Proposal for a Council Regulation amending Regulation (EC) No 539/2001 as regards the reciprocity mechanism
Date: 2004-07-19
Institutions: European Commission
Subjects: EU visa policy, Schengen Agreement, admission of aliens, external border of the EU, foreign national, rights of aliens

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 19.7.2004 

COM(2004) 437 final/2 

2004/0141 (CNS) 

CORRIGENDUM 
Ajout du mot final dans 
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Concerne uniquement le EN. 

Proposal for a 

COUNCIL REGULATION 

amending Regulation (EC) No 539/2001 as regards the reciprocity mechanism 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

Article 1(4) of Regulation (EC) No 539/2001 contains a reciprocity mechanism to be used for 
the establishment by a third country on the list in Annex II to the Regulation (positive list) of 
a visa requirement for nationals of a Member State. The mechanism provides, on the request 
of the “victim” Member State, for a joint response consisting of a series of successive stages 
(notification  by  the  Member  State  whose  nationals  are  concerned  by  the  visa  requirement, 
introduction provisionally by the Member States, unless the Council decides otherwise, of a 
visa requirement for nationals of the third country in question, announcement in the Official 
Journal  of  the  provisional  introduction  of  the  visa  requirement,  examination  by  the 
Commission of any request from the Council or a Member State to transfer the third country 
from the Regulation’s positive list to the negative one). 

The  mechanism  was  not  originally  part  of 
initial  proposal  of 
26 January 2000  but  is  the  result  of  a  series  of  discussions  in  the  Council.  To  reflect  the 
Member States’ desire to give an operational dimension to reciprocity, the Commission added 
a  paragraph 4  to  Article 1  in  its  amended  proposal  of  21 September 2000.  The  proposed 
reciprocity mechanism, which reflected and formalised the suggestions made by the Member 
States in the Council, was taken on board, almost in its entirety, in Council Regulation (EC) 
No 539/2001.  

the  Commission’s 

Three  years  after  the  entry  into  force  of  Regulation  (EC)  No  539/2001,  the  reciprocity 
mechanism has never been applied. The reasons for this should be examined, taking as a basis 
the  findings  of  a  Commission  staff  working  paper  on  reciprocity  in  the  field  of  visas1,  and 
legislative adjustments proposed. 

The first observation that has to be made is that whereas the nationals of some Member States 
or associated States are subject to a visa requirement by certain third countries on the positive 
list of Regulation (EC) No 539/2001 (United States/Greece; Brunei/Austria, Finland, Greece, 
Portugal,  Iceland;  Venezuela/Finland;  Guatemala/Iceland),  the  States  in  question  have 
refrained from initiating the reciprocity mechanism. Only they have the power to do so, and 
they are quite at liberty not to. 

The  attitude  of  these  Member  States  is  probably  due  to  the  mechanism  being  too  rigid. 
Because  it  is  virtually  automatic,  the  second  stage  (provisional  introduction  by  all  Member 
States  of  a  visa  requirement  for  the  third  country  in  question)  discourages  Member  States 
from invoking the mechanism lest they help to cause a major crisis either in external relations 
with the third country concerned or internally. The mechanism’s second stage can be blocked 
only  by  a  Council  decision  taken  by  a  qualified  majority.  In  the  scheme  of  the  reciprocity 
mechanism, the taking of such a decision can only be regarded as a refusal by the Member 
States to act in solidarity with the Member State concerned. 

This  first  conclusion  –  that  the  solidarity  mechanism  is  inadequate  –  is  strengthened  in  the 
enlargement context. After 1 May 2004, the situation described in Article 1(4) of Regulation 
(EC) No 539/2001 may be invoked by the new Member States with regard to third countries 

1 

Document JAI-B-1(2004)1372, 18.2.2004. 

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that continue to subject their nationals to a visa requirement. All the new Member States are 
legally  entitled  to  invoke  the  reciprocity  mechanism  with  regard  to  several  third  countries. 
The  inadequacies  and  risks  associated  with  the  reciprocity  mechanism  observed  since  2001 
are thus enhanced by enlargement and make it even more necessary to review the mechanism. 

Such  a  review  is  not  intended  to  weaken  the  solidarity  that  characterises  the  common  visa 
policy  by  making  reciprocity  disappear  from  Regulation  (EC)  No  539/2001.  Reciprocity 
remains a fundamental principle of visa policy and is still one of the reference criteria (listed 
in  the  fifth  recital  of  the  Regulation)  to  be  taken  into  consideration  when  the  lists  of  third 
countries annexed to Regulation (EC) No 539/2001 are drawn up or amended. The proposal, 
basically,  seeks  to  introduce  an  operational  mechanism  that  is  more  flexible  and  more 
realistic, and hence likely to be used. The current mechanism, since it fails to recognise the 
political dimension of reciprocity, has been too maximalist and too fraught with political risk 
to  play  a  useful  role.  It  blindly  emphasises  reprisal,  completely  ignoring  the  diplomatic 
approach, even though none of the criteria for determining the positive and negative lists has 
absolute  value;  those  lists  are  determined  “by  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  proposed  mechanism  is  also  intended  to  remedy  a  fundamental  defect  in  the  previous 
system, namely that the procedure was initiated only by the Member State affected by a third 
country’s  introduction  of  a  visa  requirement.  The  Commission  considers  that  a  situation  of 
non-reciprocity can have a crucial impact on the common visa policy and that discussion of 
such a situation at Community level to produce an appropriate response should not depend on 
the  goodwill  of  a  single  Member  State.  The  principle  which  should  guide  the  common  visa 
policy  is  reciprocity  based  on  soldarity  between  all  the  Member  States  with  regard  to 
measures  taken  against  one  of  them.  To  ensure  such  solidarity  and  protect  Community 
interests, it is essential to provide a mechanism that will give the Commission a real, effective 
negotiating instrument, which must be consistent with the Union’s overall external relations 
policy. 

In the light of the above considerations, the Commission is therefore proposing a mechanism 
that should ensure more effective observance of the principle of reciprocity, which is essential 
for the common visa policy. 

Comments on the Articles 

Article 1 

Observations on the proposed wording of Article 1(4) of Regulation (EC) No 539/2001: 

Use of the term “introduction” clearly indicates that a new situation has arisen, created by the 
decision of a third country in Annex II to subject to a visa requirement the nationals of one or 
more  Member  States  who  were  previously  exempt.  To  make  it  clear  that  the  mechanism 
should also apply to situations arising prior to the new Regulation but still applying when it 
comes into force, a specific provision is introduced in Article 2. 

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- Subparagraph (a): 

The  aim  is  to  make  information  about  a  situation  of  non-reciprocity  automatic  and 
transparent. The Member State concerned is now obliged to notify such a situation. 

- Subparagraph (b): 

The current arrangements, which overemphasise the reprisal aspect by making it the “normal” 
response, from which the Council can derogate, should be dropped. 

To  be  able  to  resolve  a  situation  of  non-reciprocity  in  the  most  appropriate  manner,  the 
Commission should take steps with the third country, so that the latter again applies visa-free 
travel to nationals of the Member State concerned. This role of the Commission’s is consistent 
with the fact that the Community has exclusive powers to take external action with regard to a 
visa requirement/visa-free travel. The Commission’s findings should be the subject of a report 
to  the  Council.  The  report  should  be  presented  as  soon  as  possible,  in  accordance  with  the 
urgency of the situation, while allowing a realistic time limit for assessing the facts and taking 
appropriate diplomatic steps with a view to restoring visa-free travel.  

- Subparagraph (c): 

The  proposed  wording  reflects  the  desire  that  the  mechanism  should  follow  the  customary 
decision-making patterns in this field more closely. Thus, at the same time as its report, the 
Commission  can  present  the  Council  with  a  proposal  to  restore  the  visa  requirement 
provisionally with regard to the third country concerned. Provisional restoration, which in any 
event  should  end  at  the  same  time  as  the  third  country  terminates  its  measure,  is  one 
possibility, to be decided by the Council by a qualified majority. Limiting the time available 
for the Council to act is meant to ensure the effectiveness of a measure that will allow, where 
necessary, a rapid reaction with regard to the third country concerned, it being understood that 
this is a provisional safeguard measure.  

- Subparagraph (d): 

The Commission should not be required to first present a report to the Council before it can 
propose a provisional measure. Circumstances may make it necessary to propose a provisional 
measure as a matter of urgency. Clearly, in the explanatory memorandum to its proposal, the 
Commission will explain why those circumstances have led it to use this procedure without a 
prior  report.  The  urgency  justifying  the  Commission's  action  makes  it  necessary  for  the 
Council to act quickly. 

- Subparagraph (e): 

The  restoration  of  the  visa  requirement,  in  accordance  with  the  procedures  provided  for  in 
subparagraphs (c) and (d), remains a specific, provisional measure compared with the transfer 
of  the  third  country  concerned  from  the  positive  list  to  the  negative  list  of  Regulation (EC) 
No 539/2001.  To  ensure  the  effectiveness  of  the  reaction  with  regard  to  the  third  country 
which is the cause of the non-reciprocity situation, it should be explained that the provisional 

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measure does not affect the possibility of proposing such a transfer. It is also appropriate to 
provide  that  if  the  third  country  does  not  react  to  the  provisional  measure,  the  Commission 
will, within a short period, present a proposal for transferring the third country to Annex 1. 

- Subparagraph (f): 

This deals with the procedures to be applied when the third country decides to terminate the 
visa requirement. The plan is taken from subparagraphs (e) and (f) in the current mechanism. 
However, the end of the provisional restoration of the visa requirement coincides exactly with 
the date of entry into force of the abolition of the visa requirement by the third country. 

Article 2 

Article 2 is designed to make clear that the mechanism must also be applied to the situation 
existing  when  the  Regulation,  which  obliges  Member  States  to  notify  any  introduction  of  a 
visa by a third country, enters into force, i.e. to cases where, at that time, one or more third 
countries in Annex II are maintaining a visa requirement for nationals of a Member State. As 
is  provided  for  when  a  visa  requirement  is  introduced,  a  strict  deadline  must  be  set  for 
notification by the Member State concerned. The various details of the mechanism apply to 
the maintenance as well as the introduction of a visa requirement.  

The maintenance of a visa requirement is not dealt with in Article 1, because it is a specific 
situation  which  will  already  be  in  existence  when  the  Regulation  comes  into  force.  It  is  a 
transitional  measure,  applicable  only  during  the  changeover  from  the  current  arrangements 
(where the Member State concerned may choose to initiate the reciprocity mechanism) to the 
new  system  (which  obliges  each  Member  State  to  notify  the  introduction  of  a  visa 
requirement  by  a  third  country).  There  is  no  need,  therefore,  to  incorporate  this  item,  the 
maintenance  of  a  visa  requirement,  into  the  substantive  provisions  of  Regulation  (EC)  No 
539/2001, which is limited to covering future introductions of a visa requirement by a third 
country. 

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2004/0141 (CNS) 

COUNCIL REGULATION 

amending Regulation (EC) No 539/2001 as regards the reciprocity mechanism 

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 Commission2, 

Having regard to the opinion of the European Parliament3, 

Whereas: 

(1) 

(2) 

The mechanism provided for in Article 1(4) of 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 requirement4 has proved unsuitable for dealing with situations of non-reciprocity 
in which a third country on the list in Annex II to that Regulation, i.e. a third country 
whose nationals are exempt from the visa requirement, maintains or introduces a visa 
requirement  for  nationals  from  one  or  more  Member  States.  Solidarity  with  the 
Member  States  experiencing  situations  of  non-reciprocity  requires  that  the  existing 
situation be adapted so as to make it effective. 

Given  the  seriousness  of  such  situations  of  non-reciprocity,  it  is  essential  that  they 
should be notified without fail by the Member State(s) concerned. To ensure that the 
third  country  in  question  again  applies  visa-free  travel  to  nationals  of  the  Member 
States concerned, a mechanism should be provided which, will combine measures at 
variable  levels  and  intensities  that  can  be  rapidly  carried  out.  Thus  the  Commission 
should  take  steps  with  the  third  country  without  delay,  report  to  the  Council  and  be 
able at any moment to propose that the Council adopt a provisional decision restoring 
the visa requirement for nationals of the third country in question. Resorting to such a 
provisional  decision  should  not  make  it  impossible  to  transfer  the  third  country  in 
question to Annex I of Regulation (EC) No 539/2001. A temporal link should also be 
provided between the entry into force of the provisional measure and any proposal to 
transfer the country to Annex I.  

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OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 81, 21.3.2001, p. 1. 

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(3) 

A decision by a third country to introduce or reintroduce visa-free travel for nationals 
of  one  or  more  Member  States  should  automatically  terminate  the  provisional 
restoration of a visa requirement decided by the Council. 

(4) 

Regulation (EC) No 539/2001 should be amended accordingly. 

(5) 

Transitional arrangements should be provided for where, when this Regulation comes 
into force, Member States are subject to a visa requirement by third countries listed in 
Annex II  to  Regulation  (EC)  No  539/2001.  As  regards  Iceland  and  Norway,  this 
Regulation constitutes a development of the 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  acquis,  which  falls  within  the  area  referred  to  in  Article  1(A)  of  Council 
Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of 
that Agreement. 

(6) 

The  United  Kingdom  and  Ireland  are  not  bound  by  Regulation  (EC)  No  539/2001. 
They are not taking part therefore in the adoption of this Regulation and are not bound 
by it or subject to its application. 

(7) 

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

HAS ADOPTED THIS REGULATION: 

Article 1 

Article 1(4) of Regulation (EC) No 539/2001, is replaced by the following: 

"4. Where a third country listed in Annex II introduces a visa requirement for nationals of a 
Member State, the following provisions shall apply: 

(a)  within  ten  days  of  such  introduction,  or  its  announcement,  the  Member  State  concerned 
shall notify the Council and the Commission in writing; the notification shall be published in 
the C series of the Official Journal of the European Union; 

(b) the Commission shall immediately take steps with the authorities of the third country in 
order  to  restore  visa-free  travel  and,  at  the  latest  within  six  months  of  publication  of  the 
notification, shall report on those procedures to the Council; 

(c) depending on the conclusions in its report, the Commission may present to the Council a 
proposal  for  a  provisional  measure  on  the  temporary  restoration  of  the  visa  requirement  for 
nationals  of  the  third  country  in  question.  The  Council  shall  act  on  such  proposal  by  a 
qualified majority within three months; 

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(d)  if  it  considers  it  necessary,  the  Commission  may  present  the  proposal  referred  to  in 
subparagraph (c) without a prior report. The procedure provided for in subparagraph (c) shall 
apply to that proposal; 

(e) the procedure referred to in subparagraphs (c) and (d) does not affect the  Commission’s 
right  to  present  a  proposal  amending  this  Regulation  in  order  to  transfer  the  third  country 
concerned  to  Annex I.  In  any  event,  where  a  provisional  measure  such  as  referred  to  in 
subparagraphs (c ) and (d) has been decided, the proposal amending this Regulation shall be 
presented  by  the  Commission  at  the  latest  six  months  after  the  entry  into  force  of  the 
provisional measure; 

(f) where the third country abolishes the visa requirement, the Member State shall notify the 
Commission to that effect. The notification shall be published in the C series of the Official 
Journal of the European Union. Any provisional visa restoration decided under subparagraph 
(c)  shall  terminate  automatically  on  the  date  of  entry  into  force  of  the  abolition  of  the  visa 
requirement by the third country concerned.” 

Article 2 

Member States whose nationals, at the date of entry into force of this Regulation, are subject 
to a visa requirement by a third country listed in Annex II to Regulation (EC) No 539/2001 
shall  notify  the  Commission  in  writing  within  ten  days  of  that  entry  into  force.  The 
notification shall be published in the C series of the Official Journal of the European Union. 

The provisions of Article 1(4)(b) to (f) of Regulation (EC) No 539/2001, as amended by this 
Regulation, shall apply.  

Article 3 

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 the Member States in 
accordance with the Treaty establishing the European Community. 

Done at Brussels, 

For the Council 

The President 

[…] 

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