Proposal for a Regulation of the European Parliament and of the Council of the European Union amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders of Member States and those whose nationals are exempt from that requirement
Date: 2010-05-27
Institutions: European Commission
Subjects: EU visa policy, Schengen Agreement, admission of aliens, external border of the EU, foreign national

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EUROPEAN COMMISSION 

Brussels, 27.5.2010 
COM(2010)256 final 

2010/0137 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF  
THE COUNCIL OF THE EUROPEAN UNION 

amending Regulation (EC) No 539/2001 listing the third countries whose nationals must 
be in possession of visas when crossing the external borders of Member States and those 
whose nationals are exempt from that requirement 

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EXPLANATORY MEMORANDUM 

1. 

Context of the proposal 

In  proposing  this  amendment  to  Regulation  (EC)  No  539/20011  as  last  amended  by 
Regulation  (EC)  No  1244/20092,  the  Commission  is  pursuing  the  objective  of  adjusting  the 
annexes  to  the  Regulation,  taking  into  consideration  the  progress  made  in  the  visa 
liberalisation  dialogues  with  Albania  and  Bosnia  and  Herzegovina  during  the  last  seven 
months and transferring these two  countries from Annex  I  (the  list of third countries whose 
nationals must be in possession of visas when crossing the external borders of Member States) 
to  the  Annex  II  (the  list  of  those  third  countries  whose  nationals  are  exempt  from  that 
requirement) of the Regulation; this transfer is in line with the political commitment taken by 
the  European  Union  on  the  liberalisation  of  the  short-stay  visa  requirement  for  all  Western 
Balkan citizens as part of the Thessaloniki agenda. 

General context and grounds for the proposal 

In accordance with Article 62 (2) (b) (i) of the Treaty Establishing the European Community, 
the  Council  has  adopted  Council  Regulation  (EC)  No  539/2001  listing  the  third  countries 
whose  nationals  must  be  in  possession  of  visas  when  crossing  the  external  borders  (the  so-
called  negative  list)  and  those  whose  nationals  are  exempt  from  that  requirement  (the  so-
called positive list). Article 61 of the EC Treaty cited those lists among the flanking measures 
which are directly linked to the free movement of persons in an area of freedom, security and 
justice. 

The determination of those third countries whose nationals are subject to the visa requirement, 
and those exempt from it, is governed by a considered, case-by-case assessment of a variety 
of  criteria  relating  inter  alia  to  illegal  immigration,  public  policy  and  security,  and  to  the 
European Union's external relations with third countries, consideration also being given to the 
implications of regional coherence and reciprocity. In view of the criteria of public order and 
illegal  immigration,  particular  attention  should  be  paid  also  to  the  security  of  travel 
documents issued by the third countries concerned. 

As  the  criteria  set  out  in  Regulation  (EC)  No  539/2001  can  evolve  over  time  in  relation  to 
third  countries,  the  composition  of  the  negative  and  positive  lists  should  be  reviewed  when 
appropriate. 

Regulation (EC) No 539/2001 has been amended most recently with regard to the outcome of 
the visa liberalisation dialogues by transferring the former Yugoslav Republic of Macedonia, 
Montenegro and Serbia to the positive list. 

The present review of the Regulation aims at ensuring that the composition of the lists of third 
countries  complies  with  the  criteria  set  out  in  recital  (5)  of  the  Regulation  in  the  light  of 
progress  achieved  by  Albania  and  Bosnia  and  Herzegovina  in  the  framework  of  their 
respective visa liberalisation dialogues. 

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OJ L 81, 21.3.2001, p. 1. 
OJ L 336, 18.12.2009, p. 1. 

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2. 

Elements of the proposal 

Since the Thessaloniki Summit in June 2003, the European Union reaffirmed several times its 
political commitment towards visa  liberalisation  for  the  Western Balkan countries, stressing 
that this goal is linked to the progress made by the countries concerned in implementing major 
reforms  in  areas  such  as  the  strengthening  of  the  rule  of  law,  combating  organised  crime, 
corruption  and  illegal  migration  and  the  strengthening  of  their  administrative  capacity  in 
border control and security of documents. As a first concrete step towards the establishment 
of  a  visa-free  travel  regime,  the  European  Union  concluded  in  2007  Visa  Facilitation 
Agreements  with  Albania,  Bosnia  and  Herzegovina,  the  former  Yugoslav  Republic  of 
Macedonia,  Montenegro  and  Serbia3  (in  parallel  with  readmission  agreements)  and  started 
structured  dialogues  on  visa  liberalisation  based  on  detailed  roadmaps  setting  clear 
benchmarks  to  be  met  by  the  five  countries  in  the  region  in  order  to  gradually  advance 
towards visa liberalisation. 

This  result-oriented  visa-free  dialogue  was  formally  launched  with  Albania  in  March  2008 
and  with  Bosnia  and  Herzegovina  in  May  2008;  it  was  based  on  tailor-made  roadmaps 
established by the Commission in agreement with the Member States and in consultation with 
the  respective  country.  In  particular,  the  roadmaps  were  divided  into  four  sets  of  issues: 
document security, illegal immigration, public order and security as well as external relations 
items linked to the movement of persons. 

In  its  proposal  dated  15  July  20094  the  Commission  presented  in  detail  the  methodology 
followed  in  the  visa  liberalisation  process  followed  for  the  Western  Balkan  countries  and 
proposed  to  transfer  from  the  negative  to  the  positive  list  the  former  Yugoslav  Republic  of 
Macedonia,  Montenegro  and  Serbia.  Based  on  the  Commission  proposal  and  after 
consultation of the European Parliament, the Council decided on 30 November 2009 to lift the 
visa obligation on citizens of the former Yugoslav Republic of Macedonia, Montenegro and 
Serbia from 19 December 2009. 

Regarding Albania and Bosnia and Herzegovina it was considered that despite the important 
progress  made  a  series  of  benchmarks  were  still  open.  In  a  joint  Declaration  adopted  in 
November 2009, the European Parliament and the Council underlined their political support 
for a quick abolition of the visa regime for the citizens of these two countries and urged the 
authorities of Albania and Bosnia and Herzegovina to intensify efforts to comply with all the 
benchmarks set out in the Commission's roadmaps. 

In  addition,  the  European  Parliament  and  the  Council  invited  the  Commission  to  present  a 
legislative proposal for amending the Regulation (EC) No 539/2001 as soon as it has assessed 
that  each  country  meets  the  benchmarks  of  the  roadmaps,  and  took  the  commitment  to 
examine the Commission proposal as a matter of urgency. 

In this context, the Commission continued since November 2009 to ensure a close monitoring 
of the visa liberalisation process for Albania and Bosnia and Herzegovina. Based on detailed 
readiness reports provided by these two countries and on the results of a six expert missions 

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See  the  preamble  of  these  agreements  :  with  Albania  (OJ  L  334,  19.12.2007,  p.  85),  Bosnia  and 
Herzegovina  (OJ  L 334,  19.12.2007,  p. 97),  the former  Yugoslav  Republic of  Macedonia  (OJ  L 334, 
19.12.2007,  p.  125),  Montenegro  (OJ  L  334,  19.12.2007,  p.  169)  and  Serbia  (OJ  L  334,  19.12.2007, 
p. 109). 
COM(2009)366 final 

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conducted  between  December  2009  and  February  2010  (in  which  Member  States’  experts 
were actively involved), the Commission presented in April 2010 to the European Parliament 
and the Council, before transmission to the countries concerned, its assessment of the progress 
made by these two countries in the implementation of the remaining open benchmarks of the 
roadmaps towards visa liberalisation. 

When presenting these assessments, the Commission announced its intention to undertake for 
all Western Balkan countries appropriate monitoring, after the lifting of the visa requirement, 
on  the  effective  and  sustainable  implementation  of  the  measures  taken  by  these  countries 
within the framework of the visa liberalisation process. 

The  assessment  reports  for  Albania  and  Bosnia  and  Herzegovina  were  presented  to  the 
respective authorities of Albania and Bosnia and Herzegovina on 6 May 2010. 

In  particular,  the  assessment  reports  concluded  that  Albania  and  Bosnia  and  Herzegovina 
made important progress and only a very limited number of benchmarks remain open. 

The  present  proposal  reflects  the  outcome  of  the  above-mentioned  process:  taking  into 
account also, that the Visa Facilitation and Readmission Agreements with these two countries 
are been implemented in a satisfactory way, the Commission proposes to transfer Albania and 
Bosnia  and  Herzegovina,  which  are  very  close  to  meeting  all  the  benchmarks,  from  the 
negative to the positive list, it being understood that by the day of adoption of the proposal by 
the European Parliament and the Council, these countries should fulfil all benchmarks. 

Considering  the  introduction  of  biometric  passports  by  the  Western  Balkan  countries  as  an 
element  of  fundamental  importance  for  the  successful  completion  of  the  regional  visa 
liberalisation  process  and  as  in  Regulation  (EC)  No  1244/2009,  the  present  proposal,  for 
reasons relating to security and prevention of illegal migration, limits the visa waiver for the 
citizens of Albania and Bosnia and Herzegovina to those persons holding the new biometric 
passports issued by these countries.  

3. 

Next Steps 

In parallel with the examination of its proposal in the European Parliament and the Council, 
the  Commission  will  continue  to  assess  the  implementation  of  the  open  benchmarks  for 
Albania and Bosnia and Herzegovina and it will share its assessment in a timely manner with 
the European Parliament and the Council. 

For Albania, the remaining open benchmarks relate to: 

–  the development of a strategy and policy to support the reintegration of Albanian returnees; 

–  the strengthening of capacities of law enforcement and the effective implementation of the 
legal framework for the fight against organised crime and corruption, including through the 
allocation of adequate human and financial resources;  

–  the  effective  implementation  of  the  legal  framework  in  the  area  of  the  confiscation  of 

organised crime assets. 

For Bosnia and Herzegovina, the remaining open benchmarks relate to: 

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–  the strengthening of capacities of law enforcement and the effective implementation of the 
legal framework for the fight against organised crime and corruption, including through the 
allocation of adequate human and financial resources;  

–  the  progressive  implementation  of  the  action  plan  from  March  2010  on  establishment  of 

electronic data exchange between police and prosecution bodies ; 

–  the harmonisation of the criminal codes of the entity level and Brcko district with the state-

level criminal code. 

As in Regulation (EC) No 1244/2009, there is no reason to condition the implementation of 
the  visa  waiver  for  Albania  and  Bosnia  and  Herzegovina  on  the  conclusion  of  visa  waiver 
agreements with the EU, taking into account the European vocation of these two countries and 
the fact that they have already exempted all EU citizens from the visa requirement. 

4. 

Main organisations/experts consulted 

Member States were consulted. 

5. 

Impact assessment 

Not necessary. 

6. 

Legal basis 

In view of the TFEU, this proposal constitutes a development of the common visa policy in 
accordance with Article 77 (2) (a) of the TFEU.  

7. 

Proportionality and subsidiarity principles 

Regulation (EC) No 539/2001 lists the third countries whose nationals must be in possession 
of  visas  when  crossing  the  external  borders  (the  negative  list)  and  those  whose  national  are 
exempt from that requirement (the positive list). 

The decision to change the lists, to transfer countries from the negative to the positive list or 
vice versa falls within the exclusive competence of the European  Union in accordance with 
Article 77 (2) (a) of the TFEU. 

8. 

Choice of instruments 

Regulation (EC) No 539/2001 is to be amended by a Regulation. 

9. 

Budgetary implication 

The proposed amendment has no implication on the European Union budget. 

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2010/0137 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF  
THE COUNCIL OF THE EUROPEAN UNION 

amending Regulation (EC) No 539/2001 listing the third countries whose nationals must 
be in possession of visas when crossing the external borders of Member States and those 
whose nationals are exempt from that requirement 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  functioning  of  the  European  Union,  and  in  particular 
Article 77(2)(a) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the National Parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  composition  of  the  lists  of  third  countries  in  Annexes  I  and  II  to  Council 
Regulation  (EC)  N°  539/20015  should  be,  and  should  remain,  consistent  with  the 
criteria  laid  down  in  recital  5  thereto.  Third  countries  for  whom  the  situation  has 
changed as regards these criteria, should be transferred from one Annex to the other. 

In  line  with  the  political  commitment  taken  by  the  European  Union  on  the 
liberalisation of the short term visa requirement for the citizens of all Western Balkan 
countries as part of the Thessaloniki agenda and taking into consideration the progress 
made  since  December  2009  in  the  visa  liberalisation  dialogues  with  Albania  and 
Bosnia and Herzegovina, the Commission considers that these two countries have met 
the large majority of the benchmarks of their respective roadmaps. 

Therefore  Albania  and  Bosnia  and  Herzegovina  [meeting  all  the  benchmarks  by  the 
date  of  adoption  of  the  present  Regulation],  should  be  transferred  to  Annex  II  of 
Regulation  (EC)  No  539/2001.  This  visa  waiver  should  only  apply  to  holders  of 
biometric passports issued by each of these two countries. 

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 acquis6, which falls within the area referred to in Article 

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OJ L 81, 21.3.2001, p. 1.  
OJ L 176, 10.7.1999, p. 36. 

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(5) 

(6) 

(7) 

(8) 

(9) 

1,  point  (B),  of  Council  Decision  1999/437/EC  of 17 May 1999  on  certain 
arrangements for the application of that Agreement7.  

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 acquis8, which fall within the area referred to in Article 1, point (B) and 
(C), of Council Decision 1999/437/EC read in conjunction with Article 3 of Council 
Decision 2008/146/EC9. 

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  fall  within  the  area 
referred to in Article 1, points (B) and (C) of Council Decision 1999/437/EC read in 
conjunction with Article 3 of Council Decision 2008/261/EC10.  

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 acquis11; the United Kingdom is therefore not taking part in its adoption and 
is not bound by it or subject to its application. 

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 acquis12; Ireland is therefore not taking part in its adoption and is not 
bound by it or subject to its application. 

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/EC  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 acquis13, 

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OJ L176, 10.7.1999, p. 31. 
OJ L 53, 27.2.2008, p.52. 
OJ L 53, 27.2.2008, p. 1. 
OJ L 83, 26.3.2008, p. 3. 
OJ L 131, 1.6.2000, p. 43. 
OJ L 64, 7.3.2002, p. 20. 
OJ L 176, 10.7.1999, p. 1.  

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HAVE ADOPTED THIS REGULATION: 

Regulation (EC) No 539/2001 is hereby amended as follows: 

1. 

Annex I shall be amended as follows: 

Article 1 

(a) 

in  Part  1,  the  references  to  Albania  and  Bosnia  and  Herzegovina  shall  be 
deleted; 

2. 

In Annex II, Part 1, the following references shall be inserted: 

"Albania (*) 

Bosnia and Herzegovina (*)" 

(*) The exemption from the visa requirement only applies to holders of biometric passports". 

Article 2 

This  Regulation  shall  enter  into  force  on  the  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 Treaties. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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