Doc. 9570

24 September 2002

The enlargement of the European Union and the Kaliningrad Region

Opinion¹

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Kevin McNamara, United Kingdom, Socialist Group

I.       Conclusions of the committee

1.       The Committee on Legal Affairs and Human Rights considers that the right to freedom of movement is a fundamental human right and freedom. While recognising a State's right to include restrictions in their legislation to protect their legitimate interests, such restrictions should only be applied to the extent that is strictly necessary to achieve these objectives.

2.       In the Committee's view, any solution to the Kaliningrad case should abide by the principle that the extension of the freedoms of some European citizens, namely those of the European Union's new member countries, should not be at the expense of the rights and freedoms of citizens of non-member countries of the Union.

3.       The Committee therefore advocates the introduction of a transit system to enable citizens of the Russian Federation, subject to strictly defined conditions and meaningful safeguards, to travel between Kaliningrad and other parts of the Russian Federation with a minimum of administrative obstacles, and in particular without the need for a visa. It considers that such an approach would safeguard individual freedoms in the spirit of the major principles governing European unification.

II.       Amendments proposed by the Committee on Legal Affairs and Human Rights to the draft recommendation

Amendment A

After paragraph 2 add the following new paragraph:

      "The Assembly considers that one of the objectives of pan-European integration must be the free movement of persons within Greater Europe, which includes all the member States of the Council of Europe."

Amendment B

After paragraph 8 add the following new paragraph:

      "The Assembly welcomes that the enlargement of the European Union will enable citizens of the new member countries to benefit from Community freedoms, including that of freedom of movement. However, it considers that the extension of the freedoms of some European citizens should not be at the expense of those of citizens of non-member countries of the Union."

Amendment C

In paragraph 11, insert the following sub-paragraph in first position in sub-paragraphs v. and vi.:

      "to establish a transit system to enable citizens of the Russian Federation, subject to strictly defined conditions and meaningful safeguards, to travel between Kaliningrad and other parts of the Russian Federation with a minimum of administrative obstacles, and in particular without the need for a visa."

Amendment D

In paragraph 11.iii, after the words "to analyse", insert the following words:

      "in collaboration with the competent bodies of the European Union"

III.       Explanatory memorandum

      by Mr McNamara, Rapporteur

A.       Right to free movement of persons

1.       The Committee on Legal Affairs and Human Rights considers that the right to freedom of movement is a fundamental human right and freedom. The ideal to be sought in Greater Europe is therefore the free movement of citizens throughout the Council of Europe's member States.

2.       The Committee recognises states' right to include necessary restrictions in their legislation to protect their legitimate national interests, in particular national security, public safety, the maintenance of public order, crime prevention, health protection and so on.

3.       However, if the principle of freedom of movement is to be properly respected, such restrictions should only be applied to the extent that is strictly necessary to achieve these objectives. Moreover, consideration must also be given to protecting these legitimate interests through bilateral and multilateral co-operation between the countries concerned, rather than by imposing unilateral restrictions.

B.       The case of Kaliningrad

4.       The Committee on Legal Affairs and Human Rights considers that the report of the Political Affairs Committee gives a very accurate description of the implications of the forthcoming enlargement of the European Union for freedom of movement of persons between Kaliningrad and other parts of the Russian Federation. The Legal Affairs Committee's opinion is concerned with how the general principle of freedom of movement could be applied to the specific case of Kaliningrad, given the legitimate needs of all the states concerned and the existing legal base.

5.       In the Committee's view, any solution to the Kaliningrad issue would have to abide by the principle that the extension of the rights and freedoms of some European citizens, namely those of the European Union's new member countries, should not be at the expense of citizens of non-member countries.

6.       The citizens of Kaliningrad and of the non-member countries of the European Union in general must benefit from the enlargement process. This is, of course, crucial from the standpoint of individual liberties, but also for the European Union's image in the eyes of citizens of non-member countries, who, after all, should be encouraged to see their future within the Union. In this context, Kaliningrad may be considered to be an important test case.

7.       The Committee on Legal Affairs and Human Rights considers that there is nothing in the existing legislation of the European Union and the states concerned to prevent the adoption of flexible solutions, including ones relating to visas.

8.       Under the Schengen Agreement, "the Contracting Parties undertake to adopt a common policy on the movement of persons and in particular on the arrangements for visas" (Article 9-1). Possession of a valid visa is one of the conditions for entry into the territory of the Contracting Parties, but only if this is a requirement. As the Political Affairs Committee's report notes, a regulation of the Council of the European Union lists the countries whose nationals must be in possession of visas. The Committee considers that these provisions do not prevent the European Union and the candidate States concerned from agreeing on a more favourable common position on transit to and from Kaliningrad.

9.       The Committee therefore advocates the introduction of transit arrangements to enable citizens of the Russian Federation, subject to strictly defined conditions and meaningful safeguards, to travel between Kaliningrad and other parts of the Russian Federation with a minimum of administrative obstacles, and in particular without the need for a visa (or similar document issued following an administrative decision of authorities other than those of the applicant's country). It considers that such an approach would safeguard respect for citizens' rights and would not be incompatible with Community law.

10.       Naturally, the establishment of such arrangements would have to be accompanied by meaningful safeguards to reduce to the maximum fears about the security of the Schengen area, which would include not just purely technical measures but also readmission agreements and co-operation on illegal immigration and organised crime.

11.       The Committee therefore welcomes the European Union's Communication of 18 September 2002, which discusses the possible issuing of a special travel document, a feasibility study of the introduction of non-stop high speed trains offering sufficient security for visa-exempt journeys and the opening of discussions on the long-term objective of visa-free travel between Russia and the European Union.

12.       The Political Affairs Committee also referred to the possible application of the Council of Europe Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe, which came into force in January 1958 and whose aim is to enable nationals of Contracting Parties to enter the territory of other parties by all frontiers on presentation of one of the documents listed in the appendix to the Agreement.

13.       The Agreement has been signed by nine member States of the European Union. None of the countries directly affected by the Kaliningrad issue, namely Lithuania, Poland and Russia, have signed. It might offer a legal basis for facilitating travel between the countries concerned. However, since Lithuania and Poland are preparing to join the European Union and the Schengen Agreement offers a more recent and precise set of rules, with which the applicant countries are coming into line, an agreement between the European Union, the applicant countries concerned and Russia seems to offer the most rapid solution to the Kaliningrad problem. Nevertheless, the Committee encourages the relevant Council of Europe bodies to examine the possible application of the Movement Agreement, in conjunction with their counterparts in the European Union.

Reporting committee: Political Affairs Committee

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: Bureau’s decision of 28.06.02, Reference No. 2749, 28.6.02

Opinion approved by the committee on 24 September 2002

Secretaries to the committee Ms Coin, Mr Sich, Ms Kleinsorge, Mr Ćupina, Mr Milner

¹ See Doc 9560 tabled by the Political Affairs Committee.