Considerations on COM(2014)163 - Touring visa and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 562/2006 and (EC) No 767/2008

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dossier COM(2014)163 - Touring visa and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 562/2006 and (EC) No ...
document COM(2014)163 EN
date April  1, 2014
 
(1) Union legislation established harmonised rules concerning the entry and stay of third-country nationals in the Member States for up to 90 days in any 180-day period.

(2) Several sectorial Directives have been adopted regarding the conditions for admission of third-country nationals to the territory of the Member States for a period exceeding three months. Article 21 of the Convention Implementing the Schengen Agreement[28] grants third-country nationals who hold valid residence permits or national long-stay visas issued by one of the Member States the right of free movement within the territory of the other Member States for up to 90 days in any 180-day period.

(3) Visa-requiring and visa-exempt third-country nationals may have a legitimate interest in travelling within the Schengen area for more than 90 days in a given 180-day period without staying in any single Member State for more than 90 days. Rules should therefore be adopted to allow for this possibility.

(4) Live performance artists, in particular, often experience difficulties in organising tours in the Union. Students, researchers, culture professionals, pensioners, business people, service providers as well as tourists may also wish to stay longer than 90 days in any 180-day period in the Schengen area. The lack of appropriate authorisation leads to a loss of potential visitors and consequently to an economic loss.

(5) The Treaty distinguishes between, on the one hand, the conditions of entry to the Member States and the development of a common policy on short-stay visas, and on the other hand, the conditions of entry for the purpose of residing legally in a Member State and issuing long-stay visas and residence permits for that purpose. However, the Treaty does not define the notion of short stay.

(6) A new type of visa (‘touring visa’) should be established for both visa-exempt and visa-requiring third-country nationals planning to circulate in the territory of two or more Member States for more than 90 days, provided that they do not intend to stay for more than 90 days in any 180-day period in the territory of the same Member State. At the same time, the 90 days per 180 days rule should be maintained as a general dividing line between short stays and long stays, as it does not pose any problems for the vast majority of travellers.

(7) Where relevant, the provisions of Regulation (EU) No xxx/201x of the European Parliament and of the Council[29] and Regulation (EC) No 767/2008 of the European Parliament and of the Council[30] should apply to the application for and the issuing of touring visas. Given the different needs and conditions of third-country nationals applying for touring visas and due to economic and security considerations, specific rules should nevertheless be introduced, among others, as regards the authorities taking part in the procedures, the application phase, the examination of and decision on applications and the issuing and refusal of touring visas.

(8) Nationals of third countries listed in Annex II of Council Regulation (EC) No 539/2001[31] should benefit from certain facilitations, such as the exemption from the collection of fingerprints.

(9) The interaction between stays on the basis of short-stay visas, long-stay visas and residence permits and stays on the basis of touring visas should be clarified to ensure legal certainty. It should be possible to combine stays on the basis of touring visas with previous and future visa-free stays, stays on the basis of short-stay visas, long-stay visas or residence permits.

(10) It should be possible to extend the authorised stay, taking into consideration specific travel patterns and needs, provided that holders of a touring visa continue to fulfil the entry and visa issuing conditions and can prove that during their prolonged stay, they comply with the requirement of not staying for more than 90 days in any 180-day period in the territory of the same Member State

(11) The touring visa scheme should be integrated into the relevant legal instruments of the Schengen acquis. Therefore, amendments should be introduced to Regulation (EC) No 562/2006 of the European Parliament and of the Council[32] and to Regulation (EC) No 767/2008. The entry conditions set out in Article 5 of Regulation (EC) No 562/2006 should apply as visa issuing conditions. Touring visa applications and decisions on touring visas should be registered in the Visa Information System.

(12) Following the establishment of the touring visa, Article 20(2) of the Convention implementing the Schengen Agreement should be amended as it is incompatible with 77(2)(a) and (c) of the Treaty on the Functioning of the European Union due to the fact that the common policy on visas cannot be based on the existence or non-existence of bilateral visa waiver agreements concluded by Member States. The authorised length of stay of third-country nationals should not depend on the number and content of such bilateral agreements concluded in the past.

(13) A five-year transitional period should be provided for phasing out the impact of bilateral visa waiver agreements as far as the overall length of stay of third-country nationals in the Schengen area is concerned.

(14) In order to ensure uniform conditions for implementation of this Regulation, implementing powers should be conferred on the Commission in respect of establishing operational instructions on the practices and procedures to be followed by Member States when processing touring visa applications. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council[33]. The examination procedure should be used for the adoption of such implementing acts.

(15) This Regulation respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, this Regulation seeks to ensure full respect for private and family life referred to in Article 7, protection of personal data referred to in Article 8 and the rights of the child referred to in Article 24 of the Charter.

(16) Directive 95/46/EC of the European Parliament and of the Council[34] applies to the Member States with regard to the processing of personal data pursuant to this Regulation.

(17) Since the objectives of this Regulation, namely the introduction of a new type of visa valid in all Member States and the establishment of uniform issuing conditions and procedures, can only be achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary to achieve those objectives.

(18) In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

(19) This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC[35]; the United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application.

(20) This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC[36]; Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application.

(21) As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis[37], which fall within the area referred to in Article 1, point B of Council Decision 1999/437/EC[38].

(22) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis[39], which fall within the area referred to in Article 1, point B of Council Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC[40].

(23) As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis, within the meaning of the Protocol signed between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis[41], which fall within the area referred to in Article 1, point B of Council Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU[42] on the conclusion of that Protocol.

(24) As regards Cyprus, this Regulation constitutes an act building upon, or otherwise related to, the Schengen acquis, within the meaning of Article 3(2) of the 2003 Act of Accession.

(25) As regards Bulgaria and Romania, this Regulation constitutes an act building upon, or otherwise related to, the Schengen acquis within the meaning of Article 4(2) of the 2005 Act of Accession.

(26) As regards Croatia, this Regulation constitutes an act building upon, or otherwise related to, the Schengen acquis within the meaning of Article 4(2) of the 2011 Act of Accession.