Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement
Date: 2011-05-24
Institutions: European Commission
Subjects: EU visa policy, Schengen Agreement, external border of the EU, foreign national

EUROPEAN COMMISSION 

Brussels, 24.5.2011 
COM(2011) 290 final 

2011/0138 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

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

 
 
  
 
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. 

Hence,  since  its  adoption,  the  Regulation  has  been  amended  eight  times2.  All  the  recent 
modifications of the Regulation focused on the revision of the positive and the negative visa 
lists  annexed  to  the  Regulation,  most  recently  with  regard  to  the  transfer  of  Taiwan  to  the 
positive list and also to the outcome of the visa liberalisation dialogues by transferring the two 
remaining  Western-Balkan  countries,  Albania  and  Bosnia-Herzegovina  to  the  positive  visa 
list.  

Throughout the past years, a need arose to make some further, technical modifications as well 
to  the  main  text  of  the  Regulation,  e.g.  strengthening  legal  certainty  by  providing  rules  for 
certain  situations  which  were  not  covered  yet  by  the  Regulation  and  adjusting  certain 
definitions  due  to  recent  changes  brought  by  secondary  legislation,  for  instance  by  the 
adoption of the Visa Code (Council Regulation (EC) No 810/2009)3.  

Furthermore, ten years after the integration of the Schengen acquis into the framework of the 
EU and the establishment of the common visa policy, in accordance with Article 77(2) (a) of 
the  TFEU,  it  is  necessary  to  make  progress  towards  further  harmonisation  of  the  EU's 
common visa policy with regard to certain categories listed under Article 4 of the Regulation 
and left until now to the unilateral decisions of the individual Member States.  

Finally,  in  light  of  the  consequences  of  the  entry  into  force  of  the  Lisbon  Treaty,  further 
modifications are required, such as the introduction of a safeguard clause and a modification 
of the reciprocity mechanism. 

1.1. 

Summary of the proposed action 

The present modification of the Regulation aims at  

–  providing for a visa safeguard clause allowing the rapid, temporary suspension of the visa 
waiver for a third country on the positive list in case of an emergency situation, where an 
urgent response needs to be given to solve the difficulties faced by Member States; 

1 
2 

3 

OJ L 81, 21.3.2001, p. 1. 
Council Regulations (EC) No 2414/2001 of 7 December 2001 (OJ L 327, 12.12.2001, p. 1), (EC) No 
453/2003 of 6 March 2003 (OJ L 69, 13.3.2003, p. 10), (EC) No 851/2005 of 2 June 2005 (OJ L 141 
4.6.2005,  p.  3),  (EC)  No  1791/2006  of  20  November  2006  (OJ  L  363  20.12.2006,  p.  1),  (EC)  No 
1932/2006 of 21 December 2006 (OJ L 405 30.12.2006, p. 23), (EC) No 1244/2009 of 30 November 
2009 (OJ L 336 18.12.2009, p. 1), (EU) No 1091/2010 of 24 November 2010 (OJ L 329 14.12.2010, 
p.1) and (EU) No 1211/2010 of 15 December 2010 (OJ L 339 22.12.2010, p.9) 
OJ L 243 15.9.2009, p. 1. 

EN 

2 

   EN 

 
                                                 
–  modifying  certain  provisions,  e.g.  of  the  reciprocity  mechanism,  in  order  to  have  them 

fully comply with the respective provisions of the TFEU; 

–  ensuring  compliance  with  Council  Regulation  (EC)  No  810/2009  establishing  a 
Community Code on visas (Visa Code)4 applicable since 5 April 2010 by providing e.g. for 
appropriate definitions concerning short stay and visa; 

–  ensuring that, in accordance with Article 77(2)(a) of the TFEU, the Regulation determines 
exhaustively whether a third-country national is to be subject to or exempt from the visa 
requirement  and  thus providing legal certainty, by complementing the rules applicable to 
refugees  and  stateless  persons  in  order  to  clarify  the  applicable  visa  regime  for  those 
residing in the United Kingdom or in Ireland;  

–  making progress towards a full harmonisation of the common visa policy by providing for 
new, more harmonised rules with regard to the visa requirement or exemption applicable to 
various categories of third country nationals; 

–  providing for clear rules as regards the visa requirement/exemption for holders of laissez-
passers  and  different  passports  issued  by  certain  entities  subject  to  international  law,  but 
which do not qualify as international intergovernmental organisations; 

–  adopting new provision in respect of obligations for certain Member States flowing from 
prior  EU/international  agreements  implying  the  need  to  derogate  from  the  common  visa 
rules. 

2. 

ELEMENTS OF THE PROPOSAL 

2.1. 

Establishing a visa safeguard clause for suspending visa liberalisation 

The  JHA  Council  of  8  November  2010  adopted  the  visa  waiver  for  Albania  and  Bosnia-
Herzegovina  despite  the  reluctance  of  certain  Member  States  due  to  the  rapid  increase  of 
asylum applications in some Member States after the granting of visa liberalization to some 
Western Balkan countries. In order to accommodate these concerns, the Commission issued a 
Statement to strengthen, as a matter of urgency, the post visa liberalisation monitoring in all 
Western Balkan countries that achieved visa liberalisation, and stated in particular that in the 
event of sudden inflow of nationals of one or more third countries, including nationals of the 
Western  Balkans,  to  one  or  more  Member  States,  the  Commission  may  propose  that  the 
Council  adopt  provisional  measures  for  the  benefit  of  the  Member  State(s)  concerned  in 
accordance with Article 78 of the Treaty, and a rapid suspension of visa liberalisation. 

Further  to  the  Commission  Statement,  at  the  end  of  December  2010  two  Member  States 
submitted a document (doc. 18212/10 VISA 311 COMIX 842), in which they suggested the 
insertion of a safeguard clause into Regulation 539/2001, giving the power to the Commission 
to  decide  on  a  temporary  suspension  of  the  visa  waiver,  in  accordance  with  a  comitology 
procedure, if certain conditions are met.  

A  safeguard  clause  could  also  help  to  preserve  in  the  future  the  integrity  of  the  visa 
liberalisation processes and to build credibility vis-à-vis the public. 

4 

OJ L 243 15.9.2009, p. 1. 

EN 

3 

   EN 

 
                                                 
Member States have moreover given general support to this suggestion in SCIFA. It was the 
common  understanding  of  Member  States  that  such  a  safeguard  clause  would  provide  a 
general framework for the future, without being related to specific third countries.  

The  clause  would  be  complementary  to,  but  distinct  from,  the  safeguard  clause  in  Article 
78(3)  of  the  TFEU.  It  should  be  applied  only  as  a  temporary  measure  in  clearly  defined 
emergency situations. 

The safeguard clause should clearly state that it is about a suspension of the visa waiver only 
for a short period of time, as a matter of urgency, and on the basis of well defined, delimited 
criteria. The clause could be triggered only in case of an emergency situation, i.e. if there is a 
sudden  change  of  the  situation,  e.g.  when  the  relevant  figures  increase  suddenly  within  a 
relatively short period of time, and where an urgent "visa" response needs to be given to solve 
the difficulties faced by affected Member States, and when measures to be based on Article 
78(3) of the TFEU would not constitute an appropriate or sufficient response. 

In  order  to  be  able  to  react  quickly  in  the  above  situations,  a  decision  on  the  temporary 
suspension of a visa waiver would be adopted in comitology in accordance with Regulation 
(EU) No 182/20115: by conferring implementing powers on the Commission, based on Article 
291 of the TFEU.  

Even if the conditions for triggering the safeguard clause are clearly defined, the Commission 
shall  have  to  assess  the  situation  and  there  should  be  no  automatism  flowing  from  the 
notifications  by  Member  States.  When  assessing  the  appropriateness  of  suspending  the  visa 
waiver  for  a  third  country,  the  Commission  shall  take  into  account  the  number  of  Member 
States affected by the sudden occurrence of any of the situations listed in this proposal and the 
overall impact of them on the migratory situation in the EU. 

In  accordance  with  the  comitology  rules  in  Regulation  (EU)  No  182/2011,  under  the 
examination procedure, the European Parliament and the Council will receive the proposal for 
a  Commission  decision  suspending  the  visa  waiver  for  one  or  more  third  countries  together 
with other relevant documents, including e.g. possible reports of FRONTEX and EASO and 
the initial notifications by Member States, at the same time as the committee members. 

For  suspending  a  visa  waiver,  the  application  of  the  examination  procedure  seems  to  be 
appropriate.  The  committee  shall  deliver  its  opinion  by  qualified  majority.  The  votes  of  the 
members shall be weighted in the manner as set out in the relevant Treaty provision (Art. 238 
(3)  of  the  TFEU).  Where  the  committee  delivers  a  positive  opinion,  the  Commission  shall 
adopt  the  implementing  act.  If  the  committee  delivers  a  negative  opinion,  the  Commission 
shall not adopt the act.  

The  European  Parliament  and  the  Council  will  have  the  right  of  scrutiny  to  ensure  that  the 
Commission  does  not  exceed  its  implementing  powers  in  accordance  with  Article  11  of 
Regulation (EU) No 182/2011. 

Furthermore, in the interest of transparency, the Commission could exchange views with the 
European  Parliament  at  the  latter's  request, following  a  proposal  to  suspend  temporarily  the 
visa waiver for one or more third countries. 

5 

OJ L 55, 28.2.2011, p. 13. 

EN 

4 

   EN 

 
                                                 
Before the end of the temporary suspension period, the Commission would send a report to 
the  European  Parliament  and  the  Council  accompanied,  where  considered  appropriate,  by  a 
proposal to modify Regulation (EC) No 539/2001, in accordance with the ordinary legislative 
procedure,  in  order  to  transfer  the  third  country  to  the  negative  visa  list.  In  such  a  case  the 
suspension  measure  could  be  extended  by  a  new  implementing  decision  adopted  in 
comitology for a period of maximum nine months, leaving to the European Parliament and the 
Council sufficient time to reject or adopt the proposal to amend the lists of Regulation (EC) 
No 539/2001. 

2.2.  Modification of the reciprocity mechanism  

In  the  course  of  a  codification  exercise  concerning  Regulation  (EC)  No  539/2001,  the 
Consultative  Working  Group  of  the  legal  experts  of  the  Commission,  the  Council  and  the 
European Parliament examined the secondary legal base established by Regulation (EC) No 
851/20056.  Article  1  (4)  (c)  of  Regulation  (EC)  No  539/2001  as  amended  reads  as  follows: 
"Within  90  days  after  publication  of  that  notification,  the  Commission,  in  consultation  with 
the Member State concerned, shall report to the Council. The report may be accompanied by a 
proposal providing for the temporary restoration of the visa requirement for nationals of the 
third country in question. The Commission may also present this proposal after deliberations 
in  Council  on  its  report.  The  Council  shall  act  on  such  proposals  by  a  qualified  majority 
within three months." 

The Consultative Group of the Legal Services considered that the said provision established a 
secondary legal base which is not manifestly obsolete, and therefore needs to be re-examined 
in the light of the judgement of the Court of Justice of 6 May 2008 in case C-133/06 with a 
view to either the deleting or the amending thereof.  

In  an  area  in  which  co-decision  applies,  it  is  legally  not  possible  to  provide  in  secondary 
legislation a simplified procedure allowing the Council to decide on a Commission proposal, 
without any involvement of the European Parliament. 

Consequently,  the  said  provision  shall  be  maintained  but  modified  on  the  one  hand,  by 
providing  that  the  report  should  also  be  addressed  to  the  European  Parliament  and,  on  the 
other hand, by adding the co-decisive role of the European Parliament to it. 

The  codification  exercise  will  continue  and  be  finalised  once  the  present  amendment  is 
adopted.  

In this context, it should be mentioned that a suggestion has been made by a Member State to 
modify the current reciprocity mechanism in order to make it more efficient. According to the 
suggestion,  the  Commission  would  be  obliged  to  present  a  proposal,  within  a  very  short 
period  of  time,  for  a  temporary  restoration  of  a  visa  requirement  for  nationals  of  a  third 
country, which does not lift the visa obligation within a period of no longer than 12 months of 
its introduction for a Member State.  

It  is  important  to  stress  that  such  modification  of  the  reciprocity  mechanism  would  infringe 
the exclusive right of initiative of the Commission and would not necessarily lead to adoption 
of the proposed retaliatory measure. 

6 

OJ L 141, 4.6.2005, p. 3. 

EN 

5 

   EN 

 
                                                 
The  initial  reciprocity  mechanism  of  Regulation  (EC)  No  539/2001  already  contained  a 
certain automatism: the notification of non-reciprocity cases was not mandatory; the Member 
State  concerned  was  free  to  decide  to  notify  or  not.  But  if  notification  took  place,  then 
Member States were obliged to impose the visa requirement for nationals of the third country 
concerned provisionally and automatically, 30 days after the notifications, unless the Council 
decided otherwise.  

This automatism was considered to be the weakness of the initial reciprocity mechanism and 
thus it has been abandoned in 2005 as being counter-productive. There is no reason to believe 
that it would entail more efficiency now.  

The current reciprocity mechanism, as modified in 2005, is considered to be overall efficient, 
and  the  cases  of  non-reciprocity  have  been  reduced  considerably.  The  remaining  non-
reciprocity  situations  are  mostly  cases  where  some  Member  States  are  considered  by  third 
countries not to meet objective criteria for visa waiver set out by these third countries in their 
domestic legislation. 

While the use of comitology procedure is considered when applying the safeguard clause in 
cases of emergency situations characterised by well-defined conditions (see above point 2.3), 
in case of introducing the retaliatory measure of restoration of the visa requirement against a 
third  country  in  case  of  non-reciprocity,  the  overall  external  policy  of  the  European  Union 
with the third country in question should be taken into account, without any automatism, as 
well as the principle of solidarity amongst EU Member States. A political assessment of the 
appropriateness of such a measure should be made.  

Most  Member  States  also  cautioned  against  an  "automatic"  (re)imposition  of  a  visa 
requirement  for  citizens  of  third  countries  due  to  its  political  implications  and  advocated 
instead for a tailor-made approach and application of provisional measures in other fields.  

2.3. 

Definition of the visa and of short stay without a visa 

This  proposal  aligns  the  definition  of  "visa"  to  the  definition  used  in  the  Visa  Code. 
Accordingly,  a  visa  is  an  authorisation  of  transit  through  or  for  an  intended  stay  in  the 
territory of the Member States for a duration of no more than three months in any six-month 
period from the date of first entry in the territory of the Member States. 

For  the  purpose  of  this  Regulation,  the  airport  transit  visa  is  excluded  from  this  definition, 
since  the  visa  regime  applicable  by  Member  States  to  third-country  nationals  transiting 
through the international airports of Member States is regulated by and contained in the Visa 
Code.  

Nationals of third countries on the list in Annex II shall be exempt from the requirement set 
out in paragraph 1 for stays in the territory of the Member States not exceeding three months 
in any six-month period. 

This  definition  also  takes  into  account  the  implications  brought  by  the  interpretation  of  the 
three-month short stay rule by the European Court of Justice in case 241/057.  

7 

In case 241/05 the European Court of Justice ruled that Article 20(1) of the Convention implementing 
the  Schengen  Agreement  is  to  be  interpreted  as  meaning  that  the  term  ‘first  entry’  in  that  provision 
refers, besides the very first entry into the territories of the Contracting States to that agreement, to the 

EN 

6 

   EN 

 
                                                 
2.4. 

Refugees and stateless persons residing in the United Kingdom or in Ireland 

A  previous  amendment  of  Regulation  (EC)  No  539/2001  in  2006  (Regulation  (EC)  No 
1932/2006)  already  envisaged  to  clarify  the  situation  of  refugees  and  stateless  persons  by 
adjusting  the  applicable  visa  rules  distinguishing  between  those,  who  are  residing  in  a 
Member State and those residing in a third country.  

On the basis 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, 
Ireland and the United Kingdom are not participating in the adoption of Regulation (EC) No 
539/2001 and its amendments. Thus, for Regulation (EC) No 539/2001 the United Kingdom 
and  Ireland  are  not  considered  to  be  Member  States.  Consequently,  the  provisions  of 
Regulation (EC) No 1932/2006 on the visa rules applicable for refugees and stateless persons 
do not apply to such persons when they are residing in the United Kingdom or in Ireland.  

The present proposal aims at remedying this unsatisfactory situation by including a provision 
into the Regulation on refugees and stateless persons residing in the UK or Ireland.  

As there is no mutual recognition of visas and no equivalence between a residence permit and 
a visa in the relationship between, on the one hand, UK and Ireland and, on the other hand, 
the Schengen Member States, the Regulation leaves the freedom for Member States to decide 
individually  on  visa  exemption  or  obligation  for  this  category  of  persons.  Such  national 
decisions  should  be  notified  to  the  Commission  in  accordance  with  Article  5  of  the 
Regulation. 

2.5. 

Harmonisation  of  the  visa  requirement/exemption  for  certain  categories  listed 
under Article 4 (1) 

Article  4  of  Regulation  (EC)  No  539/2001  provides  the  possibility  for  Member  States  to 
exempt  individually  different  categories  of  nationals  of  third  countries  on  the  negative  list 
from  the  visa  requirement  or  to  submit  to  the  visa  requirement  such  nationals  of  third 
countries on the positive list.  

In the view of the Commission, ten years after the integration of the Schengen acquis into the 
EU  time  has  come  to  make  a  next  step  towards  a  more  harmonised  common  visa  policy. 
Efforts  should  be  made  to  fully  comply  with  the  Treaty  by  creating  a  real  common  visa 
policy. For this reason, this proposal aims at limiting the freedom of Member States to grant 
visa  waiver  or  to  impose  a  visa  requirement  to  various  categories  of  persons  covered  by 
Article  4(1)  of  Regulation  (EC)  No  539/2001  by  establishing  further  common  rules  on  the 
visa requirement for some of these categories. However, the proposal also takes into account 
the  current,  considerable  differences  between  the  practices  of  Member  States  in  case  of 
certain  categories  (such  as  diplomatic  and  service  passport  holders)  by  maintaining  the 
possibility for Member States to continue for the time being to decide individually on the visa 

first  entry  into  those  territories  taking place  after  the  expiry  of  a period  of  six  months  from  that  very 
first entry and also to any other first entry taking place after the expiry of any new period of six months 
following an earlier date of first entry. This – by analogue interpretation – applies also to stays on the 
basis of a visa.  

A short stay visa is a travel visa valid for one or more entries, provided that neither the length of a continuous 
visit nor the total length of successive visits exceeds three months in any half-year, from the date of first 
entry. Aliens not subject to a visa requirement may move freely within the territories of the Schengen 
States for a maximum period of three months during the six months following the date of first entry. 

EN 

7 

   EN 

 
                                                                                                                                                         
exemption  or  on  the  visa  requirement  except  in  cases  where  the  EU  would  negotiate  visa 
waiver agreements for these categories with certain third countries.  

2.5.1.  Further harmonisation 

The  Commission  endeavours  further  progress  towards  full  harmonisation  with  regard  to  the 
categories of Article 4(1), for which a de facto harmonisation or quasi harmonisation already 
exists.  

In  accordance  with  the  present  notifications  provided  by  Member  States,  civilian  air  crew 
members  are  exempted  from  the  visa  requirement  by  all  Member  States.  In  such 
circumstances,  maintaining  the  possibility  for  Member  States  to  decide  freely  on  the 
exemption of such category is no longer justified.  

As regards civilian sea crew, all Member States but two exempt such persons from the visa 
requirement  in  case  of  shore  leave,  while  all  Member  States  but  two  maintain  the  visa 
requirement  for  transit  purposes.  This  amendment  will  therefore  set  out  the  general, 
harmonised  visa  exemption  for  the  first  category  and  visa  requirement  for  the  second  one 
respectively.  

There  is  only  one  Member  State  exempting  flight  crew  and  attendants  on  emergency  or 
rescue flights and other helpers in case of a disaster or accident from the visa requirement, 
therefore this Regulation would abolish this category.  

2.5.2.  Maintaining the rules 

For  the  category  of  civilian  crew  of  ships  navigating  in  international  inland  waterways  the 
current provisions would be maintained as from Member States' notifications it can be seen 
that  Member  States  having  the  Rhine  or  the  Danube  flowing  across  their  territories  follow 
divergent  practices  with  regard  to  the  exemption  or  visa  requirement  applicable  to  this 
category. Furthermore, there is legislative work going on in the CCNR (Rhine Committee) on 
this issue, which should also be taken into account.  

The current possibility for Member States to decide on the exemption of holders  of  laissez-
passer  issued  by  some  intergovernmental  organisations  would  not  be  affected  by  this 
modification either. 

2.5.3.  New provision – In respect of obligations flowing from prior EU agreements  

Prior  to  the  establishment  of  the  EU  common  visa  policy,  the  European  Union  and  its 
Member  States  have  concluded  international  agreements,  like  association  agreements,  with 
third countries dealing i.a. with the movement of persons and services, which might have an 
impact  on  the  visa  requirement  imposed  on  nationals  of  third  countries.  Such  international 
agreements  concluded  by  the  Union  take  primacy  over  provisions  of  secondary  EU 
legislation,  including  Regulation  (EC)  No  539/2001.  In  case  such  international  agreements 
contain a so-called 'standstill clause', it might entail the obligation for certain Member States 
to  derogate  from  the  rules  of  the  common  visa  policy  in  accordance  with  their  respective 
legislations and practices applicable/in force on the date the standstill clause entered into force 
for them.  

Therefore,  the  Commission  proposes  the  introduction  in  Article  4  of  a  provision  allowing 
Member States to exempt service providers from the visa requirement, to the extent necessary 

EN 

8 

   EN 

 
to respect international obligations concluded by the Community before the entry into force of 
Regulation (EC) No 539/2001.  

This proposal is coherent with the ruling of the Court of Justice of the European Union of 19 
February  2009  in  Case  C-228/06,  Mehmet  Soysal  and  Ibrahim  Savatli,  in  which  the  Court 
ruled  that  "Article  41(1)  of  the  Additional  Protocol  to  the  Association  Agreement  with 
Turkey,  signed  on  23  November  1970  in  Brussels,  is  to  be  interpreted  as  meaning  that  it 
precludes the introduction, as from the entry into force of that protocol, of a requirement that 
Turkish nationals such as the appellants in the main proceedings must have a visa to enter the 
territory  of  a  Member  State  in  order  to  provide  services  there  on  behalf  of  an  undertaking 
established in Turkey, since, on that date, such a visa was not required". 

Article 41 of the Additional Protocol lays down a 'standstill' clause, which stipulates that "the 
Contracting Parties shall refrain from introducing between themselves any new restrictions on 
the  freedom  of  establishment  and  the  freedom  to  provide  services".  At  present,  the 
Commission  is  not  aware  that  other  countries  than  Turkey  benefit  from  a  similar  'standstill 
clause' established by an international agreement concluded with the Union. 

Member States concerned by such derogation shall notify it to the Commission and the other 
Member States. 

2.5.4.  Procedure to exempt diplomatic and service passport holders of third countries from 

the visa requirement after the abolition of Council Regulation (EC) No 789/20018 

The  current  text  of  Article  4(1)  of  Regulation  (EC)  No  539/2001  refers  to  the  procedure 
established by Regulation (EC) No 789/2001 to be followed when a Member State decides to 
exempt  the  diplomatic  and/or  service  passport  holders  of  a  third  country  from  the  visa 
requirement.  

Pursuant  to  Regulation  (EC)  No  789/2001,  Member  States,  willing  to  exempt  holders  of 
diplomatic  and  service  passports  of  third  countries  whose  nationals  are  subject  to  prior 
consultation, should have submitted a legislative initiative, on which the Council decided by 
qualified majority (since 2006).  

As regards the holders of such passports of third countries not subject to prior consultation, 
Regulation (EC) No 789/2001 obliged Member States to simply communicate to the Council 
any amendments to their visa rules (requirement or exemption). 

However, Regulation  (EC)  No  789/2001  has been repealed  by  Council Regulation (EC) No 
810/2009 establishing a Community Code on visas (Visa Code)9. It was considered that after 
the repeal of the above Regulation, the appropriate place to cover these "procedural" aspects 
of  national  decisions  on  visa  requirement  or  exemption  for  such  passport  holders  would  be 
Regulation (EC) No 539/2001, if need be.  

Thus,  in  the  framework  of  the  present  modification,  it  needs  to  be  examined  whether  a 
specific  decision-making  procedure  should  be  provided  for  the  case  when  a  Member  State 
wants to abolish the visa requirement for the diplomatic and service passport holders of a third 
country subject to prior consultation.  

8 
9 

OJ L 116 24.4.2001, p. 2. 
OJ L 243 15.9.2009, p. 1. 

EN 

9 

   EN 

 
                                                 
In  the  view  of  the  Commission,  there  is  no  need  to  establish  such  a  specific  "common 
decision mechanism" for this issue, both for institutional and substantive reasons.  

As regards the institutional aspects: 

After the five years transitional period provided by the Amsterdam Treaty for Title IV of the 
TEC and the entry into force of the new Treaty on the Functioning of the European Union, it 
is legally no longer possible to establish a decision making procedure with a right of initiative 
for a Member State; it is even unacceptable, from an institutional point of view, to accept that 
a  Member  State's  suggestion  or  intention  (to  abolish  the  visa  requirement  for  diplomatic 
passport holders of a country under prior consultation) would bind the Commission's right of 
initiative; the Commission cannot be obliged to present a proposal.  

Moreover, if a procedure for a "common decision" would be established, the  principles and 
procedures  provided  by  the  TFEU  should  be  respected  (see  above  on  the  reciprocity 
mechanism,  point  2.2).  The  Council  could  not  decide  alone;  such  a  measure  should  be 
adopted in co-decision procedure with the European Parliament.  

As regards the substantive aspects: 

The decision to ask for prior consultation on the visa applications lodged by the nationals of a 
certain  third  country  (or  certain  categories  of  them)  is  a  purely  national  decision.  The 
Schengen solidarity implies that the other Member States indeed, systematically, send the visa 
applications concerned for prior consultation to the requesting Member State.  

In principle, the decision to lift the visa requirement for the holders of diplomatic and service 
passports  of  countries  who  figure  on  the  negative  list  is  also  a  unilateral  decision  by  a 
Member State. In principle, the other Member States do not have to accept such measures: on 
the basis of such a decision, the diplomats concerned can travel without a visa to the Member 
State concerned, but continue to require a visa to travel to the other Member States. Of course, 
the diplomats are present in the Schengen area without internal borders which could imply a 
certain risk.  

EN 

10 

   EN 

 
However, the following elements should be recalled: 

–  if  one  or  more  Member  States  have  lifted  the  obligation  for  the  diplomatic  and  service 
passport holders of a certain third country before another Member State adds this country 
to the list of countries  for  prior  consultation, the earlier lifting of  the visa requirement is 
not at all affected and continues to apply; 

–  even if in a procedure of prior consultation a Member State opposes the issuing of a visa to 
an applicant, the Member State processing the visa application is not obliged to refuse the 
visa; he can decide to issue a visa with limited territorial validity, only allowing access to 
its  own  territory  this  way.  Of  course,  the  person  is  present  in  the  Schengen  area  without 
internal borders, which – again – could imply a certain risk. 

2.6. 

Clarifying the situation and establishing the legal basis of the visa requirement 
or  exemption  for  other  entities  subject  to  international  law  which  issue 
diplomatic or service passport or laissez-passers to its members, but which are 
not intergovernmental organisations 

There  are  certain  entities  subject  to  international  law,  which  do  issue  diplomatic  or  service 
passports or laissez-passers. These entities are not intergovernmental organisations, thus they 
are not covered at this moment by Article 4 of Regulation (EC) No 539/2001. On the other 
hand they are included in the Table of travel documents and Member States declared whether 
they recognise their travel documents or not (e.g. Sovereign Order of the Knights of Malta). 

It  is  necessary  to  have  such  entities  also  covered  by  Regulation  (EC)  No  539/2001  and 
Member  States  should  decide  and  notify  to  the  Commission  in  accordance  with  Article  5 
whether they exempt the holders of travel documents issued by such entities.  

3. MAIN ORGANISATIONS/EXPERTS CONSULTED 

Member States were consulted. 

4. IMPACT ASSESSMENT 

Not necessary. 

5. LEGAL BASIS 

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 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). 

EN 

11 

   EN 

 
The decision to change the lists, to transfer countries from the negative to the positive list or 
vice versa, and also to make other modifications to the Regulation falls within the competence 
of the Union in accordance with Article 77(2) (a) of the TFEU. It constitutes a subject matter 
in which full harmonisation has been pursued for  a  considerable  period  of  time  for  obvious 
efficiency reasons. 

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 budget of the EU. 

EN 

12 

   EN 

 
2011/0138 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 539/2001 listing the third countries whose 
nationals must be in possession of visas when crossing the external borders 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 Commission10, 

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

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

This  Regulation  establishes  a  visa  safeguard  clause  allowing  the  rapid,  temporary 
suspension  of  the  visa  waiver  for  a  third  country  on  the  positive  list  in  case  of  an 
emergency  situation,  where  an  urgent  response  is  needed  in  order  to  resolve  the 
difficulties  faced  by  one  or  more  Member  States,  and  taking  account  of  the  overall 
impact of the emergency situation on the European Union as a whole. 

In  order  to  ensure  uniform  conditions  for  the  implementation  of  the  visa  safeguard 
clause, implementing powers should be conferred on the Commission. Those powers 
should be exercised in accordance with Regulation (EU) No 182/2011 of the European 
Parliament and of the Council of 16 February 2011 laying down the rules and general 
principles  concerning  mechanisms  for  control  by  the  Member  States  of  the 
Commission's exercise of implementing powers11. 

The mechanism regarding reciprocity to be implemented if one of the third countries 
included in Annex II to Regulation (EC) No 539/2001 decides to make the nationals of 
one or more Member States subject to the visa obligation needs to be adapted to the 
entry into force of the Lisbon Treaty in combination with the case law of the Court on 
secondary legal bases. 

In  order  to  ensure  consistency  with  Regulation  (EC)  No 810/2009  of  the  European 
Parliament  and  of  the  Council  of  13 July  2009  establishing  a  Community  Code  on 
Visas (Visa Code)12, this Regulation aligns the definition of visa with the Visa Code. 

10 
11 
12 

OJ C […], […], p. […]. 
OJ L 55, 28.2.2011, p. 13. 
OJ L 243 15.9.2009, p. 1. 

EN 

13 

   EN 

 
                                                 
(5) 

(6) 

(7) 

(8) 

(9) 

Further  progress  should  be  made  towards  a  full  harmonisation  of  the  common  visa 
policy as regards the categories of exceptions which Article 4 of Regulation (EC) No 
539/2001  allows  the  Member  States  to  provide  for.  To  this  end,  this  Regulation 
amends  Article  4  of  Regulation  (EC)  No  539/2001  on  matters  where  a  de  facto 
harmonisation  or  a  quasi  harmonisation  already  exists  on  the  basis  of  convergent 
practices of Member States. 

As  Regulation  (EC)  No 1932/2006  on  the  visa  rules  applicable  for  refugees  and 
stateless persons does not apply to such persons when they are residing in the United 
Kingdom  or  Ireland,  it  is  necessary  to  clarify  the  situation  concerning  the  visa 
requirement  for  certain  refugees  and  stateless  persons  who  reside  in  the  United 
Kingdom or in Ireland. This Regulation leaves Member States free to decide on visa 
exemption or obligation for that category of persons. Such national decisions shall be 
notified to the Commission. 

Having  regard  to  certain  obligations  on  the  Member  States  under  international 
agreements  concluded  by  the  Community  before  the  entry  into  force  of  Regulation 
(EC) No 539/2001 which imply the need to derogate from the common visa rules, this 
Regulation  introduces  a  provision  allowing  Member  States  to  exempt  persons 
providing services during their stay from the visa requirement, to the extent necessary 
to respect those obligations. 

This  Regulation  provides  a  legal  basis  for  the  visa  requirement  or  exemption  of 
holders  of  laissez-passer,  diplomatic  or  service  passports  issued  by  certain  entities 
subject 
intergovernmental 
organisations. 

law  which  are  not 

international 

international 

to 

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/EC13  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. 

(10)  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  acquis14,  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 Agreement15.  

(11)  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 

13 
14 
15 

OJ L 176, 10.7.1999, p. 1.  
OJ L 176, 10.7.1999, p. 36. 
OJ L 176, 10.7.1999, p. 31. 

EN 

14 

   EN 

 
                                                 
the Schengen acquis16, which fall within the area referred to in Article 1, point (B) of 
Council Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 
2008/146/EC17.  

(12)  As regards Liechtenstein, this Regulation constitutes a development of the provisions 
of  the  Schengen  acquis  within  the  meaning  of  the  Protocol  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)  of  Council  Decision 1999/437/EC  read  in  conjunction  with  Article  3  of 
Council  Decision  [xx/2011/EU].  FN  [ref.  to  JO,  adopted  on  7.3.11;  not  yet 
published]18 

(13)  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  acquis19.  The  United  Kingdom  is  therefore  not  taking  part  in  its  adoption 
and is not bound by it or subject to its application. 

(14)  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 acquis20. Ireland is therefore not taking part in its adoption and is not 
bound by it or subject to its application, 

HAVE ADOPTED THIS REGULATION: 

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

Article 1 

1. 

(a) 

(i) 

Article 1 is amended as follows: 

paragraph 2 is amended as follows: 

the first subparagraph is replaced by the following: 

"Nationals of third countries on the list in Annex II shall be exempt from the requirement set 
out in paragraph 1 for stays not exceeding three months in any six-month period from the date 
of first entry in the territory of the Member States." 

(ii) in the second subparagraph, the following indents are added: 

16 
17 
18 
19 
20 

OJ L 53, 27.2.2008, p. 52. 
OJ L 53, 27.2.2008, p. 1. 
OJ L …… 
OJ L 131, 1.6.2000, p. 43. 
OJ L 64, 7.3.2002, p. 20. 

EN 

15 

   EN 

 
                                                 
–  "civilian air crew members; 

–  civilian sea crew members when  they  go ashore  who  hold  a  seafarer's identity document 
issued in accordance with the International Labour Organisation Conventions (No 108 of 
1958  and  No  185  of  2003)  or  the  IMO  London  Convention  of  1965  (FAL)  on  the 
facilitation of international maritime traffic." 

(b) 

(c) 

in paragraph 4 point (c) is replaced by the following: 

"within  90  days  after  publication  of  that  notification,  the  Commission,  in 
consultation  with  the  Member  State  concerned,  shall  report  to  the  European 
Parliament and the Council. The report may be accompanied by a proposal providing 
for  the  temporary  restoration  of  the  visa  requirement  for  nationals  of  the  third 
country  in  question.  The  Commission  may  also  present  this  proposal  after 
deliberations in the European Parliament and the Council on its report. The European 
Parliament  and  the  Council  shall  act  on  such  proposal  by  the  ordinary  legislative 
procedure. 

2. 

The following Article 1a is inserted: 

"Article 1a – Safeguard clause  

1.  Paragraphs  2  to  5  of  this  Article  shall  apply  in  the  event  of  one  or  more  Member  States 
being  confronted  by  an  emergency  situation  characterised  by  the  occurrence  of  any  of  the 
following: 

(a) 

(b) 

(c) 

a  sudden  increase  of  at  least  50%,  over  a  six  month  period,  in  the  number  of 
nationals  of  a  third  country  listed  in  Annex  II  found  to  be  illegally  staying  in  the 
Member State's territory, in comparison with the previous six month period; 

a sudden increase of at least 50%, over a six month period, in comparison with the 
previous six month period, in the number of asylum applications from the nationals 
of  a  third  country  listed  in  Annex  II  for  which  the  recognition  rate  of  asylum 
applications was less than 3% over that previous six month period; 

a sudden increase of at least 50%, over a six month period, in the number of rejected 
readmission  applications  submitted  by  a  Member  State  to  a  third  country  listed  in 
Annex II for its own nationals, in comparison with the previous six month period. 

2.  A  Member  State  which  is  confronted  by  any  of  the  emergency  situations  described  in 
paragraph 1 may notify the Commission. This notification shall be duly motivated and shall 
include  relevant  data  and  statistics  as  well  as  a  detailed  explanation  of  the  preliminary 
measures that the Member State concerned has taken with a view to remedying the situation. 

3. The Commission shall examine the notification taking into account the number of Member 
States affected by any of the situations described in paragraph 1 and the overall impact of the 
increases on the migratory situation in the Union as the latter appears from the data provided 
by  the  Member  States  as  well  as  from  reports  prepared  by  FRONTEX  and/or  the  European 
Asylum Support Office, and, within three months following receipt thereof, the Commission 
may  adopt  an  implementing  decision  suspending  the  exemption  of  visa  requirement  for  the 
nationals  of  the  third  country  concerned  for  a  period  of  six  months.  The  implementing 
decision shall be adopted in accordance with the procedure referred to in Article 4a (2). The 

EN 

16 

   EN 

 
implementing decision shall determine the date on which the suspension of the exemption of 
visa requirement is to take effect. 

4. Before the end of the period of validity of the implementing decision adopted pursuant to 
paragraph  3,  the  Commission,  in  cooperation  with  the  Member  State(s)  concerned,  shall 
submit a report to the European Parliament and the Council. The report may be accompanied 
by  a  proposal  amending  this  Regulation  in  order  to  transfer  the  third  country  concerned  to 
Annex I. 

5. Where the Commission has proposed an amendment to this Regulation in order to transfer 
a  third  country  to  Annex  I  pursuant  to  paragraph  4,  it  can  extend  the  validity  of  the 
implementing  decision  adopted  pursuant  to  paragraph  3  for  a  period  of  maximum  nine 
months. The decision to extend the validity of the implementing decision shall be adopted in 
accordance with the procedure referred to in Article 4a (2). 

3. 

Article 2 is replaced by the following: 

"For the purposes of this Regulation, "visa" shall mean an authorisation issued by a Member 
State with a view to transit through or an intended stay in the territory of the Member States 
of  a  duration  of  no  more  than  three  months  in  any  six-month  period  from  the  date  of  first 
entry in the territory of the Member States." 

4. 

(a) 

Article 4 is amended as follows: 

Paragraph 1 is replaced by the following: 

"1.  A  Member  State  may  provide  for  exceptions  from  the  visa  requirement  provided  for  by 
Article 1 (1) or from the exemption from the visa requirement provided for by Article 1 (2) as 
regards: 

(a)  holders of diplomatic passports, service/official passports or special passports; 

(b) 

the civilian crew of ships navigating in international waters; 

(c) 

the  holders  of  laissez-passer,  diplomatic  or  service  passports  issued  by  some 
intergovernmental  international  organisations  or  by  other  entities  subject  to 
international law to their officials." 

(b) 

in paragraph 2 the following point (d) is added: 

"(d)  recognised  refugees  and  stateless  persons  and  other  persons  who  do  not  hold  the 
nationality of any country who reside in the United Kingdom or in Ireland and are holders of a 
travel document issued by those Member States". 

(c) 

A new paragraph 4 is added: 

"To the extent imposed by the application of Article 41(1) of the Additional Protocol to the 
Association  Agreement  between  Turkey  and  the  EC,  a  Member  State  may  provide  for 
exceptions  from  the  visa  requirement  provided  for  by  Article  1(1),  as  regards  Turkish 
nationals providing services during their stay." 

5. 

The following Article 4a is inserted: 

"Article 4a 

EN 

17 

   EN 

 
Committee procedure 

1.  The  Commission  shall  be  assisted  by  a  committee.  That  committee  shall  be  a  committee 
within the meaning of Regulation (EU) No 182/2011. 

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall 
apply." 

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 

The President 

For the Council 

The President 

EN 

18 

   EN