Legal provisions of COM(2023)642 - Amendment of Regulation (EU) 2018/1806 as regards the revision of the suspension mechanism

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dossier COM(2023)642 - Amendment of Regulation (EU) 2018/1806 as regards the revision of the suspension mechanism.
document COM(2023)642 EN
date October 18, 2023

Contents

Article 1

Regulation (EU) 2018/1806 is amended as follows:

(1) Article 8 is replaced by the following:

 “Article 8

Suspension mechanism

1. By way of derogation from Article 4, the exemption from the visa requirement for nationals of a third country listed in Annex II shall be temporarily suspended, based on relevant and objective data, in accordance with the conditions and procedure set out in Articles 8a to 8f.

The suspension mechanism may be triggered by a notification of a Member State to the Commission in accordance with Article 8b, or on the basis of the Commission’s own analysis in accordance with Article 8c.

2. In cases where an agreement on the short-stay visa waiver between the Union and a third country listed in Annex II includes provisions on different grounds or procedures for suspension, those provisions shall be applied instead of Articles 8a, 8e and 8f of this Regulation.”

(2) the following Articles are inserted:

“Article 8a

Grounds for suspension

1. The suspension mechanism may be triggered on the following grounds:

(a) a substantial increase in the number of nationals of a third country listed in Annex II refused entry or found to be staying in a Member State’s territory without a right to do so;

(b) a substantial increase in the number of asylum applications from the nationals of a third country listed in Annex II for which the recognition rate is low;

(c) a decrease in cooperation on readmission with a third country listed in Annex II, or other cases of non-cooperation on readmission;

(d) a significant risk or imminent threat to the public policy or internal security of Member States related to a third country listed in Annex II deriving from any of the following:

(i) a substantial increase in serious criminal offences, linked to the nationals of that third country, substantiated by objective, concrete and relevant information and data provided by the competent authorities;

(ii) hybrid threats;

(e) the operation, by a third country listed in Annex II, of an investor citizenship scheme, whereby citizenship is granted without any genuine link to the third country concerned, in exchange for pre-determined payments or investments;

(f) the non-alignment of the visa policy of a third country listed in Annex II, where, in particular because of the geographic proximity of that third country to the Union, there is a risk of a substantial increase in the number of third-country nationals, other than nationals of that third country, who enter irregularly the territory of the Member States after having stayed on, or transited through, the territory of that third country; 

(g) with regard to the third countries whose nationals have been exempted from the visa requirement when travelling to the territory of the Member States as a result of the successful conclusion of a visa liberalisation dialogue conducted between the Union and that third country, the non-compliance with the specific requirements, which are based on Article 1 and which were used to assess the appropriateness of granting visa liberalisation.

2. For the purposes of paragraph 1, points (a), (b) and (d)(i), of this Article a substantial increase shall mean an increase exceeding a threshold of 50%, unless the Commission in accordance with Article 8b(4) or Article 8c(2) concludes that a lower or higher increase is applicable in the particular case.

3. For the purposes of paragraph 1, point (b), of this Article a low recognition rate shall mean a recognition rate of asylum applications of less than 4%, unless the Commission in accordance with Article 8b(4) or Article 8c(2) concludes that a higher recognition rate is applicable in the particular case.

4. For the purposes of paragraph 1, point (c), a decrease in cooperation on readmission with a third country listed in Annex II shall mean a substantial increase, substantiated by adequate data, in the refusal rate of readmission applications submitted by a Member State to that third country for its own nationals or, where a readmission agreement concluded between the Union or that Member State and that third country so provides, for third-country nationals having transited through that third country.

5. For the purposes of paragraph 1, point (c), the following may be considered as other cases of non-cooperation on readmission:

(a)    refusing or failing to process readmission applications in due time;

(b)    failing to issue travel documents in due time for the purposes of returning within the deadlines set out in the readmission agreement or refusing to accept European travel documents issued following the expiry of the deadlines set out in the readmission agreement;

(c)    terminating or suspending the readmission agreement concluded between a third country listed in Annex II and the Union.

Article 8 - b Notification by Member States and examination of the notification

1. A Member State may notify the Commission if it is confronted, over a period of at least two months, compared with either the same period in the preceding year or the last two months prior to the implementation of the exemption from the visa requirement for nationals of a third country listed in Annex II, with one or more of the circumstances amounting to the grounds for suspension referred to in Article 8a(1), points (a), (b), (c), and (d)(i).

2. The notification referred to in paragraph 1 of this Article shall state the reasons on which it is based and shall include relevant data and statistics as well as a detailed explanation of the preliminary measures that the Member State concerned has taken with a view to remedying the situation. In its notification, the Member State concerned may specify the categories of nationals of the third country concerned which are to be covered by an implementing act under Article 8e(1), specifying the detailed reasons for doing so. 

3. The Commission shall inform the European Parliament and the Council immediately of such notification.

4. The Commission shall examine any notification made pursuant to paragraph 1 of this Article, taking into account:

(a) whether any of the circumstances amounting to the grounds referred to in Article 8a(1), points (a), (b), (c), or (d)(i) exist;

(b) the number of Member States affected by any of those circumstances;

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

(d) the reports prepared by the European Border and Coast Guard 29 , the European Union Agency for Asylum 30 , the European Union Agency for Law Enforcement Cooperation (Europol) 31 or any other relevant institution, body, office or agency of the Union or international organisation, if the circumstances so require in the specific case;

(e) the information which the Member State concerned may have given in its notification in relation to possible measures under Article 8e(1);

(f) the overall question of public policy and internal security, in consultation with the Member State concerned.

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

Article 8 - c The Commission’s monitoring and own analysis

1. The Commission shall monitor the existence of the grounds for suspension referred to in Article 8a(1) on a regular basis.

With particular regard to the third countries which have been listed in Annex II as a result of the successful conclusion of a visa liberalisation dialogue conducted between the Union and that third country, the Commission shall monitor the continuous compliance with the specific requirements, which are based on Article 1 and which were used to assess the appropriateness of granting visa liberalisation.

2. Where the Commission, taking into account the relevant data, reports and statistics, has concrete and reliable information on the existence of any of the grounds referred to in Article 8a(1) it shall inform the European Parliament and the Council of its analysis, and Article 8e and Article 8f shall apply.

Article 8 - d Reporting

1. The Commission shall report to the European Parliament and to the Council on the monitoring conducted in accordance with Article 8c(1) with regard to the third countries which have been listed in Annex II as a result of the successful conclusion of a visa liberalisation dialogue conducted between the Union and that third country, at least once a year and for a period of seven years after the date of entry into force of visa liberalisation for those third countries, and thereafter whenever the Commission considers it to be necessary, or upon request by the European Parliament or by the Council. The report shall focus on the third countries which the Commission considers, based on concrete and reliable information, as no longer complying with certain specific requirements, which are based on Article 1 and which were used to assess the appropriateness of granting visa liberalisation.

2. The Commission shall also report, whenever it considers it to be necessary, or upon request by the European Parliament or by the Council, on third countries listed in Annex II other than the ones referred to in paragraph 1 of this Article.

Article 8 - e Implementing acts

1. Where, on the basis of the examination referred to in Article 8b(4), or the analysis referred to in Article 8c(2), and taking into account the consequences of a suspension of the exemption from the visa requirement for the overall external relations of the Union and its Member States with the third country concerned, while working in close cooperation with that third country to find alternative long-term solutions, the Commission decides that action is needed, or where a simple majority of Member States have notified the Commission of the existence of circumstances referred to in Article 8a(1), points (a), (b), (c) or (d)(i), the Commission shall adopt an implementing act temporarily suspending the exemption from the visa requirement for the nationals of the third country concerned for a period of 12 months.

The suspension shall apply to certain categories of nationals of the third country concerned, by reference to the relevant types of travel documents and, where appropriate, to additional criteria. When deciding to which categories the suspension is to apply, the Commission shall, based on the information available, include categories that are broad enough in order to efficiently contribute to remedying the circumstances that led to the suspension, while respecting the principle of proportionality and non- discrimination in line with Article 21 of the Charter of Fundamental Rights of the European Union. That implementing act shall fix the date on which the suspension of the exemption from the visa requirement is to take effect.

The Commission shall adopt the implementing act referred to in the first subparagraph within one month of:

(a) receiving the notification referred to in Article 8b;

(b) informing the European Parliament and the Council of its analysis referred to in Article 8c(2);

(c) receiving the notification from a simple majority of Member States of the existence of grounds referred to in Article 8a(1), points (a), (b), (c) or (d)(i).

The implementing acts referred to in the first subparagraph shall be adopted in accordance with the examination procedure referred to in Article 11(2).

2. On duly justified imperative grounds of urgency, the Commission shall adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 11(4), temporarily suspending the exemption from the visa requirement for the nationals of the third country concerned for a period of 12 months.

3. During the period of suspension, the Commission shall establish an enhanced dialogue with the third country concerned with a view to remedying the circumstances in question.

4. Where the circumstances that led to the temporary suspension of the exemption from the visa requirement are remedied before the end of the period of validity of the implementing acts adopted pursuant to paragraphs 1 and 2, the Commission shall adopt an implementing act to lift the temporary suspension in accordance with the examination procedure referred to in Article 11(2).

Article 8 - f Delegated acts

1. Where the grounds referred to in Article 8a persist, the Commission shall adopt, at the latest two months before the expiry of the 12-month period referred to in Article 8e(1), a delegated act in accordance with Article 10, amending Annex II to temporarily suspend the application of that Annex for a period of 24 months for all nationals of the third country concerned. That amendment shall be made by inserting a footnote next to the name of the third country in question, indicating that the exemption from the visa requirement is suspended with regard to that third country and specifying the period of that suspension. The delegated act shall take effect from the date of expiry of the implementing act referred to in Article 8e(1).

2. Without prejudice to the application of Article 6, during the period of suspension, the nationals of the third country concerned shall be required to be in possession of a visa when crossing the external borders of the Member States.

3. A Member State which, in accordance with Article 6, provides for new exemptions from the visa requirement for a category of nationals of the third country covered by the act suspending the exemption from the visa requirement shall communicate those measures in accordance with Article 12.

4. Before the end of the period of validity of the delegated act adopted pursuant to paragraph 1 of this Article, the Commission shall submit a report to the European Parliament and to the Council.

The report may be accompanied by a legislative proposal to amend this Regulation in order to transfer the reference to the third country concerned from Annex II to Annex I. In that case, the Commission shall adopt a further delegated act in accordance with Article 10, amending Annex II to extend the period of suspension of the exemption from the visa requirement from the end of the period of validity of the delegated act adopted pursuant to paragraph 1 of this Article until the entry into force of the amendment transferring the third country concerned to Annex I. The footnote shall be amended accordingly.

5. Where the circumstances that led to the temporary suspension of the exemption from the visa requirement are remedied before the end of the period of validity of the delegated acts adopted pursuant to paragraphs 1 and 4 of this Article, the Commission shall adopt a delegated act in accordance with Article 10 amending Annex II to lift the temporary suspension.”

(4)Article 10 is amended as follows:

(a) in paragraph 3, ‘point (b) of Article 8(6)’ is replaced by ‘Article 8f’;

(b) in paragraph 4, ‘point (b) of Article 8(6)’ is replaced by ‘Article 8f’;

(c)in paragraph 8, ‘point (b) of Article 8(6)’ is replaced by ‘Article 8f’.


(5)in Article 11, the following paragraph 4 is added:

“4. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.”

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.