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 and those whose nationals are exempt from that requirement
Date: 2013-11-27
Institutions: European Commission
Subjects: EU visa policy, International Civil Aviation Organisation, Moldova, Schengen Agreement, biometrics













EUR-Lex - 52013PC0853 - EN











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52013PC0853

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 and those whose nationals are exempt from that requirement /* COM/2013/0853 final - 2013/0415 (COD) */









EXPLANATORY
MEMORANDUM
1.           Context of the proposal
In proposing this
amendment to Regulation (EC) No 539/2001[1]
as last amended by Regulation (EU) No 1211/2010[2],
the Commission is pursuing the objective of adjusting the annexes to the
Regulation, taking into consideration the progress made by the Republic of
Moldova in its visa liberalisation dialogue during the last three years, and
transferring this country from Annex I (the list of third countries whose
nationals must be in possession of visas when crossing the external borders of
Member States) to Annex II (the list of those third countries whose nationals
are exempt from that requirement) of the Regulation; this transfer is in line
with the political commitment taken by the European Union in the Joint Declaration
approved at the Prague Eastern Partnership Summit on 7 May 2009, underlying the
importance of citizens' mobility and visa liberalization in a safe environment.
The EU committed to undertake gradual steps towards full long-term visa
liberalisation for partner countries, provided that conditions for well-managed
and secure mobility are in place. In the Joint Declaration on the occasion of
the EU-Republic of Moldova Cooperation Council meeting on 21 December 2009, it
was agreed to launch a dialogue examining the conditions for future visa-free
travel of Moldovan citizens to the EU.
General context and grounds for the
proposal
In 2001, in accordance with Article 62 (2)
(b) (i) of the Treaty Establishing the European Community, the Council adopted
Council Regulation (EC) No 539/2001 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.
As stated in Recital 5 of Regulation
539/2001, "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
be paid also 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 when
appropriate.
Regulation (EC) No 539/2001 was last
amended in 2010 (twice) reflecting, on the one hand, the outcome of the visa
liberalisation dialogues with the Western Balkan countries by transferring
Albania and Bosnia Herzegovina to Annex II; and, on the other hand, the regular
revision of the lists of countries by transferring Taiwan to Annex II. The
Commission proposed in November 2012[3]
another regular revision of the lists of countries. Negotiations are on-going
on this proposal. The next regular revision is planned for early 2014 and will
take into consideration economic impacts of visa liberalisation, as announced
by the Commission in its November 2012 Communication about visas and growth[4]. 
The present review of the Regulation aims
at ensuring that the composition of the lists of third countries complies with
the criteria set out in recital (5) of the Regulation in the light of progress
achieved by the Republic of Moldova in the framework of its visa liberalisation
dialogue.
2.           Elements of the proposal
Following explanatory talks in Chisinau on 2 March 2010, a Visa
Dialogue was formally opened on 15 June 2010, at the margins of the EU-Republic
of Moldova Cooperation Council meeting in Luxembourg. During September 2010,
expert visits to the Republic of Moldova have been carried out to conduct a
detailed "gap analysis" which provided a comprehensive assessment of
the situation in each block of issues covered by the Visa Dialogue (Document
security, including biometrics; Irregular immigration, including readmission;
Public order and security; External relations and fundamental rights) and was
presented to the Council, at working group level, in October 2010. In line with
the Council (Foreign Affairs) Conclusions of 25 October 2010 on the Republic of   Moldova and on the Eastern Partnership, a draft Action Plan on Visa
Liberalisation for the Republic of Moldova (VLAP) has been discussed and was endorsed
by the Council on 16 December 2010.
The Moldovan Government adopted the
National Annotated Action Plan on 17 February and presented it at the Senior
Officials Meeting on 18 February 2011.
The First Progress Report[5] on the implementation by the Republic of   Moldova of the Visa Liberalisation Action Plan was presented on 16 September
2011. 
The Second Progress Report[6] on the implementation by the Republic of   Moldova of the Action Plan on Visa Liberalisation was issued on 9 February
2012. A Senior Officials Meeting took place on 27 February 2012 during which
the Second Progress Report was presented and the next steps in the process were
discussed.
The Third Progress Report[7] on the implementation by the Republic of   Moldova of the Action Plan on Visa Liberalisation was issued on 22 June 2012.
It was the third and final progress report on the first phase of the VLAP and
it presented a consolidated assessment by the Commission of the progress made
by the Republic of Moldova in meeting the first phase benchmarks of the VLAP
related to the establishment of the legislative, policy and institutional
framework.
The wider assessment of possible migratory
and security impacts of future visa liberalisation for Moldovan citizens
travelling to the EU was issued on 3 August 2012 by the Commission involving
relevant EU agencies and stakeholders.[8]
On 19 November 2012 the Council adopted
Conclusions in line with the Commission's assessment that the Republic of Moldova has fulfilled all the benchmarks under the first phase of the Action Plan
on Visa Liberalisation. The required legislative, policy and institutional framework
has been put in place. Subsequently, the assessment of the benchmarks set out
under the second phase was launched. 
A Senior Officials Meeting took place on 28
January 2013 during which the objectives of the second phase were presented
alongside the preparation of the next evaluation missions. Evaluation missions
on Blocks 1, 2, 3 and 4 of the VLAP were organised from 18 February to 15 March
2013. The evaluation missions were unparalleled in terms of scope and details
of the assessment – 4 weeks involving 12 experts from Member States accompanied
by officials of the Commission and the EEAS. The purpose of these expert
missions was to assess the state of fulfilment of the second phase benchmarks
of the Action Plan on Visa Liberalisation and assess the state of implementation
of the legislative, policy and institutional framework, in compliance with the
European and international standards. The expert reports were finalised in May
2013. The Fourth Progress Report was issued on 21 June 2013[9] and it presented the state of
the implementation of the legislative and institutional framework, the
functioning of the institutions and the level of inter-agency coordination. 
The Fifth Progress Report[10] adopted on 15 November 2013 presents
the level to which recommendations issued in the Fourth Report have been
implemented and the overall fulfilment of the second phase VLAP benchmarks.
Special attention was paid to the sustainability of the reforms and the results
achieved, including through meaningful staffing, capacity and funding. It
includes an assessment on the state of the fulfilment of the recommendations
addressed to the Republic of Moldova contained in the Assessment of Impacts Report
of August 2012. The Commission concluded in the report that the Republic of
Moldova met all the benchmarks set in the four blocks of the second phase of
the VLAP, and that the Republic of Moldova has
allocated appropriate financial and human resources to ensure that the reforms
are sustainable. 
Since the launching of the EU-Republic of
Moldova Visa Dialogue in June 2010 and the presentation to the Moldovan
authorities of the Action Plan on Visa Liberalisation in January 2011, the
Commission has been regularly reporting to the European Parliament and to the
Council on the progress made by the Republic of Moldova in fulfilling the
benchmarks identified under the four blocks of the first and second phase of
the VLAP.
Over and above this extensive reporting
process related to the VLAP, the Commission has also continued to monitor the
progress made by the Republic of Moldova in relevant areas of the VLAP through:
·      the Senior Officials Meeting of the EU-Republic of Moldova Visa Dialogue;
·      the EU-Republic of Moldova Joint Sub-Committee n°3;
·      the Senior Officials Meeting of the EU-Republic of Moldova Mobility Partnership;
·      the EU-Republic of Moldova Human Rights Dialogue; 
·      the EU-Republic of Moldova Joint Readmission Committee; and
·      the EU-Republic of Moldova Joint Visa Facilitation Committee.
In each of these committees and dialogues
the state of the cooperation between the EU and the Republic of Moldova is regularly addressed. During the last Visa Facilitation and Readmission Joint
Committees that took place on 12 June 2013 in Brussels, with the participation
of Member States, the Commission registered an overall very satisfactory
implementation of both agreements.
The original EU-Republic of Moldova Visa Facilitation Agreement entered into force on 1 January 2008. It provided all the
citizens of the Republic of Moldova (hereinafter 'Moldovan citizens') with a reduced
visa fee and accelerated issuing procedures and specific categories of Moldovan
applicants with a visa fee waiver, wider issuance of multiple-entry visas with
a long period of validity, and simplified supporting document requirements to
prove the purpose of travel. It also contained a visa waiver for holders of
diplomatic passports.
On 1 July 2013, an upgraded Visa Facilitation Agreement with the Republic of   Moldova entered into force. This new agreement offers
additional facilitations and tangible benefits to Moldovan citizens: in
particular, (1) more categories of visa applicants benefit from the
facilitations foreseen in the initial agreement, (2) the provisions on the
issuing of multiple-entry visas with a long period of validity to certain categories
of bona fide travellers leave less discretion to the consuls, (3) the
cooperation of Member States with external service providers is subjected to a
clear legal framework, and (4) holders of biometric service passports are
exempted from the visa obligation.
The Mobility Partnership with the Republic of Moldova was officially
launched in September 2008 in Chisinau. It involves 15 Member States (Bulgaria,
Czech republic, Germany, Greece, France, Italy, Cyprus, Latvia, Hungary,
Poland, Portugal, Romania, Slovenia, Slovakia and Sweden) and two EU agencies
(FRONTEX and the European Training Foundation), who have worked together to
present a coherent approach to cooperation with a partner country. There is a
wide range of initiatives implemented in the context of the Partnership and it
fully reflects the four dimensions of the Global Approach to Migration and
Mobility (GAMM): enhancing legal migration and facilitating mobility,
preventing and combatting irregular migration and trafficking in human beings,
maximising the development impact of migration and mobility, and promoting
international protection.
The settlement of the Transnistrian issue is not a condition for
visa liberalisation under the VLAP. Furthermore, in the
VLAP there is no reference to territorial application. Visa liberalisation will
benefit the citizens that are holders of a biometric passport of the Republic of   Moldova. 
The present proposal reflects the outcome
of the above-mentioned processes: taking into account also that the Visa
Facilitation and Readmission Agreements with the Republic of Moldova have been
implemented in a satisfactory way, the Commission proposes to transfer the
Republic of Moldova, which is meeting all the VLAP benchmarks, from the
negative to the positive list, however with a limitation of this visa waiver to
the holders of biometric passports issued in accordance with ICAO standards.
3.           Next Steps
The EU-Republic of Moldova Visa Dialogue proved to be an important and particularly effective tool for advancing
far-reaching and difficult reforms in the Justice and Home Affairs area, but
also beyond impacting areas such as rule of law and justice reform, including
sound party financing, review of immunities and administrative modernisation.
The progress achieved by the Republic of Moldova during the last three years in
all the areas covered by the four blocks of the VLAP is steady and effective.
It demonstrates the commitment and the constant efforts made by the successive
Moldovan governments and all State institutions in making the fulfilment of the
VLAP benchmarks a national top priority. 
It is relevant to recall that the reforms
in several key areas covered by the VLAP were achieved in the first half of
2013 despite an unstable political situation that lasted for several months, which
indicate an appropriate level of good governance and maturity of the public
administration. 
Imminent amendments to
the EU visa rules introduce a new visa waiver suspension mechanism, which
contributes to preserving the integrity of the visa liberalisation process and
ensures as a measure of last resort that visa free travel shall not lead to
irregularities or abuse.
The Commission considers that since last
June the Republic of Moldova has made the necessary progress to
ensure the effective and sustainable implementation of the reforms it had to conduct in order to meet the VLAP benchmarks. All actions
required following the 4th VLAP progress report have been
accomplished. The functioning of the legislative and policy framework, the
set-up of the institutional and organisational principles, and the
implementation of the procedures throughout the four blocks are in compliance
with the relevant European and international standards. 
Building upon the
present assessment, and referring to the outcome of the continuous monitoring
and reporting made since the launch of the EU-Republic
of Moldova Visa Dialogue, the Commission considers
that the Republic of Moldova meets all the benchmarks set in the four blocks of the
second phase of the VLAP. Taking into account the overall relations between the
EU and the Republic of Moldova and their dynamics, the Commission therefore presents
the necessary legislative proposal to amend EC Regulation 539/2001, in
accordance with the agreed methodology under the VLAP.[11] 
In this context, it is also worth looking
at the available statistical data. About 230,000 Moldovans were legally
residing at the end of 2012 in the EU[12],
according to data on valid residence permits. Statistical data show that the
risk of irregular migration to the EU from Moldovan citizens has decreased in
recent years: since 2008, when 6,830 irregular Moldovan immigrants were
apprehended, the number of apprehensions has decreased every year, to reach
3,070 in 2012, i.e. a decrease of 55%. Asylum applications have also halved (- 48%)
over that period: 435 asylum applications were made by Moldovan citizens in
2012 down from 837 in 2008. The ratio of effected returns compared to the
number of return decisions issued is improving and reached 73% in 2012, compared
to about 50% over the four previous years. Finally, while the number of
short-stay Schengen visa applications has remained stable over the past three
years (oscillating between 50,000 and 55,000), the refusal rate for visa
applications has decreased sharply from 11.4% in 2010 to 6.5% in 2012. These
data confirm altogether that the migratory risk represented by Moldovan citizens
has substantially decreased. The amendments to the EU visa rules will introduce
a new visa waiver suspension mechanism in Regulation 539/2001, which
contributes to preserving the integrity of the visa liberalisation process and
ensures, as a measure of last resort, that visa-free travel will not lead to
irregularities or abuse. 
The Commission will
continue actively to monitor the continuous implementation by the Republic of
Moldova of all benchmarks under the four blocks of the VLAP in the framework of
the existing Partnership and Cooperation structures and dialogues, and, if
necessary, through ad hoc follow-up mechanisms. 
As with the transfers of Western Balkan
countries to the visa-free regime, there is no reason to condition the
implementation of the visa waiver for the Republic of Moldova on the conclusion
of a visa waiver agreement with the EU, taking into account the fact that the
Republic of Moldova has already exempted all EU citizens from the visa
requirement and that, should the visa-free regime be abused, the suspension
mechanism would provide an effective solution.
4.           Main organisations/experts
consulted
Member States were consulted.
5.           Impact assessment
Not necessary.
6.           Legal basis
In view of the TFEU, this proposal
constitutes a development of the common visa policy in accordance with Article
77 (2) (a) of the TFEU. 
7.           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).
The decision to change the lists, to
transfer countries from the negative to the positive list or vice versa falls
within the competence of the European Union in accordance with Article 77 (2)
(a) of the TFEU.
8.           Choice of instruments
Regulation (EC) No 539/2001 is to be amended
by a Regulation.
9.           Budgetary implication
The proposed amendment has no implication
on the European Union budget.
2013/0415 (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 and those whose nationals are exempt from that
requirement
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the functioning
of the European Union, and in particular Article 77(2)(a) thereof,
Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national parliaments,
Acting in accordance with the ordinary legislative
procedure,
Whereas:
(1)       The composition of the lists of third countries in Annexes
I and II to Council Regulation (EC) N° 539/2001[13] should be, and should remain,
consistent with the criteria laid down therein. Third countries for which the
situation has changed as regards these criteria, should be transferred from one
Annex to the other.
(2)       In line with the Joint
Declaration approved at the Prague Eastern Partnership Summit on 7 May 2009,
and the completion by the Republic of Moldova of its Visa Liberalisation Action
Plan, the Commission considers that the Republic of Moldova meets all the
benchmarks set out in the Visa Liberalisation Action Plan.
(3)       Meeting all the benchmarks,
the Republic of Moldova should be transferred to Annex II of Regulation (EC) No
539/2001. This visa waiver should apply to holders of biometric passports
issued by the Republic of Moldova in line with standards of the International
Civil Aviation Organisation (ICAO).
(4)       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 acquis[14],
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 Agreement[15].

(5)       As regards Switzerland,
this Regulation constitutes a development of the provisions of the Schengen
acquis within the meaning of the Agreement concluded between the European
Union, the European Community and the Swiss Confederation on the Swiss
Confederation's association with the implementation, application and
development of the Schengen acquis[16],
which fall within the area referred to in Article 1, point (B) and (C), of
Council Decision 1999/437/EC read in conjunction with Article 3 of Council
Decision 2008/146/EC[17].
(6)       As regards Liechtenstein, this
Regulation constitutes a development of the provisions
of the Schengen acquis, as provided for by 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[18] 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/EU[19].
(7)       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[20];
the United Kingdom is therefore not taking part in its adoption and is not
bound by it or subject to its application.
(8)       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[21];
Ireland is therefore not taking part in its adoption and is not bound by it or
subject to its application.
(9)       As regards Cyprus, this Regulation constitutes an act building upon, or otherwise apply before they
join the Schengen area related to, the Schengen acquis, within the
meaning of Article 3(1) of the 2003 Act of Accession.
(10)     As regards Bulgaria and Romania, 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.
(11)     As regards Croatia, this Regulation constitutes an act building upon, or otherwise related to, the
Schengen acquis within the meaning of Article 4(1) of the 2011 Act of
Accession,
HAVE ADOPTED THIS REGULATION:
Article 1
Regulation
(EC) No 539/2001 is amended as follows:
1.           in Annex I Part 1, the reference to Moldova is deleted. 
2.           in Annex II, Part 1, the
following is inserted:
"Moldova, Republic of*
______________
*        The visa
waiver will be limited to the holders of biometric passports issued in line
with standards of the International Civil Aviation Organisation (ICAO)."
Article 2
This Regulation shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.
This Regulation
shall be binding in its entirety and directly applicable in the Member States
in accordance with the Treaties.
Done at Brussels,
For the
European Parliament                       For the Council
The
President                                                 The President
[1]               OJ L 81, 21.3.2001, p. 1.
[2]               OJ L 339, 22.12.2010, p. 6.
[3]               COM (2012) 650 final 
[4]               COM (2012) 649 final 
[5]               SEC (2011) 1075 final
[6]               SWD (2012) 12 final
[7]               COM (2012) 348 final
[8]               COM(2012) 443 final
[9]               COM(2013) 459 final
[10]             Not published yet, a reference to be added at a
later stage
[11]             (*) The text of the Fifth Progress Report is
currently under the ISC, should the wording of the conclusions change, the text
will have to be aligned accordingly
[12]             The data presented in this section cover all the EU
countries except UK, Ireland and Croatia; and include also data for Switzerland, Norway,   Iceland and Lichtenstein. All data are from Eurostat, except the data on visa
applications and refusals, collected by DG HOME. 
[13]             Council Regulation (EC) No 539/2001 of 15 March 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 (OJ L 81, 21.3.2001, p. 1). 
[14]             OJ L 176, 10.7.1999, p. 36.
[15]             OJ L176, 10.7.1999, p. 31.
[16]             OJ L 53, 27.2.2008, p.52.
[17]             OJ L 53, 27.2.2008, p. 1.
[18]             OJ L 160, 18.6.2011, p. 21.
[19]             OJ L 160, 18.6.2011, p. 19.
[20]             OJ L 131, 1.6.2000, p. 43.
[21]             OJ L 64, 7.3.2002, p. 20.