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: 2012-11-07
Institutions: European Commission
Subjects: EU visa policy, Schengen Agreement, external border of the EU, foreign national

EUROPEAN 
COMMISSION 

Brussels, 7.11.2012  
COM(2012) 650 final 

2012/0309 (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 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, Annex I) and those whose nationals are exempt from that requirement (the so-
called positive list, Annex II). 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  relevant  legal  basis  is  now  Article  77  (2)  (a)  of  the  Treaty  on  the 
Functioning of the European Union (TFEU). 

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

As  the  criteria  set  out  in  Regulation  (EC)  No  539/2001  can  evolve  over  time  in  relation  to 
third  countries,  the  composition  of  the  negative  and  positive  lists  should  be  reviewed  at 
regular  intervals.  In  the  Stockholm  Programme  adopted  in  December  2009  the  European 
Council  specifically  requested  the  Commission  to  keep  the  lists  of  third  countries  whose 
nationals are or are not subject to a visa requirement under regular review in accordance with 
appropriate  criteria  relating  to  illegal  immigration,  public  policy  and  security,  while  taking 
account of the Unions internal and external policy objectives. 

Hence, Regulation (EC) No 539/2001 has been amended eight times2, since it was adopted, 
most recently in 2010 with regard to the transfer of Taiwan to the positive list and also to the 
outcome of visa liberalisation dialogues by transferring Albania and Bosnia and Herzegovina 
to the positive visa list. 

The  European  Parliament  and  the  Council  are  negotiating  a  number  of  amendments  to  the 
provisions of Regulation (EC) No 539/2001 proposed by the Commission3: to introduce a visa 
safeguard clause temporarily suspending the visa waiver for a third country on the positive list 
in  the  event  of  an  emergency  situation;  to  strengthen  legal  certainty  by  providing  rules  for 
certain situations not yet covered by the Regulation; and to adjust provisions in the light of the 
recent changes brought by the Lisbon Treaty and secondary legislation, for instance the Visa 
Code (Council Regulation (EC) No 810/2009).4 

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4 

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) 
COM (2011) 290 final  
OJ L 243 15.9.2009, p. 1. 

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The lists annexed to Regulation (EC) No 539/2001 need to be regularly reassessed in general 
in the light of the appropriate, above mentioned criteria defined in the Regulation. 

This review of the lists annexed to the Regulation therefore aims to ensure that: 

• 

• 

the  composition  of  the  lists  of  third  countries  complies  with  the  criteria  set  out  in 
recital  5  of  the  Regulation,  in  particular  the  illegal  immigration  and  public  policy 
criteria and the transfer of countries from one annex to another as appropriate; 

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. 

2. Elements of the proposal  

2.1 Transfer of third countries from the negative list (Annex I) to the positive list (Annex 

II)  

In  line  with  the  approach  adopted  in  relation  to  earlier  changes  to  Regulation  (EC)  No 
539/2001  for  the  purposes  of  the  regular  review  of  the  lists,  the  Commission  has  asked  the 
Member  States  whether,  in  their  opinion,  the  annexes  to  the  Regulation  as  they  stand  still 
correspond to the criteria determined by the Regulation. There were no suggestions from the 
Member  States  to  transfer  third  countries  from  the  positive  to  the  negative  list.  The 
Commission  did  receive  suggestions  for  transfers  from  the  negative  to  the  positive  list  with 
regard  to  a  number  of  third  countris.  Some  third  countries  approached  the  Commission 
directly with a request to be transferred to the positive list. The information transmitted by the 
Member  States  (the  Commission  received  20  replies)  has  been  analysed,  along  with 
information from other sources, including from the EU Delegations responsible for the third 
countries  concerned,  and  statistics  supplied  by  Eurostat  on  immigration  flows,  asylum  and 
enforcement  measures  against  irregular  migration.5  The  analysis  has  led  the  Commission  to 
conclude that, at this stage, the countries and British citizens listed in the subsections below 
should be transferred to the positive list. 

2.1.1 Caribbean Island Nations  

The Commission analysed the available information, including statistics, on each of the third 
countries proposed by Member States. Particular attention was paid to: the country's level of 
economic and social development, the risk it poses of irregular immigration to the European 
Union, external relations issues and regional coherence. 

The  Commission  came  to  the  conclusion  that  there  was  no  longer  any  justification  for 
imposing a visa requirement on nationals of Dominica, Grenada, Saint Lucia, Saint Vincent 
and  the  Grenadines  or  Trinidad  and  Tobago.  A  significant  number  of  Member  States 
suggested that these countries be moved from the negative list to the positive list. These five 
countries do not represent any risk of irregular immigration or public order and security to the 
Member  States  of  the  Union  in  accordance  with  the  criteria  set  out  in  recital  5  of  the 
Regulation. Furthermore, these third countries are well-established democracies. They have a 
good standard of living and a stable, growing economy in the region. They have proved that 

5 

In accordance with European Parliament and Council Regulation (EC) 862/2007 of 11 July 2007 (OJ, L 
199 31.07.2007, p. 23 

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they  are  able  to  face  the  current  global  economic  crisis  and  improve  their  already  good 
relationships  with  both  the  Union  and  the  international  financial  institutions.  The  2006 
revision of Regulation (EC) No 539/20016 has already transferred four countries located in the 
same  region  to  the  positive  list  and  the  waiving  of  the  visa  for  the  citizens  of  these  four 
countries has not had any negative effect with respect to irregular migration or security. It is 
accordingly proposed that Dominica, Grenada, Saint Lucia, Saint Vincent and the Grenadines 
and Trinidad and Tobago be transferred from the negative list to the positive list. 

It is also worth mentioning that four Member States are represented in Trinidad and Tobago 
(France,  Germany,  the  Netherlands  and  Spain).  Only  one  Member  State  (France)  has  a 
consulate  in  Saint  Lucia,  which  is  a  popular  tourist  destination.  Since  there  is  no 
representation  of  any  Member  State  in  Grenada,  Dominica  or  Saint  Vincent  and  the 
Grenadines, their citizens need to request Schengen visas abroad, involving significant costs. 
Both Grenada and Saint Lucia have only one representation in the Schengen Member States 
and a High Commission in the United Kingdom. 

In Trinidad and Tobago all EU citizens are currently exempt from the visa obligation, albeit 
under  different  conditions  and  for  different  periods  of  stay  (only  one  month  for  citizens  of 
Slovakia,  Slovenia,  the  Czech  Republic,  Poland,  Bulgaria,  Romania,  Hungary,  Lithuania, 
Latvia  and  Estonia).  In  the  other  four  Caribbean  countries  nationals  of  all  Union  Member 
States are exempt from the visa requirement for stays of up to180 days. 

As regards the criteria  of  public order and irregular immigration, particular attention should 
also be paid to the security of travel documents issued by the third countries concerned. When 
the  Regulation  was  last  modified,  the  Commission  announced  that  future  transfers  to  the 
positive  list  might  depend  on  meeting  specific  conditions  relating  to  the  security  of  travel 
documents.  As  a  result,  the  issuing  of  biometric  passports  was  set  as  a  condition  for 
transferring of Western Balkan countries from the negative to the positive visa list, given the 
weaknesses of the former passport systems in the region concerned and the ensuing problems. 
However, taking into account the high level of security of the CARICOM travel documents of 
the countries concerned by this amendment, as well as the regional coherence with another set 
of  countries  transferred  to  the  positive  list  by  a  recent  amendment  of  Regulation  (EC)  No 
539/2001  (Regulation  (EC)  No  1932/2006)  in  the  same  region,  the  issuing  of  biometric 
passports should not be a requirement for transferring Dominica, Grenada, Saint Lucia, Saint 
Vincent and the Grenadines or Trinidad and Tobago. These third countries have highly secure 
CARICOM  machine-readable  passports  and  they  intend  to  replace  their  passports  by 
biometric ones in the near future. 

In  order  to  ensure  consistency  with  previous  visa  exemptions  for  countries  in  the  same 
Caribbean region, considering that these visa exemptions had no negative consequences, and 
in order to guarantee full reciprocity in the future for visa-free short stays of three months in a 
six-month  period  with  those  countries  (which  is  not  entirely  the  case  at  present,  namely  in 
Trinidad  and  Tobago),  the  visa  exemption  for  the  nationals  of  those  countries  should  not 
apply until a visa waiver agreement between the European Union and the countries concerned 
has been concluded and has entered into force. 

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Regulation (EC) No 1932/2006 of 21 December 2006 (OJ L 405 30.12.2006, p. 23) 

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2.1.2. Pacific Island Nations 

After examining the criteria relating to illegal immigration, public policy and security and the 
Union's  external  relations,  the  Commission  considers  that  Kiribati,  the  Marshall  Islands, 
Micronesia,  Nauru,  Palau,  Samoa,  the  Solomon  Islands,  Timor-Leste  Tonga,  Tuvalu  and 
Vanuatu should be transferred to the positive list of Regulation (EC) No 539/2001. 

Recent  statistics  show  that  none  of  those  countries  is  a  source  of  irregular  migration  to  the 
EU. 

The  passports  issued  by  these  countries  are  machine-readable7  and  contain  a  sufficient 
number of security features. As explained above for the Caribbean Island Nations, the issuing 
of  biometric  passports  by  the  Pacific  Island  Nations  should  not  be  a  pre-condition  for 
exempting their nationals from the visa obligation. 

Only two Member States are present in any of these countries: Portugal in Timor-Leste and 
France  in  Vanuatu.  The  limited  presence  of  Member  States  in  the  region  may  entail 
significant costs for applicants for a Schengen visa. 

Fiji belongs to this region but in the light of the current political situation in the country and 
the lack of progress in complying with the essential elements of the Cotonou Agreement, it is 
not considered appropriate to propose transferring it to the positive list. 

Papua New Guinea is also located in the region, but it is a very different in terms of the size of 
its population and its area. Moreover, it is currently experiencing difficult political conditions, 
which prevents it from being included on the visa-free list at this stage. 

Most of those Pacific Island Nations waive the visa obligation for the nationals of most of the 
Member States. However, in order to guarantee full reciprocity in the future with these Pacific 
Island Nations for short stays of three months in a six-month period for the future, and ensure 
consistency  with  previous  visa  exemptions,  nationals  of  these  countries  should  not  benefit 
from the visa exemption until a visa waiver agreement between the Union and the countries 
concerned has been concluded and has entered into force. 

2.1.3. Specific categories of British nationals  

The  2006  revision  of  Regulation  (EC)  No  539/20018  tried  to  clarify  the  situation  of  British 
citizens who are not nationals of the United Kingdom of Great Britain and Northern Ireland 
for the purposes of Union law. Some of them (the group of British nationals (overseas)) were 
listed  under  a  new  section  of  Annex  II,  while  the  remainder  (British  overseas  territories 
citizens who do not have the right of abode in the United Kingdom, British overseas citizens, 
British  subjects  who  do  not  have  the  right  of  abode  in  the  United  Kingdom  and  British 
protected persons) were listed under a new section of Annex I. This differentiation was judged 
necessary  at  the  time  because,  among  other  reasons,  there  was  believed  to  be  a  risk  of 
irregular immigration. 

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Kiribati is in the process of upgrading its passports to machine-readable ones, with the support of the 
Australian Department of Immigration. 
Regulation (EC) No 1932/2006 of 21 December 2006 (OJ L 405 30.12.2006, p. 23) 

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However,  statistics  for  the  past  three  years  on  refusals  at  borders  and  apprehensions  of 
irregular  migrants  show  that  British  citizens  under  the  visa  obligation  do  not  pose  a  risk  in 
terms of irregular migration to the Schengen area, as the figures are negligible. Some of them 
have the right of abode in the United Kingdom. Moreover, most of them reside in islands of 
the  Caribbean  region  (Bermuda,  Turks  and  Caicos,  Montserrat,  etc.),  which  have  strong 
similarities with countries of the same region which are gradually being transferred to Annex 
II (see 2.1.1. above). Regional coherence would therefore require these persons to be treated 
in a similar way. The number of people included within the four groups of British nationals 
currently mentioned in Annex I is estimated to be below 300 000. 

The  security  of  the  British  nationals'  travel  documents  is  ensured,  as  such  documents  are 
made  in  the  United  Kingdom  according  to  strict  technical  specifications.  They  are  machine 
readable and contain a number of security features. 

2.2. Update of the negative list (Annex I) : inclusion of South Sudan 

On 9 July 2011 South Sudan declared its formal independence from Sudan, which is included 
on  the  negative  list.  On  14  July  2011  it  became  a  member  of  the  United  Nations.  Annex  I 
must therefore be amended to include a reference to South Sudan. 

3. Main organisations/experts consulted 

Member States were consulted. 

4. Impact assessment 

Not necessary. 

5. Legal basis 

Regulation  (EC)  539/2001  was  originally  based  on  Article  62(2)(b)(i)  of  the  Treaty 
establishing  the  European  Community.  Now,  however,  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) 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 nationals are 
exempt from that requirement (the positive list). 

Any 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  Union  in  accordance  with  Article 
77(2)(a) TFEU. 

7. Choice of instruments 

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

8. Budgetary implications 

The proposed amendment has no implications for the Union budget. 

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2012/0309 (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 Commission, 

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

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

The  composition  of  the  lists  of  third  countries  in  Annexes  I  and  II  to  Council 
Regulation  (EC)  N°  539/2001  of  15  March  20019  should  be,  and  should  remain, 
consistent with the criteria laid down in recital 5 thereto. References to third countries 
for  which  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  nationals  of  Dominica,  Grenada, 
Kiribati,  Marshall  Islands,  Micronesia,  Nauru,  Palau,  Saint  Lucia,  Saint  Vincent  and 
the Grenadines, Samoa, Solomon Islands, Timor-Leste, Tonga, Trinidad and Tobago, 
Tuvalu and Vanuatu is no longer justified. These countries do not present any risk of 
illegal immigration or  a  threat to  public policy for  the Union in accordance with the 
criteria set out in recital 5 of Regulation (EC) N° 539/2001. Consequently, nationals of 
those countries should be exempt from the visa requirement for stays of no more than 
three months in all and references to those countries should be transferred to Annex II. 

Exemption  from  the  visa  requirement  for  nationals  of  Dominica,  Grenada,  Kiribati, 
Marshall  Islands,  Micronesia,  Nauru,  Palau,  Saint  Lucia,  Saint  Vincent  and  the 
Grenadines,  Samoa,  Solomon  Islands,  Timor-Leste,  Tonga,  Trinidad  and  Tobago, 
Tuvalu  and  Vanuatu  should  not  come  into  force  until  bilateral  agreements  on  visa 
waiver between the Union and the countries concerned have been concluded in order 
to ensure full reciprocity. 

(4) 

Statistical data show that the groups of British Nationals currently listed in point 3 of 
Annex I do not pose a risk in terms of irregular migration to the Schengen Area and 
that most of them live in islands of the Caribbean region which have strong links and 

9 

OJ L 81, 21.3.2001, p. 1. 

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(5) 

(6) 

(7) 

(8) 

(9) 

similarities  with  neighbouring  countries  which  are  exempt  from  the  visa  obligation. 
These  groups  of  British  Nationals  should  therefore  be  exempt  from  the  visa 
requirement  for  stays  of  no  more  than  three  months  in  all  and  references  to  those 
groups should be transferred to Annex II. 

Developments  in  international  law  entailing  changes  in  the  status  or  designation  of 
certain  states  or  entities  should  be  reflected  in  the  Annexes  to  Regulation  (EC)  No 
539/2001. Reference to South Sudan should be added to Annex I to that Regulation, as 
the country declared its independence on 9 July 2011 and was granted membership of 
the United Nations on 14 July 2011. 

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 latter's’ association with the  implementation, application and 
development of the Schengen acquis10, 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 Agreement.11 

As regards Switzerland, this Regulation constitutes a development of the provisions of 
the  Schengen  acquis  within  the  meaning  of  the  Agreement  signed  by  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 acquis12, which falls within the area referred to in Article 1, points (B) 
and  (C),  of  Council  Decision  1999/437/EC,  read  in  conjunction  with  Article  3  of 
Council Decision 2008/146/EC.13 

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,  points  (B)  and  (C),  of  Council  Decision  1999/437/EC,  read  in  conjunction  with 
Article 3 of Council Decision 2008/261/EC.14 

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 
acquis.15  The  United  Kingdom  is  therefore  not  taking  part  in  its  adoption  and  is  not 
bound by it or subject to its application. 

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14 
15 

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 83, 26.3.2008, p. 3. 
OJ L 131, 1.6.2000, p. 43. 

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(10)  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 acquis.16 Ireland is therefore not taking part in its adoption and is not 
bound by it or subject to its application. 

(11)  As  regards  Cyprus,  this  Regulation  constitutes  an  act  building  upon,  or  otherwise 
related to, the Schengen acquis within the meaning of Article 3(1) of the 2003 Act of 
Accession. 

(12)  This Regulation constitutes an act building upon, or otherwise related to, the Schengen 

acquis within the meaning of Article 4(1) of the 2005 Act of Accession, 

HAVE ADOPTED THIS REGULATION: 

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

1.  Annex I is amended as follows: 

Article 1 

(a) 

in  point  1,  the  references  to  Dominica,  Grenada,  Kiribati,  Marshall  Islands, 
Micronesia,  Nauru,  Palau,  Saint  Lucia,  Saint  Vincent  and  the  Grenadines,  Samoa, 
Solomon  Islands,  Timor-Leste,  Tonga,  Trinidad  and  Tobago,  Tuvalu  and  Vanuatu 
are deleted and a reference to South-Sudan is inserted; 

(b) 

point 3 is deleted;  

2.  Annex II is amended as follows: 

(a) 

in point 1, the following references are inserted: 

"Dominica*", 

"Grenada*", 

"Kiribati*" 

"Marshall Islands*", 

"Micronesia*", 

"Nauru*", 

"Palau*" 

"Saint Lucia*", 

"Saint Vincent and the Grenadines*", 

16 

OJ L 64, 7.3.2002, p. 20. 

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"Samoa*", 

"Solomon Islands*", 

"Timor-Leste*", 

"Tonga*", 

"Trinidad and Tobago*",  

"Tuvalu*" and 

"Vanuatu*". 

_________________ 

* "The exemption from the visa requirement shall apply from the date of entry into force of an 
agreement on visa exemption to be concluded with the European Union". 

(b) 

point 3 is replaced by the following  

"3. British citizens who are not nationals of the United Kingdom of Great Britain and 

Northern Ireland for the purposes of Union law: 

British nationals (Overseas)  

British overseas territories citizens (BOTC) 

British overseas citizen (BOC) 

British protected persons (BPP) 

British subjects (BS)" 

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 Council 

The President 

For the European Parliament 

The President 

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