The European Parliament adopted by 485 votes to 132 with 21 abstentions, a legislative resolution on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (revision of the suspension mechanism).

The European Parliament’s position adopted at first reading following the ordinary legislative procedure amended the Commission proposal as follows:

Suspension of the exemption from the visa requirement: it is proposed that, by way of derogation from Article 1(2) of Regulation (EC) No 539/2001, the exemption from the visa requirement for nationals of a third country listed in Annex II of the Regulation shall be temporarily suspended as a last resort, based on strict and objective data, such as the following:

• a substantial increase in the number of nationals of that third country refused entry or found to be staying in the Member State's territory without a right thereto;
• a substantial increase in the number of asylum applications from the nationals of that third country for which the recognition rate is low (around 3 or 4% maximum or less if the Commission considers this applicable);
• a decrease of cooperation on readmission with that third country, substantiated by adequate data, in particular a substantial increase in the refusal rate of readmission applications submitted by the Member State to that third country for its own nationals;
• an increase of risks or imminent threat to public policy or internal security of Member States, in particular a substantial increase of serious criminal offences, related to nationals of that third country, substantiated by objective, concrete and relevant information and data provided by competent authorities.

A ‘substantial increase’ indicates an increase exceeding a threshold of 50 %, or a lower increase if the Commission deems it applicable.

Before taking any decision on suspension, the Commission should take into account the situation of human rights in that third country and the possible consequences of a suspension of the visa exemption for that situation.

Notification: the notification of suspension shall state the reasons on which it is based and shall include relevant data and statistics as well as a detailed explanation of the preliminary measures that the Member State concerned has taken with a view to remedying the situation. The Member State concerned may in its notification specify which categories of nationals of the third country should be covered, indicating the detailed reasons therefor. The Commission shall inform the European Parliament and the Council.

Justifying decisions: there are provisions allowing the Commission to take the necessary measures once it has concrete and reliable information taking into account relevant data, reports and statistics, of circumstances justifying the decision on exemption.

The Commission shall inform the European Parliament and the Council promptly, of its analysis.

Monitoring the criteria used in the visa liberalisation with third countries scheme: it is provided that the Commission shall monitor the continuous fulfilment of the specific requirements that were used to assess the appropriateness of a visa liberalisation by the third countries whose nationals are exempt from the visa requirement when travelling to the territory of Member States.

The Commission shall report regularly to the European Parliament and the Council at least once a year, for a period of seven years after the entry into force of visa liberalisation for that third country, or thereafter when the Commission considers it necessary or upon request by the European Parliament or the Council. The report shall focus on third countries for which the Commission considers, based on concrete and reliable information, that certain requirements are no longer fulfilled. Where a report of the Commission shows that one or more of the specific requirements is no longer fulfilled in relation to a particular third country, certain measures shall apply.

Mechanism for the application of the suspension of visa exemption: the Commission, on the basis of examination and analysis, and taking into account the consequences of a suspension of the exemption from the visa requirement for the external relations of the Union and its Member States with the third country concerned, may take the prescribed measures while working in close cooperation with that third country to find alternative long-term solutions. 

These measures may also be taken where a simple majority of Member States have notified the Commission of circumstances referred to above.

Implementing act: the Commission shall adopt an implementing act temporarily suspending the exemption from the visa requirement for the nationals of the third country concerned for a period of nine months. The suspension shall apply to certain categories of nationals of the third country concerned, by reference to the information available, and the Commission will try to efficiently contribute to addressing the circumstances justifying the suspension, while respecting the principle of proportionality. It shall adopt the implementing act within one month of being made aware of the relevant information and in accordance with the criteria set out in the Regulation.

That implementing act shall be adopted in accordance with the examination procedure and shall determine the date on which the suspension of the exemption from the visa requirement is to take effect.

During the period of suspension, the Commission shall establish an enhanced dialogue with the third country concerned with a view to remedying the circumstances in question.

Delegated act: in order to ensure the adequate involvement of the European Parliament and of the Council in the application of the suspension 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 is delegated to the Commission in respect of the temporary suspension of the exemption of the visa requirement for the nationals of the third countries concerned. The Commission should carry out appropriate consultations during its preparatory work, including at expert level, and the European Parliament and the Council should receive all documents at the same time and be informed before the decision is taken.

Accordingly, if the circumstances justifying the first suspension of nine months persist, the Commission may adopt a delegated act at the latest two months prior to the expiry of the nine-month period, temporarily suspending the application of Annex II for a period of 18 months for all the nationals of the third country concerned.

This may be extended by 6 months in the particular circumstances set out in the Regulation.

During the periods of the suspension the nationals of the third country concerned shall be required to be in possession of a visa when crossing the external borders of the Member States.

The power to adopt delegated acts shall be conferred on the Commission for a period of five years from entry into force of the Regulation. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

The Council or the European Parliament may revoke the delegation of power at any time. A delegated act shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object.

Information for Parliament: before the end of the period of validity of the delegated act, the Commission, shall submit a report to the European Parliament and to the Council, accompanied by a legislative proposal for amending the Regulation in order to transfer the reference to the third country concerned from Annex II to Annex I (third country under a visa obligation).

Implementation report: 4 years after the entry into force of the Regulation, the Commission shall submit a report to the European Parliament and to the Council assessing the effectiveness of the suspension mechanism and shall, if necessary, submit a legislative proposal for amending this Regulation. The European Parliament and the Council shall act on such a proposal by the ordinary legislative procedure.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Agustín DÍAZ DE MERA GARCÍA CONSUEGRA (EPP, ES) on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (revision of the suspension mechanism).

The committee recommended that the European Parliament’s position adopted at first reading following the ordinary legislative procedure should amend the Commission proposal as follows:

Suspend the exemption from the visa requirement: it is proposed that, by way of derogation from Article 1(2) of Regulation (EC) No 539/2001, the exemption from the visa requirement for nationals of a third country listed in Annex II of the Regulation shall be temporarily suspended as a last resort, based on strict and objective data, for instance in cases where there is an increased risk or imminent threat to the public policy or internal security of Member States.

Examine the situation of human rights in the country concerned: the Commission should, before taking any decision to temporarily suspend a visa exemption for nationals of a third country, examine the situation of human rights in that third country. A robust set of guarantees and measures are needed to protect human rights, along with reports and statistics supplied by the European agencies and the competent law enforcement authorities.

Delegation of power: in order to ensure the adequate involvement of the European Parliament and of the Council in the application of the suspension 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, it is proposed that power should be delegated to the Commission to adopt acts in accordance with Article 290 of the Treaty of the Functioning of the European Union in respect of the decision temporarily suspending the application of Annex II to Regulation (EC) No 539/2001 in relation to the third country concerned.

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 should also reflect also the need to ensure adequate transparency and legal certainty in the application of the suspension mechanism to all the nationals of the third country concerned.

Against this background, the Commission should carry out appropriate consultations during its preparatory work, including at expert level and keep the European Parliament and the Council duly informed.

The delegated act shall determine a date on which the suspension of the application is to take effect. That amendment shall be made through inserting next to the name of the third country in question a footnote indicating that the exemption from the visa requirement is suspended.

Monitoring of the evaluation criteria used to assess visa liberalisation by third countries: the Commission shall monitor the continuous fulfilment of the specific criteria which were used to assess the appropriateness of a visa liberalisation by the third countries whose nationals are exempt from the visa requirement when travelling to the territory of Member States as a result of a successful conclusion of a visa liberalisation dialogue conducted between the Union and that third country. The report shall focus on third countries for which the Commission considers, based on concrete and reliable information, that certain criteria are no longer fulfilled.

PURPOSE: to revise the suspension mechanism of Council Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement.

PROPOSED ACT: Regulation of European Parliament and of the Council.

ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.

BACKGROUND: Council Regulation (EC) No 539/2001 lists the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States and those whose nationals are exempt from that requirement.

The Regulation is part of the EU's common visa policy for short stays of up to 90 days in any 180-day period.

Suspension mechanism: the suspension mechanism in Article 1a of Regulation (EC) No 539/2001 allows the temporary suspension of the visa exemption for nationals of a third country in certain emergency situations, as a last resort. It can be triggered by any Member State by notifying the Commission that it is confronted, over a six-month period, in comparison with the same period in the previous year or with the last six months prior to the visa liberalisation of that country, with circumstances leading to an emergency situation which the Member State in question cannot remedy on its own. These circumstances are namely a substantial and sudden increase in the number of:

• nationals of that third country found to be illegally overstaying  in the Member State in question;
• unfounded asylum applications from the nationals of that third country, where such increase is leading to specific pressures on the Member State’s asylum system;
• rejected readmission applications submitted by the Member State to that third country for its own nationals.

The Commission may decide that action is needed, taking into account the consequences of the suspension of the visa exemption for the external relations of the Union and its Member States with the third country concerned, while working in close cooperation with that third  country to find alternative long-term solutions.

In that case, the Commission has three months from the receipt of the notification to adopt an implementing act temporarily suspending the exemption from the visa requirement for the nationals of the third country concerned, for a period of six months. 

Before the expiry of this six-month period, the Commission must submit a report to the European Parliament and the Council. This report may be accompanied by a legislative proposal to amend Regulation (EC) No 539/2001 to transfer the third country in question to the list of visa-required countries (Annex I), and thus to put its citizens permanently under the visa requirement. In such case, the temporary suspension of the visa waiver may be extended by a maximum period of 12 months.

Migration crisis: in the context of the current migratory situation in the European Union and of the successful conclusion of several visa liberalisation dialogues with neighbouring countries (Georgia, Ukraine, Kosovo, Turkey), several Member States have questioned whether the existing visa suspension mechanism provides for the necessary flexibility to act in certain situations of urgency.

In particular they have argued that: 

• the possible grounds for suspension are too limited, and for instance do not include the failure of a third country to cooperate on readmission of third-country nationals having transited through that third country, where a readmission agreement concluded between the Union or a Member State and the third country concerned provides for such a readmission obligation;
• the initiative to trigger the suspension mechanism by means of a notification, which in the Regulation lies solely with Member States, should be extended to Commission;
• the reference periods and the deadlines are too long, which does not allow for a fast reaction in emergency situations. Taking into account the Commission's recent proposals for visa liberalisation of Georgia, Ukraine, Turkey and Kosovo and the recent discussions with Member States, the Commission has decided to present a proposal to amend Regulation (EC) No 539/2001 to revise the current suspension mechanism.

This is the aim of this proposal.

CONTENT: the main objective is to strengthen the suspension mechanism by making it easier for Member States to notify circumstances leading to a possible suspension and by enabling the Commission to trigger the mechanism on its own initiative.

This proposal for the revision of the suspension mechanism includes the following elements:

The definition of the circumstances which Member States can notify to the Commission has been amended to clarify that the suspension mechanism cannot only be used in "emergency situations, as a last resort", but more generally in case the visa liberalisation leads to a serious increase of irregular migration, unfounded asylum applications or rejected readmission applications.

The reference period for comparing this situation with the situation of the previous year or before visa liberalisation, is shortened from six to two months. It is sufficient for the increase of irregular migration, unfounded asylum applications or rejected readmission applications to be "substantial", whereas the increase must currently be "sudden and substantial".

The grounds for possible suspension which can be notified should include rejected readmission applications for nationals of another third country having transited through that third country, where a readmission agreement concluded between the Union or a Member State and the third country concerned provides for such a readmission obligation.

Other salient issues:

- the limitation in time (to seven years) of the possibility to compare the current situation with the situation before visa liberalisation is abolished;

- the Commission is given the possibility to trigger the suspension mechanism on its own initiative if it has concrete and reliable information of any of the circumstances which Member States can notify or that the third country is – in a more general manner – not cooperating on readmission, in particular where an EU-level readmission agreement has been concluded with that third country. This failure to cooperate can, for instance, consist in: (i) rejecting or not replying to readmission applications, (ii) failing to issue travel documents for the purposes of return within deadlines specified in the agreement or not accepting European travel documents issued following the lapse of deadlines specified in the agreement, (iii) terminating or suspending the agreement. – Where the Commission, after having examined the circumstances notified (or of which it has received concrete and reliable information), decides that action is needed, the deadline for the adoption of the implementing act temporarily suspending the visa exemption for the third country concerned is reduced from three to one month.

Territorial provisions: the proposed Regulation constitutes a development of provisions of the Schengen acquis. Therefore, the United Kingdom and Ireland shall not participate in the adoption of the Regulation, nor shall it be bound or subject to its application.

The amended Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.