Let us draw your attention on Comment of “Europe without Barriers” regarding the incident with Ukrainian tourists in Germany, prepared by “Europe without Barriers” experts.
Comment of “Europe without Barriers” regarding the incident with Ukrainian tourists in Germany
Summary:
Information about the incident with seven Ukrainian tourists, detained in Germany http://www.pravda.com.ua/news/2012/03/13/6960494/ indicates the existing gaps both in the Schengen law and in practice of enforcement. Controversial interpretation of Schengen rules, exercised by German police during this incident, creates a potential threat to more than 300 thousand of Ukrainians – Schengen multiple visa holders.
The final solution of this problem can be possible by amendments to the EU Visa Code, and it will require time and political will. However, the situation requires an immediate response, so it is important to create a judicial precedent that would plainly point out the inaccuracy of German officers.
As any field of law, Schengen law contains several “weak links” and gaps which enable ambiguous interpretation or lack of clear provisions where they are needed. Such gaps include regulation of the use of multiple Schengen visas. As it is known, such visas are issued to persons who require regular travels to the EU and have documentary evidence. Most of such visas issued to persons who have regular business connections with our partners in the EU and who carry out regular trips with the aim of keeping business (professional and public) contacts. For such persons, according to EU Visa Code (art. 24.2), multiple Schengen visa issues to a term up to 5 years and gives the right of unlimited number of short-term visits for a period not exceeding 90 days within half a year.
Obviously, during the validity term of such visa, its owner often has the need of travelling to the EU for purposes that differs from that specified during his paper work. For example, visiting relatives, acquaintances, or tourist trip. In principle, the existing multiple Schengen visa (category C) gives the right to stay on the territory of all Schengen countries with different aims of the visit within the specified deadline.
In addition to that, the same visa can contain “The aim of the visit” in the last column “Remarks”, (Comments or Remarks), which appears, as a rule, as the digital code, without decoding, and can often be quite baffling to the owner of visa. The following notes or their lack, is determined by regulatory norms of Member States (article 9b of the EU Visa Code provides the appropriate rights to the member states).
For example, in the column “Remarks” on Schengen visas issued by consulates of Poland, the words “cel wydania” and code 01 means “tourist trip”, 02 – “guest trip”, 03 – “participation in sporting events”, 04 – “business trip, entrepreneurial activity” 05 – “participation in cultural activities, and international conferences”, etc. At the same, when crossing the border, the guard has the right to verify whether the purpose of the trip confirms the one mentioned when filling the visa papers. And, such a test does not cause misunderstanding in the cases of a one-time visa, but causes problems for the owners of multiple visa, who, as we can see, may have problems not just when crossing the border but while staying on the territory of the Schengen zone.
Thus the problem lies in the fact that actual Schengen Law lacks clear correlation between pluralities of entries (the purpose of multiple entry visas) and plurality of purposes of the journey. Obviously, the multiplicity of the purposes arises when the traveler holds a multiple-entry visa with a long period of validity. Exactly this legal gap constituted legal ground for the actions undertaken by the German federal police.
The actions of the German federal police are to be subject of appeal to the Court of the Republic of Germany. Furthermore, from our standpoint the case with Ukrainian tourists has good chances in courts of Germany, providing qualified lawyer.
The legal grounds for appeal against the police actions are the following: from the legal standpoint Schengen Law does not specify categories of visas such as “touristic”, “private”, or “business”. Also in general, the EU Visa Code does not include the definition or notion of the abovementioned categories. By definition the EU Visa Code includes category “C” of the Schengen visa for short stay visit. However, passport cannot contain two valid visas of category “C” even if person is constantly holding short stay trips with different purposes.
Potential travelers according to the EU Visa Code do not have the right to possess two valid visas. Therefore Ukrainian tourists do not have possibility to apply for parallel “touristic” Schengen visa once they have in their passport other Schengen visa, even if this visa has been issued for business purposes. Theoretically, tourists could apply for a new short term Schengen visa for tourism purposes. But in such a case valid visa shall be annulled by the consulate, which is unacceptable for tourists.
Conclusions:
Therefore given the actions of federal police, the collision between conformity of journey purposes, declared during visa application procedure and the need of travelling to the EU with different purposes during the period of validity of the visa should envisage the possibility or opportunity to possess in parallel two or three valid Schengen visas.
The problem mentioned above could be solve partly through the creation of a judicial precedent that would foresee appeal of affected persons to the Court of the Federal Republic of Germany. The final solution of this problem requires the amendments of the EU Visa Code.
The problem revealed has broad civil relevance, as it creates a potential threat to more than 300 thousand Ukrainians – Schengen multiple visa holders, who use those visas within the frame of Schengen Law, which does not directly demand justification of purposes for all visits.
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