Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1931/2006 as regards the inclusion of the Kaliningrad area and certain Polish administrative districts in the eligible border area
Date: 2011-07-27
Institutions: European Commission
Subjects: Schengen Agreement, border control, external border of the EU, foreign national, frontier region, residence permit

EUROPEAN COMMISSION 

Brussels, 27.7.2011 
COM(2011) 461 final 

2011/0199 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 1931/2006 as regards the inclusion of the Kaliningrad 
area and certain Polish administrative districts in the eligible border area 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

It  is  in  the  interest  of  the  enlarged  European  Union  to  ensure  that  the  borders  with  its 
neighbours  are  no  barriers  to  trade,  social  and  cultural  interchange  or  regional  cooperation 
with neighbouring countries. Therefore, the Council and the European Parliament adopted in 
2006 a Regulation laying down rules on local border traffic at the external land borders of the 
Member  States1  ("Local  Border  Traffic  Regulation")  which  allows  derogating,  for  persons 
living  in  a  border  area,  from  the  general  rules  on  border  checks  set  out  in  the  Schengen 
Borders  Code.  The  Regulation  authorises  Member  States  to  conclude  bilateral  agreements 
with  neighbouring  non-EU  countries,  provided  these  agreements  fully  comply  with  the 
parameters set by the Regulation. 

In February 2011, the Commission concluded in its second report2 that the local border traffic 
regime makes life significantly easier for people living near the external land borders, while at 
the same time there is little evidence that the regime is being abused. 

The Commission also stated that given the specific position of Kaliningrad -the Kaliningrad 
region of the Russian Federation with a population of almost one million inhabitants became 
the only enclave within the EU as a consequence of the 2004 EU enlargement- an amendment 
of the Local Border Traffic Regulation may be justified. 

Indeed, the Kaliningrad enclave has an exceptional geographic position as a relatively small 
area which is completely surrounded by two EU Member States; the oblast in its entirety has 
the  character  of  a  border  area.  There  are  no  other  areas  within  Europe  with  a  similar 
geographic situation constituting an enclave. 

In  order  to  avoid  Kaliningrad's  isolation  from  its  immediate  neighbours,  there  is  a  need  to 
facilitate travel for its inhabitants. 

Even  though  the  EU-Russian  Federation  agreement  on  visa  facilitation  in  force  since  2007 
already  is  a  significant  step  forward  to  enhance  opportunities  for  mobility,  the  local  border 
traffic  regime  offers  additional  facilitations  specifically  for  regular,  even  daily,  needs  for 
travel within the local area. For examples, applicants will not have to prove sufficient means 
of  subsistence,  the  permit  may  be  issued  free  of  charge,  or  separate  lanes  and/or  specific 
border crossing points could be reserved or set up for local border traffic. Also, all residents 
of  the  Kaliningrad  area  would  enjoy  these  facilitations,  whereas  some  of  the  facilitations  in 
the EU-Russian Federation visa facilitation agreement apply to certain categories of persons 
only. 

In  order  also  to  prevent  an  artificial  division  of  the  Kaliningrad  oblast,  whereby  some 
inhabitants would enjoy facilitations for local border traffic while the majority (including the 
inhabitants  of  the  city  of  Kaliningrad)  would  not,  the  entire  Kaliningrad  area  should  be 
eligible  as  a  border  area  in  a  bilateral  agreement  between  a  Member  State  and  the  Russian 
Federation. It should be noted that this eligible border area could not be extended any further. 

In this context, and for the Regulation to have real effect in that region, a specific border area 
on the Polish side should be included in the eligible border area as well, in order to facilitate 

1 
2 

Regulation No 1931/2006 of 20 December 2006, OJ L 405, 30.12.2006, p1 
COM (2011) 47 of 9 February 2011. 

EN 

2 

   EN 

 
                                                 
and  enhance  economic  and  cultural  interchange  between  the  Kaliningrad  oblast  on  the  one 
hand and major centres in the North of Poland on the other. 

It is underlined that this exceptional extension of the border zone in the Kaliningrad area does 
not affect the general definition of the eligible border area (the 30/50 km zone). Also, all rules 
and conditions in the Local Border Traffic Regulation that guarantee the security of the entire 
Schengen area continue to apply. In particular, the local border traffic permits will continue to 
have  the  security  features  as  set  out  in  the  Regulation,  and  local  border  traffic  permits  may 
only be issued to applicants who fulfil all conditions set out in the Regulation. Also, Poland is 
obliged  to  ensure  that  any  abuse  of  the  local  border  traffic  regime  is  subject  to  effective, 
proportionate  and  dissuasive  penalties,  which  shall  include  the  possibility  of  cancelling  and 
revoking  local  border  traffic  permits.  In  this  context,  the  Polish  authorities  have  already 
committed themselves to launch targeted information campaigns and to mark clearly the local 
border traffic area. 

This  proposal  will  contribute  to  further  promoting  the  strategic  partnership  between  the  EU 
and the Russian Federation, in line with the priorities set out in the Roadmap of the Common 
Space  on  Freedom,  Security  and  Justice  regarding  cross-border  cooperation  and  shall  be 
considered in the context of the overall EU - Russian Federation relationship. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES 

On the basis of the second Commission report on the functioning of the Local Border Traffic 
regime,  Member  States  discussed  the  opportunity  of  addressing  the  specific  solution  of  the 
Kaliningrad enclave in the relevant fora. 

A  majority  of  Member  States  is  in  favour  of  such  a  solution,  on  condition  that  no  new 
discussion  would  take  place  on  the  general  definition  of  the  border  zone,  and  that  this 
exception would constitute a specific and unique solution for the sole case of the Kaliningrad 
enclave. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

The proposal is based on Article 77 (2) (b) of the Treaty on the Functioning of the European 
Union. 

The proposal amends the Local Border Traffic Regulation, which was based on the equivalent 
provision of the Treaty establishing the European Community, i.e. Article 62 (2) (a) (external 
borders). 

4. 

BUDGETARY IMPLICATION 

The proposed amendment has no implications for the EU budget. 

EN 

3 

   EN 

 
2011/0199 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 1931/2006 as regards the inclusion of the Kaliningrad 
area and certain Polish administrative districts in the eligible border area 

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) (b) 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) 

Union rules on local border traffic, established by Regulation (EC) No 1931/2006 of 
the European Parliament and of the Council of 20 December 2006 laying down rules 
on local border traffic at the external land borders of the Member States and amending 
the  provisions  of  the  Schengen  Convention3,  in  force  since  2007,  have  avoided 
creating barriers to trade, social and cultural interchange or regional cooperation with 
neighbouring countries, while preserving the security of the entire Schengen area. 

The Kaliningrad oblast has an exceptional geographic situation: as a relatively small 
area completely surrounded by two Member States, it constitutes the only enclave in 
the  EU;  its  shape  and  the  distribution  of  its  population  are  such  that  applying  the 
standard rules on the definition of the border area would artificially divide the enclave, 
whereby  some  inhabitants  would enjoy facilitations for local border traffic  while the 
majority, including the inhabitants of the city of Kaliningrad, would not. In light of the 
homogeneous  nature  of  the  Kaliningrad  oblast,  for  trade,  social  and  cultural 
interchange  and  regional  cooperation  to  be  enhanced,  a  specific  exception  to 
Regulation  (EC)  No  1931/2006  should  be  introduced  that  would  allow  the  entire 
Kaliningrad oblast to be considered as a border area. 

(3) 

A specific border area on the Polish side should also be recognised as eligible border 
area,  in  order  for  the  application  of  Regulation  (EC)  No  1931/2006  in  that  region  to 
have  real  effect  through  increased  opportunities  for  trade,  social  and  cultural 
interchange and regional cooperation between the Kaliningrad oblast on the one hand 
and major centres in the North of Poland on the other. 

3 

OJ L 405, 30.12.2006, p. 1. 

EN 

4 

   EN 

 
                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

This  Regulation  is  without  prejudice  to  the  general  definition  of  the  border  area  and 
the full respect of the rules and conditions set out in Regulation (EC) No 1931/2006, 
including  penalties  to  be  imposed  by  Member  States  on  border  residents  who  abuse 
the local border traffic regime.  

This Regulation contributes to further promoting the strategic partnership between the 
European Union and the Russian Federation, in line with the priorities set out in the 
Roadmap  of  the  Common  Space  on  Freedom,  Security  and  Justice  and  takes  into 
account the overall European Union – Russian Federation relationship. 

Since  the  objective  of  this  Regulation,  namely  to  provide  for  amendment  to  the 
existing  Union  rules  on  local  border  traffic,  cannot  be  sufficiently  achieved  by  the 
Member  States  and  can  be  better  achieved  at  Union  level,  the  Union  may  adopt 
measures in accordance with the principle of subsidiarity as set out in Article 5 of the 
Treaty on European Union. In accordance with the principle of proportionality, as also 
set out in that Article, this Regulation does not go beyond what is necessary in order to 
achieve this objective. 

In accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark, 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European Union, Denmark is not taking part in adoption of this Regulation and is not 
bound  by  it  or  subject  to  its  application.  Given  that  this  Regulation  builds  upon  the 
Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide 
within a period of six months after the Council has decided on this Regulation whether 
it will implement it in its national law. 

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 
acquis4;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 participate, 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 acquis5; Ireland is therefore not taking part in its adoption 
and is not bound by it or subject to its application.  

(10)  As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of 
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  association  of  those  two  States  with  the  implementation, 
application  and  development  of  the  Schengen  acquis6,  which  fall  within  the  area 

4 
5 
6 

OJ L 131, 1.6.2000, p. 43. 
OJ L 64, 7.3.2002, p. 20. 
OJ L 176, 10.7.1999, p. 36. 

EN 

5 

   EN 

 
                                                 
referred  to  in  Article  1,  point  A,  of  Council  Decision  1999/437/EC  on  certain 
arrangements for the application of that Agreement7. 

(11)  As regards Switzerland, this Regulation constitutes a development of the provisions of 
the Schengen acquis within the meaning of as provided for by the Agreement between 
the  European  Union,  the  European  Community  and  the  Swiss  Confederation  on  the 
Swiss  Confederation's  association  with 
implementation,  application  and 
development of the Schengen acquis8 which fall within the area referred to in Article 
1,  point  A,  of  Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council 
Decision 2008/146/EC9.  

the 

(12)  As regards Liechtenstein, this Regulation constitutes a development of the provisions 
of  the  Schengen  acquis  within  the  meaning  of  the  Protocol  concluded  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 A, of Council Decision 1999/437/EC of 17 May 1999, 
read in conjunction with Article 3 of Council Decision 2011/350/EU10. 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) 1931/2006 is amended as follows: 

(1) 

At the end of Article 3 point 2, the following is added: 

"The areas listed in the annex to this Regulation shall be considered as border area." 

(2) 

An Annex is added as presented in the Annex to this Regulation. 

This Regulation shall enter into force on the 20th day following that of its publication in the 
Official Journal of the European Union. 

Article 2 

7 
8 
9 
10 

OJ L 176, 10.7.1999, p. 31. 
OJ L 53, 27.2.2008, p. 52. 
OJ L 53, 27.2.2008, p. 52. 
OJ L 160, 18.6.2011, p 19. . 

EN 

6 

   EN 

 
                                                 
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 

7 

   EN 

 
ANNEX 

‘Annex: 

1. Kaliningrad Oblast 

2.  Polish  administrative  districts  (powiaty)  of  województwo  pomorskie:  pucki,  m. 
Gdynia, m. Sopot, m. Gdańsk, gdański, nowodworski, malborski  

3.  Polish  administrative  districts  (powiaty)  of  województwo  warmińsko-mazurskie: 
m.  Elbląg,  elbląski,  braniewski,  lidzbarski,  bartoszycki,  m.  Olsztyn,  olsztyński, 
kętrzyński, mrągowski, węgorzewski, giżycki, gołdapski, olecki. ’ 

EN 

8 

   EN