Proposal for a Regulation of the European Parliament and of the Council amending the Common Consular Instructions on visas for diplomatic missions and consular posts in relation to the introduction of biometrics including provisions on the organisation of the reception and processing of visa applications
Date: 2006-05-31
Institutions: European Commission
Subjects: EU Member State, EU visa policy, admission of aliens, biometrics, consulate, data protection, information system, legal basis

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 31.5.2006 
COM(2006) 269 final 

2006/0088 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending the Common Consular Instructions on visas for diplomatic missions and 
consular posts in relation to the introduction of biometrics including provisions on the 
organisation of the reception and processing of visa applications 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

The present proposal is intended to create the legal basis for Member States to take mandatory 
biometric identifiers - the facial image and ten flat fingerprints - from visa applicants and to 
give a legal framework for the organisation of Member States consular offices in view of the 
implementation of the Visa Information System (VIS).  

The Hague programme invited the Commission to present "a proposal on the establishment of 
common  application  centres  focusing  inter  alia  on  possible  synergies  linked  with  the 
development  of  the  VIS."  This  measure  has  been  taken  up  by  the  Council  and  Commission 
Action  Plan  implementing  the  Hague  Programme  on  strengthening  freedom,  security  and 
justice in the European Union.  

In  order  to  avoid  all  Member  States  having  to  install  the  necessary  equipment  for  collecting 
biometric  identifiers  in  every  consular  office,  the  idea  of  creating  "Common  application 
Centres"  (CAC)  was  born.  The  CACs  have  a  double  advantage:  the  reinforcement  of  local 
consular  cooperation,  streamlining  and  cost-saving  for  Member  States  as  resources  can  be 
pooled and shared. In this context Member States also discussed other options for organising 
the  application  procedure  in  order  to  reduce  the  costs  of  the  use  of  biometrics,  for  instance 
outsourcing  in  locations  where  consular  posts  are  faced  with  particularly  high  numbers  of 
applications.  Different  options  such  as  representation  and  outsourcing  are  outlined;  Member 
States  can  choose  from  these  options  in  relation  to  the  proper  execution  of  their  legal 
obligations in the framework of visa issuance. This proposal will take account of these options 
and it could be a first step to the further enhancement of the harmonisation of the application 
of  the  CCI  and  in  view  of  future  Common  Visa  Offices,  without  prejudice  to  the  future 
European External Action Service.  

•  General context 

As envisaged in the proposal for a Regulation of the European Parliament and of the Council 
concerning  the  VIS  and  the  exchange  of  data  between  Member  States  on  short-stay  visas 
(COM(2004)835final), as presented by the Commission on 28 December 2004, Member States 
shall  introduce  fingerprints  and  photographs  as  biometric  identifiers  in  addition  to 
alphanumeric data on the visa applicant, the visa application and the decisions taken thereto, in 
order  to  be  able  to  proceed  with  a  reliable  verification  and  identification  of  visa  applicants. 
The VIS is designed to improve the implementation of the common visa policy by facilitating 
the  visa  issuing  procedure,  preventing  visa  shopping,  facilitating  checks  at  external  borders 
and  strengthening  the  fight  against  fraud  and,  within  the  territory  of  the  Member  States, 
assisting  in  the  identification  and  return  of  illegal  immigrants,  facilitating  the  application  of 
Regulation  (EC)  No  343/2003  and  contributing  to  the  prevention  of  threats  to  the  internal 
security of any of the Member States. 

As the taking of biometric identifiers will now be part of the visa application procedure, the 
CCI have to be amended in order to create the legal basis for this measure. The taking of the 
biometric identifiers has to be carried out in accordance with the standards set out in the ICAO 

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recommendations (Doc. 9303, part 1, 6th edition, not yet published). These standards set out in 
detail  how  the  photograph  has  to  be  taken  and  give  the  standards  for  the  scanning  of 
fingerprints. No further technical specifications are required in order to ensure the harmonised 
enrolment of the biometric identifiers. 

The current proposal is drawn up separately from the general recast of the CCI as it is a pre-
condition  for  the  implementation  of  the  VIS  in  that  it  provides  a  legal  framework  for  the 
collection  of  the  required  biometric  identifiers.  Therefore,  this  proposal  is  envisaged  to  be 
adopted sooner than the recast as a whole. 

•  Existing provisions in the area of the proposal 

Common Consular Instructions;  

Council decision 2004/512/EC of 8 June 2004 establishing the VIS 

•  Consistency with the other policies and objectives of the Union 

The  proposal  stresses  that  the  fundamental  rights  of  visa  applicants  have  to  be  respected  by 
Member States particularly in respect of data protection. It is also consistent with the policy in 
view of the establishment of an External Action Service. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

1)  The  Thessaloniki  European  Council  of  19/20  June  2003  confirmed  that  "a  coherent 
approach is needed in the EU on biometric identifiers or biometric data which would result in 
harmonised  solutions  for  documents  for  third  country  nationals,  EU  citizens'  passports  and 
information systems (VIS and SIS II)". The Commission presented on 24 September 2003 two 
proposals amending the uniform format for visas and the residence permits for third country 
nationals. 

A  large  consensus  was  found  in  the  Council  on  the  biometric  identifiers  and  the  approach 
taken by the Commission and a political agreement -as requested by the European Council in 
Brussels on 16/17 October 2003- was reached at the Council (JAI) on 27 November 2003. In 
order to demonstrate the political agreement reached, the Council (JAI) of 27 November 2003 
stated  in  its  conclusions  that  it  "considers  in  agreement  with  the  Commission  that  the 
implementation  of  the  proposal  on  a  uniform  format  for  visas  requires  an  additional  legal 
instrument,  creating  the  obligation  and  specifying  the  exceptions  to  the  recording  of 
fingerprints  on  the  storage  medium  of  the  uniform  format  for  visas"  and  "invites  the 
Commission  to  present  the  relevant  proposal  on  the  amendment  of  the  Common  Consular 
Instructions" (CCI). 

As  the  technical  feasibility  of  storing  biometric  identifiers  on  a  contactless  chip  attached  to 
each  visa  sticker  could  not  be  confirmed,  the  Council  decided  in  June  2005  to  store  the 
biometric  identifiers  of  visa  applicants  only  in  the  Visa  Information  System  (VIS).  Indeed, 

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tests have shown that the integration of a contactless chip in each visa sticker leads to so-called 
"collision problems" if there are more than four visas in one passport. The reader is no longer 
able to read the valid visa. 

2)  The  SCIFA  has  discussed  the  exceptions  to  the  requirement  of  taking  fingerprints;  two 
categories of persons should be exempt from the requirement to take fingerprints: minors and 
persons for whom it is physically impossible to take fingerprints. These exceptions have been 
taken up by the present proposal. 

3)  During  a  special  meeting  of  the  Visa  Working  Party  on  27.1.2006  Member  States  have 
discussed on the basis of a Presidency/Commission paper (Room document of the visa group 
27 January 2006 No 6/06) all possible options for the organisation of consular offices taking 
into account the enrolment of biometrics and verified whether they are workable. All options 
presented  in  the  room  document  except  the  "mobile  units",  as  this  seemed  to  be  unrealistic, 
have been retained and therefore incorporated in the present proposal. 

•  Collection and use of expertise 

Main organisations/experts consulted 

The general recommendations issued by the International Civil Aviation Organisation (ICAO) 
have been taken into account as regards the introduction of biometric identifiers. 

•  Impact assessment 

As  an  impact  assessment  has  already  been  carried  out  for  the  VIS  (Study  for  the  Extended 
Impact  assessment  of  the  Visa  Information  System,  Final  Report,  December  2004  EPEC), 
which  covers  in  particular  the  processing  of  biometric  data  and  the  organisation  of  Member 
States'  consular  offices,  an  additional  impact  assessment  has  not  been  carried  out  for  this 
proposal.  In  the  Impact  Assessment  on  the  VIS  the  pooling  of  resources  is  considered  as  a 
positive element (Page 26/27), even though there might be difficulties for consular posts with 
large numbers  of applications. On page 30/31, the benefits of CAC's are listed: reduction of 
visa  shopping;  reduction  of  costs;  one  central  access  would  make  it  easier  to  meet  data 
protection requirements and to ensure the security and protection of data; improvements in the 
implementation of common visa policy.  

As regards "outsourcing" several Member States are already practising this method without a 
common legal framework. During a discussion in an especially devoted Visa Group meeting 
as mentioned above on this issue, it became obvious that Member States wish to include this 
option.  Stakeholders  stated  that  due  to  the  increasing  number  of  applications  in  certain 
consular posts and the budgetary constraints there have to be introduced new methods to cope 
with those challenges. Different options are used: from the call-centre for appointments up to 
the reception of the visa application. Therefore a common legal framework is necessary taking 
into account in particular data protection requirements. First experiences are positive; also for 
the  visa  applicants  as  they  are  received  and  served  in  a  better  way.  "Outsourcing"  is  not 
proposed  as  a  general  solution  but  used  in  certain  posts  depending  on  the  local  situation.  In 
this  framework  the  benefit  of  a  legal  framework  is  that  it  becomes  clear  that  the  Member 
States remain the "controller" and the external service provider the "processor" in the meaning 
of Article 16 and 17 of Directive 95/46 on data protection. In this sense, the contractual terms 

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with the external service provider must contain the obligations for the processing of data in the 
sense of the directive. 

Furthermore, the Commission programme ARGO financed a pilot project BIODEV, which has 
been  carried  out  in  some  French  and  Belgian  consular  offices  in  order  to  test  the  impact  of 
biometrics  on  the  visa  application  procedures.  Some  of  the  envisaged  solutions  were  tested 
with  a  very  good  result.  These  reports  have  been  shared  with  the  Council  and  the  European 
Parliament. 

On pages 51ff. of the VIS Study a detailed assessment of VIS with and without biometrics has 
been carried out. The option with biometrics has been chosen; therefore a legal basis for the 
enrolment of biometric identifiers has to be established.  

This proposal is a complementary proposal for the implementation of the VIS. 

As  regards  data  protection  Directive  95/46  applies.  In  the  relevant  point  of  the  proposal  the 
data  protection  provisions  have  been  recalled  and  in  particular  the  principle  that  Member 
States must remain responsible for the processing and retention of data. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

It is necessary to establish the legal framework in order to enable the full implementation of 
the  VIS.  Whereas  the  Regulation  concerning  the  VIS  and  the  exchange  of  data  between 
Member  States  on  short-stay  visas  shall  constitute  the  core  instrument  for  this  legal 
framework, a complementary legal instrument for the enrolment of biometric identifiers from 
visa applicants is required.  

This proposal takes up certain aspects which are not  covered by the  legal instrument for the 
VIS.  This  proposal  deals  with  the  collection  of  biometric  data  whereas  the  VIS  proposal 
covers the transmission and exchange of data. The possibility of "outsourcing" the reception of 
visa applications and the collection of biometric data falls within the framework of the present 
proposal. Both proposals complement each other. 

In  order  to  enable  Member  States  to  cope  with  the  additional  workload  of  collecting  the 
biometric  data  of  applicants  and  to  reduce  the  costs,  organisational  aspects  have  been 
addressed  and  new  possibilities  for  the  organisation  of  the  visa  application  procedure  are 
created. 

In view of the overall tendency to facilitate the visa issuing procedure, the Commission recalls 
the general principle that the applicant should only appear once: a "one stop" system for the 
submission  of  the  visa  application:  depositing  the  visa  application  form  and  the  taking  of 
biometric  identifiers  should  intervene  at  the  same  place  and  at  the  same  time.  However,  the 
necessity of a second appearance in individual cases cannot be prevented in particular in cases 
where  an  interview  is  necessary  in  view  of  verifying  the  conditions  for  issuing  visas, 
especially the legitimate purpose of the envisaged short stay. 

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•  Legal basis 

Art. 62 (2) b) ii) 

•  Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the Community. 

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following reason(s). 

A common legal framework is needed in order to establish harmonised rules on the mandatory 
enrolment of biometric identifiers and thereby allow for the functioning of the VIS. 

As  regards  the  organisation  of  their  consulates  in  view  of  the  introduction  of  biometrics 
Member States should organise themselves within the framework given by Community law in 
order to have a harmonised approach. Community action will better achieve the objectives of 
the proposal for the following reason(s). 

If Member States were to design rules for enrolment individually, it could not be ensured that 
the same standards would be used and that visa applicants would be treated in the same way. 
If,  for  instance,  Member  States  were  to  exempt  different  categories  of  persons  from  the 
requirement of fingerprint capturing, this would open the door for visa shopping and the goals 
of the common visa policy could not be achieved. 

By  creating  CACs  or  using  one  of  the  other  organisational  options,  a  step  forward  to  closer 
cooperation  by  Member  States  is  undertaken.  The  effect  will  be  a  further  harmonised 
application of visa policy. 

The  Union  has  to  set  out  a  common  legal  framework  for  enrolment  standards  in  order  to 
achieve that all Member States will seize the biometric identifiers in an interoperable way and 
at  the  same  time  ensuring  an  equal  treatment  of  all  visa  applicants.  Member  States  should 
choose the technical equipment but in the limits set out by the VIS and ICAO specifications in 
order to ensure interoperability. 

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s). 

In  accordance  with  the  Commission  proposal  on  the  VIS,  the  current  proposal  obliges  all 
Member States to take biometric identifiers from  visa applicants. However the  choice of the 
technical systems is left at the discretion of each individual Member State under the condition 
that interoperability is ensured. 

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By creating the possibility to establish CACs or using one of the other options of co-operation, 
the costs of installing hard- and software and of the resources in each and every consular office 
are significantly reduced. 

•  Choice of instruments 

Proposed instruments: regulation. 

Other means would not be adequate for the following reason(s): 

The requirement of taking biometric identifiers is mandatory for all Member States. Therefore 
only a Regulation can be chosen as a legal instrument imposing this requirement. 

All other instruments would not have the same binding effect. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5. 

ADDITIONAL INFORMATION 

•  Detailed explanation of the proposal 

o 

Consequences of the various protocols annexed to the Treaties 

The  legal  basis  for  the  proposals  on  measures  relating  to  the  rules  on  short  stay  and  transit 
visas is to be found in Title IV of the EC Treaty, with the result that the system of variable 
geometry,  provided  for  in  the  protocols  on  the  position  of  the  United  Kingdom,  Ireland  and 
Denmark and the Schengen protocol, applies. 

This  proposal  builds  upon  the  Schengen  acquis.  Therefore  the  following  consequences  in 
relation to the various protocols have to be considered: 

Iceland and Norway:  

The  procedures  laid  down  in  the  Association  Agreement  concluded  by  the  Council  and  the 
Republic of Iceland and the Kingdom of Norway concerning the latter's association with the 
implementation, application and development of the Schengen acquis are applicable, since the 
present proposal builds on the Schengen acquis as defined in Annex A of this Agreement. 

Denmark:  

Pursuant  to  the  Protocol  on  the  position  of  Denmark  annexed  to  the  TEU  and  the  TEC, 
Denmark will not participate in the adoption of the Regulation and is therefore not bound by it 
or subject to its application. Given the fact that the Regulation is an act which aims to build 
upon the Schengen acquis in accordance with the provisions of Title IV of the TEC, Article 5 
of the above-mentioned Protocol applies. 

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United Kingdom and Ireland:  

According  to  Articles  4  and  5  of  the  Protocol  integrating  the  Schengen  acquis  into  the 
framework  of  the  European  Union  and  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  not 
taking  part  in  the  adoption  of  the  Regulation  and  are  not  bound  by  it  or  subject  to  its 
application. 

EU 10:  

Since the initiative constitutes an act building upon the Schengen acquis or otherwise related 
to  it  within  the  meaning  of  Article  3(2)  of  the  Act  of  Accession,  the  Regulation  shall  only 
apply in EU 10 pursuant to a Council decision in conformity with this provision. 

Switzerland: 

This Regulation constitutes a development of the provisions of the Schengen aquis 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 
the  Council  decision  on  the  signing,  on  behalf  of  the  European  Community,  and  on  the 
provisional application of certain provisions of this Agreement .  

o 

Explanation of the proposal by Articles 

Article 1 

Under  Point  II  of  the  CCI  a  new  form  of  representation  is  introduced  under  1.2  b).  This 
"Limited  representation"  should  give  the  possibility  to  a  Member  State  to  only  receive  the 
application and enrol the biometric identifiers and then forward these data to the diplomatic or 
consular  post  of  the  represented  Member  State  for  deciding  on  the  visa  application.  The 
relevant provisions set out for representation in 1.2 c) and e) shall also apply. 

The new Point III 1.2.of the CCI sets out the obligation for Member States to collect biometric 
identifiers as part of the visa application procedure. The fingerprints are taken at the moment 
of  the  first  submission  of  the  visa  application;  in  cases  of  repeated  applications  within  the 
time-frame  of  four  years  this  requirement  is  waived  as  the  applicant  does  not  need  to  be 
enrolled  again:  the  fingerprints  and  the  photograph  can  be  re-used  and  copied  from  the  first 
application. The time frame of 4 years has been chosen in relation to the 5-year data retention 
period laid down in the proposal for the VIS Regulation. It has to be ensured that the biometric 
data of the first application are still available in the system. An additional verification of the 
person at the time of a repeated application is not necessary, because if an individual were to 
fraudulently  use  somebody  else's  passport  already  containing  a  visa,  it  will  be  immediately 
discovered at the border crossing point that the person is not identical with the person who has 
applied for the first visa, as the biometric identifiers will not match in the VIS. 

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Exceptions are set out in point (b) of the new point III 1.2 of the CCI on the basis of the results 
of  the  discussions  on  this  issue  in  the  Visa  group  and  the  Strategic  Committee  (Scifa).  The 
exceptions  cover  children  under  the  age  of  6  years:  In  order  to  store  reliable  data,  the 
fingerprints  of  children  under  the  age  of  6  years  are  not  taken,  as  they  are  not  of  sufficient 
quality to perform data base searches. The fingerprints of children aged 6-12 years are useful 
only for a one-to-one comparison. (In large database searches it is more difficult to use these 
fingerprints.)  As  Regulation  (EC)  539/2001  provides  for  the  possibility  of  waiving  the  visa 
requirement  for  holders  of  diplomatic  passports,  service/official  passports  and  special 
passports, Member States should also have the possibility to exempt these categories from the 
requirement of enrolment of biometric identifiers. For each case of exemption, an entry "not 
applicable" has to be made in the VIS system in order to alert border control officials that the 
fingerprints have not been taken. 

Given  the  introduction  of  the  capturing  of  biometric  identifiers,  a  personal  appearance  is 
mandatory at least for first-time applications. The possibility of the use of travel agencies etc. 
referred  to  in  the  current  CCI  under  point  VIII.5.2  is  nevertheless  maintained  for  repeated 
applications  as  applicants  are  not  necessarily  requested  to  appear  in  person.  They  could 
introduce their second request via a travel agency for example. 

The possibility of "outsourcing" in general has been taken into account in order to provide a 
legal framework. It has to be clear that outsourcing can only be possible within certain limits 
as the power to grant a visa must remain with Member States. However, the arrangement of an 
appointment  or  even  the  reception  of  the  application  form  and  the  taking  of  the  biometric 
identifiers  could  be  carried  out  by  an  external  service  provider  if  this  is  necessary  for  the 
proper implementation of the Member State's obligations under EC law on the issuing of visas 
in  particular  in  the  light  of  local  circumstances  including  the  number  of  visa  applications.  It 
must be ensured that all relevant data protection provisions are respected: when selecting the 
external  service  provider  and  in  the  necessary  contract.  Therefore  Member  States  have  to 
ensure  when  concluding  the  contract  that  it  includes  relevant  data  protection  clauses  the 
implementation  of  which  shall  be  supervised  by  consular  officers.  Member  States  have  to 
remain liable for the compliance with data protection rules also in case of outsourcing. 

Moreover, when using the possibility of outsourcing, the total amount of fees charged to the 
applicant for processing the visa application shall not be higher than the fee set out in Annex 
12. Thus, no additional costs should be charged to the applicant. 

The  amendment  of  point  VII  sets  out  the  possibility  of  collaboration  among  Member  States 
and creating CACs. In addition a "pre-checking" is introduced in order to refer the applicant to 
the Member State responsible for the processing of his/her application. 

When organising consular services, Member States should have the possibility to collaborate 
including  the  creation  of  CACs  taking  into  account  also  the  current  possibilities  of 
representation  and  the  newly-introduced  form  of  "Limited  Representation"  as  introduced  in 
Point II 1.2 b). There may be locations where the creation of a CAC is not appropriate due to 
the  large  number  of  applications  and  where  each  Member  State  will  equip  its  own  consular 
post. Member States are not forced to cooperate and participate in a CAC if they do not wish. 
It  is  up  to  the  negotiation  process  among  Member  States  if  and  in  what  form  they  want  to 
cooperate. However, if Member States want to cooperate, they have to use one of the options 
for which the CCI define the legal framework.  

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It is desirable that Member States cooperate and take part in organising CACs or co-location in 
order to improve the common implementation of the VIS.  

The  framework  of  co-operation  including  aspects  such  as  cost  sharing  etc  should  be  agreed 
among  participating  Member  States.  They  should  determine  the  solution  chosen  for  each 
country or region within a third country. A list should be drawn up, indicating these solutions 
for each country or region within a third country, which should be published. This list has to 
be updated regularly.  

Article 2 

In  order  to  examine  the  effectiveness  of  the  establishment  of  CAC's  and  other  forms  of  co-
operation  the  Commission  will  present  a  report  on  the  implementation  of  the  present 
Regulation. 

Article 3 

This is a standard clause. 

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2006/0088 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending the Common Consular Instructions on visas for diplomatic missions and 
consular posts in relation to the introduction of biometrics including provisions on the 
organisation of the reception and processing of visa applications 

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) b) ii) thereof, 

Having regard to the proposal from the Commission1, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty2, 

Whereas: 

(1) 

(2) 

(3) 

To  ensure  reliable  verification  and  identification  of  visa  applicants  it  is  necessary  to 
process  biometric  data  in  the  Visa  Information  System  (VIS)  established  by  Council 
decision  2004/512/EC  of  8  June  20043  and  to  provide  for  a  legal  framework  for  the 
capturing  of  these  biometric  identifiers.  Furthermore,  the  implementation  of  the  VIS 
requires new forms of organisation for the reception of applications for visas. 

The integration of biometric identifiers in the VIS is an important step towards the use 
of new elements, which establish a more reliable link between the visa holder and the 
passport in order to avoid the use of false identities. Therefore the personal appearance 
of  the  visa  applicant  –at  least  for  the  first  application-  should  be  one  of  the  basic 
requirements for issuing a visa with the registration of biometric identifiers in the VIS. 

The  choice  of  the  biometric  identifiers  is  made  in  the  [Regulation  of  the  European 
Parliament and of the Council concerning the Visa Information System (VIS) and the 
exchange of data between Member States on short-stay visas]. This Regulation defines 
the  standards  for  the  collection  of  these  biometric  identifiers  by  referring  to  the 
relevant  provisions  set  out  by  the  International  Civil  Aviation  Organisation  (ICAO). 
No further technical specifications are required in order to ensure interoperability. 

(4) 

In  order  to  facilitate  the  registration  of  visa  applicants  and  to  reduce  the  costs  for 
Member  States  in  addition  to  the  existing  framework  of  “representation”  new 
organisational possibilities need to be envisaged in addition to the existing framework 

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OJ C , , p. . 
OJ C , , p. . 
OJ L 213, p. 15.6.2004, p.5. 

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of  representation.  Firstly  a  specific  type  of  representation  limited  to  the  reception  of 
visa  applications  and  enrolment  of  biometric  identifiers  should  be  added  to  the 
Common Consular Instructions. 

(5) 

Other options such as co-location, common application centres and outsourcing should 
be introduced. An appropriate legal framework for these options should be established, 
taking  into  account  in  particular  data  protection  issues.  Under  the  legal  framework 
established  Member  States  should  be  free  to  determine  which  type  of  organisational 
structure  they  will  use  in  each  third  country.  Details  of  those  structures  should  be 
published by the Commission. 

(6)  When  organising  co-operation,  Member  States  should  ensure  that  the  applicant  is 
directed to the Member State responsible for the processing of his application. 

(7) 

It  is  necessary  to  make  provisions  for  situations  in  which  Member  States’  central 
authorities decide to outsource part of the visa handling process to an external service 
provider.  Such  arrangements  should  be  established  in  strict  compliance  with  the 
general principles for issuing visas, respecting the data protection requirements set out 
in Directive 95/46/EC of the European Parliament  and  of  the  Council  of  24  October 
1995  on  the  protection  of  individuals  with  regard  to  the  processing  of  personal  data 
and on the free movement of such data. 

(8)  Member States shall conclude contracts with external service providers which should 
contain  provisions  on  their  exact  responsibilities,  direct  and  total  access  to  their 
premises; information of applicants, confidentiality and circumstances, conditions and 
procedures for suspending or terminating the contract. 

(9) 

To  ensure  the  compliance  with  data  protection  the  working  group  created  by  Article 
29 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 
1995  on  the  protection  of  individuals  with  regard  to  the  processing  of  personal  data 
and on the free movement of such data and the European Data Protection Supervisor 
have been consulted. 

(10)  Member  States  should  be  able  to  allow  certain  categories  of  applicants  or  all 
applicants  direct  access  to  their  consular  offices  or  diplomatic  missions  for 
humanitarian or other reasons. 

(11) 

In order to facilitate the procedure of any subsequent application, it should be possible 
to  copy  biometric  data  from  the  first  application  within  a  period  of  48  months  in 
accordance  with  the  retention  period  laid  down  in  the  VIS  Regulation.  Once  this 
period of time has elapsed, the biometric identifiers should be captured again 

(12)  Due  to  the  requirement  to  capture  biometric  identifiers,  commercial  intermediaries 
such as travel agencies should no longer be used for the first application but only for 
the subsequent ones. 

(13)  The  Common  Consular  Instructions  on  visas  for  diplomatic  missions  and  consular 

posts should therefore be amended accordingly. 

(14)  The Commission should present a report on the implementation of this Regulation two 
years  after  its  entry  into  force,  covering  the  implementation  of  the  enrolment  of 

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biometric identifiers, the principle of the “first application” and the organisation of the 
reception and the processing of visa applications. 

(15)  The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the 
exclusive competence of the Community. This Regulation does not go beyond what is 
necessary  in  order  to  achieve  the  objectives  pursued  in  accordance  with  the  third 
paragraph of Article 5 of the Treaty. 

(16) 

(17) 

In accordance with the principle of proportionality, it is necessary and appropriate for 
the  achievement  of  the  basic  objective  of  introducing  common  standards  and 
interoperable  biometric  identifiers  to  lay  down  rules  for  all  Member  States 
implementing the Schengen Convention. This Regulation does not go beyond what is 
necessary  in  order  to  achieve  the  objectives  pursued  in  accordance  with  the  third 
paragraph of Article 5 of the Treaty. 

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 shall, 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. 

(18)  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  acquis  which  fall  within  the  area 
referred to in Article 1, point B of Council Decision 1999/437/EC of 17 May 1999 on 
certain arrangements for the application of that Agreement4. 

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

(20)  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). Ireland is therefore not taking part in its adoption and is not 
bound by it or subject to its application. 

(21)  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 

4 

OJ L 176, 10.7.1999, p. 31. 

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association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis which fall within the area referred to in Article 4 (1) of the Council decision on 
the signing, on behalf of the European Community, and on the provisional application 
of certain provisions of this Agreement. 

(22)  This  Regulation  constitutes  an  act  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: 

The Common Consular Instructions on visas for diplomatic missions and consular posts are 
amended as follows: 

Article 1 

(1) 

In Point II, point 1.2 is amended as follows: 

(a) 

In (b) the following paragraph is added: 

"A Member State may also represent one or more other Member States solely 
for the reception of applications and the enrolment of biometric identifiers. The 
relevant  provisions  of  1.2  (c)  and  (e)  shall  apply.  The  reception  and 
transmission of files and data to the represented consular post shall be carried 
out respecting the relevant data protection and security rules".  

(b)  Point (d) is replaced by the following:  

"When uniform visas are issued pursuant to (a) and (b), the representation shall 
be  reflected  in  the  table  of  representation  for  the  issuing  of  uniform  visas  set 
out in Annex 18." 

(2) 

In Point III, point 1 is replaced by the following: 

1.1  Visa application forms-number of application forms 

Aliens  shall  also  be  required  to  fill  in  the  uniform  visa  form.  Applications  for  a 
uniform visa must be made using the harmonised form a specimen of which is given 
in Annex 16. 

At  least  one  copy  of  the  application  form  must  be  filled  in  so  that  it  may  be  used 
during consultation with the central authorities. The Contracting Parties may, insofar 
as  national  administrative  procedures  so  require,  request  several  copies  of  the 
application. 

1.2.  Biometric identifiers 

a)  Member  States  shall  collect  biometric  identifiers  comprising  the  facial  image 
and ten fingerprints from the applicant in accordance with the safeguards laid 
down  in  the  European  Convention  for  the  Protection  of  Human  Rights  and 
Fundamental Freedoms and in the United Nations Convention on the Rights of 
the Child. 

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At  the  moment  of  submission  of  his/her  first  visa  application  each  applicant 
shall  be  required  to  appear  in  person.  At  that  time  the  following  biometric 
identifiers shall be collected: 

– 

– 

a photograph, scanned or taken at the time of application and  

ten fingerprints taken flat and digitally captured.  

For  any  subsequent  application  the  biometric  identifiers  shall  be  copied  from 
the first application, providing the last entry is not older than 48 months. After 
this period a subsequent application is to be considered as a “first application”. 

The technical requirements for the photograph and the fingerprints shall be in 
accordance with the international standards as set out in ICAO document 9303 
part 1 (passports) 6th edition.5  

The biometric identifiers shall be taken by qualified and duly authorised staff 
of  the  diplomatic  mission  or  consular  post  or,  under  their  supervision,  of  the 
external service provider referred to in point 1.B. 

The data shall be entered in the Visa Information System (VIS) only by duly 
authorised consular staff according to Articles 4(1), Article 5 and Article 6(5) 
and (6) of the VIS regulation.  

b) 

Exceptions 

The  following  applicants  shall  be  exempt  from  the  requirement  to  give 
fingerprints: 

– 

– 

Children under the age of 6;  

Persons  where  fingerprinting  is  physically  impossible.  If,  however, 
fingerprinting of less than ten fingers is possible, the respective number 
of fingerprints shall be taken. 

A Member State may provide for exceptions from the requirement of collecting 
biometric  identifiers  for  holders  of  diplomatic  passports,  service/official 
passports and special passports. 

In each of these cases an entry “not applicable” shall be introduced in the VIS. 

(3) 

In Point VII, point 1 is replaced by the following text: 

1 A  Organisation of the reception and processing of visa applications 

Each Member State shall be responsible for organising the reception and processing 
of visa applications.  

5 

The  technical  requirements  are  the  same  as  for  the  passports  delivered  by  Member  States  o  their 
nationals in accordance with Regulation (EC) 2252/2004. 

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For  each  location  Member  States  shall  either  equip  their  consular  office  with  the 
required  material  for  capturing/collecting  biometric  identifiers  or  without  prejudice 
to  the  above  mentioned  options  of  representation,  decide  to  cooperate  with  one  or 
more other Member States. Any cooperation shall take the form of co-location or the 
establishment of a Common Application Centre or co-operation with external service 
providers.  

a)  Where  “co-location”  is  chosen,  staff  from  the  diplomatic  posts  and  consular 
missions  of  one  or  more  Member  States  process  the  applications  (including 
biometric  identifiers)  addressed  to  them  at  the  diplomatic  post  and  consular 
mission  of  another  Member  State  and  share  the  equipment  of  that  Member 
State. The Member States concerned shall agree on the duration and conditions 
for the termination of the co-location as well as the part of the administrative 
fee  to  be  received  by  the  Member  State  whose  diplomatic  post  or  consular 
mission is being used. 

b)  Where  “Common  Application  Centres”:  are  established,  staff  of  diplomatic 
posts and consular missions of two or more Member States are pooled in one 
building  in  order  to  receive  the  visa  applications  (including  biometric 
identifiers) addressed to them. Applicants shall be directed to the Member State 
responsible  for  the  processing  of  the  visa  application.  Member  States  shall 
agree on the duration and conditions for the termination of this co-operation as 
well as the cost sharing among the participating Member States. One Member 
State  shall  be  responsible  for  contracts  in  relation  to  logistics  and  diplomatic 
relations with the host country. 

c) 

Co-operation with external service providers in accordance with 1.B 

1.B  Co-operation with external service providers 

Where  for  reasons  relating  to  the  local  situation  of  the  consular  post  it  is  not 
appropriate to equip the consular office for capturing/collecting biometric identifiers 
or  to  organise  co-location  or  a  Common  Application  Centre.  a  Member  State  or 
several Member States jointly may co-operate with an external service provider for 
the reception of visa applications (including biometric identifiers). In such a case, the 
Member  State(s)  concerned  shall  remain liable  for  compliance  with  data  protection 
rules for the processing of visa applications. 

1.B.1 - Types of co-operation with external service providers  

Cooperation with external service providers shall take [one of] the following form[s]: 

a) 

b) 

the external service provider acts as a call-centre providing general information 
on  the  requirements  for  applying  for  a  visa  and  in  charge  of  the  appointment 
system; 

the external service provider provides general information on the requirements 
for  applying  for  a  visa,  collects  applications,  supporting  documents  and 
biometric data from visa applicants and collects the handling fee (as provided 
for by Part VII, point 4 and Annex 12) and transmits completed files and data 

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to the diplomatic mission or consular post of the Member State competent for 
the processing of the application. 

1.B.2 - Obligations of Member States 

The Member State(s) concerned shall select an external service provider who is able 
to  ensure  all  the  technical  and  organisational  security  measures  and  appropriate 
technical  and  organizational  measures  requested  by  the  Member  State(s)  to  protect 
personal data against accidental or unlawful destruction or accidental loss, alteration, 
unauthorized  disclosure  or  access,  in  particular  where  the  processing  involves  the 
transmission of data over a network as well as the reception and transmission of files 
and data to the consular post, and against all other unlawful forms of processing.  

When  selecting  external  service  providers,  Member  States’  diplomatic  missions  or 
consular posts shall scrutinise the solvency and reliability of the company (including 
necessary  licences,  commercial  registration,  company  statutes,  bank  contracts  and 
shall ensure there is no conflict of interests.  

External  service  providers  shall  not  have  access  to  the  Visa  Information  System 
(VIS)  for  any  purpose.  Access  to  the  VIS  shall  be  reserved  exclusively  to  duly 
authorised staff of diplomatic missions or consular posts.  

The  Member  State(s)  concerned  shall  conclude  a  contract  with  the  external  service 
provider in accordance with Article 17 of Directive 95/46. Before concluding such a 
contract,  the  diplomatic  mission  or  consular  post  of  the  Member  State  concerned 
shall within local consular cooperation inform the diplomatic missions and consular 
posts  of  other  Member  States  and  the  Commission  delegation  why  the  contract  is 
necessary. 

In  addition  to  the  obligations  set  out  in  Article  17  of  Directive  95/46,  the  contract 
shall also contain provisions which: 

a) 

b) 

c) 

d) 

e) 

define the exact responsibilities of the service provider; 

require  the  service  provider  to  act  under  the  instructions  of  the  responsible 
Member States and to process the data only for the purposes of processing of 
personal data of visa applications on behalf of the responsible Member States 
in compliance with Directive 95/46; 

require  the  service  provider  to  provide  the  applicants  with  the  information 
required under Regulation ……. [draft VIS regulation]; 

provide for access by consular staff to the premises of the service provider at 
all times; 

require  the  service  provider  to  observe  rules  of  confidentiality  (including  the 
protection of the data collected in relation to visa applications; 

f) 

contain a suspension and termination clause. 

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The  Member  State(s)  concerned  shall  monitor  implementation  of  the  contract, 
including: 

a) 

b) 

the general information provided by the service provider to visa applicants; 

the  technical  and  organisational  security  measures  and  appropriate  technical 
and  organizational  measures  to  protect  personal  data  against  accidental  or 
unlawful  destruction  or  accidental  loss,  alteration,  unauthorized  disclosure  or 
access,  in  particular  where  the  processing  involves  the  transmission  of  data 
over a network, and against all other unlawful forms of processing as well as 
the reception and transmission of files and data to the consular post; 

c) 

the capturing of biometric identifiers; 

d) 

the measures taken to ensure compliance with data protection provisions. 

The total amount of fees charged by the external service provider for processing the 
visa application shall not exceed the fee set out in annex 12. 

The consular staff of the Member State(s) concerned shall give training to the service 
provider,  corresponding  to  the  knowledge  needed  to  offer  appropriate  service  and 
sufficient information to visa applicants.  

1.B.5 - Information 

Precise information on the means of obtaining an appointment and submitting a visa 
application shall be displayed by Member States’ diplomatic missions and consular 
posts for the general public. 

1.C  Maintenance  of  direct  access  for  applicants  to  Member  States  diplomatic 

missions and consular posts 

Irrespective  of  the  type  of  cooperation  chosen,  Member  States  may  decide  to 
maintain  the  possibility  of  allowing  for  applicants’  direct  access  to  lodge  an 
application  for  a  visa  directly  at  the  premises  of  its  diplomatic  mission  or  consular 
posts. Member States shall assure the continuity of reception and processing of visa 
application,  in  the  event  of  sudden  termination  of  cooperation  with  other  Member 
States or any type of external service provider. 

1.D  Decision and publication 

Member  States  shall  inform  the  Commission  of  how  they  intend  to  organise  the 
reception  and  processing  of  visa  applications  in  each  consular  location.  The 
Commission will ensure appropriate publication. 

Member States shall provide the Commission with the contracts they conclude. 

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(4) 

In point VIII, point 5.2 is amended as follows: 

a) 

the title is replaced by the following: 

5.2.  Member  States’  diplomatic  missions  and  consular  posts’  cooperation 

with commercial intermediaries 

b) 

the following sentence is inserted between the title and point 5.2 (a): 

For  repeated  applications  in  the  sense  of  point  III  1.2,  Member  States  may 
allow their diplomatic missions or consular posts to cooperate with commercial 
intermediaries (i.e. private administrative agencies, transport or travel agencies 
(tour operators and retailers)). 

The Commission shall present a report to the European Parliament and to the Council on the 
implementation of the present regulation two years after its entry into force. 

Article 2 

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

Article 3 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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