Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of the proposal for a Regulation of the European Parliament and of the Council amending the Common Consular Instructions on visas for diplomatic and consular posts in relation to the introduction of biometrics, including provisions on the organisation of the reception and processing of visa applications
Date: 2009-03-06
Institutions: European Commission
Subjects: EU Member State, EU visa policy, admission of aliens, biometrics, consulate, data protection, information system, legal basis

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 6.3.2009 
COM(2009) 109 final 

2006/0088 (COD) 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of the proposal for a Regulation of the 
European Parliament and of the Council amending the Common Consular Instructions 
on visas for diplomatic 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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2006/0088 (COD) 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of the proposal for a Regulation of the 
European Parliament and of the Council amending the Common Consular Instructions 
on visas for diplomatic and consular posts in relation to the introduction of biometrics, 
including provisions on the organisation of the reception and processing of visa 
applications 

1. 

BACKGROUND  

Date of transmission of the proposal to the EP and the Council 
(COM ([2006]) [269] final - COD [2006]/[0088]): 

31 May 2006 

Date of the opinion of the European Parliament at first reading: 

9 July 2008 

Date of adoption of the common position: 

5 March 2009 

2. 

PURPOSE OF THE COMMISSION'S PROPOSAL 

The  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 
establish  a  legal  framework  for  the  organisation  of  Member  States'  consular  offices  and 
cooperation between them with a view to the implementation of the Visa Information System 
(VIS).  

3. 

COMMENTS ON THE COMMON POSITION 

The Council's common position incorporates the elements of the compromise reached by the 
European  Parliament  and  the  Council  after  the  discussions  that  followed  Parliament's 
adoption  of  its  opinion  at  first  reading  on  9  July  2008  and  the  political  trialogue  of  2 
December 2008.  

This common position essentially preserves the key objectives of the Commission's original 
proposal.  It  takes  into  account  the  principal  amendments  adopted  by  Parliament  at  first 
reading,  which  supplement  and  clarify  the  legal  framework  for  organising  Member  States' 
consular  offices  and  cooperation  between  them  for  the  purpose  of  receiving  and  processing 
visa applications. 

The  main  differences  of  substance  between  the  common  position  and  the  original 
Commission proposal are as follows: 

- The age limit for taking fingerprints 

Whereas  the  Commission  had  originally  proposed  taking  fingerprints  from  visa  applicants 
aged six and over, the text of the common position provisionally sets a minimum age of 12, 

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which will be re-examined in the light of the findings of the study that the Commission has 
undertaken to carry out at Parliament's request. 

- The use of external service providers for the reception of visa applications  

Clarification  was  provided  concerning  the  special  conditions  in  which  Member  States  may 
use such external service providers and the minimum requirements that must be included in 
the  legal  instruments  establishing  ties  between  the  Member  States  and  the  external  service 
providers.  

In exchange for maintaining direct access to the consular offices, the possibility of charging 
visa  applicants  an  extra  fee  has  been  introduced,  regardless  of  the  exemptions  from  fees 
provided for in Annex 12 to the Common Consular Instructions. The extra fee should be in 
proportion  to  the  costs  incurred  by  the  external  service  provider  in  performing  the  tasks 
assigned  to  it,  and  an  effort  should  be  made  to  harmonise  it  as  part  of  local  consular 
cooperation.  It  may  not  be  more  than  half  the  fee  laid  down  in  Annex  12  to  the  Common 
Consular Instructions.  

- The use of honorary consuls  

The text of the common position allows honorary consuls to be used for the reception of visa 
applications,  including  collecting  biometric  data.  Honorary  consuls,  who  do  not  have  the 
status of a civil servant of the Member State they represent, will be subject to the same rules 
as apply to external service providers.  

- Secure data transmission  

Provisions lay down the legal and practical arrangements for the secure transmission of data 
between  Member  States  or  between  external  service  providers  and  Member  States, 
particularly in third countries where data encryption is not allowed.  

The  proposed  wording  introduces  important  data  protection  guarantees  and  confirms  the 
Member States' responsibility in this regard. 

Other  Parliamentary  amendments  concerning  drafting  changes  to  improve  the  text  are  also 
taken over. 

4. 

CONCLUSIONS 

The  Commission  accepts  the  common  position,  which  incorporates  and  complements  the 
main elements of its original proposal and the principal amendments adopted by the European 
Parliament.  

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