The reciprocity mechanism to be implemented if a third country listed in Annex II to Council Regulation (EC) No 539/2001 (2) applies a visa requirement for nationals of at least one Member State needs to be adapted in the light of the entry into force of the Treaty of Lisbon and of the case-law of the Court of Justice of the European Union on secondary legal bases. In addition, that mechanism needs to be adapted to provide for a Union response as an act of solidarity, if a third country listed in Annex II to Regulation (EC) No 539/2001 applies a visa requirement for nationals of at least one Member State.
(2)
Upon receipt of a notification from a Member State that a third country listed in Annex II to Regulation (EC) No 539/2001 applies a visa requirement for nationals of that Member State, all Member States should react in common, thus providing a Union response to a situation which affects the Union as a whole and subjects its citizens to differing treatment.
(3)
Full visa reciprocity is an objective which the Union should pursue in a proactive manner in its relations with third countries, thus contributing to improving the credibility and consistency of the Union's external policy.
(4)
This Regulation should establish a mechanism for the temporary suspension of the exemption from the visa requirement for a third country listed in Annex II to Regulation (EC) No 539/2001 ("the suspension mechanism") in an emergency situation, where an urgent response is needed in order to resolve the difficulties faced by at least one Member State, and taking account of the overall impact of the emergency situation on the Union as a whole.
(5)
For the purposes of the suspension mechanism, a substantial and sudden increase indicates an increase exceeding a threshold of 50 %. It may also indicate a lower increase if the Commission deems it applicable in the particular case notified by the Member State concerned.
(6)
For the purposes of the suspension mechanism, a low recognition rate indicates a recognition rate of asylum applications of around 3 or 4 %. It may also indicate a higher recognition rate if the Commission deems it applicable in the particular case notified by the Member State concerned.
(7)
It is necessary to avoid and counter any abuse resulting from exemption from the visa requirement for short-stay visits for nationals of a third country where they pose a threat to the public policy (ordre public) and internal security of the Member State concerned.
(8)
This Regulation should provide a legal basis for the visa requirement or for the exemption from that requirement for holders of travel documents issued by certain entities recognised by the Member State concerned as subjects of international law which are not intergovernmental international organisations.
(9)
As the rules applicable for refugees and stateless persons introduced by Council Regulation (EC) No 1932/2006 (3), do not apply to such persons when they are residing in the United Kingdom or Ireland, it is necessary to clarify the situation concerning the visa requirement for certain refugees and stateless persons who reside in the United Kingdom or in Ireland. This Regulation should leave Member States free to decide on the exemption from the visa requirement for that category of persons in compliance with their international obligations. The Member States should notify such decisions to the Commission.
(10)
Regulation (EC) No 539/2001 should be without prejudice to application of international agreements concluded by the European Community before the entry into force of that Regulation which imply the need to derogate from the common visa rules, while taking into account the case-law of the Court of Justice of the European Union.
(11)
In order to ensure the adequate involvement of the European Parliament and of the Council in the second phase of application of the reciprocity mechanism, given the particularly sensitive political nature of the suspension of the exemption from the visa requirement for all the nationals of a third country listed in Annex II to Regulation (EC) No 539/2001 and its horizontal implications for the Member States, the Schengen associated countries and the Union itself, in particular for their external relations and for the overall functioning of the Schengen area, the power to adopt acts in accordance with Article 290 of the Treaty of the Functioning of the European Union should be delegated to the Commission in respect of certain elements of the reciprocity mechanism. Conferring such power on the Commission takes into account the need for political discussion on the Union policy on visas in the Schengen area. It reflects also the need to ensure adequate transparency and legal certainty in the application of the reciprocity mechanism to all the nationals of the third country concerned, in particular through the corresponding temporary amendment of Annex II to Regulation (EC) No 539/2001. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of the relevant documents to the European Parliament and to the Council.
(12)
In order to ensure the efficient application of the suspension mechanism and of certain provisions of the reciprocity mechanism and in particular in order to allow for all relevant factors and the possible implications of the application of those mechanisms to be adequately taken into account, implementing powers should be conferred on the Commission with regard to the determination of the categories of nationals of the third country concerned who should be subject to a temporary suspension of the exemption from the visa requirement within the framework of the reciprocity mechanism, and of the corresponding duration of that suspension, as well as the powers to implement the suspension mechanism. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (4). The examination procedure should be used for the adoption of such implementing acts.
(13)
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 (5) which fall within the area referred to in Article 1, point (B), of Council Decision 1999/437/EC (6).
(14)
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 (7) 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 (8).
(15)
As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol 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 (9) 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 2011/350/EU (10).
(16)
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 (11); the United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application.
(17)
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 (12); Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application.
(18)
Regulation (EC) No 539/2001 should therefore be amended accordingly,
