CELEX: 51993PC0684(01)
Language: en
Date: 1993-12-10
Title: Proposal for a decision, based on Article K3 of the Treaty on European Union establishing the Convention on the crossing of the external frontiers of the Member States

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                  C0M(93)684     final
                                                  Brussels, 10 December 1993
           fin Mtl
              " f^Klttffn     frtffl t t t t frMWlIftion t o the Council
                          arm the European Parliament
  (I)  Proposal for a decision, based on Article K3 of the Treaty on
       European Union establishing the Convention on the crossing of
       the external frontiers of the Member States.
  (fi) Proposa» for a regulation, based on Article 1QPÇ of the Treaty
       establishing the European Community, determining the third
       countries whose nationals must be In possession of a visa when
       crossing the external borders of the Member states.
 ---pagebreak---                    COMMISSION O F T H E E U R O P E A N COMMUNITIES
               Communication from the Commission to the Council
                            and the European Parliament
(I)         Proposal for a decision, based on Article K3 of the Treaty on
          European Union establishing the Convention on the crossing of
          the external frontiers of the Member States.
(II)      Proposal for a regulation, based on Article 100C of the Treaty
          establishing the European Community, determining the third
          countries whose nationals must be in possession of a visa when
          crossing the external borders of the Member States.
1. The Commission herewith transmits to the Council and the Parliament
two proposals which are closely linked and need to be examined
together.
2. The need for a revised draft of the Convention on the crossing of
the external frontiers of the Member States results from a number of
relevant developments which have taken place since negotiations on the
earlier draft, conducted by Ministers responsible for immigration
policy, were broken off in June 1991 when it proved impossible to find
a solution to the sole outstanding question                           (the     territorial
application article) which was preventing the signature of the
Convention. The text proposed by the Commission does not attempt to
solve this question which will therefore require sustained further
bilateral negotiations between the two Member States principally
concerned.
3. The most significant such development was the entry into force on
1 November 1993 of the Treaty on European Union itself, particularly
its Article 100C. This article provides that certain aspects of visa
policy, hitherto covered by articles in the draft Convention, should
pass to Community competence and be adopted on the basis of Community
instruments.
4. Together these draft proposals cover all the substantive elements
previously brought together in the single instrument represented by the
draft Convention. The explanation of why each of the changes to the
Convention is necessary is set out in the explanatory memorandum.
5. These proposals, once adopted, will provide the legislative base
for establishing the agreed rules for crossing the external borders in
which all Member States can have confidence. As the European Council
has often stated, most recently at its meeting in Edinburgh in
December 1992, this is an essential element in the creation of an area
without internal frontiers, as provided for in Article 7A of the Treaty
on European Union.
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                                                                                         S)éL
 ---pagebreak--- PROPOSAL FOR A COUNCIL DECISION
    ESTABLISHING A CONVENTION
      ON CONTROLS ON PERSONS
   CROSSING EXTERNAL FRONTIERS
(presented by the Commission to the Council
      in accordance with Article K.3(2)
      of the Treaty on European Union)
                                            Ak
 ---pagebreak---                                    CONTENTS
Explanatory memorandum                       page 3
Proposal for a Council Decision             page 13
Proposed Convention on Controls
on Persons Crossing External Frontiers      page 17
 ---pagebreak--- EXPLANATORY MEMORANDUM ---pagebreak---  1.     The efforts of the Ministers responsible for immigration, working through
intergovernmental cooperation, to conclude a Convention on crossings at the external
frontiers of the Member States of the European Community - something which they
regard as vital for the establishment of an area without internal frontiers as required by
Article 7a of the Treaty establishing the European Community - have been overtaken by
events in the shape of the European Union. For the Treaty on European Union
introduces a specific procedure for the conclusion of conventions in the fields of justice
and home affairs.
On the formal side, the work done in the past cannot have any formal status since the
Convention, not having been signed, does not exist legally. As regards the substance,
however, there is^îttll the political outcome of the negotiations conducted between 1989
and 1991, in the course of which a consensus had emerged between the Member States
on the basic rules that should govern crossings at external frontiers, even though that
agreement never took concrete shape because of the difference between the United
Kingdom and Spain over Gibraltar.
2.      The aim of this proposal is to preserve that political consensus by adapting
the text in line with the legal requirements of the Union Treaty - in particular Title VI
- and of the future European Economic Area.
                     I. ORIGIN OF THE DRAFT CONVENTION
Earlier work
3.      Following the programme approved by the Madrid European Council for the
establishment of an area without internal frontiers as required by Article 7a ("Palma
document"), the Member States started work at intergovernmental level on drawing up
a Convention on crossings at the external frontiers of the Member States. Supported by
successive European Councils, this work, conducted under the authority of the Ministers
responsible for immigration, resulted in the Member States reaching agreement in June
 1991 on a set of principles that were to be given formal shape in a Convention, which
the Ministers were due to sign at the end of the Luxembourg Presidency.
 ---pagebreak--- 4.      In the final stages of the negotiations, however, a difference arose between the
United Kingdom and Spain over the territorial extent of the Convention with regard to
Gibraltar. Despite two years of attempts by successive presidencies to find a
compromise, the Convention was never signed. Nevertheless, in the absence of a formal
conclusion by the Ministers, it was decided that all the other provisions of the
Convention would be deemed to have been accepted tie facto by the Member States.
5.      There matters stood until the entry into force of the Union Treaty on 1 November
1993. Title VI of the Treaty provides for cooperation between the Member States in the
fields of justice and home affairs.
As regards the substance, Article K. 1 states that inter alia "rules governing the crossing
by persons of the external borders of the Member States and the exercise of controls
thereon" (point (2)) shall be regarded as matters of common interest "[fjoi* the purposes
of achieving the objectives of the Union, in particular the free movement of persons, and
without prejudice to the powers of the European Community". As far as the means are
concerned, Article K.3(2) spells out three courses open to the Council, including the
option of "draw[ing] up conventions, which it shall recommend to the Member States
for adoption in accordance with their respective constitutional requirements" (point (c)).
The special procedure applicable is laid down in Title VI.
Need for adoption of the Convention
6.      The Ministers responsible for immigration, recognizing the need to abide by this
new legal framework, are concerned to preserve the political consensus arrived at in the
earlier negotiations. Thus at their meeting in Copenhagen on 1 and 2 June 1993:
        "Ministers took note of the possible impact of the Treaty on European
        Union and the Agreement on the European Economic Area on the draft
        Convention on the crossing of external frontiers. Ministers agreed that:
                any changes made to the draft Convention to bring it into line with
                the Treaty on European Union should be technical in character and
                confined to what is strictly necessary; there is no question of
                reopening negotiations on any other articles than those which need
                to be revised for that purpose;
                this is a purely technical matter and must not be allowed to cause
                an impasse on legal grounds;
                there must be no legal vacuum."
 ---pagebreak--- 7.     The main developments since 1991 requiring amendments to the text are as
follows:
(a)    Changes in the Community framework
               Firstly, in July 1991 the full range of Community legislation to remove
               controls on goods at internal frontiers had not yet been adopted. This is
               now fully in place and controls have effectively been removed since 1
               January 1993.
               Secondly, on 2 May 1992 the Community concluded the Agreement
               establishing the European Economic Area, which - once it enters into
               force - will give nationals of the EFTA countries covered by that
               Agreement the same rights of entry and residence as nationals of the
               Member States.
(b)    Procedure introduced by Title VI of the Union Treaty
       Article K.3 of the Treaty lays down a special procedure for the adoption of legal
       instruments in the context of cooperation in the fields specified in Title VI,
       including in particular the right of initiative for the Commission as well as the
       Member States, consultation of Parliament (by the Presidency), and the option of
       granting jurisdiction to the Court of Justice. Now that the Treaty has entered into
       force, the Member States can therefore no longer conclude conventions between
       one another in the areas listed in Article K. 1 in the traditional manner prescribed
       by public international law.
(c)    Community competence regarding visas
       Under the new Article 100c of the EC Treaty, the tasks of determining "the third
       countries whose nationals must be in possession of a visa when crossing the
       external borders of the Member States" and preparing "measures relating to a
       uniform format for visas" are matters of Community competence. They must,
       then, be dealt with through decisions taken under the procedures laid down in the
       EC Treaty rather than in Title VI of the Union Treaty.
 ---pagebreak---                             II. AMENDMENTS REQUIRED
Grounds for the Commission initiative
8.       Under the intergovernmental approach followed in preparing the 1991 draft, the
Commission enjoyed no right of initiative. Now that the Union Treaty has entered into
force, it does have a legal right of initiative, a right also enjoyed by the Member States
(first indent of Article K.3(2)). As guardian of the Treaty, it must act to prevent any
danger of further delay in ensuring the free movement of persons in accordance with
Article 7a of the EC Treaty that might result from failure to adopt the Convention. The
Edinburgh European Council clearly stated that one of the essential instruments was
implementation of the Convention. The issue should therefore be referred to the Council
as soon as possible.
Form of the proposal
9.       Article K.3 defines the Council's role in the following terms: "The Council may
... draw up conventions which it shall recommend ... for adoption". Article 220 of the
EEC Treaty simply provided that: "The Member States shall ... enter into negotiations
with each other with a view to securing ...". Consequently the Convention should no
longer take the form of a traditional instrument of public international law concluded by
the plenipotentiaries of the Heads of State.
The Council, then, is now entitled to draw up conventions. It has a specific power to
recommend their adoption by the Member States in accordance with their respective
constitutional requirements. These two functions will be reflected in a specific act of the
Council, signed solely by its President and distinct from the Convention itself.
10.      Since the Treaty gives no indication as to the legal nature of the act by which the
Council is to exercise this specific power and Article 189 of the EC Treaty does not
apply to Title VI, the act must necessarily be a decision sui generis. Thus the present
proposal comprises two separate parts: a "Council Decision" and, annexed to it, the text
of the Convention.
 ---pagebreak--- Proposed Council Decision1
11.      The preamble comprises the normal citations (legal basis, reference to the
Commission's proposal, Parliament's involvement as prescribed by Article K.6) plus a
series of recitals giving the grounds not only for the Decision itself but also for the
Convention annexed to it. The recitals originally preceding the body of the Convention
are now included with the Decision. Their wording has been altered in line with the
Treaty to include references to closer cooperation on visa policies (fourth recital) and to
the European Convention on Human Rights (eighth recital).
A further recital has been added, referring to Article K. 1 and in particular to the fact that
the Convention is without prejudice to the powers of the Community. This replaces the
former Article 27(2), which is not now needed as the Convention comes under the
institutional arrangements of the Union.
12.      The substantive provisions embody the Council's exercise of its powers. Besides
formally establishing the text of the Convention annexed to the Decision, Article 1(1)
spells out the recommendation to the Member States to adopt it in accordance with their
respective constitutional requirements. For this provision to be effective, a time limit
needs to be specified. Since the Convention serves an objective for which the deadline
was 1 January 1993, the time limit must needs be short and is therefore set at
31 December 1994. The Convention will, then, enter into force by 1 January 1995,
which was the date specified in Article 6 laying down a derogation applicable to airports;
this reference is thus superfluous and can be deleted in paragraphs 1 and 4 of that
Article. This does not affect the timing.
13.      Since the Decision is the operative instrument, it should include the provisions
governing the Convention's entry into force that were contained in the former Article 32
of the Convention. These comprise the obligation on Member States to give notice of
their adoption of the Convention within the time limit laid down (Article 1(2)) and the
rules governing the Convention's entry into force (Article 2).
Furthermore, as the Convention is being concluded under the European Union, the
instruments of ratification now have to be deposited with the Secretary-General of the
Council, as for conventions concluded under Article 220 of the EC Treaty.
         Comparisons and references (former Article ...) are to the July 1991 proposal.
 ---pagebreak--- Amendments to the text of the Convention itself
14.     The main element behind the amendments made to the July 1991 text is the entry
into force of the Union Treaty. There is also the need to ensure that the Convention will
be compatible with the Agreement on the European Economic Area once that comes into
force. To make the structure clearer, the Convention has been divided into titles and
articles, each of them carrying a heading.
(a)     Amendments required by the Treaty on European Union
        (i)     Purely formal
15.     Being concluded in the framework of the Union, the Convention is necessarily
between the Member States. It is, then, unnecessary to mention this explicitly every
time: this change has been made in the title and throughout the body of the Convention.
The former Articles 33 and 34 on the accession of future Member States and the revision
of the Convention should also be deleted, these matters now being governed by Articles
O and K.3 of the Union Treaty.
With the recitals incorporated in the Decision, there is no need to repeat them in the
Convention. Furthermore, since the Convention is annexed to the Decision, no provision
needs to be made for its signature by the plenipotentiaries of the Heads of State. These
deletions do not affect the substance in any way.
16.     The Convention falls under the Union Treaty, which must be applied without
prejudice to the powers of the Community, and so it cannot include a definition of
internal frontiers, since that is a matter which falls under the EC Treaty. Consequently
reference should be made to the relevant Community instruments. The new Article 1(h),
replacing the former Article 1(0 and (g), no longer gives a substantive definition but
merely refers to the Community instruments defining intra-Community flights and sea
crossings.2 This change does not affect the substance.
The same is true of Article 13(2): work to prepare the computerized system is
proceeding under the Convention establishing a European Information System. This is
simply a clarification.
         At present these are paragraphs 3 and 5 of Article 2 of Council Regulation (EEC)
         N° 3925/91 of 19 December 1991.
 ---pagebreak---         (ii) Formal amendments with practical consequences
17.     The Treaty now contains rules on the procedures for the application of
conventions, and so the relevant provisions of the Convention must be amended
accordingly. The Committee set up in the former Article 26 as a decision-making body
need no longer be defined at all. This power now rests with the Council, but that need
not be spelled out because the second subparagraph of Article K.3(2)(c) does so. It is
sufficient to refer to the measures adopted in implementation of the Convention. This
change is reflected in the many articles which referred to the Committee.
These rules must conform to the principle laid down in Title VI of the Treaty: a
two-thirds majority is the rule, while unanimity is the exception. The scope of such
exceptions must be expressly stated in the Convention. Consequently except where
provision is made for some other procedure, reference to "measures in implementation"
implies recourse to the procedure laid down in the second subparagraph of Article
K.3(2)(c) (which applies unless a convention provides otherwise). This involves adoption
within the Council by a majority of two thirds. For practicality's sake, the same rule
should apply for all implementing measures provided for under the Convention.
Realistically, to safeguard the interests of the Member States it is reasonable to make
provision for recourse to unanimity for measures not expressly provided for in the
Convention. Article 26 is now worded accordingly.
18.     As regards the territorial extent of the Convention, the Gibraltar issue that
blocked progress in 1991 remains unresolved, so the Commission feels unable to take
a position. A solution can only come from the bilateral negotiations that have been
under way since 1991. The Commission therefore proposes that the relevant article be
left blank for the time being so that negotiations can proceed undisturbed. This will
enable the Council to go ahead with considering the text straight away and to incorporate
whatever emerges from the parties' efforts when the time comes.
19.     The Convention is now established by the Union and should not therefore include
a Final Act. The Member States could, however, submit declarations to be recorded in
the Council minutes.
                                             10
 ---pagebreak---          (iii)   Substantive amendments reflecting transfers of powers and secondary
                 legislation
20.      Under Article 100c of the EC Treaty the Community is now responsible for
certain aspects of visa policy: determining which countries' nationals are subject to visa
requirements and deciding on a uniform format for visas. This transfer of powers means
that the Council will have to adopt Community legislation. To ensure consistency with
the Treaty and any future Community decisions, the provisions in the old text of the
Convention that now fall within the scope of Article 100c have to be deleted. The
relevant passages in Articles 17, 18, 19(3) and 21 have therefore been removed and the
rest of the text amended accordingly. Likewise there needs to be a definition of "uniform
visa"; this is added by the new Article 1(f).
21.      Article K.l clearly states that Title VI applies "without prejudice to the powers
of the European Community",, and therefore allowance has to be made for the fact that
Community law already deals to some extent with the crossing of frontiers, although no
distinction is made between internal and external frontiers. The Convention cannot
undermine this division of responsibilities and therefore applies primarily to persons not
entitled under Community law. This is spelled out in the new paragraph 2 of Article 1,
making it possible thereafter to refer simply to "persons". Nevertheless common rules
applicable to all travellers are still necessary. It is essential to be able to distinguish
between persons entitled under Community law and other travellers. These are the only
controls that apply to all travellers regardless of their situation. The Convention can
make this distinction because these provisions are not contrary to Community law. The
principle is stated in the second recital. The arrangements governing such controls are
laid down in Article 2.
22.      The July 1991 version of the Convention was drawn up before the adoption of
the legislation on goods transport and so does not reflect those provisions. Firstly, the
title of the Convention itself needs to be amended to make clear that it relates only to
controls on persons. Secondly, since Articles 5(5) and 6(2) deal inter alia with controls
on baggage, they now also state that such controls are to be effected without prejudice
to Community provisions.3
          In particular this means Council Regulation N° 3925/91 of 19 December 1991
         concerning the elimination of controls and formalities applicable to the cabin and
          hold baggage of persons taking an intra-Community flight and the baggage of
         persons making an intra-Community sea crossing and Com mission Regulation N°
          1823/92 of 3 July 1992 implementing the Council Regulation.
                                               11
 ---pagebreak---         (iv)   Substantive amendments reflecting the new legal framework laid down by
               Title VI
23.     Article K.3 of the Treaty states that M[s]uch conventions may stipulate that the
Court of Justice shall have jurisdiction to interpret their provisions and to rule on any
disputes regarding their application, in accordance with such arrangements as they may
lay down." The Commission considers that recourse to this provision is warranted both
to ensure the uniform interpretation of the Convention, given the link between the subject
of the Convention and matters falling under the EC Treaty, and to resolve any
differences that may arise over its implementation. Such a provision also serves to meet
the concerns of the European Parliament and non-governmental organizations.
Provision for uniform interpretation is made through the preliminary ruling procedure
in accordance with Article 177 of the EC Treaty. The Court of Justice will also be able
to rule on any dispute regarding the implementation of the Convention on application by
a Member State or the Commission. That is the purpose of the new Article 29.
(b)     Amendments required by the future European Economic Area
24.     Once it enters into force the Agreement of 2 May 1992 establishing the European
Economic Area will allow nationals of the EFTA member countries covered by the
Agreement to be treated in the same way as nationals of Community countries for the
purposes of entry controls and residence. The Commission considers that this
development can best be catered for by replacing the term "national of a Member State"
by "person entitled under Community law", newly defined at (a) of Article 1 to include
not only Union citizens but also third-country nationals who, by agreement between the
European Community and such countries, have identical rights of entry and residence.
This approach also makes it possible to stipulate that the family members, as defined in
Article 10 of Council Regulation N° 1612/68 of 15 October 1968, of a national of a
Member State who have third-country nationality may not be subjected, under the terms
of Directives 68/360, 73/148, 90/364, 90/365 and 93/... on entry and residence, to
controls beyond those applied to nationals of Member States, with the sole exception of
an entry visa requirement (this exception is contained in the second sentence of Article
5(2)).
25.     These, then, are the amendments to the draft Convention required by legal
developments since July 1991. The resulting text reflects the endeavour to conform to
the conclusions adopted by the Ministers responsible for immigration on 1 June 1993
and, above all, not to reopen negotiations on a text already agreed in substance, the swift
adoption of which is a top political priority in order to secure the free movement of
persons.
                                             12
 ---pagebreak--- PROPOSAL FOR A COUNCIL DECISION
  ESTABLISHING A CONVENTION ON
  CONTROLS ON PERSONS CROSSING
       EXTERNAL FRONTIERS
                13
 ---pagebreak---                  PROPOSAL FOR COUNCIL DECISION N°
                                        of
                                establishing a Convention
                            on Controls on Persons Crossing
                                    External Frontiers
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article K.3(2) thereof,
Having regard to the proposal from the Commission,'
Having regard to the opinion of the European Parliament,
Whereas the rules governing crossings by persons at the external frontiers of the Member
States and the exercise of controls on such crossings are, by virtue of Article K. 1 of the
Treaty on European Union and without prejudice to the powers of the European
Community, matters of common interest which may be the subject of cooperation under
Title VI;
Whereas the rules governing crossings at the external frontiers of the Member States by
citizens of the Union and other persons entitled under Community law fall within the
scope of the Treaty establishing the European Community; whereas this Convention
primarily defines the rules applicable to persons not entitled under Community law;
whereas controls on crossings at external frontiers must cover all persons arriving at a
frontier to the extent necessary to distinguish those entitled under Community law from
other persons;
Whereas Article 7a of the Treaty establishing the European Community sets the common
objective of an area without internal frontiers in which the free movement of persons is
ensured;
        OJ
                                             14
 ---pagebreak--- Whereas attainment of this objective requires effective controls, in line with common
criteria, on persons at the external frontiers of those States and closer cooperation on
implementing a common visa policy;
Whereas the controls on persons conducted by each Member State at its external frontiers
must be carried out according to rules which should be adopted in common, with due
regard for the interests of all Member States;
Whereas the aim of such controls is to enable threats to public policy and public security
to be eliminated in the Member States of the European Union and to combat illegal
immigration, while preserving the openness of those States to the rest of the world and
their intensive exchanges with other countries, particularly in the cultural, scientific and
economic spheres;
Whereas the introduction of a system of controls at external frontiers requires that
particular attention be paid to the questions of infrastructure and frontier surveillance on
the part of countries which, because of their geographical position and configuration, are
exposed to increased migratory pressure;
Whereas the Member States intend to conduct these controls in compliance with their
common international commitments, in particular the European Convention for the
Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the
Geneva Convention of 28 July 1951, as amended by the New York Protocol of 31
January 1967, relating to the Status of Refugees as well as with more favourable
constitutional provisions on asylum,
HAS DECIDED AS FOLLOWS:
                                              15
 ---pagebreak---                                          Article J
1.     It is recommended that the Member States adopt the Convention on Controls on
       Persons Crossing External Frontiers established by this Decision, the text of
       which is annexed hereto, in accordance with their respective constitutional
       requirements by 31 December 1994.
2.     The Member States shall notify the General Secretariat of the Council of the
       instruments attesting completion of the procedures for the adoption of the
       Convention in accordance with their respective constitutional requirements, and
       deposit them with it.
                                         Article 2
1.     The Convention shall enter into force on the first day of the second month
        following the deposit of the instrument of adoption with the General Secretariat
       of the Council by the last Member State to take that step.
       The provisions concerning the adoption of measures in implementation of the
       Convention shall apply from the date of its entry into force. The other provisions
       shall apply from the first day of the third month following that date.
2.     The Secretary-General of the Council shall inform the Member States of the date
       of entry into force of this Convention.
                                         Article 3
This Decision shall enter into force on the day of its publication in the Official Journal
of the European Communities.
Done at Brussels,
                                                    For the Council
                                                    The President
                                             16
 ---pagebreak---         CONVENTION
  ON CONTROLS ON PERSONS
CROSSING EXTERNAL FRONTIERS
           -17-
 ---pagebreak---                                 TITLE I
                                GENERAL
                               ARTICLE 1
                              Definitions
1. For the purposes of this Convention:
   (a)   'persons entitled under Community law' means:
           (i) citizens of the Union within the meaning of Article 8(1) of
               the Treaty establishing the European Community;
          (ii) members of the family of such citizens who are nationals of
               a third State and have the right of entry and residence in
               a Member State by virtue of an instrument enacted under the
               Treaty establishing the European Community;
         (iii) nationals of third States who, by agreement between the
               European Community and its Member States and such
               countries, have rights of entry and residence in a Member
               State which are identical with those enjoyed by citizens of
               the Union, and members of the family of such persons who
               are nationals of a third State and have the right of entry
               and residence in a Member State under any such agreement.
   (b)   'residence permit' means any authorization issued by the
         authorities of a Member State authorizing a person not entitled
         under Community law to stay in its territory, with the exception
         of visas and the provisional residence permit referred to in
         Articles 8 and 15;
   (c)   'entry visa' means authorization or decision by a Member State,
         given in accordance with decisions adopted under Article 100c of
         the Treaty establishing the European Community,      to enable a
         person to enter its territory who is required to hold a visa to
         do so, subject to other entry conditions being fulfilled;
                                  -18-
 ---pagebreak---    (d)   'transit visa' means authorization or decision by a Member State,
         given in accordance with decisions adopted under Article 100c of
         the Treaty establishing the European Community, to enable a
         person to transit through its territory or through the transit
         zone of a port or airport who is required to hold a visa to do
         so, subject to other transit conditions being fulfilled; the time
         taken to transit shall not exceed five days;
   (e)   're-entry visa' means authorization by a State enabling a person
         who is not a national of that State and who is present in the
         territory of that State to re-enter within a specified period
         without re-obtaining an entry visa to that State;
   (f)   'uniform visa' means entry, transit or re-entry visa of the
         uniform format provided for in Article 100c(3) of the Treaty
         establishing the European Community, issued under the rules
         specified in Articles 19 to 22 of this Convention;
   (g)   'short stay' means an uninterrupted stay or successive stays in
         the territories of the Member States the length of which does not
         exceed three months, calculated over six months from the date of
         first entry;
   (h)   'external frontiers' means:
           (i) a Member State's land frontier which is not contiguous with
               a frontier of another Member State, and maritime frontiers;
          (ii) airports and seaports, except where they are considered to
               be internal frontiers for purposes of instruments enacted
               under the Treaty establishing the European Community;
   (i)   'local frontier traffic' means the movement, within a limited
         geographical area defined in a convention concluded by a Member
         State with a contiguous State which is not a member of the
         European Communities, of persons who come within the scope of
         that convention and are thereby entitled to cross the external
         land frontier of the Member State concerned under special
         conditions.
2. This Convention applies, except where there is an express statement to
   the contrary, to all persons other than those entitled under Community
   law.
                                  -19-
 ---pagebreak---                                 TITLE II
                           GENERAL PRINCIPLES
                                ARTICLE 2
                      Crossing external frontiers
1.  All persons crossing the external frontiers shall do so at authorized
    crossing points permanently controlled by the Member States.
2.  Persons crossing external frontiers at any point other than authorized
    crossing points shall be liable to penalties as determined by each
    Member State.
3., Each Member State shall determine the location and opening conditions
    of authorized crossing points on its external frontiers and shall
    communicate this information and any changes thereto to the General
    Secretariat of the Council, which shall inform the other Member States
    accordingly. Crossing at crossing points outside their opening hours
    shall not be permitted.
4.  By way of exception, as provided in Article 1(2), this Article also
    applies to persons entitled under Community law who cross the external
    frontiers, unless otherwise stipulated in the law of the Member State
    concerned.
5.  The exceptions and specific rules applying to particular categories of
    maritime traffic for the crossing of external frontiers, and the
    arrangements for local frontier traffic, shall be determined by
    measures to give effect to this Convention.
                                   -20-
 ---pagebreak---                                   ARTICLE 3                             j
                     Surveillance of external frontiers
External frontier stretches other than authorized crossing points shall be
kept under effective surveillance by mobile units or by other appropriate
means. Member States undertake to provide surveillance yielding similarly
effective results along all their external frontiers; their surveillance
agencies shall consult and cooperate to that end.
                                  ARTICLE 4
                       Controls at external frontiers
The crossing of external frontiers shall be subject to control by the
competent authorities of the Member State concerned. Controls shall be carried
out in accordance with national law, with due regard for the provisions of
this Convention.
                                      -21-
 ---pagebreak---                                ARTICLE 5
               Nature of controls at external frontiers              ,
1. When crossing   an external frontier upon entering or leaving the
   territories of  the Member States, all persons shall be subject to a
   visual control   under conditions which permit their identity to be
   established by examination of their travel documents.
2. Upon entry, persons shall also be subject to a control to ensure that
   they fulfil the conditions set out in Article 7. By way of exception,
   as provided in Article 1(2), persons entitled under Community law who
   are third-country nationals shall be subject to the condition in
   Article 7(1) (b) if they are required to hold a visa by virtue of
   instruments enacted under Article 100c of the Treaty establishing the
   European Community.
3. Detailed rules for applying the controls       shall be  determined  by
   measures to give effect to this Convention.
4. Certain controls may, exceptionally, be relaxed, due regard being had
   for any conditions that may be laid down by measures to give effect to
   this Convention.     Controls upon entry shall take precedence over
   controls upon departure.
5. Without prejudice to Community provisions regulating controls on
   baggage carried by travellers and on their vehicles, controls on
   persons and their vehicles and baggage may be performed where necessary
   for the purposes of:
         detecting and preventing threats to national security and public
         policy; or
         combating illegal immigration.
6. When effecting these controls, Member States shall take account of the
   interests of the other Member States.
                                  -22-
 ---pagebreak---                                ARTICLE 6
                  Specific arrangements for airports
1. Member States shall ensure that passengers on flights from third States
   who transfer onto internal flights will be subject to an entry control
   at the airport at which the external flight arrives. Passengers on
   internal flights who transfer onto flights bound for third States will
   be subject to a departure control at the airport from which the
   external flight departs.
2. Paragraph  1 is without   prejudice   to Community  baggage  inspection
   measures.
3. Member States shall also take any measures necessary to ensure that:
         passengers who embark in a Member State on a flight coming from
         a third State which is bound for a destination in a Member State
         are subject at the airport of destination to the controls
         specified for passengers coming from third countries;
         passengers who embark in a Member State on a flight bound for a
         destination in a third State and who disembark in another Member
         State are subject at the airport of embarkation to the controls
         specified for passengers going to third countries;
         passengers who embark in a Member State to go to another Member
         State on a flight coming from and bound for one or more third
         States are subject at the airports of the Member States to the
         controls specified for passengers coming from or bound for third
         countries, depending on whether they are departing from or
         arriving in a Member State.
                                  -23-
 ---pagebreak---                             TITLE III
           CONTROL ARRANGEMENTS AT EXTERNAL FRONTIERS
                            ARTICLE 7
      Controls on persons not entitled under Community law
Any person may be authorized to enter the territories of the Member
States for a short stay provided that he meets the following
requirements :
(a)   that he present a valid travel document which authorizes the
      crossing of frontiers; a list and description of luch documents
      shall be drawn up by measures to give effect to this Convention;
(b)   where applicable, that he be in possession of a visa valid for
      the length of stay envisaged;
(c)   that he does not represent a threat to the public policy,
      national security or international relations of Member States
      and, in particular, that his name does not appear on the joint
      list provided for in Article 10;
(d)   that he produce, if necessary, documents justifying the purpose
      and conditions of the intended stay or transit, in particular the
      required work permits if there is reason to believe that he
      intends to work;
(e)   that he have sufficient means of subsistence, both for the period
      of the intended stay or transit and for him to return to his
      country of origin or travel to a third State into which he is
      certain to be admitted, or be in a position to acquire such means
      lawfully.
Any person may also be refused entry:
(a)   if his name appears on the national list of persons who are not
      to be admitted to the Member State to which he seeks entry;
(b)   in all the circumstances in which a national of a Member State
      may be refused entry to another Member State.
                              -24-
 ---pagebreak---                                ARTICLE 8
      Crossing of external frontiers by third-country nationals
                      residing in a Member State
1. A Member State shall not require a visa of a person who wishes to enter
   its territory for a short stay or to transit through it, provided that
   that person:
   (a)   fulfils the     conditions   in  Article   7,   except  that   in
         paragraph 1(b); and
   (b)   holds a residence permit issued by another Member State
         permitting him to reside in that State, the period of validity of
         which, at the time of entry, still has more than four months to
         run.
2. In exceptional cases, paragraph 1 may also apply to persons who hold a
   provisional residence permit issued by a Member State and a travel
   document issued by that Member State.
3. Member States shall, under conditions determined by measures to give
   effect to this Convention, take back any person to whom they have
   issued a residence permit or provisional residence permit within the
   meaning of paragraphs 1 and 2 and who is illegally resident in the
   territory of another Member State.
4. In exceptional cases, a Member State may depart from the provisions of
   paragraphs 1 and 2 for urgent reasons of national security, but must
   take into consideration the interests of the other Member States.
   The Member State concerned shall inform the other Member States in an
   appropriate manner, determined by measures to give effect to this
   Convention.
   Such measures shall be used only to the extent that and for as long as
   is strictly necessary to achieve the purposes referred to in the first
   subparagraph.
5. For the purposes of implementing this Article,
         a list of the residence permits and provisional residence permits
         referred to in paragraphs 1 and 2 which shall be accepted as
         equivalent to visas; and
         an indicative list of the exceptional circumstances in which
         Member States' authorities shall accept the provisional residence
         permits and the travel documents referred to in paragraph 2 as
         equivalent to visas
   shall be drawn up by measures to give effect to this Convention.
                                  -25-
 ---pagebreak---                                   ARTICLE 9
                      Stays other than for a short time
Persons who propose to stay in a Member State other than for a short time
shall enter that State under the conditions laid down in its national law. In
that case access shall be restricted to the territory of that State.
                                     -26-
 ---pagebreak---                                 TITLE IV
                   NOTIFICATIONS FOR REFUSING ENTRY
                               ARTICLE 10
                  List of persons to be refused entry
1. A joint list of persons to whom the Member States shall refuse entry to
   their territories shall be drawn up on the basis of national
   notifications by measures to give effect to this Convention.
2. The list, which shall be continually updated, shall contain the names
   submitted for this purpose by each Member State.
3. The decision to put a person on the joint list shall be based on the
   threat which that person may represent to the public policy or national
   security of a Member State. It shall be based on a decision taken with
   due regard for the rules of procedure laid down by national law by the
   administrative or competent judicial authorities of the Member States
   on account of:
         a custodial sentence of one year or more in the Member State
         concerned; or
         information to the effect that the person concerned has committed
         a serious crime; or
         serious grounds for believing that he is planning to commit a
         serious crime or that he represents a threat to the public policy
         or national security of a Member State; or
         a serious offence or repeated offences against the law relating
         to the entry and residence of foreigners.
4. Detailed rules for applying the criteria set out in paragraph 3 shall
   be determined by measures to give effect to this Convention.
                                  -27-
 ---pagebreak---                               ARTICLE 11
                       Issue of residence permit
1. Where a person whose name is on the joint list provided for in
   Article 10 applies for a residence permit, the Member State to which
   application is made shall first consult the Member State which entered
   the name on the list and shall take into account the interests of that
   State; the residence permit shall be issued for substantive reasons
   only, notably on humanitarian grounds or by reason of international
   commitments.
   If the residence permit is issued, the Member State which entered the
   name on the joint list shall delete the entry.
2. If it becomes apparent that the name of a person who is in possession
   of a valid residence permit issued by one of the Member States is on
   the joint list, the Member State which entered the name and the Member
   State which issued the residence permit shall consult each other in
   order to determine whether there are sufficient grounds for withdrawing
   the residence permit.
   If the residence permit is not withdrawn, the Member State which made
   the entry shall delete it.
3. Detailed rules for the application of this Article shall be determined
   by measures to give effect to this Convention.
                               ARTICLE 12
                  Refusal of entry to a Member State
1. Entry into the territories of the Member States shall be refused to
   persons who fail to fulfil one or more of the conditions set out in
   Article 7(1) and Article 9.
2. A Member State may, however, on humanitarian grounds or in the national
   interest or by reason of international commitments, allow persons who
   fail to fulfil those conditions to enter its territory. In such a case,
   permission to enter shall be restricted to the territory of the Member
   State concerned, which, if the person concerned is on the joint list,
   shall inform the other Member States in an appropriate manner,
   determined by measures to give effect to this Convention.
                                   •28-
 ---pagebreak---                            ARTICLE 13
                     Exchange of information
The exchange of information on data contained in the joint list shall
be computerized.
The creation, organization and operation of this computerized system
will be the subject of the Convention on the European Information
System. The Convention will include guarantees for the protection of
individuals with regard to the processing of personal data.
The joint list may be consulted by the competent authorities of the
Member States which, in accordance with their national laws, are
concerned with:
      processing visa applications;
      frontier controls;
      police checks;
      the admission and regulation of the stay of persons who are not
      nationals of a Member State.
Each Member State shall inform the Commission and the other Member
States of the agencies authorized, in pursuance of this Article, to
consult the joint list.
                               -29-
 ---pagebreak---                                  TITLE V
                         ACCOMPANYING MEASURES
                               ARTICLE 14
                     Responsibilities of carriers
1. Without prejudice to Article 27 and instruments enacted under the
   Treaty establishing the European Community, the Member States undertake
   to incorporate in their national legislation measures relating to
   airlines and shipping companies and to public-service international
   carriers transporting groups overland by coach, with the exception of
   local frontier traffic.
2. The purpose of such measures will be:
         to oblige the carrier to take all necessary measures to ensure
         that persons coming from third countries are in possession of
         valid travel documents and of the necessary visas, and to impose
         appropriate penalties on carriers failing to fulfil this
         obligation;
         to oblige the carrier, where required by the control authorities,
         to assume responsibility without delay (this may include covering
         the costs of accommodation until departure), and to return to the
         State from which he was transported or to the State which issued
         his passport or to any State to which he is certain to be
         admitted, a person coming from a third country who is refused
         admission at the first control on entry into Community territory.
                                   -30-
 ---pagebreak---                                   ARTICLE 15
                  Illegal crossing of an external frontier
1.    A person who illegally crosses an external frontier without a residence
      permit or who does not fulfil, or no longer fulfils, the conditions of
      residence in a Member State shall normally be required to leave the
      territory of the Member State without delay, unless his stay is
      regularized.
      If such a person holds a valid residence permit or provisional
      residence permit issued by another Member State, he shall go to the
      territory of that Member State without delay, unless he is authorized
      to go to another country to which he is certain to be admitted.
2.    Where such a person has not left voluntarily or where it may be assumed
      that he will not so leave or if his immediate departure is required for
      reasons of national security or public policy, he shall be expelled as
      laid down in the legislation of the Member State in which he was found.
      He shall be expelled from the territory of that Member State to his
      country of origin. He may equally be expelled to any other country to
      which he may be admitted, notably under the relevant provisions of
      readmission agreements between Member States.
3.    A list of the residence permits or provisional residence permits issued
      by the Member State shall be drawn up by measures to give effect to
      this Convention.
4.    Should one of them so request, Member States shall conclude bilateral
      agreements between themselves on the readmission of persons who are not
      entitled under Community law.
                                  ARTICLE 16
                    Compensation for financial imbalances
Subject to determination of the appropriate criteria and practical
arrangements by measures to give effect to this Convention, Member States
shall compensate each other for any financial imbalances which may result from
the obligation to expel provided in Article 15 where such expulsion cannot be
effected at the expense of the person concerned or of a third party.
                                     -31-
 ---pagebreak---                                   TITLE VI
                                    VISAS
                                  ARTICLE 17
                             Common visa policy
Member States undertake to harmonize their visa policies progressively,
without prejudice to decisions adopted under Article 100c of the Treaty
establishing the European Community.
                                 ARTICLE 18
                                Uniform visa
A Member State shall not require a visa issued by its own authorities of a
person applying to stay for a short time within its territory who holds a
uniform visa.
                                     -32-
 ---pagebreak---                            ARTICLE 19
              Conditions for issue of uniform visa
A uniform visa may be issued only where a person fulfils the conditions
for entry laid down in Article 7(1), except that in subparagraph (b).
Uniform visas shall be issued on the basis of the following common
conditions and criteria:
      travel documents presented upon application for a visa must be
      checked to ensure that they are in order and authentic;
      the expiry date of the travel document must be at least three
      months later than the final date for stays stated on the visa,
      account being taken of the time within which the visa must be
      used;
      the travel document must be recognized by all Member States;
      the travel document must be valid in all Member States;
      the travel document must allow for the return of the traveller to
      his country of origin or his entry into a third country;
      the existence and validity of an authorization or a re-entry visa
      for the traveller to return to the country of departure must be
      checked if such formalities are required by the authorities of
      that country. The same shall apply to any authorization required
      for entry to a third country.
                              -33-
 ---pagebreak---                               ARTICLE 20
              Prior consultation of centrai authorities
   Where in certain cases a Member State makes the issue of visas subject
   to prior consultation of its central authorities and where it wishes to
   be consulted on the issue, in such cases, of a uniform visa by another
   Member State, this visa shall not be issued unless the central
   authorities of the Member State concerned have been consulted in
   advance and have expressed no objection.
   The absence of a reply from these authorities within a period to be
   determined by measures to give effect to this Convention shall be
   regarded as indicating that there is no objection to the issue of a
   visa. The period shall be fourteen days at most.
   If there is an objection, or if the consultation procedure referred to
   in the first subparagraph has not been implemented for reasons of
   urgency, only a national visa with restricted territorial validity
   shall be issued.
   Rules for implementing this Article shall be determined by measures to
   give effect to this Convention, having particular regard for Member
   States' security; they may specify cases in which the issue of a
   uniform visa must be made subject to prior consultation of the central
   authorities of the Member State or States requiring such consultation,
   but this shall be without prejudice to Member States' option to hold
   prior consultations with their own central authorities in other cases.
                              ARTICLE 21
                     Multiple-entry uniform visa
1. The uniform visa may be a visa valid for one or more entries. Neither
   the length of any continuous stay nor the total length of successive
   stays may exceed three months in a six-month period starting on the
   date of entry.
2. The conditions and criteria for issuing multiple-entry uniform visas
   shall be determined by measures to give effect to this Convention.
                                 -34-
 ---pagebreak---                                   ARTICLE 22
                            Issue of uniform visa
1.    The uniform visa shall be issued by the diplomatic and consular
      authorities of the Member States or, in exceptional cases, by other
      authorities determined in accordance with national legislation.
2.    The Member State which is the main destination shall normally be
      responsible for issuing the visa. If it is not possible to determine
      that destination, the Member State of first entry shall be responsible.
3.    The principles stated in this Article shall be implemented by  measures
      to give effect to this Convention.
                                  ARTICLE 23
                              Extension of stay
A Member State may, if necessary, issue a visa the validity of which is
restricted to its own territory to the holder of a uniform visa in the course
of any one six-month period.
A Member State may also authorize a person holding a uniform visa to remain
in its territory for more than three months.
                                     -35-
 ---pagebreak---                                   ARTICLE 24
                               National visas
1.    Member States may issue visas valid only in their respective
      territories in the cases provided for in Articles 20, 23 and 25.
2.    In addition, a Member State may, on humanitarian grounds or in the
      national interest or by reason of international commitments, issue a
      person who does not meet any or some of the conditions laid down in
      Article 7(1) (a), (c), (d) and (e) with a visa valid only in its own
      territory.
3.    A Member State which has issued a person with a visa pursuant to
      paragraph 2 shall so inform the other Member States if that person is
      on the joint list or if the State consulted pursuant to Article 20 has
      objected. This information shall be supplied in accordance with the
      procedures established under Article 12(2) in accordance with the
      measures to give effect to this Convention.
4.    Visas issued in accordance with paragraphs 1 and 2 shall indicate their
      distinct nature and be different in appearance from the uniform visa.
                                 ARTICLE 25
                               Long-stay visas
Visas for stays of more than three months shall be national visas issued by
each Member State in accordance with its national law.
The issue of such visas shall be subject to consultation of the joint list.
                                     -36-
 ---pagebreak---                                    TITLE VII
                                 IMPLEMENTATION
                                   ARTICLE 26
                             Implementing measures
Decisions needed to give effect to this Convention, other than those expressly
provided therein, shall be adopted by the Council, acting unanimously on a
proposal from the Commission or on the initiative of a Member State.
                                   ARTICLE 27
                            Primacy of instruments
1.    This Convention shall be subject to the European Convention for the
      Protection of Human Rights and Fundamental Freedoms of 4 November 1950
      and to the Geneva Convention of 28 July 1951, as amended by the New
      York Protocol of 31 January 1967, relating to the Status of Refugees
      and without prejudice to more favourable constitutional provisions of
      Member States on asylum.
2.    This Convention shall     not   affect  bilateral conventions  on  local
      frontier traffic.
                                       -37-
 ---pagebreak---                                   ARTICLE 28
                         Relations with third States
1.    A Member State which envisages conducting negotiations on frontier
      controls with a third State shall inform the other Member States and
      the Commission accordingly in good time.
2.    No Member State shall conclude with one or more third States agreements
      simplifying or removing frontier controls without the prior agreement
      of the Council.
      This paragraph does not apply to agreements on local frontier traffic
      where such agreements conform to the arrangements laid down pursuant to
      Article 2 and is without prejudice to Article 27(2).
                                  ARTICLE 29
                    Jurisdiction of the Court of Justice
The Court of Justice of the European Communities shall have jurisdiction:
            to give preliminary rulings concerning the interpretation of this
            Convention; references shall be made as provided in the second
            and third paragraphs of Article 177 of the Treaty establishing
            the European Community;
            in disputes concerning the implementation of this Convention, on
            application by a Member State or the Commission.
                                     -38-
 ---pagebreak---          TITLE VIII
      FINAL PROVISIONS
         ARTICLE 30
           Extent
[text to be inserted later]
            -39-
 ---pagebreak---                             EXPLANATORY MEMORANDUM
 1. General
The new Article 100C of the Treaty of Rome requires the Council to determine the third
countries whose nationals must be in possession of a visa when crossing the external
frontiers of the Community. This provision has been placed squarely amongst the internal
market provisions of the Treaty. The necessary inferencefromthis is that it is designed to
contribute towards achieving the free movement of persons within the internal market, as
specified in Article 7A EC (formerly Article 8A EEC).
In October 1986 the Twelve set up inter-governmental cooperation in the field of justice
and internal affairs. One of the first results of the gradual coordination of their policies
with respect to visas was the adoption by the Ministers responsible for immigration at
Copenhagen in December 1987 of a list of 50 third countries whose nationals were subject
to a visa requirement in all the Member States. This means that a national of one of those
countries wishing to visit the twelve Memeber States must hold 10 different visas (for the
Benelux countries, a visa issued by one of those 3 countries is enough). Starting with their
meeting in Munich in June 1988, the Ministers followed developments relating to the
harmonisation of visas and took note at each of their successive meetings of the number of
third countries whose nationals were required by all Member States to hold a visa to enter
their territory. Thus at their meeting held in Copenhagen in June 1993 the Ministers
responsible for immigration took note of the fact that 73 countries fell into this category.
Furthermore, the information supplied by the Member States shows that there are 19
countries whose nationals are not subject to a visa requirement by any Member State and
92 third countries whose nationals are required to hold a visa by between one and 11
Member States.
The accompanying measures regarded as essential and desirable for the achievement of
thefreemovement of persons are set out in the Palma Document adopted at the European
Council held in Madrid in June 1989. One of the measures considered to be essential is a
convention between the Member States on the crossing of external frontiers. The
harmonisation of Member States' policies concerning visas constitutes an important part
of the envisaged convention. Apart from creating the legal framework for the
                                                                                             Uo
 ---pagebreak--- determination of the third countries whose nationals are or are not to be subject to visa
requirements, the unsigned drall Iixternal Frontiers Convention of 1991 provides for a
uniform visa (including the conditions for the issue of such a visa) and contains provisions
on visas having limited territorial validity and the right of movement of certain categories
of third country nationals.
The Convention of 1990 applying the Schengen Agreement, which is now expected to
come into force shortly, also contains provisions on visas. Article 9 of the former text
declares that the Contracting Parties undertake to adopt a common visa régime and to
harmonise their policies in this regard. The nine Schengen States have drawn up three lists
of third countries pursuant to this article: a relatively long list of third countries whose
nationals will require visas to enter all the Schengen States; a relatively short non-binding
"inventory" of third countries whose nationals are to be exempted from this requirement in
all the Schengen States; and a further non-binding "inventory" of countries whose
nationals are subject to visa requirements in some Schengen States only.
The Commission has naturally had regard to all these texts when drafting this proposal,
and has drawn on them where appropriate.
Moreover, this proposal is not to be read in isolation, but as part of the Commission's
overall approach to achieving the free movement of persons, comprising: the revised
External Frontiers Convention, proposed jointly with the present Regulation; a proposal
on the uniform format for visas based on Article 100C(3) to be made as soon as various
technical problems, relating notably to confidentiality, have been overcome; and any other
Community instruments which may appear necessary.
The language of Article 100C(1) makes it plain that the Community is under an obligation
to take the action referred to in paragraph 1, and that any such action on the part of
Member States is precluded as from the entry into force of the Treaty on European Union.
At the same time, the opening words of paragraph 3 necessarily suggest that such action is
to be taken before 1996. Hence the need to propose this measure as soon as possible after
the Treaty of Maastricht has entered into force, particularly as that event has itself been
delayed by almost a year.
This proposed Regulation is not expressed to be limited to the period prior to 1 January
 1996, when the Council will act by qualified majority pursuant to Article 100C(3). There
is no need to adopt a new Regulation merely because the voting procedure in the Council
changes. Thus the Regulation will continue in force after that date subject to any
amendments which may be made under the new procedure.
                                              -2
                                                                                              Li>
 ---pagebreak---  2. Subsidiarity and proportionality
 Article 100C confers an exclusive power on the Community in this matter.
 In theory, this provision could be implemented by a regulation or by a directive. The
 Commission has opted for a regulation rather than a directive, for two reasons: by
 definition, the drawing up of a list of countries whose nationals are to be subject to a visa
 requirement gives Member States no discretion, and indeed "implementing" such a list
would be a pointless exercise; and in certain cases urgent action may be necessary, so that
the delays involved in implementing directives would give rise to severe practical
 difficulties.
3.Commentary on the articles
Article 1
The very purpose of Article 100C is to establish a uniform list of third countries whose
nationals are to be subject to visa requirements, which inevitably means that disparities
between the practices of Member States in this regard must be removed. By providing
that the Council is to "determine the third countries whose nationals must be in possession
of a visa when crossing the external borders of the Member States" Article 100C
necessarily implies that the Council must also determine which third countries are to be
exempt from a visa requirement. The contrary view cannot be reconciled either with the
letter or with the spirit of this provision.
Article 1(1) refers to the Annex, which sets out the countries whose nationals are subject
to a visa requirement. For ease of reference the Annex will be called the "negative list".
Ideally the Commission would have wished at this stage to place every third country either
on the negative list or on a "positive list" of countries whose nationals are to be exempted
from visa requirements. Manifestly, this is what is contemplated by Article 100C.
However, this proved impossible in view of the very large number of third countries for
which the practices of Member States diverge and the sensitive nature of the decision to
be taken with respect to many of those countries. Accordingly, the Commission accepts
that Member States may decide whether or not to impose visa requirements on nationals
                                                                                               4i
 ---pagebreak--- of third countries not listed in the Annex, subject to the two conditions set out in the
preamble, namely: that it does not give rise to any controls contrary to Article 7A EC
(formerly Article 8A EEC); and that it is only applicable for a strictly limited period of
time, whereupon each third country must be governed either by the positive or the
negative list. This situation can only be compatible with the Treaty if these two conditions
are met. These principles are enshrined in Article 1(2).
Article 1(3) is designed to ensure the observance of the principle of open government: any
measures taken by Member States pursuant to paragraph 2 are to be published in Part C
of the Official Journal.
Article 2
This Article, which lays down the principle of mutual recognition by Member States of
visas granted by each other, is in a sense the corner-stone of this proposal. As stated at the
outset, Article 100C is an internal market provision. Its purpose is thus inter alia to
contribute towards the realisation of the internal market provided for in Article 7 A of the
Treaty. It necessarily follows from this that the mere drawing up of common lists of third
countries without more would fall well short of the objective set by Article 100C. Rather,
the purpose is to hasten the end of controls on persons at the Community's internal
borders. This can only be achieved by the principle of mutual recognition.
However, this Article applies only to visas which are valid throughout the Community.
This matter is governed by the External Frontiers Convention. This condition was judged
necessary because Member States could not be expected to recognise visas granted by
each other without a minimum of harmonisation. Otherwise the Member States would lay
themselves open to the abusive practice of "visa shopping".
Moreover, the External Frontiers Convention provides that persons holding a residence
permit granted by a Member State are to be exemptfromvisa requirements.
Article 3
The term "visa" is used in Article 100C, so that the Council must be taken to have power
to define this term pursuant to that provision. Some definition is indispensable if the other
provisions of the Regulation are to be fully effective, as work in the Schengen Group and
the Ad hoc Immigration Group has clearly shown. At the same time, the Commission does
                                                                                               lii
 ---pagebreak--- not seek to innovate in this regard. Consequently, the definition in Article 3 broadly
corresponds to that in Article 1 of the draft External Frontiers Convention.
In the overwhelming majority of Member States a short stay is considered to be one
lasting no more than three months. This explains why this criterion was used in Article 21
of the External Frontiers Convention as drafted in 1991. Thus the first indent is closely
modelled on the latter provision.
Article 4
Thefirstparagraph is a standard provision.
The object of the second paragraph is merely to ensure that all the information referred to
in Article 1(3) is published in the OfficialJoumal before the other operative provisions of
the Regulation are applied.
                                             -5-
 ---pagebreak---                                       Proposal for a
Regulation determining the third countries whose nationals must be in possession of a
            visa when crossing the externalfrontiersof the Member States
THE COUNCIL OF THE EUROPEAN UNION
Having regard to the Treaty establishing the European Community, in particular
Article 100C thereof,
Having regard to the proposalfromthe Commission,
Having regard to the opinion of the European Parliament,
Whereas Article 100C of the Treaty requires the Community to determine the third
countries whose nationals must be in possession of a visa when crossing the external
borders of the Member States; whereas its place in the Treaty shows that this article
forms an integral part of the provisions relating to the internal market;
Whereas, according to the third paragraph of Article 3B of the Treaty, action taken by
the Community shall not go beyond what is necessary to achieve the objectives of the
Treaty; whereas the mutual recognition by Member States of visas issued by each
other, which is necessary to give full effect to Article 100C, is an essential
accompanying measure for the achievement of the objective set out in Article 7A as
regards thefreemovement of persons;
Whereas third countries should be classified according to their political and economic
situation and according to their relations with the Community and the Member States,
taking into account the degree of harmonisation achieved at Member State level,
Whereas the purpose of Article 100C is to harmonise the regulations and practices of
the Member States in this regard; whereas divergences between the regulations and
practices of Member States should be authorised for a limited period as a transitional
measure, on the understanding that they may not give rise to controls contrary to
Article 7A; whereas it should be stipulated that this transitional regime shall expire on
30 June 1996 and that prior to that date the Council shall decide with respect to each
third country whether its nationals are to be subject to a visa requirement or are to be
exemptedfromthat requirement;
Whereas, with a view to ensuring that the system is administered openly and that the
persons concerned are informed, measures taken by Member States pursuant to this
                                                                                          V
 ---pagebreak--- transitional and exceptional regime must be notified to the other Member States and to
the Commission; whereas for the same reasons this information must also be published
in the Official Journal of the European Communities;
Whereas the information provided for in Article 1(3) of this Regulation must be
published before Article 1(1) and 2 and Article 2 become applicable; whereas it is
therefore necessary to defer the application of those provisions until one month after
the Regulation has come into force;
HAS ADOPTED THIS REGULATION:
                                          Article 1
1. Nationals of third countries listed in the Annex to this Regulation shall be required
to be in possession of a visa when crossing the externalfrontiersof the Member States.
2. Until 30 June 1996 Member States shall decide whether to require visas of nationals
of third countries not listed in the Annex. Prior to that date the Council shall decide
according to the procedure laid down in Article 100C either to add each of those
countries to that list or or to exempt its nationalsfromvisa requirements.
3. Within 10 working days of the entry into force of this Regulation, Member States
shall notify the other Member States and the Commission of their measures taken
pursuant to paragraph 2. Any fresh measures taken pursuant to paragraph 2 shall be
similarly notified within 5 working days. The Commission shall publish the information
notified pursuant to this paragraph in the Official Journal of the European
Communities.
                                          Article 2
A Member State shall not be entitled to require a visa of a person who seeks to cross
its externalfrontiersand who holds a visa issued by another Member State, where that
visa is valid throughout the Community.
                                          Article 3
For the purposes of this Regulation, the following definition shall apply:
                                                                                         Uf>
 ---pagebreak--- visa: any authorisation granted by a Member State which either
        ~ entitles a person to enter its territory, subject to other entry conditions being
        fulfilled, and is valid for a stay of no more than three months, or a number stays
        not exceeding a total of three months in any six month period commencing on
        the date of thefirstentry, or
        -- entitles a person to transit through its territory or through the transit zone of
        a port or airport, subject to other transit conditions being fulfilled; or
        — entitles a person who is present on its territory to re-enter within a specified
        period;
                                            Article 4
This Regulation shall enter into force on the day following its publication in the
Official Journal of the European Communities.
However, Article 1(1) and (2) and Article 2 shall become applicable one month
thereafter.
This Regulation shall be binding in its entirety and directly applicable in all Member
States.
                                                                                             hi
 ---pagebreak---                                           Annex *
Afghanistan                  Grenada                      Northern Mariana Islands Turkey
Albania                      Guinea                       Oman                     Tuvalu
Algeria                      Guinea Bissau                Pakistan                 Uganda
Angola                       Guinea (Equitorial)          Papua New-Guinea         Ukraine
Antigua and Barbuda          Guyana                       Philippines              United Arab
Armenia                      Haïti                        Qatar                     Emirates
Azerbaïdjan                  India                        Roumania                 Uzbekistan
Bahamas                      Indonesia                    Russia                   Vanuatu
Bahrain                      Iran                         Rwanda                   Vietnam
Bangladesh                   Iraq                         Saint Christopher and    Yemen
Barbados                     Ivory Coast                  Nevis                    Zaïre
Belarus                      Jordan                       Saint Vincent and        Zambia
Belize                       Kazakhstan                   Grenadines               Zimbabwe
Benin                        Kirghizstan                  Santa Lucia
Bhutan                       Kiribati                     Samoa (Western)
Botswana                     Korea (North)                Sao Tome and Principe
Bulgaria                     Kuwait                       Saudi Arabia
Burkina Faso                 Laos                         Senegal
Burundi                      Lesotho                      Seychelles
Cambodia                     Lebanon                      Sierra Leone
Cameroon                     Liberia                      Solomon Islands
CapeVerde                    Libya                        Somalia
Central African Republic     Madagascar                   South Africa
Chad                         Maldives                     Sudan
China                        Mali                         Sri Lanka
Comores                      Morocco                      Surinam
Congo                        Marshall Islands             Swaziland
Cuba                         Mauritius                    Syria
Djibouti                     Mauritania                   Taiwan
Dominica                     Micronesia                   Tadjikistan
Domenican Republic           Moldavia                     Tanzania
Egypt                        Mongolia                     Thailand
Eritrea                      Mozambique                   Togo
Ethiopia                     Myanmar                      Tonga
Fiji                         Namibia                      Trinidad and Tobago
Gabon                        Nauru                        Trust Territory of the
Gambia                       Nepal                        Pacific Islands (Palau)
Georgia                      Niger                        Tunisia
Ghana                        Nigeria                      Turkmenistan
  * The present list does not prejudge the position of the European Community or its
  Member States with respect to the international status of the countries mentioned
  above, nor with respect to the relations which they maintain with them.
                                                                                             Jj2
 ---pagebreak---                                                                      ISSN 0254-1475
                                                              COM(93) 684 final
                                                      DOCUMENTS
EN                                                                     oi 06 il
                                Catalogue number : CB-CO-93-737-EN-C
                                                             ISBN 92-77-63031-0
Office for Official Publications of the European Communities
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