European Parliament legislative resolution on the 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 (COM(2005)0056 - C6-0049/2005 - 2005/0006(COD))
Date: 2006-02-14
Institutions: Committee on Civil Liberties, Justice and Home Affairs, European Parliament
Subjects: EU visa policy, Schengen Agreement, border control, external border of the EU, free movement of persons, frontier region, third country

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P6_TA(2006)0049

Local border traffic ***I

European Parliament legislative resolution on the proposal for a regulation of the European Parlia-
ment 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
(COM(2005)0056 — C6-0049/2005 — 2005/0006(COD))

(Codecision procedure: first reading)

The European Parliament,

— having regard to the Commission proposal to the European Parliament and the Council (COM(2005)

0056) (1),

— having regard to Article 251(2) and Articles 62(2)(a) and 62(2)(b)(ii) and (iv) of the EC Treaty, pursuant

to which the Commission submitted the proposal to Parliament (C6-0049/2005),

— having regard to the Commission's undertaking, given at Parliament's plenary sitting of 14 February
2006, to accept the position adopted by Parliament and to the Council representative's written under-
taking of 20 December 2005 to approve the proposal as amended, in accordance with Article 251(2),
second paragraph, first indent, of the EC Treaty,

— having regard to Rule 51 of its Rules of Procedure,

— having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the

opinion of the Committee on Foreign Affairs (A6-0406/2005),

1.

2.

Approves the Commission proposal as amended;

Instructs its President to forward its position to the Council and Commission.

(1) Not yet published in OJ.

P6_TC1-COD(2005)0006

Position of the European Parliament adopted at first reading on 14 February 2006 with a view to
the adoption of Regulation (EC) No …/2006 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

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)
thereof,

Having regard to the proposal from the Commission (1),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

(1)

The need to develop rules on local border traffic in order to consolidate the Community legal frame-
work on external borders has been highlighted in the Commission Communication ‘Towards an inte-
grated management of the external borders of the Member States of the European Union’ (3). 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 Euro-
pean Council held in Seville on 21 and 22 June 2002.

(1) OJ C …
(2) Position of the European Parliament of 14 February 2006.
(3) COM(2002)0233.

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(2)

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.

(3) The local border traffic regime constitutes a derogation from the general rules governing the border
control of persons crossing the external borders of the Member States of the European Union which
are set out in Regulation (EC) No …/2006 of the European Parliament and of the Council of …
[establishing a Community Code on the rules governing the movement of persons across borders
(Schengen Borders Code)] (1).

(4)

The Community should lay down the rules on criteria and conditions to be complied with when the
crossing of the external land borders of the Member States for the purpose of local border traffic is
being eased for border residents. Such rules should ensure a balance between, on the one hand, the easing
of border crossing for 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
and potential threats to security posed by criminal activities.

(5) As a general rule, in order to prevent abuses, local border traffic permits should be issued only to
those who have been lawfully resident in a border area for at least one year. Bilateral agreements
may provide for a longer period of residence. In exceptional and duly justified cases, such as those
relating to minors, changes in marital status or inheritance of land, those bilateral agreements may
also provide for a shorter period of residence.

(6)

Local border traffic permits should be issued to border residents whether or not they are subject to a
visa requirement 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 requirement (2). As a result, this Regulation should
be read together with Council Regulation (EC) No …/… of … [amending Regulation (EC) No 539/
2001], which is designed to exempt from the visa obligation border residents who benefit from the
local border traffic regime established by this Regulation. As a consequence, this Regulation may
enter into force only in conjunction with that amending Regulation.

(7)

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

(8) The rights to free movement enjoyed by citizens of the Union and members of their families and the
equivalent rights enjoyed by third-country nationals and their family members under agreements between
the Community and its Member States, on the one hand, and those third countries, on the other hand,
should not be affected by the establishment of rules on local border traffic at Community level. How-
ever, where border crossing is eased under the local border traffic regime for border residents, and that
entails less systematic control, border crossing should automatically be eased for both citizens of the
Union and for third-country nationals enjoying the Community right to free movement resident in a
border area.

(9)

For the implementation of the local border traffic regime, Member States should be allowed to maintain
or conclude, if necessary, bilateral agreements with neighbouring third countries provided that such agree-
ments comply with the rules laid down in this Regulation.

(10) 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 1985 (3).

(1) OJ L …
(2) OJ L 81, 21.3.2001, p. 1. Regulation as last amended by Regulation (EC) No 851/2005 (OJ L 141, 4.6.2005,

p. 3).

(3) OJ L 239, 22.9.2000, p. 69.

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(11) Penalties, as provided for in national law, should be imposed by Member States on border residents

who abuse the local border traffic regime established by this Regulation.

(12) 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.

(13) 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.

(14) Since the objective of this Regulation, namely the laying down 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 this Regulation, 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 that
objective.

(15)

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 date of adoption of this Regulation whether
it will implement it in its national law.

(16) 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 latters' association
with the implementation, application and development of the Schengen acquis (1), which fall within
the area referred to in Article 1(A) of Council Decision 1999/437/EC of 17 May 1999 (2) on certain
arrangements for the application of that Agreement.

(17) 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 acquis (3). The United Kingdom is therefore not taking part in
its adoption and is not bound by it or subject to its application.

(18) This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does
not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning
Ireland's request to take part in some of the provisions of the Schengen acquis (4). Ireland is therefore
not taking part in its adoption and is not bound by it or subject to its application.

(19) As regards Switzerland, this Regulation constitutes a development of provisions of the Schengen
acquis within the meaning of the Agreement signed by the European Union, the European Commun-
ity and the Swiss Confederation on the Swiss Confederation's association with the implementation,
application and development of the Schengen acquis (5) which fall within the area referred to in Arti-
cle 1(A) of Decision 1999/437/EC read in conjunction with Article 4(1) of Decisions 2004/849/
EC (6) and 2004/860/EC (7).

(20) Articles 4(b) and 9(c) 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.

(1) OJ L 176, 10.7.1999, p. 36.
(2) OJ L 176, 10.7.1999, p. 31.
(3) OJ L 131, 1.6.2000, p. 43.
(4) OJ L 64, 7.3.2002, p. 20.
(5) Council doc. 13054/04 accessible on http://register.consilium.eu.int.
(6) Council Decision 2004/849/EC of 25 October 2004 on the signing, on behalf of the European Union, and on the
provisional application of certain provisions of the Agreement between the European Union, the European Com-
munity and the Swiss Confederation concerning the Swiss Confederation's association with the implementation,
application and development of the Schengen acquis (OJ L 368, 15.12.2004, p. 26).

(7) Council Decision 2004/860/EC of 25 October 2004 on the signing, on behalf of the European Community, and
on the provisional application of certain provisions of the Agreement between the European Union, the European
Community and the Swiss Confederation, concerning the Swiss Confederation's association with the implemen-
tation, application and development of the Schengen acquis (OJ L 370, 17.12.2004, p. 78).

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HAVE ADOPTED THIS REGULATION:

Chapter I

General provisions

Article 1

Subject matter

This Regulation establishes a local border traffic regime at the external borders of the Member States
1.
and introduces, for that purpose, a specific document that entitles border residents to cross the border
under the local border traffic regime. The document shall be entitled ‘local border traffic permit’.

This Regulation authorises Member States to conclude or maintain bilateral agreements with neigh-

2.
bouring third countries for the purpose of implementing the local border traffic regime hereby established.

Article 2

Scope

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.

Article 3

Definitions

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

(a)

(b)

(c)

‘external land border’ means the common land border between a Member State and a neighbouring
third country;

‘border area’ means an area that extends no more than 30 kilometres from the border. Within that area,
the local administrative districts that are to be considered as the border area shall be specified by the
States concerned in their bilateral agreements. If part of any such district lies between 30 and 50 kilo-
metres from the border line, 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 a border area for social, cultural or substantiated economic reasons, for
example, or for family reasons, for a period not exceeding the time limits laid down in this Regulation;

(d)

‘persons enjoying the Community right of free movement’ means:

(i)

citizens of the Union within the meaning of Article 17(1) of the Treaty, and nationals of third
countries who are members of the family of a Union citizen exercising his or her right to free
movement to whom Directive 2004/38/EC (1) applies;

(ii) nationals of third countries and their family members, whatever their nationality, who, under
agreements between the Community and its Member States, on the one hand, and those third coun-
tries, on the other, enjoy rights to free movement equivalent to those of citizens of the Union;

(1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union
and their family members to move and reside freely within the territory of the Member States (OJ L 158, 30.4.2004, p. 77).

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(e)

(f)

‘third-country national’ means any person who is not a citizen of the Union within the meaning of
Article 17(1) of the Treaty and who is not covered by point (d);

‘border residents’ means third–country nationals who have been lawfully resident in the border area of
a country neighbouring a Member State for a period specified in the bilateral agreements referred to
in Article 13, which shall be at least one year. In exceptional and duly justified cases specified in the
bilateral agreements, a period of residence of less than one year would be appropriate;

(g) ‘local border traffic permit’ means the document introduced by Article 5 entitling its holder to cross
the external land border for the purpose of local border traffic in accordance with the provisions of
this Regulation;

(h)

‘the Schengen Convention’ means the Convention, signed in Schengen on 19 June 1990, between the
Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Grand Duchy of
Luxembourg and the Kingdom of the Netherlands, implementing the Agreement on the gradual
abolition of checks at their common borders, signed in Schengen on 14 June 1985.

Chapter II

Local border traffic regime

Article 4

Entry conditions

Border residents may cross the external land border of a neighbouring Member State for the purposes of
local border traffic, on condition that they:

(a) are in possession of a local border traffic permit and, if required by the bilateral agreements referred

to in Article 13, a valid travel document or documents;

(b) are not persons for whom an alert has been issued for the purposes of refusing entry in the Schengen

Information System (SIS);

(c)

are not considered to be a threat to public policy, internal security, public health or the international
relations of any of the Member States, and in particular where no alert has been issued in Member
States' national databases for the purposes of refusing entry on the same grounds.

Article 5
Local border traffic permit — principles

1.

A local border traffic permit for crossing the border is hereby established.

The territorial validity of the permit referred to in paragraph 1 shall be limited to the border area of

2.
the issuing Member State.

The local border traffic permit shall bear the photograph of the holder of the permit and shall

3.
contain at least the following information:

(a)

the forename(s), surname(s), date of birth, nationality and place of residence of the holder of the
permit;

(b) the issuing authority, date of issue and period of validity;

(c)

the border area within which the holder of the permit is authorised to move;

(d)

the number of the valid travel document or documents, as referred to in Article 9(a), entitling its
holder to cross the external borders.

It shall clearly state that its holder is not authorised to move outside the border area, and that any abuse
shall be subject to penalties as provided for in Article 17.

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Article 6

Stay in the border area

The bilateral agreements referred to in Article 13 shall specify the maximum permissible duration of each
uninterrupted stay under the local border traffic regime, which shall not exceed three months.

Article 7

Entry and exit checks

1. Member States shall carry out entry and exit checks on border residents in order to ensure that they
fulfil the conditions set out in Article 4.

No entry or exit stamps shall be affixed to the local border traffic permit under the local border

2.
traffic regime.

3.

Paragraph 1 shall be without prejudice to the provisions of Article 15.

Chapter III
Local border traffic permit — detailed provisions

Security features and technical specifications of the local border traffic permit

Article 8

1.
The local border traffic permit referred to in Article 5 shall contain security features and technical
specifications that comply with the relevant provisions of Council Regulation (EC) No 1030/2002 of
13 June 2002 laying down a uniform format for residence permits for third-country nationals (1).

2. Member States shall transmit to the Commission and to the other Member States a specimen of the
local border permit they issue in accordance with paragraph 1.

Article 9

Issuing conditions

The local border traffic permit referred to in Article 5 may be issued to border residents who:

(a) are in possession of a valid travel document or documents, as referred to in Article 17(3)(a) of the

Schengen Convention, entitling them to cross the external borders;

(b) produce documents proving their status as border residents, and the existence of legitimate reasons

to frequently cross the border on grounds of local border traffic;

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

(d) are not considered to be a threat to public policy, internal security, public health or the international
relations of any of the Member States, and in particular where no alert has been issued in Member
States' national databases for purposes of refusing entry on the same grounds.

Article 10

Validity

The local border traffic permit referred to in Article 5 shall be valid for a minimum of one year and a
maximum of five years.

(1) OJ L 157, 15.6.2002, p. 1.

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Article 11

Issuing fees

The fees corresponding to the administrative costs of processing applications for the local border traffic
permit referred to in Article 5 shall not exceed the fees charged for processing applications for short-term
multiple-entry visas.

The local border traffic permit may be issued free of charge.

Article 12

Issuing arrangements

The local border traffic permit may be issued by either a consulate or any administrative authority

1.
of a Member State designated in the bilateral agreements referred to in Article 13.

2. Member States shall keep a central register of permits applied for, issued, extended and withdrawn
and shall designate a national contact point responsible for providing without delay, upon request from
other Member States, information on permits held in that register.

Chapter IV

Implementation of the local border traffic regime

Article 13

Agreements between Member States and third countries

For the purposes of

1.
implementing the local border traffic regime, 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.

Before concluding or amending any agreement on local border traffic with neighbouring third countries, Member

2.
States shall consult the Commission as to the compatibility of the agreement with this Regulation.

If the Commission considers the agreement to be incompatible with this Regulation,
it shall notify the
Member State concerned, which shall take all appropriate steps to amend the agreement within a reason-
able period, in such a way as to eliminate the incompatibilities established.

3. Where the Community or the Member State concerned has not concluded a general readmission
agreement with a third country, the bilateral agreements on local border traffic with that third country
shall provide for the readmission of persons found to be abusing the regime established by this Regu-
lation to be facilitated.

Article 14

Comparability of treatment

In their agreements with neighbouring third countries as referred to in Article 13, Member States shall
ensure that the third country grants at least comparable treatment to persons enjoying the Community
right of free movement and to third-country nationals lawfully resident in the border area of a Member State.

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Article 15

Easing of border crossing

The agreements referred to in Article 13 may provide for border crossing to be eased, whereby Member

1.
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)

taking into account the local circumstances, and where exceptionally there is a requirement of a
special nature, authorise border residents to cross their border at defined places other than authorised
border crossing points and outside the fixed hours.

2. Where a Member States decides to ease border crossing for border residents in accordance with para-
graph 1, it shall automatically ease border crossing for any person enjoying the Community right of free move-
ment residing in the border area concerned.

3.
At the border crossing points referred to in paragraph 1(a) and at the lanes referred to in paragraph 1
(b), persons who regularly cross the border and who, by reason of their frequent crossing of the border, are well
known to the border guards shall, as a rule, be subject only to random checks.

Such persons shall be subject to thorough checks from time to time, without warning and at irregular
intervals.

4. Where a Member State decides to ease border crossing for border residents in accordance with
paragraph 1(c):

(a)

in addition to the information referred to in Article 5, the local border traffic permit referred to in
Article 5 shall contain details of the location at, and circumstances in, which the border may be
crossed;

(b) the Member State in question shall carry out random checks and maintain regular surveillance in

order to prevent unauthorised border crossings.

Chapter V

Final provisions

Article 16

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 1985.

Article 17

Penalties

1. Member States shall ensure that any abuse of the local border traffic regime, as established by this
Regulation and as implemented by the bilateral agreements referred to in Article 13, 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 possi-

2.
bility of cancelling and revoking local border traffic permits referred to in Article 5.

3. Member States shall keep a record of all cases of abuse of the local border traffic regime and of
penalties imposed in accordance with paragraph 1. That information shall be transmitted every six months
to the other Member States and to the Commission.

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Article 18

Report on the implementation of the regime

By … (*), the Commission shall submit a report to the European Parliament and the Council on the func-
tioning 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 appro-
priate legislative proposals.

Article 19

Notification of agreements

1. Member States shall notify the Commission of all agreements referred to in Article 13(1) and of
any denunciation thereof or amendments thereto.

2.
The Commission shall make the information notified in conformity with paragraph 1 available to
the Member States and the public through publication in the Official Journal of the European Union and
by any other appropriate means.

Article 20

Amendment of the Schengen Convention

The provisions of Article 136(3) of the Schengen Convention are replaced by the following:

Paragraph 2 shall not apply to agreements on local border traffic, for which the provisions of

‘3.
Article 13 of [Regulation No … this Regulation] shall apply.’

Article 21

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 …, on …

For the European Parliament
The President

For the Council
The President

(*) Two years after the entry into force of this Regulation.