Proposal for a Regulation of the European Parliament and of the Council laying down rules on local border traffic at the external land borders of the Member States and amending the Schengen Convention and the Common Consular Instructions
Date: 2005-02-23
Institutions: European Commission
Subjects: Ceuta, Denmark, EU visa policy, Ireland, Melilla, Norway, Schengen Agreement, Switzerland, United Kingdom, accession to the European Union, admission of aliens, bilateral agreement, customs, foreign national, free movement of persons, frontier region, intra-EU relations, territorial law

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.2.2005 
COM(2005) 56 final 

2005/0006 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

laying down rules on local border traffic at the external land borders  
of the Member States and amending the Schengen Convention and the Common 
Consular Instructions 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

INTRODUCTION 

The  Commission  Communication  Towards  integrated  management  of  the  external 
borders  of  the  Member  States  of  the  European  Union  (COM  (2002)233,  7.5.2002) 
included the development of the acquis on “local border traffic”, i.e. the regular and 
frequent  crossing  of  the  border  by  persons  residing  in  the  border  area  of  a 
neighbouring  country,  amongst  the  issues  that  needed  to  be  addressed  in  the  short 
term  in  order  to  complete  and  clarify  the  Community  legal  framework  on  external 
borders.  Indeed,  no  specific  Community  provisions  regulating  the  question  of  local 
border traffic currently exist1. 

The  Plan  for  the  management  of  the  external  borders  of  the  Member  States  of  the 
European Union - approved by the JHA Council on 13 June 2002 and subsequently 
endorsed by the Seville European Council of 21 and 22 June – confirmed the need to 
adopt measures on local border traffic, “particularly with a view to enlargement”. 

Further, the Commission Communication on "Wider Europe" (COM(2003)104 final, 
11.3.2003),  clearly  stressed  that  both  the  EU  and  its  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. 

In  order  to  respond  to  the  Council’s  request,  the  Commission  put  forward  two 
proposals for Council Regulations already in August 20032. The two proposals were 
based on Article 62(2) of the EC Treaty (“measures on the crossing of the external 
borders  of  the  Member  States”),  covering  both  “standards  and  procedures  to  be 
followed by Member States in carrying out checks on persons” (Article 62(2)(a)) and 
the  “procedures  and  conditions  for  issuing  visas  by  Member  States”  (Article 
62(2)(b)(ii)), including “rules on a uniform visa” (Article 62(2)(b)(iv)). 

Originally,  the  Commission  considered  that  it  would  be  possible  to  have  the 
proposals  adopted  before  1st  May  2004;  however,  discussions  on  these  proposals 
within the Council have been very difficult and progress was thus very limited.  

As  of  1st  May  2004  measures  based  on  Article  62(2)(b)(ii)  and  on  Article 
62(2)(b)(iv)  shall  be  adopted  by  the  European  Parliament  and  the  Council  in 
accordance  with  the  co-decision  procedure  (Article  67(4)).  Measures  based  on 
Article 62(2)(a) are still to be adopted unanimously by the Council after consulting 
the European Parliament. 

1 

2 

Some Member States have concluded bilateral agreements on local border traffic with their neighbours. 
To have an overview of such agreements, see the Commission working paper Developing the acquis on 
local border traffic, SEC(2002)947, of 9.9.2002. 
COM(2003)502  –  2003/0193  (CNS),  on  the  establishment  of  a  regime  of  local  border  traffic  at  the 
external  land  borders  of  the  Member  States,  and  COM(2003)502  –  2003/0194  (CNS),  on  the 
establishment  of  a  regime  of  local  border  traffic  at  the  temporary  external  land  borders  between 
Member States. 

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The two procedures being incompatible, in accordance with a well-established case-
law  of  the  Court  of  Justice3,  it  was  no  longer  possible  to  have,  within  the  same 
proposal,  provisions  related  to  checks  at  the  external  borders  and  provisions 
concerning  the  establishment  of  a  specific  visa  to  be  issued  to  border  residents  on 
grounds of local border traffic. 

This is the reason why it was decided to draft two new proposals, i.e.: 

1) 

2) 

a  first  proposal  for  a  Council  Regulation,  based  on  Article  62(2)(a) 
(consultation  procedure),  laying  down  general  rules  on  local  border  traffic, 
with the exception of the provisions introducing the specific visa; 

a second proposal for a European Parliament and Council Regulation, based on 
Article  62(2)(b),  points  ii)  and  iv)  (co-decision  procedure)  establishing  a 
specific “L” visa to be issued for the purpose of local border traffic. 

When adopting the new proposals, the Commission would simultaneously withdraw 
those adopted on 14.8.2003. 

Adoption of these new proposals by the College was planned in December 2004. 

However,  as  a  consequence  of  the  adoption  of  “The  Hague  Programme”  by  the 
European Council of 4/5 November 2004, the Council took the decision of extending 
the  co-decision  procedure  to  certain  areas  covered  by  Title  IV  of  the  EC  Treaty, 
including measures related to external borders.4 

Consequently,  from  1.1.2005  both  the  external  borders  and  the  visa-related  aspects 
currently covered by the two proposals on local border traffic will be subject to the 
co-decision procedure. 

This  means  that  it  is  no  longer  necessary  to  make  two  separate  proposals  on  local 
border  traffic  (one  on  border-related  aspects  and  a  second  one  on  the  special  “L” 
visa) and that the two proposals can be merged into one. 

This  new,  “merged”  proposal  will  replace  the  2003  proposals,  which  will  be 
withdrawn by the Commission simultaneously with the adoption of the current one. 

2. 

CONTENT OF THE PROPOSAL 

The purpose of the proposed Regulation is to lay down common rules on the criteria 
and conditions for establishing a regime of local border traffic at the “external land 
borders” of the Member States, i.e. the common land border between: 

a) 

a  Member  State  and  a  neighbouring  third  country  (e.g.,  the  border  between 
Poland and Ukraine or between Slovenia and Croatia); 

3 
4 

See, for instance, the Court’s judgement of 11 June 1991 in case C – 300/89 (Commission vs. Council).  
Council Decision 2004/927/EC of 22 December 2004, providing for certain areas covered by Title IV 
of Part Three of the Treaty establishing the European Community to be governed by the procedure laid 
down in Article 251 of that Treaty (OJ L 396 of 31.12.2004, p. 45).  

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b) 

c) 

a Member State fully implementing the Schengen acquis and a Member State 
bound  to  apply  such  acquis  in  full  but  for  which  the  Council  decision 
authorising  it  to  fully  apply  that  acquis  has  not  entered  into  force  (e.g.,  the 
border between Austria and Hungary); 

two Member States bound to apply the Schengen acquis in full, but for which 
the Council decision authorising them to fully apply that acquis has not entered 
into force (e.g., the border between the Czech Republic and Poland). 

Points  b)  and  c)  are  the  consequence  of  the  so-called  “two-phase  implementation 
procedure” of the Schengen acquis, whereby new Member States only apply part of 
the  Schengen  acquis  upon  their  accession  (see  also  point  5.2  below).  This  includes 
the provisions on external border controls (to be applied at all borders) but, logically, 
not those related to the lifting of controls on persons at internal borders. This is why 
the  proposed  Regulation  also  covers  the  establishment  of  a  local  border  traffic 
regime  in  order  to  facilitate  the  crossing  of  the  “temporary  external  land  borders” 
between Member States.  

It shall be noted, however, that the personal scope of the draft Regulation only covers 
third-country nationals (with some exceptions – see below) lawfully resident in the 
border  area  of  a  neighbouring  country  for  at  least  one  year  (“border  residents”,  as 
defined in Article 3(e)). EU citizens, as well as third country nationals enjoying the 
Community right to free movement (as defined in Article 3(d)), have been explicitly 
excluded from the scope because they already enjoy, under Community law, specific 
rights  related  to  free  movement  which,  generally  speaking,  go  beyond  what  is 
foreseen in the present proposal (for instance, as regards time-limits for stay, or entry 
conditions).  Community  rules  on  local  border  traffic  cannot,  obviously,  affect  such 
rights. 

However,  where  the  facilitation  of  border  crossing  granted  under  a  local  border 
traffic  regime  to  border  residents  goes  beyond  the  right  to  free  movement  (for 
instance, by giving the possibility of crossing the border at specific border crossing 
points  reserved  to  border  residents,  where  there  is  a  less  systematic  control,  or 
outside authorised border crossing points and fixed hours), such facilitation shall be 
automatically  extended  to  citizens  of  the  Union  and  to  third  country  nationals 
enjoying the Community right to free movement residing in the border area (Article 
17(2)). 

Apart from the practical ways of facilitating the crossing of the border provided for 
in  Article  17,  the  draft  Regulation  defines  the  specific  conditions  and  documents 
required for crossing the border for the purpose of local border traffic (Articles 4 and 
5). 

Furthermore, as regards border residents subject to the visa obligation, a specific visa 
(“L”,  from  “Local”)  is  introduced.  The  “L”  visa  would  be  a  multiple-entry  visa 
issued for at least one year and for maximum five years, entitling the holder to stay in 
the  border  area  of  the  issuing  Member  State  for  7  consecutive  days  maximum  and 
without exceeding, in any case, three months within any half-year period. 

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The procedures and criteria to be followed for the issuing of such visas would be, for 
the  Member  States  fully  implementing  the  Schengen  acquis,  conforming  to  the 
provisions  of  the  Common  Consular  Instructions  (CCI)5.  Member  States  not  fully 
implementing the Schengen acquis would apply - until the Council authorises them 
to  fully  apply  such  acquis  -  their  national  legislation,  which  shall  nevertheless  be 
compatible with the rules laid down in this Regulation. 

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 14). 

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 (see 
Article 15). 

Member  States  may  also  maintain  or  conclude  agreements  between  themselves  on 
local  border  traffic,  provided  that  they  are  compatible  with  the  present  Regulation 
(Article 16). It is obvious that, once border controls will be lifted at the “temporary 
external borders”, these agreements will loose their raison d’être.  

3. 

CHOICE OF THE LEGAL BASIS 

Taking  into  account  its  content,  the  present  Regulation  is  based  on  both  Article 
62(2)(a)  (rules  on  “standards  and  procedures  to  be  followed  by  Member  States  in 
carrying  out  checks  on  persons  at  [external]  borders”)  and  Article  62(2)(b),  points 
(ii)  and  (iv),  concerning,  respectively,  rules  on  “the  procedures  and  conditions  for 
issuing visas by Member States” and “on a uniform visa”. 

Following the entry into force, on 1st January 2005, of Council decision 2004/927/EC 
providing  for  certain  areas  covered  by  Title  IV  of  Part  three  of  the  Treaty 
establishing the European Community to be governed by the procedure referred to in 
Article  251  of  that  Treaty,  the  current  proposal  will  be  subject  to  the  co-decision 
procedure. 

5 

OJ C 313, 16.12.2002, p.1. 

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4. 

SUBSIDIARITY AND PROPORTIONALITY 

The  current  Community  provisions  on  the  crossing  of  the  external  borders  of  the 
Member States, as well as those on the rules for issuing the uniform visa, are part of 
the  Schengen  acquis  integrated  into  the  European  Union.  Such  acquis  needs, 
however, to be developed and completed. The development of the existing acquis on 
external  borders,  by  reasons  of  the  scale  and  effects  of  the  action,  can  only  be 
achieved by adopting Community measures building upon it. As far as the rules on 
the uniform visa are concerned, including the procedures and conditions for issuing 
such visa, the Community competence is exclusive. 

However,  by  its  own  nature,  a  regime  of  local  border  traffic  can  only  be  put  in 
practice  on  the  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  instrument  chosen  to  establish  general  rules  on  local  border 
traffic  is  a  Regulation  addressed  to  the  Member  States,  which  sets  the  rules  to  be 
respected  by  Member  States  when  establishing  a  local  border  traffic  regime  with 
neighbouring  countries.  As  the  proposed  initiative  is  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. 

APPLICATION  OF  THE  PROPOSAL  TO  THE  DIFFERENT  MEMBER  STATES  AND  THIRD 
COUNTRIES ASSOCIATED TO THE DEVELOPMENT OF THE SCHENGEN ACQUIS 

5.1 

Consequences in relation to the various protocols annexed to the Treaties 

The  legal  basis  for  proposals  concerning  measures  on  the  crossing  of  the  external 
borders of Member States, as well as rules on the uniform visa, 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 proposal 
is building upon the Schengen acquis. In this regard, the situation of Norway, Iceland 
and  Switzerland,  countries  associated  to  the  development  of  such  acquis,  shall  also 
be  taken  into  account.  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”. 

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This  proposal  constitutes  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 its adoption and are not bound by it or subject to its 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). 

As  this  proposal  constitutes  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 proposal builds upon the Schengen acquis as defined in Annex A of the 
agreement. 

As a consequence its has 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 

6 

OJ L 176, 10.07.99, p. 35 

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themselves on any questions concerning the development of provisions of concern to 
them or the implementation thereof". 

Switzerland 

As regards Switzerland, this Regulation constitutes a development of the provisions 
of the Schengen acquis within the meaning of the Agreement signed by the European 
Union,  the  European  Community  and  the  Swiss  Confederation  on  the  latter's 
association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis  which  fall  within  the  area  referred  to  in  Article  4(1)  of  Council  decision 
2004/860/EC  on  the  signing,  on  behalf  of  the  European  Union,  and  on  the 
provisional application of certain provisions, of that Agreement. 

The  Agreement  with  Switzerland,  signed  on  26.10.2004,  provides  for  provisional 
application  of  certain  provisions  upon  signature,  in  particular  the  participation  of 
Switzerland in the Mixed Committee dealing with the development of the Schengen 
acquis. 

5.2 

Consequences  in  relation  to  the  two-phase  implementation  procedure  of  acts 
building upon the Schengen acquis 

Article 3(1) of the Act of Accession of the 10 new Member States provides 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  being  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 Article 3(2) of the Act of Accession. 

With  regard  to  the  Schengen  provisions  on  external  borders,  they  are  listed  in  that 
annex  and  are  thus  binding  and  applicable  in  the  new  Member  States  as  from 
accession7.  

The  Schengen  provisions  on  the  uniform  visa  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 above8. 

Therefore, the current proposal is only partly applicable to the new Member States; 
in particular: 

– 

– 

Chapters I, II, IV, and V are fully applicable to the new Member States, with 
the exception of Articles 4(d) and 22; 

Chapter III (on the “L” visa) will only be applicable to the new Member States 
from the date in which the Council takes the decision referred to in Article 3(2) 

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8 

With  the  exception  of  Article  5(1)(d)  of  the  Schengen  Convention,  related  to  the  consultation  of  the 
Schengen Information System.  
With the exception of Annexes 1-3, 7, 8 and 15 of the Common Consular Instructions, which are both 
binding upon and applicable by the new Member States as from their accession. 

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of  the  Act  of  Accession.  This  means  that,  until  then,  the  new  Member  States 
will  issue  national  visas  to  border  residents  for  the  purpose  of  local  border 
traffic, in accordance with their national procedures. However, such visas shall 
be  issued  in  the  uniform  format  (visa  sticker)  established  by  Council 
Regulation  No  1683/95  (as  amended  by  Council  Regulation  No  334/2003), 
since the said Regulation is included in the annex referred to in Article 3(1) of 
the Act of Accession9. 

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In this regard, it shall be noted that the letters indicating the type of visa issued (‘A’, ‘B’, ‘C’, ‘D’ and - 
following  the  entry  into  force  of  the  present  Regulation  -  ‘L’)  are  not  part  of  the  uniform  format  for 
visas.  The use  of  the different  letters  for  the various  types  of  visas  is fixed  in  the  Common  Consular 
Instructions (part VI, point 1.7) and is therefore not applicable by the new Member States before their 
full  implementation  of  Schengen.  However,  as  they  do  for  the  other  types  of  visas,  the  new  Member 
States can already use the letter “L” to indicate visas issued for the purpose of local border traffic on the 
basis of their national legislation. 

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2005/0006 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

laying down rules on local border traffic at the external land borders  
of the Member States and amending the Schengen Convention and the Common 
Consular Instructions 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission10, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty11, 

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.  It  was  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  Community  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 
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. 

10 
11 
12 

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

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

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. 

The  Community  should  lay  down  rules  on  specific  criteria  and  conditions  for  the 
issuing  of  visas  to  border  residents  for  the  purpose  of  local  border  traffic.  These 
criteria  and  conditions  should  be  consistent  with  the  entry  conditions  imposed  on 
border residents crossing the border for the purpose of local border traffic. 

Due to the two-step implementation mechanism of the Schengen acquis as laid down 
in  Article  3  of  the  2003  Act  of  Accession,  the  new  Member  States  are  bound  to 
implement  the  Schengen  external  border  regime  at  all  their  borders,  including  the 
borders with other Member States, until the Council authorises them to fully apply the 
Schengen acquis and thus to lift controls at their common borders with other Member 
States. The same reasons justifying the creation of a regime of local border traffic at 
the  land  borders  between  Member  States  and  third  countries  also  fully  justify 
application of the same regime to the common land borders between Member States 
until controls at such borders are to be abolished. 

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 
of citizens of the Union, should not be affected by the establishment of rules on local 
border traffic at Community level. However, where the facilitation of border crossing 
granted under a local border traffic regime to border residents implies a less systematic 
control,  such  facilitation  should  automatically  be  extended  to  both  citizens  of  the 
Union and to third country nationals enjoying the Community right to free movement 
who are living in the border area. 

to  maintain  or  conclude  bilaterally, 

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 laid down in this 
Regulation.  Member  States  may  also  negotiate  local  border  traffic  arrangements 
between  themselves,  at  the  land  borders  where  the  Schengen  external  border  regime 
applies, provided that they comply with the rules set out in this Regulation. 

This  Regulation  does  not  affect  the  specific  arrangements  applied  in  Ceuta  and 
Melilla, as defined in the Declaration by the Kingdom of Spain on the towns of Ceuta 
and  Melilla  in  the  Final  Act  to  the  Agreement  on  the  Accession  of  the  Kingdom  of 
Spain to the Convention implementing the Schengen Agreement of 14 June 198514. 

(10)  Penalties,  as  provided  for  in  national  law,  should  be  imposed  by  Member  States  on 
border residents in case of misuse of the local border traffic regime as established by 
this Regulation. 

13 

14 

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 239, 22.9.2000, p. 69. 

EN 

11 

   EN 

 
                                                 
(11)  The  Commission  should  submit  a  report  to  the  European  Parliament  and  to  the 
Council  on  the  application  of  this  Regulation  accompanied,  where  necessary,  by 
legislative proposals. 

(12)  This  Regulation  respects  the  fundamental  rights  and  freedoms  and  observes  the 
principles  recognised  in  particular  by  the  Charter  of  Fundamental  Rights  of  the 
European Union. 

(13)  Since  the  objectives  of  the  action  to  be  taken,  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  cannot  thus  be  achieved  sufficiently  by  the  Member  States  and  can 
therefore,  by  reason  of  the  scale  and  effects  of  the  action,  be  better  achieved  at 
Community  level,  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  Article,  this  Regulation  does  not  go 
beyond what is necessary in order to achieve those objectives. 

(14) 

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 should, 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. 

(15)  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  acquis15,  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 Agreement16. 

(16)  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 
acquis17.  The  United  Kingdom  is  therefore  not  taking  part  in  its  adoption  and  is  not 
bound by it or subject to its application. 

(17)  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 

15 
16 
17 

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

EN 

12 

   EN 

 
                                                 
the  Schengen  acquis18.  Ireland  is  therefore  not  taking  part  in  its  adoption  and  is  not 
bound by it or subject to its application. 

(18)  As regards Switzerland, this Regulation constitutes a development of the provisions of 
the  Schengen  acquis  within  the  meaning  of  the  Agreement  signed  by  the  European 
Union,  the  European  Community  and  the  Swiss  Confederation  on  the  latter's 
association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis  which  fall  within  the  area  referred  to  in  Article  4(1)  of  Council  Decision 
2004/860/EC  on  the  signing,  on  behalf  of  the  European  Community,  and  on  the 
provisional application of certain provisions, of that Agreement19. 

(19)  Articles  4(d)  and  22,  as  well  as  Chapter  III  of  this  Regulation,  constitute  provisions 
building  on  the  Schengen  acquis  or  otherwise  related  to  it  within  the  meaning  of 
Article 3(2) of the 2003 Act of Accession. 

HAVE ADOPTED THIS REGULATION: 

Chapter I 
General provisions 

Article 1 
Subject matter 

1. 

2. 

This  Regulation  establishes  a  regime  of  local  border  traffic  at  the  external  land 
borders of the Member States and introduces, for that purpose, a specific visa (“L”), 
to  be  issued  to  border  residents  subject  to  a  visa  obligation  pursuant  to  Regulation 
(EC) No 539/2001. 

This  Regulation  authorises  Member  States  to  conclude  or  maintain  bilateral 
agreements with neighbouring countries for the purpose of implementing the regime 
of local border traffic hereby established. 

Article2 
Scope 

1. 

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 and taxation matters. 

18 
19 

OJ L 64, 7.3.2002, p. 20. 
OJ L 370, 17.12.2004, p. 78. 

EN 

13 

   EN 

 
                                                 
Article 3 
Definitions 

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

(a) 

“external land border” means: 

(i) 

(ii) 

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

the  common  land  border  between  a  Member  State  fully  implementing  the 
Schengen  acquis  and  a  Member  State  bound  to  apply  such  acquis  in  full,  in 
conformity  with  its  Act  of  Accession,  but  for  which  the  Council  decision 
authorising it to fully apply that acquis has not entered into force; 

(iii) 

the  common  land  border  between  two  Member  States  bound  to  apply  the 
Schengen  acquis  in  full,  in  conformity  with  their  Acts  of  Accession,  but  for 
which the Council decision authorising them to fully apply that acquis has not 
entered into force; 

“border area” means an area which, as the crow flies, does not extend more than 30 
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.  If  part  of any such district is situated at more than 30 kilometres 
from  the  frontier  line,  but  not  more  than  35,  it  shall  nevertheless  be  considered  as 
part of the border area ; 

“local  border  traffic”  means  the  regular  crossing  of  the  external  land  border  of  a 
Member State by border residents in order to stay in the border area of that Member 
State for a period not exceeding the time limits laid down in this Regulation; 

(b) 

(c) 

(d) 

“third-country nationals enjoying the Community right to free movement” means: 

(i) 

(ii) 

third-country  nationals  who  are  members  of  the  family  of  a  Union  citizen 
exercising his or her right to free movement to whom Directive 2004/38/EC of 
29 April 200420 applies; 

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,  enjoy  a  right  to  free  movement 
equivalent to that of citizens of the Union. 

(e) 

“border residents” means third–country nationals who have been lawfully resident in 
the border area of a country neighbouring a Member State for at least one year, with 
the exception of the categories covered under point (d); 

20 

OJ L 158, 30.4.2004, p. 77. 

EN 

14 

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(f) 

“visa” means: 

– 

– 

for  the  Member  States  fully  implementing  the  Schengen  acquis,  the  visa 
established by Article 8; 

for the Member States not fully implementing the Schengen acquis, a national 
short-stay visa, issued according to national procedures. 

(g) 

(h) 

“the  Schengen  acquis”  means  the  acquis  defined  in  Annex  A  to  Council  Decision 
435/1999/EC21; 

“the  Schengen  Convention”  means  the  Convention  implementing  the  Schengen 
agreement of 14 June 1985. 

Chapter II 
Local border traffic regime 

Article 4 
Entry conditions 

By way of derogation to Article 5(1) of the Schengen Convention, border residents may cross 
the  external  land  border  of  a  neighbouring  Member  State  for  the  purpose  of  local  border 
traffic, provided they:  

(a) 

possess a valid document or documents, authorising them to do so, as referred 
to in Article 5; 

(b) 

are in possession of a visa, if required; 

(c) 

(d) 

(e) 

produce,  if  necessary,  documents  proving  their  status  as  border  residents,  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, 
as well as, where appropriate, the possession of sufficient means of subsistence 
in relation to the purpose of their stay; 

are not persons for whom an alert has been issued for the purposes of refusing 
entry in the Schengen Information System (SIS); 

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

Article 5 
Documents 

Documents  authorising  border  residents  to  cross  the  external  land  border  of  a  neighbouring 
Member State for the purpose of local border traffic shall be: 

21 

OJ L 176, 10.7.1999, p.1. 

EN 

15 

   EN 

 
                                                 
(a) 

(b) 

for  border  residents  subject  to  a  visa  obligation  pursuant  to  Regulation  (EC)  No 
539/2001,  a  passport  or  any  other  valid  document  authorising  them  to  cross  the 
external borders as defined in Article 17(3)(a) of the Schengen Convention; 

for  border  residents  not  subject  to  a  visa  obligation  pursuant  to  Regulation  No 
539/2001: 

(i) 

the documents referred to in point (a), or 

(ii) 

a  specific  border  crossing  permit,  issued  by  the  State  of  residence  and 
countersigned by the competent authorities of the Member State whose border 
is crossed. 

Article 6 
Stay in the border area 

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

The time-limits may be extended in exceptional circumstances. 

Article 7 
Entry and exit stamps 

Member States may derogate from the obligation to affix entry and exit stamps on the travel 
documents  of  border  residents  crossing  the  external  land  borders  for  the  purpose  of  local 
border traffic, provided that the following conditions are fulfilled: 

a) 

b) 

1. 

2. 

the  holder  of  the  travel  document  is  not  subject  to  a  visa  obligation  pursuant  to 
Regulation (EC) No 539/2001; 

compliance  with  the  time-limits  provided  for  in  Article  6  is  ensured  by  any  other 
means, to be specified in the bilateral agreements referred to in Articles 14 and 16. 

Chapter III 
Visas issued for the purpose of local border traffic 

Article 8 
Visas issued for the purpose of local border traffic 

A specific visa to be issued to border residents for the purposes of local border traffic 
is established. 

The  territorial  validity  of  the  visas  referred  to  in  paragraph  1  issued  to  border 
residents subject to a visa obligation pursuant to Regulation (EC) No 539/2001 shall 
be limited to the border area of the issuing Member State. 

EN 

16 

   EN 

 
2. 

The visa referred to in paragraph 1 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 consecutive days. 

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

Article 9 
Format of the visa 

The  visas  referred  to  in  Article  8  shall  be  issued  in  the  form  of  a  uniform  format  (sticker) 
conforming to the rules and to the specifications of Council Regulation No 1683/9522 laying 
down a uniform format for visas. The uniform format issued for this purpose shall contain the 
distinctive letter “L” under heading 11 (“type of visa”). 

Article 10 
Issuing conditions 

1. 

The visas referred to in Article 8 may be issued to border residents who: 

(a) 

are  in  possession  of  a  valid  document  authorising  them  to  cross  the  external 
borders as defined in Article 17(3)(a) of the Schengen Convention; 

(b)  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, 
as well as, where appropriate, the possession of sufficient means of subsistence 
in relation to the purpose of their stay; 

(c) 

(d) 

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

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

2. 

The visas referred to in Article 8 shall not be issued at the border. 

Article 11 
Validity 

The visas referred to in Article 8 shall be valid for a minimum period of one year and for a 
maximum period of five years. 

22 

OJ L 164, 14.7.1995, p.1.  

EN 

17 

   EN 

 
                                                 
Article 12 
Administrative costs 

1. 

2. 

The fees corresponding to the administrative costs of processing the application for 
the visas referred to in Article 8 shall be equivalent to the fees charged for processing 
applications 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 visas referred to in Article 8. 

Article 13 
Relation with the Common Consular Instructions 

Save  where  this  Regulation  provides  otherwise  and  without  prejudice  to  Article  22,  the 
conditions  and  procedures  for  the  issuing  of  the  visas  referred  to  in  Article  8  shall  be 
regulated by the Common Consular Instructions23. 

Chapter IV 
Implementation of the local border traffic regime 

Article 14 

Agreements between Member States and third countries 

1. 

2. 

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

Member  States  may  also  maintain  existing  agreements  with  neighbouring  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 shall consult the Commission as to the compatibility of the agreement 
with this Regulation before concluding or amending any agreement on local border 
traffic with neighbouring third countries. 

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. 

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. 

23 

OJ C 310, 19.12.2003, p.1. 

EN 

18 

   EN 

 
 
 
 
 
 
                                                 
Article 15 
Reciprocity 

In  their  agreements  with  neighbouring  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. 

Article 16 
Agreements between Member States 

1. 

2. 

3. 

Member  States  referred  to  in  Article  3(a),  points  (ii)  and  (iii),  are  authorised  to 
conclude agreements on local border traffic between themselves in conformity with 
the rules set in this Regulation. 

Those  Member  States  referred  to  in  paragraph  1  may  maintain  existing  agreements 
on local border traffic between themselves, until the entry into force of the Council 
decision  authorising  the  lifting  of  border  controls  at  their  common  borders.  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 shall transmit to the Commission a copy of the agreements referred to 
in  paragraphs  1  and  2,  as  well  as  any  denunciation  of,  or  amendments  to,  these 
agreements. 

Article 17 

Facilitation for border crossing 

1. 

The  agreements  referred  to  in  Articles  14  and  16  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)  where there is a requirement of a special nature, taking into account the local 
circumstances,  authorise  border  residents  not  subject  to  a  visa  obligation 
pursuant to Regulation (EC) No 539/2001 to cross their border at places other 
than authorised border crossing points and outside the fixed hours. 

2. 

3. 

Where  a  Member  States  decides  to  facilitate  border  crossing  to  border  residents  in 
accordance with paragraph 1, such facilitation shall automatically be extended to any 
citizen of  the  Union, as well  as to  third  country nationals enjoying the Community 
right to free movement, including those subject to the visa obligation, residing in the 
border area. 

By way of derogation to Article 6 of the Schengen Convention, at the border crossing 
points  referred  to  in  paragraph  1,  point  (a),  as  well  as  at  the  lanes  referred  to  in 
paragraph 1, point (b), persons who are known to the border guard by reason of their 
frequent crossing of the border shall be subject only to random checks. 

EN 

19 

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Chapter V 
Final provisions 

Article 18 
Ceuta and Melilla 

The  provisions  of  this  Regulation  shall  not  affect  the  special rules  applying  to  the  towns  of 
Ceuta  and  Melilla,  as  defined  in  the  Declaration  by  the  Kingdom  of  Spain  on  the  towns  of 
Ceuta  and  Melilla  in  the  Final  Act  to  the  Agreement  on  the  Accession  of  the  Kingdom  of 
Spain to the Convention implementing the Schengen Agreement of 14 June 198524. 

Article 19 
Penalties 

1. 

2. 

Member  States  shall  ensure  that  any  misuse  of  the  local  border  traffic  regime,  as 
established  by  this  Regulation  and  as  implemented  by  the  bilateral  agreements 
referred  to  in  Articles  14  and  16,  shall  be  subject  to  penalties  as  provided  for  in 
national law. 

The penalties provided for shall be effective, proportionate and dissuasive and shall 
include  the  possibility  of  cancelling  and  revoking  the  specific  border  crossing 
permits referred to in point (b) of Article 5, as well as the visas issued for the purpose 
of local border traffic. 

Member  States  shall  keep  record  of  all  persons  on  whom  penalties  are  imposed  in 
accordance  with  paragraph  1.  This  information  shall  be  transmitted,  in  respect  of  a 
six-month period, to the other Member States and to the Commission. 

Article 20 
Report on the implementation of the regime 

At  the  latest  two  years  after  the  entry  into  force  of  this  Regulation,  the  Commission  shall 
submit  a  report  to  the  European  Parliament  and  the  Council  on  the  functioning  and 
implementation of the local border traffic regime, as established by the bilateral agreements 
concluded  on  the  basis  of  and  in  conformity  with  this  Regulation,  accompanied  where 
necessary by appropriate legislative proposals. 

Article 21 
Amendment of the Schengen Convention  

Article 136(3) of the Schengen Convention is replaced by the following:  

24 

OJ L 239, 22.9.2000, 69. 

EN 

20 

   EN 

 
                                                 
“3. Paragraph 2 shall not apply to agreements on local border traffic, for which the provisions 
of Article 14 of [Regulation No … this Regulation] shall apply.” 

Article 22 
Amendment of the Common Consular Instructions 

The Common Consular Instructions are amended as follows: 

1) 

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

“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  by 
Regulation  (EC)  No  […]*,  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…this  Regulation],  such  visa  shall  have  a 
minimum validity of one year and a maximum validity of five years.  

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

____________________________________________ 

* OJ L ….” 

In part V, point 1.4, the following indent is added: 

“Documents that may be required prior to the issuance of the “L” visa: 

– 

– 

A certificate attesting residence in the border area ; 

Any document justifying the need for frequent crossing of the border for local 
border traffic purposes such as certificates or attestations substantiating family 
ties, documents certifying ownership of a property over the border etc.” 

2) 

– 

3) 

In Part VI, point 1.1, the last indent is replaced by the following: “limited territorial 

validity may not apply to just part of the territory of a [Member State], except in the 

case of visas type “L”, issued for the purpose of local border traffic”; 

4) 

Part VI, point 1.7 (TYPE OF VISA ‘heading’) is amended as follows: 

– 

The 

first 

paragraph 

is 

replaced 

by 

the 

following: 

“In  order  to  facilitate  matters  for  the  control  authorities,  this  heading  shall 
specify the type of visa using the letters A, B, C and, D and L as follows:”; 

– 

After 

the 

indent 

“D+C 

[…]”, 

the 

following 

indent 

is 

added: 

“L: visa issued for the purpose of local border traffic” 

EN 

21 

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5) 

In Part VII, point 4, the following paragraph is added: 

“The fees to be charged corresponding to the administrative costs for the issuing of visas for 
the purpose of local border traffic may be reduced or waived, in accordance with [Regulation 
(EC) No…this Regulation].” 

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

Article 23 

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 European Parliament 
The President 

For the Council 
The President 

EN 

22 

   EN 

 
 
 
ANNEX 
COMMENTARY ON THE ARTICLES 

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 
countries for that purpose.  

In  order  to  take  into  account  the  situation  of  those  third  countries  subject  to  a  visa 
obligation, a specific “L” visa is also established. 

Article 2  

This  Article  specifies  that  the  Regulation  does  not  aim  at  regulating  and  thus  does 
not affect provisions regulating long-term stays, the exercise of an economic activity, 
and those related to customs and taxation matters. 

Article 3 

This Article defines the terms used in the proposal. 

(a)  The  scope  of  the  definition  of  ‘external  land  borders’  has  already  been 
explained  under  point  2  of  the  Explanatory  Memorandum.  This  excludes  the 
borders with those Member States who are not fully implementing, nor bound 
to  implement  in  full,  the  Schengen  acquis  (i.e.,  the  United  Kingdom  and 
Ireland). 

(b)  The  maximum  width  of  the  border  area  (30  and,  in  justified  cases,  35 
kilometres) is the result of the discussions had within the Council on this issue, 
when examining the 2003 proposals. 

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

(d)  This point defines those third country nationals enjoying the Community right 

to free movement, i.e.: 

– 

– 

members of the family of Union citizens in those cases falling under the 
scope of Directive 2004/38/EC; 

third  country  nationals,  as  well  as  members  of  their  families,  of  those 
third countries which have concluded an agreement with the Community 
and  its  Member  States  on  the  right  to  free  movement  (currently,  EEA 
countries and Switzerland). 

(e)  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 

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minimum residence period of one year in that area. It shall be noted that this 
definition does not cover EU citizens and third-country nationals enjoying the 
Community right to free movement, as defined under point (d) (the reasons are 
given in point 2 of the Explanatory Memorandum). 

(f)  As  regards  the  definition  of  ‘visa’,  a  distinction  has  been  made  between  the 
Member  States fully implementing  the Schengen acquis  (and thus issuing the 
uniform  visa)  and  those  not  fully  implementing  the  Schengen  acquis.  This 
distinction  has  been  made  because  the  latter  do  not  apply  the  Schengen 
provisions on the uniform visa (including the Common Consular Instructions) 
and thus cannot issue the “L” visa until the date when the Council authorises 
them to fully implement the Schengen acquis. 

(g)  This point clarifies the scope of the “Schengen acquis”. 

(h)  This point specifies what is meant by “Schengen Convention”. 

Article 4 

The  conditions listed  in  this Article for the entry of border residents are, to a great 
extent,  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 
5); 

- 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. The assessment 
of means of subsistence shall be linked to the purpose of stay. 

It shall be noted that the reference to “threat to public health” has been introduced in 
order to ensure consistency with the proposal for a Council Regulation establishing a 
Community  Code  on  the  rules  governing  the  movement  of  persons  across  borders 
(COM(2004)391 of 26.5.2004). 

Article 5 

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. 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 a specific border crossing permit, 
issued  by  the  State  of  residence  and  countersigned  by  the  competent  authorities  of 
the Member State whose border is crossed.  

Article 6 

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).  The  maximum  duration  of  the  stay  in  the 
border  area  cannot  exceed  the  general  time-limit  for  a  short  stay,  which  is  three 
months within any half-year period. 

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

Article 7 

This Article derogates from the general obligation of affixing an entry and exit stamp 
on the travel documents of third country nationals. However, such derogation is only 
possible  for  border  residents  not  subject  to  the  visa  obligation  and  provided  that 
Member  States  are  able  to  ensure  by  any  other  means  (e.g.,  through  electronic 
registers) the respect of time limits. 

Article 8 

This  Article  establishes  the  specific  visa  to  be  issued  to  border  residents  for  the 
purpose of local border traffic (“L” visa) and defines its characteristics.  

Article 9 

The  “L”  visa  will  be  issued  in  the  same  format  (visa  sticker)  than  other  uniform 
visas,  as  laid  down  by  Regulation  No  1683/95  (as  last  amended  by  Regulation  No 
334/2002). 

Article 10 

The conditions for issuing the “L” visa are equivalent to the general entry conditions 
as laid down in Article 4 of this Regulation. 

It is also specified that “L” visas cannot be issued at the border. 

Article 11 

This Article specifies the minimum and maximum validity of the “L” visa. 

Article 12 

This Article provides for the possibility of reducing or waiving the fees related to the 
issuing of the “L” visa.  

Article 13 

The provisions of the Common Consular Instructions shall apply to the issuing of the 
“L”  visa,  except  for  those  aspects  which  are  regulated  differently  in  the  present 
Regulation. 

Article 14 

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. 

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In order to assess their compatibility with the present Regulation, such agreements, 
as  well  as  their  modification  or  denunciation,  have  to  be  transmitted  to  the 
Commission. 

Article 15 

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 16 

A regime of local border traffic may also be established at the “temporary external 
borders”  between  Member  States.  The  latter  are  therefore  authorised  to  conclude 
bilateral  agreements  between  them,  provided  that  they  are  in  compliance  with  this 
Regulation. 

Article 17  

This Article reflects, to a great extent, existing practices. In order to facilitate border 
crossing  to  border  residents,  Member  States  may,  in  their  bilateral  agreements 
implementing this Regulation, provide for the possibility of: 

(a) 

setting up specific border crossing points open solely for border residents;  

(b) 

reserving specific lanes to border residents; 

(c) 

authorising  border  residents  not  subject  to  the  visa  obligation  to  cross  the 
border  outside  authorised  border  crossing  points  and  hours,  but  only  where 
circumstances  justify  it  (for  instance,  in  case  of  a  village  situated  across  the 
border).  It  shall  be  noted  that  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. 

The  second  paragraph  automatically  extends  the  above  facilitation,  whenever 
granted,  to  Union  citizens  residing  in  the  border  area,  as  well  as  to  third  country 
nationals enjoying the Community right to free movement. This provision is needed 
since  they  are  otherwise  excluded  from  the  scope  of  this  Regulation  because  they 
already  enjoy,  under  Community  law,  specific  rights  related  to  free  movement 
which,  generally  speaking,  go  beyond  what  is  foreseen  in  the  present  proposal  (for 
instance, as regards time-limits for stay, or entry conditions). 

The  third  paragraph  provides  for  a  less  systematic  check  to  be  carried  out  at  the 
border crossing points and at the lanes reserved to border residents. This is justified 
by  the  fact  that  most  of  the  persons  crossing  the  border  at  those  border  crossing 
points/lanes are well known to the border guard, due to the fact that they cross that 
very  same  border  crossing  point  every  day  or,  in  any  case,  very  frequently.  Thus, 

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such persons do not need to be checked every time they cross the border. A similar 
provision is also contained in the Common Manual (see point 1.3.5.3 of part II). 

Article 18 

This Article specifies that the border crossing regime currently applied in the Spanish 
towns of Ceuta and Mellilla is not affected by the present Regulation. 

Article 19 

This  Article  obliges  Member  States  to  impose  penalties  against  any  misuse  of  the 
local  border  traffic  regime,  as  well  as  to  keep  record  of  persons  sanctioned.  Such 
information,  to  be  transmitted  to  the  other  Member  States  and  to  the  Commission, 
will be important in order to monitor the implementation of the regime (Article 20). 

Article 20 

After  two  years  from  the  entry  into  force  of  this  Regulation,  an  assessment  of  the 
implementation of the regime will be made by the Commission, which will have to 
report  on  it  to  the  EP  and  the  Council  and,  if  necessary,  propose  the  appropriate 
legislative adaptations. 

Article 21 

Article 136, paragraph 3 of the Schengen Implementing Convention – related to the 
information  to  be  provided  to  other  Member  States  when  concluding  bilateral 
agreements on local border traffic - is replaced by the provisions of Article 14 of this 
Regulation. 

Article 22 

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

Article 23 

Standard provision. 

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