Explanatory Memorandum to COM(2018)745 - Amending regulation 539/2001 listing the third countries whose nationals need visas and those that do not, as regards the withdrawal of the United Kingdom from the Union - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2018)745 - Amending regulation 539/2001 listing the third countries whose nationals need visas and those that do not, as regards the ... |
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| source | COM(2018)745  |
| date | 13-11-2018 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The United Kingdom of Great Britain and Northern Ireland ("the United Kingdom") will withdraw from the European Union on 30 March 2019 (date of withdrawal) and will become a third country. Currently, British citizens are also Union citizens. They enjoy the fundamental right to move and reside freely within the Union and the right to enter any other Member State without any entry visa or equivalent formality. Nationals of the United Kingdom who are British citizens 1 will enjoy this right until the moment when Union law on free movement of Union citizens will cease to apply to them. This will occur on 30 March 2019, unless a ratified Withdrawal Agreement pursuant to Article 50 of the Treaty on European Union establishes another date or the European Council, in agreement with the United Kingdom, unanimously establishes another date..
Therefore, it will be necessary to determine whether the nationals of the United Kingdom who are British citizens will be subject to a visa requirement when crossing the external borders of the Member States or whether they will be exempt from that requirement. The determination as to whether a third country national is subject to or exempt from a visa requirement is laid down in Council Regulation (EC) No 539/2001 2 . Annex I to the Regulation lists the countries whose nationals are subject to the visa requirement, and Annex II lists those countries whose nationals are exempt from that requirement. For this determination, a legislative action is necessary to include the United Kingdom in one of the Annexes to Regulation (EC) No 539/2001 as of the date when Union law ceases to apply to the United Kingdom.
• Consistency with existing policy provisions in the policy area
Regulation (EC) No 539/2001 is applied by all Member States – with the exception of Ireland – and by the Schengen Associated Countries (Iceland, Liechtenstein, Norway and Switzerland). The Regulation is part of the Union's common visa policy for short stays of 90 days in any 180-day period. The United Kingdom has never been bound by this Regulation.
As Ireland does not participate in the Schengen acquis on visas, the specific bilateral arrangement (the “Common Travel Area”) it has with the United Kingdom and which provides for visa-free travel between Ireland and the United Kingdom by nationals of either country, is not affected by Regulation (EC) No 539/2001 or this proposal for an amendment.
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”. It is also important to pay particular attention to the security of travel documents issued by the third country concerned.
The Annexes to Regulation (EC) No 539/2001 were last amended in 2017 by Regulation (EU) 2017/372 and Regulation (EU) 2017/850, which transferred Georgia and Ukraine from Annex I (visa-required) to Annex II (visa-free). The Commission also tabled two further proposals regarding Kosovo 3* 4 and Turkey 5 . Regulation (EC) No 539/2001 is currently being codified 6 ; therefore any references to this Regulation in the proposal will need to be replaced by references to the codified Regulation once it has entered into force, which will likely take place before the end of 2018.
• Consistency with other Union policies
Keeping the lists of third countries annexed to Regulation (EC) No 539/2001 complete and up to date is a key element to facilitate the crossing of the external borders of the Member States. In its Communication on adapting the common visa policy to new challenges 7 , the Commission underscored that it is an essential element for ensuring the security and proper functioning of the area without internal border control. The same objectives are pursued by the Commission’s proposals to amend the Visa Code (Regulation (EC) No 810/2009) 8 and the VIS Regulation (Regulation (EC) No 767/2008) 9 that are currently being discussed by the co-legislators. Similarly, the proposed regulation on establishing a framework for interoperability between Union information systems 10 aims to join up and strengthen in a comprehensive manner the Union's information tools for border management, migration and security.
Regulation (EU) 2017/2226 11 establishing an Entry/Exit system (EES) further improves the security and management of the Union’s external borders. The main objectives of this regulation are to improve the quality of border checks for third-country nationals and to ensure a systematic and reliable identification of overstayers. The future Entry/Exit system (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.
Regulation (EU) 2018/1240 12 establishing a European Travel Information and Authorisation System (ETIAS) will close the information gap regarding travellers exempt from the requirement of being in possession of a visa when crossing the external borders. The system will determine the eligibility of visa-exempt third-country nationals prior to their travel to the Schengen area, and whether such travel poses a security, illegal immigration or high epidemic risk.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis is Article 77(2)(a) of the Treaty on the Functioning of the European Union, which provides for measures concerning the common policy on visas.
• Subsidiarity, proportionality and choice of instrument
As the Union has established a common visa policy including a Regulation listing the visa-free and the visa-required countries (Regulation (EC) No 539/2001), defining or changing the visa status of third countries' nationals can only be achieved by means of a Union legislative act amending that Regulation. Member States cannot act individually. No other (non-legislative) options are available to achieve the policy objective.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
Not applicable.
• Collection and use of expertise
In assessing the criteria enshrined in Regulation (EC) No 539/2001 for determining whether United Kingdom nationals who are British citizens should be visa-required or visa-free, the Commission has used a range of data sources. This includes Eurostat data on immigration by citizenship, United Nations and United Kingdom Office for National Statistics (ONS) data on the number of United Kingdom nationals living in the other 27 Member States of the Union (EU-27), passenger surveys on the number of trips made by United Kingdom nationals to the EU-27 13 , industry estimates regarding the spending by travelers from the United Kingdom 14 , and figures on trade between the Union and the United Kingdom 15 . The close relationship between the EU-27 and the United Kingdom following the latter’s 46 years of Union membership have also been a factor in assessing the criteria.
• Impact assessment
The amendment of Regulation (EC) No 539/2001 is necessary as a consequence of the withdrawal of the United Kingdom from the Union. Given the need for timely action and taking into account the conclusions of the analysis below, a full impact assessment was not carried out. There are only two policy options: including United Kingdom nationals who are British citizens in Annex I (visa-required) of Regulation (EC) No 539/2001, or including them in Annex II (visa-free) of the Regulation.
The Commission has come to the conclusion that United Kingdom nationals who are British citizens should be exempt from the visa requirement when travelling to the Union for short stays. As Union citizens, United Kingdom nationals who are British citizens currently enjoy freedom of movement under the Treaties and Directive 2004/38/EC 16 . They can move and reside across the Union without being required to hold a visa. While United Kingdom nationals who are British citizens will no longer be Union citizens as of the date of withdrawal of the United Kingdom and would not enjoy the free movement of persons once Union law ceases to apply, it would be beneficial to maintain close links between British citizens and those of the Union, as well as to facilitate travel for business and tourism purposes. As the United Kingdom is classified as a high-income economy by the World Bank and is a member of the OECD, it fits the profile of a country, which would, in principle, present low risks of irregular migration to the Union.
The checks on third-country nationals carried out at the external borders, which will apply to nationals of the United Kingdom who are British citizens once Union law on free movement of Union citizens ceases to apply to them, seem sufficient to manage security risks. Furthermore, the United Kingdom issues biometric passports that conform to International Civil Aviation Organisation standards. In addition, should any migratory or security risks related to United Kingdom nationals who are British citizens arise that require urgent action to suspend visa-free travel, this situation can be addressed under the suspension mechanism provided for in Article 1a of Regulation (EC) No 539/2001.
The EU-27 is the United Kingdom's largest trading partner, accounting for 44% of all United Kingdom exports and 54% of United Kingdom imports in 2017. While the volume of trade could decline following the United Kingdom's withdrawal from the Union, the Union and the United Kingdom are likely to maintain important trade relations due to the geographical proximity and the historically close interlinkages in their economies. Moreover, there are currently about 800 000 United Kingdom nationals living in the EU-27 (excluding Ireland) 17 and roughly 50 000 United Kingdom nationals move to the EU-27 every year 18 . These aspects contribute to the high volume of travel from the United Kingdom to the EU-27: Overall, residents in the United Kingdom undertook 53 million trips to the EU-27 in 2016, whether for business, leisure or other purposes, spending about EUR 28 billion while in the other Member States. Imposing a visa requirement on United Kingdom nationals who are British citizens could diminish the economic benefit for the Union that results from these trips, reduce trade relations and harm the economic interest of the Union.
The United Kingdom is member of the Council of Europe. The Union and the United Kingdom attach similar importance to considerations of human rights and fundamental freedoms, as shown by the United Kingdom’s adherence to the European Convention on Human Rights. The shared values stemming from the joint commitment to democracy and the rule of law will continue beyond the withdrawal of the United Kingdom from the Union. This should also be reflected by facilitating travel between the Union and the United Kingdom by providing for visa-free status for United Kingdom nationals.
The United Kingdom government has declared its intention not to require a visa from citizens of the EU-27 Member States for short stays for purposes of tourism and business 19 . This intention will now have to be formalised so that citizens can rely upon it and the colegislators should take account of progress on this during the legislative process on the present proposal. Should the United Kingdom decide in the future to unilaterally impose a visa requirement on all or some Union citizens 20 , the reciprocity mechanism under Article 1 i of Regulation (EC) No 539/2001 shall be activated. This would then lead to the introduction of a visa requirement.
Citizens of most European countries which are not members of the Union as well as those British nationals who are not British citizens can currently travel visa-free to the Schengen area. Due to the close proximity of the United Kingdom to the Union, considerations of regional coherence also speak in favour of including the United Kingdom on the list of visa-free countries.
Any remaining risks related to the visa-free travel of United Kingdom nationals who are British citizens to the Union should be mitigated by the recently adopted measures to improve the Union's external border management, notably the Entry/Exit system (EES) and the European Travel Information and Authorisation System (ETIAS), which will apply to United Kingdom nationals once Union law on free movement of Union citizens ceases to apply to them, as to other visa-free third country nationals..
• Regulatory fitness and simplification
Not applicable.
• Fundamental rights
This proposal has no negative consequences for the protection of fundamental rights in the European Union. Enabling visa-free travel by United Kingdom nationals who are British citizens to the Union will facilitate travel, for example in the context of the right to family life.
4. BUDGETARY IMPLICATIONS
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The amended Regulation will be applicable from the day following that on which Union law will cease to apply to the United Kingdom. This will be 30 March 2019, unless the European Council, in agreement with the United Kingdom, unanimously establishes another date, or the date provided for by a ratified Withdrawal Agreement pursuant to Article 50 of the Treaty on European Union. The Regulation will be implemented directly by the Member States; therefore, no implementation plan is necessary.
• Detailed explanation of the specific provisions of the proposal
–The reference to the United Kingdom will be deleted from point (d) of Article 4(2), as this point only applies to Member States that do not apply the Schengen acquis. Member States will continue to be able to exempt from the visa requirement recognised refugees and stateless persons and other persons who do not hold the nationality of any country that reside in the United Kingdom under point (b) of Article 4(2).
–The United Kingdom as regards British citizens will be inserted into Annex II, i.e. the list of visa-free third countries.
–The title of part 3 of Annex II will be replaced by “BRITISH NATIONALS WHO ARE NOT BRITISH CITIZENS” in order to remove the current reference to Union law. The full list of British nationals who are not British citizens will be retained to ensure legal certainty. The visa status of these British nationals was first determined by Regulation (EC) No 1932/2006, which listed some categories of these nationals in Annex I (visa-required) and others in Annex II (visa-free) based on an assessment of the criteria listed in Regulation (EC) No 539/2001 21 . Regulation (EU) No 509/2014 of 15 May 2014 transferred them all to Annex II (visa-free) 22 . The withdrawal of the United Kingdom from the Union does not affect the visa status of these British nationals who are not British citizens.
Article 3 ensures that the amendments to Regulation (EC) No 539/2001 apply from the day following that on which Union law ceases to apply to the United Kingdom, avoiding any legal uncertainty regarding the visa-free status of United Kingdom nationals who are British citizens.