Proposal for a Council Regulation on the establishment of a regime of local border traffic at the temporary external land borders between Member States
Date: 2003-08-14
Institutions: European Commission
Subjects: Schengen Agreement, admission of aliens, border control, cross-border transport, external border of the EU

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 14.8.2003
COM(2003) 502 final

2003/0193 (CNS)
2003/0194 (CNS)

Proposal for a

COUNCIL REGULATION

on the establishment of a regime of local border traffic at the external land borders of
the Member States

Proposal for a

COUNCIL REGULATION

on the establishment of a regime of local border traffic at the temporary external land
borders between Member States

(presented by the Commission)

EXPLANATORY MEMORANDUM

1.

INTRODUCTION

Article  62(2)  of  the  EC  Treaty  gives  the  Community  a  general  competence  on
"measures  on  the  crossing  of  the  external  borders  of  the  Member  States".  Such
measures are part of those which, on the basis of Article 61(a) of the EC Treaty, shall
be  adopted  within  a  period  of  five  years  after  the  entry  into  force  of  the  Treaty  of
Amsterdam.

However, measures in relation  to external border controls shall  take  account  of  the
provisions of the Schengen acquis integrated into the European Union.

In  particular,  Article  3,  paragraph  1  of  the  Schengen  Implementing  Convention
specifies  that,  while  external  borders  may  in  principle  only  be  crossed  at  border
crossing  points  and  during  the  fixed  opening  hours,  more  detailed  provisions,
exceptions  to  this  principle  and  special  arrangements  shall  be  adopted  by  the
'Schengen  Executive  Committee'  (replaced  by  the  Council  of  the  European  Union,
since the entry into force of the Amsterdam Treaty) on, amongst others, "local border
traffic" (also called 'small', 'minor' or 'excursion' traffic).

As such measures were not adopted, the development of the acquis on local border
traffic  and  the  need  to  set  common  minimum  rules  has  been  identified,  in  the
Commission  Communication  Towards  integrated  management  of  the  external
borders of the Member States of the European Union (COM(2002)233, 7.5.2002), as
one  of  the  issues  that  need  to  be  addressed  in  order  to  complete  and  clarify  the
Community  legal  framework  on  external  borders.  The  Plan  for  the  management  of
the  external  borders  of  the  Member  States  of  the  European  Union,  as  approved  by
the  JHA  Council  on  13  June  2002  and  subsequently  endorsed  by  the  Seville
European  Council  of  21  and  22  June,  included  the  adoption  of  measures  on  local
border traffic as one of the actions to be undertaken in the short term.

The  need  to  clarify  the  rules  on  local  border  traffic  is  also  amongst  the
recommendations  for  the  further  development  of  the  Schengen  acquis  made  by  the
Schengen-Evaluation  working  party,  which  have  been  approved  by  the  Justice  and
Home Affairs Council on 28 February 2002.

Furthermore,  this  issue  assumes  a  particular  importance  in  the  perspective  of  the
forthcoming enlargement, since cross-border movements between the future Member
States,  as  well  as  between  the  future  Member  States,  on  the  one  side,  and  their
neighbours,  on  the  other  side,  are  very  important  in  number.  As  pointed  out  in  the
Commission Communication on "Wider Europe" (COM(2003)104 final, 11.3.2003),
both  the  EU  and  its  -  present  and  future  -  neighbours  have  a  common  interest  in
ensuring  that  the  new  external  border  is  not  a  barrier  to  trade,  social  and  cultural
interchange or regional co-operation.

Efficient  rules  for  local  border  traffic  will  thus  help  promoting  the  development  of
border  regions  and  facilitating  the  crossing  of  the  border  by  bona  fide  border
residents,  while  at  the  same  time  taking  into  account  the  need  to  prevent  illegal
immigration, as well as potential threats to security posed by criminal activities.

2

Consequently, the Commission decided to launch the discussion on the establishment
of  Community  rules  on  local  border  traffic,  by  presenting  a  working  paper  on  the
issue (Developing the acquis on local border traffic, SEC(2002)947, of 9.9.2002).

Taking  into  account  the  reactions  and  the  contributions  of  both  current  and  future
Member  States  to  the  working  paper,  the  Commission  decided  to  put  forward  two
proposals  laying  down  rules  on  criteria  and  conditions  for  establishing  a  regime  of
local border traffic, and introducing a specific visa for that purpose.

2.

WHY TWO PROPOSALS?

One of the reasons to develop rules on local border traffic is, as explained above, the
lack  of  a  clear  and  coherent  legislative  framework  regulating  the  issue.  Currently,
there  is  not  even  a  definition  of  what  'local  border  traffic'  is.  The  only  existing
'acquis'  is  represented  by  bilateral  agreements  on  local  border  traffic  that  some
Member States have concluded with neighbouring third countries1. These agreements
are  indeed  quite  diverse  in  many  respects,  for  instance  as  regards  the  geographical
scope, the categories of people targeted, as well as the types of documents requested
for the crossing of the border.

There is however, a further reason, i.e. the need to take into account - and to regulate
- the new situations arising as a consequence of the accession of new Member States
to the EU.

First of all, it should be stressed that, unlike the present situation, most of the third
countries  neighbouring  the  new  EU  Member  States  are  countries  whose  nationals
must be in possession of a visa when entering the EU2. This is obviously an element
that  has  to  be  taken  into  account  when  envisaging  a  local  border  traffic  regime  at
such borders and covering this category of persons.

Secondly,  as  a  consequence  of  the  two-step  implementation  procedure  of  the
Schengen acquis (see below, point 6), the new Member States will have to apply the
full  Schengen  external  border  controls  regime  at  all  their  borders  upon  accession.
This  implies  that  border  controls  will  also  remain  in  place,  for  some  time  after
accession, between the new Member States and current Schengen States, as well as
between  the  new  Member  States  themselves  (so-called  "temporary  external
borders"). This is the reason why the Commission considers it appropriate - until the
full  implementation  of  the  Schengen  acquis  by  the  new  Member  States,  when
internal  border  controls  will  actually  be  lifted  -  to  apply  the  facilitated  border
crossing  regime  envisaged  for  border  residents  also  to  such  "temporary  external
borders".

Consequently, two instruments are hereby proposed:

- a Regulation laying down general rules on the criteria and conditions applicable for
establishing  a  regime  of  local  border  traffic  at  the  external  land  borders  of  the
Member States, and introducing a specific visa for that purpose (point 2.1);

1

2

Some of these are now acceding countries (e.g., Poland, Slovenia and the Czech Republic).
See Regulation (EC) No 539/2001 as modified by  Regulation (EC) No 2414/2001 and  by  Regulation
(EC) No 453/2003.

3

                                                
-  a  second  Regulation  applying  the  rules  laid  down  in  the  above  instrument  to  the
"temporary external land borders" between Member States (point 2.2).

2.1.

A Regulation fixing general principles on local border traffic with neighbouring
third countries

The purpose of the proposed first Regulation is to lay down rules on the criteria and
conditions for establishing a regime of local border traffic at the external land border
of the Member States.

First of all, a definition of 'local border traffic' is given, i.e. the regular crossing of the
external  land  border  of  a  Member  State  by  persons  lawfully  resident  in  the  border
area  of  a  neighbouring  third  country,  in  order  to  stay  in  the  border  area  of  that
Member  State  for  a  limited  period  (seven  consecutive  days  maximum  and,  in  any
case, for no longer than three months within any half-year period).

As  far  as  border  residents  not  requiring  a  visa  are  concerned,  the  facilitation
envisaged mainly concerns the travel documents to cross the border (an identity card
or a specific border crossing permit is sufficient).

The visa obligation is not waived for border residents  requiring  a visa. However,  a
specific visa ("L", from "Local"), is introduced. Such visa would be issued to bona
fide  border  residents,  on  grounds  of  local  border  traffic,  who  fulfil  the  necessary
conditions, as specified in the Regulation.

Such special visa will have the following characteristics:

-

-

-

-

its territorial validity will be limited to the border area of the issuing Member
State. The maximum duration of the stay in that area will be of 7 consecutive
days  and  will  not,  in  any  case,  exceed  three  months  within  any  half-year
period;

it  will  entitle  the  holder  to  multiple  crossings  of  the  border  of  the  issuing
Member State.  The minimum  validity  of  such  visa would  be  of  one  year  and
the maximum validity five years;

it will have the same security features as the normal short-term visa3;

the visa fees could be reduced or waived.

The  procedures  and  criteria  to  be  followed  for  the  issuing  of  such  visas  would  be
conforming  to  the  provisions  of  the  Common  Consular  Instructions  (CCI)4,  while
bearing in mind the two-step Schengen implementation mechanism. This means that,
until their full implementation of the Schengen acquis (and thus of the CCI), the new
Member  States  will  apply  their  national  legislation  which,  obviously,  will  have  to
conform to the principles defined in this Regulation.

In  both  cases,  border  residents  will  not  need  to  prove  the  possession  of  sufficient
means of subsistence but may be asked to prove their actual residence in the border

3

4

See Regulation (EC) No 1683/95 as modified by Regulation (EC) No 334/2002.
OJ C 313, 16.12.2002, p.1.

4

                                                
area,  as  well  as  the  reasons  for  frequently  crossing  the  border  on  grounds  of  local
border traffic.

Finally, common conditions applicable to both categories of border residents refer to
the  possibility  of  allowing  the  crossing  of  the  border  at  specific  border  crossing
points or lanes and/or outside authorised border crossing points and hours.

The  possibility  of  envisaging  a  local  border  traffic  regime  with  neighbouring  third
countries entails the need to ensure that an - at least - equivalent treatment is granted
by such third countries to EU citizens and third-country nationals lawfully resident in
the border area of a Member State, who wish to cross the border of a neighbouring
third country and stay in its border area for the purpose of local border traffic.

While  this  Regulation  sets  a  Community  regime  on  local  border  traffic,  thus
conferring  on  the  Community  external  competence  on  this  matter,  it  has  been
considered  appropriate  -  taking  into  account  the  specific  nature  of  a  local  border
traffic  regime,  whose  establishment  largely  depends  on  local  geographical,  social,
economic  and  other  considerations  -  to  delegate  to  Member  States  the  actual
implementation of such regime via bilateral agreements.

This Regulation therefore authorises Member States to negotiate bilaterally with their
neighbours, if appropriate, the specific arrangements applicable to local border traffic
at their common land border, provided that such  arrangements  comply  with  and  do
not affect the provisions established by this Regulation (see Article 17).

2.2.

The application of a local border traffic regime at the "temporary external land
borders" between Member States

As  explained  above  (point  2),  the  two-step  Schengen  implementation  procedure
implies  that  "temporary  external  borders"  will  remain  in  place  after  accession
between the new Member States and current Schengen States, as well as between the
new Member States themselves. At such borders, on the basis of Article 3 of the Act
of Accession, the full Schengen external borders regime will have to apply.

For  this  reason,  it  seemed  appropriate  to  present  a  Regulation  which  extends  the
applicability of the envisaged rules on criteria and conditions for establishing a local
border traffic regime to the "temporary external land borders".

The  application  of  such  rules  has  been  extended,  as  a  matter  of  principle,  only  to
third country nationals (both those who require a visa and those who do not) lawfully
resident in the border area of a Member State. This is because citizens of the Union
already  enjoy,  under  Community  law,  specific  rights  related  to  free  movement
which, generally speaking, go beyond what is foreseen in the present proposals (for
instance, as regards time-limits for stay, or entry conditions). It is therefore pointed
out that Community rules on local border traffic do not affect such  rights, nor they
affect the rights of those third-country nationals who enjoy rights of free movement
equivalent to those of citizens of the Union.

However, where the  facilitation granted under  a local border traffic  regime  to third
country nationals living in the border area goes beyond the rights already enjoyed by
citizens  of  the  Union,  it  is  provided  that  such  facilitation  shall  be  automatically
extended  to  them.  This  is  particularly  the  case  in  relation  to  the  possibility  of

5

crossing  the  border  at  specific  border  crossing  points  or  outside  authorised  border
crossing points and fixed hours.

3.

CHOICE OF THE LEGAL BASIS

The  legal  basis  proposed  for  the  Regulation  laying  down  rules  on  the  criteria  and
conditions for establishing a regime of local border traffic is Article 62(2) of the EC
Treaty, as this instrument covers "measures on the crossing of the external borders of
the Member States", which include both "standards and procedures to be followed by
Member States in carrying out checks on persons at such borders" (Article 62(2)(a))
and  "rules  on  visas  for  intended  stays  of  no  more  than  three  months"  (Article
62(2)(b)).

Article  62(2)  is  also  the  appropriate  legal  basis  for  the  Regulation  extending  the
application of rules  on  local  border  traffic at the  "temporary  external  land  borders"
between Member States, since the full Schengen external borders regime will apply
at such borders upon accession of the new Member States (see points 2 and 6.2).

Given  that  the  two  proposals  are  both  based  on  Title  IV  of  the  EC  Treaty,  "Visas,
asylum,  and  other  policies  related  to  the  free  movement  of  persons",  they  shall  be
presented and adopted in compliance with the protocols annexed to the Amsterdam
Treaty  on  the  position  of  the  United  Kingdom,  Ireland  and  Denmark.  The
consequences in relations to the different protocols are examined below, under point
5.

4.

SUBSIDIARITY AND PROPORTIONALITY

Article  62(2)  of  the  EC  Treaty  gives  competence  to  the  Community  to  adopt
measures  on  the  crossing  of  the  external  borders  of  the  Member  States.  Such
measures shall be adopted within a period of five years following the entry into force
of the Amsterdam Treaty. Community rules on external borders shall be considered
as one of the "flanking measures" to be adopted in conjunction with "measures aimed
at ensuring the free movement of persons", in order to contribute to the achievement
of  the  general  objective  of  progressively  establishing  "an  area  of  freedom,  security
and justice" (Article 61).

The  current  Community  provisions  on  the  crossing  of  the  external  borders  of  the
Member States are part of the Schengen acquis integrated into the European Union.
Such  acquis  needs,  however,  to  be  developed  and  completed.  The  Commission
Communication  'Towards  integrated  management  of  the  external  borders  of  the
Member States of the European Union'5 has included the adoption of rules on local
border traffic  amongst the measures to be  adopted in the  short term.  This has  been
endorsed  by  the  Council  and  integrated  into  the  'Plan  for  the  management  of  the
external borders of the Member States of the European Union' of 13 June 2002.

It is therefore clear that the development of  the  existing  acquis  on  external  borders
can only be achieved by adopting Community measures building upon it. However,
by its own nature, a regime of local border traffic can only be put in practice on the

5

COM(2002)233 final, 7.5.2002.

6

                                                
initiative  of  the  concerned  Member  States,  which  are  therefore  authorised  to
conclude  bilateral  agreements  with  neighbouring  third  countries,  if  they  consider  it
appropriate,  in  order  to  establish  a  local  border  traffic  regime,  while  obviously
respecting and complying with the conditions and criteria set by Community law.

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

The form taken by Community action shall allow the proposal to attain its objective
and to be implemented as efficiently as possible.

In this spirit, the legal instruments chosen to  establish general rules on local border
traffic are two Regulations addressed to the Member States, which set the principles
to  be  respected  by  Member  States  when  establishing  a  local  border  traffic  regime
with neighbouring countries. As the proposed initiatives are developing the Schengen
acquis,  the  form  of  a  Regulation  has  been  chosen  in  order  to  assure  a  harmonised
application in all Member States applying the Schengen acquis.

5.

CONSEQUENCES  IN  RELATION  TO  THE  VARIOUS  PROTOCOLS  ANNEXED  TO  THE
TREATIES

The legal basis for the proposals concerning measures on the crossing of the external
borders of Member States falls within Title IV of the EC Treaty and thus implies the
variable  situation  as  laid  down  by  the  protocols  on  the  position  of  the  United
Kingdom,  Ireland  and  Denmark.  The  present  proposals  are  building  upon  the
Schengen  acquis.  Therefore  the  following  consequences  in  relation  to  the  various
protocols have to be considered:

United Kingdom and Ireland

According to Article 4 and 5 of the Protocol integrating the Schengen acquis into the
framework  of  the  European  Union,  “Ireland  and  the  United  Kingdom  of  Great
Britain and Northern  Ireland,  which are  not  bound by the Schengen  acquis, may  at
any time request to take part in some or all of the provisions of the acquis”.

These  proposals  constitute  a  development  of  provisions  of  the  Schengen  acquis,  in
which the United Kingdom and Ireland do not take part, in accordance with Council
Decision  2000/365/EC  of  29 May 2000  concerning  the  request  of  the  United
Kingdom of Great Britain and Northern Ireland, and Council Decision 2002/192/EC
of  28 February 2002  concerning  Ireland's  request  to  take  part  in  some  of  the
provisions  of  the  Schengen  acquis.  The  United Kingdom  and  Ireland  are  therefore
not  taking  part  in  their  adoption  and  are  not  bound  by  them  or  subject  to  their
application.

Denmark

By  the  Protocol  annexed  to  the  Amsterdam  Treaty  on  the  position  of  Denmark,
Denmark does not take part in the adoption by the Council of measures pursuant to
Title  IV  of  the  EC  Treaty,  with  the  exception  of  “measures  determining  the  third
countries whose nationals must be in possession of visas when crossing the external
borders, or measures relating to a uniform format for visas” (former Article 100c of
the EC Treaty).

7

As  these  proposals constitute  a  development  of  the  Schengen  acquis  and  following
Article  5 of the  Protocol,  “Denmark shall decide  within  a  period  of  6  months  after
the Council has decided on a proposal or initiative to build upon the Schengen acquis
under the provisions of Title IV of the Treaty establishing the European Community,
whether it will implement this decision in its national law”.

Norway and Iceland

In accordance with Article 6 first indent of the Schengen Protocol, an agreement has
been signed on 18 May 1999 between the Council, Norway  and  Iceland in order to
associate those two countries with the implementation, application and development
of the Schengen acquis6.

Article 1 of this agreement stipulates that Norway and Iceland are associated with the
activities of the EC and the EU in the areas covered by the provisions referred to in
Annexes  A  (provisions  of  the  Schengen  acquis)  and  B  (provisions  of  acts  of  the
European Community, which have replaced corresponding provisions of, or adopted
pursuant to, the Schengen Convention) of the agreement as well as by  those which
will follow from them.

According to Article 2 of the agreement, the provisions of all acts or measures taken
by  the European  Union  amending  or  building  upon  the  integrated  Schengen  acquis
(Annex A, B) shall be implemented and applied by Norway and Iceland.

The present proposals build upon the Schengen acquis as defined in Annex A of the
agreement.

As a consequence they have to be discussed in the "Mixed Committee" as provided
for in Article 4 of the Agreement to give the possibility to Norway and  Iceland "to
explain  the  problems  they  encounter  in  respect  of"  the  measure  and  "to  express
themselves on any questions concerning the development of provisions of concern to
them or the implementation thereof".

CONSEQUENCES  IN  RELATION  TO  THE  TWO-PHASE  IMPLEMENTATION  PROCEDURE
OF ACTS BUILDING UPON THE SCHENGEN ACQUIS

Article 3 of the Act of Accession contains an article describing that the provisions of
the Schengen acquis, the acts building upon it or otherwise related to it, listed in the
annex  referred  to  in  that  article,  shall  be  binding  on  and  applicable  in  the  new
Member  States  as  from  accession.  The  provisions  and  acts  not  referred  to  in  that
annex  shall,  while  binding  on  the  new  Member  States  as  from  accession,  be
applicable  in  the  new  Member  States  following  a  special  Council  decision  to  that
effect, made in accordance with that article.

This is the so-called 'Schengen two-phase implementation procedure', whereby some
provisions of the Schengen acquis shall be binding and applicable upon accession to
the  EU,  while  others  -  namely  those  intrinsically  linked  to  the  lifting  of  internal

6.

6.1

6

OJ L 176, 10.07.99, p. 35

8

                                                
border controls - shall be binding upon accession but applicable in the new Member
States only following the Council decision referred to above.

With  regard  to  the  Schengen  provisions  on  external  borders  (Articles  3-8  of  the
Schengen  Convention  and  the  related  implementing  decisions,  including  the
Common Manual), they are listed in that annex and are thus binding and applicable
in the new Member States as from accession7. As pointed out above, such provisions
do also apply at the so-called "temporary external borders", i.e. the common border
between the new Member States and current Schengen States, as well as between the
new Member States.

The Schengen provisions on visas (Articles 9-18 of the Schengen Convention and the
related  implementing  decisions,  including  the  Common  Consular  Instructions)  are
not  listed  in  that  annex  and  therefore,  while  being  binding  upon  accession,  will  be
applicable in the new Member States only following the Council decision referred to
above. However, Regulation (EC) No 539/2001 listing the countries whose nationals
must be in possession of visas when crossing the external borders and those whose
nationals  are  exempt  from  that  requirement  -  as  modified  by  Regulations  (EC)  No
2414/2001  and  No  453/2003  -  and  Regulation  (EC)  No  1683/1995  laying  down  a
uniform  format  for  visas  (visa  sticker)  -  as  modified  by  Regulation  (EC)  No
334/2002 - are listed in that Annex and are thus both binding and applicable in the
new Member States as from accession.

The present proposals establishing rules on local border traffic and introducing a new
type of visa for this purpose, will be binding and applicable as from accession upon
the new Member States. However, it remains understood that the new Member States
will be bound to fully apply the provisions of the present Regulations referring to the
Schengen provisions on visa issuing procedures and conditions (and namely, to the
Common  Consular  Instructions)  only  following  the  entry  into  force  of  the  Council
decision authorising them to apply the Schengen acquis in full.

Another consequence of the 'Schengen two-phase implementation procedure' is that
border controls between current and new Member States, as well as border controls
at  the  common  borders  between  the  new  Member  States  (so-called  "temporary
external  borders"),  will  be  maintained  until  the  entry  into  force  of  the  above-
mentioned Council decision related to the lifting of such border controls.

This is why a second Regulation is proposed in order to extend the application of the
envisaged  rules  on  criteria  and  conditions  for  establishing  a  local  border  traffic
regime  to  the  "temporary  external  land  borders"  between  Member  States  (see  also
above, point 2.1).

6.2

7

With the exception of Article 5(1)(d), related to the consultation of the Schengen Information System.

9

                                                
7.

7.1.

COMMENTARY ON THE ARTICLES

Council Regulation (EC) No … on the establishment of a regime of local border
traffic at the external land borders of the Member States

Article 1

This  Article  specifies  the  purpose  of  the  Regulation,  which  is  to  establish  a  local
border  traffic  regime  at  the  external  land  borders  of  the  Member  States,  and  to
authorise them to conclude or maintain bilateral agreements with neighbouring third
countries for that purpose.

The Regulation also introduces a specific visa (Article 9), to be issued to bona fide
border residents requiring a visa on grounds of local border traffic.

Article 2

Paragraph 1 of this Article specifies that the proposed Regulation does not affect the
rights to free movement of certain categories of persons who already have the right
to enter and to stay on the basis of other provisions of Community law, namely:

- EU citizens, as defined in Article 17(1) of the EC Treaty;

- third-country nationals who are family members of citizens of the Union who have
exercised their  right  to  free  movement  within  the  EU.  The  family  tie  is  defined  by
Article 10 of Regulation n°1612/68;

- third-country nationals covered by agreements concluded by the Community and its
Member States with third countries (e.g., the agreement on the European Economic
Area).

Paragraph 2 further specifies that the Regulation does not aim at regulating and thus
does  not  affect  provisions  regulating  long-term  stays  and  questions  related  to
customs  duties  and  taxation.  These  questions  remain  therefore  regulated  by  the
applicable Community or national law.

Article 3

This Article defines the terms used in the proposal.

(a)

This  definition  clarifies  that  the  scope  of  this  Regulation  only  covers  land
borders between a Member State and a third country.

(b) This  definition  has  been  inspired  by  Community  instruments  referring  to  the
border area in relation to customs duties, although the maximum extension of
the  border  area  is  here  established  taking  into  account  existing  bilateral
practice. The aim is not to fix a specific extension of the border area, valid for
all land borders, but to set at least the maximum extension of it for the purpose
of local border traffic.

(c)

There is as yet no definition of 'local border traffic'. This definition is therefore
derived from existing practice (i.e., bilateral agreements). Two elements seem
essential to define 'local border traffic': the residence in the border area and the

10

regular  crossing  of  the  border  in  order  to  stay,  for  a  limited  period,  in  the
border area of the neighbouring country.

(d) The concept of third-country nationals is defined by default, excluding citizens

of the Union within the meaning of Article 17(1) of the EC Treaty.

(e)

This  definition  is  inspired  by  Article  2  of  Regulation  (EC)  No  539/2001.
However,  the  notion  of  visa  is  here  limited  to  short-term  visas  (and  not  also
transit  visas)  allowing  entry  and  stay  only  to  the  territory  of  the  issuing
Member State.

(f)(g) Two  conditions  are  established  in  order  to  be  considered  as  'border  resident':
the  actual  residence  in  the  border  area,  as  defined  above  under  (b),  and  a
minimum  residence  period  of  one  year  in  that  area.  A  distinction  is  made
between  border  residents  who  require  a  visa  and  those  who  do  not,  as  the
conditions  applicable  to  these  two  categories  of  persons  are  different.
Recognised refugees  and stateless persons are  also  included, falling  in  one of
the two categories specified above according to the distinction made by Article
3 of Council Regulation (EC) No 539/2001.

(h) This definition has  been  taken  from Article 2(g)  of  the  Commission  proposal
for a Council directive on the conditions of entry and residence of third-country
nationals  for  the  purpose  of  paid  employment  and  self-employed  economic
activities (COM(2001)386).

Article 4

the  principle  of  non-
This  standard  clause  provides  for  compliance  with 
discrimination in the application of this Regulation. It is in conformity with Article
21 of the Charter of Fundamental Rights of the European Union.

Article 5

The conditions listed in this Article for the entry of border residents not requiring a
visa  are  essentially  those  provided  by  Article  5(1)  of  the  Schengen  Implementing
Convention (SIC). The differences concern the following elements:

- the documents valid for crossing the border (see below the commentary on Article
6);

- the need to prove, if necessary, the residence in the border area and the reasons for
the  frequent  crossing  of  the  border  on  grounds  of  local  border  traffic  (but  not  the
conditions of the intended stay nor the possession of means of subsistence).

As regards Article 5(c) - which corresponds to Article 5(1)(d) of the SIC - it remains
understood  that,  to  the  extent  that  it  refers  to  consultation  of  the  Schengen
Information  System  (SIS),  the  new  Member  States  will  only  apply  it  as  from  their
full  implementation  of  the  Schengen  acquis,  following  the  Council  decision
authorising them to apply that acquis in full.

11

Article 6

Documents  valid  to  cross  the  external  land  border  of  a  Member  State  by  a  third
country  national  are,  generally  speaking,  a  passport  or  an  equivalent  international
travel document (e.g., the travel document issued to recognised refugees).

In the framework of local border traffic, it is proposed to facilitate border crossing to
bona fide border residents not requiring a visa by allowing them to cross the external
land borders also on the basis:

- of an identity card, provided that the residence in the border area is specified or can
otherwise be proved;

- of a specific border crossing permit, issued by the State of residence.

Article 7

The maximum duration of stay in the border area of a Member State for the purpose
of local border traffic is fixed  at seven  consecutive days. This figure is inspired  by
the current practice (bilateral agreements). Obviously, the maximum duration of the
stay in the border area cannot exceed the  general time-limit for a short  stay, that is
three months within any half-year period.

An extension of the above time-limits can be granted only in exceptional cases, such
as for humanitarian reasons, illness, accidents etc.

Article 8

There  are  some  differences  in  the  entry  conditions  to  be  fulfilled  by  third-country
nationals  requiring  a  visa  in  comparison  with  the  conditions  envisaged  for  third-
country nationals not requiring a visa, namely:

- the crossing of the external land border of a Member State cannot be allowed on the
basis of an identity card or a border crossing permit. The only valid documents are
those where a visa can be affixed (i.e., a passport and other equivalent international
travel documents);

- a visa is required, although with the specific characteristics defined in Articles 9-13
of the Regulation.

Article 9

A  special  visa  to  be  issued  to  bona  fide  border  residents,  for  the  purpose  of  local
border traffic, is established (paragraph 1).

Paragraph 2 specifies that the territorial validity of such visa shall be limited to the
border area of the issuing Member State.

Paragraph  3  further  provides  that  the  special  visa  issued  for  the  purpose  of  local
border  traffic  entitles  the  holder  to  multiple  crossings  of  the  border  of  the  issuing
Member State. The maximum duration of the stay in the border area on the basis of
such visa would be seven consecutive days and would not, in any case, exceed three
months within any half-year period.

12

Article 10

The  format  of  the  visa  issued  for  the  purpose  of  local  border  traffic  is  the  same
format  used  for  other  types  of  short-term  visas,  in  accordance  with  the  rules  and
specifications  determined  by  Regulation  (EC)  No  1683/95  of  29  May  1995
establishing  a  uniform  format  for  visas  (as  amended  by  Regulation  (EC)  No
334/2002 of 18 February 2002).

The visa issued for the purpose of local border traffic will have the distinctive letter
"L" (from "Local") under the heading "type of visa", in order to avoid any confusion
with other types of short-term visas, as well as with long-term visas.

Article 11

Paragraph 1 specifies that the "L" visa may be issued to border residents fulfilling the
conditions defined in Article 8, (a), (c)-(e) of the proposal.

Paragraph  2  adds  that  the  "L"  visa,  due  to  its  nature  and  specific  characteristics,
cannot be issued at the border, not even in exceptional cases.

Article 12

Since  the  "L"  visa  is,  by  its  own  nature,  a  multiple-entry  visa  issued  to  bona  fide
frequent travellers, it seemed appropriate to foresee a minimum period of validity of
one year and a maximum validity of up to five years.

Article 13

The  fees  corresponding  to  the  administrative  costs  of  processing  an  application  for
the issuing of the "L" visa shall be, in principle, the same as those charged for other
types of multiple-entry visas having the same time validity.

However,  in  derogation  from  the  above  paragraph,  Member  States  remain  free  to
reduce or waive the costs of processing the "L" visa.

Article 14

Paragraph  1  of  this  Article  confirms  that,  where  no  specific  rules  are  set  in  this
Regulation with regard to the conditions and procedures for issuing the "L" visa, the
provisions of the Common Consular Instructions shall apply.

However,  paragraph  2  further  specifies  that  those  Member  States  which,  as  a
consequence of the two-step Schengen implementation mechanism, do not apply the
Common Consular Instructions, shall temporarily - until the Council authorises them
to  fully  apply  the  Schengen  acquis,  including  the  Common  Consular  Instructions  -
apply their national provisions as regards visa issuing conditions and procedures. It is
clear  that  such  nationals  provisions  shall  comply  with  the  rules  set  in  the  present
Regulation.

Article 15

This Article clarifies that transfrontier workers, due to the nature of their activity, are
not bound by the time limits concerning the stay in the border area for the purpose of

13

local border traffic, and namely by the "three months within any six months" period.
Their stay is however limited by the time constraints contained in the definition itself
of 'transfrontier worker' (see above the commentary on Article 3(h)).

Article 16

This Article introduces a derogation from the obligation of affixing an entry and exit
stamp in the travel documents of border residents crossing the external land border of
a  Member  State  for  the  purpose  of  local  border  traffic.  The  stamping  of  travel
documents  would  be,  in  practice,  not  feasible  considering  that  the  nature  itself  of
local  border  traffic  entails  a  very  frequent  crossing  of  the  border.  Moreover,  as
regards  border  residents  not  requiring  a  visa,  identity  cards  and  border  permits  are
not suitable documents for affixing a stamp.

The  derogation  from  stamping  does  not  obviously  rule  out  the  possibility  for
Member States to check otherwise (e.g., through  electronic registers) the  respect of
time limits.

The necessary adaptations to the Common Manual deriving from the introduction of
this derogation will be dealt with in the framework of the recast of the Manual itself.

Article 17

Paragraph  1  of  this  Article  authorises  Member  States  to  maintain  or  conclude
agreements  with  neighbouring  third  countries  on  local  border  traffic,  provided  that
such agreements are compatible with the rules set out in the present Regulation. At
the same time, Member States shall eliminate  any incompatibility  between  existing
agreements and the rules set in this Regulation.

Paragraph 2 establishes the obligation for Member States to consult the Commission
when envisaging to conclude or amend agreements on local border traffic. In case the
agreement  is  considered  not  be  compatible  with  the  present  Regulation,  Member
States are required to amend it as to eliminate the incompatibilities established.

Finally,  paragraph  3  requests  Member  States  to  transmit  to  the  Commission  such
agreements, as well as their modification or denunciation.

Article 18

This Article, providing for the possibility of facilitating the crossing of the border to
border residents for the purpose of local border traffic, reflects - to  a  great extent -
existing practices. Three kinds of facilitation are proposed:

(a)

to  set  up  specific  border  crossing  points  (for  instance,  in  case  of  a  village
situated across the border or very close to it);

(b)

to reserve specific lanes to border residents;

(c)

to  authorise  border  residents  to  cross  the  border  outside  authorised  border
crossing points and hours. This possibility is already envisaged both in Article
3(1) of the Schengen Implementing Convention and in point 1.3, Part I of the
Common Manual.

14

Article 19

The establishment of a local border traffic regime with a neighbouring third country
aims  at  facilitating  the  crossing  of  the  external  land  border  of  a  Member  State  for
bona  fide  third  country  nationals  resident  in  the  border  area  of  that  neighbouring
country.  This Article requests  Member  States  to  ensure  that,  at  least,  an  equivalent
treatment  is  reserved  to  both  citizens  of  the  Union  and  third  country  nationals,
lawfully  resident  in  their  border  areas,  wishing  to  cross  the  border  and  stay  in  the
border area of the neighbouring third country.

Article 20

This Article amends the Common Consular Instructions in order to introduce the new
type of visa ("L"), and specify its characteristics.

The further technical amendments to the Common Consular Instructions which will
be necessary to allow for the actual issuance of the "L" visa will be dealt with in a
separate instrument in due time.

Article 21

Article 136, paragraph 3 of the Schengen Implementing Convention is deleted, as it
has been replaced by the provisions of Article 17 of this Regulation.

Article 22

Standard provision.

7.2.

Council Regulation (EC) No … on the establishment of a regime of local border
traffic at the temporary external land borders between Member States

Article 1

This  Article  specifies  that  the  aim  of  this  Regulation  is  to  apply  the  rules  on  the
establishment of a regime of local border traffic, as laid down in Regulation (EC) No
…, to the "temporary  external land  borders" between Member States, as defined in
Article 2.

Such  an  extension  is  envisaged  taking  into  account  the  fact  that  the  border  control
regime  to  be  applied  at  such  "temporary  external  land  borders"  is  the  same  as  the
regime  applied  at  the  external  land  border  between  a  Member  State  and  a  third
country.

Article 2

This  Article  defines  the  notion  of  "temporary  external  land  border",  that  is  a  land
border between two Member States which have not yet abolished border controls at
their  common  border.  This  situation  is  the  consequence  of  the  two-step  Schengen
implementation mechanism, whereby the new Member States will only  apply some
parts  of  the  Schengen  acquis  upon  accession  (see  above,  points  2  and  6).  The
"temporary  external  land  border"  will  therefore  be,  upon  accession  of  the  new
Member States, the border between:

15

-

-

a  Member  State  fully  implementing  the  Schengen  acquis  and  a
neighbouring Member State not yet implementing such acquis in full (for
instance, the border between Germany and Poland);

two  neighbouring  Member  States  not  fully  implementing  the  Schengen
acquis (for instance, the border between Slovakia and Hungary)

It  is  clear  that,  once  the  Council  authorises  Member  States  not  fully  implementing
the  Schengen  acquis  to  apply  such  acquis  in  full,  and  their  "temporary  external
borders"  will  thus  become  internal  borders,  this  Regulation  will  no  longer  apply  at
those borders.

Article 3

Paragraph 1 of this Article extends the application of all the rules on the criteria and
conditions for establishing a regime of local border traffic at the external land border
of the Member States, as established by Chapter II of Regulation (EC) No …, to the
crossing of the  temporary  external land border of  a  Member  State by  third  country
nationals residing in the border area of a neighbouring Member State.

Paragraph 2 specifies that the rights of free movement of citizens of the Union and
members of their families, as well as those of third-country nationals and their family
members who under agreements between the Community and its Member States, on
the one hand, and these countries, on the other hand, enjoy rights of free movement
equivalent to those of citizens of the Union , are not affected by the provisions of this
Regulation.

Article 4

This  standard  clause  provides  for  compliance  with 
the  principle  of  non-
discrimination in the application of this Regulation. It is in conformity with Article
21 of the Charter of Fundamental Rights of the European Union.

Article 5

Paragraph  1  of  this  Article  authorises  Member  States  to  maintain  or  conclude
between  themselves  agreements  on  local  border  traffic,  provided  that  they  are
compatible with the present Regulation. It is obvious that, once border controls will
be  lifted  at  the  "temporary  external  borders",  these  agreements  will  loose  their
objective.

Paragraph 2 specifies that such agreements may contain provisions facilitating border
crossing, such as the setting up of specific border crossing points, the reservation of
specific  lanes  to  border  residents,  or  the  authorisation  to  cross  the  border  outside
border  crossing  points  and  fixed  hours.  If  a  Member  State  decides  to  grant  these
types  of  facilitation,  they  shall  apply  both  to  citizens  of  the  Union  and  to  third
country nationals.

Finally, paragraph 3 requests Member States to send a copy of these agreements to
the Commission, as well as any amendment or denunciation.

Articles 6

Standard provision.

16

2003/0193 (CNS)

Proposal for a

COUNCIL REGULATION

on the establishment of a regime of local border traffic at the external land borders of
the Member States

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission8,

Having regard to the opinion of the European Parliament9,

Having regard to the opinion of the European Economic and Social Committee10,

Having regard to the opinion of the Committee of the Regions11,

Whereas:

(1) 

(2) 

(3) 

The  need  to  develop  rules  on  local  border  traffic  in  order  to  consolidate  the
Community  legal  framework  on  external  borders  has  been  highlighted  in  the
Commission  Communication  'Towards  an  integrated  management  of  the  external
borders of the Member States of the European Union'12, and confirmed by the Council
on  13  June  2002,  with  the  approval  of  the  'Plan  for  the  management  of  the  external
borders of the Member States of the  European  Union', subsequently endorsed by the
European Council held in Seville on 21 and 22 June 2002.

It is in the interest of the enlarged European Union to ensure that the borders with its
neighbours  are  not  a  barrier  to  trade,  social  and  cultural  interchange  or  regional  co-
operation.  An  efficient  system  for  local  border  traffic  should  consequently  be
developed.

The Community should lay down the rules on criteria  and conditions to be complied
with when facilitating the crossing of the external land borders of the Member States
to border residents for the purpose of local border traffic. Such rules should ensure a
balance  between,  on  the  one  hand,  the  facilitation  of  border  crossing  to  bona  fide
border  residents  having  legitimate  reasons  to  frequently  cross  the  external  border  of

8

9

10

11

12

OJ C , , p. .
OJ C , , p. .
OJ C , , p. .
OJ C , , p. .
COM (2002)233 final, 7.5.2002.

17

                                                
(4)

(5)

(6)

(7)

(8)

(9)

13

14

15

16

the Member States and, on the other hand, the need to prevent illegal immigration as
well as potential threats to security posed by criminal activities.

In order to address the situation of those border residents who require a visa pursuant
to Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries
whose nationals must be in possession of visas when crossing the external borders and
those whose nationals are exempt from that requirement13, a specific short-stay visa, to
be issued on grounds of local border traffic, should be established.

For  the  application  of  the  regime  of  local  border  traffic,  Member  States  should  be
allowed 
if  necessary,  agreements  with
neighbouring  third  countries  provided  that  they  comply  with  the  rules  set  in  this
Regulation.

to  maintain  or  conclude  bilaterally, 

Since  the  objectives  of  the  proposed  action,  namely  the  definition  of  rules  on  the
criteria and conditions for establishing a local border traffic regime at the external land
borders  of  the  Member  States,  directly  affect  the  Community  acquis  on  external
borders  and  visas  and  cannot  thus  be  achieved  sufficiently  by  the  Member  States
acting alone, the Community may adopt measures, in accordance with the principle of
subsidiarity as set out  in  Article 5 of the Treaty.  In accordance with  the  principle  of
proportionality,  as  set  out  in  that  same  Article,  this  Regulation  does  not  go  beyond
what is necessary in order to achieve this objective.

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 taking part in the adoption of this Regulation, and is not
bound  by  it  or  subject  to  its  application.  Given  that  this  Regulation  builds  upon  the
Schengen  acquis  under  the  provisions  of  Title  IV  of  Part  Three  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.

As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of
provisions of the Schengen acquis within the meaning 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  acquis14,  which  fall  within  the  area
referred  to  in  Article  1(B)  of  Council  Decision  1999/437/EC  of  17  May  1999  on
certain arrangements for the application of that Agreement15.

This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in
which  the  United  Kingdom  does  not  take  part,  in  accordance  with  Council  Decision
2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great
Britain  and  Northern  Ireland  to  take  part  in  some  of  the  provisions  of  the  Schengen
acquis16. The  United  Kingdom  is  therefore  not  taking  part  in  its  adoption  and  is  not
bound by it or subject to its application.

OJ  L  81,  21.3.2001,  p.1.  Regulation  as  last  amended  by  Regulation  (EC)  No  453/2003  (OJ  L  69,
13.3.2003, p.10).
OJ L 176, 10.7.1999, p.36.
OJ L 176, 10.7.1999, p.31.
OJ L 131, 1.6.2000, p.43.

18

                                                
(10)

This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in
which Ireland does not take part, in accordance with Council Decision 2002/192/EC of
28 February 2002 concerning Ireland's request to take part in some of the provisions of
the  Schengen  acquis17.  Ireland  is  therefore  not  taking  part  in  its  adoption  and  is  not
bound by it or subject to its application.

(11)

This  Regulation  constitutes  an  act  building  on  the  Schengen  acquis  or  otherwise
related to it within the meaning of Article 3(1) of the Act of Accession,

HAS ADOPTED THIS REGULATION:

Chapter I
General provisions

Article 1
Subject matter

This Regulation establishes a regime of local border traffic at the external land borders of the
Member  States  and  authorises  Member  States  to  conclude  or  maintain  bilateral  agreements
with neighbouring third countries for the purposes of implementing that regime.

1.

This Regulation does not affect the rights:

Article 2
Scope

(a)

(b)

relating  to  free  movement  enjoyed  by  citizens  of  the  Union  or  third-country
nationals who are members of the family of a citizen of the Union;

conferred on third-country nationals and their family members, whatever their
nationality,  who  under  agreements  between  the  Community  and  its  Member
States, on the one hand, and these countries, on the other hand, enjoy rights of
free movement equivalent to those of citizens of the Union.

2.

This  Regulation  does  not  affect  the  provisions  of  Community  and  national  law
applicable to third-country nationals relating to:

(a)

long-term stays;

(b)

access to and exercise of economic activity;

(c)

customs duties and taxation.

17

OJ L 64, 7.3.2002, p.20.

19

                                                
Article 3
Definitions

For the purposes of this Regulation the following definitions shall apply:

(a)

(b)

(c)

(d)

(e)

"External land border" means the common land border between a Member State and
a neighbouring third country;

"Border area" means an area which, as the crow flies, does not extend more than 50
kilometres from the frontier. Within this area, the local administrative districts which
are  to  be  considered  as  part  of  the  border  area  can  be  further  specified  by  the
concerned States;

"Local  border  traffic"  means  the  regular  crossing  of  the  external  land  border  of  a
Member State by persons lawfully resident in the border area of a neighbouring third
country in order to stay in the border area of that Member State for  a period which
cannot exceed the time limits set in this Regulation;

"Third-country national" means any person who is not a citizen of the Union within
the meaning of Article 17(1) of the EC Treaty;

"Visa" means an authorisation issued by a Member State or a decision taken by such
State  which  is  required  with  a  view  to  entry  for  an  intended  stay  in  that  Member
State of no more than three months in total;

(f)

"Border residents not requiring a visa" means:

(i)

(ii)

nationals  of  third  countries  listed  in  Annex  II  to  Regulation  (EC)  No
539/2001, who are lawfully resident in the border area of a third country
neighbouring a Member State since at least one year;

recognised  refugees  and  stateless  persons  exempted  from  the  visa
obligation on the basis of Article 3, second indent of Regulation (EC) No
539/2001, who are lawfully resident in the border area of a third country
neighbouring a Member State since at least one year;

(g)

" Border residents requiring a visa" means:

(i)

(ii)

nationals  of  third  countries  listed  in  Annex  I  to  Regulation  (EC)  No
539/2001, who are lawfully resident in the border area of a third country
neighbouring a Member State since at least one year;

recognised  refugees  and  stateless  persons  holding  travel  documents
issued by one of the third countries listed in Annex I to Regulation (EC)
No  539/2001,  who  are  lawfully  resident  in  the  border  area  of  a  third
country neighbouring a Member State;

(h)

"Transfrontier workers" means third-country nationals resident in the border area of a
neighbouring  third  country  who  are  employed  in  the  border  area  of  an  adjacent
Member  State  and  who  return  to  the  border  area  of  the  neighbouring  country  each
day or at least once a week.

20

Article 4
Non discrimination clause

Member  States  shall  apply  the  provisions  of  this  Regulation  without  discrimination  on
grounds of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion
or  beliefs,  political  or  other  opinion,  membership  of  a  national  minority,  property,  birth,
disability, age or sexual orientation.

Chapter II
Local border traffic regime

SECTION 1
BORDER RESIDENTS NOT REQUIRING A VISA

Article 5
Entry conditions

Border  residents  not  requiring  a  visa  may  cross  the  external  land  border  of  a  neighbouring
Member State for the purpose of local border traffic, provided they:

(a)

(b)

(c)

(d)

possess a valid document or documents, authorising them to cross the border,
as defined in Article 6;

produce,  if  necessary,  documents  proving  their  status  of  border  residents  and
the existence of legitimate reasons to frequently cross the border on grounds of
local border traffic, such as family links, social, cultural or economic motives;

are not persons for whom an alert has been issued for the purposes of refusing
entry;

are  not  considered  to  be  a  threat  to  public  policy,  national  security  or  the
international relations of any of the Member States.

Article 6
Documents

Documents authorising border residents not requiring a visa to cross the external land border
of a neighbouring Member State for the purpose of local border traffic may be:

(a)

an identity card specifying the residence in the border area. In  case this latter
condition  is  not  fulfilled,  border  residents  may  be  requested  to  carry  a
residence certificate jointly with the travel document;

(b)

a specific border crossing permit, issued by the State of residence.

21

Article 7
Stay in the border area

For  the  purposes  of  this  Regulation,  border  residents  not  requiring  a  visa  may  stay  in  the
border  area  of  a  neighbouring  Member  State  for  up  to  seven  consecutive  days.  The  total
duration of their successive visits in that Member State shall not exceed three months within
any half-year period.

An extension of the time-limits may be envisaged in exceptional circumstances.

SECTION 2
BORDER RESIDENTS REQUIRING A VISA

Article 8
Entry conditions

Border  residents  requiring  a  visa  may  cross  the  external  land  border  of  a  neighbouring
Member State for the purpose of local border traffic, provided they:

a)

b)

c)

d)

e)

are  in  possession  of  a  valid  document  authorising  them  to  cross  the  external
borders as defined pursuant to Article 17(3)(a) of the Convention implementing
the  Schengen  Agreement  of  14  June  1985,  signed  at  Schengen  on  19  June
199018;

are in possession of a valid visa, as defined in Article 9;

produce,  if  necessary,  documents  proving  their  status  of  border  residents  and
the existence of legitimate reasons to frequently cross the border on grounds of
local border traffic, such as family links, social, cultural or economic motives;

are not persons for whom an alert has been issued for the purposes of refusing
entry;

are  not  considered  to  be  a  threat  to  public  policy,  national  security  or  the
international relations of any of the Member States.

Article 9
Visas for border residents

For  the  purposes  of  this  Regulation,  a  specific  visa  to  be  issued  to  border  residents  is
established.

The territorial validity of the visa shall be  limited to the border area  of  the  issuing Member
State.

The visa shall entitle the holder to multiple crossings of the external land border of the issuing
Member  State  and  to  a  stay  within  the  border  area  of  that  Member  State  for  up  to  seven

18

OJ L 239, 22.9.2000, p.19.

22

                                                
consecutive  days.  The  total  duration  of  the  successive  visits  in  that  Member  State  shall  not
exceed three months within any half- year period.

Article 10
Format of the visa

The visa referred to in Article 9 shall be issued by Member States in the form of a uniform
format (sticker)  conforming to  the  rules  and  to  the  specifications  of  Council  Regulation  No
1683/9519.The standard model issued for this purpose  shall  contain  the  distinctive letter "L"
under heading 11 ("type of visa").

Article 11
Issuing conditions

1.

2.

The  visa  referred  to  in  Article  9  may  be  issued  to  border  residents  who  fulfil  the
conditions set out in Article 8 (a), (c), (d) and (e).

The visa referred to in Article 9 shall not be issued at the border.

Article 12
Validity

The  visa  referred  to  in  Article  9  shall  be  valid  for  minimum  one  year  and  for  a  maximum
period of up to five years.

1.

2.

1.

2.

19

20

Article 13
Administrative costs

The fees corresponding to the administrative costs of processing the application for
the visa referred to in Article 9 shall be equivalent to the fees charged for short-term
multiple entry-visas having an equivalent validity.

By  way  of  derogation  from  paragraph  1,  Member  States  may  decide  to  reduce  or
waive the fees corresponding to the administrative costs of processing the application
for the visa referred to in Article 9.

Article 14
Relation with the Common Consular Instructions

Save where this Regulation provides otherwise and without prejudice to Article 20,
the conditions and procedures for the issuing of the visa referred to in Article 9 shall
be regulated by the Common Consular Instructions20.

Those Member States which do not apply the Schengen acquis in full shall, until the
date  on  which  the  Council  authorises  them  to  fully  apply  that  acquis,  apply  their

OJ L 164, 14.7.1995, p.1.
OJ C 313, 16.12.2002, p.1.

23

                                                
relevant national provisions for issuing visas, provided that they are compatible with
this Regulation.

SECTION 3
COMMON PROVISIONS

Article 15
Transfrontier workers

The  time-limits  established  in  Article  7  and  in  Article  9  shall  not  apply  to  transfrontier
workers.

Article 16
Entry and exit stamps

Entry  and  exit  stamps  shall  not  be  affixed  on  the  travel  documents  of  border  residents
crossing the external land border of a Member State for the purpose of local border traffic.

Chapter III
Implementation of the regime

Article 17
Agreements between Member States and third countries

1.

2.

3.

For the purposes of implementing a regime of local border traffic, Member States are
authorised to conclude agreements with third countries in conformity with the rules
set out in this Regulation.

Member States may also maintain existing agreements with third countries on local
border  traffic.  To  the  extent  that  such  agreements  are  not  compatible  with  this
Regulation, the Member States concerned shall amend the agreements in such a way
as to eliminate the incompatibilities established.

Member States envisaging to conclude or amend agreements on local border traffic
with neighbouring third countries shall consult the Commission before doing so as to
the compatibility of the agreement with this Regulation.

If the Commission considers the agreement to be incompatible with this Regulation,
it  shall  notify  the  Member  State  concerned  and  shall  require  it  to  amend  the
agreement in such a way as to eliminate the incompatibilities established.

Member States shall transmit to the Commission a copy of the agreements referred to
in paragraph 1, as well as any denunciation of, or amendments to, these agreements.

24

Article 18
Facilitation for border crossing

For the purposes of this Regulation, Member States may:

a)

b)

c)

set up specific border crossing points open only to border residents;

reserve specific lanes to border residents at ordinary border crossing points;

authorise border residents to cross their border at places other than authorised border
crossing points and outside the fixed hours.

Article 19
Reciprocity

In  their  agreements  with  third  countries,  Member  States  shall  ensure  that  the  third  country
grants comparable treatment for citizens of the Union, as well as for third country nationals,
lawfully resident in the border area of a Member State and wishing to travel to the border area
of a neighbouring third country.

Chapter IV
Final provisions

Article 20
Amendment of the Common Consular Instructions

The Common Consular Instructions shall be amended as follows:

(a)

In part I, point 2, the following point 2.3a is added:

"2.3a Visas for the purpose of local border traffic

In  the  case  of  third-country  nationals  who  frequently  need  to  cross  the  border  of  a
neighbouring  Member  State  for  the  purpose  of  local  border  traffic,  as  defined  in
[Regulation (EC) No…this Regulation]*, a visa  whose territorial validity is limited
to the border area of the issuing Member State may be issued. Such visa shall entitle
the holder to multiple crossings of the border of the issuing Member State, provided
that the total length of the successive stays in the border area of that Member State
does not exceed three months in any half year.

In conformity with Regulation (EC) No…, such visa shall have a minimum validity
of one year and may be issued free of charge.

Visas issued for the purpose of local border traffic may not be issued at the border.

--------------------------------------------------------------

* OJ L…"

25

(b)

The text of this Regulation is added as Annex 18.

Article 21
Amendment of the Convention implementing the Schengen agreement

Article 136(3) of the Convention implementing the Schengen Agreement is deleted.

Article 22
Entry into force

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

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

Done at Brussels,

For the Council
The President

26

2003/0194 (CNS)

Proposal for a

COUNCIL REGULATION

on the establishment of a regime of local border traffic at the temporary external land
borders between Member States

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission21,

Having regard to the opinion of the European Parliament22,

Having regard to the opinion of the European Economic and Social Committee23,

Having regard to the opinion of the Committee of the Regions24,

Whereas:

(1)

(2)

(3)

21

22

23

24

25

26

In  view  of  the  accession  of  new  Member  States,  the  Community  should  take  into
account  the  specific  situation  deriving  from  the  two-step  implementation  of  the
Schengen acquis by the new Member States, and namely the temporary maintenance
of  border  controls  at  the  common  borders  between  new  Member  States  not  fully
implementing the Schengen acquis25, as well as between the latter and Member States
fully implementing the Schengen acquis.

Since the new Member States, on the basis of Article 3 of the Act of Accession, will
have to apply the provisions of the Community acquis on external borders in full at all
their borders, it should be possible for Member States which have not abolished border
controls between themselves to apply the regime of local border traffic established by
Council  Regulation  (EC)  No…of…on  the  establishment  of  a  regime  of  local  border
traffic at the external land borders of the Member States26.

The  rights to free movement enjoyed  by  citizens of  the  Union  and members of  their
families,  as  well  as  by  third-country  nationals  and  their  family  members  who  under
agreements  between  the  Community  and  its  Member  States,  on  the  one  hand,  and
these countries, on the other hand, enjoy rights of free movement equivalent to those

OJ C , , p. .
OJ C , , p. .
OJ C , , p. .
OJ C , , p. .
OJ L 239, 22.9.2000.
See page…of this Official Journal.

27

                                                
of citizens of the Union, should not be affected by the establishment of rules on local
border traffic at Community level. At the same time, where such rules provide for the
possibility  of  more  favourable  treatment  to  be  granted  to  third  country  nationals  on
grounds  of  local  border  traffic,  such  treatment  should  automatically  be  extended  to
citizens of the Union.

Member  States  should  not  be  prevented  from  negotiating  local  border  traffic
arrangements  between  themselves,  if  necessary,  provided  that  they  comply  with  the
rules set out in this Regulation.

Since the objectives  of  the  proposed  action,  namely  the  application  of  the  regime  of
local border traffic at the external land borders of the Member States to the temporary
external  land  borders  between  Member  States,  directly  affect  the  Community  acquis
on external borders and visas and cannot thus be achieved sufficiently by the Member
States  acting  alone,  the  Community  may  adopt  measures,  in  accordance  with  the
principle of subsidiarity as set out in Article  5 of the  Treaty.  In accordance  with  the
principle of proportionality, as set out in that same Article, this Regulation does not go
beyond what is necessary in order to achieve this objective.

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 taking part in the adoption of this Regulation, and is not
bound  by  it  or  subject  to  its  application.  Given  that  this  Regulation  builds  upon  the
Schengen  acquis  under  the  provisions  of  Title  IV  of  Part  Three  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.

As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of
provisions of the Schengen acquis within the meaning 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  acquis27,  which  fall  within  the  area
referred  to  in  Article  1(B)  of  Council  Decision  1999/437/EC  of  17  May  1999  on
certain arrangements for the application of that Agreement28.

This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in
which  the  United  Kingdom  does  not  take  part,  in  accordance  with  Council  Decision
2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great
Britain  and  Northern  Ireland  to  take  part  in  some  of  the  provisions  of  the  Schengen
acquis29. The  United  Kingdom  is  therefore  not  taking  part  in  its  adoption  and  is  not
bound by it or subject to its application.

This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in
which Ireland does not take part, in accordance with Council Decision 2002/192/EC of
28 February 2002 concerning Ireland's request to take part in some of the provisions of

(4)

(5)

(6)

(7)

(8)

(9)

27

28

29

OJ L 176, 10.7.1999, p.36.
OJ L 176, 10.7.1999, p.31.
OJ L 131, 1.6.2000, p.43.

28

                                                
the  Schengen  acquis30.  Ireland  is  therefore  not  taking  part  in  its  adoption  and  is  not
bound by it or subject to its application.

(10)

This  Regulation  constitutes  an  act  building  on  the  Schengen  acquis  or  otherwise
related to it within the meaning of Article 3(1) of the Act of Accession,

HAS ADOPTED THIS REGULATION:

Article 1
Subject matter

This Regulation provides for the application of the regime of local border traffic established
by Regulation (EC)No ... to the temporary external land borders between Member States.

Article 2
Definitions

For the purposes of this Regulation:

"Temporary external land border" means the common land border between:

(a)

a Member State fully implementing the acquis defined in Annex A to Council
Decision  (EC)  No  435/199931  ("the  Schengen  acquis")  and  a  Member  State
bound to apply such acquis in full, in conformity with Article 3 of the Act of
Accession, but for which the Council decision authorising it to fully apply that
acquis has not entered into force;

(b)

two Member States bound to apply the Schengen acquis in full, in conformity
with  Article  3  of  the  Act  of  Accession,  but  for  which  the  Council  decision
authorising them to fully apply that acquis has not entered into force.

Article 3
Application of the regime

1.

Member States may apply the regime of local border traffic established by Chapter II
of Regulation (EC) No … to third country nationals lawfully resident in the border
area  of  a  neighbouring  Member  State,  under  the  conditions  laid  down  in  this
Regulation.

2.

This Regulation does not affect the rights:

(a)

(b)

relating  to  free  movement  enjoyed  by  citizens  of  the  Union  or  third  country
nationals who are members of the family of a citizen of the Union;

conferred on third-country nationals and their family members, whatever their
nationality,  who  under  agreements  between  the  Community  and  its  Member

30

31

OJ L 64, 7.3.2002, p.20.
OJ L 176, 10.7.1999, p.1.

29

                                                
States, on the one hand, and these countries, on the other hand, enjoy rights of
free movement equivalent to those of citizens of the Union.

Article 4
Non discrimination clause

Member  States  shall  apply  the  provisions  of  this  Regulation  without  discrimination  on
grounds of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion
or  beliefs,  political  or  other  opinion,  membership  of  a  national  minority,  property,  birth,
disability, age or sexual orientation.

Article 5
Agreements between Member States

1.

2.

In order to implement the regime of local border traffic at their temporary external
land  borders  Member  States  are  authorised  to  conclude  agreements  between
themselves in conformity with this Regulation.

Member States may maintain existing agreements between themselves. To the extent
that  such  agreements  are  not  compatible  with  this  Regulation,  the  Member  States
concerned  shall  amend  the  agreements  in  such  a  way  as  to  eliminate  the
incompatibilities established.

The agreements referred to in paragraph 1 may contain provisions for the facilitation
of border crossing, whereby Member States:

(a)

set up specific border crossing points open only to border residents;

(b)

reserve specific lanes to border residents at ordinary border crossing points;

(c)

authorise border residents to cross their border at places other than authorised
border crossing points and outside the fixed hours.

Such provisions shall apply both to third country nationals, as well as to citizens of
the  Union,  who  are  lawfully  resident  in  the  border  area  of  the  Member  States
concerned.

3.

Member States shall transmit to the Commission a copy of the agreements referred to
in paragraph 1, as well as any denunciation of, or amendments to, these agreements.

Article 6
Entry into force

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

30

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

Done at Brussels,

For the Council
The President

31