Proposal for a Regulation of the European Parliament and of the Council 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: 2010-07-05
Institutions: European Commission
Subjects: EU visa policy, Mariana Islands, Schengen Agreement, Taiwan, admission of aliens, external border of the EU, foreign national

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EUROPEAN COMMISSION 

Brussels, 5.7.2010 
COM(2010)358 final 

2010/0192 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

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. 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  539/20011  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 or territories whose citizens 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  or  territories,  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 or territories concerned.  

As  the  criteria  set  out  in  Regulation  (EC)  No  539/2001  can  evolve  over  time  in  relation  to 
third  countries  or  territories,  the  composition  of  the  negative  and  positive  lists  should  be 
reviewed regularly. The Action Plan to combat illegal immigration and trafficking of human 
beings  adopted  by  the  European  Union  in  2002  at  the  Seville  European  Council  also 
highlighted for the first time the need to review annually the two lists of third countries and 
territories annexed to the Regulation.  

Hence, since its adoption, Regulation (EC) No 539/2001 has been amended six times2, most 
recently with regard to the outcome of the visa liberalisation dialogues by transferring three 
Western-Balkan countries to the positive list. Slightly more than two years after the adoption 
of  Council  Regulation  (EC)  No  1932/20063,  the  lists  annexed  to  Regulation  (EC)  No 
539/2001  need  to  be  reassessed  in  general  in  the  light  of  the  relevant,  above  mentioned 
criteria defined in the Regulation. 

The present periodical review of the Regulation aims at: 

ensuring that the composition of the lists of third countries and territories complies with the 
criteria set out in recital 5 of the Regulation, in particular as regards the illegal immigration 
and public policy criteria and the external relations criterion, and transferring countries from 
one annex to another as appropriate; 

ensuring that, in accordance with Article 77 (2) (a) of the TFEU, the Regulation determines 
exhaustively whether a third-country or territory citizen is to be subject to or exempt from the 
visa requirement. 

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OJ L 81, 21.3.2001, p.1 
Council Regulations (EC) N° 2414/2001 of 7 December 2001 OJ L 327, 12.12.2001, p.1, N° 453/2003 
of  6  March  2003  L  69  13.3.2003,  p.  10,  N°  851/2005  of  2  June  2005  L  141  4.6.2005,  p.  3,  N° 
1791/2006 of 20 November 2006 L 363 20.12.2006, p. 1, N° 1932/2006 of 21 December 2006 L 405 
30.12.2006, p. 23 and N° 1244/2009 of 30 November 2009 L 336 18.12.2009 
OJ L 405 30.12.2006, p. 23 

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A  further  proposal  amending  Regulation  539/2001  may  be  presented  by  the  Commission  at 
the  appropriate  moment  in  order  to  integrate  possible  results  of  the  ongoing  visa  dialogues 
with Albania and Bosnia-Herzegovina.  

2. Elements of the proposal  

In  line  with  the  approach  followed  in  view  of  earlier  changes  to  Regulation  (EC)  No 
539/2001,  for  the  purposes  of  the  periodic  review  the  Commission  has  questioned  the 
Member States to check whether the annexes to the Regulation as they stand still correspond 
to the criteria determined by the Regulation. Member States made no suggestions to transfer 
third  countries  or  territories  from  the  positive  to  the  negative  list.  The  Commission  only 
received suggestions for transfers from the negative to the positive list (Taiwan, Trinidad and 
Tobago,  Saint  Lucia,  Saint  Vincent  and  the  Grenadines,  Belize,  Dominica,  Grenada,  the 
Marshall Islands, Micronesia and Palau). The information transmitted by the Member States 
(the Commission received 25 replies) has been analysed, together with other information and 
statistics supplied under the CIREFI. On the basis of the analysis, the Commission has come 
to the following conclusions. 

2.1. Transfer of Taiwan to the positive list 

Taiwan is characterised by a high per capita income (US$ 30,100) and political stability (4th 
Presidential  direct  election  held  in  March  2008  since  the  lifting  of  martial  law  in  1987). 
Despite  the  fact  that  the  EU  does  not  recognise  Taiwan  as  a  sovereign  state  and  has  no 
diplomatic  or  formal  relations  with  Taiwan,  the  EU  has  developed  regular  contacts  and 
cooperation  in  economic,  trade,  research,  science  and  technology,  education  and  culture  as 
well as environmental issues with the Taiwanese authorities. As a result, the EU is the largest 
foreign investor in Taiwan. 

As  regards  the  political  aspects,  the  discussions  within  the  relevant  political  groups  in  the 
Council  during  March  2009  gave  a  clear  political  signal  of  the  EU's  support  for  Taiwan's 
request  to  grant  visa  free  travel  to  its  citizens  in  the  next  revision  of  the  Regulation.  It  has 
been  considered  that  Taiwan's  transfer  to  the  positive  list  would  have  a  positive  economic 
impact on EU-Taiwanese relations, as Taiwan is a major trading partner of the EU (the 19th 
largest  trade  partner).  Currently  the  EU  is  an  important  destination  of  Taiwanese  citizens 
travelling  overseas.  The  United  Kingdom  also  granted  visa-free  travel  to  Taiwan  in  March 
2009 and Ireland in July 2009. 

Transferring Taiwan to the positive list would reinforce regional coherence as the EU grants 
visa  free  regime  to  other  countries  and  entities  of  the  region  having  a  similar  level  of 
economic development, such as Hong Kong, Macao, Japan, South Korea and Singapore.  

As  regards  migration,  the  risk  of  illegal  immigration  from  Taiwan  is  very  low  (45  persons 
staying illegally on average per year for the period of 2006-2008), as also confirmed by the 
refusal rate at the border (38 persons on average per year for the period of 2006-2008) and the 
visa refusal rate (0,25 % in 2008). On that basis, imposing a visa requirement on the nationals 
of Taiwan is no longer justified.  

Concerning  document  security,  Taiwan  adopted  measures  ensuring  highly  secured  ID  cards 
and introduced a new, more secure passport recently. As from the end of 2008, Taiwan issues 
biometric  passports  and  carries  out  an  improved  personalisation  process  for  issuance  of  the 
new passports. 

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In  their  replies  to  the  Commission  questionnaire  in  view  of  the  regular  revision  of  the 
Regulation,  ten  Member  States  explicitly  proposed  Taiwan  to  be  transferred  to  the  positive 
list.  

Any visa waiver granted to the citizens of Taiwan should be reciprocated by Taiwan. On this 
issue Taiwan has expressed the political will to grant a full visa free regime for all EU citizens 
and has progressively eliminated the visa requirement for nationals of a large majority of EU 
Member States; currently a visa is still required for citizens of Cyprus, Romania and Bulgaria, 
although  by  official  letter,  Taiwan  has  clearly  indicated  its  commitment  to  offer  full  visa 
waiver regime for the nationals of these three Member States as well during 2010.  

2.2. Transfer of other third countries or territories 

The Commission analysed the available information, including CIREFI statistics, gathered on 
each third country or territory proposed by Member States. Particular attention was paid also 
to  the  countries'  or  territories'  level  of  economic  and  social  development,  the  risk  of  illegal 
immigration  to  the  EU  linked  to  it,  to  the  external  relations  and  the  criteria  of  regional 
coherence.  

The  Commission  came  to  the  conclusion  that  other  third  countries  or  territories,  whose 
transfer to the positive list had been suggested only by one or in a few cases by two Member 
States,  are  not  considered  at  this  stage  to  fulfil  the  criteria  set  out  by  Regulation  (EC)  No 
539/2001.  Other  third  countries  or  territories  could  be  subject  to  a  future  amendment  of 
Regulation (EC) No 539/2001 in the light of the progress they will reach in various areas and 
the fulfilment of the criteria set out by the Regulation. 

2.3. Northern Mariana Islands 

Member States drew the attention to the status of the Northern Mariana Islands and suggested 
it to be removed from Annex I of Regulation (EC) No 539/2001.  

The Northern Mariana Islands are a commonwealth in political union with the United States 
of  America,  and  the  head  of  the  state  of  Northern  Mariana  is  the  president  of  the  United 
States.  The  territory  is  represented  in  the  US  House  of  Representatives.  In  general,  United 
States federal law applies to the country. The Northern Mariana Islands have similar status to 
that of Guam or Puerto Rico. The citizens of the Islands have US passports. 

Following from the above information, the reference to the Northern Mariana Islands should 
be deleted from Annex I. This will entail that the citizens of the Northern Mariana Islands, as 
US nationals, enjoy visa-free travel. 

3. Main organisations/experts consulted 

Member States were consulted. 

4. Impact assessment 

Not necessary. 

5. Legal basis 

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

6. Proportionality and subsidiarity principles : 

Regulation (EC) No 539/2001 lists the third countries and territories whose nationals must be 
in possession of visas when crossing the external borders (the negative list) and those whose 
nationals 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 EC in accordance with Article 77 (2) 
(a) of the TFEU. 

7. Choice of instruments 

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

8. Budgetary implication 

The proposed amendment has no implication on the EU budget. 

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2010/0192 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

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,4 

After transmission of the proposal 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  and  territories  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 or territories for whom the 
situation has changed as regards these criteria, should be transferred from one Annex 
to the other. 

The imposition of the visa requirement on the citizens of Taiwan is no longer justified, 
as in particular the territory does not represent any risk of illegal immigration or public 
policy for the EU and in the light of external relations, in accordance with the criteria 
set out in recital 5 of the Regulation. Consequently this territory should be transferred 
to Annex II. 

A reference to Northern Mariana should be deleted from Annex I of Regulation (EC) 
No  539/2001,  as  the  citizens  of  the  territory  in  question  are,  as  holders  of  US 
passports, citizens of the United States which is listed in Annex II.  

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

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OJ C […], […], p. […]. 
OJ L 81, 21.3.2001, p. 1.  
OJ L 176, 10.7.1999, p. 36. 
OJ L176, 10.7.1999, p. 31. 

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(5) 

(6) 

(7) 

(8) 

(9) 

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,  point  (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, 

HAVE ADOPTED THIS REGULATION: 

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

Article 1 

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OJ L53, 27.2.2008, p.52. 
OJ L53, 27.2.2008, p. 1. 
OJ L83, 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. 1–16.  

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1. 

Annex I shall be amended as follows: 

(a) 

in Part I, the reference to Northern Mariana shall be deleted; 

(b) 

in Part II, the reference to Taiwan shall be deleted. 

2. 

In Annex II the following Part 4 is added: 

"4.  ENTITIES  AND  TERRITORIAL  AUTHORITIES  THAT  ARE  NOT 
RECOGNISED AS STATES BY AT LEAST ONE MEMBER STATE: 

Taiwan". 

Article 2 

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

This Regulation shall be binding in its entirety and directly applicable in the Member States in 
accordance with the Treaties. 

Done at Brussels, […] 

For the European Parliament 

For the Council 

The President 

The President 

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