. 
controls upon departure. 

Without  prejudice  to  Community  provisions  regulating  controls  on 
baggage  carried  by  travellers  and  on  their  vehicles,  controls  on 
persons and their vehicles and baggage may be performed where necessary 
for the purposes of: 

detecting and preventing threats to national security and public 
policy; or 

combating  illegal  immigration. 

6. 

When effecting these controls, Member States shall take account of the 
interests of the other Member States. 

-22-

ARTICLE 6 

Specific arrangements  for airports 

1. 

Member States shall ensure that passengers on flights from third States 
who transfer onto internal flights will be subject to an entry control 
at  the  airport  at  which  the  external  flight  arrives.  Passengers  on 
internal flights who transfer onto flights bound for third States will 
be  subject  to  a  departure  control  at  the  airport  from  which  the 
external  flight departs. 

2. 

Paragraph  1  is  without  prejudice  to  Community  baggage  inspection 
measures. 

3. 

Member States shall also take any measures necessary to ensure that: 

passengers who embark in a Member State on a flight coming  from 
a third State which is bound  for a destination  in a Member State 
are  subject  at  the  airport  of  destination  to  the  controls 
specified  for passengers coming  from third countries; 

passengers who embark  in a Member  State on a flight bound  for a 
destination in a third State and who disembark in another Member 
State are subject at the airport of embarkation to the controls 
specified  for passengers going to third countries; 

passengers who embark  in a Member State to go to another Member 
State  on  a  flight  coming  from  and  bound  for one  or  more  third 
States  are  subject  at the airports of  the Member  States  to the 
controls specified  for passengers coming from or bound  for third 
countries,  depending  on  whether  they  are  departing  from  or 
arriving  in a Member State. 

-23-

TITLE III 

CONTROL ARRANGEMENTS AT EXTERNAL FRONTIERS 

Controls on persons not entitled under Community  law 

ARTICLE 7 

Any  person  may  be  authorized  to  enter  the  territories  of  the  Member 
States  for  a  short  stay  provided  that  he  meets  the  following 
requirements : 

(a)  that  he  present  a  valid  travel  document  which  authorizes  the 
crossing of frontiers; a list and description  of  luch documents 
shall be drawn up by measures to give effect to this Convention; 

(b)  where applicable, that he be  in possession  of  a visa  valid  for 

the length of stay envisaged; 

(c)  that  he  does  not  represent  a  threat  to  the  public  policy, 
national  security  or  international  relations  of  Member  States 
and,  in particular, that his name does not  appear  on the  joint 
list provided  for in Article 10; 

(d)  that he produce, if necessary, documents  justifying  the purpose 
and conditions of the intended stay or transit, in particular the 
required  work  permits  if  there  is  reason  to  believe  that  he 
intends to work; 

(e)  that he have sufficient means of subsistence, both for the period 
of  the  intended  stay  or  transit  and  for  him  to  return  to  his 
country  of  origin  or  travel  to  a third  State  into  which  he  is 
certain to be admitted, or be in a position to acquire such means 
lawfully. 

Any person may also be refused entry: 

(a)  if his name appears on the national  list of persons who are not 
to be admitted  to the Member State to which he seeks entry; 

(b)  in all  the circumstances  in which  a national  of  a Member  State 

may be refused entry to another Member State. 

-24-

ARTICLE 8 

Crossing of external  frontiers by third-country  nationals 
residing  in a Member State 

1. 

A Member State shall not require a visa of a person who wishes to enter 
its territory  for a short stay or to transit through  it, provided that 
that person: 

(a)  fulfils  the  conditions  in  Article  7,  except  that  in 

paragraph  1(b); and 

(b)  holds  a  residence  permit  issued  by  another  Member  State 
permitting him to reside in that State, the period of validity of 
which, at the time of entry, still has more than  four months to 
run. 

2. 

3. 

In exceptional cases, paragraph 1 may also apply to persons who hold a 
provisional  residence  permit  issued  by  a  Member  State  and  a  travel 
document  issued by that Member State. 

Member  States  shall, under  conditions  determined  by measures  to  give 
effect  to  this  Convention,  take  back  any  person  to  whom  they  have 
issued  a residence  permit  or  provisional  residence  permit  within  the 
meaning  of  paragraphs  1  and  2  and  who  is  illegally  resident  in  the 
territory of another Member State. 

4. 

In exceptional cases, a Member State may depart  from the provisions of 
paragraphs  1 and  2 for urgent  reasons of  national  security, but must 
take into consideration the interests of the other Member States. 

The Member State concerned  shall  inform the other Member States  in an 
appropriate  manner,  determined  by  measures  to  give  effect  to  this 
Convention. 

Such measures shall be used only to the extent that and for as long as 
is strictly necessary to achieve the purposes referred to in the first 
subparagraph. 

5. 

For the purposes of implementing  this Article, 

a list of the residence permits and provisional residence permits 
referred  to  in  paragraphs  1  and  2  which  shall  be  accepted  as 
equivalent to visas; and 

an  indicative  list  of  the  exceptional  circumstances  in  which 
Member States' authorities shall accept the provisional residence 
permits  and  the travel  documents  referred  to  in paragraph  2 as 
equivalent to visas 

shall be drawn up by measures to give effect to this Convention. 

-25-

ARTICLE 9 

Stays other than for a short time 

Persons who propose  to  stay  in a Member  State other  than  for  a  short  time 
shall enter that State under the conditions laid down in its national law. In 
that case access shall be restricted to the territory of that State. 

-26-

TITLE IV 

NOTIFICATIONS FOR REFUSING ENTRY 

ARTICLE 10 

List of persons to be refused  entry 

1. 

2. 

3. 

A joint list of persons to whom the Member States shall refuse entry to 
their  territories  shall  be  drawn  up  on  the  basis  of  national 
notifications by measures to give effect to this Convention. 

The  list, which  shall be continually updated, shall contain the names 
submitted  for this purpose by each Member State. 

The decision to put  a person on the joint  list  shall be based  on the 
threat which that person may represent to the public policy or national 
security of a Member State. It shall be based on a decision taken with 
due regard  for the rules of procedure laid down by national  law by the 
administrative or competent  judicial authorities of the Member  States 
on account of: 

a  custodial  sentence  of  one  year  or  more  in  the  Member  State 
concerned; or 

information to the effect that the person concerned has committed 
a serious crime; or 

serious  grounds  for  believing  that  he  is  planning  to  commit  a 
serious crime or that he represents a threat to the public policy 
or national security of a Member State; or 

a  serious offence or repeated  offences against  the  law relating 
to the entry and residence of foreigners. 

4. 

Detailed  rules  for applying the criteria  set out  in paragraph  3 shall 
be determined by measures to give effect to this Convention. 

-27-

ARTICLE 11 

Issue of residence permit 

1. 

2. 

Where  a  person  whose  name  is  on  the  joint  list  provided  for  in 
Article 10 applies  for a residence permit, the Member  State to which 
application is made shall first consult the Member State which entered 
the name on the list and shall take into account the interests of that 
State;  the  residence  permit  shall  be  issued  for  substantive  reasons 
only,  notably  on  humanitarian  grounds  or  by  reason  of  international 
commitments. 

If the residence permit is issued, the Member State which entered the 
name on the joint list shall delete the entry. 

If it becomes apparent that the name of a person who is in possession 
of  a valid  residence  permit  issued  by one of the Member  States  is on 
the joint list, the Member State which entered the name and the Member 
State  which  issued  the  residence  permit  shall  consult  each  other  in 
order to determine whether there are sufficient grounds for withdrawing 
the residence permit. 

If the residence permit  is not withdrawn, the Member State which made 
the entry  shall delete it. 

3. 

Detailed rules for the application of this Article shall be determined 
by measures to give effect to this Convention. 

ARTICLE 12 

Refusal of entry to a Member State 

1. 

2. 

Entry  into  the  territories  of  the  Member  States  shall  be  refused  to 
persons who  fail  to  fulfil  one or more of  the  conditions  set out  in 
Article 7(1) and Article 9. 

A Member State may, however, on humanitarian grounds or in the national 
interest or by reason of  international  commitments, allow persons who 
fail to fulfil those conditions to enter its territory. In such a case, 
permission to enter shall be restricted to the territory of the Member 
State concerned, which, if the person concerned  is on the joint list, 
shall  inform  the  other  Member  States  in  an  appropriate  manner, 
determined  by measures to give effect to this Convention. 

•28-

ARTICLE 13 

Exchange of  information 

The exchange of information on data contained  in the  joint  list shall 
be computerized. 

The  creation, organization  and  operation  of  this  computerized  system 
will  be  the  subject  of  the  Convention  on  the  European  Information 
System.  The Convention will include guarantees  for the protection of 
individuals with regard to the processing of personal data. 

The  joint  list may  be  consulted  by  the  competent  authorities  of  the 
Member  States  which,  in  accordance  with  their  national  laws,  are 
concerned with: 

processing visa applications; 

frontier controls; 

police checks; 

the admission and regulation of the stay of persons who are not 
nationals of a Member State. 

Each  Member  State  shall  inform  the  Commission  and  the  other  Member 
States  of  the  agencies  authorized,  in  pursuance  of  this  Article,  to 
consult the joint list. 

-29-

TITLE V 

ACCOMPANYING  MEASURES 

ARTICLE 14 

Responsibilities of carriers 

1. 

Without  prejudice  to  Article  27  and  instruments  enacted  under  the 
Treaty establishing the European Community, the Member States undertake 
to  incorporate  in  their  national  legislation  measures  relating  to 
airlines  and  shipping  companies  and  to  public-service  international 
carriers transporting groups overland  by coach, with the exception of 
local frontier traffic. 

2. 

The purpose of such measures will be: 

to oblige the carrier to take all  necessary measures to ensure 
that  persons  coming  from  third  countries  are  in  possession  of 
valid travel documents and of the necessary visas, and to impose 
appropriate  penalties  on  carriers  failing  to  fulfil  this 
obligation; 

to oblige the carrier, where required by the control authorities, 
to assume responsibility without delay (this may include covering 
the costs of accommodation until departure), and to return to the 
State from which he was transported or to the State which issued 
his  passport  or  to  any  State  to  which  he  is  certain  to  be 
admitted,  a person  coming  from  a third  country  who  is  refused 
admission at the first control on entry into Community territory. 

-30-

ARTICLE 15 

Illegal crossing of an external  frontier 

1. 

A person who illegally crosses an external frontier without a residence 
permit or who does not fulfil, or no longer fulfils, the conditions of 
residence  in a Member  State  shall  normally  be  required  to  leave  the 
territory  of  the  Member  State  without  delay,  unless  his  stay  is 
regularized. 

If  such  a  person  holds  a  valid  residence  permit  or  provisional 
residence  permit  issued  by  another  Member  State,  he  shall  go  to  the 
territory of that Member State without delay, unless he is authorized 
to go to another country to which he is certain to be admitted. 

2. 

3. 

4. 

Where such a person has not left voluntarily or where it may be assumed 
that he will not so leave or if his immediate departure is required for 
reasons of national security or public policy, he shall be expelled as 
laid down in the legislation of the Member State in which he was found. 
He  shall  be  expelled  from  the  territory  of  that  Member  State  to  his 
country of origin. He may equally be expelled  to any other country to 
which  he  may  be  admitted,  notably  under  the  relevant  provisions  of 
readmission agreements between Member States. 

A list of the residence permits or provisional residence permits issued 
by  the Member  State  shall  be drawn  up by measures  to  give  effect  to 
this Convention. 

Should one of them  so request, Member  States shall conclude  bilateral 
agreements between themselves on the readmission of persons who are not 
entitled under Community law. 

ARTICLE 16 

Compensation  for financial  imbalances 

Subject  to  determination  of  the  appropriate  criteria  and  practical 
arrangements  by  measures  to  give  effect  to  this  Convention, Member  States 
shall compensate each other for any financial imbalances which may result from 
the obligation to expel provided in Article 15 where such expulsion cannot be 
effected  at the expense of the person concerned  or of a third party. 

-31-

TITLE VI 

VISAS 

ARTICLE 17 

Common visa policy 

Member  States  undertake  to  harmonize  their  visa  policies  progressively, 
without  prejudice  to  decisions  adopted  under  Article  100c  of  the  Treaty 
establishing the European Community. 

ARTICLE 18 

Uniform visa 

A Member  State shall not require  a visa  issued  by  its own  authorities of a 
person  applying  to  stay  for  a  short  time within  its  territory  who  holds a 
uniform visa. 

-32-

ARTICLE 19 

Conditions  for issue of uniform visa 

A uniform visa may be issued only where a person fulfils the conditions 
for entry laid down in Article 7(1), except that in  subparagraph  (b). 

Uniform  visas  shall  be  issued  on  the  basis  of  the  following  common 
conditions and criteria: 

travel  documents  presented  upon  application  for  a visa  must  be 
checked to ensure that they are in order and authentic; 

the  expiry  date  of  the  travel  document  must  be  at  least  three 
months  later than the  final  date  for  stays  stated  on the visa, 
account  being  taken  of  the  time  within  which  the  visa  must  be 
used; 

the travel document must be recognized by all Member States; 

the travel document must be valid  in all Member States; 

the travel document must allow for the return of the traveller to 
his country of origin or his entry  into a third  country; 

the existence and validity of an authorization or a re-entry visa 
for the traveller to return to the country  of departure must be 
checked  if  such  formalities  are required  by  the  authorities  of 
that country. The same shall apply to any authorization  required 
for entry to a third country. 

-33-

ARTICLE 20 

Prior consultation of centrai  authorities 

Where in certain cases a Member State makes the issue of visas subject 
to prior consultation of its central authorities and where it wishes to 
be consulted on the issue, in such cases, of a uniform visa by another 
Member  State,  this  visa  shall  not  be  issued  unless  the  central 
authorities  of  the  Member  State  concerned  have  been  consulted  in 
advance and have expressed no objection. 

The  absence  of  a  reply  from  these  authorities  within  a period  to  be 
determined  by  measures  to  give  effect  to  this  Convention  shall  be 
regarded  as  indicating  that  there  is  no objection  to  the  issue  of a 
visa. The period  shall be fourteen days at most. 

If there is an objection, or if the consultation procedure referred to 
in  the  first  subparagraph  has  not  been  implemented  for  reasons  of 
urgency,  only  a  national  visa  with  restricted  territorial  validity 
shall be issued. 

Rules for implementing this Article shall be determined by  measures to 
give  effect  to  this  Convention,  having  particular  regard  for  Member 
States'  security;  they  may  specify  cases  in  which  the  issue  of  a 
uniform visa must be made subject to prior consultation of the central 
authorities of the Member State or States requiring such consultation, 
but  this  shall  be without  prejudice  to Member  States' option  to hold 
prior consultations with their own central authorities in other cases. 

ARTICLE 21 

Multiple-entry  uniform visa 

1. 

The uniform  visa may be a visa valid  for one or more entries. Neither 
the  length of  any  continuous  stay  nor the total  length  of  successive 
stays  may  exceed  three months  in  a  six-month  period  starting  on  the 
date of entry. 

2. 

The  conditions  and  criteria  for  issuing  multiple-entry  uniform  visas 
shall be determined by measures to give effect to this Convention. 

-34-

ARTICLE 22 

Issue of uniform visa 

1. 

2. 

The  uniform  visa  shall  be  issued  by  the  diplomatic  and  consular 
authorities  of  the Member  States  or,  in  exceptional  cases, by  other 
authorities determined  in accordance with national  legislation. 

The  Member  State  which  is  the  main  destination  shall  normally  be 
responsible  for  issuing the visa.  If  it  is not possible to  determine 
that destination, the Member State of first entry shall be responsible. 

3. 

The principles stated in this Article shall be implemented by  measures 
to give effect to this Convention. 

ARTICLE 23 

Extension of stay 

A  Member  State  may,  if  necessary,  issue  a  visa  the  validity  of  which  is 
restricted to its own territory to the holder of a uniform visa in the course 
of any one six-month period. 

A Member  State may also authorize a person holding  a uniform  visa to remain 
in its territory  for more than three months. 

-35-

ARTICLE 24 

National visas 

1. 

2. 

3. 

Member  States  may  issue  visas  valid  only  in  their  respective 
territories  in the cases provided  for in Articles 20, 23 and 25. 

In  addition,  a  Member  State  may,  on  humanitarian  grounds  or  in  the 
national  interest or by reason of  international  commitments,  issue a 
person  who  does  not meet  any  or  some of  the  conditions  laid  down  in 
Article  7(1) (a),  (c), (d) and  (e) with  a visa  valid  only  in  its own 
territory. 

A  Member  State  which  has  issued  a  person  with  a  visa  pursuant  to 
paragraph  2 shall so inform the other Member States  if that person is 
on the joint list or if the State consulted pursuant to Article 20 has 
objected.  This  information  shall  be  supplied  in  accordance  with  the 
procedures  established  under  Article  12(2)  in  accordance  with  the 
measures to give effect to this Convention. 

4. 

Visas issued in accordance with paragraphs 1 and 2 shall indicate their 
distinct nature and be different  in appearance  from the uniform visa. 

ARTICLE 25 

Long-stay  visas 

Visas  for stays of more than three months  shall be national visas  issued by 
each Member State in accordance with  its national  law. 

The  issue of such visas shall be subject to consultation of the joint list. 

-36-

TITLE VII 

IMPLEMENTATION 

ARTICLE 26 

Implementing measures 

Decisions needed to give effect to this Convention, other than those expressly 
provided  therein, shall be adopted  by the Council, acting  unanimously  on a 
proposal  from the Commission or on the initiative of a Member State. 

ARTICLE 27 

Primacy of  instruments 

1. 

This  Convention  shall  be  subject  to  the  European  Convention  for  the 
Protection of Human Rights and Fundamental Freedoms of 4 November  1950 
and  to  the Geneva  Convention  of  28 July  1951, as  amended  by  the New 
York  Protocol  of  31 January  1967, relating  to the  Status of  Refugees 
and without prejudice to more  favourable constitutional  provisions of 
Member States on asylum. 

2. 

This  Convention  shall  not  affect  bilateral  conventions  on  local 
frontier traffic. 

-37-

ARTICLE 28 

Relations with third States 

1. 

2. 

A  Member  State  which  envisages  conducting  negotiations  on  frontier 
controls with  a third  State  shall  inform  the other  Member  States and 
the Commission accordingly  in good time. 

No Member State shall conclude with one or more third States agreements 
simplifying or removing  frontier controls without the prior  agreement 
of the Council. 

This paragraph does not apply to agreements on local  frontier  traffic 
where such agreements conform to the arrangements laid down pursuant to 
Article 2 and is without prejudice to Article  27(2). 

ARTICLE 29 

Jurisdiction of the Court of Justice 

The Court of Justice of the European Communities shall have  jurisdiction: 

to give preliminary rulings concerning the interpretation of this 
Convention; references  shall  be made  as provided  in the  second 
and  third  paragraphs  of Article  177 of  the Treaty  establishing 
the European Community; 

in disputes concerning the implementation of this Convention, on 
application by a Member State or the Commission. 

-38-

TITLE VIII 

FINAL PROVISIONS 

ARTICLE 30 

Extent 

[text to be inserted  later] 

-39-

EXPLANATORY MEMORANDUM 

1. General 

The new Article  100C of the Treaty of Rome requires the Council to determine the third 
countries  whose  nationals  must  be  in  possession  of  a  visa  when  crossing  the  external 
frontiers  of the Community. This provision has been placed squarely amongst the internal 
market provisions of the Treaty. The necessary inference from this is that it is designed to 
contribute towards achieving the free movement of persons within the internal market, as 
specified in Article 7A EC (formerly Article 8A EEC). 

In October  1986 the Twelve set up inter-governmental cooperation in the field of justice 
and internal  affairs.  One of the first results of the gradual  coordination  of  their policies 
with respect  to  visas was the  adoption  by the  Ministers responsible  for  immigration at 
Copenhagen in December 1987 of a list of 50 third countries whose nationals were subject 
to a visa requirement in all the Member States. This means that a national of one of those 
countries wishing to visit the twelve Memeber States must hold  10 different  visas (for the 
Benelux countries, a visa issued by one of those 3 countries is enough). Starting with their 
meeting  in  Munich  in  June  1988,  the  Ministers  followed  developments  relating  to  the 
harmonisation of visas and took note at each of their successive meetings of the number of 
third countries whose nationals were required by all Member States to hold a visa to enter 
their  territory.  Thus  at  their  meeting  held  in  Copenhagen  in  June  1993  the  Ministers 
responsible for immigration took note of the fact that 73 countries fell into this category. 
Furthermore,  the  information  supplied  by  the  Member  States  shows  that  there  are  19 
countries whose nationals are not subject to a visa requirement by any Member State and 
92  third countries  whose  nationals  are required  to  hold  a visa  by  between  one  and  11 
Member States. 

The accompanying  measures regarded  as  essential  and desirable  for  the  achievement  of 
the free movement of persons are set out in the Palma Document adopted at the European 
Council held in Madrid in June  1989. One of the measures considered to be essential  is a 
convention  between  the  Member  States  on  the  crossing  of  external  frontiers.  The 
harmonisation of Member  States' policies concerning visas constitutes  an important part 
of  the  envisaged  convention.  Apart  from  creating  the  legal  framework  for  the 

U  o 

determination  of  the  third  countries  whose  nationals  are  or  are  not  to  be  subject  to  visa 
requirements,  the  unsigned  drall  Iixternal  Frontiers  Convention  of  1991  provides  for  a 
uniform visa (including the conditions for the issue of such a visa) and contains  provisions 
on visas having limited territorial  validity  and the right of  movement  of  certain  categories 
of third country nationals. 

The  Convention  of  1990  applying  the  Schengen  Agreement,  which  is  now  expected  to 
come  into  force  shortly,  also  contains  provisions  on  visas.  Article  9  of  the  former  text 
declares  that  the  Contracting  Parties  undertake  to  adopt  a  common  visa  régime  and  to 
harmonise their policies in this regard.  The nine  Schengen  States have drawn up three lists 
of  third  countries  pursuant  to  this  article:  a  relatively  long  list  of  third  countries  whose 
nationals will  require visas to  enter all the  Schengen  States; a relatively  short  non-binding 
"inventory" of third countries whose nationals are to be exempted from this requirement in 
all  the  Schengen  States;  and  a  further  non-binding  "inventory"  of  countries  whose 
nationals are subject to visa requirements in some  Schengen  States only. 

The  Commission  has  naturally  had  regard  to  all  these  texts  when  drafting  this  proposal, 
and has drawn on them where appropriate. 

Moreover,  this  proposal  is  not  to  be  read  in  isolation,  but  as  part  of  the  Commission's 
overall  approach  to  achieving  the  free  movement  of  persons,  comprising:  the  revised 
External  Frontiers  Convention,  proposed jointly  with  the  present  Regulation;  a  proposal 
on the uniform  format  for visas based  on  Article  100C(3)  to  be  made  as  soon  as  various 
technical problems, relating notably to confidentiality,  have been overcome; and any other 
Community instruments which may appear necessary. 

The language of Article  100C(1) makes it plain that the Community  is under an obligation 
to  take  the  action  referred  to  in  paragraph  1,  and  that  any  such  action  on  the  part  of 
Member States is precluded  as from the entry into force of the Treaty on European  Union. 
At the same time, the opening words of paragraph 3 necessarily  suggest  that such action  is 
to be taken before  1996.  Hence the need to propose this measure as soon as possible  after 
the  Treaty  of Maastricht  has  entered  into  force,  particularly  as  that  event  has  itself  been 
delayed by almost a year. 

This proposed  Regulation  is  not  expressed  to  be  limited  to  the  period  prior to  1 January 
1996, when the Council  will  act  by qualified  majority  pursuant  to  Article  100C(3).  There 
is no need to adopt a new  Regulation  merely because the voting  procedure in the Council 
changes.  Thus  the  Regulation  will  continue  in  force  after  that  date  subject  to  any 
amendments which may be made under the new procedure. 

-2 

Li> 

2. Subsidiarity and proportionality 

Article 100C confers an exclusive power on the Community in this matter. 

In theory,  this  provision  could  be  implemented  by  a  regulation  or  by  a  directive.  The 
Commission  has  opted  for  a  regulation  rather  than  a  directive,  for  two  reasons:  by 
definition, the drawing up of a list of countries whose nationals are to be subject to a visa 
requirement  gives  Member  States  no  discretion,  and  indeed  "implementing"  such  a list 
would be a pointless exercise; and in certain cases urgent action may be necessary, so that 
the  delays  involved  in  implementing  directives  would  give  rise  to  severe  practical 
difficulties. 

3.Commentary on the articles 

Article  1 

The very purpose of Article  100C is to  establish a uniform  list of third countries whose 
nationals are to  be subject  to  visa  requirements,  which  inevitably  means that  disparities 
between the practices of  Member  States  in this  regard must  be removed.  By providing 
that the Council is to "determine the third countries whose nationals must be in possession 
of  a  visa  when  crossing  the  external  borders  of  the  Member  States"  Article  100C 
necessarily implies that the Council  must also  determine which third countries are to be 
exempt from a visa requirement.  The contrary view cannot be reconciled  either with the 
letter or with the spirit of this provision. 

Article  1(1) refers to the Annex, which sets out the countries whose nationals are subject 
to a visa requirement. For ease of reference the Annex will be called the "negative list". 

Ideally the Commission would have wished at this stage to place every third country either 
on the negative list or on a "positive list" of countries whose nationals are to be exempted 
from visa  requirements.  Manifestly,  this  is  what  is  contemplated  by  Article  100C. 
However, this proved impossible in view of the very large number of third countries for 
which the practices of Member States diverge and the sensitive nature of the decision to 
be taken with respect to  many of those  countries.  Accordingly,  the Commission accepts 
that Member States may decide whether or not to impose visa requirements on nationals 

4i 

of third countries  not  listed  in the  Annex,  subject  to  the two  conditions  set  out  in the 
preamble, namely: that  it  does  not  give rise to  any controls  contrary  to  Article  7A EC 
(formerly Article 8A EEC); and that  it is only applicable for a strictly limited period  of 
time,  whereupon  each  third  country  must  be  governed  either  by  the  positive  or  the 
negative list. This situation can only be compatible with the Treaty if these two conditions 
are met. These principles are enshrined in Article 1(2). 

Article 1(3) is designed to ensure the observance of the principle of open government: any 
measures taken by  Member States pursuant to paragraph 2 are to be published in Part C 
of the Official Journal. 

Article 2 

This Article,  which  lays down the  principle of  mutual  recognition  by Member  States  of 
visas granted by each other, is in a sense the corner-stone of this proposal. As stated at the 
outset,  Article  100C  is  an  internal  market  provision.  Its  purpose  is  thus  inter  alia  to 
contribute towards the realisation of the internal market provided for in Article 7 A of the 
Treaty. It necessarily follows from this that the mere drawing up of common lists of third 
countries without more would fall well short of the objective set by Article  100C. Rather, 
the  purpose  is  to  hasten  the  end  of  controls  on  persons  at  the  Community's  internal 
borders.  This can only be achieved by the principle of mutual recognition. 

However,  this  Article applies only to  visas which  are valid  throughout  the Community. 
This matter is governed by the External Frontiers Convention.  This condition was judged 
necessary  because  Member  States  could  not  be expected  to  recognise visas  granted by 
each other without a minimum of harmonisation. Otherwise the Member States would lay 
themselves open to the abusive practice of "visa shopping". 

Moreover,  the External Frontiers Convention  provides that  persons  holding  a residence 
permit granted by a Member State are to be exempt from visa requirements. 

Article 3 

The term "visa" is used in Article  100C, so that the Council must be taken to have power 
to define this term pursuant to that provision. Some definition is indispensable if the other 
provisions of the Regulation are to be fully effective,  as work in the Schengen Group and 
the Ad hoc Immigration Group has clearly shown. At the same time, the Commission does 

lii 

not  seek  to  innovate  in  this  regard.  Consequently,  the  definition  in  Article  3  broadly 
corresponds to that in Article 1  of the draft External Frontiers Convention. 

In the  overwhelming  majority  of  Member  States  a  short  stay  is  considered  to  be  one 
lasting no more than three months. This explains why this criterion was used in Article 21 
of the External  Frontiers Convention  as drafted  in  1991.  Thus the first indent  is closely 
modelled on the latter provision. 

Article 4 

The first paragraph is a standard provision. 

The object of the second paragraph is merely to ensure that all the information referred to 
in Article 1(3) is published in the OfficialJoumal before the other operative provisions of 
the Regulation are applied. 

- 5-

Proposal for a 
Regulation determining the  third countries whose nationals must be in possession of a 
visa when crossing the external frontiers of the Member States 

THE COUNCIL OF THE EUROPEAN UNION 

Having  regard  to  the  Treaty  establishing  the  European  Community,  in  particular 
Article  100C thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament, 

Whereas  Article  100C  of  the  Treaty  requires the  Community  to  determine  the third 
countries whose nationals must be in possession of a visa when crossing the external 
borders of the Member States; whereas its place in the Treaty shows that this article 
forms an integral part of the provisions relating to the internal market; 

Whereas, according to the third paragraph of Article 3B of the Treaty, action taken by 
the Community shall not go beyond what is necessary to achieve the objectives of the 
Treaty;  whereas  the  mutual  recognition  by  Member  States  of  visas  issued  by  each 
other,  which  is  necessary  to  give  full  effect  to  Article  100C,  is  an  essential 
accompanying  measure for the achievement  of the objective  set  out  in Article  7A as 
regards the free movement of persons; 

Whereas third countries should be classified  according to their political  and economic 
situation and according to their relations with the Community and the Member States, 
taking into account the degree of harmonisation achieved at Member State level, 

Whereas the purpose of Article  100C is to harmonise the regulations and practices of 
the  Member  States  in this regard; whereas  divergences  between  the  regulations and 
practices of Member States should be authorised for a limited period as a transitional 
measure,  on  the  understanding  that  they  may  not  give  rise  to  controls  contrary  to 
Article 7A; whereas it should be stipulated that this transitional  regime shall expire on 
30 June 1996 and that prior to that date the Council  shall decide with respect to each 
third country whether its nationals are to be subject to a visa requirement or are to be 
exempted from that requirement; 

Whereas, with a view to ensuring that the system is administered openly and that the 
persons concerned  are informed,  measures taken by Member  States  pursuant  to  this 

V 

transitional and exceptional regime must be notified to the other Member States and to 
the Commission; whereas for the same reasons this information must also be published 
in the Official Journal of the European Communities; 

Whereas  the  information  provided  for  in  Article  1(3)  of  this  Regulation  must  be 
published  before  Article  1(1)  and  2  and  Article  2  become  applicable;  whereas  it  is 
therefore necessary to defer the application of those provisions until one month after 
the Regulation has come into force; 

HAS ADOPTED THIS REGULATION: 

Article  1 

1. Nationals of third countries listed in the Annex  to this Regulation shall be required 
to be in possession of a visa when crossing the external frontiers of the Member States. 

2. Until 30 June 1996 Member States shall decide whether to require visas of nationals 
of third countries not listed in the Annex.  Prior to that date the Council  shall decide 
according  to  the  procedure  laid  down  in  Article  100C  either  to  add  each  of those 
countries to that list or or to exempt its nationals from visa requirements. 

3.  Within  10 working days of the entry into force of this Regulation, Member States 
shall  notify  the  other  Member  States  and  the  Commission  of  their  measures  taken 
pursuant to  paragraph 2.  Any fresh measures taken pursuant to paragraph 2  shall be 
similarly notified within 5 working days. The Commission shall publish the information 
notified  pursuant  to  this  paragraph  in  the  Official  Journal  of  the  European 
Communities. 

Article 2 

A Member State shall not be entitled to require a visa of a person  who seeks to cross 
its external frontiers and who holds a visa issued by another Member State, where that 
visa is valid throughout the Community. 

Article 3 

For the purposes of this Regulation, the following definition shall apply: 

Uf> 

visa: any authorisation granted by a Member State which either 

~  entitles a person to enter its territory, subject to other entry conditions being 
fulfilled, and is valid for a stay of no more than three months, or a number stays 
not exceeding a total of three months in any six month period commencing on 
the date of the first entry, or 

--  entitles a person to transit through its territory or through the transit zone of 
a port or airport, subject to other transit conditions being fulfilled; or 

— entitles a person who is present on its territory to re-enter within a specified 
period; 

Article 4 

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

However,  Article  1(1)  and  (2)  and  Article  2  shall  become  applicable  one  month 
thereafter. 

This Regulation shall be binding in its entirety and directly  applicable in all Member 
States. 

hi 

Turkey 
Tuvalu 
Uganda 
Ukraine 
United Arab 
Emirates 
Uzbekistan 
Vanuatu 
Vietnam 
Yemen 
Zaïre 
Zambia 
Zimbabwe 

Afghanistan 
Albania 
Algeria 
Angola 
Antigua and Barbuda 
Armenia 
Azerbaïdjan 
Bahamas 
Bahrain 
Bangladesh 
Barbados 
Belarus 
Belize 
Benin 
Bhutan 
Botswana 
Bulgaria 
Burkina Faso 
Burundi 
Cambodia 
Cameroon 
CapeVerde 
Central African Republic 
Chad 
China 
Comores 
Congo 
Cuba 
Djibouti 
Dominica 
Domenican Republic 
Egypt 
Eritrea 
Ethiopia 
Fiji 
Gabon 
Gambia 
Georgia 
Ghana 

Annex * 

Grenada 
Guinea 
Guinea Bissau 
Guinea (Equitorial) 
Guyana 
Haïti 
India 
Indonesia 
Iran 
Iraq 
Ivory Coast 
Jordan 
Kazakhstan 
Kirghizstan 
Kiribati 
Korea (North) 
Kuwait 
Laos 
Lesotho 
Lebanon 
Liberia 
Libya 
Madagascar 
Maldives 
Mali 
Morocco 
Marshall  Islands 
Mauritius 
Mauritania 
Micronesia 
Moldavia 
Mongolia 
Mozambique 
Myanmar 
Namibia 
Nauru 
Nepal 
Niger 
Nigeria 

Northern Mariana Islands 
Oman 
Pakistan 
Papua New-Guinea 
Philippines 
Qatar 
Roumania 
Russia 
Rwanda 
Saint Christopher and 
Nevis 
Saint Vincent and 
Grenadines 
Santa Lucia 
Samoa (Western) 
Sao Tome and Principe 
Saudi Arabia 
Senegal 
Seychelles 
Sierra Leone 
Solomon  Islands 
Somalia 
South Africa 
Sudan 
Sri Lanka 
Surinam 
Swaziland 
Syria 
Taiwan 
Tadjikistan 
Tanzania 
Thailand 
Togo 
Tonga 
Trinidad and Tobago 
Trust Territory of the 
Pacific  Islands (Palau) 
Tunisia 
Turkmenistan 

*  The  present  list  does  not  prejudge  the  position  of  the  European  Community  or  its 
Member  States  with  respect  to  the  international  status  of  the  countries  mentioned 
above, nor with respect to the relations which they maintain with them. 

Jj2 

ISSN 0254-1475 

COM(93) 684 final 

DOCUMENTS 

EN 

oi  06  il 

Catalogue number : CB-CO-93-737-EN-C 

ISBN 92-77-63031-0 

Office for Official Publications of the European Communities 
L-2985 Luxembourg