Explanatory Memorandum to COM(2001)388 - Conditions in which third-country nationals shall have the freedom to travel in the territory of the Member States for periods not exceeding three months, introducing a specific travel authorisation and determining the conditions of entry and movement for periods not exceeding six months - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2001)388 - Conditions in which third-country nationals shall have the freedom to travel in the territory of the Member States for ... |
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| source | COM(2001)388  |
| date | 10-07-2001 |
Article 62 i of the EC Treaty provides that the Council is to adopt, within a period of five years after the entry into force of the Treaty of Amsterdam, 'measures setting out the conditions under which nationals of third countries shall have the freedom to travel within the territory of the Member States during a period of no more than three months'. But such measures giving effect to Article 62 i must take account of the provisions of the Schengen acquis integrated into the Union, which aim at the free movement of third-country nationals for a short period (Chapter 4 of the Title II of the Convention Implementing the Schengen Agreement, Articles 19-24).
The 'Scoreboard to review progress on the creation of an area of freedom, security and justice in the European Union' mentions the proposal and adoption of measures concerning movement in the territory of the Member States in 2001. The Commission and the Member States are entitled to take initiatives on the matter.
Although the Member States have taken specific initiatives in relation to certain aspects of the free movement of third-country nationals, i one of which, a French initiative, was adopted by the JHA Council of 28/29 May, i the Commission feels, as it made clear in a statement made at the time of the adoption of that initiative, that it was appropriate to present a proposal combining in a single legal instrument all the fragmented components of the right, determining the conditions for the exercise of the freedom of movement for a period of no more than three months in any given period of six months, and for a period of no more than six months in the territory of the Member States without remaining more than three months in the territory of a single Member State in any period of twelve months.
Such a proposal :
- matches the conclusions of the Tampere European Council (point 22) as it contributes to 'the adoption of a common active policy on visas'; and
- constitutes a form of 'communitarisation', adapts the Schengen acquis to the general scheme of the Treaty establishing the European Community and develops a substantial element of the Schengen acquis.
- represents a solution based on Community law as regards third-country nationals who have a legitimate interest in entry for the purpose of movement for a period of no more than six months, without remaining more than three months in the territory of a single Member State.
Contents
In the Schengen context the Member States developed extensive cooperation on the conditions on which third-country nationals may travel within a frontier-free area during a short-term stay.
The Schengen acquis contains two categories of provisions relating to the stay in the area without frontiers:
a) The first category concerns the provisions for stays for periods of no more than three months. This concerns three groups of third-country nationals :
- foreigners on short stays subject to the visa requirement (Article 19);
- foreigners on short stays exempted from the visa requirement (Article 20(1));
- foreigners who hold a residence permit issued by a Schengen state (Article 21).
b) The second category concerns stays of more than three months.
Article 18 of the Convention Implementing the Schengen Agreement provides that 'Visas for stays exceeding three months shall be national visas issued by one of the Contracting Parties in accordance with its national law'.
For third-country nationals not subject to the visa requirement, Article 20 i of the Schengen Implementing Convention envisages "each [Member State's] right to extend beyond three months an alien's stay in its territory in exceptional circumstances or in accordance with a bilateral agreement concluded before the entry into force of this Convention".
Certain third countries have concluded bilateral agreements with some or all of the Schengen States. Consequently, nationals of these third countries may in practice, if they do not leave the Schengen area, enjoy the right to short stay successively that each Member State grants them bilaterally on the basis of the visa exemption scheme and thus cumulate several successive short stays. They can thus move for a maximum duration of stay (S) equal to three months multiplied by the number of Member States (MS) with which such a bilateral visa exemption agreement exists (S = MS x 3 months).
The Commission considers that the various provisions in force on the movement of third-country nationals in the territory of the Member States need an overall approach to establish general consistency and guarantee that the requirements for the various categories of third-country nationals are interpreted in the same way.
With regard to Article 20 i, which allows some third-country nationals an unlimited stay (S = MS x 3 months) on the basis of the bilateral agreements, it should be noted that the Schengen states considered that such a situation was not compatible with the spirit of an area without frontiers: the Executive Committee approved a Decision concerning the harmonisation of the agreements on the removal of the visa requirement (SCH/Com-ex (98) 24 of 23.6.1998) i to harmonise certain provisions. This Decision of the Executive Committee requires the Member States to introduce certain standard clauses into their bilateral agreements to remove visa requirements, and in particular a clause which limits to three months per six-month period the total duration of the stay permitted under the visa exemption scheme, calculated for Schengen area.
It follows that, after the entry into force of the Amsterdam Treaty, bilateral visa exemption agreements will no longer be able to justify the de facto possibility of moving for more than three months in the frontier-free area. That would run counter to the idea of creating a single area of freedom, security and justice and would be incompatible with the limit on short stays under the visa exemption scheme set by Article 62 i of the EC Treaty. A frontier-free area demands a common policy on freedom to travel in the territory of the Member States.
But several categories of third-country nationals can have a legitimate interest in staying in the frontier-free area between three and six months (students, tourists, musicians on tour, family visits etc.) without being regarded as in an immigration situation. This Directive sets out to determine the conditions of entry with a view to such travelling.
Thus, the following conclusions have to be drawn :
Firstly, the conditions must be created in which third-country nationals shall travel freely in the territory of the Member States for periods of no more than three months.
Secondly, it should be noted that the possibility given to the Member States by Article 20 i of the Schengen Implementing Convention of concluding bilateral agreements is excluded as regards Article 62 i of the Treaty.
There is accordingly a need for a Community provision relating to persons who plan on moving within the frontier-free area for a period of between three and six months without remaining in a single Member State for more than three months.
Thirdly legislation must be enacted, within the deadline set by the Amsterdam Treaty, to convert the Schengen acquis into a conventional Treaty-based legal instrument. The Portuguese initiative mentioned at point 1) concerns the period during which third-country nationals, exempted from the visa requirement, can travel freely in the territory of the Member States. i It is confined to third-country nationals exempted from the visa requirement and leaves aside a number of aspects common to all categories enjoying access to the 'Schengen area' for a short-stay.
The French proposal concerning a Regulation on free movement with a long-stay visa, adopted by the Council on 28/29 May 2001, i aims to give the long-stay visa a status equivalent to a residence permit for three months pending the issuance of a residence permit. Hitherto, the holder of a long-stay visa has only been able to transit through the other Schengen states to go to the country which issued the visa. To ensure an overall approach, this Directive takes over the Regulation's objective of giving the holder of a long-stay visa the possibility of travelling freely during a period of three months.
All the elements invoked above led the Commission to consider that the provisions concerning the movement of third-country nationals in a frontier-free area had to be incorporated into a single instrument, in order to guarantee the necessary transparency and certainty as to the law.
This proposal for a Directive basically envisages the following measures :
a) determine the conditions to be met for the freedom to travel for a period of no more than three months in any six-month period for third-country nationals who are lawfully in the territory of a Member State and are :
- subject to the visa requirement;
- exempted from the visa requirement;
- in possession of a residence permit issued by a Member State (for these persons the residence permit is equivalent to a short-stay visa if they are subject to the visa requirement);
- in possession of a long-stay visa issued by a Member State pending the issue of a residence permit;
b) to introduce a specific travel authorisation for third-country nationals planning to move in the territory of the Member States for a period of no more than six months in any given period of twelve months, and to determine the relevant administrative conditions and procedures. The recipients of this specific travel authorisation may not stay for more than three months in the territory of the same Member State;
c) to meet the need to convert the provisions concerning expulsion into a conventional Treaty-based legal instrument for cases where the third-country national no longer meets the conditions to travel in the territory of the Member States or the conditions for a specific travel authorisation;
d) to take into account the provision for reporting the presence of third-country nationals provided for in Article 22 of the Schengen Implementing Convention by transforming it into an optional provision. The Member States are best placed to evaluate the advisability or not of requiring third-country nationals to report their presence, and in the affirmative to determine the conditions for application of this measure;
e) to take over the objective of the Council Regulation on freedom of movement with a long-stay visa;
f) to take into account the amendments to be made to the Common Consular Instructions and the Common Manual.
The two following elements need stressing in particular :
Firstly, having regard to the nature of the specific travel authorisation, it is necessary to incorporate into this instrument the basic elements regarding procedures and the issuance of the specific travel authorisation, and in particular to make the instructions regarding procedures and the issuance of a short-stay visa, established by the Common Consular Instruction, applicable to it by analogy.
Secondly, the Common Consular Instructions and the Common Manual will have to be amended in line with the normative provisions concerning the specific travel authorisation. These amendments are made by the provisions in the annexes.
There is also a need to adapt these two instruments to the normative provisions concerning the freedom of travel given to third-country nationals holding a long-stay visa.
Finally, the Commission stresses the need to take account of the Tampere objectives of giving third-country nationals who reside lawfully in the territory of the Member States rights and obligations comparable to those of Union citizens and of defining in the long term a uniform status for persons who are granted asylum. i
The legal bases for this proposal are in Title IV of the Treaty and represent a development of the Schengen acquis. Consequently it must be presented and adopted in compliance with the Protocols annexed to the Amsterdam Treaty.
Consequences connected with the various protocols :
4.1. Denmark :
Denmark, in accordance with the Protocol on the position of Denmark annexed to the Amsterdam Treaty, basically does not take part in the adoption by the Council of measures under Title IV of the EC Treaty. But, since this is a proposal or initiative to develop the Schengen acquis pursuant to Title IV, Denmark can, in accordance with Article 5 of the Protocol, decide to transpose this decision into national law. This Decision will create an obligation in public international law between Denmark and the other Member States referred to in Article 1 of the Protocol incorporating the Schengen acquis into the framework of the European Union.
Concerning the specific travel authorisation for third-country nationals planning to move in the territory of two or more Member States for a period of no more than six months, it should be noted that this measure aims to regulate the cases foreseen by Article 20 i of the Schengen Implementing Convention in accordance with the EC Treaty (Articles 62 i and 63(3)). As has been said, this case exists in practice under the Schengen system. Several third countries concluded bilateral agreements with all the Schengen states in this respect. Nationals of these third countries can therefore, for the moment, remain in the Schengen area for a practically unlimited period (S = MS x 3 months) under the short-stay visa exemption scheme, by cumulating the successive rights to stay which they enjoy in each Member State.
This proposal consequently constitutes a measure to develop the Schengen acquis.
4.2. The United Kingdom and Ireland :
Title IV of the EC Treaty is not applicable to the United Kingdom or Ireland unless the two countries decide otherwise in accordance with the procedure laid down in the Protocol on the position of the United Kingdom and Ireland annexed to the Treaties.
4.3. Norway and Iceland :
On 17 May 1999 the Council, acting under the first subparagraph of Article 6 of the Schengen Protocol, concluded an agreement with Iceland and Norway concerning their association with the implementation, application and development of the Schengen acquis. i In accordance with Article 1 of that agreement, Iceland and Norway are associated with the activities of the European Community and the European Union in the fields covered by the provisions referred to in Annexes A and B to the Agreement and those which will follow. Annex A shows the provisions of the Schengen Implementing Convention concerning the conditions for movement of third-country nationals. This Directive must therefore be dealt with within the framework of the Mixed Committee in accordance with Article 2 i of the Agreement. It should be noted that Articles 4 and 8 of the Agreement will apply at the time of adoption by the Council.
In Decision 1999/436 determining the legal basis for each of the provisions or decisions which constitute the Schengen acquis (first and the third pillars), the Council determined that Articles 62 i and 63 i of the EC Treaty were a suitable legal basis in the Treaties for the Chapter on 'Conditions governing the movement of aliens'. i
Article 62 i is therefore the legal basis for the measures on the travel of third-country nationals in the territory of the Member States for a period of no more than three months.
As regards the proposal to authorise third-country nationals to enter and move in the territory of the Member States for a period of no more than six months in any period of twelve months, without remaining more than three months in the territory of a single Member State, the objective which the Commission wishes to attain deserves closer study.
Article 20 i of the Schengen implementing Convention makes clear that the maximum period of three months in any given period of six months applies to the whole Schengen territory so that time spent in the various Member States is added together.
But Article 20 i allows a Member State to "to extend beyond three months an alien's stay in its territory in exceptional circumstances or in accordance with a bilateral agreement...". The Council has decided that Article 62 i is the legal basis in the Treaty of Amsterdam, and that Article provides for a period of no more than three months. It may be concluded that :
- the Council may not adopt new measures allowing third-country nationals to move in the territory of the Schengen States for a period of more than three months;
- the bilateral agreements mentioned in Article 20 of the Schengen Implementing Convention must be renegotiated/denounced to take account of the obligations imposed by Community law in accordance with Article 307 of the EC Treaty.
In light of the above the Commission has taken note of the desire expressed by certain Member States and third countries that third-country nationals be allowed to enter and move for a period of more than three months, up to six months in the same period of twelve months, as recipients of services (for example tourists or persons taking health cures) or as service providers (for example, artists or musicians on tour).
There is nothing in Article 62 i that basically opposes this objective, which is attained through the introduction of a specific authorisation to enter and move, provided the third-country national does not remain more than three months in the territory of a single Member State.
But since the period is longer than three months, another legal basis will have to be used, Article 63 i of the EC Treaty. This article regulates stays in the territory of the Member States for a period of more than three months, specifically in the same Member State and applies mainly to measures relating to immigration policy, where the immigrant intends to reside in a Member State for a longer period, most often with integration in view. But does it exclude the possibility of regulating the sui generis intermediate situation that concerns us here- The situation here involves entry for the purpose of move for more than three months, and up to six months, but without remaining in a single Member State for more than three months. Article 63 i does not oppose the concept of entry in the territory of the Member States by third-country nationals as recipients of services, in particular as tourists, and it is the only legal basis available for a specific travel authorisation as planned here. It would be odd if the Community was unable to regulate a situation such as that described above but able to regulate entry and long-term stay in a given Member State.
Since Article 63 i constitutes the legal basis for issuing a long-stay residence document, it can be deduced that it can also be used to govern the entry of third-country nationals for the purpose of movement between Member States for a period of six months, which is expressed in the form of a specific authorisation.
For the provisions governing the expulsion of aliens who do not fulfil or who no longer fulfil the conditions for free movement - Articles 23 i to i of the Schengen Implementing Convention - the Council determined a dual legal basis: Article 62 i and Article 63 i (which concern the same decision-making procedure).
It follows from the foregoing that the two legal bases must be used for this Directive.
Article 67 i empowers the Community to adopt a legal instrument based on Article 62 i to lay down the conditions in which third-country nationals shall travel freely in the territory of the Member States for a period of no more than three months. These measures must be taken within five years following the entry into force of the Amsterdam Treaty.
Article 63 i is part of the provisions which are not subject to the five-year time-limit. However, there is a close link between :
- the provisions concerning the conditions in which third-country nationals shall travel freely in the territory of the Member States for a period of no more than three months; and
- the introduction of a specific travel authorisation for third-country nationals planning to move in the territory of two or more Member States for a period of no more than six months.
The link between these two elements in the context of an overall approach to the subject-matter of this Directive justifies acting already on the measures to be based on Article 63 i.
Member States have agreed on the need for close co-operation among themselves in an area without frontiers and, consequently, they have created common provisions harmonising the movement of third-country nationals.
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. In this spirit, the legal instrument chosen is a Directive. It leaves the Member States to which it is addressed the choice of the most suitable form and methods of attaining its objectives in their legal system and national context.
The proposal will facilitate both freedom of movement in a frontier-free area and external border controls. Purely national operations would not have the desirable effect of laying down rules applying to all the Member States.
Article 1 :
Article 1(a) defines the objective of the Directive, which is to determine the conditions in which third-country nationals shall travel freely for a period of no more than three months in the territory of the Member States.
Although Article 62 i of the Treaty mentions only a maximum three-month duration without framing it within a six-month period, account must be taken of the fact that according to the relevant provisions of the Schengen acquis and rules of international law, a short-term stay means one three-month stay per six-month period. This restriction on the basis of a six-month period is found in the law of most Member States.
If this framework did not exist, the extreme situation could well be that a third-country national leaves the territory of the Member States for a few hours and returns for a short-term stay or in possession of a specific travel authorisation, which would lead in practice to immigration, and that is not what this instrument intends to regulate.
It specifies that only those persons whose presence in the territory is legal have the freedom to travel. Those who entered the territory of the Union Member States illegally or remain there illegally are not allowed to do so.
Point (b) introduces a specific travel authorisation for third-country nationals wishing to enter and move in the territory of the Member States for a period of no more than six months. Movement with a specific authorisation is subject to the conditions determined by the Directive.
Article 2 :
Article 2 defines the various terms used.
Any person who is not a Union citizen within the meaning of Article 17 i of the EC Treaty is a 'third-country national'. Thus the definition includes stateless persons.
Article 10 of the Schengen Implementing Convention establishes a uniform visa valid for all the Member States. Article 11 defines the two types of uniform visa: the travel visa (point(a)) and the transit visa (point (b)). But only the travel visa confers the possibility to move freely. It is valid for one or more entries without the duration of any uninterrupted stay or the aggregate duration of successive stays exceeding three months per six-month period, running from the date of the first entry.
"Residence permit" means any document or authorisation issued by the authorities of a Member State allowing a person to remain in its territory.
There are various forms of residence permit. Consequently, the Schengen Executive Committee has drawn up a summary table and annexed it to the Common Consular Instruction (Annex 4) and the Common Manual (Annex 11), to which this provision refers. The changes to these annexes will therefore also apply in the context of this Directive.
Article 3 :
The Directive may be applied only to third-country nationals who do not already have a right to enter and to stay (short or long-term) in the territory of another Member State.
Consequently, the Directive does not affect the rights of Union citizens' family members, whatever their nationality, who already have a right to enter and stay when they accompany the Union citizen with whom they have the family tie; the family tie is defined by Article 10 of Regulation No 1612/68. i
Nor does it affect the rights enjoyed by other third-country nationals and their family members under agreements concluded by the European Community and its Member States with third countries (e.g. the agreement on the European Economic Area).
It has to be specified that third-country nationals having a family tie with Union citizens have an autonomous right to enter and stay (short term) under the relevant Schengen acquis and also, consequently, under the Directive, provided they satisfy the Directive's requirements.
Paragraph 2 makes clear that the Directive does not affect the long-term residence provisions, or the system of access to and exercice of economic activities applicable to third-country nationals. Depending on the categories of people concerned, these provisions are determined by national law or by Community law.
Article 4 :
This standard clause provides for compliance with the principle of non-discrimination in the implementation of the obligations imposed by the Directive. It is in conformity with Article 21 of the Charter of Fundamental Rights of the European Union.
Article 5 :
This Article is aligned to Article 19 of the Schengen Implementing Convention, which regulates the free movement of third-country nationals subject to the visa requirement. The present proposal concerns the free travelling of third-country nationals who are already legally in the territory of a Member State. There is therefore no need to reproduce the reference in Article 19 to legality of entry.
It is also provided that a third-country national can enjoy freedom to travel only if during his stay he meets all the conditions provided for in paragraph 1(a) to (e). These conditions are the conditions of entry established by Article 5(1)(a) to (e) of the Schengen Implementing Convention. They are included in the mechanism of this Directive for the sake of clarity and transparency.
Documents allowing crossing of borders are determined by the Decision of the Executive Committee in Schengen SCH/Com-ex (98) 56 of 16.12.1998. i When a third-country national has a travel document which is not recognised by all the Member States, he can travel only in the territory of the Member States which recognise the document as valid for crossing the border.
The complexity which existed for third-country nationals subject to the visa requirement in only some of the Member States (grey list), and who consequently needed a visa to enter certain Member States even though they were travelling from a Member State which did not impose the requirement, has been removed. The adoption of the Commission proposal for a Council Regulation listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt of that requirement has harmonised once and for all the list Member States' requirements in this respect.
Paragraph 2 takes account of Article 11 i of the Schengen Implementing Convention, which provides that where necessary, during the six-month period, a Member State may issue a new visa the validity of which is limited to its territory.
Article 6 :
This Article is derived from the conditions for freedom of movement of third-country nationals who are not subject to the visa requirement provided for by Article 20 i of the Schengen Implementing Convention.
It is provided that a third-country national not subject to the visa requirement is not entitled to travel freely unless during his stay in the territory of the Member States he meets all the conditions laid down in the Schengen Implementing Convention and taken over by paragraph 5 (a), (c), (d) and (e).
Paragraph 2 provides that a Member State may extend beyond three months a third-country national's stay in its territory in exceptional circumstances. This extension cannot have the effect of extending the freedom to travel in the territory of the other Member States. This provision is identical to the corresponding provision in Article 20 i of the Schengen Implementation Convention.
The provision in Article 20 i of the Schengen Implementing Convention regarding bilateral agreements is not taken over as a stay of more than three months in the frontier-free area on the basis of bilateral agreements between the Member States and third countries no longer has any raison d'être after the entry into force of the Amsterdam Treaty (see point 3).
Article 7 :
This Article addresses all the questions relating to freedom to travel for third-country nationals holding a residence permit. It is derived from Articles 21 and 25 of the Schengen Implementing Convention. Holders of residence permits shall travel freely in the territory of the other Member States for up to three months. This three-month period is a maximum duration and can be shortened if the period of validity of the residence permit expires earlier. Paragraph 3 allows the holder of a long-stay visa to travel freely for a period of no more than three months. These visas are national long-stay visas issued in accordance with Article 18 of the Schengen Implementing Convention (D Visas). Under Article 18 as it stood when the Schengen acquis was incorporated in the European Union framework and as it will be re-established by Article 17 of this Directive, a holder of a long-stay visa may only transit through other Member States to return to the Member State which issued it. To avoid possible contradiction, it is provided that this proposal is without prejudice to Article 18 of the Schengen Implementing Convention.
The objective of this provision is to put on an equal footing the holders of a long-stay visa who already are in the territory Member States and are awaiting the issuance of their residence permit and those who are already in possession of a residence permit. The proposal accordingly provides for freedom to travel for a three-month period. There is consequently a need to provide that this right is conferred only from the date of submission of the application for a residence permit to the authority in the state which issued the long-stay visa. Under this provision the freedom to travel with a long-stay visa is transitional, being conferred pending the issuance of the residence permit.
The presentation of the application must be confirmed by a stamp placed in the third-country national's travel document by the authority to which the application is made.
Current Community law on the free movement of Union citizens enables the Member States to impose the visa requirement on family members having the nationality of a third country. Under provisions of the Schengen acquis, and consequently under this proposal, Member States cannot impose the requirement for a short-stay visa on members of the family of a Union citizen holding a residence permit or a long-stay visa issued by a Member State. For the sake of consistency with the provisions concerning freedom to travel, and in particular with those concerning the holders of a residence permit, paragraphs 4 and 5 of this Article take over Article 25 of the Schengen Implementing Convention to highlight the responsibility of a Member State issuing a residence document allowing free travel within the territory of the other Member States.
The purpose of the reference to Community law is to reflect current developments, in particular the measures on family reunification.
Article 8 :
The first paragraph lays down the conditions of entry and movement within the territory of the Member States for a period of no more than six months during any given twelve-month period from the date of first entry, without staying more than three months in the territory of the same Member State. The beneficiary must carry his travel authorisation. That confirms clearly that the preliminary possession of the authorisation is a necessary condition for entry into the territory of the Member States.
The paragraph is derived from the conditions for entry set out in the Schengen Implementing Convention, listed in Article 5(1)(a), (c), (d) and (e) of the Directive.
By paragraph 2, paragraph 1 does not affect the right of each Member State to extend beyond three months a third-country national's stay in its territory in exceptional circumstances. This provision reflects, for the category of persons concerned here, the provisions of Article 20 i of the Schengen Implementing Convention.
Article 9 :
Article 9 specifies the conditions for the issue of the specific travel authorisation. Given the introduction and the nature of the specific travel authorisation, the procedures and the conditions of issuing are brought into line with those laid down in the Schengen Implementing Convention for the short-stay visa.
Paragraph 1 lays down the conditions and procedures for issuing the specific travel authorisation. The authorisation is issued in advance by the diplomatic and consular authorities of the Member States before entry into the territory of the Member States.
Paragraph 2 provides for the possibility of delivering a travel authorisation for one or more entries, according to the needs of the third-country national, as is the case of the short-stay visa.
Paragraph 3 excludes the issuing of the specific travel authorisation at the border. The possibility of issuing a short-stay visa at the border exists, but only in exceptional cases justified by pressing reasons and when there was no time for a prior application. In such cases, the issuance of a short-stay visa remains possible, which seems sufficient to meet the needs of this type of situation.
Paragraph 4 follows the criteria for determining the Member State responsible for issuing the short-stay visa.
Paragraph 5 provides that, with regard to third-country nationals subject to the short-stay visa requirement for which the Member States provided for preliminary consultation prior to issuing a visa, this procedure also applies to an application for a specific travel authorisation.
Article 10 :
Paragraph 1 excludes the possibility of affixing the specific authorisation in an expired travel document. Paragraph 2 goes on to provide that the period of validity of the travel document must be longer than the validity of the specific authorisation. If the document is not recognised by all the Member States, paragraph 3 provides that at least two Member States must recognise the document. If only two or more Member States recognise the travel document, the possibility of travelling is confined to those Member States. Affixing the travel authorisation in a travel document recognised by only one Member State would be meaningless. Given the limits on the duration of the stay in the territory of a Member State imposed by the specific travel authorisation, a short-stay visa should therefore be issued.
These paragraphs follow the criteria established for issuing a short-stay visa.
Article 11 :
The specific travel authorisation is drawn up in the form of the uniform format (adhesive sticker) corresponding to that used for visas, mutatis mutandis, in accordance with the rules and specifications determined by Regulation (EC) No 1683/95 of 29 May 1995 establishing a uniform format for visas. i This will ensure a high standard of protection against counterfeiting. All the provisions and amendments applicable to the uniform format for short-stay visas adopted by the committee provided for by that Regulation will also apply to the specific travel authorisation.
The only differences between the sticker used here and the uniform format for visas are thatunder the heading 'type of visa' the issuing authority puts the letter 'E' followed by the word 'travel'. That makes it possible to distinguish at first sight the difference in relation to a short or long-stay visa.
Article 12 :
Given the nature of the specific travel authorisation, the instructions relating to the issuing procedure must basically be identical to the provisions in the Common Consular Instructions for issuing the short-stay visa. That way, an existing mechanism is used to settle the practical questions of the application for and issuance of the authorisation. It is therefore sufficient to make the Common Consular Instructions and certain relevant annexes applicable by analogy.
Article 13 :
This Directive refers to two types of movement: travel for no more than three months and movement for no more than six months in the territory of the Member States. Each type of movement is subject to certain conditions, and in particular to a time-limit falling within a specified period. The relationship between the two aspects must therefore be regulated.
The general principle of Schengen and of the relevant international law is that a third-country national may remain for a total of six months in any period of twelve months in the territory of the Member States. The introduction of the specific travel authorisation is not intended to change this total duration. Consequently, a third-country national who has travelled under a specific travel authorisation may not return to the territory of the Member States immediately after the journey on the basis of the provisions relating to short stays and vice versa. The maximum period of six months must always be respected.
Article 14 :
The proposal allows the Member States to require beneficiaries of the Directive to report their presence on their territory. Article 22 of the Schengen Implementing Convention relating to this point was mandatory. But this provision will be optional since the Commission's information is that Member States have doubts about the advisability of this system, in particular owing to the difficulties of practical implementation and enforcement. In addition, the material possibility of reporting presence when entering the territory of a Member State from another Member State is not compatible with the principle of the abolishing of internal border controls.
The proposal provides for reporting within seven working days. That would relieve third-country nationals making journeys for a weekend or an extended weekend of obligations entailing disproportionate practical constraints. It seems sufficient to require the presence of third-country nationals to be reported where they remain for a relatively long stay in the territory of a Member State.
It will be for the Member States to assess the need to introduce a reporting system. When they decide to introduce it, Member States are required to notify the Commission of the planned procedures (e.g. the competent authority) for this reporting. The Commission will publish them in the Official Journal in order to make the obligations of the beneficiaries of free travel and movement transparent.
Article 15 :
Article 15 is derived from the provisions of Article 23 of the Schengen Implementing Convention and adds the long-stay visa to it.
A beneficiary of the Directive must leave the territory of the Member States without delay when he does not meet or no longer meets the conditions for the freedom to travel or to move under a specific authorisation. The second subparagraph of paragraph 1 provides that the Member State that issued a residence permit or a long-stay visa is the first body responsible for its holder's presence in the territory of the Member States.
If when making checks or inspections within their territory, the competent authorities observe that a person does not meet one or more of these conditions, he can be expelled from the territory of this Member State if it can be assumed that will not leave, or will not leave voluntarily.
With regard to the reasons for expelling a person benefiting from this Directive, it should be remembered that under Article 3 the Directive does not affect the rights conferred by Community law on third-country nationals who are members of the family of Union citizens.
In this context it has to be set out that the admission of a third-country national to for the purpose of staying in the territory of a Member State in circumstances where expulsion is not permitted by national law in that Member State does not constitute an immigration measure.
Paragraph 4 refers to the obligation of non-refoulement to take account of the case-law relating to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and takes over the provision of the Dublin Convention which replaced Article 33 i of the Schengen Implementing Convention.
Article 16 :
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 national provisions enacted pursuant to the Directive.
Article 17 :
This Article repeals the Articles of the Schengen Implementing Convention which will become obsolete owing to this proposal.
The effect of the repeal of Council Regulation No 1091/2001, provided for by Article 20 of this proposal, is that Article 18 of the Schengen Implementing Convention must be restored to the form it had when the Schengen acquis was incorporated in the European Union framework, subject to alignment on Community terminology.
Article 18 :
This Article establishes a reference to Annex I of the Directive, setting out all the legislative amendments to the Common Consular Instructions that this Directive makes necessary.
Article 19 :
This Article establishes a reference to Annex II of the Directive, setting out all the legislative amendments to the Common Manual that this Directive makes necessary.
Article 20 :
The repeal of Council Regulation (EC) No 1091/2001 is a purely technical matter and in no way jeopardises the Regulation's objective, which is taken over by the Directive.
Articles 21, 22 and 23 :
Standard provisions.
Annex I :
Annex I shows the legislative amendments to be made to the Common Consular Instructions on the basis of this Directive.
Annex II :
Annex II shows the legislative amendments to be made to the Common Manual on the basis of this Directive.