Legal wrangling looms over EU plan to suspend visa-free travel

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A mechanism allowing the suspension of visa-free travel for third countries was adopted by the European Parliament last week, but controversial legal issues remain over the increasing problem of 'fake' asylum-seekers, often Roma from the Western Balkan countries.

The European Parliament backed EU member states last week (12 September) in their initiative to put in place a protection clause allowing the Schengen area to reactivate visa requirements for third countries that present a 'migration risk.'

By the beginning of next year, if an EU member country is faced with a sudden increase of irregular migrants or rejected asylum applicants, it will have to notify the European Commission. Brussels may then propose suspending visa-free travel for the country or countries of origin for an initial period of six months.

If the situation doesn’t improve, free travel with these countries may be indefinitely suspended. Such a tough measure would require a new legislative procedure that could take months or years to enter in force. Nevertheless, this measure, sometimes described as a 'Sword of Damocles' remains a major political threat to third countries, that need to take concrete steps to reduce their emigration flow to the EU.

The vote in the European Parliament was tight – with 52% in favour and 41% against, Social-Democrats and Greens in majority. The new 'suspension mechanism' is still subject to debate among MEPs. The shadow rapporteur, Tanja Fajon (Socialists & Democrats), who urged her colleagues to vote against it, said the decision will “cause chaos”.

Western Balkans’ countries targeted

Although the EU Commissioner for Home and Justice Affairs, Cecilia Malmström refused to target specific third countries, the problem emerged in 2010, just after visa obligations towards most Western Balkan countries were first lifted.

Then citizens from Serbia, Kosovo, Macedonia reputedly arrived in EU member states requesting asylum for economic reasons. In the first half of 2011, the Swedish Interior Minister, Tobias Billström, told the press that asylum seekers from Macedonia were among the 'Top 4' of nationalities immigrating to Sweden, along with Somalia and Afghanistan.

According to a recent report published by the European Asylum Support Office (EASO), the largest number of asylum-seekers to the EU, at over 53,000 or 50% more than in 2011, came from the six Western Balkan countries (Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia), which were recently granted visa-free travel to the Schengen area.

Belgium, Germany, Austria, the Netherlands reportedly saw their asylum systems coming under pressure from unfounded asylum requests.

In Macedonia, investigative journalists discovered that fake tourist agencies were organising regular trips to Brussels for Macedonian Roma for €130, promising them that once they’d get there, asylum protection in Belgium was a done deal. According to witnesses, the agency allegedly belonged to one of the coalition partners in the Macedonian government, a Roma deputy, who categorically denied it.

A majority of the victims were of course rejected and sent home.

But the pressure on the asylum systems in the member countries and the delays they faced because of the “fake requests” caused governments across Europe to demand a coordinated response.

'A step backwards for the Parliament'

Speaking to EURACTIV after the vote, shadow rapporteur, Tanja Fajon, said the report was a “step backwards” compared to the April draft. She said the new mechanism would be a “political tool to be used by European Governments and puts in jeopardy the EU’s neigbourhood policy”. More importantly, she accuses the rapporteur, Agustin Diaz de Mera and those who supported the report of “giving up competences that the European Parliament has according to the co-decision in the Lisbon Treaty when it comes to a very sensitive matter”.

According to the text of the report, the procedure for activating the temporary suspension of the visa-free travel will not require a co-decision procedure, the Parliament will only have to be informed of the new measure. 

Ulrike Lunacek (Greens) said that “giving up control power is a political mistake of the Parliament that will be difficult to rectify”.

An EU source speaking to EURACTIV dismissed the concerns over a “politically motivated use of the mechanism” as unfounded, as the proposal will always have to come from the Commission after “a duly motivated” notification of the member state. Moreover, the Commission takes “all relevant information into account, the figures and data from the State(s), the circumstances, the previous years, but also reports from Frontex and the consequences such a decision would have on the EU’s external relations.”

Reciprocity measures

The European Commission questions part of the amendments adopted by Parliament, especially as it affects Europe's partners. MEPs also amended the EU visa regulation towards those third countries which require visas from certain EU citizens, while their own nationals are exempted from needing such to enter the EU. This affects mainly the USA and Canada, where many Eastern EU citizens still need a visa to enter.

With this new set of measures, the EU will be able to put more pressure for reciprocity on those countries. But the European Commission feels that it has been excluded from the process.

Michele Cercone, spokesman of Home Affairs Commissioner Cecilia Malmström, told EURACTIV that “the Commission regrets that the powers conferred on the Commission with regard to the revised reciprocity mechanism are, in the opinion of the Commission, not in compliance with Articles 290 and 291 of the TFEU [EU treaty]. The Commission therefore reserves the right to make use of the remedies available under the Treaty with a view to having this point clarified by the Court of Justice."

Brussels officials believe that the type of control over the procedure that they have been given is contrary to the Lisbon Treaty.

Cecilia Malmström, EU Home Affairs Commissioner, said after the vote: "The new visa waiver suspension mechanism will contribute to preserving the integrity of the visa liberalisation processes and to build credibility vis-à-vis the citizens. It will allow, under strict conditions and after thorough assessment by the Commission, for the temporary reintroduction of the visa requirement for citizens of a certain third countries The visa suspension mechanism should only be used in exceptional circumstances as a last resort measure. The aim is to address emergency situations caused by the abuse of the visa-free regime by nationals exempted from the visa obligation I very much hope that we will not experience situations that could lead to a visa-waiver suspension."

"But I am also convinced that having the possibility to trigger such a 'safety brake' will help increase the confidence of the Member States in the visa governance and future visa liberalisations. I am personally committed to maintaining visa-free travel for third-country nationals who benefit from this”.

Serbia’s EU Integration Minister, Branko Ruzic said "there are no reason for apprehension that this implies anything bad for Serbian citizens.The decision is neither directed against Serbian citizens, nor visas will be introduced for our citizens, The EP adopted an amendment to the Council regulation with a view to preventing possible violations of the right to the freedom of movement. However, the fact is, and our partners in the EU and we in Belgrade know this, that a vast majority of our citizens do not violate that right“.

"The reciprocity principle that a third country benefitting from an EU visa waiver must extend the same treatment to EU citizens is a key feature of the EU's common visa policy", said Spanish MEP Agustín Díaz de Mera (European People's Party), rapporrteur for the European Parliament's Civil Liberties Committee.

The European Commission decided on 16 July 2009 that citizens of Macedonia, Montenegro and Serbia should be able to travel to the Schengen area without visas starting from 19 December 2009.

On 8 November 2010 the EU lifted visa requirements for citizens from Albania and Bosnia and Herzegovina. However, an unprecedented monitoring mechanism has been set up which could reintroduce visas for several Western Balkan countries should difficulties arise.

Several EU countries were affected negatively by the visa liberalisation policy. In particular, a wave of asylum-seekers from Macedonia and Serbia, mainly of Roma or Albanian ethnicity, hit Sweden, Belgium and Germany.

  • October 2013: Next Justice and Home Affairs Council
  • End of 2013-Beginning of 2014 : Entry into force of the new visa regulation after publication in the Official Journal of the EU

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