Explanatory Memorandum to COM(2022)662 - Non-recognition of Russian travel documents issued in occupied foreign regions - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)662 - Non-recognition of Russian travel documents issued in occupied foreign regions. |
|---|---|
| source | COM(2022)662  |
| date | 06-09-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
In reaction to the illegal annexation of the Autonomous Republic or Crimea and the city of Sevastopol by the Russian Federation in 2014 and the continued destabilising actions in eastern Ukraine, the European Union has already introduced (i) economic sanctions in view of Russia's actions destabilising the situation in Ukraine, linked to the incomplete implementation of the Minsk agreements; (ii) sanctions in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine; (iii) sanctions in response to the illegal annexation of the Autonomous Republic of Crimea and the city of Sevastopol by the Russian Federation.
The decision of the Russian Federation to recognise the non-government-controlled areas of Donetsk and Luhansk oblast of Ukraine as independent entities and the decision to send Russian troops into Ukraine, an unprecedented military aggression against its territorial integrity, sovereignty and independence, is a severe breach of international law and international agreements, including the UN Charter, Helsinki Final Act, Paris Charter and the Budapest Memorandum.
As a signatory of the Minsk agreements, Russia has a clear and direct responsibility to work to find a peaceful settlement. With the decision to recognise the non-government-controlled regions of eastern Ukraine as independent entities, Russia has clearly violated the Minsk agreements, which stipulate the full return of these areas to the control of the Ukrainian government.
On 23 February 2022, the EU agreed unanimously on a first package of sanctions, which inflicted an additional cost on Russia in response to its actions. They included individual sanctions, financial restrictions, and restrictions on economic relations between the EU and the non-government-controlled areas of Donetsk and Luhansk oblasts.
On 24 February 2022, the European Council condemned in the strongest possible terms Russia's unprovoked and unjustified military aggression against Ukraine and expressed full solidarity with Ukraine and its people together with its international partners. By its illegal military actions, Russia has since continued to grossly violate international law, committing atrocities towards the Ukrainian population and undermining European and global security and stability. Furthermore, the European Council demanded that Russia immediately cease its military actions, unconditionally withdraw all forces and military equipment from the entire territory of Ukraine and fully respect Ukraine’s territorial integrity, sovereignty and independence within its internationally recognised borders. 1
Following this, the Union has responded with further packages of sanctions including the freezing of assets and travel bans for individuals. The Union has also adopted restrictive measures concerning the financial, energy, transport and technology sectors. It has also taken additional measures, notably suspending partially the application of the Visa Facilitation Agreement. 2 This partial suspension targeted certain categories of Russian citizens, including members of Russian official delegations, members of national and regional Governments and Parliaments and business people.
Since the beginning of the Russian aggression against Ukraine, the situation has worsened with tragic humanitarian consequences for the civilian population and infrastructure and Russia has further illegally expanded its full or partial occupation in the eastern and southern regions of Ukraine.
The negative evolution of Russia's internal policy, characterised by growing political repression by the government to preserve the current political and economic order, has increasingly affected the EU-Russia relations. In response, the Commission, in parallel to the present proposal, has also proposed to fully suspend the EU-Russia Visa Facilitation Agreement 3 .
Since the Member States have not recognised the illegal annexation of the Autonomous Republic of Crimea and the city of Sevastopol by the Russian Federation or of other Russian-occupied regions in Ukraine, travel documents issued by the Russian authorities in these territories have generally not been recognised by Member States for the purposes of issuing of a visa and of crossing the external borders. The same applies to the travel documents issued in the Russian-occupied Georgian territories of Abkhazia and South Ossetia. These positions are reflected in the table of recognised travel documents issued by third countries 4 , which the Commission frequently updates, based on Member States’ notifications.
The Commission issued guidelines to Member States’ consulates in Ukraine and in the Russian Federation on lodging Schengen visa applications by the residents of Crimea following the illegal annexation of Crimea by Russia in 2014. Further guidelines were developed in 2016 as a common approach to the issue of non-recognition of certain categories of ordinary Russian international passports issued by the Russian administrative authorities established by Russia in Crimea and Sevastopol. In 2019, the Commission services and the European External Action Service prepared guidance on how to handle visa applications lodged by residents of Ukraine’s Donetsk and Luhansk regions holding ordinary Russian international passports. The Russian Federation is currently extending the practice of handing out ordinary Russian international passports to other non-government-controlled areas of Ukraine, in particular the Kherson and Zaporizhzhia regions. In May 2022, Russia introduced a simplified Russian naturalisation procedure for orphan children from the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic, as well as Ukraine. The decree also applies to children without parental care and legally incapable persons who are inhabitants of these two occupied regions.
This proposal aims to ensure that Russian travel documents issued in or to persons resident in the occupied foreign regions, irrespective of the geographical location, are not recognised by the Member States for the purposes of issuing of a visa and of crossing the external borders. The measure establishes a common approach on the non-recognition of such travel documents.
• Consistency with existing policy provisions in the policy area
This initiative is in line with the actions set out in European Council conclusions on 24 February 2022 and further develops the Guidance to the Member States and Schengen Associated Countries’ consulates in the Russian Federation and Ukraine on how to handle visa applications lodged by residents of Ukraine’s Donetsk and Luhansk regions holding ordinary Russian international passports issued after 24 April 2019. This proposal complements the partial suspension of the EU-Russia Visa Facilitation Agreement and the proposal of the Commission to fully suspend the Agreement that is presented in parallel.
This Decision does not affect the application of Decision 1105/2011/EU or the obligations of Member States under that Decision with regard to travel documents on which the Union has not taken a position.
• Consistency with other Union policies
The proposal constitutes a further response of the Union to the Russian military aggression against Ukraine and the Russian ‘passportisation’ in occupied foreign regions. The proposal is fully consistent with the statement of the High Representative on behalf of the EU on attempts of the Russian Federation to forcefully integrate parts of Ukrainian territory 5 . Moreover, including the travel documents issued in the Russian-occupied Georgian territories of South Ossetia and Abkhazia is in line with the calls of the European Council 6 strongly condemning Russia’s unilateral decision to recognise the independence of Abkhazia and South Ossetia and urging other countries not to recognise their independence.
This proposal is without prejudice to the right of freedom of movement of Union citizens within the meaning of Article 20(1) TFEU and third-country nationals who enjoy rights of free movement equivalent to those of Union citizens, as well as of their respective family members. Directive 2004/38/EC 7 lays down rules on the entry of third-country nationals enjoying the right of free movement.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The proposal is based on Articles 77(2)(a) and (b) TFEU.
The proposal establishes an obligation for Member States not to recognise travel documents issued by the Russian authorities in or to persons resident in occupied foreign regions for the purposes of visa issuance and the crossing of external borders.
• Subsidiarity (for non-exclusive competence)
Action in the area of freedom, security and justice falls within an area of competence shared between the EU and the Member States in accordance with Article 4(2) TFEU. Therefore, the principle of subsidiarity is applicable by virtue of Article 5(3) TEU, according to which the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
The recognition of travel documents has so far been a Member State competence as the Union has not previously exercised its shared competence pursuant to Articles 77(2)(a) and (b) TFEU as regards the recognition of travel documents in the domain of the common policy on visas and the checks to which persons crossing the external borders are subject.
The objectives of this proposal cannot be sufficiently achieved by the Member States acting alone, and can be better achieved at the level of the Union. This is because the objectives concern the invalidation of travel documents that are required in the context of submitting an application for a visa or for crossing the external borders of the Member States. The integrity of the Schengen area and the need to ensure a uniform response to the Russian ‘passportisation’ in occupied foreign regions require a coherent approach across the entire Schengen area. Without this proposal, the recognition or non-recognition of such travel documents would be subject to individual Member State decisions and could lead to severe discrepancies on the issuance of visas to persons habitually resident in regions occupied by Russia and their ability to cross the external borders. This measure will bring legal certainty on the issue and be directly applicable in the Member States.
The Union may therefore adopt the proposed measure, in accordance with the principle of subsidiarity.
• Proportionality
According to the principle of proportionality laid down in Article 5 i TEU, there is a need to match the nature and intensity of a given measure to the identified problem.
The aim of the measure is to ensure a well-functioning common visa policy and policy on external border checks as well as to safeguard the security of the Union and its Member States. The proposed measure is a response to Russia’s unprovoked and unjustified military aggression against Ukraine. This proposal fully respects Member States’ sovereign right under public international law on state recognition. The proposed non-recognition of travel documents does not affect the right of States to adopt any decision concerning the recognition of any territorial entity as an international personality of the international community. Moreover, the proposed measure does not affect the possible validity of these travel documents in the context of proving identity in national proceedings or interactions. Therefore, it would continue to be up to individual Member States to decide which kinds of documents may be furnished to prove one’s identity.
Since the EU has not recognised the illegal annexation of the Crimean peninsula by the Russian Federation or of other Russian-occupied regions in Ukraine, travel documents issued by the Russian authorities in these territories should be unequivocally invalidated by Union law for the purposes of travel. The same applies to travel documents issued in the Russian-occupied Georgian territories of Abkhazia and South Ossetia. Similarly, this measure of non-recognition would apply to all travel documents issued by Russian authorities in any foreign regions Russia possibly and illegally invades or occupies in the future.
• Choice of the instrument
The proposal concerns the Schengen-wide non-recognition of travel documents issued by Russian authorities in occupied foreign regions in the context of the common visa policy and the checks to which persons crossing the external borders are subject. Taking into account the fact that the ordinary legislative procedure applies and the targeted scope of the proposed measure, a Decision of the European Parliament and of the Council is appropriate.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
The issue of non-recognition of Russian travel documents issued in the occupied foreign regions was discussed in the Council Visa Working Party on 13 July 2022. Following the informal meeting of foreign affairs ministers (Gymnich) on 31 August 2022, the High Representative reported that Member States agreed politically on the non-recognition of Russian travel documents issued in the occupied foreign regions.
• Fundamental rights
The proposed measure respects the fundamental rights and principles set out in the Charter of Fundamental Rights of the European Union, in particular the freedom of movement and residence, the right to asylum, the rights of the child and the principles of non-refoulement and of non-discrimination.
While the proposed measure will essentially have the effect of impeding travel of certain categories of third-country nationals to the EU by virtue of not recognising their travel documents as valid for the purposes of issuing of a visa and of crossing the external borders, the measure will not equal a travel ban against those persons. Member States retain the right to issue a visa with limited territorial validity and affixing the visa sticker on a separate sheet in accordance with Articles 25 and 29 of Regulation (EC) No 810/2009 and/or derogate from the entry conditions provided for in Article 6 of Regulation (EU) No 2016/399. In particular, Member States should make use of this right in order to ensure respect for the rights of the child and the principle of non-refoulement.
The right to asylum and the Union asylum acquis are not affected by the proposed measure.
Finally, although the travel documents issued by Russia in the occupied foreign regions would not be recognised for purposes of entry into the Schengen area, the validity of those documents as identity documents in a domestic context is not affected.
4. BUDGETARY IMPLICATIONS
The proposal has no implications for the EU budget.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will monitor and evaluate the implementation of the proposed measure in the context of local Schengen cooperation and in the framework of the Travel Document Committee, established under Article 8 of Decision 1105/2011/EU.
• Detailed explanation of the specific provisions of the proposal
The proposal provides for the non-recognition of Russian travel documents that have been issued in or to persons resident in the occupied foreign regions for the purposes of issuing a visa and of crossing the external borders. For reasons of legal certainty, clarity and transparency, the Commission should establish a list of those Russian travel documents that should not be recognised for the purposes of travel into the Schengen area. This list will be publicly available on the Commission website as part of the table of recognition of travel documents and list of travel documents issued by third countries, as established by Decision 1105/2011/EU.