Developing the Acquis on "Local Border Traffic" - Hoofdinhoud

COUNCIL OF

THE EUROPEAN UNION Brussels, 16 September 2002 (17.09) (OR. fr)

11933/02

VISA 128 COMIX 505

COVER NOTE

from : the Secretary-General of the European Commission,

signed by Mr Sylvain BISARRE, Director

date of receipt : 11 September 2002 to : Mr Javier SOLANA, Secretary-General/High Representative

Subject : Developing the Acquis on "Local Border Traffic"

Delegations will find attached Commission document SEC(2002) 947.

________________________

Encl.: SEC(2002) 947

EN

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 9.9.2002 SEC(2002) 947

COMMISSION STAFF WORKING PAPER

Developing the Acquis on 'Local Border Traffic'

COMMISSION STAFF WORKING PAPER

Developing the Acquis on 'Local Border Traffic'

1. INTRODUCTION

A clear and precise definition of 'local border traffic' (also called 'small', 'minor' or 'excursion' traffic) does not currently exist. The expression is nevertheless used in

Article 3, paragraph 1 of the Schengen Implementing Convention (SIC) 1 , which

specifies that exceptions to the obligation of crossing the external border at authorised border crossing points and during the fixed opening hours can be envisaged in the framework of "arrangements for local border traffic" on the basis of

rules to be "adopted by the [Schengen] Executive Committee" 2 .

Such rules defining "exceptions and arrangements for local border traffic" have actually never been adopted, neither in the intergovernmental framework of the Schengen Convention, nor after the integration of the Schengen acquis into the legal and institutional framework of the European Union following the entry into force of

the Amsterdam Treaty (on 1 st May 1999).

The only existing acquis is represented by bilateral agreements on local border traffic that some Member States have concluded with neighbouring third countries (see below, § 2.2). However, these agreements are quite diverse in many respects, e. g.: the geographical scope, the categories of people targeted, as well as the types of documents issued/requested for the crossing of the border. Although a certain degree of differentiation can be, in some cases, justified (for instance, the determination of the 'border area' is certainly influenced by the geographical situation), any exception and derogation to Community rules on crossing the external borders should follow

and comply with minimum common principles.

The development of the acquis on 'local border traffic' and the need to set common minimum rules has thus been identified, in the Commission Communication defining

guidelines for an integrated border management 3 , as one of the issues that need to be

addressed in order to complete and precise the legal framework ('a common corpus

of legislation') on external borders.

The need to clarify the rules on local border traffic is also amongst the recommendations for the further development of the Schengen acquis made by the

1 Convention implementing the Schengen agreement of 14 June 1985 between the Governments of the

States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, OJ L 239, 22.9.2000, p. 19.

2 Since the entry into force of the Amsterdam Treaty on 1 May 1999, all functions and competencies of

the Schengen Executive Committee have been taken over by the Council of the European Union.

3 Communication from the Commission to the Council and the European Parliament - Towards

integrated management of the external borders of the Member States of the European Union, COM(2002)233 final i, 7 May 2002.

Schengen-Evaluation working party, which have been approved by the Justice and

Home Affairs Council on 28 February 2002. 4

Furthermore, this issue assumes a particular importance in the perspective of enlargement, since cross-border movements between candidate countries as well as between candidate countries, on the one side, and their neighbours, on the other side, are very important in number. Efficient rules for ‘local border traffic’ will promote economic development of border regions and serve as an instrument to reduce gaps in economic standards. Moreover, transfrontier workers are often a needed element

in the border regions of the Member States.

Secure EU external borders shall thus not mean borders closed to economic, social and cultural exchanges, particularly with third countries which are geographically the closest. It is clear, however, that any of the options suggested in this paper in order to facilitate the crossing of the borders for 'local border traffic' purposes, will take into account both the need to prevent illegal immigration as well as potential threats to

security 5 posed by criminal activities.

It should also be born in mind that, unlike the present situation, most of the States neighbouring future EU Member States are countries whose nationals must be in possession of a visa when entering the EU. This circumstance will obviously have to be taken into account when defining rules specifying the conditions and arrangements for 'local border traffic'. Consequently, a clear distinction will be made between the regime applicable with, on the one hand, third countries whose nationals

are visa-exempted and, on the other hand, third countries whose nationals are visaobligated (see below, § 3.2).

Given the direct relevance of this latter category to most of the candidate countries, the Commission intends to involve the candidate countries in the development of criteria on local border traffic. Therefore, the Commission is passing them a copy of this working document with the request to inform the Commission of any comments

they may wish to make.

Although the situation of transfrontier workers is also mentioned, this paper - and any legislative initiative that will follow - does not intend to deal with aspects related to the criteria for issuing a work permit, to double taxation or social security issues, which will remain regulated on the basis of the relevant Community acquis as well as

of international and national law.

On the basis of the outcome of the discussions with the Member States on the different options put forward in this working paper, and the comments made by the candidate countries, the Commission intends to present a legislative initiative laying down basic uniform rules regulating 'local border traffic', in order to fill the legislative void in this area and set common minimum standards to be complied with in all agreements concluded with third countries. This initiative will not change the

4 See doc. 5987/02 SCH-EVAL 5 COMIX 82 of 5 February 2002 and doc. 6578/02 SCH-EVAL 7

COMIX 140 of 22 February 2002. In the recommendation on 'minor [SIC] border traffic', it is pointed out that "particular attention [should] be paid to the legal requirements for such agreements [on local border traffic], the information to be provided to the other Member States, the geographical

delimitation, the target groups of such facilitation, the eventual economic purposes etc".

5 For a definition of 'security' (at external borders), see Annex 1 of Communication (2002)233.

basic principles of the current EU acquis on visas and external borders and therefore will not affect the alignment with the current acquis in these areas, on which the candidate countries have taken commitments in the course of the negotiations in

view of their membership of the EU.

Due to the specific situation of Kaliningrad, mainly concerning transit traffic between Kaliningrad and the mainland of the Russian Federation, the developments in this regard will be treated as a separate issue and will thus not be discussed in this

working paper.

2. CURRENT SITUATION

2.1. The limited acquis on local border traffic

The current acquis on external borders has essentially been developed in the framework of Schengen, namely in Articles 3-8 SIC and in the Common Manual on

external border controls (CM) 6 .

Although no instrument giving full implementation to Article 3(1) SIC has ever been adopted, some of the exceptions and special arrangements mentioned in the above article in relation to local border traffic can be found in different parts of the

Common Manual.

In Part I, point 1.3 CM, it is indeed specified that, “by way of exception”, the crossing of the border "at places other than authorised border crossing points and outside fixed hours" is permitted, amongst others, to “persons in respect of whom provision is made for the appropriate permits under the bilateral agreements on local

border traffic, known in Italy as 'local border traffic' or 'excursion traffic'" 7 .

Point 1.3.3, Part I CM further states that exemptions from the obligation to cross the border at authorised border crossing points "in connection with local border traffic […] are granted in accordance with the bilateral agreements concluded by the Member States with bordering third States" (see below, § 2.2). In this respect, it shall also be pointed out that Article 136(3) of the Schengen Convention exempts local border traffic agreements from the general obligation to request the prior consent of all the other Schengen States before concluding border agreements on abolition and simplification of checks with third countries “in so far as those agreements comply with the exceptions and arrangements [that should have been] adopted under Article

3.1”. The other Schengen States shall, in any case, be informed.

The CM also mentions cross-border workers, specifying that their statute is regulated by national legislation and that they are, in principle, submitted to the same level of controls as other normal travellers. It is nevertheless pointed out that this category of persons – as well as other bona fide persons crossing the borders regularly at the same border crossing point (BCP) - may be submitted to "random checks", provided that they are well known to border guards and that they have been previously

6 Decision SCH/Com-ex(99)13 du 28 April 1999.

7 This part of the CM has been recently modified by Council decision 2002/352/EC i of 25 April 2002,

entered into force on 1 June 2002.

checked in the Schengen Information System (SIS) and other national databases

(CM, part II, point 1.3.5.3. and point 6.7.2) 8 .

The possibility of allowing crossing with special documents is not mentioned in the CM, which only refers to practical arrangements to facilitate the crossing of the border for the purposes of local border traffic. However, it should be noted that, in the existing bilateral agreements on local border traffic, the crossing of the border is usually allowed to border residents either on the basis of a 'special border permit'

(carte frontalière) or of an identity card (see below, § 2.2).

2.2. Member States' practice: Existing bilateral agreements with third countries

Some of the current Member States (namely Austria, France, Germany and Italy) have concluded agreements with neighbouring third countries on local border traffic,

which are reproduced in Annex 3 of the Common Manual 9 . A comparative table on

the content of the existing local border traffic agreements between Member States and their neighbouring countries is annexed to this paper (see Annex I). As far as candidate countries are concerned, an overview of their bilateral agreements on local

border traffic is given in Annex II.

Generally, the “border area ” covered by the agreement is clearly specified by listing the municipalities involved, by determining the extension of the area (10 to 25 km

from the border) or by using both criteria.

It shall be noted that all the agreements concluded by current EU Member States are

with visa-exempted third countries (i.e., Switzerland 10 , Poland, Slovakia, Slovenia 11

and Czech Republic). However, their personal scope varies: some cover only nationals of the contracting parties (D/PL; F/CH; I/SL; Ö/SL), some others also include visa-exempted third-country nationals residing in the border area (D/CH;

D/CZ). Two of the agreements with Switzerland (Ö/CH; I/CH) refer to “thirdcountry nationals and stateless persons” residing in the border area, without further

specifying whether visa-exempted or not. 12 The situation is clearly quite different

compared with the situation at the borders between candidate countries/future MS

and their neighbouring countries, most of which are visa-obligated States 13 .

8 It is also added that, however, “[T]horough checks must be carried out on this group of persons from

time to time, without warning at irregular intervals" (CM, Part II, Point 1.3.5.3, last sentence).

9 On the basis of Council decision 2002/352/EC i, Annex 3 and Annex 2 (listing the authorised border

crossing points) have been deleted and therefore, as from 1 June 2002, they are no longer part of the Common Manual.

10 As regards Switzerland, it shall be noted that, following the entry into force of the Agreement between

the European Community and its Member States, of the one part, and the Swiss Federation, of the other, on the free movement of persons (OJ L 114/6, 30.04.2002), on 1 June 2002, Swiss nationals will enjoy the same rights as EU citizens as regards entry, residence, access to work as employed persons, establishment as self-employed persons, right to stay as well as regarding living, employment and working conditions. See also Article 7 and Article 13 of Annex I to the above-mentioned agreement

concerning, respectively, 'employed frontier workers' and 'self-employed frontier workers'.

11 The agreement between Italy and Slovenia (1982) was originally concluded with the (former) Republic

of Yugoslavia and it was then decided to apply it, mutatis mutandis, to Slovenia.

12 The agreement between Austria and Switzerland specifies that the contracting party issuing a carte frontalière to a 3 rd country national or stateless person shall notify it to the other party within a week.

13 With the exception of Croatia, which is the only third country neighbouring a future EU MS currently

visa-exempted by all Schengen States: see Annexes I and II of Regulation n°539/2001 as modified by Regulation n° 2414/2001, OJ L 81/1 of 21.3.2001 and OJ L 327/1 of 12.12.2001 respectively.

Concerning the documents requested for crossing the border, there is no uniformity either. In some cases, special documents are issued to people residing in the border area: for instance, the agreement between Germany and Switzerland provides for the possibility of issuing a border permit (“carte frontalière”) to persons (both nationals

and third-country nationals) residing in the border area. This carte frontalière 14 , valid

for 5 years and renewable once, gives the right to the holder to cross the border any time and to stay in the border area of the other party for a maximum of three days. Similar provisions are included in the agreement between Austria and Switzerland

and between Italy and Slovenia.

There are, however, other agreements (i.e., between Germany and Poland or the Czech Republic), where border crossing and a maximum stay of 7 days on the territory of the other party is allowed on the basis of a valid travel document (Personalausweis or andere Grenzübertrittsdokumente), provided that the place of residence is indicated. It shall be noted that the agreement with the Czech Republic –

which, contrary to the one with Poland, also covers visa-exempted 3 rd country nationals – is the only one containing a readmission clause 15 .

Some of the agreements (D/CH; Ö/CH) also provide for the possibility of issuing

‘laissez-passer’ (mainly for excursions/tourist purposes) 16 allowing the crossing of

the border and the stay for a limited time (5 to 7 days). As the laissez-passer’s aim is to facilitate tourism, the residence in the border area is not requested. In the agreement between Germany and Switzerland, the laissez-passer for excursions and the laissez-passer de transit – contrary to the carte frontalière - cannot be issued to

visa-obligated 3 rd country nationals. The same is provided in the agreement between

Austria and Switzerland where, however, it is also specified that, for humanitarian

reasons, the Ausflugsschein can be issued to visa-obligated 3 rd country nationals as a

way of exception. It shall be pointed out that the laissez-passer for excursions always needs to be accompanied by a ‘pièce d’identité valable’(or 'Personalausweis'),

containing also a photograph, in order to allow the holder to cross the border.

Most of these agreements also provide for practical facilitation for the crossing of the border for border residents, by either indicating ‘special authorised border crossing points’ (D/PL; D/CH; I/SL; Ö/SL) or by giving the possibility of crossing the border

outside official BCPs and hours (D/CH; D/CZ; F/CH; I/CH; Ö/SL).

Finally, some of the agreements (D/CH; Ö/CH) explicitly forbid the exercise of a paid activity during the stay, while some others (I/CH; I/SL;Ö/SL) contain provisions on customs exemptions on certain goods. The only one dealing specifically with the issue of cross border workers is the 1958 agreement between France and

Switzerland 17 , while the 1982 agreement between Italy and Slovenia contain some

provisions related to agricultural workers.

14 The carte frontalière usually contains at least the personal details as well as the photograph of the

holder. In some cases – e.g., in the agreement F/CH – also the place of destination and the authorised BCPs are specified.

15 However, the Schengen States had signed, on 29 March 1991, a readmission agreement with Poland.

16 In the agreement between Italy and Slovenia, what is called ‘lasciapassare (laissez-passer)’ is rather a

‘carte frontalière’, since it is issued only to border residents and is valid for 5 years.

17 See footnote10.

3. POSSIBLE OPTIONS FOR RULES ON LOCAL BORDER TRAFFIC

In order to have a clear and coherent framework for 'local border traffic' at EU level, it seems necessary to define some basic and uniform rules, which will have to be complied with in all agreements with third countries neighbouring a EU Member

State.

Such rules will not be limited to the definition of the exceptions and practical arrangements allowing the crossing of the border outside authorised border crossing points and fixed opening hours. On the basis of the common principles that can be derived from the bilateral agreements concluded by current EU Member States with their neighbours, but also taking into account new types of situations (namely, the possibility of envisaging local border traffic regimes with visa-obligated third

countries), these rules will aim at defining:

– the geographical scope, i.e. the determination of the 'border area';

– the personal scope of local border traffic, i.e. the categories of persons covered;

– the requirements and the conditions to be fulfilled in order to be able to benefit from the 'local border traffic regime' (including travel documents/visas).

Although this paper obviously addresses the issue of local border traffic from the EU point of view, and therefore mainly focuses on the changes to EU legislation that may be necessary, the need to ensure reciprocity shall always be borne in mind. In some cases, this will require the negotiation of agreements with neighbouring third

countries (see for instance below, § 3.2.1).

Another issue to be considered is the opportunity of linking the establishment of a 'local border traffic regime' with the conclusion of a parallel readmission agreement - where this does not already exist - with the neighbouring third country concerned. This could be an important means to ensure that the conclusion of local border traffic

agreements will not lead to an increase of illegal immigration within the EU.

3.1. Geographical scope of local border traffic

One of the first issues to be defined is the determination of the area within which persons benefiting of the local border traffic regime can move and stay, at the

conditions specified below (§ 3.2).

As mentioned above (§ 2.2), there is no uniformity in the delimitation of the 'border area' in the existing bilateral agreements between Member States and neighbouring third countries, since this is also determined by the geographical situation of the

countries involved.

Although it does not seem useful to fix a specific extension of the 'border area', it could be envisaged to define the maximum extension of it for the purpose of 'local border traffic' and then leave to specific arrangements between Member States and the neighbouring third country or countries involved the definition of the precise list of the municipalities, districts, regions which would be covered by the local border

traffic regime.

This delimitation would not affect either the definition of 'frontier zone' for customs

purposes 18 or existing agreements between a Member State and a third country on

fiscal issues, namely those related to the question of double taxation for transfrontier

workers.

3.2. Categories of people benefiting of local border traffic arrangements - Border permits

As regards the personal scope of local border traffic, only the situation of persons resident in the border areas will be addressed here: the laissez-passer or similar authorisations for excursions issued to tourists or other non-residents will therefore

not be the object of the present paper.

Furthermore, it is clear that the situation of neighbouring countries whose nationals are submitted to the visa obligation on the basis of Regulation n° 539/2001, as modified by Regulation n° 2414/2001, is different from that of neighbouring countries whose nationals are visa-exempted and that the two cases shall be analysed and assessed separately, in order to propose the most appropriate solutions. Within this main distinction, different options amongst those proposed below could be chosen for different situations and/or borders. For instance, it will be necessary, in certain respects, to distinguish between local border traffic for work purposes (i.e.,

the situation of transfrontier workers) and for purposes which are not work-related.

3.2.1. Local border traffic arrangements with third countries whose nationals are exempted from the visa obligation

On the basis of the current acquis, the crossing of the EU external borders by visaexempted third-country nationals is allowed on the basis of a valid travel document which is, in principle, an internationally recognised passport suitable for the affixing

of an entry and exit stamp in order to record the length of the visit. 19 All the other conditions listed in Article 5(1), c)-e) 20 of the Schengen Convention have to be

fulfilled as well 21 .

However, taking into account the fact that local border traffic only entails movement within a specifically defined border area and for a limited period of time, it could be envisaged to facilitate the crossing of the border on the basis of the two following

options:

18 See Article 49(2) of Council Regulation n° 918/83 of 28 March 1993 setting up a Community system of

reliefs from customs duty (OJ L 271/31 of 23.9.1983) as well as Article 35(3) of the proposal for a Council Regulation setting out the cases where reliefs from import duties or export duties shall be

granted (COM(94)232 final i).

19 Exceptions to the obligation to affix a stamp on the travel document are provided in the Common

Manual, Part II, point 2.1.5.

20 Third-country nationals shall, namely: produce, if necessary, documents justifying the purpose and

conditions of the intended stay and that they have sufficient means of subsistence, both for the period of the intended stay and for the return to their country of origin or transit (Art. 5(1)c); not be persons for whom an alert has been issued for the purposes of refusing entry (Art. 5(1)(d)); not be considered as a

threat to public policy, national security or the international relations of Schengen States (Art. 5(1)e).

21 On the basis of Article 5(2) SIC, if a Schengen State decides to grant entry to its territory to a thirdcountry

national not fulfilling all the entry conditions - on humanitarian grounds, on grounds of national interest, or because of international obligations - it will have to inform all other Schengen States

accordingly (and the authorisation of entry will be limited to its territory).

A) Allowing border crossing on the basis of an identity card

The possibility of crossing the border on the basis of an identity card is already foreseen in some of the bilateral agreements currently in force, provided that it contains a photograph of the holder and that the residence in the border area is

specified. 22

The peculiarity of 'local border traffic' - and namely, its limitation in space and time - can thus be considered as a sufficient ground for allowing the crossing of the border on the basis of an identity card, exempting the holder from the general obligation of having the travel document stamped. In order to ensure that the holder is actually resident in the border area, it could be envisaged to: a) either require the person to carry an official certificate, issued by the authorities of the place of residence, specifying his/her residence in the border area; b) or foresee a periodic and regular exchange of the lists of border residents between the border authorities of the

countries concerned.

Residents of the border areas would be exempted from fulfilling the conditions provided by Article 5(1)(c) SIC. However, Articles 5(1)(d) and 5(1)(e) SIC would

remain applicable and be checked when crossing the external border 23 .

The identity card would be considered as a 'valid document' authorising the holder to cross the Schengen external border within the meaning of Article 5(1)(a) SIC. However, the possibility of travelling on the basis of an identity card would be strictly limited to the 'border area', and any travelling outside that area would have to comply with normal Schengen rules (i.e., a passport would be required, as well as the

fulfilment of all entry conditions specified above, including Article 5(1)(c)).

As regards the duration of the stay in the border area of the neighbouring country, a maximum stay of seven consecutive days would be in principle allowed, except in

particular circumstances justifying a longer duration of the stay.

B) Creating a special border permit

Some agreements foresee the issuing of a special border permit to residents of the border area. It could therefore be envisaged to create a 'uniform border permit', whose characteristics and issuing conditions would be defined in a legislative

instrument and would be the following:

• a) 

  It would contain at least the personal details, the photograph and the indication of the place of residence of the holder;

• b) 

  Its format would have security features comparable to those established by Regulation n°1030/2002 on the uniform format for residence permits for third

  24

  country nationals ;

22 See, for instance, the agreement between Germany and Poland, where it is also specified that if the

travel document does not indicate the residence, the person concerned shall hold an official certificate indicating the residence - primary or secondary - in a border district.

23 In this respect, the provisions of the Common Manual (namely, Part II, point1.3.5.3) envisaging the

possibility of "random checks" for "those persons who frequently cross the border at the same crossing point" and that are known by border guards, shall be taken into account.

24 OJ L 157/1 of 15.6.2002.

• c) 

  It would be issued by the authorities of the country of residence to nationals and visa-exempted third-country nationals legally residing in its border area. An obligation to consult the national authorities of the neighbouring State prior to the issuing of the permit could also be envisaged;

• d) 

  A minimum period of residence in the border area would be required in order to be issued such a permit;

• e) 

  It would have to be renewed regularly.

As it would be issued by the country of residence, the compliance of the border permit issued by third countries with the principles laid down above should be ensured through an agreement to be negotiated and concluded with the neighbouring countries concerned. Such an agreement would also enable the mutual recognition of the border permit as a valid document to cross the border for local border traffic

purposes.

The border permit would:

• 1) 

  Be considered as a 'valid document' authorising the holder to cross the Schengen external border within the meaning of Article 5(1)(a) SIC;

• 2) 

  Exempt the holder from fulfilling the conditions provided in Article 5(1)(c) SIC when crossing the external border, while being understood that Articles 5(1)(d) and 5(1)(e) SIC would remain applicable;

• 3) 

  Be added to the list of documents on which entry and exit stamps shall not be affixed (CM, Part II, point 2.1.5);

• 4) 

  Entitle the holder to multiple crossings of the common border, with a maximum stay of 7 consecutive days in the border region of the neighbouring State;

• 5) 

  Entitle the holder to cross the border both outside authorised border crossing points and fixed hours, as well as through specific border crossing points, especially reserved to border residents;

• 6) 

  Only allow the holder to travel and stay within the 'border area' of the two neighbouring States.

As regards transfrontier workers - i.e., third-country nationals resident in the frontier zone of a neighbouring country who are employed in the frontier zone of an adjacent Member State and who return each day or at least once a week to the frontier zone of

the neighbouring country 25 - the border permit would take the form of a specific

"permit-transfrontier worker". A proposal for creating such a permit is contained in

25 See the definition given in Article 2(g) of the draft Directive on the conditions of entry and residence of

third-country nationals for the purpose of paid employment and self-employed economic activities, which is in turn inspired by the definition contained in Community instruments covering EC (frontier) workers (see, for instance, Article 8(1)(b) of Directive n°360/68). A definition of 'frontier worker' ("any person whose normal activities require that he should go to the other side of the frontier on his working days") is also contained in Article 49(2) of Regulation n°918/83 and Article 35(3) of the proposal for a

Council Regulation COM(94)232 final i (see footnote 18).

Article 13 of the draft Commission proposal for a Council directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment

and self-employed economic activities (COM(2001)386 final i). 26 In line with the

general principles laid down in the mentioned draft directive, this permit would have the double function of being a work permit and allow the holder to cross the border and stay in the border area for the time needed to exercise the working activity. The

permit would be issued both to employed and self-employed workers.

Although such a permit would obviously be issued by the country where the economic activity is exercised, the other main characteristics envisaged above - namely, letters a), b), d) and e) - for the normal border permit would apply as well to the "permit-transfrontier worker". Additional specific requirements, such as a

minimum duration of the work contract, could be set.

Points 1), 2), 3), 5) and 6) above would also apply.

3.2.2. Local border traffic arrangements with third countries whose nationals are submitted to the visa obligation

Visa exemptions for local border traffic purposes or on grounds of residence in the

border area are currently not foreseen in the acquis 27 , the only possible exceptions being those explicitly mentioned in Article 4 of Regulation n°539/2001 28 .

Furthermore, all bilateral agreements on local border traffic currently in force have

been concluded with visa-exempted third countries (see above, § 2.2).

However, as most of the future EU neighbouring countries will be visa-obligated States, there is a need to define common rules applying also to this type of situation. Such rules would aim at facilitating the movement of persons for local border traffic purposes while at the same time guaranteeing the respect of the basic principles of the Community acquis on visas and external borders. While the EU can lay down the rules governing border traffic entering EU territory, clearly in practice the traffic will be two-way, thus requiring the need to ensure reciprocity of treatment with the third

countries concerned.

A) Creating a special permit for border residents

This option could be envisaged, in particular, for transfrontier workers, both employed and self-employed, and would follow the model proposed in Article 13 of

26 The issuing of a 'special permit' to transfrontier workers is also foreseen in Article 8(1)(b) of directive

n°360/68 EEC concerning the abolition of restrictions to the circulation and residence of EC workers and their families.

27 A partial derogation to this principle is represented by the specific arrangements envisaged for local

border traffic between Ceuta and Melilla and the Moroccan provinces of, respectively, Tetuan and Nador (see the Final Act of the Agreement on the Accession of the Kingdom of Spain to the Schengen Convention). However, Spain does maintain checks on sea and air connections departing from Ceuta and Melilla and having as their sole destination any other place on Spanish territory, as well as on flights and on regular ferry connections departing from the towns of Ceuta and Melilla to a destination

in another Schengen State.

28 Such exceptions concern, namely: holders of diplomatic passports, official-duty passports or other

official passports; civilian air and sea crew; the flight crew and attendants on emergency or rescue flight and other helps (in case of accidents, disasters); the civilian crew of ships navigating in international waters; the holders of laissez-passer issued by international organisations; school pupils travelling in the

context of a school excursion. See also OJ C 363/21 of 19.12.2001.

the draft directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities (see above, § 3.2.1, under B). However, the extension of such a permit to other categories

of border residents - with the necessary adaptations - should also be considered.

This special border permit, would have the following minimum characteristics:

• a) 

  It would have security features at least comparable to those established by Regulation n°1030/2002 on the uniform format for residence permits for thirdcountry nationals;

• b) 

  It would be issued by the authorities of the country where the economic activity is exercised to persons resident in the frontier zone of a neighbouring country, who are employed in the frontier zone of the adjacent Member State and who return each day or at least once a week to the frontier zone of the neighbouring country;

• c) 

  A minimum length of the work contract, as well as a minimum period of residence in the border area would be required in order to be issued such a permit;

• d) 

  It would have to be renewed regularly;

• e) 

  Other preliminary conditions, such as the fact of not representing a threat for public order and security would have to be thoroughly checked both before

  issuing and before renewing the permit. 29

The border permit would:

• 1) 

  Be considered as equivalent to a visa 30 , provided that it is accompanied by a

  valid travel document;

  • 2) 

    Have the double function of being a work permit and allow the holder to cross the border and stay in the border area for the time needed to exercise the working activity;

  • 3) 

    Exempt the holder from fulfilling the conditions provided in Article 5(1)(c) SIC when crossing the external border, while being understood that Articles 5(1)(d) and 5(1)(e) SIC would remain applicable;

  • 4) 

    Allow for a derogation to the obligation of affixing entry and exit stamps on the travel document when crossing the external borders (CM, Part II, point 2.1.5);

  • 5) 

    Entitle the holder to cross the border both outside authorised border crossing points and hours, as well as through specific border crossing points, especially reserved to border residents;

29 As far as Schengen States are concerned, this would imply at least a search in the SIS and in other

national databases.

30 It would therefore not be a visa exemption.

• 6) 

  Only allow the holder to travel and stay within the 'border area', respecting the time-limits specified above (under b).

B) Creating a 'special visa' for border residents

Another option, applicable to all categories of border residents, would consist in

envisaging the issuing of a special short-term visa ("L") 31 , whose characteristics

would be the following:

• a) 

  It would comply with the security features laid down in Regulation n° 1683/95 as modified by Regulation n°334/2002;

• b) 

  It would be issued by the embassies or consular authorities to persons residing in the border area of a neighbouring third country and demonstrating to have legitimate grounds (family links, economic, cultural, linguistic reasons) for

  32

  regularly crossing the border ;

• c) 

  In order to be issued such a visa, a minimum period of residence in the border area would also be required (e.g., 1 year);

• d) 

  It would be valid in principle for one year, with the possibility of issuing, in some cases, visas valid for two or more years;

• e) 

  As regards the administrative costs, they would either be harmonised (and

lower than for the short-stay multiple entry visa 33 ) or be fixed by each Member

State, which may also decide to issue this visa free of charge.

On the basis of this special "L" visas, border residents would be:

• 1) 

  Entitled to multiple crossings of the common border;

• 2) 

  Allowed to stay and circulate only within the 'border area' of the neighbouring country, for a duration which cannot exceed 3 months within any half-year period;

• 3) 

  Exempted from fulfilling the conditions provided in Article 5(1)(c) SIC when

  34

  crossing the external border;

  • 4) 

    Entitled to cross the border at specific border crossing points especially reserved to border residents.

  An obligation to inform all other Schengen States about all the "L" visas issued

  would be introduced.

31 "L" would stand for 'Local (border traffic)'. As far as uniform visas are concerned, this would require a

modification of the Schengen Convention as well as of the Common Consular Instructions.

32 The main conditions and procedures specified in the Common Consular Instructions for the issuing of

Schengen short-term visas would have to be complied with, while taking into account the specific grounds for issuing such visas, i.e. entry and residence only in the border area (which, for instance,

would entitle a derogation from Article 5(1)(c)SIC).

33 As regards the costs for the Schengen visa, see the table in Annex 12 of the Common Consular

Instructions (CCI).

34 The conditions provided in Article 5(1)(d) and (e) SIC would have to be fulfilled and checked both

prior to the issuing of the visas and at the crossing of the external border.

C) Facilitation in issuing short-term multiple entry visas:

As an alternative to the creation of a special permit and/or visa for border residents, the following measures could be considered, when issuing 'normal' short-term visas

(national or Schengen 35 ) to border residents:

– Adding to the grounds for being issued a multiple-entry short-term visa, valid for at least one year (and for a maximum of 5 years), the fact of living in the border area and having family ties or economic interests (e.g., properties) on

the other side of the border 36 . The existence of such legitimate interests and

reasons shall obviously be duly proved and specific criteria would be introduced (for instance, a minimum period of residence in the border area would be requested). Compliance with the other main criteria and conditions

on issuing short term visas, as specified in the CCI, would have to be ensured;

– Providing for the possibility of reducing or waiving the costs of visas for border residents. As far as the Schengen uniform visa is concerned, the

reducing or waiving of the costs, in principle fixed 37 could be envisaged by

extending the scope of Rules II of Annex 12 of the Common Consular Instructions to 'specific categories of people', which would also cover residents

of the border areas 38 .

However, it shall be pointed out that this option, i.e. the issuing of 'normal' shortterm visas which - as far as Schengen visas are concerned - would allow travelling throughout the territory of all Schengen States, seems to be the least appropriate to deal with the peculiarity of local border traffic.

3.3. Practical arrangements

Parallel to the measures proposed above, a series of practical arrangements could be

envisaged in order to facilitate the crossing of the borders for border residents.

The upgrade and development of border crossing facilities should, as a general issue, be pursued in order to ensure an efficient and smooth border crossing of external borders to all persons, while at the same time guaranteeing the prevention of illegal

immigration and the safeguard of internal security 39 .

35 It shall be born in mind that, as far as new EU Member States are concerned, they will not issue

Schengen uniform visas as from accession. Until the lifting of internal border controls, they will issue national short-term visas - whose format will nevertheless have to comply with Regulation n°1683/1995, as amended by Regulation n°334/2002, laying down a uniform format for visas - and will therefore have a certain margin of manoeuvre as regards the types of visa to be issued and

administrative costs.

36 As regards Schengen visas, this would entail a modification of the CCI but not of the Schengen

Convention.

37 See Annexe 12 CCI, OJ L 239/376 of 22.9.2000.

38 Rule II of Annexe 12 CCI provides that "in individual cases, the amount of fees to be charged may be

reduced or may be waived in accordance with national law when this protects cultural interests, in the field of foreign policy, development policy or other areas of vital public interest" [emphasis added].

39 For a definition of 'internal security' (in the common area of freedom of movement), see Annex 1 of

Communication COM(2002)233 i.

As far as border residents are concerned, more particularly, the possibilities already foreseen in the acquis and implemented in the existing bilateral agreements (see

above, § 2.1 and § 2.2) should be fully exploited. These include:

• a) 

  Setting up specific border crossing points (or, within the same BCP, providing for separate checkpoints) for border residents;

• b) 

  Granting the possibility to holders of a border permit/permit-transfrontier worker to cross the border outside authorised border crossing points and fixed hours.

It shall be thoroughly assessed whether option b) - here envisaged only for holders of the 'border permit' - could also be extended to persons being issued a "L" visa or a

multiple entry short-term visa on grounds of local border traffic.

Last but not least, the increasing of consular facilities, especially in the areas close to the border, would also be an important element to facilitate the issuing of visas to

border residents.

4. CONCLUSIONS

As announced in the Commission's Communication Towards integrated management of the external borders of the Member States of the European Union, the development of common rules on 'local border traffic' is one of the measures to be taken in the short term in order to complete the 'common corpus of legislation' on

external borders.

Although some bilateral agreements regulating the issue do exist, there is the need to have a uniform, horizontal and coherent approach, as well as to envisage rules covering different kinds of situations. These would include the need to establish arrangements to cover the situation of visa-obligated third countries. This will be of immediate relevance to the future Member States who will not only need clear guidance as regards rules on local border traffic with their neighbouring countries,

but also need to be closely involved in drawing up such rules.

A basically positive approach in creating efficient and secure rules for crossing of the external borders by well-known bona fide persons living in neighbouring border

regions, is in the best interest of the EU.

Consequently, on the basis of the outcome of the discussions with the Member States on the different options put forward in this working paper, and the comments made by the candidate countries, the Commission intends to present a legislative initiative laying down basic uniform rules regulating 'small border traffic' - and amending, where necessary, the legislation in force - in order to set common principles to be

respected and complied with in all agreements with third countries on the issue.

These rules will namely aim at:

– Defining the 'border area' for local border traffic purposes;

– Determining the categories of people benefiting from the local border traffic regime, as well as the specific requirements and conditions to be fulfilled;

– Envisaging the creation of a 'uniform border permit', as well as of a special visa ("L"), allowing border residents to cross the border for local border traffic purposes;

– Facilitating the issuing of visas to residents of the border area;

– While respecting the basic principles of the Community acquis on external borders, facilitating border crossing procedures for persons benefiting from the local border traffic regime.

ANNEX I

OVERVIEW OF BILATERAL AGREEMENTS ON LOCAL BORDER TRAFFIC CONCLUDED BY MEMBER STATES

(draft to be up-dated on the basis of contributions from the Member States concerned)

AGREEMENT Scope Definition of Special documents issued Practical Other issues the border area facilitation

for the crossing of the border

• - 

  Only nationals of the - The areas - No (but an identity card – - Special border - Transport of contracting parties residing including the Personalausweis - or another crossing points goods and HGVs

Germany/ in the border areas municipalities document specifying the traffic are

annexed to the residence is needed). Max. excluded

Poland agreement stay allowed: 7 days.

(19.11.1992)

Germany/ - ‘Carte frontalière’ issued - The - ‘Carte frontalière’: issued - Possibility of an - The exercise of to all persons residing in municipalities for 5 years (+ possible 5-year authorisation to any paid activity

Switzerland 40 the border area (citizens of and areas listed extension). It allows for cross the borders is excluded

contracting parties and 3 rd in Art. 1 of the multiple crossings and stays outside the official

(21.5.1970) country nationals) agreement for a max. of 3 consecutive border crossing - Also: chemins

days. points and times. pedestres + lac de

• - 

  ‘Laissez-passer’: Constance et haut

  nationals and visa- Laissez-passer 41 for - Special border Rhin exempted 3 rd country excursions: valid for 7 days crossing points for

40 It covers also the territory and nationals of Liechtenstein.

nationals. It is not maximum. Collective laissezthe inhabitants of

necessary to be resident passer can also be issued. cities near the border

41

- Laissez-passer de transit

Germany/ - Only nationals of - For Germany: - No: a valid Grenzübertritts- In special cases (on - Readmission contracting parties and ‘Landkreise’ dokument is sufficient. The religious, social, clause (in case a

Czech rd visa-exempted 3 country and cities near max. stay is of 7 days (the cultural or sport person did not Republic nationals the common agreement is aimed at grounds) visa-free respect the

(3.11.1994) border facilitating tourism in the persons may be agreement or border areas) granted an violated the

• - 

  For the Czech authorisation to national law) Republic: an cross the borders area of 25 km outside the official from the crossing points and common border. hours.

• - 

  Other cities can be included by common accord (on tourist or cultural grounds).

France/ - Only nationals of the - An area of 10 - Carte frontalière: valid - Possibility of contracting parties km from the max. 1 year (renewable). It is granting an

Switzerland (“d’honorabilité common border not ‘automatically’ issued to authorisation to

(small border reconnue”) living in the + list of the persons living near the cross the border border areas since at least municipalities border. outside the

traffic) 6 months included authorised posts and

41 It shall be accompanied by a valid 'pièce d'identité officielle' containing a photograph.

traffic) 6 months included authorised posts and times

(11.8.1946)

France/ - Only nationals of the - Same than - ‘Special work permit’ - Seasonal contracting parties living above allowing for the crossing of workers are not

Switzerland bis in the border area of one the border (valid 1 year – covered by the

States since at least 6 renewable) agreement

(cross-border months and working as workers) salariés in the border area

(15.4.1958) of the other State

Italy/ - All persons residing in - An area of - Pass, Grenzkarte or - Possibility of - Provisions on the border area (having about 10 km Passierschein are mentioned crossing the border exemption of

Switzerland valid reasons/interests – from the as documents valid to cross outside authorised customs duties on

e.g. family grounds, common border the border and stay in the crossing points and certain goods

(28.6.1955) possession of houses, land + list of border areas (but no further times

• - 

  to cross the border) municipalities specifications are given) specified

Italy/ - Only nationals of the - The areas - ‘Lasciapassare’: multiple - Special border - The issue of the contracting parties residing including the border crossings and a stay of crossing points special border

Slovenia 42 in the border areas municipalities max. 5 consecutive days crossing

annexed to the documents is

(15.5.1982) agreement (ext. to 30 days for justified exempted from

reasons). Valid for 5 years any taxes or other

(renewable) burdens

• - 

  ‘Lasciapassare’ - Special extraordinaire 43 : (urgencies

42 The agreement was originally concluded with Yugoslavia and applies mutatis mutandis to Slovenia.

extraordinaire 43 : (urgencies provisions on

and special cases): only one maritime and land

crossing and stay of max. 10 transport firms

days.

• - 

  Exemptions
• - 

  Special document for from customs

agricultural workers duties for certain

goods

Austria/ - Carte frontalière: - The area - Carte frontalière: valid 5 - The contracting nationals of the including the years (renewable for other 5 party issuing a

Switzerland 44 rd contracting parties, 3 c. districts years). It allows for multiple carte frontalière

nationals and stateless specified in Art. border crossings and a stay of rd to a 3 country

(11.2.1974) persons residing in the 1 of the max. 3 consecutive days national shall

border areas. agreement notify the other

• - 

  ‘Ausflugsschein’ 45 : valid for party within one

  • - 

    Laissez-passer a max. of 7 days. Also week.

  (excursions): in principle possibility of collective only to citizens and visalaissez-passer. - The exercise of free nationals (exceptions a paid activity is for humanitarian reasons) excluded form the scope of this agreement

Austria/ - Only nationals residing - The area - ‘Dauergrenzschein’: allows - Special border - Special Slovenia in the border areas including the for multiple crossings and crossing points provisions on (9.6.1995) municipalities stay for a max. of 4 days (annexed tot he customs

annexed to the agreement) (exemptions on

agreement - ‘Grenzübertrittschein’: it certain goods)

43 It shall be accompanied by a valid 'documento di identificazione' specifying the nationality.

44 It covers also the territory and nationals of Liechtenstein.

45 It shall be accompanied by a 'Lichtbildausweis' (identity document containing a photograph).

agreement allows certain categories of

persons (e.g., owners of - Possible derogation

certain goods)

properties in the border area from authorised of the other country) to cross border crossing posts the border (in principle) for and times

one day

ANNEX II *

OVERVIEW OF BILATERAL AGREEMENTS ON LOCAL BORDER TRAFFIC

CONCLUDED BY CANDIDATE COUNTRIES **

(draft to be completed on the basis of additional information provided by the countries concerned)

AGREEMENT Scope Definition of the Special Documents issued Practical facilitation Other issues

Border Area for the crossing of the Border

Slovenia - Border - For border crossing - Border crossing permit : issued - Possibility of crossing - Special provisions for /Croatia crossing permits: the for 5 years (renewable once) . the border outside agriculture workers

permits: only settlements listed in Max. stay allowed: 7days. authorised BCPs and

(28.4.1997) nationals of the Annex A and Annex Possibility of issuing it at the hours for holders of - Provisions on the contracting B to the agreement. border. special passes (unless it exemption of customs parties with is contrary to public duties on certain goods

permanent - For tourist permits: - Tourist permit : issued for interest)

residence in tourist zones (defined crossing the border within - Special provisions on the border by a permanent mixed tourist zones. Shall always be maritime and land areas committee upon accompanied by a passport or ID transport on the border (exceptionally proposal of border card. Valid for 30 days max. area and on border

also to 3 rd municipalities) economic cooperation

country

nationals). - Provisions on

delimitation of the

• * 

  Only available in English.

** Bilateral agreements with EU Member States are not included as they are covered by Annex I.

• - 

  Tourist delimitation of the permits : maritime border area

citizens of the contracting parties and visa-exempted third country nationals.

Bulgaria/ - Nationals of - Area of 20 Km from - Border crossing permit: allows This agreement, although the contracting the border line within 12 border crossings per year. formally still in force, is de

Yugoslavia parties resident both territories Max. stay allowed: 4 days. facto not implemented. A

in the border Possibility of extension (up to 10 parallel agreement setting

(28.2.1972) area days) in specific cases. a visa free-regime is in

force.

Romania/ - Nationals of - Area of 20 km from - Border crossing permit (for - Specific 'local border Romania is currently Bulgaria the contracting the border line within Romanian citizens) and travel traffic' crossing points. considering how to

parties resident both territories coupon (for Bulgarian citizens). modify this agreement.

(28.6.1971) in the border No need for other documents.

area They allow for one monthly crossing, for a max. stay 6 days. Possibility of extension in exceptional cases.

Romania/ - Nationals of - Area of 20 km from - Border crossing permit. No - Specific 'local border Ibidem.

Yugoslavia the contracting the border line within need for other documents. 12 traffic' crossing points. parties resident both territories crossings per year allowed. Max.

(28.6.1971) in the border period of stay: 6 days.

area Possibility of extension in exceptional cases.

Romania / - Nationals of - Area of 20 km from - Border crossing permit (shall - Specific 'local border Ibidem

Hungary 46 the contracting the border line within be accompanied by an identity traffic' crossing points.

parties resident both territories document). 12 crossings per year

(17.6.1969) in the border allowed. Max. period of stay: 6

area days. Possibility of extension in exceptional cases.

Romania/ - Nationals of - The counties and - For Romanian citizens: border - Specific 'local border Ibidem.

Ukraine the contracting districts adjacent to crossing permit + an identity traffic' crossing points. parties resident the state border. document

(29.3.1996) in the border area - For Ukrainian citizens: travel

coupon + an identity document.

In both cases: crossing of the border twice per month, for a max. stay of 5 days. Possibility of extension in exceptional cases.

Poland/Russia - Nationals of - Localities listed in - Border passes, identity cards or - Specific BCPs set up Diplomatic notes the contracting Annex 1 to the other identity documents. Max. and specified in the concerning the

Poland/Ukraine parties resident Agreement, provided stay allowed: 7 days. agreement (exceptions termination of these

in the border that the distance possible in particular agreements were sent to

Poland/Belarus 47 area. between them is not Normally border crossing can cases). the diplomatic missions

greater than 50 Km only take place during the day of these countries on 24 (exceptions to this rule (exceptions for urgent medical May 2002. The are possible). aid). agreements will become

invalid on 31 May 2003.

46 Hungary has similar simplified border crossing agreements also with Ukraine, Croatia and Slovenia, but it has committed to terminate all of them by the end of 2002.

47 Based upon the agreement stipulated with the former Union of Socialist Soviet Republics on 14 May 1985.

invalid on 31 May 2003.

Poland/Czech - Nationals of - Area of 15 Km from - Identity cards, Passports and - Crossing possible at - Possibility of joint border

Republic 48 the contracting the common border travel vouchers inserted into ID both normal BCPs and controls

parties resident cards. Max. stay allowed: 7 at specific ones (solely

(17.1.1995) in the border days. for local border traffic

area purposes).

Poland/ Slovakia - Nationals of - Area of 15 Km from - Identity cards, passports. Max - 14 specific BCPs - Possibility of joint border the contracting the common border stay allowed: 7 days. (solely for local border controls

(10.6.1997) parties resident traffic purposes) in the border - Possibility of 'collective names

area lists' for school groups and - Crossing possible also

young people participating in at normal BCPs youth camps (valid for no longer than 30 days after the date of confirmation).

Poland/ - Nationals of - Concerns the use of - Valid travel document - Only BCPs specified - Joint border controls the contracting tourist paths in the agreement

Slovakia parties + citizens of the - Fixed border crossing

(13.7.2001) EU, EEA, hours

Israel, Japan, Canada, Lithuania, Latvia, Slovenia, US, Switzerland

48 The existing agreement between the Czech Republic and Slovakia is currently being re-negotiated.

and Hungary

Slovakia/ - Nationals of - Area of 15 km from - Permanent border crossing - Crossing possible only

Hungary the contracting the common border. permit: valid 12 months. Max. at normal BCPs. parties resident stay allowed: 5 days.

(8.7.1963) or working in

the border area - Single border crossing permit :

allows the holder to cross the border once and be back within 14 days from the date of issuance.

Slovakia/ - Nationals of - Concerns the - A valid travel document is - Specific BCPs. Fixed - Joint border controls the contracting possibility for tourists enough border crossing hours

Hungary parties, EU to visit the Šomoška (allowed only between

and EEA Castle (close to the 8am and 8pm).

(29.8.2001) nationals common border, on

SK territory)

Latvia/Russian

Federation

Latvia/

Belarus

(negotiated on

26.9.2001)

Lithuania/ - Valid travel document - Lithuania committed to abolish the agreement by

Belarus - Special border permits the end of 2002.

(25.3.1994)

Lithuania/

Russian

Federation

(25.2.1995)

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