51996AR0023(02)

Opinion of the Committee of the Regions on:

- 'the proposal for a Council Directive on the right of third-country nationals to travel in the Community,` and - 'the proposal for a Council Directive on the elimination of controls on persons crossing internal frontiers` (96/C 129/10)

On 24 August 1995, the European Commission suggested that the Committee of the Regions be consulted on 'the proposal for a Council Directive on the right of third-country nationals to travel in the Community`.

On 26 October 1995, the Council asked that the Committee of the Regions be consulted on 'the proposal for a Council Directive on the elimination of controls on persons crossing internal frontiers`.

On 2 October 1995, the Committee of the Regions, acting under Article 198c of the Treaty establishing the European Community, decided to draft an Opinion on the above-mentioned proposals.

Commission 7 for a Citizens' Europe, Research, Culture, Youth and Consumers was asked to prepare the Committee's work on the matter. The Rapporteur was Mr Kretschmer (D).

At its 11th Plenary Session (meeting of 18 January 1996), the Committee adopted the following Opinion.

1. Introduction

THE COMMITTEE OF THE REGIONS:

Having regard to the Treaty establishing the European Community, in particular Article 100;

Having regard to the Commission's proposal on this matter ();

Considering the Commission's proposal for a Council Directive on the elimination of controls on persons crossing internal frontiers ();

Considering the Commission's proposal for a European Parliament and Council Directive amending Directives 68/360/EEC and 73/148/EEC ();

Whereas Article 7a of the Treaty provides for the establishment of an internal market without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty;

Whereas the retention of internal border checks would impede achievement of this objective (by giving certain Member States the right to refuse third-country nationals legally present on the territory of another Member State access to their territory);

Whereas, moreover, for the single market to function properly, the legislation of the Member States regarding this matter needs to be brought in line, taking account of the national and Community provisions regulating the legal situation of third-country nationals in the Member States,

has drafted the following observations.

2. General remarks

2.1. In conformity with Article 7a of the EC Treaty, the Community is obliged to implement the necessary measures in order to complete the single market.

The COR agrees that it is necessary to remove identity checks at internal borders for the completion of the single market, so as to give all persons the chance to move around the market freely and unhindered. The COR welcomes the fact that the Commission is submitting proposals aimed both at the completion of the single market and at the integration of third-country nationals.

2.2. Identity checks at internal borders negatively influence European citizens' perception of the Community. The removal of police and customs formalities at these borders will help to achieve a citizens' Europe.

The COR stresses that, as one of the four basic freedoms, the free movement of persons lies at the basis of the European Union and is the freedom experienced most directly by its citizens.

2.3. The COR wishes to stress that the proposal, together with the Proposal on the elimination of controls on persons crossing internal frontiers (COM(95) 347) and the proposal amending Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families and Directive 73/148/EEC on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (COM(95) 348), constitutes an important step towards a citizens' Europe.

2.4. The COR is of the opinion that security in the Member States must not be placed at risk as a result of the elimination of identity checks at internal borders. Any lack of security brought about by the elimination of border checks must be offset by the necessary and appropriate compensatory measures.

The COR particularly wishes to point out that there is an inextricable link between the achievement of full freedom of movement and the creation of compensatory measures needed to ensure public security. Freedom and security must go hand in hand.

2.4.1. In this connection, the COR stresses that the Proposal on elimination of internal border checks (COM(95) 347) represents an important contribution to implementation of the single European market. In the view of the COR, however, the provision of compensatory measures to maintain national security is an essential pre-requisite for the approval of this Directive.

2.4.2. In the view of the COR, uncontrolled crossings of internal borders in the EU single market would create a lack of security that would be unacceptable without compensatory measures.

2.4.3. The 'accompanying measures` mentioned in the introduction to the proposal must be given concrete form in order to ensure national security on a permanent basis. Further compensatory measures must be set up. For this purpose, the COR proposes that the Schengen Agreement be used as a guide, and that attention be paid to the regulatory shortcomings which have already emerged here.

2.4.4. The COR considers that, before removing identity checks at EU internal borders, it is necessary to implement the requisite compensatory measures.

In this connection, the COR considers that measures are needed for improved practical collaboration, exchange of information and legal recourse.

2.4.5. For the above reason, the COR requests, in respect of the proposal on the elimination of controls at internal borders, that the necessary compensatory measures be specifically incorporated in the Directive.

2.4.6. The COR welcomes the fact that the Commission is to submit a report on the implementation of the Directive two years after its entry into force and at three-yearly intervals thereafter, and that the COR is to be included in the consultative procedure.

2.5. With regard to the proposal on the right of third-country nationals to travel in the Community (COM(95) 346 final), the COR wishes to point out that parts of the Directive have already been implemented both between single Member States and within the EU as a whole.

2.5.1. The Benelux states have regulations allowing third-country nationals with a residence permit or visa issued by the authorities of a Benelux state to enter the territory of the other two countries without having to fulfil further formalities.

2.5.2. Since 26 March 1995, the Schengen Agreement has been applied by seven Member States (B, D, E, F, L, NL, P).

Chapter 4 of the agreement implementing the Schengen Agreement of 14 June 1985 between the governments of the states of the Economic Union of the Benelux, the German Federal Republic and the Republic of France concerning the gradual removal of controls at common borders, lays down conditions for travel by third-country nationals. The provisions contained therein guarantee third-country nationals the fullest possible freedom of movement within the territories of the signatory states.

Thus, third-country nationals who do not require visas in any of the Schengen states, can travel freely throughout the Schengen territory for three months, if and for as long as they have fulfilled all other entry conditions (Article 20 Schengen Agreement). The same is true for third-country nationals with the required common visa (Article 19 Schengen Agreement). If a visa is only required in one or several Schengen states, the visitor only needs to hold a visa if he wishes to go to one of these states.

Of particular importance is the stipulation in Article 21 of the agreement implementing the Schengen Agreement, according to which third-country nationals holding a valid residence permit issued by one of the signatory states are also allowed to travel freely through the territories of other Schengen states for three months. This is a considerable legal and practical step forward for third-country nationals residing in Schengen states, who previously needed a visa to visit other signatory states.

In this respect, the COR wishes to stress that the elimination of controls on persons does not confer the right to enter a signatory state.

2.5.3. Far-reaching freedom of movement has already been implemented with the Council's Decision of 30 November 1994 () on a joint action adopted by the Council on the basis of Article K 3(2)(b) of the Treaty on European Union concerning travel facilities for school pupils from third countries resident in a Member State and taking part in group excursions within the Community. These children are allowed to travel to other Member States with their classes without a visa or personal travel document. The necessary personal documents are replaced by a list for the whole group.

This joint action is aimed at improving the integration of third-country nationals residing legally in the European Union. The COR regrets that it only eases travel for groups of school children and has not - as planned initially - also eased travel restrictions for third-country nationals with unlimited residence permits and for other group excursions (e.g. for sports clubs and cultural meetings).

The COR nevertheless believes that the joint action is a signal to the EU, which wants to put the freedom of movement without bureaucratic barriers into effect and create an area free from internal borders with repercussions on the daily lives of young people as well.

2.6. With respect to the provision of services by European companies employing third-country nationals, the COR would refer to the ruling of the European Court of Justice dated 9. 8. 1994 (Case C 43/93 - R. Van der Elst), according to which long-term, properly employed employees from third countries working for a company based in a Member State and providing services in another Member State have the right to enter the other Member State. Entry to the Member State in which the service is to be provided is, however, contingent upon fulfilment of the entry requirements laid down by this state. The COR points out that if a visa is necessary in this case, it is issued promptly by the consular representation in question.

3. Specific remarks

3.1. Legal basis

3.1.1. The COR considers that the free movement of persons enshrined in Article 7 of the Treaty covers the free movement of all persons in the European Union, regardless of their nationality.

3.1.2. The COR nonetheless points out that according to Article K 1(3) policy relating to third-country nationals is regarded as a matter of common interest for the Member States. This policy also covers the stipulation of the conditions for entry and movement by third-country nationals on the territory of the Member States.

3.1.3. The COR endorses the Commission's opinion, explained in a protocol (Council doc. 11701/94, p. 8) to the Council's Decision on a joint action adopted on the basis of Article K 3(2)(b) of the Treaty on European Union concerning travel facilities for school pupils from third countries resident in a Member State, that the joint action does not in any way affect Community competence in this area and that the Commission reserves the right to propose Community legislation regarding short trips by third-country nationals in particular.

3.1.4. In this respect, the COR wonders whether, given the provisions of Article K 1(3), an extension of Community competence in statutory legislation to a part of the policies vis-à-vis third-country nationals is permissible.

3.1.5. Regardless of the above, the COR is convinced that the goal of the proposed directive is to complete the single market and eliminate one of the reasons why identity checks at internal borders are still carried out. Hence, the COR is of the opinion that the Directive should be based on Article 100 of the EC Treaty.

3.2. Reginal integration policies

3.2.1. The COR points out that the regions of the European Union are striving to improve integration policies in order to end the isolation of third-country nationals and defuse social conflicts. This task can be fulfilled better at a regional than at a national level, since the regions are more familiar with local social structures and can act more speedily.

3.2.2. The COR notes that apart from the free movement of people, positive integration can also be supported by educational and cultural measures.

3.2.3. The COR considers that the regulation of immigration flows and the integration of legal immigrants can only take place step by step. Given the diverse legislation regulating the situation of immigrants in the individual Member States, a clarification of the common entry requirements and the laws on residence for third-country nationals who are legal residents of the Union is also called for. In this respect, the COR welcomes the fact that the EU's Ministers of the Interior have drawn up a common visa list in Brussels. The COR believes that in the negotiations related to the 1996 intergovernmental conference it should be checked whether significant areas of cooperation on immigration policies, as agreed in Article K 1(3), should become a Community competence, in order to contribute to the fight against illegal immigration and unchecked internal migration.

3.2.4. In order to avoid unchecked internal migration and maintain coherence with the national regulations regarding legislation on aliens, the COR calls for a stipulation in the Directive that freedom of movement is not guaranteed if the permit or visa issued by a Member State includes a territorial limitation.

4. Conclusions

4.1. The COR welcomes the Commission's Proposals to guarantee the freedom of movement for third-country nationals and eliminate identity checks at internal frontiers as an important contribution to the achievement of the free movement guaranteed by the single market.

4.2. The freedom of movement which enables third-country nationals to make short visits to all Member States, will promote travel and tourism within the Community.

4.3. Nevertheless, guarantee of the freedom of movement for third-country nationals and the elimination of identity checks must not jeopardise public safety. The COR wishes to stress that the resulting lack of security must be offset by compensatory measures.

For security reasons it is essential to keep the Directive under scrutiny even after the introduction of the measures deriving from the third pillar.

4.4. Finally, the COR calls upon the 1996 intergovernmental conference to transfer essential areas of domestic and legislative policies from intergovernmental co-operation to the EC Treaty, in order to ensure more effective freedom of movement for EU and third-country nationals in the single market.

Done at Brussels, 18 January 1996.

The Chairman of the Committee of the Regions

Jacques BLANC

() COM(95) 346 final.

() COM(95) 347 final.

() COM(95) 348 final.

() OJ No L 327, 19. 12. 1994, p. 1.