Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 810/2009 of 13 July 2009 establishing a Community Code on Visas (Visa Code)
Date: 2011-08-30
Institutions: European Commission
Subjects: EC Regulation, EU visa policy, Schengen Agreement, administrative formalities, amendment of a law

EUROPEAN COMMISSION 

Brussels, 30.8.2011 
COM(2011) 516 final 

2011/0223 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 810/2009 of 13 July 2009 establishing a Community Code 
on Visas (Visa Code) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Regulation  (EC)  No  810/2009  of  the  European  Parliament  and  of  the  Council  of  13  July  2009 
establishing  a  Community  Code  on  Visas1  became  applicable  on  5  April  2010.  In  accordance  with 
Article 51 of the Visa Code operational instructions on the practical application of the provisions of the 
Regulation  have  been  drawn  up  by  the  Commission  Decision  establishing  the  Handbook  for  the 
processing of visa applications and the modification of issued visas adopted on 19.3.20102.  

During the preparation of the Handbook, it has been observed that the formulation of of Article 3 (5) 
(b) and (c) was unclear: 

(a) 

(b) 

(c) 

in Article 3 (5) (b) relating to the exemption from airport transit visa requirements of holders 
of  residence  permits  issued  by  specific  countries,  the  reference  to  Member  States  of  the 
European Union which do not take part in the adoption of the present Regulation and to the 
Member States of the European Union which do not yet apply the provisions of the Schengen 
acquis  in  full  (currently  Bulgaria,  Ireland,  Cyprus,  Romania  and  United  Kingdom)  has  been 
omitted; 

in Article 3 (5) (c) relating to the exemption from airport transit visa requirements of holders 
of  visas  issued  by  specific  countries,  the  reference  to  the  Member  States  of  the  European 
Union  which  do  not  take  part  in  the  adoption  of  the  present  Regulation  and  to  the  Member 
States of the European Union which do not yet apply the provisions of the Schengen acquis in 
full (currently Bulgaria, Ireland, Cyprus, Romania and United Kingdom) has been omitted. 

Additionally,  during  the  preparation  of  the  Handbook,  it  has  been  observed  that  the 
formulation  of  the  current  wording  of  Article  3  (5)  (c)  allows  for  two  interpretations,  and  it 
should be clarified that holders of visas issued by the Member States of the European Union 
which do not take part in the adoption of the present Regulation and by the Member States of 
the European Union which do not yet apply the provisions of the Schengen acquis in full and 
by specific third countries are exempt from the airport transit requirements when they travel to 
the  visa  issuing  country  or  to  any  other  third  country  and,  after  having  used  the  visa,  when 
they return from the issuing state (but not when they return from any other third country). 

(d) 

The reference to states party to the Agreement on the European Economic Area is redundant 
as the  latter are either Member States covered by Article 3 (5) (a) or associated countries to 
whom Article 3(5)(a) applies via the respective association agreement or protocol.. 

Before April 2010, the Common Consular Instructions (CCI) and Joint Action 96/197/JHA3, set out the 
provisions  on  the  third  countries  whose  nationals  were  subject  to  the  ATV  requirement.  Those 
provisions applied to all persons of a given nationality except if they held a residence permit issued by 
Ireland, the United Kingdom or by certain third states (Canada, USA, Japan etc) as it was assumed that 
such persons would not present a risk of illegal immigration for the Schengen States. 

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3 

OJ L 243 of 15.9.09 
C(2010)1620 final 
OJ L 63 of 13.3.1996, p. 8. 

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In 2008, certain Member States took the initiative to amend the CCI, Annex 3, to provide that for the 
same  reason  also  holders  of  visas  issued  by  certain  third  states  should  be  exempt  from  the  ATV 
requirement when  the  visa  holder travelled  to the third state (or Ireland or the United Kingdom) that 
issued the visa or to any other third state. Similarly, the person concerned would be exempt from the 
ATV  requirement  when  he  returned  from  the  visa  issuing  third  state  after  having  used  the  visa.  He 
would  not  be  exempt  when  returning  from  any  other  third  country  than  the  issuing  country  because 
given that he no longer holds a visa valid for one of the countries referred to in Article 3 (5) (c), it can 
no longer be assumed that he does not present a risk of illegal immigration for the Schengen States. 

These provisions were to be adopted in the Visa Code, but essential words were omitted in Article 3 (5) 
(b) and (c) with the effect that the legal situation is unclear. 

During  the  drafting  of  the  Handbook,  it  was  considered  to  remedy  the  problem  via  guidelines  that 
express this intention. As the Handbook cannot create legally binding obligations on Member States, it 
is necessary to  amend the  Visa  Code to establish legal certainty and a harmonised application of the 
rules. Such clarification is of practical importance for individual travellers and for airline companies. 

The proposal is limited to the technical amendment consisting in clarifying the existing text. 

2. 

RESULTS  OF  CONSULTATIONS  WITH  THE  INTERESTED  PARTIES  AND 
IMPACT ASSESSMENTS 

The two aspects covered by the proposal have been discussed in the Visa Committee and in the Visa 
Working Party and Member States have supported the Commission taking the initiative for a limited 
amendment of the Visa Code. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Article 3 (5) (b) and (c) of the Visa Code should be amended to clarify that: 

– 

– 

third country nationals holding a valid visa or residence permit issued by a Member State not 
applying the common visa policy in full are to be covered by the ATV exemption; 

the  ATV  exemption  covers  the  persons  holding  a  valid  visa  when  they  travel  to  the  third 
country  that  issued  the  visa,  to  any  other  third  country,  and  when  having  used  the  visa  they 
visa.
country 
return 

issued 

from 

third 

that 

the 

the 

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2011/0223 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 810/2009 of 13 July 2009 establishing a Community Code on Visas 
(Visa Code) 

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) 

It  is  necessary  to  clarify  the  rules  on  transit  through  international  areas  of  airports  to  ensure 
legal certainty and transparency. 

Third country nationals subject to the airport transit visa requirement under Article 3(1) and (2) 
of  Regulation  (EC)  No  810/2009  who  hold  a  valid  visa  issued  by  a  Member  State,  Canada, 
Japan or the United States of America or who hold a valid residence permit issued by a Member 
State, Andorra, Canada, Japan, San Marino or the United States of America are exempted from 
the  airport  transit  visa  requirement.  It  should  be  clarified  that  this  exemption  also  applies  to 
holders of valid visas or residence permits issued by the Member States of the European Union 
which do not take part in the adoption of the present Regulation and by the Member States of 
the European Union which do not yet apply the provisions of the Schengen acquis in full. 

As  regards  persons  holding  a  valid  visa  the  exemption  should  apply  when  they  travel  to  the 
issuing country or any other third country and when they return from the issuing country after 
having used the visa. 

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 

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(5) 

(6) 

(7) 

(8) 

(9) 

acquis4,  which  fall  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 Agreement5. 

As  regards  Switzerland,  this  Regulation  constitutes  a  development  of  the  provisions  of  the 
Schengen  acquis  within  the  meaning  of  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  acquis6,  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/EC7. 

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 2011/350/EC8. 

In  accordance  with  Articles  1  and  2  of  the  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 the 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 acquis9; 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 
acquis10; Ireland is therefore not taking part in its adoption and is not bound by it or subject to 
its application. 

(10)  As regards Cyprus, this Regulation constitutes an act building upon or otherwise related to the 

Schengen acquis within the meaning of Article 3(2) of the 2003 Act of Accession. 

(11)  This  Regulation  constitutes  an  act  building  upon  or  otherwise  related  to  the  Schengen  acquis 

within the meaning of Article 4(2) of the 2005 Act of Accession, 

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10 

OJ L 176, 10.7.1999, p. 36. 
OJ L 176, 10.7.1999, p. 31. 
OJ L 53, 27.2.2008, p.52. 
OJ L 53, 27.2.2008, p. 1. 
OJ L 160, 18.6.2011, p. 19. 
OJ L 131, 1.6.2000, p. 43. 
OJ L 64, 7.3.2002, p. 20. 

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HAVE ADOPTED THIS REGULATION: 

Article 1 

In Article 3 (5) of Regulation (EC) No 810/2009 points (b) and (c) are replaced by the following: 

"(b) 

(c) 

third-country  nationals  holding  a  valid  residence  permit  issued  by  a  Member  State  of  the 
European  Union  which  does  not  take  part  in  the  adoption  of  the  present  Regulation  or  by  a 
Member State of the European Union which does not yet apply the provisions of the Schengen 
acquis  in  full,  or  holding  one  of  the  valid  residence  permits  listed  in  Annex  V  issued  by 
Andorra, Canada, Japan, San Marino or the United States of America guaranteeing the holder's 
unconditional readmission; 

third country nationals holding a valid visa for a Member State of the European Union which 
does  not  take  part  in  the  adoption  of  the  present  Regulation  or  for  a  Member  State  of  the 
European  Union  which  does  not  yet  apply  the  provisions  of  the  Schengen  acquis  in  full, 
Canada, Japan or the United States of America, when travelling to the issuing country or any 
other third country, or when having used the visa they return from the issuing country;". 

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

Article 2 

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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