Considerations on COM(2014)164 - Union Code on Visas (Visa Code) (recast) - EU monitor

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Considerations on COM(2014)164 - Union Code on Visas (Visa Code) (recast)

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dossier COM(2014)164 - Union Code on Visas (Visa Code) (recast).
document COM(2014)164 EN
date April1,2014
 
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(1) Regulation (EC) No 810/2009 of the European Parliament and of the Council[11] has been substantially amended several times. Since further amendments are to be made, that Regulation should be recast in the interests of clarity.

810/2009 recital 1 (adapted)

In accordance with Article 61 of the Treaty, the creation of an area in which persons may move freely should be accompanied by measures with respect to external border controls, asylum and immigration.

810/2009 recital 2 (adapted)

Pursuant to Article 62(2) of the Treaty, measures on the crossing of the external borders of the Member States shall establish rules on visas for intended stays of no more than three months, including the procedures and conditions for issuing visas by Member States.

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(2) Union policy in the field of visas allowing for stays of up to 90 days in any 180 days is a fundamental component of the creation of a common area without internal borders. The common rules on the conditions and procedures for issuing visas should be governed by the principle of solidarity and mutual confidence between Member States.

810/2009 recital 3 (adapted)

(3) As regards visa policy, the establishment of a common corpus of legislation, particularly via the consolidation and development of the acquis (the relevant provisions of the Convention implementing the Schengen Agreement of 14 June 1985[12] and the Common Consular Instructions[13], is one of the fundamental components of Regulation (EC) No 810/2009 aims, inter alia, to further development of the common visa policy as part of a multi-layer system aimed at facilitating in order to facilitate legitimate travel and tackling illegal tackle irregular immigration through further harmonisation of national legislation and handling practices at local consular missions, as defined in the Hague Programme: strengthening freedom, security and justice in the European Union[14].

810/2009 recital 8 (adapted)

(4) Provided that It should also ensure that under certain conditions are fulfilled, multiple-entry visas should be are issued in order to lessen the administrative burden of Member States consulates and to facilitate smooth travel for frequent or regular travellers. Applicants known to the consulate for their integrity and reliability should as far as possible benefit from a simplified procedure.

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(5) Regulation (EC) No 810/2009 clarified and simplified the legal framework and greatly modernised and standardised visa procedures. However, specific provisions that were intended to facilitate procedures in individual cases on the basis of subjective criteria are not sufficiently applied.

(6) A smart visa policy should entail continued security at the external borders whilst ensuring the effective functioning of the Schengen area and facilitating travel opportunities for legitimate travel. The common visa policy should contribute to generating growth and be coherent with other Union policies, such as external relations, trade, education, culture and tourism.

(7) To ease mobility and to facilitate family visits for third-country nationals who are visiting close relatives who are Union citizens residing in the territory of the Member State of which they are nationals and for close relatives of Union citizens residing in a third country and wishing to visit together the Member State of which the Union citizen has the nationality, certain procedural facilitations should be provided by this Regulation.

(8) The same facilitations should as a minimum be granted to family members in situations covered by Directive 2004/38/[15] in accordance with Article 5(2) of that Directive.

(9) A distinction should be made between new first time applicants and persons who have been previously granted visas and who are registered in the Visa Information System (VIS), in order to simplify the procedure for registered travellers while addressing the risk of irregular immigration and the security concern posed by some travellers. This distinction should be reflected in all steps of the procedure.

(10) It should be presumed that applicants who are registered in VIS and have obtained and lawfully used two visas within the 12 months prior to the application fulfil the entry conditions regarding the risk of irregular immigration and the need to possess sufficient means of subsistence. However, this presumption should be rebuttable where the competent authorities establish that one or more of these conditions are not fulfilled in individual cases.

(11) The assessment of whether an issued visa has been used lawfully should be based on elements, such as respect of the period of authorised stay, of the territorial validity of the visa, and of the rules on access to the labour market and the exercise of an economic activity.

810/2009 recital 5 (adapted)

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(12) It is necessary to set out rules on the transit through international areas of airports in order to combat illegal irregular immigration. To this end Thus nationals from a common list of third countries the nationals of which should be required to hold airport transit visas should be established . Nevertheless, in urgent cases of mass when a Member State experiences a sudden and substantial influx of illegal irregular immigrants, Member States it should be allowed to impose such a be able to introduce temporarily the airport transit visa requirement on for nationals of a given third countries country other than those listed in the common list. Member States individual decisions should be reviewed on an annual basis. The conditions and procedures for doing so should be laid down, in order to ensure that the application of this measure is limited in time and that in accordance with the principle of proportionality, it does not go beyond what is necessary in order to achieve the objective. The scope of the airport transit visa requirement should be limited to responding to the specific situation that prompted the introduction of the measure.

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(13) The airport transit visa requirement should be waived for holders of visas and residence permits issued by certain countries.

(14) It should be clear which is the Member State competent for examining an application for a visa, in particular where the intended visit covers several Member States.

(15) Visa applicants should be able to lodge an application in their country of residence even where the Member State competent under the general rules is neither present nor represented in that country.

(16) Harmonised treatment of visa holders whose travel document is lost or stolen during a stay in the territory of the Member States should be ensured.

810/2009 recital 9

(17) Because of the registration of biometric identifiers in the Visa Information System (VIS) as established by Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation)[16], the appearance of the applicant in person at least for the first application should be one of the basic requirements for the application for a visa.

810/2009 recital 10

(18) In order to facilitate the visa application procedure of any subsequent application, it should be possible to copy fingerprints from the first entry into the VIS within a period of 59 months. Once this period of time has elapsed, the fingerprints should be collected again.

810/2009 recital 11 (adapted)

(19) Any document, data or biometric identifier received by a Member State in the course of the visa application process shall should be considered a consular document under the Vienna Convention on Consular Relations of 24 April 1963 and shall should be treated in an appropriate manner accordingly .

810/2009 recital 12

(20) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data[17] applies to the Member States with regard to the processing of personal data pursuant to this Regulation.

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(21) Deadlines for the different steps of the procedure should be established, in particular to allow travellers to plan ahead and avoid peak seasons in consulates.

(22) Member States' consulates should charge the same visa fee for processesing visa applications. The categories of persons for which visa fee waivers are granted should be uniform and clearly defined. Member States should be allowed to waive the visa fee in individual cases.

(23) Applicants should not be required to present travel medical insurance when lodging an application for a short stay visa because it is an disproprtionate burden for visa applicants and there is no evidence that holders of short stay visas present a bigger risk in terms of public medical expenditure in Member States than the visa exempted third country nationals.

(24) Professional, cultural and sports associations, as well as accredited commercial intermediaries should be allowed to lodge applications on behalf of visa applicants.

(25) Provisions regarding inter alia the period of grace, the filling in of the visa sticker and the invalidation of completed visa stickers should be clarified.

(26) Multiple entry visas with a long validity should be issued according to objectively determined criteria. The validity of a multiple entry visa could go beyond the validity of the travel document in which it is affixed.

(27) The application form should take account of the roll out of the VIS. Member States should to the extent possible allow for visa application forms to be completed and submitted electronically and should accept facsimile or copies of supporting documents. Original documents should only be required in specific cases.

(28) The standard form for notifying grounds for the refusal, annulment or revocation of a visa should include a specific ground for refusal of an airport transit visa and ensure that the person concerned is properly informed about appeal procedures.

(29) The rules regarding the exchange of information between the competent authorities of the Member States in view of issuing visas to seafarers at the external borders and the form to be filled in to this effect should be as simple and clear as possible.

(30) The issuing of visas at the external border should, in principle, remain exceptional. However, to allow Member States to promote short term tourism, they should be authorised to issue visas at the external border based on a temporary scheme and upon notification and publication of the organisational modalities of the scheme. Such schemes should be temporary in nature and the validity of the visa issued should be limited to the territory of the issuing Member State.

810/2009 recital 6 (adapted)

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(31) The reception aArrangements for the reception of applicants should be made with due respect for human dignity. Processing of visa applications should be conducted in a professional and respectful manner and be proportionate should not go beyond what is necessary in order to achieve the objectives pursued.

810/2009 recital 7 (adapted)

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(32) Member States should ensure that the quality of the service offered to the public is of a high standard and follows good administrative practices. They should allocate appropriate numbers of trained staff as well as sufficient resources in order to facilitate as much as possible the visa application process. Member States should ensure that a one-stop principle is applied to all visa applicants should only appear in one location for the purpose of lodging the application . This should be without prejudice to the possibility of carrying out a personal interview with the applicant.

810/2009 recital 13 (adapted)

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(33) In order to facilitate the procedure, Regulation (EC) No 810/2009 provides for several forms of cooperation should be envisaged, such as limited representation, co-location, common application centres, recourse to honorary consuls and cooperation with external service providers, taking into account in particular data protection requirements set out in Directive 95/46/EC among Member States aimed at, on the one hand, allowing Member States to pool resources and on the other, at enhancing the consular coverage for the benefit of applicants . Member States should, in accordance with the conditions laid down in this Regulation, determine the type of organisational structure which they will use in each third country. Flexible rules should be established to allow Member States to optimise the sharing of resources and to increase consular coverage. Cooperation among Member States ("Schengen Visa Centres"), could take any form adapted to local circumstances aiming at increasing geographical consular coverage, reducing Member States' costs, increasing the visibility of the European Union and improving the service offered to visa applicants.

810/2009 recital 4 (adapted)

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(34) Member States should be present or represented for visa purposes in all third countries whose nationals are subject to visa requirements. Member States should aim at enlarging the consular coverage. Member States lacking their own consulate in a given third country or in a certain part of a given third country should therefore endeavour to conclude representation arrangements in order to avoid a disproportionate effort on the part of visa applicants to have access to consulates.

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(35) Representation arrangements should be streamlined and obstacles for the conclusion of such arrangements among Member States should be avoided and the representing Member State should be responsible for carrying out the entire processing of visa applications without involvement of the represented Member State.

810/2009 recital 14

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(36) It is necessary to make provision for situations in which a Member State decides to cooperate with an external service provider for the collection of applications. Such a decision may be taken if, in particular circumstances or for reasons relating to the local situation, cooperation with other Member States in the form of representation, limited representation, co-location or a Common Application Centre proves not to be appropriate for the Member State concerned. Such arrangements should be established in compliance with the general principles for issuing visas and with the data protection requirements set out in Directive 95/46/EC. In addition, the need to avoid visa shopping should be taken into consideration when establishing and implementing such arrangements.

810/2009 recital 15

Where a Member State has decided to cooperate with an external service provider, it should maintain the possibility for all applicants to lodge applications directly at its diplomatic missions or consular posts.

810/2009 recital 16 (adapted)

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(37) A Member State should cooperate with an external service provider on the basis of a legal instrument which should contain provisions on its the exact responsibilities of the latter , on the Member State's direct and total access to its the premises of the external service provider , information for applicants, confidentiality and on the circumstances, conditions and procedures for suspending or terminating the cooperation. Member States should report to the Commission annually on the cooperation with external service providers, including the monitoring of the service providers.

810/2009 recital 17

This Regulation, by allowing Member States to cooperate with external service providers for the collection of applications while establishing the one-stop principle for the lodging of applications, creates a derogation from the general rule that an applicant must appear in person at a diplomatic mission or consular post. This is without prejudice to the possibility of calling the applicant for a personal interview.

810/2009 recital 19

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(38) Statistical data are an important means of monitoring migratory movements and can serve as an efficient management tool. Therefore, such data should be compiled regularly in a common format. Detailed data on visas should be collected in view of compiling comparative statistics to allow for evidence-based evaluation of the implementation of this Regulation.

810/2009 recital 23 (adapted)

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(39) The general public should be given all relevant information in relation to the application for a visa and the visibility and uniform image of the common visa policy should be improved. To this end A a common Schengen visa Internet site is to should ՠ be established to improve the visibility and a uniform image of the common visa policy and a common template for Member States' information to the public should be drawn up . Such a site will serve as a means to provide the general public with all relevant information in relation to the application for a visa.

810/2009 recital 18 (adapted)

(40) Local Schengen cooperation is crucial for the harmonised application of the common visa policy and for proper assessment of migratory and/or security risks. Given the differences in local circumstances, the operational application of particular specific legislative provisions should be assessed among Member States diplomatic missions and consular posts in individual locations in order to ensure a harmonised application of the legislative provisions to prevent visa shopping and different treatment of visa applicants.

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(41) If there is no harmonised list of supporting documents in a given location, Member States are free to define the exact supporting documents to be submitted by visa applicants in order to prove the fulfilment of the entry conditions required by this Regulation. Where such a harmonised list of supporting documents exists, in order to provide facilitations for visa applicants, Member States should be allowed to provide certain exemptions from that list when major international events are organised in their territory. These events should be large scale and of particular importance due to their tourism and/or cultural impact, such as international or universal exhibitions and sports championships.

810/2009 recital 27 (adapted)

(42) When a Member State hosts the Olympic Games and the Paralympic Games, a particular specific scheme facilitating the issuing of visas to members of the Olympic family should apply.

810/2009 recital 20

The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission[18].

810/2009 recital 21

In particular, the Commission should be empowered to adopt amendments to the Annexes to this Regulation. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation, inter alia, by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

810/2009 recital 22

In order to ensure the harmonised application of this Regulation at operational level, instructions should be drawn up on the practice and procedures to be followed by Member States when processing visa applications.

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(43) In order to adapt to changing circumstances the common list of third countries whose nationals are required to be in possession of an airport transit visa when passing through the international transit area of airports situated on the territory of the Member States and the list of residence permits entitling their holder to transit through the airports of Member States without being required to hold an airport transit visa, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission. It is of particular importance that the Commission carry out appropriate consultatoins during its preparatory work, including at expert level.

(44) In order to ensure uniform conditions for the implementation of this Regulation, as regards the establishment of operational instructions on the practices and procedures to be followed by Member States when processing visa applications, lists of supporting documents to be applied in each jurisdiction, mandatory entries on the visa sticker, rules on affixing the visa sticker, and rules for issuing visas at the border to seafarers , implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council[19].The examination procedure should be used for the adoption of such implementing acts.

810/2009 recital 26 (adapted)

(45) Bilateral agreements concluded between the Community Union and third countries aiming at facilitating the processing of applications for visas may derogate from the provisions of this Regulation.

810/2009 recital 30

(46) The conditions governing entry into the territory of the Member States or the issue of visas do not affect the rules currently governing recognition of the validity of travel documents.

810/2009 recital 28 (adapted)

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(47) Since the objective of this Regulation, namely the establishment of the procedures and common conditions and procedures for issuing visas for transit through or intended stays in the territory of the Member States not exceeding three months 90 days in any six-month 180 days period, cannot be sufficiently achieved by the Member States and can therefore only be better achieved at Community Union level, the Community Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on the European Union (TEU) . In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective this objective .

810/2009 recital 29 (adapted)

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(48) This Regulation respects fundamental rights and observes the principles recognised in particular by the Council of Europes Convention for the Protection of Human Rights and Fundamental Freedoms and 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 of Fundamental Righs of the European Union .

810/2009 recital 31 (adapted)

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(49) In accordance with Articles 1 and 2 of the Protocol No 22 on the Position of Denmark annexed to the Treaty on European Union TEU and to the Treaty establishing the European Community on the Functioning of the European Union (TFEU) , Denmark does is not take taking part in the adoption of this Regulation and is not bound by it, or subject to its application. Given that this Regulation builds on upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the date of adoption of Council has decided on this Regulation whether it will implement it in its national law.

810/2009 recital 32 (adapted)

(50) As regards Iceland and Norway, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement concluded between the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association of those two States with the implementation, application and development of the Schengen acquis[20] which fall within the area referred to in Article 1, point B of Council Decision 1999/437/EC[21] on certain arrangements for the application of that Agreement.

810/2009 recital 33 (adapted)

An arrangement should be made to allow representatives of Iceland and Norway to be associated with the work of committees assisting the Commission in the exercise of its implementing powers under this Regulation. Such an arrangement has been contemplated in the Exchange of Letters between the Council of the European Union and Iceland and Norway concerning committees which assist the European Commission in the exercise of its executive powers[22], annexed to the abovementioned Agreement. The Commission has submitted to the Council a draft recommendation with a view to negotiating this arrangement.

810/2009 recital 34

(51) 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 Confederations association with the implementation, application and development of the Schengen acquis[23], which fall within the area referred to in Article 1, point B, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC[24] on the conclusion of that Agreement.

810/2009 recital 35 (adapted)

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(52) 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 concluded between the European Union, the European Community and the Swiss Confederation on the Swiss Confederations association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point B, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/261/EC 2011/350/EU[25] on the signing conclusion of that Protocol.

154/2012 recital 11

(53) As regards Cyprus, this Regulation constitutes an act building upon or otherwise related to the Schengen acquis, within the meaning of Article 3(12) of the 2003 Act of Accession.

154/2012 recital 12

(54) 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(12) of the 2005 Act of Accession.

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(55) 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.

810/2009 recital 36

(56) 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 of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis[26]. The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application.

810/2009 recital 37 (adapted)

(57) 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 of 28 February 2002 concerning Irelands request to take part in some of the provisions of the Schengen acquis [27]. Ireland is therefore not taking part in the adoption of the Regulation and is not bound by it or subject to its application,

810/2009 recital 38 (adapted)

This Regulation, with the exception of Article 3, constitutes provisions building on the Schengen acquis or otherwise relating to it within the meaning of Article 3(2) of the 2003 Act of Accession and within the meaning of Article 4(2) of the 2005 Act of Accession,

810/2009 (adapted)