Explanatory Memorandum to COM(2023)642 - Amendment of Regulation (EU) 2018/1806 as regards the revision of the suspension mechanism

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dossier COM(2023)642 - Amendment of Regulation (EU) 2018/1806 as regards the revision of the suspension mechanism.
source COM(2023)642 EN
date 18-10-2023
1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

Visa-free travel brings significant benefits for the EU and partners around the globe. It makes travel more convenient and is an important tool to promote people-to-people contacts, tourism, economic development and cultural exchange. The EU currently has a visa-free regime in place with 60 third countries 1 . Under this regime, nationals from these countries can enter the Schengen area for short stays of up to 90 days in any 180-day period without a visa. The EU’s visa-free policy is based on the principle of visa reciprocity.

Visa-free travel brings key benefits for citizens on both sides, strengthening further the EU relations with its partners. It boosts the travel and tourism sector, which, according to OECD estimates, accounted for around 7% of global exports in 2019 2 and contributed around 4.4% of GDP of OECD countries. 3 Visa-free travel also promotes cultural and academic exchanges. It also fosters diplomatic relations and international cooperation, leading to increased political interactions in different areas ranging from trade and economic cooperation, security, innovation and technology.

The number of travellers between the EU and visa-free non-EU countries in 2019 was 364.8 million. This represents a 7% increase from 2018. 4

At the same time, the Commission’s monitoring of the EU’s visa-free regimes, including its reports under the Visa Suspension Mechanism 5 , has shown that visa-free travel can also be the source of significant migration and security challenges.

Visa-free travel can result in increased irregular migration through overstays by visa-free travellers or through asylum applications lodged in high numbers by nationals from visa-free third countries with low recognition rates (unfounded asylum applications). Furthermore, in some cases insufficient visa alignment with the EU visa policy can turn a visa-free country into a transit hub for irregular entry to the EU.

In addition, investor citizenship schemes operated by third countries with visa-free access to the EU can result in risks or threats to the public policy or internal security of the Member States, including those related to infiltration of organised crime, money-laundering, tax evasion and corruption. Investor citizenship schemes aim to attract investment by granting investors from third countries citizenship rights of the country concerned, under less stringent conditions than under ordinary naturalisation regimes 6 . Where third-country nationals that would otherwise be visa-required for the EU acquire citizenship of a visa-free country thanks to such schemes, they can use them to bypass the regular short-stay visa procedure and the assessment of migration and security risks it entails.

The security and the external borders of the Member States have been profoundly impacted by recent geopolitical events, demonstrating that foreign interference may pose serious threats to the Member States’ security. In October 2021, the European Council adopted conclusions 7 inviting the Commission to propose changes to the EU legal framework to ensure an appropriate response to hybrid attacks. The visa suspension mechanism would be part of the EU’s toolbox to respond to hybrid threats, such as the state-sponsored instrumentalisation of migrants.

The suspension mechanism, established in Regulation (EU) 2018/1806 8 , is a safeguard against the abuse of visa-free travel. This mechanism enables the temporary suspension of the visa exemption in case of a sudden and substantial increase in irregular migration or security risks. However, with increasing challenges resulting from irregular migration, and threats to the secruity of the EU, it became clear that this mechanism needed to be further strengthened and improved.

Therefore, on 20 March 2023, in her letter to the European Council, President von der Leyen proposed that ‘the Commission will strengthen its monitoring of the visa policy alignment and will present a comprehensive report paving the way for a legislative proposal amending the visa suspension mechanism’. Therefore, on 30 May 2023, the Commission adopted a Communication on the monitoring of the EU’s visa-free travel regimes 9 setting out a consultation process. The Communication looked at the functioning of the EU’s visa-free regimes and identified the main challenges in the areas of irregular migration and security.

In order to effectively address the multitude of challenges resulting from visa-free travel in a constantly evolving geopolitical context and taking into account the consultation with the European Parliament, Member States and other stakeholders, this proposal aims to adapt the suspension mechanism to such challenges, by amending the relevant provisions set out in Article 8 of Regulation (EU) 2018/1806.

2.

The mechanism for suspension of visa-free travel


Regulation (EU) 2018/1806 provides for full harmonisation as regards the third countries whose nationals are subject to a requirement to be in possession of a visa for the crossing of Member States’ external borders (also referred to herein as ‘the visa requirement’) and those whose nationals are exempt from that requirement. It also provides for the possibility of suspending temporarily the exemption from the visa requirement (hereinafter referred to as the ‘suspension mechanism’).

This suspension mechanism was first introduced in 2013 10 with the main purpose to enable a temporary suspension of the visa exemption in case of a sudden and substantial increase in irregular migration. The mechanism was subsequently revised in 2017 11 by making it easier for Member States to notify circumstances leading to a possible suspension and by enabling the Commission to trigger the suspension mechanism on its own initiative.

At present, based on Article 8(2), i and i of Regulation (EU) 2018/1806, the suspension mechanism can be triggered in the event of:

·A substantial increase (i.e. an increase exceeding a threshold of 50 %) in the number of nationals of the third country concerned refused entry or found to be staying in the Member State’s territory without the right to do so;

·A substantial increase (i.e. an increase exceeding a threshold of 50 %) of asylum applications from the nationals of the third country concerned for which the recognition rate is low;

·A decrease of cooperation on readmission with the third country concerned;

·An increased risk or imminent threat to the public policy or internal security of the Member States, in particular a substantial increase in serious criminal offences linked to the nationals of the third country concerned;

·With regard to the third countries that obtained visa exemption as a result of a visa liberalisation dialogue, the non-compliance with the specific requirements which were used to assess the appropriateness of granting visa liberalisation.

To trigger the suspension procedure, the Commission must inform the European Parliament and the Council, either following the examination of a notification from Member States, or following its own analysis, and subsequently may decide that action is needed and trigger the mechanism. The triggering of the suspension procedure is done automatically where a simple majority of Member States notifies the Commission regarding the existence of one or more of the above circumstances.

The suspension procedure consists of three phases:

(1)The suspension of the visa exemption has an initial duration of nine months and is decided by a Commission implementing act. During the suspension period, the Commission should establish an enhanced dialogue with the third country concerned with a view to remedying the circumstances in question.

(2)Where the circumstances that led to the suspension persist, the suspension should be prolonged by an additional 18 months by a delegated act.

(3)Where no solution is found before the end of phase 2, the Commission can propose the permanent termination of the visa exemption and the transfer of the third country from Annex II to Annex I of Regulation (EU) 2018/1806, by ordinary legislative procedure.


•Consistency with existing policy provisions in the policy area

Regulation (EU) 2018/1806 lists the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States and those whose nationals are exempt from that requirement. Regulation (EU) 2018/1806 is applied by all Member States – with the exception of Ireland. It is also applied by Iceland, Liechtenstein, Norway and Switzerland. The Regulation is part of the EU’s common visa policy for short stays of up to 90 days in any 180-day period.

The amendment is consistent with the most recent major developments in the field of visa and border policy, the aim of which is to reinforce the security of the Schengen area:

–The recently revised Visa Information System (VIS) Regulation 12 , which will allow more thorough background checks on visa applicants, close security information gaps through better information exchange between Member States, and better combatting abduction and trafficking of children by lowering the fingerprinting age for minors. It will also broaden the Visa Information System to include long-stay visas and residence permits.

–The European Travel Information and Authorisation System (ETIAS) 13 , which is part of the Smart Border and interoperability framework and introduces an online travel authorisation for third-country nationals who do not require a visa.

–The Entry-Exit System (EES) 14 , which will require every traveller visiting the Schengen area for short stays to record their entry and exit at the external border crossing points allowing for the detection of overstayers.

–The second-generation Schengen Information System (SIS II), which allows information exchanges between national border control, customs and police authorities, ensuring that the free movement of people within the EU can take place in a safe environment 15 .

•Consistency with other Union policies

This initiative is consistent with the EU migration, border management and security policies, as its main objective is to address security and irregular migration risks for the Schengen area.

In particular, the proposed revision of the suspension mechanism will contribute to promoting the EU’s objectives in the areas of migration and security by countering possible abuses linked to visa-free travel, which pose a number of risks for the Member States, in terms of irregular migration, public policy and security.

This initiative is consistent with the EU’s external relations (including considerations of human rights and fundamental freedoms) and in particular its enlargement policy, as regards visa-free third countries with accession prospects.

3.

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY


•Legal basis

The legal basis for the proposal is point (a) of Article 77(2) of the Treaty on the Functioning of the European Union (TFEU), which empowers the Union to develop measures concerning the common policy on visas and other short-stay residence permits. The proposed amending regulation will constitute a development of the Schengen acquis.

•Subsidiarity (for non-exclusive competence)

The suspension mechanism laid down in Regulation (EU) 2018/1806 is an integral part of the EU’s common visa policy. The objective of strengthening that mechanism can only be achieved by action at Union level, namely by an amendment to the Regulation. Member States cannot act individually to achieve the policy objective.

•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. All the issues addressed in this legislative initiative call for EU-level legislative action enabling Member States to tackle these problems effectively.

The main purpose of this proposal is to make the suspension mechanism better equipped to respond swiftly and decisively to emerging challenges in the area of irregular migration and security arising from visa-free third countries, and to counter any abuses of visa-free travel.

At the same time, the suspension mechanism should remain a mechanism of last resort, without any automaticity, and any decision in this regard should continue to take due account of the overall relations between the EU and the third countries concerned as well as the overall political context.

The proposed amendments would not go beyond what is necessary to achieve the objectives explained in the previous sections.

•Choice of the instrument

The objectives of this proposal can only be achieved by a legislative act that modifies the existing suspension mechanism. Therefore, a regulation amending Regulation (EU) 2018/1806 is needed.

4.

3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS


•Ex-post evaluations/fitness checks of existing legislation

The suspension mechanism established in Regulation (EU) 2018/1806 has been triggered twice: the first time in May 2019, following a notification from a Member State reporting an increase in unfounded asylum applications and serious criminal offences by the nationals of a visa-free third country; the second time in 2022, following an analysis of the Commission, which led to the temporary suspension of the visa exemption for a third country due to the operation of an investor citizenship scheme, which constituted an increased risk to the internal security and public policy of the Member States.

The notification to the Commission made by a Member State in May 2019 showed that the thresholds for triggering the suspension mechanism could not be reached despite the reported increase in unfounded asylum applications and serious criminal offences by the nationals of a visa-free country registered in that Member State. While the Commission’s assessment concluded that the conditions to trigger the mechanism were not met in that circumstance, several Member States in the Council discussions considered that these thresholds should be set at a lower level.

As required by Articles 9(2) and 10 i of Regulation (EU) 2018/1806, in 2021 the Commission presented a report on the effectiveness of the suspension mechanism and on the delegation of power under such mechanism 16 . The report concluded that, even though the mechanism had not resulted in the suspension of any visa exemption, its existence had prompted important reforms in visa-free third countries in the area of migration management, security, rule of law and human rights.

In 2022, the triggering of the mechanism led for the first time to the suspension of a visa exemption for a third country 17 . This experience highlighted in practice the difficulties of triggering the mechanism due to its cumbersome procedure and showed again that meeting the thresholds requested by the current rules can prove difficult, at the expense of the objective to provide urgent responses to prevent irregular migration and security risks stemming from visa-free travel.

•Stakeholder consultations

In the first months of 2023, on the initiative of the Swedish Presidency, the Justice and Home Affairs Council discussed a possible revision of Regulation (EU) 2018/1806, and in particular of the suspension mechanism, for which the Member States expressed broad support. This was prompted by the increase in numbers of detected irregular border crossings to the EU via the Western Balkans route, which was partly linked to a lack of visa policy alignment by Western Balkan partners, and which spurred a reflection on the need to revise the suspension mechanism.

Following the adoption of the Commission Communication on the monitoring of the EU's visa free regimes on 30 May 2023, the revision of the suspension mechanism was discussed in COREPER on 31 May 2023, at the Justice and Home Affairs Counsellors meeting of 1 June 2023 and at the Schengen Council of 8-9 June 2023. Member States expressed strong support for adapting the thresholds of the suspension mechanism as well as broadening the grounds of suspension, notably by including visa policy alignment – especially in cases where this could lead to migratory or security risks – and investor citizenship schemes as additional grounds. Member States also welcomed the revised approach to monitoring and reporting on visa-free third countries which is set out in the Communication.

The Communication was also presented to the European Parliament (LIBE Committee) on 28 June 2023. During the discussion, Members of the LIBE Committee welcomed the Commission initiative to revise the suspension mechanism, in particular with regard to the proposed inclusion of an explicit suspension ground on investor citizenship schemes operated by visa-free third countries, as a response to the call made by the European Parliament in its resolution of 9 March 2022 with proposals to the Commission on citizenship and residence by investment schemes 18 . Among other requests, the resolution called on the Commission to exert as much pressure as possible to ensure that third countries that have investor citizenship schemes in place and that benefit from visa-free travel under Annex II to Regulation (EU) 2018/1806 abolish those schemes, and to submit a proposal to amend Article 8 of Regulation (EU) 2018/1806 to include the operation of investor citizenship schemes as a ground for suspension of visa exemptions.

The Commission has sought to take into account the main suggestions made by Member States and the Members of the LIBE Committee on how to revise the suspension mechanism and strengthen the monitoring and reporting obligations in the drafting of this proposal.

Finally, in August 2023 the Commission published a call for evidence 19 to consult the wider public and other interested stakeholders on possible ways of improving the suspension mechanism, to inform the preparation of the Commission’s proposal. The call received 15 feedbacks from travel and transport associations, NGOs and citizens. Most of those feedbacks stressed the need for the suspension mechanism to remain a mechanism of last resort without any automaticity and for the travelling public and the industry to be well in advance and clearly informed in case of activation of the suspension.

•Impact assessment

The revision of the suspension mechanism as such does not have any direct economic, social or environmental impacts. The impacts of the possible suspension of the visa exemption for nationals of a certain third country will have to be assessed in detail by the Commission in each individual case when it examines a notification by a Member State and before it decides whether action is needed. Therefore, no impact assessment is necessary for this proposal.

•Fundamental rights

This proposal has no negative consequences for the protection of fundamental rights in the European Union.

Contents

1.

BUDGETARY IMPLICATIONS



This proposal has no budgetary implications.

5.

5.OTHER ELEMENTS


•Implementation plans and monitoring, evaluation and reporting arrangements

As already required by the current Article 8 i of Regulation (EU) 2018/1806, for those third countries which have been listed in Annex II as a result of the successful conclusion of a visa liberalisation dialogue, the Commission will continue to fully assess and report on the continuous compliance with the visa liberalisation requirements for a period of seven years after the entry into force of visa liberalisation for that third country.

Following this seven-year period, the reporting on those countries will be continued but targeted to specific challenges and priorities. The Commission may also decide to report on visa-free countries in other geographical areas beyond the EU neighbourhood, focusing on countries where issues may arise and where further cooperation may be needed to address specific migration and/or security challenges that could be assessed under the suspension mechanism.

•Detailed explanation of the specific provisions of the proposal

This proposal strengthens and improves several elements of the suspension mechanism currently governed by Article 8 of Regulation (EU) 2018/1806. The proposed amendment replaces Article 8 by a set of new Articles (8 to 8f). The revision includes several substantive amendments.

First, the new Article 8(1) defines the temporary suspension mechanism. It provides that the suspension mechanism may be triggered by a notification by a Member State to the Commission or by the Commission based on its own analysis. The procedure for the Member States’ notification is laid down in Article 8b (replacing the provisions currently set out in Article 8(2)), while the procedure for the Commission to trigger the suspension mechanism is laid down in Article 8c, (replacing the provisions currently set out in Articles 8 i and 8(4)).

The new Article 8(2) clarifies that, in cases where an agreement on the short-stay visa waiver between the Union and a third country listed in Annex II includes provisions on different grounds for suspension or different procedures, those provisions should be applied instead of the relevant provisions of the Regulation.

Second, the proposal establishes the conditions and procedure for suspension in Articles 8a to 8f. Article 8a sets out and amends all the grounds and thresholds for the suspension of the exemption from the visa requirement. The grounds for suspension of the visa exemption include the ones concerning an increase in irregular migration, an increase in the number of unfounded asylum applications, a decrease in cooperation on readmission and other cases of non-cooperation on readmission, currently listed separately under Article 8(2) and 8 i, and the lack of fulfilment of the visa liberalisation benchmarks, currently under Article 8 i.

In addition to existing grounds, with this proposal, the public policy and security ground for suspension in Article 8a(1)(d) is expanded to cover explicitly threats to the public policy and security of the Member States arising from hybrid threats, such as situations of state-sponsored instrumentalisation of migrants aimed at destabilising or undermining society and key institutions 20 .

A new suspension ground is introduced in Article 8a(1)(e) specifically addressing investor citizenship schemes, which are currently operated by a number of third countries listed in Annex II. The third countries concerned often advertise those schemes as ‘golden passports’ with the express purpose of allowing visa-free travel to the Union to third-country nationals that would otherwise be visa required. Such schemes can allow their beneficiaries to bypass the regular Schengen visa procedure and the in-depth assessment of individual migratory and security risks it entails, including a possible evasion of measures to prevent money laundering and financing of terrorism 21 . While the Union respects the right of sovereign countries to decide on their own naturalisation procedures, visa-free access to the Union should not be used as a tool for leveraging individual investment in return for citizenship. To address this issue, the EU should have the possibility, based on a Commission’s analysis, to suspend the visa exemption for a third country that chooses to operate an investor citizenship scheme whereby citizenship is granted without any genuine link to the third country concerned, in exchange for pre-determined payments or investments.

A new suspension ground is added in Article 8a(1)(f) to cover those cases where the lack of visa policy alignment of a third country listed in Annex II with the visa policy of the Union, could lead to situations where third-country nationals, other than nationals of that third country, arrive legally in the territory of that third country and then enter irregularly the territory of the Member States. It should be possible to trigger the suspension mechanism to prevent such risks of irregular migration, in particular where the concerned third country is in close geographic proximity to the EU.

New with this proposal is the possibility, introduced in Article 8a(2) for the Commission to consider different thresholds when deciding whether to suspend a visa exemption in cases of a substantial increase in irregular migration, unfounded asylum applications or serious criminal offences linked to the nationals of that third country, following a case-by-case assessment. In particular, the Commission should assess whether there are specific circumstances, in the cases notified by Member States or under its own analysis, that would justify the application of lower or higher thresholds than those indicated in the regulation. In its assessment, the Commission should take into account the actual numbers of irregular crossing of the external borders of a Member State, unfounded asylum applications or criminal offences, the number and size of the Member State(s) affected, and the impact on their overall migratory situation, functioning of their asylum systems, or internal security, as well as actions taken by the third country in question to remedy the situation.

Article 8b lays down the procedure and conditions for a Member State’s notification to the Commission when it is confronted by one or more circumstances amounting to a ground for suspension, and the procedure for the Commission’s examination of such a notification. This is currently regulated in Article 8(2) and 8(5) of Regulation (EU) 2018/1806, respectively. The scope of the Member States’ notification is not amended, as it continues to cover the existing suspension grounds on increases in irregular migration, unfounded asylum applications, decreases in cooperation on readmission, and increases in serious criminal offences. While the new proposed grounds for suspension are reserved to the analysis of the Commission regulated in Article 8c, the Member States will be able to provide relevant information to the Commission also on these additional grounds, though outside the formal notification procedure set out in Article 8b.

Article 8b also modifies the reference period for identifying the existence of the circumstances which may lead to the suspension (currently included in Article 8(2)). The reference period is amended to cover at least a two-month period. This would allow to take into consideration also longer reference periods (e.g., annual trends) and not only sudden changes in the relevant circumstances.

Article 8c sets out the Commission’s obligation to monitor on a regular basis the existence of the grounds for suspension with regard to all third countries listed in Annex II, and the procedure to trigger the suspension mechanism based on the Commission’s own analysis of the existence of such grounds.

Article 8d outlines the Commission’s reporting obligations with regard to countries that have completed a visa liberalisation dialogue (currently in Article 8(4)) and introduces the possibility for the Commission to report on any of the visa-free countries listed in Annex II, either on its own initiative or at the request of the European Parliament or the Council.

Article 8e and 8f concern the suspension procedure by means of implementing and delegated acts, respectively, currently laid down in Article 8(6). This procedure is amended by increasing the duration of the temporary suspension of the visa exemption from nine months to 12 months (for the first phase) and from 18 months to 24 months (for the second phase). This aims to make the suspension procedure more efficient and allow appropriate time for dialogue with the third country in question and for it to take steps to remedy the circumstances that led to the suspension.

Article 8e also introduces an urgency procedure, which would allow the Commission to suspend a visa exemption through an immediately applicable implementing act, when it considers that imperative grounds of urgency exist, which require expedited action that could not be ensured under the ordinary procedure, in particular to prevent a mass influx of third-country nationals arriving irregularly in a Member State from the territory of a third country that is visa-free for the EU or a serious damage to the public policy or internal security of Member States.

In either phase, the suspension may be lifted as soon as the circumstances that led to the suspension are remedied. The procedure for lifting the suspension of the visa exemption in case the circumstances which led to the suspension cease to exist before the end of the temporary suspension phase in question is laid down in Articles 8e i and 8f(5).

Given that Article 8e provides for an urgency procedure, Article 11 is also amended to reference the corresponding procedure in Article 8 of Regulation (EU) No 182/2011 of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.