Opinion of the European Economic and Social Committee on the ‘ ‘proposal for a Council Regulation on the establishment of a regime of local border traffic at the temporary external land borders between Member States’ (COM(2003) 502 final – 2003/0194 (CNS))
Date: 2004-01-28
Institutions: European Economic and Social Committee
Subjects: Schengen Agreement, admission of aliens, border control, external border of the EU, frontier worker, occupational migration

30.4.2004

EN

Official Journal of the European Union

C 108/65

Opinion of the European Economic and Social Committee on the ‘proposal for a Council Regu-
lation on the establishment of a regime of local border traffic at the external land borders of the
Member States’ and the ‘proposal for a Council Regulation on the establishment of a regime of
local border traffic at the temporary external land borders between Member States’

(COM(2003) 502 final – 2003/0193 (CNS) – 2003/0194 (CNS))

(2004/C 108/13)

On 18 September 2003, the Council decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposals.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 6 January 2004. The rapporteur was Mr Simons.

At its 405th plenary session of 28 and 29 January 2004 (meeting of 28 January), the European Economic
and Social Committee adopted the following opinion by 52 votes to three, with no abstentions.

Introduction

prevent illegal
posed by criminal activities.

immigration and potential threats to security

The purpose of the European Commission's proposals on the
establishment of a regime of local border traffic at the external
land borders of the EU Member States (1) and at the temporary
external land borders between Member States (2) is to facilitate
border crossing for bona fide border residents having legitimate
reasons to frequently cross the external land borders and, at the
same time, to take account of the need to prevent illegal immi-
gration and potential threats to security posed by criminal
activities.

1. Gist of the Commission proposals

1.1
Under the proposal for a regulation submitted as docu-
ment 2003/0193, the existing and, from 1 May 2004, the new
Member States that have a common land border with a neigh-
bouring third country may, if desired, elaborate further on the
rules on local border traffic set out below through bilateral,
reciprocal agreements.

1.2
Under the proposal for a regulation submitted as docu-
ment 2003/194, an existing and a new Member State, or two
if
new Member States,
desired, also elaborate further on the rules set out below
through agreements of this kind.

that have a common border may,

1.2.1
These are temporary rules that may be applied from 1
May 2004 but which will cease to be operative once the new
Member States concerned implement the Schengen acquis in
full and controls at the common borders are lifted.

1.3
The Commission's purpose in submitting these two
proposals is to facilitate border crossing for bona fide border
residents having legitimate reasons to frequently cross the
external land borders, and also to take account of the need to

(1) COM(2003) 502 final – 2003/0193 (CNS)
(2) COM(2003) 502 final – 2003/0194 (CNS)

1.4
The European Commission is thus proposing that third-
country nationals who regularly reside in an area bordering a
neighbouring Member State for a minimum of one year be
allowed to cross the external land borders frequently for family,
social, cultural, economic or other reasons, outside authorised
border crossing points and hours, and be allowed to remain for
a maximum of seven consecutive days provided the total dura-
tion of the successive visits does not exceed three months
within any half-year period.

1.5
Those concerned must have the requisite travel docu-
ments. Third-country nationals not requiring a visa will be
granted entry on production of their identity card or a specific
permit.

1.5.1
Third-country nationals requiring a visa will have to
have a specific ‘L’ visa which will be valid for a minimum of
one, and a maximum of five years, and will have a uniform
format (standard model).

1.6
Those affected by these measures are given access only
to the border area, which does not extend more than 50 km
and within which zones or towns may be specified as subject
to the local border traffic regime.

2. General comments

about

arrangements

The Committee endorses the proposals' objective but
2.1
wonders
the
for
maximum authorised duration of stay has not been exceeded,
especially as, for practical and other reasons, the travel docu-
ments concerned cannot or need not be stamped upon entry
and exit.

establishing

that

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Official Journal of the European Union

30.4.2004

2.2
the
The European Commission clearly assumes that
checks made for granting the ‘L’ visa are sufficient for the party
concerned to be considered bona fide after the visa has been
issued. However, as this visa may be valid for anything up to
five years, it will be difficult to check that the parties crossing
the border – at any rate if they do so outside authorised border
crossing points and hours – continue to meet the visa require-
ments and, for instance, are not in the meantime subject to an
alert refusing them entry.

2.3
In any case, this approach is not a satisfactory way to
monitor the stays of third-country nationals not requiring a
visa who, in this instance, may enter simply on production of
their identity card.

2.4
If any parties covered by these measures are nonetheless
discovered outside the border area on the territory of another
Member State, their stay is considered to be unlawful and they
must be expelled from that territory. It would be expedient to
lay down that the appropriate Schengen provisions for such
expulsions are to apply in cases where no return or readmis-
sion agreement is in place with the countries concerned.

3. Specific comments

3.1 Proposal

for a Council Regulation on the establishment of a
regime of local border traffic at the external land borders of the
Member States (2003/0193 (CNS))

3.1.1 A r ti c le 3 (de fi ni ti on s)

persecution in the third country concerned for the reasons set
out in Article 4, it seems superfluous to include this clause in
provisions relating to local border traffic.

3.1.3 A r ti cle 10 (for ma t of th e vi sa )

3.1.3.1
This article stipulates that the visa is to be issued in
a uniform format and marked with the distinctive letter ‘L’.
This implies that the Schengen area inspection officials must be
given clear instructions on this matter, particularly since the
letter ‘L’ is also used as the country code for Luxembourg on
visas limited to the territory of that country.

3.1.4 A r ti cle

20
Consular Instr uc ti ons)

(Ame ndme nt

of

th e Common

These instructions set out the visa-issuing rules for
3.1.4.1
it is necessary to amend not
the visa-issuing bodies. Hence,
only Part I, point 2 (definition and types of visa) but also Part V
(examination of applications and decisions taken), point 3, and
Part VI (how to fill in visa-stickers). The bodies concerned can
hardly be expected to have to read an annex to the instructions,
before they are able to issue a visa.

3.1.4.2
graph of point
maximum period of validity.

The Committee would also ask why the second para-
the

(a) stipulates the minimum, but not

3.1.1.1
The definition of ‘transfrontier workers’ under point
(h) of this article is taken from a proposal for a Council Direc-
tive that is still to be adopted on the conditions of entry and
residence of third-country nationals for the purpose of paid
employment and self-employed economic activities.

3.1.4.3
Lastly, border inspection officials will also have to be
briefed about the rules for local border traffic. The Common
Manual of External Borders will thus also have to be modified,
but no amendments have been incorporated into the final
provisions.

3.1.1.2
This raises the question, therefore, of whether the
provisions laid down for transfrontier workers in the present
regulation are,
to apply, or whether they will be
replaced by the appropriate provisions of the above-mentioned
directive once it has been adopted and transposed into national
law.

in fact,

3.1.5 A r ti cle 21 (A me ndme nt of

t h e Conv e nt i on

i mp l e me nti n g t h e Sc h e n g e n a g r e e me n t)

3.1.5.1
to delete Article 136(3) of the Convention.

The Commission's purpose in including this article is

3.1.2 A r ti c le 4 (non-di scr i mi na ti on cla u se )

3.1.5.2
convention inapplicable, but it cannot delete them.

A regulation may render certain provisions of the

Given that all Member States have endorsed the
3.1.2.1
Charter of Fundamental Rights of the European Union,
it is
clear that they will also comply with the provisions of Article
4.

in matters of readmission or asylum,

3.1.2.2 While,
it is
worthwhile pointing out that third-country nationals may not
be expelled to or via a third country, and that Member States
may recognise them as refugees if they run a genuine risk of

3.2 Proposal

for a Council Regulation on the establishment of a
land

local border traffic at the temporary external

regime of
borders between Member States (2003/0194 (CNS))

The above comments on the proposal on the estab-
3.2.1
lishment of a regime of local border traffic at the external
borders of
the Member States (document 2003/0193) also
apply, as appropriate, to the provisions of this proposal on
local border traffic at the temporary external borders between
Member States.

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4. Conclusions

4.1
The Committee endorses the aims of both proposals on
local border traffic – notably to facilitate border crossing for
bona fide border residents and, at
to take
account of the need to prevent illegal immigration and poten-
tial threats to security posed by criminal activities.

the same time,

that

To the extent

this twofold objective cannot be
4.2
existing Community law (including the
achieved under
Schengen acquis),
the Committee would recommend the
following in relation to the proposal for a Council regulation
submitted as document 2003/0193:

In order

to be able to monitor

the maximum
4.2.1
authorised duration of stay,
the possibility of crossing the
border outside authorised crossing points and fixed hours
should not be offered (cf. Article 18).

4.2.2
In order to regularly check the bona fide credentials of
those concerned by these measures, specific visas should be
valid for not more than one year (cf. Article 12).

4.2.3
A reference might be inserted in Article 2 of docu-
ment 2003/0193 to indicate that Article 23 of the Schengen
agreement also applies in cases of expulsion of any third-
country nationals discovered outside the border area and thus
illegally present elsewhere in the Schengen zone.

Brussels, 28 January 2004.

4.2.4
As the status of transfrontier workers is not yet settled
at Community level, and the Council deliberations on a direc-
tive to be adopted on this issue are not yet complete, the defi-
nition contained in Article 3(h)
(and Article 15 which also
refers to transfrontier workers) must be deleted, or at any rate
included conditionally, subject to the adoption of that directive.

4.2.5
Article 4 is unnecessary as Member States have to
comply with the principle of non-discrimination in the applica-
tion not just of this regulation, but of all Community and
national
law. Moreover, to include such an article gives the
in the case of local border traffic, Member
impression that,
States do not intend to comply with this principle at all times.
If desired, reference may be made to this fundamental right in
the recitals.

As the letter ‘L’ is used as the country code for Luxem-
4.2.6
bourg in visas limited to the territory of that country and thus
may confuse inspection officials, care must be taken to ensure
that none of the letters used in the specific visa under Article 9
are the same as EU country codes.

4.2.7
To help visa-issuing bodies and border inspection offi-
cials, appropriate, more detailed instructions must be set out in
the final provisions, both in Article 20 and in a new article.

Article 21 must be omitted or, if necessary, reworded,
4.2.8
as an article of the Convention implementing the Schengen
agreement cannot be deleted by virtue of a regulation.

The President

of the European Economic and Social
Committee

Roger BRIESCH