EUROPEAN
COMMISSION

Brussels, 4.5.2016
COM(2016) 277 final
2016/0139 (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
(Kosovo*)

*This designation is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion
on the Kosovo declaration of independence.

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EXPLANATORY MEMORANDUM
1.

CONTEXT OF THE PROPOSAL

•

Reasons for and objectives of the proposal

The European Commission launched a visa liberalisation dialogue with Kosovo on 19 January
2012. On 14 June 2012, it presented to Kosovo a roadmap, which identified all the legislation
and other measures that Kosovo needed to adopt and implement to advance towards visa
liberalisation. The Commission committed to propose visa-free travel for persons from
Kosovo for short stays (i.e. up to 90 days in any 180-day period) in the European Union once
Kosovo had met all the requirements and other measures set out in the visa liberalisation
roadmap.
The Commission insisted on sufficient progress in readmission and reintegration as necessary
elements to be put in place before launching a visa liberalisation dialogue with Kosovo. With
a set of important reforms implemented since 2011, Kosovo made satisfactory progress in
establishing a functional policy framework for the reintegration of returnees in Kosovo, as it
had already done in the case of readmission. The Commission continued to monitor and
assess, in its regular reports, Kosovo’s progress in enhancing its readmission framework and
the effective reintegration of returnees.
The visa liberalisation roadmap contained two sections: Section I addressed readmission and
reintegration; Section II, four separate ‘blocks’ of the visa dialogue. The four blocks of the
visa roadmap comprised specified requirements in document security; border/boundary and
migration management, including asylum; public order and security; and fundamental rights
related to the freedom of movement. Kosovo was first requested to adopt or amend in line
with the EU acquis the legislation set out in the roadmap and then fully implement it.
The Commission conducted the visa dialogue with Kosovo in reinforced consultation with the
Council, notably by involving the Council in developing the visa roadmap and with the full
participation of Member States' experts in assessing Kosovo’s progress in fulfilling the
requirements of the roadmap.
The visa dialogue with Kosovo has been conducted without prejudice to Member States’
position on status.1
The European Union Rule of Law Mission in Kosovo (EULEX KOSOVO), in line with its
mandate,2 has played an important role in monitoring, mentoring and advising Kosovo on
adopting and implementing the reforms and fulfilling the requirements set out in the roadmap.
Effective cooperation by Kosovo with EULEX, including in discharging its executive
mandate, has been essential.
Since launching the visa dialogue, the Commission has presented regular reports to the
European Parliament and to the Council on its assessment of Kosovo’s fulfilment of the
requirements of the roadmap. These reports addressed requirements related both to
readmission and reintegration and the different blocks of the visa roadmap. Each report drew
upon information provided by Kosovo; assessment missions undertaken by the Commission

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The decision on amending Regulation 539/2001 and lifting the EU visa requirement for the persons of
Kosovo does not affect the individual positions of the Member States on status.
Council Decision 2014/349/CFSP of 12 June 2014 amending Joint Action 2008/124/CFSP on the
European Union Rule of Law Mission in Kosovo (), EULEX Kosovo, OJ L 174, 13.6.2014, p. 42.

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and Member States' experts to assess Kosovo’s progress in the different blocks of the visa
dialogue and data provided by EUROPOL, FRONTEX, EASO and EULEX.
The Commission has adopted until now three reports on Kosovo’s progress in the visa
dialogue — the first one on 8 February 2013,3 the second on 24 July 2014;4 the third on 18
December 20155, complemented by the fourth one adopted today.6 These reports contained an
assessment of progress by Kosovo in fulfilling the requirements of the visa roadmap,
recommendations addressed to Kosovo and an assessment of the potential migratory and
security impacts of visa liberalisation.
In its third report, the Commission set out eight recommendations corresponding to eight
outstanding requirements of the visa roadmap, including four key priorities. It noted the
border/boundary delineation agreement with Montenegro should be ratified by Kosovo before
visa free status is granted to persons from Kosovo.
In its report accompanying the present proposal, the Commission observed that Kosovo had
taken important steps towards fulfilling the requirement of ratifying its border/boundary
agreement with Montenegro and fulfilled sufficient elements of building up its track record in
the fight against organised crime and corruption.
Based on this assessment and given the outcome of the continuous monitoring and reporting
that had been carried out since the launch of the visa liberalisation dialogue with Kosovo, the
Commission confirms that Kosovo has met the requirements of its visa liberalisation
roadmap on the understanding that by the day of the adoption of this proposal by the
European Parliament and the Council, Kosovo will have ratified the border/boundary
agreement with Montenegro and strengthened its track record in the fight against organised
crime and corruption.
Taking account of all the criteria which should be considered when determining on a case-bycase basis the third countries whose nationals are subject to, or exempt from, the visa
requirement as laid down in Article -1 of Regulation (EC) No 539/2001 (as introduced by
Regulation (EU) No 509/2014), the Commission has decided to present a legislative proposal
to amend Regulation (EC) No 539/2001, transferring Kosovo from Annex I, Part 2 to Annex
II, Part 4 of this Regulation. As indicated in the roadmap, this amendment only covers the
individuals from Kosovo who are holders of a biometric passport issued in compliance with
International Civil Aviation Organisation (ICAO) standards and EU standards for security
features and biometrics in travel documents7.
•

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,
3
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6
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COM (2013) 66 final.
COM(2014) 488 final.
COM(2015) 906 final, accompanied by SWD(2015) 706 final.
COM(2016) 276 final.
In particular Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security
features and biometrics in passports and travel documents issued by Member States, OJ L 385,
29.12.2004, p. 1.

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Liechtenstein, Norway and Switzerland. The Regulation is part of the EU’s common visa
policy for short stays of 90 days in any 180-day period.
Kosovo is currently listed in Annex I, Part 2 of Regulation (EC) No 539/2001, i.e. among
those entities and territorial authorities that are not recognised as states by at least one
Member State. Persons from those entities are required to hold a visa when travelling to the
territory of EU Member States.
Regulation (EC) No 539/2001 was last amended by Regulation (EU) No 259/20148 when
Moldova was transferred to the visa-free list after successfully implementing its Visa
Liberalisation Action Plan; and by Regulation (EU) No 509/2014 9 when five Caribbean10 and
eleven Pacific countries11, as well as Colombia, Peru and the United Arab Emirates were
exempted from the visa requirement – subject to the conclusion of visa waiver agreements
between the EU and the respective third countries – following a periodical review of the visa
lists. On 9 March 2016 and 20 April 2016, the Commission made proposals to amend
Regulation (EC) No 539/2001, transferring – respectively - Georgia12 and Ukraine13 to the
visa-free list.
The criteria which should be taken into account when determining – based on a case-by-case
assessment – the third countries whose nationals are subject to, or exempt from, the visa
requirement are laid down in Article -1 of Regulation (EC) No 539/2001. They include
“illegal immigration, public policy and security, economic benefit, in particular in terms of
tourism and foreign trade, and the Union’s external relations with the relevant third countries,
including in particular, considerations of human rights and fundamental freedoms, as well as
the implications of regional coherence and reciprocity”14. Particular attention should be paid
to the security of travel documents issued by the third countries concerned.
Kosovo has already exempted all EU citizens from the visa requirement for stays of up to 90
days within 6 months. Should this decision be revoked or should the visa-free regime be
abused, the reciprocity and suspension mechanisms of Regulation (EC) No 539/2001, as
amended by Regulation xxx can be activated.
•

Consistency with other Union policies

On 6 April 2016, the Commission proposed setting up an EU Entry/Exit System (EES) to
strengthen the Schengen area’s external borders15. The main objectives of this proposal are to

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Regulation (EU) No 259/2014 of the European Parliament and of the Council of 3 April 2014 amending
Council Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession
of visas when crossing the external borders and those whose nationals are exempt from that
requirement, OJ L 105, 8.4.2014, p. 9.
Regulation (EU) No 509/2014 of the European Parliament and of the Council of 15 May 2014
amending Council Regulation (EC) No 539/2001 listing the third countries whose nationals must be in
possession of visas when crossing the external borders and those whose nationals are exempt from that
requirement, OJ L 149, 20.5.2014, p. 67.
Dominica, Grenada, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago.
Kiribati, Marshall Islands, Micronesia, Nauru, Palau, Samoa, Solomon Islands, Timor-Leste, Tonga,
Tuvalu, Vanuatu.
COM(2016) 142 final.
COM(2016) 236 final.
Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals
must be in possession of visas when crossing the external borders and those whose nationals are exempt
from that requirement.
Proposal for a Regulation of the European Parliament and of the Council establishing an Entry/Exit
System (EES) to register entry and exit data and refusal of entry data of third country nationals crossing

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improve the quality of border checks for third country nationals and to ensure a systematic
and reliable identification of overstayers. The future EES will thus be an important element to
ensure lawful use of the visa-free stays in the Schengen area by third country nationals and to
contribute to preventing irregular migration of nationals from visa-free countries.
Furthermore, in its Communication of 6 April 201616, the Commission announced that it will
assess the need, feasibility and proportionality of the establishment of an EU Travel
Information and Authorisation System (ETIAS). The Commission has committed to explore
still in 2016 whether such an alternative layer of control for visa-free nationals is feasible and
proportional, and will effectively contribute to maintaining and strengthening the security of
the Schengen area.
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

As Regulation (EC) No 539/2001 is a legal act of the EU, it can only be amended by way of
an equivalent legal act. Member States cannot act individually to achieve the policy objective.
No other (non-legislative) options to achieve the policy objective are available.
3.

RESULTS
OF
EX-POST
EVALUATIONS,
CONSULTATIONS AND IMPACT ASSESSMENTS

•

Stakeholder consultations

STAKEHOLDER

Regular discussions with Member States in the Council Working Party on the Western
Balkans (COWEB), as well as regular exchanges with the European Parliament on the visa
liberalisation process have taken place.
•

Collection and use of expertise

The Commission has collected comprehensive data on Kosovo’s implementation of all
requirements of the visa liberalisation roadmap. The Commission’s fourth report is
accompanied by a Commission staff working document setting out the potential migratory
and security impacts of visa liberalisation for Kosovo, as well as the set of measures that
Kosovo has implemented since December 2015 to prevent an irregular migration crisis.17
•

Impact assessment

In the above staff working document, the Commission provided an updated analysis and
statistical information on the possible migratory and security impacts of visa liberalisation for
persons from Kosovo, as well as the set of measures that Kosovo has implemented since

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the external borders of the Member States of the European Union and determining the conditions for
access to the EES for law enforcement purposes, COM(2016) 194 final.
Communication from the Commission to the European Parliament and Council, "Stronger and Smarter
Information Systems for Borders and Security", COM(2016) 205 final.
SWD(2016) 160 final.

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December 2015 to prevent an irregular migration crisis, based on input provided by relevant
EU agencies and other stakeholders. No further impact assessment is necessary.
•

Fundamental rights

This proposal has no negative consequences for the protection of fundamental rights in the
European Union. The fulfilment of the benchmarks of the visa liberalisation roadmap will
improve the protection of human rights in Kosovo.
4.

BUDGETARY IMPLICATIONS

n/a
5.

OTHER ELEMENTS

•

Implementation plans and monitoring, evaluation and reporting arrangements

The amended Regulation will be directly applicable from the date of its entry into force and
will be implemented immediately by Member States. No implementation plan is necessary.
The Commission will continue to actively monitor Kosovo’s process of ratifying its
border/boundary agreement with Montenegro and the development of its track record in the
fight against organised crime and corruption.
The ongoing implementation by Kosovo of all requirements set out in the four blocks of the
visa roadmap, as well as reintegration and readmission, will be monitored in the post-visa
liberalisation monitoring mechanism,18 the Stabilisation and Association Process and, if
necessary, through ad hoc follow-up mechanisms. Kosovo should ensure that effective
measures remain in place to prevent abuse of the visa-free scheme. Among others, Kosovo
should organise targeted information campaigns aiming to clarify the rights and obligations of
visa-free travel to the Schengen area and the rules regulating access to the EU labour market.
The Commission will continue to monitor and do its utmost to support Kosovo in the
continuous fulfilment of the requirements of the visa roadmap.
•

Detailed explanation of the specific provisions of the proposal

Regulation (EC) No 539/2001 will be amended, transferring Kosovo from Annex I, Part 2
(visa-required list) to Annex II, Part 4 (visa-free list). A footnote will be added specifying that
the visa exemption will be limited to holders of biometric passports issued in line with the
standards of International Civil Aviation Organisation (ICAO) and EU standards for security
features and biometrics in travel documents (Council Regulation (EC) No 2252/2004).

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Commission Statement on a Monitoring Mechanism of 8 November 2010, 2010/0137 (COD).

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2016/0139 (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
(Kosovo*)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular point
(a) of Article 77(2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure,
Whereas:

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(1)

Council Regulation (EC) No 539/200119 lists the third countries whose nationals must
be in possession of a visa when crossing the external borders of the Member States
and those whose nationals are exempt from that requirement. The composition of the
lists of third countries in Annexes I and II should be, and should remain, consistent
with the criteria set out therein. References to third countries in respect of which the
situation has changed as regards those criteria should be transferred from one annex to
the other, as appropriate.

(2)

The criteria which should be taken into account when determining – based on a caseby-case assessment – the third countries whose nationals are subject to, or exempt
from, the visa requirement are laid down in Article -1 of Regulation (EC)
No 539/2001. They include “illegal immigration, public policy and security, economic
benefit, in particular in terms of tourism and foreign trade, and the Union’s external
relations with the relevant third countries, including in particular, considerations of
human rights and fundamental freedoms, as well as the implications of regional
coherence and reciprocity”.

(3)

[Kosovo has met the requirements of its visa liberalisation roadmap. On the basis of
this assessment and taking account of all the criteria listed in Article -1 of Regulation
(EC) No 539/2001, it is appropriate to exempt persons from Kosovo from the visa
requirement when travelling to the territory of the Member States.]

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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.

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(4)

Kosovo should thus be transferred from Annex I, Part 2 to Regulation (EC)
No 539/2001 to Annex II, Part 4 thereof. This visa waiver should apply only to holders
of biometric passports issued in line with the standards of International Civil Aviation
Organisation (ICAO) and Council Regulation (EC) No 2252/200420.

(5)

The visa exemption is dependent upon the continued implementation of the
requirements of the visa liberalisation roadmap. The Commission will actively
monitor the implementation of these requirements through the post-visa liberalisation
mechanism. The visa exemption may be suspended by the EU in line with the
suspension mechanism established by Article 1a of Regulation (EC) No 539/2001, as
amended by Regulation xxx should the conditions set out therein be met.

(6)

This Regulation constitutes a development of provisions of the Schengen acquis in
which the United Kingdom does not take part, in accordance with Council Decision
2000/365/EC21. 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.

(7)

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/EC22.
Ireland is therefore not taking part in the adoption of this Regulation and is not bound
by it or subject to its application.

(8)

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/EC23.

(9)

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/EC24.

(10)

As regards Liechtenstein, this Regulation constitutes a development of the provisions
of the Schengen acquis within the meaning of the Protocol signed between the

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Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and
biometrics in passports and travel documents issued by Member States, OJ L 385, 29.12.2004, p. 1.
Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great
Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis, OJ L 131,
1.6.2000, p. 43.
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.

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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/EU25,
HAVE ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 539/2001 is amended as follows:
(a) in Annex I, Part 2 ("ENTITIES AND TERRITORIAL AUTHORITIES THAT
ARE NOT RECOGNISED AS STATES BY AT LEAST ONE MEMBER STATE"),
the reference to Kosovo as defined by the United Nations Security Council
Resolution 1244 of 10 June 1999 is deleted.
(b) in Annex II, Part 4 ("ENTITIES AND TERRITORIAL AUTHORITIES
THAT ARE NOT RECOGNISED AS STATES BY AT LEAST ONE MEMBER
STATE "), the following reference is inserted:
“Kosovo* (**)”
______________
*
This designation is without prejudice to positions on status, and is in line with
UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence
** The exemption from the visa requirement is limited to the holders of biometric
passports issued in line with Council Regulation (EC) No 2252/2004 of 13 December
2004 on standards for security features and biometrics in passports and travel
documents issued by Member States, OJ L 385, 29.12.2004, p. 1.
Article 2
This Regulation shall enter into force on the twentieth day following that of its publication in
the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaties.

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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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Done at Brussels,

For the European Parliament
The President

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For the Council
The President

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