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Brussels, 24 May 2011

EU Visa policy: ensuring legal certainty and preventing abuse

The proposed amendments to the Regulation on visa requirements and exemptions for nationals of third countries aim at better managing the movement of third country nationals while ensuring that visa free travel does not lead to irregularities or abuse.

In addition to technical modifications and clarifications, the proposal foresees the establishment of a safeguard clause. This mechanism will allow for a temporary suspension of the visa waiver of third-country nationals in exceptional cases of emergency situations.

Why is the Commission amending the visa Regulation?

Throughout the past years, the lists of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement have been amended at several occasions. When introducing or lifting visa obligations for a third country, the current co-decision procedure can take up to a few years. This does not allow for swift decision-making when situations require it.

It has become clear that further, technical modifications to the main text of Regulation (EC) No 539/2001, are needed, e.g. to take account of the Lisbon Treaty, to strengthen legal certainty by providing rules for situations which were not covered yet by the Regulation and to adjust definitions due to recent changes brought by secondary legislation, for instance the Visa Code.

Furthermore, ten years after the integration of the Schengen acquis into the framework of the EU and the establishment of the common visa policy, there is a need to make progress towards further harmonisation of the EU's common visa policy. A harmonised approach is needed with regard to certain categories of people listed under Article 4 of the Regulation and left until now to the unilateral decisions of the Member States (Member States individually have the possibility to exempt different categories of nationals of third countries from visa requirement or to submit to visa obligation nationals of third countries who normally benefit from a visa waiver).

Why is the Commission proposing to introduce a visa safeguard clause?

After the granting of visa liberalization to some Western Balkan countries, several EU Member States were confronted with a considerable influx of persons that travel visa free to the EU and then abuse asylum procedures. In order to prevent the misuse of the visa-free regime for purposes other than the intended short-term travel to the EU, the Commission announced its intention to strengthen the post visa liberalisation monitoring in all Western Balkan countries that achieved visa liberalisation. The Commission now proposes to introduce a general mechanism allowing for temporary suspension of a visa waiver of third-country nationals, when certain conditions are met.

Establishing a safeguard clause will help to preserve the integrity of the visa liberalisation processes and to build credibility vis-à-vis the public. It would provide a general framework for the future, without being related to specific third countries.

When would the clause be applied?

The Commission believes that the visa safeguard clause should be applied only as a temporary measure in clearly defined emergency situations, for example, in case of a sudden high inflow of irregular migrants or a sudden increase of unfounded asylum requests from a third country, where an urgent "visa" response needs to be given to solve the difficulties faced by affected Member States and taking account of the overall impact of the emergency situation on the European Union as a whole.

How would it be implemented?

A decision on the temporary suspension of a visa waiver would by no means be automatic. Following the notification by Member States of an emergency situation, the Commission would assess the situation and the necessity of suspending the visa waiver for a third country. This assessment will take into account the number of Member States affected by the sudden occurrence of any of the situations listed in this proposal and the overall impact of them on the migratory situation in the EU.

Moreover, this visa safeguard clause is complementary to the asylum safeguard clause provided by the Treaty: in certain cases, measures based on the latter may be sufficient to remedy the emergency situation.

The decision to activate the visa safeguard clause would be adopted through the comitology procedure by conferring implementing powers on the Commission. The European Parliament and the Council will have the right of scrutiny.

Does today's proposal introduce new visa requirements/exemptions?

No, it does not. Since its adoption, the Regulation has been amended eight times. All the recent modifications of the Regulation focused on the revision of the positive and the negative visa lists annexed to the Regulation. The present proposal does not touch upon the Annexes of the Regulation.

Possible transfers of third countries from the negative to the positive list or vice versa will be considered in the framework of the next periodical revision of the visa lists of the Regulation envisaged for autumn 2011.

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