Council Regulation (EC) No 851/2005 of 2 June 2005 amending Regulation (EC) No 539/2001 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 requirement as regards the reciprocity mechanism
Date: 2005-06-02
Institutions: Council of the European Union
Subjects: EU visa policy, Schengen Agreement, external border of the EU, foreign national, third country

4.6.2005

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Official Journal of the European Union

L 141/3

COUNCIL REGULATION (EC) No 851/2005

of 2 June 2005

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

THE COUNCIL OF THE EUROPEAN UNION,

States should automatically terminate the provisional
restoration of a visa requirement decided by the Council.

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

establishing the European

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Whereas:

(1)

(2)

The mechanism provided for in Article 1(4) of Council
Regulation (EC) No 539/2001 (2) 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
visa
requirement for nationals from one or more Member
States. Solidarity with the Member States experiencing
situations of non-reciprocity requires that the existing
mechanism be adapted so as to make it effective.

requirement, maintains or

introduces

a

is essential

to nationals of

Given the seriousness of such situations of non-reci-
it
procity,
they should be notified
that
without
fail by the Member State(s) concerned. To
ensure that the third country in question again applies
visa-free travel
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.

(3)

A decision by a third country to introduce or reintroduce
visa-free travel for nationals of one or more Member

(1) Opinion delivered on 28 April 2005 (not yet published in the

Official Journal).

(2) OJ L 81, 21.3.2001, p. 1.

(4)

(5)

(6)

(7)

(8)

(9)

The amended solidarity mechanism aims at achieving full
reciprocity in respect of all Member States and creating
an effective and accountable mechanism in order to
ensure it.

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

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.

Iceland

regards

and Norway,

the provisions of

this Regulation
As
constitutes a development 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 (3), 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 appli-
cation of that Agreement (4).

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

in the adoption of

As regards Switzerland,
this Regulation constitutes a
development of the provisions of the Schengen acquis
within the meaning of the Agreement signed between
the European Union, the European Community and the
Swiss Confederation on the Swiss Confederation’s asso-
ciation with the implementation, application and devel-
opment of the Schengen acquis (5), which fall in the area
referred to in Article 1(B) of Decision 1999/437/EC read
in conjunction with Article 4(1) of Council Decision
2004/849/EC (6) and Article 4(1) of Council Decision
2004/860/EC (7),

(3) OJ L 176, 10.7.1999, p. 36.
(4) OJ L 176, 10.7.1999, p. 31.
(5) Council doc. 13054/04 accessible on http://register.consilium.eu.int
(6) OJ L 368, 15.12.2004, p. 26.
(7) OJ L 370, 17.12.2004, p. 78.

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Official Journal of the European Union

4.6.2005

HAS ADOPTED THIS REGULATION:

(e)

Article 1

Article 1 of Regulation (EC) No 539/2001 is amended as
follows:

1. Paragraph 4 shall be replaced by the following:

‘4. Where a third country listed in Annex II introduces a
visa requirement
the
following provisions shall apply:

for nationals of a Member State,

the procedure referred to in subparagraphs (c) and (d)
the Commission’s right
does not affect
to present a
proposal amending this Regulation in order to transfer
the third country concerned to Annex I. Where a
temporary measure 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 nine months after the entry into force of the
temporary measure. Such a proposal shall also include
provisions for lifting of temporary measures, which may
to the procedures
have been introduced pursuant
referred to in subparagraphs
In the
meantime the Commission will continue its efforts in
order to induce the authorities of the third country in
question to reinstall visa-free travel for the nationals of
the Member State concerned;

and (d).

(c)

(a) within

of

or

90

days

such

introduction,

its
announcement,
concerned shall
the Member State
notify the Council and the Commission in writing; the
notification shall be published in the C series of the
the European Union. The notification
Official
shall
the
measure and the type of travel documents and visas
concerned.

implementation of

the date of

Journal of

specify

Journal of

(f) where the third country in question abolishes the visa
requirement, the Member State shall immediately notify
the Council and the Commission to that effect. The
notification shall be published in the C series of the
the European Union. Any temporary
Official
measure decided upon under subparagraph (d) shall
terminate
the publication in the
Official
Journal. In case the third country in question
has introduced a visa requirement for nationals of two
or more Member States the termination of the temporary
measure will only terminate after the last publication.’

seven days after

If the third country decides to lift the visa obligation
the notification
before the expiry of
becomes superfluous;

this deadline,

2. The following paragraph shall be added:

(b) the Commission shall

immediately after publication of
that notification and in consultation with the Member
State concerned, take steps with the authorities of the
third country in order to restore visa-free travel;

‘5.
As long as visa exemption reciprocity continues not to
exist with any third country listed in Annex II in relation to
any of the Member States, the Commission shall report to
the European Parliament and the Council before the 1 July of
every even-numbered year on the situation of non-reci-
procity and shall, if necessary, submit appropriate proposals.’

(c) within 90 days after publication of that notification, the
Commission,
in consultation with the Member State
concerned, shall report to the Council. The report may
the
be accompanied by a proposal providing for
temporary restoration of
for
requirement
nationals of
in question. The
third country
Commission may also present this proposal after deli-
berations in Council on its report. The Council shall act
on such proposal by a qualified majority within three
months;

the visa

the

Article 2

Member States whose nationals on 24 June 2005 are subject to
a visa requirement by a third country listed in Annex II to
Regulation (EC) No 539/2001 shall notify the Council and
the Commission in writing by 24 July 2005. The notification
shall be published in the C series of the Official Journal of the
European Union.

for the temporary restoration of

(d) if it considers it necessary, the Commission may present
a proposal
the visa
requirement for nationals of the third country referred
report. The
to in subparagraph (c) without a prior
procedure provided for in subparagraph (c) shall apply
to that proposal. The Member State concerned may state
whether it wishes the Commission to refrain from the
temporary restoration of such visa requirement without a
prior report;

The provisions of Article 1(4)(b)
No 539/2001 shall apply.

to (f) of Regulation (EC)

Article 3

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

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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 Luxembourg, 2 June 2005.

For the Council
The President

L. FRIEDEN