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 (Ukraine)
Date: 2016-04-20
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU visa policy, Schengen Agreement, Ukraine, external border of the EU

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   EUROPEAN COMMISSION  Brussels, 20.4.2016  COM(2016) 236 final 2016/0125 (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  (Ukraine)  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The EU-Ukraine  Visa Liberalisation Dialogue was launched in  October 2008. In November 
2010, the European Commission presented the Ukrainian Government with an action plan on 
visa liberalisation (VLAP). The Commission committed itself to proposing visa-free travel for 
short stays in the European Union to Ukrainian nationals holding biometric passports, as soon 
as all the benchmarks set in the VLAP had been met by the Ukrainian Government. 

Before  the  start  of  the  Visa  Liberalisation  Dialogue,  the  EU  and  Ukraine  had  concluded  in 
parallel  a  Visa  Facilitation  Agreement  and  a  Readmission  Agreement,  which  entered  into 
force on 1 January 2008. The amended Visa Facilitation Agreement entered into force on 1 
July 2013. The full and effective implementation of these agreements was a prerequisite for 
the launching of the visa dialogue and a condition for its continuation.  

The VLAP is structured around four 'blocks': document security, including biometrics (block 
I), migration and integrated border management, including asylum (block II), public order and 
security (block III), and external relations and fundamental rights (block IV). The VLAP sets 
out a series of precise benchmarks for each of these four 'blocks' of technically relevant issues 
with  a  view  to  adopting  a  legislative,  policy  and  institutional  framework  (phase  1)  and 
ensuring its effective and sustainable implementation (phase 2).  

Since  the  launch  of  the  EU-Ukraine  Visa  Liberalisation  Dialogue,  the  Commission  has 
reported  regularly  to  the  European  Parliament  and  to  the  Council  on  Ukraine's  progress 
towards fulfilling the benchmarks identified under the four blocks under the VLAP's first and 
second phases. Progress made has been assessed on the basis of on-site evaluations by experts 
from EU Member States and detailed information provided by Ukraine. 
On  16  September  2011,  the  Commission  adopted  its  first  progress  report1  on  Ukraine's 
implementation  of  the  VLAP  and  made  several  recommendations  for  completing  the  first 
(legislative and planning) phase. The Commission published its second progress report2 on 9 
February  2012,  and  the  third3  on  15  November  2013.  Following  the  Commission’s  fourth 
report4  on  27  May  2014  and  its  endorsement  by  the  Council  on  23  June  2014,  Ukraine 
officially  entered  the  second  phase  of  the  VLAP  during  which  an  assessment  regarding  the 
sustainable implementation of the legislative and policy framework was made.  
The Commission adopted the fifth progress report5 on Ukraine’s implementation of the VLAP 
on 8 May 2015. The report stated that the progress achieved by the Ukrainian authorities in 
the  implementation  of  the  second  phase  of  the  VLAP  was  noteworthy.  In  line  with  the 
methodology outlined in the VLAP, the Commission organised on-site evaluations involving 
experts  from  EU  Member  States.  The  report  was  accompanied  by  an  assessment  of  the 
potential  migratory  and  security  impacts  of  future  visa  liberalisation  for  Ukrainian  citizens 
travelling to the EU.  

1 
2 
3 
4 
5 

SEC (2011) 1076 final. 
SWD (2012) 10 final. 
COM (2013) 809 final. 
COM (2014) 336 final.   
COM (2015) 200 final.   

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In  its  sixth  and  final  progress  report6,  adopted  on  18  December  2015,  the  Commission 
considered that Ukraine had made the necessary progress and had undertaken all the required 
reforms to ensure effective and sustainable achievement of the remaining benchmarks. 

Based on this assessment and given the outcome of the continuous monitoring and reporting 
that had been carried out since the launch of the EU-Ukraine Visa Liberalisation Dialogue, the 
Commission confirmed that Ukraine had met all the benchmarks for each of the four blocks of 
the second phase of the VLAP and that it would present, in early 2016, a legislative proposal 
to amend Regulation (EC) No 539/2001, transferring Ukraine to the list of visa-free countries 
(Annex II). 

Moreover, since  the adoption  of  the  sixth  report,  the  Commission took  note  of  the  progress 
made  by the Ukrainian authorities to implement  the required reforms under the VLAP. The 
National Anti-corruption Bureau is operational and started to work along with the specialised 
anti-corruption  prosecution.  After  the  successful  adoption  of  the  asset  recovery  laws  and 
amendments  to  the  Law  on  Prosecution  Office  relating  to  the  Specialised  Anti-Corruption 
Prosecutor's  Office  (18  February  2016),  as  well  as  the  Law  on  electronic  asset  declarations 
(15 March 2016), further progress has been noted in mid-March 2016 with the appointment of 
two  further  members  of  the  Board  of  the  National  Agency  for  Prevention  of  Corruption, 
enabling  the  Board  to  reach  the  quorum.    On  28  March  the  Head  of  the  Agency  has  been 
elected  and  on  30  March  the  Agency  has  been  registered  as  legal  entity.  The  Ukrainian 
authorities  allocated  in  the  State  Budget  for  2016  also  financial  resources  to  ensure  a  well-
functioning  institutional  framework  for  anti-corruption,  including  the  National  Anti-
Corruption Bureau.  

In  addition  to  reporting  on  the  VLAP,  the  Commission  has  continuously  monitored  the 
implementation  of  the  Visa  Facilitation  and  Readmission  Agreements,  notably  through  the 
Joint  Committees  established  under  those  agreements.  The  last  meeting  to  date  of  the  Joint 
Visa  Facilitation  Committee  took  place  on  23  April  2015,  and  the  Joint  Readmission 
Committee met for the last time on 6 May 2014. In this context, the Commission noted that 
implementation of the agreements was overall very satisfactory. 

• 

Consistency  with  existing  policy  provisions  in  the  policy  area  and  other  Union 
policies 

Council  Regulation  (EC)  No 539/20017  lists  the  third  countries  whose  nationals  must  be  in 
possession of a visa when crossing the external borders of the Member States and those whose 
nationals  are  exempt  from  that  requirement.  Regulation  (EC)  No 539/2001  is  applied  by  all 
Member States – with the exception of Ireland and the United Kingdom – and also by Iceland, 
Liechtenstein,  Norway  and  Switzerland.  The  Regulation  is  part  of  the  EU's  common  visa 
policy for short stays of 90 days within any 180-day period. 

Ukraine  is  currently  listed  on  Annex  I  to  Regulation  (EC)  No 539/2001,  i.e.  among  those 
countries  whose  nationals  are  required  to  hold  a  visa  when  travelling  to  the  territory  of  EU 
Member States.  
Regulation  (EC)  No  539/2001  was  last  amended  by  Regulation  (EU)  No  259/20148  when 

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COM(2015) 905 final. 
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, 21.03.2001, p. 1 
Regulation (EU) No 259/2014 of the European Parliament and of the Council of 3 April 2014 amending 
Council Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession 

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Moldova was transferred to the visa-free list as a result of the successful implementation of  
its  VLAP,  and  Regulation  (EU)  No  509/20149  when  five  Caribbean10,  and  eleven  Pacific11 
countries, as well as Colombia, Peru and the United Arab Emirates were exempted from the 
visa requirement – subject to the conclusion of visa waiver agreements between the EU and 
the respective third countries – as a result of a periodical review of the visa lists. 

The criteria which should be taken into account when determining, based on a case-by-case 
assessment,  the  third  countries  whose  nationals  are  subject  to,  or  exempt  from,  the  visa 
requirement are laid down in Article  -1 of Regulation (EC) No  539/2001 (as introduced by 
Regulation (EU) No 509/2014). They include “illegal immigration, public policy and security, 
economic benefit, in particular in terms of tourism and foreign trade, and the Union’s external 
relations  with  the  relevant  third  countries,  including  in  particular,  considerations  of  human 
rights  and  fundamental  freedoms,  as  well  as  the  implications  of  regional  coherence  and 
reciprocity”12. Particular attention should be paid to the security of travel documents issued by 
the third countries concerned. 

There  is  no  reason  to  condition  the  implementation  of  the  visa  exemption  for  Ukrainian 
citizens  on  the  conclusion  of  a  visa  waiver  agreement  with  the  EU,  as  Ukraine  has  already 
exempted  all  EU  citizens  from  the  visa  requirement  for  stays  of  up  to  a  year.  Should  this 
decision  be  revoked  or  should  the  visa-free  regime  be  abused,  the  existing  reciprocity  and 
suspension mechanisms of Regulation (EC) No 539/2001 would provide sufficient remedies. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

As the proposal will amend the EU's common visa policy, the legal basis for the proposal is 
point  (a)  of  Article  77(2)  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU). 
The proposed regulation will constitute a development of the Schengen acquis. 

 • 

Subsidiarity  

As Regulation (EC) No 539/2001 is a legal act of the EU, it can only be amended by way of 
an equivalent legal act. Member States cannot act individually. 

• 

Proportionality 

See above – no other options to achieve the policy objective are available. 

• 

Choice of the instrument 

See above. 

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of  visas  when  crossing  the  external  borders  and  those  whose  nationals  are  exempt  from  that 
requirement, OJ L 105, 8.4.2014, p. 9 
Regulation  (EU)  No  509/2014  of  the  European  Parliament  and  of  the  Council  of  15  May  2014 
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, OJ L 149, 20.5.2014, p. 67 
Dominica, Grenada, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago. 
Kiribati,  Marshall  Islands,  Micronesia,  Nauru,  Palau,  Samoa,  Solomon  Islands,  Timor-Leste,  Tonga, 
Tuvalu, Vanuatu. 
Article -1 of 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 

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3. 

• 

n/a 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Stakeholder consultations 

Regular discussions with Member States in the Council Working Party on Eastern Europe and 
Central  Asia  (COEST)  and  several  presentations  of  the  visa  liberalisation  process  to  the 
European Parliament have taken place. 

• 

Collection and use of expertise 

The  Commission  collected  comprehensive  data  on  Ukraine's  implementation  of  all  VLAP 
benchmarks.  Its  final    progress  report  on  Ukraine  was  accompanied  by  a  Commission  Staff 
Working  Document13  which  provided  more  detailed  background  information  on  the 
developments under each benchmark.  

• 

Impact assessment 

In  the  annex  to  the  Staff  Working  Document,  the  Commission  provided  an  updated  factual 
analysis  and  statistics-based  information  on  the  possible  migratory  and  security  impacts  of 
visa liberalisation for Ukrainian citizens travelling to the EU,  based on inputs from relevant 
EU agencies and stakeholders. No further impact assessment is necessary. 

• 

n/a 

• 

Regulatory fitness and simplification 

Fundamental rights 

The proposal has no negative consequences for the protection of fundamental rights. 

4. 

n/a 

5. 

• 

BUDGETARY IMPLICATIONS 

OTHER ASPECTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  amended  Regulation  will  be  directly  applicable  from  its  entry  into  force  and  will  be 
implemented immediately by Member States. No implementation plan is necessary. 

The Commission will continue to actively monitor Ukraine's continuous implementation of all 
benchmarks under the four blocks of the VLAP through the existing association structures and 
dialogues, and, if necessary, through ad hoc follow-up mechanisms. 

Explanatory documents (for directives) 

• 

n/a 

13 

Commission Staff Working Document SWD(2015) 705 final of 18.12.2015 

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• 

Detailed explanation of the specific provisions of the proposal 

Regulation  (EC)  No  539/2001  will  be  amended,  transferring  Ukraine  from  Annex  I  (list  of 
visa-required  countries)  to  Annex  II  (list  of  visa-free  countries).  A  footnote  will  be  added 
specifying that the visa waiver will be limited to holders of biometric passports issued in line 
with standards of the International Civil Aviation Organisation (ICAO). 

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2016/0125 (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  

(Ukraine) 

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 point 
(a) of Article 77(2) 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) 

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15 

Council Regulation (EC) No 539/200114 lists the third countries whose nationals must 
be  in  possession  of  a  visa  when  crossing  the  external  borders  of  the  Member States 
and those whose nationals are exempt from that requirement. The composition of the 
lists  of  third  countries  in  Annexes  I  and  II  should  be,  and  should  remain,  consistent 
with  the  criteria  set  therein.  References  to  third  countries  in  respect  of  which  the 
situation has changed as regards these criteria should be transferred from one annex to 
the other, as appropriate. 

It  is  considered  that  Ukraine  has  met  all  the  benchmarks  set  out  in  the  Visa 
Liberalisation Action Plan presented to the Ukrainian Government in November 2010, 
and  therefore  fulfils  the  criteria  for  its  citizens  to  be  exempted  from  the  visa 
requirement when travelling to the territory of the EU Member States.  

Ukraine should thus be transferred from Annex I to Regulation (EC) No 539/2001 to 
Annex II thereof. This visa waiver should apply only to holders of biometric passports 
issued  in  line  with  the  standards  of  the  International  Civil  Aviation  Organisation 
(ICAO). 

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/EC15.  The  United  Kingdom  is  therefore  not  taking  part  in  the  adoption  of 
this Regulation and is not bound by it or subject to its application.  

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, 21.03.2001, p. 1 
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, OJ L 131, 
1.6.2000, p. 43 

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(5) 

(6) 

(7) 

(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/EC16. 
Ireland is therefore not taking part in the adoption of this Regulation and is not bound 
by it or subject to its application.  

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  these  two  States  with  the  implementation, 
application  and  development  of  the  Schengen  acquis,  which  fall  within  the  area 
referred to in Point B of Article 1, of Council Decision 1999/437/EC17. 

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 acquis, which fall within the area referred to in point B of Article 1, of 
Decision  1999/437/EC,  read  in  conjunction  with  Article  3  of  Council  Decision 
2008/146/EC18. 

As regards Liechtenstein, this Regulation constitutes a development of the provisions 
of  the  Schengen  acquis  within  the  meaning  of  the  Protocol  signed  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 point B of Article 1, of Decision 1999/437/EC read in conjunction with 
Article 3 of Council Decision 2011/350/EU19, 

HAVE ADOPTED THIS REGULATION: 

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

Article 1 

(a) 

(b) 

in Annex I, Part 1 ("STATES"), the reference to Ukraine is deleted.  

in Annex II, Part 1 ("STATES"), the following reference is inserted: 

16 

17 

18 

19 

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, OJ L 64, 7.3.2002, p. 20 
Council  Decision  1999/437/EC  of  17  May  1999  on  certain  arrangements  for  the  application  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 acquis, OJ L 176, 10.7.1999, p. 31 
Council  Decision  2008/146/EC  of  28  January  2008  on  the  conclusion,  on  behalf  of  the  European 
Community, 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 acquis, OJ L 53, 27.2.2008, p. 1 
Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, 
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,  relating  to  the  abolition  of  checks  at  internal  borders  and  movement  of  persons,  OJ  L  160, 
18.6.2011, p. 19 

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"Ukraine"* 

______________ 

The visa waiver is limited to the holders of biometric passports issued in line 

* 
with standards of the International Civil Aviation Organisation (ICAO). 

This Regulation shall enter into force on the twentieth day following that of 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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