Explanatory Memorandum to COM(2003)60-1 - Specific Facilitated Transit Document (FTD), a Facilitated Rail Transit Document (FRTD) and amending the Common Consular Instructions and the Common Manual - Main contents
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| dossier | COM(2003)60-1 - Specific Facilitated Transit Document (FTD), a Facilitated Rail Transit Document (FRTD) and amending the Common Consular ... |
|---|---|
| source | COM(2003)60  |
| date | 05-02-2003 |
In aiming to establish progressively an area of freedom, security and justice, the Amsterdam Treaty marked a major advance in European integration. Building upon the Maastricht Treaty, new competences for adopting measures have also been given to the European Community in relation to measures on immigration policy such as the conditions of entry and residence of third country nationals and in relation to visa policy. The conclusions of the special European Council in Tampere on the creation of this area of freedom, security and justice within the European Union have underlined the importance of ensuring fair treatment for third country nationals who reside legally on the territory of Member States. The need for more efficient management of migration flows and an enhanced fight against illegal immigration and the importance of effective controls at external borders as a necessary complement to the implementation of these policies were also emphasised.
While preparing for the accession of new Member States, the EU is confronted with new situations, especially related to external border crossings in a future enlarged European Union. In order to face these new situations necessary legislation has to be introduced to avoid problems occurring at the future external EU borders, and in particular as regards persons transiting by land between two parts of the same third country via the territory of one or more Member States, at present this situation will apply in case of the Russian region of Kaliningrad. This kind of entry and return transit does not currently exist in the EU and therefore the acquis does not provide specific rules for such a situation.
Respecting the Council's wish that solutions should comply with the principles of the acquis and should not prevent the new Member States concerned from fully participating in the Schengen framework, it should be stressed that this does not mean that the acquis cannot cater for special circumstances. Indeed, the acquis is continually under development. It follows that the EU's position should, having reviewed a range of options, be defined both by its legal obligations and by its own, and the candidates', political interests.
Following the discussion on Kaliningrad at the Moscow EU-Russia Summit in May 2002, the Seville European Council of June 2002 invited the Commission to submit a study on the possibilities for an effective and flexible solution of the transit of persons and goods to and from the Kaliningrad oblast, in compliance with the acquis and with the agreement of the candidate countries concerned.
In its Communication to the Council on Kaliningrad: Transit i, the Commission recommended that the EU's position should be based upon a package of measures in addition to what has already been set out in the EU Common Line of 13 May 2002. The Brussels European Council on October 2002 and the Brussels EU-Russia Summit of 11 November 2002 acknowledged the unique situation of the Kaliningrad region and agreed to make a special effort to accommodate the concerns on both sides related to the future transit of persons and goods between the Kaliningrad region and other parts of Russia.
One of the measures, suggested in the Commission Communication and taken up in the Joint Statement with Russia as well as with the relevant candidate countries, aimed at establishing a 'Facilitated Transit Document' (FTD), which could be issued to Russian citizens travelling frequently by land from Kaliningrad to the Russian mainland and vice versa. It would allow for multiple-entry transit between different parts of the same third country and would be valid for a substantial period of time, several years, where appropriate. The FTD would be issued in a format rendering the documents compatible with the required security standards.
In addition, a 'Facilitated Rail Transit Document' (FRTD) for rail passengers would be created, which should be valid exclusively for direct transit between Kaliningrad and the Russian mainland for a single transit by rail (entry-return). The FRTD will have the same level of document security as the FTD, only the application and issuing procedure would differ from those of the FTD.
As a suitable balance has to be found between, on the one hand, the facilitation of travel for Russians wishing to travel between the mainland Russia and Kaliningrad or vice versa and, on the other hand, the sovereignty of Lithuania and other new Member States especially as regards the control of its external borders and national security, two regulations, developing the Schengen acquis, are presented:
- Regulation (EC) No....establishing a Facilitated Transit Document (FTD) and a Facilitated Rail Transit Document (FRTD) and amending the Common Consular Instructions and the Common Manual, which sets out the definition, the validity, the issuing procedures, and the conditions for obtaining such documents.
- Regulation (EC) No .....on uniform formats for Facilitated Transit Documents (FTD) and Facilitated Rail Transit Documents (FRTD), which lays down the description of the models for the uniform format; this needs to be supplemented by further technical specifications which are to remain secret in order to prevent counterfeiting and falsifications and which may not include personal data or references to such data. The implementation powers at the technical level in relation to the proposal will be delegated to the Commission with the assistance of the Committee created by Article 6 of Regulation 1683/95 laying down the uniform format for visas, in line with the procedure set out in Article 5 of Decision 1999/468/EC i in compliance with Article 7 thereof. Under this procedure the technical specifications to render the documents compatible with the required security standards will be established. This mechanism will also ensure a continuous peer control in relation to the security of the document and adaptation to new situations as the need arises.
The FTD and FRTD documents are not identical with the uniform format for visas but they are deemed to substitute for and deemed to be equivalent to a transit visa, thus representing an authorisation to enter the EU/Schengen territory in view of the specific transit described above.
With these proposals, the Commission intends to put in place the required legislative measures developing the Schengen acquis in order to offer solutions for third country nationals wishing to undertake this specific kind of transit.
The present Regulations are based on Article 62 i of the Treaty establishing the European Community. Article 62 i relates to rules on the crossing of the external borders of the Member States.
The Commission will present as soon as possible a proposal for establishing the legal basis to cover the additional costs of Member States for operating the FTD/FRTD after 1st of May 2004.
Contents
- 2. Subsidiarity and proportionality
- 3. Consequences in relation to the various protocols annexed to the Treaty
- United Kingdom and Ireland
- Denmark
- Norway and Iceland
- 4. Consequences in relation to the two-phase implementation procedure of acts building upon the Schengen acquis
- 5. Comments on the Articles
- 5.1 COUNCIL REGULATION establishing a specific Facilitated Transit Document (FTD), a Facilitated Rail Transit Document (FRTD) and amending the Common Consular Instructions and the Common Manual
- Article 2
- Article 3
- Article 4
- Article 5
- Article 6
- Article 7
- Article 8
- Article 9
- Article 10
- Article 11
- Article 12
- Article 13
- Article 14
- Article 15
- Article 1
- Article 2
- Article 3
- Article 4
- Article 5
- Article 6
- Article 7
- Annex
Article 5 of the EC Treaty provides that 'action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty'. The form taken by Community action must be the simplest form allowing the proposal to attain its objective and to be implemented as efficiently as possible.
The proposal introducing an FTD/FRTD will allow facilitated transit via one or more Member States making sure at the same time that the necessary security needs related to the area without internal border controls are guaranteed. By its very nature, this can only be done by a Community action, purely national measures would not have the desired effect of laying down rules affecting all Schengen states. As the proposed initiatives are developing the Schengen acquis, the form of a regulation has been chosen in order to assure a harmonised application in all Member States applying the Schengen acquis.
The harmonisation of document formats and of their security features will provide a guarantee against counterfeiting. By preventing forgery and counterfeiting of travel and residence documents the Commission intends to enhance the high level of security, a target set out both by the Treaty and the European Council of Tampere. This level of harmonisation can only be reached by a Community action as already demonstrated by the adoption of several other instruments aiming at rendering documents more secure.
The proposal related to the uniform formats of the FTD/FRTD aims at rendering them more secure, legally binding and easy adaptable to new circumstances in view of suspected counterfeiting and forgery of the two documents, which should meet special situations for crossing of the external borders of the European Union and should therefore be the same throughout the EU. The main reason for preferring regulations to directives is that the proposal aims at a total harmonisation of the layout of such documents, and their security features, thus leaving no room for discretion to the Member States.
The legal bases for the proposals concerning entry conditions and documents issued by Member States to third-country nationals fall within Title IV of the Treaty and thus imply the variable situation as laid down by the protocols on the position of the United Kingdom, Ireland and Denmark. The present Regulations are building upon the Schengen acquis. Therefore the following consequences in relation to the various protocols have to be considered:
According to Article 4 and 5 of the Protocol integrating the Schengen acquis into the framework of the European Union, 'Ireland and the United Kingdom of Great Britain and Northern Ireland, which are not bound by the Schengen acquis, may at any time request to take part in some or all of the provisions of the acquis'.
These Regulations constitute a development of provisions of the Schengen acquis, in which the United Kingdom and Ireland do not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland, and 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. The United Kingdom and Ireland are therefore not taking part in their adoption and are not bound by them or subject to their application.
By the Protocol annexed to the Amsterdam Treaty on the position of Denmark, Denmark does not take part in the adoption by the Council of measures pursuant to Title IV of the EC Treaty, with the exception of 'measures determining the third countries whose nationals must be in possession of visas when crossing the external borders, or measures relating to a uniform format for visas' (former Article 100c).
Where however, as in this case, the proposals constitute a development of the Schengen acquis and following Article 5 of the Protocol, 'Denmark shall decide within a period of 6 months after the Council has decided on a proposal or initiative to build upon the Schengen acquis under the provisions of Title IV of the Treaty establishing the European Community, whether it will implement this decision in its national law'.
In accordance with Article 6 first indent of the Schengen Protocol, an agreement has been signed on 18 May 1999 between the Council, Norway and Iceland in order to associate those two countries with the implementation, application and development of the Schengen acquis i.
Article 1 of this agreement stipulates that Norway and Iceland are associated with the activities of the EC and the EU in the areas covered by the provisions referred to in Annexes A (provisions of the Schengen acquis) and B (provisions of acts of the European Community, which have replaced corresponding provisions of, or adopted pursuant to, the Schengen Convention) of the agreement as well as by those which will follow from them.
According to Article 2 of the agreement, the provisions of all acts or measures taken by the European Union amending or building upon the integrated Schengen Acquis (Annex A, B) shall be implemented and applied by Norway and Iceland.
The present proposals build upon the Schengen acquis as defined in Annex A of the agreement.
As a consequence the matter has to be discussed in the 'Mixed Committee' as provided for in Article 4 of the Agreement to give the possibility to Norway and Iceland 'to explain the problems they encounter in respect of ' the measure and 'to express themselves on any questions concerning the development of provisions of concern to them or the implementation thereof'.
4. Consequences in relation to the two-phase implementation procedure of acts building upon the Schengen acquis
The accession treaty will contain an article stipulating that the provisions of the Schengen acquis, the acts building upon it or otherwise related to it, listed in the annex to that Article, shall be binding on and applicable in the new Member States as from accession. The provisions and acts not referred to in that annex , while binding on the new Member States as from accession, will only become applicable in the new Member States following a special Council decision to that effect, made in accordance with that Article.
The Council Regulation on a uniform format for Facilitated Transit Documents (FTD) and Facilitated Rail Transit Documents (FRTD) will be added to the annex of the article in the Accession Treaty, consistent with the fact that all other acts related to the uniform format of travel documents are listed in that annex, and thus become applicable upon accession.
The annex to the Article in the Accession Treaty will not contain any acts related to the definition, the validity, the issuing procedures, and the conditions for obtaining travel documents. The Council Regulation introducing a specific Facilitated Transit Document (FTD) and a Facilitated Rail Transit Document (FRTD) and amending the Common Consular Instructions and the Common Manual shall therefore not be listed in that annex and, while binding on all Member States, will only become applicable in the new Member States following a Council decision to that effect. Until such a decision, facilitated transit remains to be regulated at national level. As a consequence, the other Member States do not have to recognise the facilitated transit documents until the second Council decision lifting the internal borders is adopted.
5.1 COUNCIL REGULATION establishing a specific Facilitated Transit Document (FTD), a Facilitated Rail Transit Document (FRTD) and amending the Common Consular Instructions and the Common Manual
Article 1
There is as yet no specific acquis on transit of persons by land through EU territory from one part of a third country to another part of the same third country. The definition for such facilitated transit is given in article 1.
Two specific travel authorisations for facilitated transit are drawn up in the form of uniform formats (adhesive stickers) in accordance with Regulation (EC) .... corresponding to that used for visas, mutadis mutandis, in accordance with the rules and specifications determined by Regulation 1683/95 of 29 May 1995 establishing a uniform format for visas. This will ensure a high standard of protection against counterfeiting.
The Facilitated Transit Document (FTD) may be issued by Member States for facilitated transit by whatever means of land transport for multiple entries. The FTD would substitute for the normal multiple-entry transit visas for persons who travel frequently and can justify continued use.
For single entry-return passengers travelling by train, a Facilitated Rail Transit Document (FRTD) may be issued by Member States. The FRTD would substitute for the normal single-entry transit visas.
The FTD and the FRDT are deemed to be equivalent to transit visas. They will be territorially valid only for the issuing Member State and, as the case may be, other transited Member States. For the purposes of this Regulation, a transited Member State means:
- After accession, the Member States who have decided to recognise FTDs [and/or FRTDs] valid for transit via their territory in cases which comply with the definition for facilitated transit in Article 1 and with the validity of the FTD as described in Article 4;
- After the lifting of the internal border controls, all Member States via which the facilitated transit can take place in accordance with Article 1 and 4.
The specific authorisations allowing for facilitated transit (FTD and FRTD) have been designed to cater for the special transit situation from one part of a third country to another part of the same third country.At present, this kind of transit only takes place in practice between Kaliningrad and the Russian mainland.
On the one hand, it is therefore necessary to adapt the time of each transit, which according to the current rules in force is up to 5 days, to better correspond to geographical realities. The FTD has a validity of maximum 24 hours per transit, which is considered reasonable for transit by land of Russian citizens, who necessarily need to pass through the territory of one or several Member States.
On the other hand, in the spirit of the Joint Statement of the Brussels EU-Russia Summit, it is necessary to take into account the fact that in the case of transit between two parts of the same country the need for multiple entry transit documents, which are valid for a substantial period of time, is bigger than in the case of traditional transit. Article 4 fixes the time period up to three years.
The FRTD, being a special facilitation for rail passengers within the system of facilitated transit, has the validity of maximum 6 hours per transited country within a time period equal to the validity of the train ticket.
The conditions to be fulfilled for obtaining an FTD/FRTD follow, as applicable, the conditions set out in Article 5.1 of the Convention implementing the Schengen Agreement (hereafter the Schengen Convention).
The issuing conditions for the purposes of this Regulation are as established by Article 5.1 (a), (d) and (e) of the Schengen Convention. Further, persons who travel frequently shall justify the need for continued use in order to obtain a multiple-entry FTD valid for several years (up to three years depending on the need). This provision replaces the entry condition described in Article 5.1. (c) of the Schengen Convention, as other elements mentioned in that provision are not applicable to the facilitated transit. As an FTD/FRTD will be deemed to be equivalent to a visa, Article 5.1 (b) of the Schengen Convention is not relevant.
It is for the Member States to give the exact content to the concept of frequent travellers in individual cases. A diversity of reasons could be considered, including a work contract; proof that a firm is situated both in Kaliningrad and mainland Russia; proof of property or family on the other side of the border. Someone with family or property in mainland Russia, for example, would not have to prove a need to visit them or the property that often, the mere existence of family or property being a sufficient indication of entitlement to a multiple-entry FTD.
This article sets out that the request for an FTD should be presented to the consular offices of the Member State who has decided in accordance with Article 13 to issue FTDs. For the FRTD, the Member State can, as a general rule, accept the Personal Data Sheet being transmitted by other authorities or third parties (like train ticket offices or travel agencies).
This Article sets out the issuing procedure. It makes the distinction between the issuing (decision and filling in of the sticker) procedure which in any case has to be done by the consular office and the procedure of affixing the ready sticker into the passport or the separate sheet established by Regulation (EC) 333/2002. The article allows for the affixing procedure of the FRTD to be carried out by other authorities and outside the consular office. The third sentence has been added as in general the affixing of the FRTD should be not carried out at the border but should take place for example beforehand on the train in order to avoid a long stoppage of the train at the border.
The 2nd to 4th paragraph are standard provisions of the Common Consular Instructions, which are repeated here for reasons of clarity.
The FRTD should be issued free of charge as the practical problems for collecting the fee would be higher than the benefits. As the FTD is valid for frequent travelling, the fee of 5EUR is deemed appropriate.
This is a provision related to refusal inspired by the existing rules related to visas in the Common Consular Instructions. It is repeated here for reasons of clarity.
This is a standard provision envisaging effective, proportionate and dissuasive penalties. It leaves to the Member States the discretionary power to determine the penalties applicable in the event of a violation of the scheme by the holder of the document. However, it provides for the withdrawal of the FTD/FRTD in case of misuse.
This article confirms that in cases where no specific rules are set out in these Regulations the rules of the Schengen acquis in relation to visa and external border control will apply mutadis mutandis. Therefore these Regulations will only refer to the specific arrangements for the FTD/FRTD and only repeat already existing rules where it is necessary for reasons of clarity.
The present Regulation as well as Regulation No. ..... i should both be annexed to the Common Consular Instructions and the Common Manual for reasons of clarity. In order to draw attention to the existence of the FTD/FRTD scheme also in the core text of the above-mentioned instruments, references have been added in the appropriate places. The final incorporation into the text of these two legal instruments will take place at the time of the legislative recast of the Common Consular Instructions and the Common Manual.
In order to make sure that all Member States and interested third parties are informed about the Member State(s)' decision to issue or no longer to issue the FTD/FRTD, the decision should be communicated to the Council and the Commission. For transparency, it should be published in the Official Journal.
The facilitated transit scheme has to be evaluated and possibly adapted to more practical working methods. Therefore the Commission should establish a report on the functioning of the system and for reasons of transparency transmit the latter to the European Parliament and the Council.
Standard final provisions.
5.2 COUNCIL REGULATION on uniform formats for Facilitated Transit Documents (FTD) and Facilitated Rail Transit Documents (FRTD) provided for in Regulation (EC) No....
Certain provisions in the Articles are already standard for regulations on the harmonisation of documents as they have been agreed by the Council in Regulations (EC) 1683/95, 333/02, 334/02 and 1030/02.
These provisions describe the general characteristics of the uniform format for both documents, FTD and FRTD.
This Article confers the implementing powers as regards the Regulation to the Committee created in Article 6 of Regulation (EC) 1683/95 laying down a uniform format for visas.
The Committee not only establishes the necessary technical specifications, but also the conditions of storage and filling in the forms, linked to the security of the uniform formats.
The second paragraph will enable the Committee to change the colours of the uniform format due to urgent circumstances.
Obviously, some technical particulars should not be published under any circumstances, in order to prevent such information being used for the purposes of counterfeiting or falsification. These technical particulars will therefore need to be laid down in a decision, since under Article 254 of the EC Treaty decisions do not need to be published. The Committee already set up to deal with the uniform visa format will take decisions in this framework, since the same experts already have the relevant experience of very high technical standards, notably as regards safeguards against counterfeiting and falsification, and secret documents.
For the same reasons, it is necessary to ensure that only persons so authorised by the Member States and Community bodies have access to this information. This also applies to the printing bodies, which are thus restricted in the first sentence of Article 3 i to one per Member State
This Article confers the implementing powers as regards the Regulation to the Committee created in Article 6 of Regulation (EC) 1683/95 laying down a uniform format for visas in compliance with the regulatory procedure set out in Article 5 of Decision 1999/468/EC and in compliance with Article 7 thereof.
The Community is bound to respect fundamental rights such as protection of privacy, and data protection.
The wording of this article covers all applicable provisions on data protection: Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data i.
It ensures that the person to whom the document has been issued is able to check the information introduced and that there is no other additional information provided.
It sets out that the machine-readable information introduced shall correspond to the data entered on the document.
This Article sets out a reasonable period for the implementation of the security measures. The integration of the photograph into the FTD/FRTD should follow the same conditions as provided for in Regulation (EC) 334/02 amending Regulation 1683/95 laying down a uniform format for visa. The date 3 June 2007 is the final date for the implementation of the integration of the photograph into the uniform format for visa.
This is a standard provision.
The annexes only set out the technical specifications, which are not secret. They refer in their numbering to the models as set out in the annex. The approach has been aligned to the uniform format for visas as the same printers and software as for the uniform format for visas should be used to fill in the FTD/FRTD stickers. The only changes, which have been introduced are:
as regards the FRTD, the duration of stay it is set out as 'single entry and return' without indicating the duration of stay (as it will be less than one day) and the number of days as it is not necessary to indicate.
for the FTD, the number of entries, duration of stay and days has to be indicated as the FTD is valid for multiple entries.