Proposal for a Council Regulation amending the Convention Implementing the Schengen Agreement as regards long stay visa and alerts in the Schengen Information System
Date: 2009-02-27
Institutions: European Commission
Subjects: EU visa policy, Schengen Agreement, border control, customs formalities, external border of the EU, foreign national, free movement of persons, information system

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 27.2.2009 
COM(2009) 90 final 

2009/0025 (CNS) 

Proposal for a 

COUNCIL REGULATION 

amending the Convention Implementing the Schengen Agreement as regards long stay 
visa and alerts in the Schengen Information System  

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

Grounds for the proposals 

Current legal situation 

These proposals aim at facilitating the circulation within the Schengen area without internal 
borders of third-country nationals legally residing in one of the Member States1 on the basis 
of a long-stay "D" visa issued by that Member State. 

In  accordance  with  the  current  Schengen  acquis,  a  third-country  national  holding  a  national 
long-stay  visa  ("D  visa")  for  stays  exceeding  three  months  is  allowed  to  stay  only  in  the 
territory  of  the  Member  State  which  issued  the  visa  and,  pursuant  to  Article  18  of  the 
Convention Implementing the Schengen Agreement (the Schengen Convention)2 as amended 
by  Regulation  1091/20013  is  allowed  to  transit  through  the  territories  of  the  other  Member 
States only in order to reach the State which issued the visa.  

Thus,  according  to  present  Community  law,  D  visa  holders  are  not  allowed  to  travel  to  the 
other  Member  States  during  their  stay  and  nor  are  they  allowed  to  transit  through  the  other 
States when returning to their country of origin, as this is not provided for by the Schengen 
Convention. 

The  wording  of  the  above  provision  of  the  Schengen  Convention  stems  from  the  procedure 
generally  applied  at  the  time  by  the  Member  States  whereby  D  visas  are  converted  into  a 
residence permit after arrival on the territory. On the basis of such a residence permit third-
country nationals can then circulate within the Schengen area. For this reason, at the time of 
the  conclusion  of  the  Schengen  Convention  Member  States  did  not  consider  it  necessary  to 
regulate  either  the  circulation  and  the  return  journey  on  the  basis  of  a  D  visa  or  a  second 
transit to the Member State that had issued the D visa. 

Therefore,  the  Schengen  Convention  only  provides  the  principle  of  equivalence  between 
Schengen  residence  permits  and  visas  applicable  in  the  Schengen  area:  a  residence  permit 
issued by a Member State allows a third country national, holding the residence permit and a 
valid travel document, to move freely for up to three months within the territories of the other 
Member States during his/her stay (Article 21 of the Convention).  

Article 5(1)(b) of Regulation (EC) No 562/2006 (Schengen Borders Code)4 also provides for 
the possibility for third country nationals in possession of a valid residence permit issued by a 
Member State to cross the external borders of another Member State without a visa for stays 
not exceeding three months.  

Problems in practice 

More and more Member States do not replace D visas by residence permits after the entry of 
third-country nationals into their territory, or replace them only with considerable delays. This 

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Within the context of the present proposal, the notion "Member States" shall mean EU Member States 
fully implementing the Schengen acquis 
OJ L239, 22.9.2000, p. 1. 
OJ L150, 6.6.2001, p. 4. 
OJ L105, 13.4.2006, p. 1. 

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legal and practical situation has important negative consequences regarding the circulation in 
the Schengen area for third-country nationals legally staying in a Member State on the basis 
of a D visa. Since such persons have to continue to reside holding a D visa, they can legally 
neither travel for different, legitimate purposes (e.g. business, conferences, visits) to the other 
Member  States  during  their  stay,  nor  transit  through  the  territories  of  the  other  States  when 
returning to their country of origin. 

D+C visa - Regulation 1091/2001 

In order to partly remedy the situation of delays in issuing residence permits after arrival, the 
D+C  visa  was  introduced  in  2001  (Regulation  1091/20015  based  on  a  French  initiative), 
providing the possibility for holders of a long-stay D visa issued by a Member State to move 
freely  in  the  Schengen  area  during  the  first  three  months  of  the  period  of  validity  of  the  D 
visa, on the condition that the visa has been issued according to the Schengen rules valid for 
short-stay visas (including checking against the list of non-admissible third-country nationals 
in the Schengen Information System (SIS)).  

Nevertheless, in practice it appears that most Member States either do not issue D+C visas at 
all or only issue very small numbers. It has also been noted on numerous occasions that there 
is little or no knowledge at all among consular staff about this type of visa or the conditions 
under  which  it  can  be  issued,  and  thus  applicants  are  not  informed  of  this  possibility. 
Moreover,  it  has  been  established  that  in  many  cases  the  national  visa  registration  and 
processing programmes do not even allow for the possibility of considering applications for 
such a visa or the printing of the visa sticker. At the same time, a number of Member States 
allow  their  diplomatic  missions  and  consular  posts  to  directly  issue  residence  permits,  thus 
rendering the D+C visa superfluous.  

Moreover, once the period of three months from the initial date of validity of the D+C visa 
has expired, the holders – by then legally present on the territory of the Member State which 
issued the visa – are no longer allowed to circulate within the entire territory of the Member 
States if in the meantime this D+C visa would not have been replaced by a residence permit.  

These  people,  subject  to  the  short-stay  visa  requirement  in  accordance  with  Council 
Regulation (EC) No 539/20016, are then required to apply for a separate short-stay C visa in 
the State of their residence in order to travel to another Member State. However, in practice 
some  Member  States  refuse  to  issue  Schengen  visas  to  persons  already  staying  in  the 
Schengen area. Furthermore, according to certain Member States' interpretation, these third-
country  nationals  are  no  longer  in  a  position  to apply  for  an  additional  short-stay  Schengen 
visa  during  these  six  months,  as  they  already  have  stayed  in  the  Schengen  area  for  three 
months on the basis of the D+C visa. Following the same reasoning, when these third-country 
nationals holding a D+C or D visa return to their home country, they may not be allowed to 
travel through the other Member States, as the 90 days period of permitted stay during a six 
month-period has already expired.  

Based  on  the  above  mentioned  observations,  the  Commission  -  in  its  proposal  for  a 
Regulation establishing a Community Code on visas7 - proposed to abolish the D+C visa in 
order  to  simplify  matters  and  require  Member  States  to  speed  up  the  issuance  of  residence 

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OJ L150, 6.6.2001, p. 4. 
OJ L81, 21.3.2001, p. 1. 
COM(2006) 403 final. 

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permits to third-country nationals.  

However, most Member States – for various reasons – do not seem to be willing or able to 
issue residence permits in time to third-country nationals residing in their territory. Therefore, 
the Commission proposes the introduction of the principle of equivalence between long-stay 
and short-stay visas issued by the Member States fully implementing the Schengen acquis in 
order to overcome the present problems encountered by third-country nationals legally staying 
in a Member State with a long-stay visa. 

The  introduction  of  the  equivalence  between  D  and  C  visas  was  first  considered  by  some 
Member  States  and  the  Commission  during  the  discussions  of  the  informal  Visa  Working 
Party in Ljubljana on 21-22 January 2008 and was also further conferred in the Visa Working 
Party on 26-27 March 2008 during the discussions on the Community Code on Visas in the 
context of the abolition of D+C visas. 

The  present  proposals  are  also  inspired  by  a  number  of  complaints  and  questions  received 
from the Member  States and  from third-country nationals staying in  a Member State on the 
basis of a D+C or a D visa.  

The obligation to issue residence permits  

These proposals do not aim at encouraging Member States not to issue residence permits and 
to let third-country nationals stay on the basis of a long-stay visa. On the contrary, this would 
not be in line with a number of Directives imposing to Member States the obligation to issue 
residence permits to certain categories of third-country nationals. 

According  to  Council  Directive  2005/71/EC8  on  a  specific  procedure  for  admitting  third-
country nationals for the purposes of scientific research, the decision on the application for a 
residence  permit  shall  be  adopted  as  soon  as  possible,  and  where  appropriate,  in  an 
accelerated procedure.  

Council Directive 2004/114/EC9 on the conditions of admission of third-country nationals for 
the purposes of studies, pupil exchange, unremunerated training or voluntary service provides 
for  the  obligation  to  issue  residence  permits  to  the  students  covered  by  this  Directive  for  a 
period of at least one year (which is renewable) or at least for the duration of the course if that 
is  shorter  than  one  year.  The  decision  on  such  an  application  shall  be  adopted  and  the 
applicant shall be notified of it within a period that does not hamper the pursuit of the relevant 
studies.  Moreover,  fast-track  procedures  for  issuing  residence  permits  or  visas  for  students 
can be established by agreements between the educational establishments and the authorities 
of the Member States responsible for entry and residence issues. 

Council  Directive  2003/86/EC10  on  the  right  to  family  reunification  also  sets  out  the 
obligation  of  the  issuance  of  a  residence  permit  of  at  least  one  year's  duration  to  family 
members of third-country nationals already legally residing in the territory of a Member State.  

Based  on  Directive  2004/38/EC11  on  the  right  of  citizens  of  the  Union  and  their  family 
members to move and reside freely within the territory of the Member States, family members 

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OJ L289, 3.11.2005, p. 15. 
OJ L375, 23.12.2004, p. 12. 
OJ L251, 3.10.2003, p. 12. 

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of EU nationals residing with the Union citizen longer than three months in another Member 
State  different  from  that  of  the  home  country  of  the  Union  citizen  should  be  issued  with  a 
residence  card  no  later  than  six  months  from  the  date  of  application.  A  certificate  of 
application for the residence card shall be issued immediately.  

Council  Directive  2003/109/EC12  on  long-term  residents  is  also  relevant  given  that  a  long-
term  resident  has  the  right  –  under  certain  circumstances  –  to  reside  in  the  other  Member 
States which have to issue to such a third-country national a residence permit at the latest six 
months after the application.  

These rules would not be affected by the proposals. 

Content of the proposals 

The  present  proposals  extend  the  principle  of  equivalence  between  a  residence  permit  and 
short-stay visas to long-stay D visas; hence a long-stay visa would have the same effects as a 
residence permit as regards circulation in the Schengen area.  

A third-country national holding a long-stay D visa issued by a Member State could travel to 
the other Member States for three months in any half year, under the same conditions as the 
holder  of  a  residence  permit.  The  rules  regarding  the  issuance  of  long-stay  visas  remain 
unchanged  as  it  was  the  case  with  the  rules  on  the  issuance  of  residence  permits  when  the 
principle  of  equivalence  between  a  residence  permit  and  a  short-stay  visa  was  introduced. 
This  would  restore  the  basic  philosophy  underlying  the  Schengen  area  without  internal 
borders,  i.e.  that  a  person  can  travel  around  in  the  Schengen  area  for  short  stays  for  three 
months  in  any  half  year  with  the  document  on  the  basis  of  which  he  is  legally  present  in  a 
Member State. 

Drawn  up  on  the  legal  basis  of  Articles  62  (2)(a)  and  (3)  and  63  (3)(a)  of  the  TEC,  the 
proposed Regulations will amend: 

•  Articles  18,  21  and  25  of  the  Convention  Implementing  the  Schengen  Agreement  of  14 
June  1985  (between  the  Governments  of  the  States  of  the  Benelux  Economic  Union,  the 
Federal Republic of Germany and the French Republic on the gradual abolition of checks 
at their borders);  

•  Article  5(1)(b)  of  Regulation  (EC)  No  562/2006  of  the  European  Parliament  and  of  the 
Council  of  15  March  2006  establishing  a  Community  Code  on  the  rules  governing  the 
movement of persons across borders (Schengen Borders Code), on the entry conditions for 
third-country nationals.  

Due  to  the  conflicting  decision  making  procedures  attached  to  the  different  legal  basis,  the 
Commission had to draw up two separate proposals: 

•  The Proposal for a Regulation of the European Parliament and of the Council amending the 
Convention Implementing the Schengen Agreement and Regulation (EC) No 562/2006 as 
regards movement of persons with a long-stay visa is based on Article 62 (2)(a) and (3) of 
the TEC and shall be adopted in accordance with the co-decision procedure. 

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OJ L229, 29.6.2004, p. 35. 
OJ L16, 23.1.2004, p. 44. 

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•  The  Proposal  for  a  Council  Regulation  amending  the  Convention  Implementing  the 
Schengen  Agreement  as  regards  long  stay  visa  and  alerts  in  the  Schengen  Information 
System is based on Articles 63 (3)(a) of the TEC and shall be adopted at unanimity in the 
Council after consulting the European Parliament.  

The proposals were drawn up with regard to the present text of the proposal for a Regulation 
of the European Parliament and of the Council establishing a Community Code on visas (Visa 
Code),  which  will  repeal  the  provisions  on  D+C  visa.  The  Visa  Code  is  presumed  to  be 
adopted  by  the  time  of  the  adoption  of  these  Regulations.  The  date  of  application  of  these 
Regulations should be aligned with the application of the Visa Code (six months after its entry 
into force).  

Security aspects 

Article 25 of the Convention obliges Member States considering the issuance of a residence 
permit  to  a  third-country  national  to  consult  the  SIS.  In  case  the  third-country  national 
concerned is a person for whom an alert has been issued for the purpose of refusing entry, the 
Member  State  shall  first  consult  that  Member  State  which  issued  the  alert  and  shall  take 
account of its interests. In such cases the residence permit shall be issued only for substantive 
reasons,  notably  on  humanitarian  grounds  or  by  reason  of  international  commitments. 
Similarly, in case an alert for the purpose of refusing entry has been issued for a third-country 
national  who  already  holds  a  residence  permit  issued  by  another  State,  the  Member  State 
issuing  the  alert  shall  consult  the  other  Member  State  which  issued  the  residence  permit  in 
order to determine whether there are sufficient reasons for withdrawing the residence permit.  

This  Article  will  be  amended  by  the  Proposal  for  a  Council  Regulation  amending  the 
Convention Implementing the Schengen Agreement as regards long stay visa and alerts in the 
Schengen  Information  System  by  adding  a  reference  with  the  effect  that  the  obligation  to 
consult  the  SIS  and  the  other  Member  States  in  case  of  an  alert  would  also  apply  when 
Member States consider the issuance of a long-stay visa to a third-country national or when 
Member States discover an alert which has been issued to a third-country national who holds 
a valid long-stay visa. 

The  requirement  to  consult  the  SIS  when  processing  the  long-stay  visa  applications  will 
ensure  the  same  control  over  long-stay  visa  applicants  as  the  existing  one  applicable  for 
holders  of  a  residence  permit  issued  by  a  Member  State.  Thus,  the  free  circulation  of  the 
holders  of  a  long-stay  visa  in  the  other  Member  States  will  not  constitute  any  additional 
security risk for Member States compared to the holders of Schengen residence permits and 
short-stay visas.  

Moreover, according to the knowledge of the Commission, long-stay visas are issued by the 
Member States by using the highly-secured uniform format for short-stay visas as set out in 
Council  Regulation  (EC)  No  1683/95  of  29  May  1995  laying  down  a  uniform  format  for 
visas13. 

2009/0025 (CNS) 

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OJ L 164, 14.7.1995, p. 1 

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Proposal for a 

COUNCIL REGULATION 

amending the Convention Implementing the Schengen Agreement as regards long stay 
visa and alerts in the Schengen Information System 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
63 (3)(a) thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

This  Regulation,  by  amending 
the  Schengen 
Agreement14,  re-defines  the  long-stay  visa  and  sets  out  measures  complementing 
Regulation No …/… of the European Parliament and of the Council of […] amending 
the  Convention  Implementing  the  Schengen  Agreement  and  Regulation  (EC)  No 
562/2006 as regards movement of persons with a long-stay visa. 

the  Convention  Implementing 

Based  on  the  current  practice  followed  by  the  Member  States,  this  Regulation 
establishes the obligation for Member States to issue the long-stay visas in the uniform 
format for visas as set out in Council Regulation (EC) No 1683/95. 

The  rules  on  consultation  of  the  Schengen  Information  System  and  of  the  other 
Member  States  in  case  of  an  alert  when  processing  an  application  for  a  residence 
permit  should  also  apply  to  the  processing  of  long-stay  visa  applications.  Therefore, 
the  free  movement  of  holders  of  a  long-stay  visa  in  the  other  Member  States  should 
not constitute any extra security risk for Member States. 

Since  the  objective  of  this  Regulation,  namely  the  establishment  of  the  rules  on  the 
long-stay  visa  and  alerts  in  the  Schengen  Information  System,  cannot  be  sufficiently 
achieved  by  the  Member  States  and  can  therefore  be  better  achieved  at  Community 
level,  the  Community  may  adopt  measures,  in  accordance  with  principle  of 
subsidiarity  as  set  out  in  Article  5  of  the  Treaty.  In  accordance  with  principle  of 
proportionality, as set out in that Article, this Regulation does not go beyond what is 
necessary in order to achieve those objectives. 

(5) 

This Regulation respects the fundamental rights and observes the principles recognised 
in particular by the Charter of Fundamental Rights of the European Union. It should 

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OJ L 239, 22.9.2000, p. 1. 

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(6) 

(7) 

(8) 

(9) 

be applied in accordance with the Member States' obligations as regards international 
protection and non-refoulement. 

This Regulation constitutes a development of the Schengen acquis, in accordance with 
the  Protocol  integrating  the  Schengen  acquis  into  the  framework  of  the  European 
Union,  as  defined  in  Annex  A  to  Council  Decision  1999/435/EC15  of  20  May  1999 
concerning  the  definition  of  the  Schengen  acquis  for  the  purpose  of  determining,  in 
conformity  with  the  relevant  provisions  of  the  Treaty  establishing  the  European 
Community  and  the  Treaty  on  European  Union,  the  legal  basis  for  each  of  the 
provisions or decisions which constitute the acquis. 

As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of  the 
provisions of the Schengen acquis within the meaning of the Agreement concluded by 
the Council of the European Union and the Republic of Iceland and the Kingdom of 
Norway  concerning  the  latters'  association  with  the  implementation,  application  and 
development of the Schengen acquis, which falls within the area referred to in Article 
1(B) of Council Decision 1999/437/EC16 of 17 May 1999 on certain arrangements for 
the application of that Agreement. 

As regards Switzerland, this Regulation constitutes a development of the provisions of 
the  Schengen  acquis,  within  the  meaning  of  the  Agreement  concluded  between  the 
European Union, the European Community and the Swiss Confederation on the Swiss 
Confederation's association with the implementation, application and development of 
the Schengen acquis17, which falls within the area referred to in Article 1(B) and (C) 
of  Council  Decision  1999/437/EC,  read  in  conjunction  with  Article  3  of  Council 
Decision 2008/146/EC18 of 28 January 2008.  

As regards Liechtenstein, this Regulation constitutes a development of the provisions 
of  the  Schengen  acquis,  within  the  meaning  of  the  Protocol  signed  between  the 
European  Union,  the  European  Community,  the  Swiss  Confederation  and  the 
Principality  of  Liechtenstein  on  the  accession  of  the  Principality  of  Liechtenstein  to 
the Agreement between the European Union, the European Community and the Swiss 
Confederation  on  the  Swiss  Confederation's  association  with  the  implementation, 
application  and  development  of  the  Schengen  acquis,  which  falls  within  the  area 
referred  to  in  Article  1(B)  and  (C)  of  Council  Decision  1999/437/EC,  read  in 
conjunction with Article 3 of Council Decision 2008/261/EC19 of 28 February 2008.  

(10) 

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 
this Regulation whether it will implement it in its national law. 

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OJ L?? 
OJ L176, 10.7.1999, p. 31. 
OJ L53, 27.2.2008, p.52.  
OJ L53, 27.2.2008, p. 1. 
OJ L83, 26.3.2008, p. 3. 

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(11) 

In  accordance  with  Article  1  of  the  Protocol  on  the  position  of  the  United  Kingdom 
and Ireland annexed to the Treaty on European Union and to the Treaty establishing 
the European Community, the United Kingdom and Ireland are not taking part in the 
adoption  of  this  Regulation  and  consequently,  without  prejudice  to  Article  4  of  the 
said Protocol, are not bound by it or subject to its application.  

(12)  As  regards  the  Member  States  not  yet  fully  implementing  the  Schengen  acquis,  this 
Regulation constitutes provisions building on the Schengen acquis or otherwise related 
to it within the meaning of Article 3 (2) of the 2003 Act of Accession and Article 4 (2) 
of the 2005 Act of Accession. 

HAS ADOPTED THIS REGULATION: 

The Convention Implementing the Schengen Agreement is amended as follows: 

Article 1 

(1) 

Article 18 is replaced by the following: 

" Article 18 

Visas for stays exceeding three months shall be national visas issued by one of the Member 
States in accordance with its national law or Community law. Such visas shall be issued in the 
uniform format for visas as set out in Council Regulation (EC) No 1683/95 of 29 May 1995 
laying down a uniform format for visas20 with the heading specifying the type of the visa with 
the letter "D"." 

(2) In Article 25, paragraph 3 is added: 

"3. Paragraphs 1 and 2 shall apply also in case of long-stay visas." 

Article 2 

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

It  shall  be  applicable  from  the  date  of  application  of  the  Regulation  (EC)  No  …/…  of  the 
European  Parliament  and  of  the  Council  of  […]  establishing  a  Community  Code  on  visas 
(Visa Code).  

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OJ L 164, 14.7.1995, p. 1 

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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 Brussels,  

For the Council 
The Presiden 

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