Explanatory Memorandum to COM(2011)516 - Amendment of Regulation 810/2009 establishing a Community Code on Visas (Visa Code) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)516 - Amendment of Regulation 810/2009 establishing a Community Code on Visas (Visa Code). |
|---|---|
| source | COM(2011)516  |
| date | 30-08-2011 |
REGULATION (EC) NO 810/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 13 JULY 2009 ESTABLISHING A COMMUNITY CODE ON VISAS i became applicable on 5 April 2010. In accordance with Article 51 of the Visa Code operational instructions on the practical application of the provisions of the Regulation have been drawn up by the Commission Decision establishing the Handbook for the processing of visa applications and the modification of issued visas adopted on 19.3.2010 i.
During the preparation of the Handbook, it has been observed that the formulation of of Article 3 i (b) and (c) was unclear:
1. in Article 3 i (b) relating to the exemption from airport transit visa requirements of holders of residence permits issued by specific countries, the reference to Member States of the European Union which do not take part in the adoption of the present Regulation and to the Member States of the European Union which do not yet apply the provisions of the Schengen acquis in full (currently Bulgaria, Ireland, Cyprus, Romania and United Kingdom) has been omitted;
2. in Article 3 i (c) relating to the exemption from airport transit visa requirements of holders of visas issued by specific countries, the reference to the Member States of the European Union which do not take part in the adoption of the present Regulation and to the Member States of the European Union which do not yet apply the provisions of the Schengen acquis in full (currently Bulgaria, Ireland, Cyprus, Romania and United Kingdom) has been omitted.
3. Additionally, during the preparation of the Handbook, it has been observed that the formulation of the current wording of Article 3 i (c) allows for two interpretations, and it should be clarified that holders of visas issued by the Member States of the European Union which do not take part in the adoption of the present Regulation and by the Member States of the European Union which do not yet apply the provisions of the Schengen acquis in full and by specific third countries are exempt from the airport transit requirements when they travel to the visa issuing country or to any other third country and, after having used the visa, when they return from the issuing state (but not when they return from any other third country).
4. The reference to states party to the Agreement on the European Economic Area is redundant as the latter are either Member States covered by Article 3 i (a) or associated countries to whom Article 3(5)(a) applies via the respective association agreement or protocol..
Before April 2010, the Common Consular Instructions (CCI) and Joint Action 96/197/JHA i, set out the provisions on the third countries whose nationals were subject to the ATV requirement. Those provisions applied to all persons of a given nationality except if they held a residence permit issued by Ireland, the United Kingdom or by certain third states (Canada, USA, Japan etc) as it was assumed that such persons would not present a risk of illegal immigration for the Schengen States.
In 2008, certain Member States took the initiative to amend the CCI, Annex 3, to provide that for the same reason also holders of visas issued by certain third states should be exempt from the ATV requirement when the visa holder travelled to the third state (or Ireland or the United Kingdom) that issued the visa or to any other third state. Similarly, the person concerned would be exempt from the ATV requirement when he returned from the visa issuing third state after having used the visa. He would not be exempt when returning from any other third country than the issuing country because given that he no longer holds a visa valid for one of the countries referred to in Article 3 i (c), it can no longer be assumed that he does not present a risk of illegal immigration for the Schengen States.
These provisions were to be adopted in the Visa Code, but essential words were omitted in Article 3 i (b) and (c) with the effect that the legal situation is unclear.
During the drafting of the Handbook, it was considered to remedy the problem via guidelines that express this intention. As the Handbook cannot create legally binding obligations on Member States, it is necessary to amend the Visa Code to establish legal certainty and a harmonised application of the rules. Such clarification is of practical importance for individual travellers and for airline companies.
The proposal is limited to the technical amendment consisting in clarifying the existing text.
Contents
The two aspects covered by the proposal have been discussed in the Visa Committee and in the Visa Working Party and Member States have supported the Commission taking the initiative for a limited amendment of the Visa Code.
Article 3 i (b) and (c) of the Visa Code should be amended to clarify that:
- third country nationals holding a valid visa or residence permit issued by a Member State not applying the common visa policy in full are to be covered by the ATV exemption;
- the ATV exemption covers the persons holding a valid visa when they travel to the third country that issued the visa, to any other third country, and when having used the visa they return from the third country that issued the visa.