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 (revision of the suspension mechanism)
Date: 2016-05-04
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU visa policy, Schengen Agreement, external border of the EU, foreign national, third country

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   EUROPEAN COMMISSION  Brussels, 4.5.2016  COM(2016) 290 final 2016/0142 (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 (revision of the suspension mechanism)  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Following the visa liberalisation decisions for the Western Balkans countries, the Commission 
proposed  in  2011  to  establish  a  "visa  safeguard  clause"  in  Council  Regulation  (EC) 
No 539/20011 which would allow for the temporary suspension of the visa exemption for the 
nationals of a third country for a short period of time, as a matter of urgency and on the basis 
of well-defined criteria, to solve possible difficulties faced by one or several Member States in 
case of sudden and substantial increase of irregular migration, unfounded asylum applications 
or  rejected  readmission  applications  submitted  by  a  Member  States  to  the  third  country 
concerned 2.  

On  11  December  2013,  the  European  Parliament  and  Council  adopted  Regulation  (EU)  No 
1289/20133,  which  amended  Regulation  (EC)  No 539/2001  by  introducing  the  so-called 
"suspension mechanism" and modifying the existing reciprocity mechanism.  

This  suspension  mechanism  in  Article  1a  of  Regulation  (EC)  No 539/2001  allows  the 
temporary  suspension  of  the  visa  exemption  for  nationals  of  a  third  country  in  certain 
emergency situations, as a last resort. It can be triggered by any Member State by notifying 
the Commission that it is confronted, over a six-month period, in comparison with the same 
period in the previous year or with the last six months prior to the visa liberalisation of that 
country,  with  circumstances  leading  to  an  emergency  situation  which  the  Member  State  in 
question cannot remedy on its own. 

These circumstances are namely a substantial and sudden increase in the number of: 

– 

– 

– 

nationals of that third country found to be illegally overstaying  in the Member State 
in question; 

unfounded asylum applications from the nationals of that third country, where such 
increase is leading to specific pressures on the Member State’s asylum system; 

rejected  readmission  applications  submitted  by  the  Member  State  to  that  third 
country for its own nationals. 

When notifying the Commission, the Member State must state the reasons for triggering the 
mechanism, provide relevant data and statistics, as well as describe the preliminary measures 
that it has taken in order to remedy the situation. The Commission then informs both Council 
and  the  European  Parliament  and  examines  the  situation  and  the  scope  of  the  problem 
(number of Member States affected, impact on the overall migratory situation in the Union). 

The Commission may decide that action is needed, taking into account the consequences of 
the suspension of the visa exemption for the external relations of the Union and its Member 
States  with  the  third  country  concerned,  while  working  in  close  cooperation  with  that  third 

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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. 
COM(2011) 290 final. 
Regulation (EU) No 1289/2013 of the European Parliament and of the Council of 11 December 2013 
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 347, 20.12.2013, p. 74. 

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country to find alternative long-term solutions. In that case, the Commission has three months 
from the receipt of the notification to adopt an implementing act temporarily suspending the 
exemption  from  the  visa  requirement  for  the  nationals  of  the  third  country  concerned,  for  a 
period of six months.  

Before  the  expiry  of  this  six-month  period,  the  Commission  must  submit  a  report  to  the 
European  Parliament  and  the  Council.  This  report  may  be  accompanied  by  a  legislative 
proposal to amend Regulation (EC) No 539/2001 to transfer the third country in question to 
the list of visa-required countries (Annex I), and thus to put its citizens permanently under the 
visa requirement. In such case, the temporary suspension of the visa waiver may be extended 
by a maximum period of 12 months.  

In the context of the current migratory situation in the European Union and of the successful 
conclusion  of  several  visa  liberalisation  dialogues  with  neighbouring  countries  (Georgia, 
Ukraine, Kosovo, Turkey), several Member States have questioned whether the existing visa 
suspension  mechanism  provides  for  the  necessary  flexibility  to  act  in  certain  situations  of 
urgency. In particular they have argued that:  

– 

– 

– 

the possible grounds for suspension are too limited, and for instance do not include 
the failure of a third country to cooperate on readmission of  third-country nationals 
having  transited  through  that  third  country,  where  a  readmission  agreement 
concluded  between  the  Union  or  a  Member  State  and  the  third  country  concerned 
provides for such a readmission obligation; 

the initiative to trigger the suspension mechanism by means of a notification, which 
in  the  Regulation  lies  solely  with  Member  States,  should  be  extended  to 
Commission; 

the reference periods and the deadlines are too long, which does not allow for a fast 
reaction in emergency situations. 

Taking  into  account  the  Commission's  recent  proposals  for  visa  liberalisation  of  Georgia4, 
Ukraine5,  Turkey6  and  Kosovo7  and  the  recent  discussions  with  Member  States,  the 
Commission  has  decided  to  present  a  proposal  to  amend  Regulation  (EC)  No  539/2001  to 
revise the current suspension mechanism. 

The  main  objective  is  to  strengthen  the  suspension  mechanism  by  making  it  easier  for 
Member States to notify circumstances leading to a possible suspension and by enabling the 
Commission  to  trigger  the  mechanism  on  its  own  initiative.  In  particular,  the  use  of  the 
mechanism should be facilitated by shortening reference periods and deadlines allowing for a 
faster procedure and by extending the possible grounds of suspension, which should include a 
substantial  increase  in  the  number  of  rejected  readmission  applications  for  third-country 
nationals  having  transited  through  that  third  country,  where  a  readmission  agreement 
concluded by the Union or a Member State and the third country concerned provides for such 
a  readmission  obligation.  The  Commission  should  also  be  able  to  trigger  the  mechanism  in 
case  the  third  country  fails  to  cooperate  on  readmission,  in  particular  where  a  readmission 
agreement has been concluded between that third country and the Union. 

4 
5 
6 
7 

COM(2016) 142 final. 
COM(2016) 236 final. 
COM(2016) 279 final. 
COM(2016) 277 final. 

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• 

Consistency with existing policy provisions in the policy area 

Council  Regulation  (EC)  No 539/2001  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 up to 90 days in any 180-day period. 

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, proportionality and choice of the instrument 

The suspension mechanism laid down in Regulation (EC) No 539/2001 is an integral part of 
the  EU's  common  visa  policy.  The  objective  of  strengthening  that  mechanism  in  order  to 
make it more effective, by enlarging its scope of application and by enabling the Commission 
to trigger it on its own initiative, can only be achieved by action at Union level, namely by an 
amendment  to  the  Regulation.  Member  States  cannot  act  individually  to  achieve  the  policy 
objective. No other (non-legislative) options to achieve the policy objective are available. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

The  existing  suspension  mechanism,  introduced  in  December  2013,  has  never  been  used  so 
far;  therefore  no  practical  experience  with  the  current  mechanism  is  available.  However, 
several Member States have argued that the mechanism has never been used as the hurdles to 
trigger it have been put too high and that deadlines are too long. 

• 

Stakeholder consultations 

The  need  for  additional  safeguards  in  the  wake  of  visa  liberalisation  for  countries  in  the 
Union's  neighbourhood  was  discussed  with  Member  States  in  COREPER  and  in  the  Visa 
Working Party. Informal suggestions by Member States to revise the suspension mechanism 
have been taken into account in the drafting of this proposal.  

• 

Impact assessment 

The revision of the suspension mechanism as such does not have any direct economic or other 
impacts. The political and economic impact of the possible suspension of the visa exemption 
for nationals of a certain third country will have to be assessed in detail by the Commission in 
each individual case when it examines a notification by a Member State and before it decides 
whether action is needed. Therefore no impact assessment is necessary for this proposal. 

• 

Fundamental rights 

This  proposal  has  no  negative  consequences  for  the  protection  of  fundamental  rights  in  the 
European Union. 

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4. 

n/a 

5. 

• 

BUDGETARY IMPLICATIONS 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The Commission will step up its monitoring of the migratory and security situation resulting 
from  recent  visa  liberalisation  decisions  which  will  enable  it  to  make  full  use  of  the 
possibilities provided by the revised suspension mechanism where necessary.   

• 

Detailed explanation of the specific provisions of the proposal 

This proposal for the revision of the suspension mechanism in Article 1a of Regulation (EC) 
No 539/2001 includes the following elements: 

– 

– 

– 

– 

– 

– 

– 

The  definition  of  the  circumstances  which  Member  States  can  notify  to  the 
Commission has been amended to clarify that the suspension mechanism cannot only 
be used in "emergency situations, as a last resort", but more generally in case the visa 
liberalisation  leads  to  a  serious  increase  of  irregular  migration,  unfounded  asylum 
applications or rejected readmission applications.  

The reference period for comparing this situation with the situation of the previous 
year or before visa liberalisation, is shortened from six to two months. 

It is sufficient for the increase of irregular migration, unfounded asylum applications 
or  rejected  readmission  applications  to  be  "substantial",  whereas  the  increase  must 
currently be "sudden and substantial".  

The  grounds  for  possible  suspension  which  can  be  notified  should  include  rejected 
readmission  applications  for  nationals  of  another  third  country  having  transited 
through  that  third  country,  where  a  readmission  agreement  concluded  between  the 
Union  or  a  Member  State  and  the  third  country  concerned  provides  for  such  a 
readmission obligation. 

The  limitation  in  time  (to  seven  years)  of  the  possibility  to  compare  the  current 
situation with the situation before visa liberalisation is abolished. 

The Commission is given the possibility to trigger the suspension mechanism on its 
own initiative if it has concrete and reliable information of any of the circumstances 
which  Member  States  can  notify  or  that  the  third  country  is  –  in  a  more  general 
manner  –  not  cooperating  on  readmission,  in  particular  where  an  EU-level 
readmission  agreement  has  been  concluded  with  that  third  country.  This  failure  to 
cooperate can, for instance, consist in:   

– 

– 

rejecting or not replying to readmission applications,  

failing  to  issue  travel  documents  for  the  purposes  of  return  within  deadlines 
specified in the agreement or not accepting European travel documents issued 
following the lapse of deadlines specified in the agreement,  

– 

terminating or suspending the agreement. 

Where  the  Commission,  after  having  examined  the  circumstances  notified  (or  of 
which  it  has  received  concrete  and  reliable  information),  decides  that  action  is 
needed,  the  deadline  for  the  adoption  of  the  implementing  act  temporarily 

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suspending the visa exemption for the third country concerned is reduced from three 
to one month.  

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2016/0142 (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 

(revision of the suspension mechanism) 

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) 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) 

Council Regulation (EC) No 539/20018 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  mechanism  for  the  temporary  suspension  of  the  exemption  from  the  visa 
requirement  for  the  nationals  of  a  third  country  listed  in  Annex  II  of  that  regulation 
("the suspension mechanism") should be strengthened by making it easier for Member 
States  to  notify  circumstances  leading  to  a  possible  suspension  and  by  enabling  the 
Commission to trigger the mechanism on its own initiative.  

In  particular, the use  of  the mechanism should be facilitated by shortening reference 
periods  and  deadlines  allowing  for  a  faster  procedure  and  by  extending  the  possible 
grounds of  suspension, which should include a substantial  increase in  the number of 
rejected readmission applications for third-country nationals having transited through 
the  third  country  concerned,  where  a  readmission  agreement  concluded  between  the 
Union  or  a  Member  State  and  that  third  country  provides  for  such  a  readmission 
obligation. The Commission should also be able to trigger the mechanism in case the 
third  country  fails  to  cooperate  on  readmission,  in  particular  where  a  readmission 
agreement has been concluded between the third country concerned and the Union. 

(4) 

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 

8 

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. 

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(5) 

(6) 

(7) 

(8) 

9 

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12 

13 

2000/365/EC9. 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.  

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/EC10. 
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  those  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/EC11. 

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/EC12. 

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/EU13. 

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. 
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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HAVE ADOPTED THIS REGULATION: 

Article 1a of Regulation (EC) No 539/2001 is amended as follows: 

Article 1 

(1) 

in paragraph 1 the following is deleted: 

"in emergency situations, as a last resort," 

(2) 

paragraph 2 is replaced by the following: 

"2. 
A  Member  State  may  notify  the  Commission  if  it  is  confronted,  over  a  two-month 
period, in comparison with the same period in the previous year or with the last two months 
prior to the implementation of the exemption from the visa requirement for nationals of a third 
country listed in Annex II, with one or more of the following circumstances which it is unable 
to remedy on its own, namely: 

a  substantial  increase  in  the  number  of  nationals  of  that  third  country  found  to  be 

(a) 
staying in the Member State's territory without a right thereto; 

a substantial increase in the number of asylum applications from the nationals of that 

(b) 
third country for which the recognition rate is low;  

(c) 
a substantial increase in the number of rejected readmission applications submitted by 
the  Member  State  to  that  third  country  for  its  own  nationals  or,  where  a  readmission 
agreement concluded between the Union or that Member State and that third country provides 
for such obligation, for third country nationals having transited through that third country. 

The  notification  referred  to  in  the  first  subparagraph  shall  state  the  reasons  on  which  it  is 
based  and  shall  include  relevant  data  and  statistics  as  well  as  a  detailed  explanation  of  the 
preliminary measures that the Member State concerned has taken with a view to remedying 
the  situation.  The  Commission  shall  inform  the  European  Parliament  and  the  Council 
immediately of such notification." 

(3) 

the following paragraph is inserted: 

"2a.  Where  the  Commission  has  concrete  and  reliable  information  of  circumstances 
referred to in points (a), (b) or (c) of paragraph 2, or that the third country is not cooperating 
on readmission, in particular where a readmission agreement has been concluded between that 
third country and the Union, for instance:   

– 

– 

by rejecting or not replying to readmission applications,  

by failing to issue travel documents for the purposes of return within deadlines 
specified in the agreement or not accepting European travel documents issued 
following the lapse of deadlines specified in the agreement,  

– 

or by terminating or suspending the agreement,  

the Commission may, on its own initiative, inform the European Parliament and the Council. 
This information shall be equivalent to a notification made pursuant to paragraph 2." 

(4) 

paragraph 3 is replaced by the following: 

The Commission shall examine any notification made pursuant to paragraph 2, taking 

"3. 
into account: 

(a) 

whether any of the situations described in paragraphs 2 and 2a are present; 

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the number of Member States affected by any of the situations described in paragraphs 

(b) 
2 and 2a; 

(c) 
the overall impact of the increases referred to in paragraph 2 on the migratory situation 
in  the  Union  as  it  appears  from  the  data  provided  by  the Member  States  or  available  to  the 
Commission; 

(d) 
the  reports  prepared  by  the  [European  Agency  for  the  Management  of  Operational 
Cooperation  at  the  External  Borders  of  the  Member  States  of  the  European  Union],  the 
European Asylum Support Office or the European Police Office (Europol) if circumstances so 
require in the specific case; 

the  overall  question  of  public  policy  and  internal  security,  in  consultations  with  the 

(e) 
Member State concerned. 

The Commission shall  inform the European Parliament and the Council of the results of its 
examination." 

(5) 

in paragraph 4, "three months" is replaced by "one month". 

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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