Proposal for a Council Regulation amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders of Member States and those whose nationals are exempt from that requirement
Date: 2002-11-28
Institutions: European Commission
Subjects: EU relations, EU visa policy, admission of aliens, external border of the EU, foreign national, illegal migration, migration control, public international law

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 28.11.2002
COM(2002) 679 final

2002/0280 (CNS)

Proposal for a

COUNCIL REGULATION

amending Regulation (EC) No 539/2001 listing the third countries whose nationals must
be in possession of visas when crossing the external borders of Member States and those
whose nationals are exempt from that requirement

(presented by the Commission)

EXPLANATORY MEMORANDUM

The  Commission  proposal  to  amend  Regulation  (EC)  No  539/2001,1  as  last  amended  by
Regulation (EC) No 2414/2002,2 pursues a number of distinct objectives:

– 

– 

– 

follow up the conclusions of the Seville European Council, which gave top priority
to reviewing the visa Regulation No 539/2001 to ensure, notably in the light of recent
developments, that the annexes to the Regulation comply with the criteria set out in
the 5th recital to the Regulation, and in particular the criterion relating to the risk of
illegal immigration;

make  a  number  of  technical  adaptations  needed  to  respond  to  the  evolution  of  the
international and European legal context;

embark on a process of reflection on the reciprocity principle and its implications.

Amendment of the annexes in response to the conclusions of the Seville European Council

The  third  countries  whose  nationals  are  subject  to  the  visa  requirement,  and  those  exempt
from  it,  are  determined  in  accordance  with  the  methodology  defined  in  the  5th  recital  to
Regulation No 539/2001. This consists of “a considered, case-by-case assessment of a variety
of  criteria  relating  inter  alia  to  illegal  immigration,  public  policy  and  security,  and  to  the
European Union’s external relations with third countries, consideration also being given to the
implications of regional coherence and reciprocity”.

The  Seville  European  Council  welcomed  the  fact  that  the  European  Union,  through  its
comprehensive  plan  to  combat  illegal  immigration,  now  had  effective  means  of  managing
migratory  flows.  It  called  on  the  Council  and  the  Commission,  in  their  respective  areas  of
competence, to give top priority to a number of measures, one of them being the review of the
Annexes  to  Regulation  No  539/2001  before  the  end  of  2002.  In  July  2002  the  Danish
Presidency  established  a  roadmap  for  the  measures  and  initiatives  to  give  effect  to  the
conclusions  of  the  Seville  European  Council.  On  23.7.2002  the  Commission  sent  the
Member States  a  questionnaire  to  compile  information  to  be  used  for  updating  the  lists  of
non-member countries subject to and exempt from the visa requirement. The evaluation of the
replies  to  the  questionnaire,  after  a  differentiated  analysis  of  the  criteria  in  the  5th  recital  to
Regulation No 539/2001, produced the conclusion that Ecuador, currently in Annex II, should
be  transferred  to  Annex  I.  The  Commission’s  proposal  to  do  so  is  based  primarily  on
considerations  relating  to  illegal  immigration,  underpinned  by  figures  and  statistics  from  a
number  of  Member  States.  Data  regarding  refoulements,  expulsions,  arrests  and  criminal
convictions are particularly relevant here.

The  decision  to  transfer  Ecuador  to  Annex  I  to  Regulation  No  539/2001  must  reflect  the
bilateral  visa  exemption  agreements  between  Ecuador  and  the  Member  States.  The  date  for
implementation of the visa requirement in relation to Ecuadorian nationals must therefore be
set  in  such  a  way  that  they  can  abide  by  the  time-limits  set  for  denunciation  of  these
agreements.

1 
2 

OJ L 81, 21.3.2001, p. 1.
OJ L 327, 12.12.2001, p. 1.

2

                                                
The purpose of Article 1(1)(b) and (2)(a) of the proposal is to make Ecuador nationals subject
to the visa requirement,  and  Article  3(2)  sets  a  uniform  date  for  the  Member  States  to  give
effect to the new rules.

Technical adaptations resulting from international law

A number of changes that have taken place since 2001 warrant adaptations that do not affect
the fundamental substance of the Regulation or the content of the Annexes to it.

First,  there  has  been  a  radical  change  in  the  international  status  of  East  Timor.  When
Regulation No 539/2001 was adopted, this was still an emerging State and it was quite logical
to enter it among the territorial entities in Annex 1. Since then it has acquired full statehood
on  20.5.2002,  being  admitted  to  the  United  Nations  on  27.9.2002.  East  Timor  should
therefore  now  be  in  the  first  part  of  Annex  I  to  Regulation  No  539/2001  as  a  fully-fledged
state.

The  purpose  of  Article  1(1)(a)  is  to  adapt  the  reference  to  East  Timor  to  its  status  in
international law.

There have also been developments in the legal framework for relations between Switzerland
and  the  Union  and  its  Member  States  as  regards  free  movement  of  persons,  with  the  free
movement agreement that entered into force on 1.6.2002. This agreement is now the basis for
free  movement  without  visas  for  nationals  of  Switzerland  and  the  Member  States  of  the
European  Union.  Switzerland  should  therefore  no  longer  be  in  Annex  II  to  Regulation
No 539/2001.  This  technical  adaptation  is  of  the  same  nature  as  the  one  that  left  Iceland,
Liechtenstein  and  Norway  out  of  Annex  II  on  the  basis  of  the  Agreement  on  the  European
Economic Area.

The purpose of Article 1(2)(b) is to delete Switzerland from Annex II, which does not reflect
the current legal basis for the visa exemption for Swiss nationals.

Scope and implications of reciprocity

The  5th  recital  to  Regulation  No  539/2001  mentions  reciprocity  as  one  of  the  criteria  for
determining the lists of non-member countries whose nationals must be in possession of visas
and those whose nationals are exempt from that requirement. Article 1(4) also determines in
detail a reciprocity mechanism to be applied if a non-member country in the list in Annex II
introduces the visa requirement for nationals of a Member State.

The replies to the Commission’s questionnaire revealed that certain Member States’ nationals
are subject to the visa requirement in certain Annex II countries. Moreover, certain Annex II
countries exempt certain Member States’ nationals from the visa requirement for a period that
is  shorter  than  the  period  for  which  the  Member  States  exempt  those  countries’  nationals.
These facts emerging from the replies to the questionnaire call for an in-depth review of the
meaning  and  scope  of  reciprocity,  in  conjunction  with  the  mechanism  provided  for  by
Article 1(4).  But  the  effect  of  this  in-depth  review  must  not  be  to  delay  the  review  of  the
Annexes to Regulation No 539/2001, given top priority by the Seville European Council.

Article 2 provides that there will be a Commission report at a later date on the review of the
reciprocity rule.

3

2002/0280 (CNS)

Proposal for a

COUNCIL REGULATION

amending Regulation (EC) No 539/2001 listing the third countries whose nationals must
be in possession of visas when crossing the external borders of Member States and those
whose nationals are exempt from that requirement

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,3

Having regard to the Opinion of the European Parliament,4

Whereas:

(1)

(2)

(3)

(4)

Following  the  European  Council  held  in  Seville  on  21  and  22  June  2002,  which
considered as a top priority the review of Regulation (EC) No 539/2001 by the end of
2002,5 the Commission has evaluated the Member States’ replies to the questionnaire
it  sent  them  in  the  light  of  the  relevant  criteria  for  the  review  of  Regulation  (EC)
No 539/2001,  namely  illegal  immigration,  public  policy  and  security,  the  European
Union’s external relations with third countries, regional coherence and  reciprocity.  It
has found that Ecuador needs to be transferred from Annex II to Annex I to Regulation
(EC) No 539/2001 on grounds of illegal immigration.

Developments  in  international  law,  entailing  changes  in  the  status  or  designation  of
certain  States  or  entities,  must  be  reflected  in  the  Annexes  to  Regulation  (EC)
No 539/2001. In Annex I, East Timor must be removed from Part 2 (territorial entities)
and added to Part 1 (States).

Since  the  Agreement  on  the  Free  Movement  of  Persons  between  the  Union  and  its
Member States provides for free movement without visas for nationals of Switzerland
and the Union and its Member States, Switzerland should no longer be mentioned in
Annex II to Regulation (EC) No 539/2001.

It is clear from the Member States’ replies to the questionnaire that there needs to be
an in-depth review of the reciprocity rule, on which the  Commission will report  at a
later date.

3

4

5

OJ C , , p. .
OJ C , , p. .
OJ L 81, 21.3.2001, p. 1.

4

                                                
(5)

The visa requirement for Ecuador must be applied uniformly by the Member States. A
date  must  accordingly  be  set  from  which  all  Member  States  must  apply  the  visa
requirement,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 539/2001 is amended as follows:

(1)

In Annex I:

(a)  East Timor  is moved from Part 2 (“Entities and  territorial  authorities  that  are
not recognised as States by at least one Member State”) to Part 1 (“States”);

(b)  Ecuador is added;

(2)

In Annex II:

(a)  Ecuador is deleted;

(b)  Switzerland is deleted.

Article 2

The  Commission  shall  report  to  the  Council  and  the  European  Parliament  no  later  than
30 June  2003  on  the  implications  of  reciprocity  and,  if  necessary,  shall  present  appropriate
proposals.

Article 3

1.

2.

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

The Member States shall put the visa requirement into effect with regard to nationals
of Ecuador by 1 April 2003.

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

Done at Brussels,

For the Council
The President

5