TITLE IV ADMINISTRATIVE MANAGEMENT AND ORGANISATION
Article 37Organisation of visa sections
1.Member States shall be responsible for organising the visa sections of their consulates.
In order to prevent any decline in the level of vigilance and to protect staff from being exposed to pressure at local level, rotation schemes for staff dealing directly with applicants shall be set up, where appropriate. Particular attention shall be paid to clear work structures and a distinct allocation/division of responsibilities in relation to the taking of final decisions on applications. Access to consultation of the VIS and the SIS and other confidential information shall be restricted to a limited number of duly authorised staff. Appropriate measures shall be taken to prevent unauthorised access to such databases.
2.The storage and handling of visa stickers shall be subject to adequate security measures to avoid fraud or loss. Each consulate shall keep an account of its stock of visa stickers and register how each visa sticker has been used.
3.Member States’ consulates shall keep archives of applications. Each individual file shall contain the application form, copies of relevant supporting documents, a record of checks made and the reference number of the visa issued, in order for staff to be able to reconstruct, if need be, the background for the decision taken on the application.
Individual application files shall be kept for a minimum of two years from the date of the decision on the application as referred to in Article 23(1).
Article 38Resources for examining applications and monitoring of consulates
1.Member States shall deploy appropriate staff in sufficient numbers to carry out the tasks relating to the examining of applications, in such a way as to ensure reasonable and harmonised quality of service to the public.
2.Premises shall meet appropriate functional requirements of adequacy and allow for appropriate security measures.
3.Member States’ central authorities shall provide adequate training to both expatriate staff and locally employed staff and shall be responsible for providing them with complete, precise and up-to-date information on the relevant Community and national law.
4.Member States’ central authorities shall ensure frequent and adequate monitoring of the conduct of examination of applications and take corrective measures when deviations from the provisions of this Regulation are detected.
Article 39Conduct of staff
1.Member States’ consulates shall ensure that applicants are received courteously.
2.Consular staff shall, in the performance of their duties, fully respect human dignity. Any measures taken shall be proportionate to the objectives pursued by such measures.
3.While performing their tasks, consular staff shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
Article 40Forms of cooperation
1.Each Member State shall be responsible for organising the procedures relating to applications. In principle, applications shall be lodged at a consulate of a Member State.
2.Member States shall:
(a)equip their consulates and authorities responsible for issuing visas at the borders with the required material for the collection of biometric identifiers, as well as the offices of their honorary consuls, whenever they make use of them, to collect biometric identifiers in accordance with Article 42; and/or
(b)cooperate with one or more other Member States, within the framework of local Schengen cooperation or by other appropriate contacts, in the form of limited representation, co-location, or a Common Application Centre in accordance with Article 41.
3.In particular circumstances or for reasons relating to the local situation, such as where:
(a)the high number of applicants does not allow the collection of applications and of data to be organised in a timely manner and in decent conditions; or
(b)it is not possible to ensure a good territorial coverage of the third country concerned in any other way;
and where the forms of cooperation referred to in paragraph 2(b) prove not to be appropriate for the Member State concerned, a Member State may, as a last resort, cooperate with an external service provider in accordance with Article 43.
4.Without prejudice to the right to call the applicant for a personal interview, as provided for in Article 21(8), the selection of a form of organisation shall not lead to the applicant being required to appear in person at more than one location in order to lodge an application.
5.Member States shall notify to the Commission how they intend to organise the procedures relating to applications in each consular location.
Article 41Cooperation between Member States
1.Where ‘co-location’ is chosen, staff of the consulates of one or more Member States shall carry out the procedures relating to applications (including the collection of biometric identifiers) addressed to them at the consulate of another Member State and share the equipment of that Member State. The Member States concerned shall agree on the duration of and conditions for the termination of the co-location as well as the proportion of the visa fee to be received by the Member State whose consulate is being used.
2.Where ‘Common Application Centres’ are established, staff of the consulates of two or more Member States shall be pooled in one building in order for applicants to lodge applications (including biometric identifiers). Applicants shall be directed to the Member State competent for examining and deciding on the application. Member States shall agree on the duration of and conditions for the termination of such cooperation as well as the cost-sharing among the participating Member States. One Member State shall be responsible for contracts in relation to logistics and diplomatic relations with the host country.
3.In the event of termination of cooperation with other Member States, Member States shall assure the continuity of full service.
Article 42Recourse to honorary consuls
1.Honorary consuls may also be authorised to perform some or all of the tasks referred to in Article 43(6). Adequate measures shall be taken to ensure security and data protection.
2.Where the honorary consul is not a civil servant of a Member State, the performance of those tasks shall comply with the requirements set out in Annex X, except for the provisions in point D(c) of that Annex.
3.Where the honorary consul is a civil servant of a Member State, the Member State concerned shall ensure that requirements comparable to those which would apply if the tasks were performed by its consulate are applied.
Article 43Cooperation with external service providers
1.Member States shall endeavour to cooperate with an external service provider together with one or more Member States, without prejudice to public procurement and competition rules.
2.Cooperation with an external service provider shall be based on a legal instrument that shall comply with the requirements set out in Annex X.
3.Member States shall, within the framework of local Schengen cooperation, exchange information about the selection of external service providers and the establishment of the terms and conditions of their respective legal instruments.
4.The examination of applications, interviews (where appropriate), the decision on applications and the printing and affixing of visa stickers shall be carried out only by the consulate.
5.External service providers shall not have access to the VIS under any circumstances. Access to the VIS shall be reserved exclusively to duly authorised staff of consulates.
6.An external service provider may be entrusted with the performance of one or more of the following tasks:
(a)providing general information on visa requirements and application forms;
(b)informing the applicant of the required supporting documents, on the basis of a checklist;
(c)collecting data and applications (including collection of biometric identifiers) and transmitting the application to the consulate;
(d)collecting the visa fee;
(e)managing the appointments for appearance in person at the consulate or at the external service provider;
(f)collecting the travel documents, including a refusal notification if applicable, from the consulate and returning them to the applicant.
7.When selecting an external service provider, the Member State(s) concerned shall scrutinise the solvency and reliability of the company, including the necessary licences, commercial registration, company statutes, bank contracts, and ensure that there is no conflict of interests.
8.The Member State(s) concerned shall ensure that the external service provider selected complies with the terms and conditions assigned to it in the legal instrument referred to in paragraph 2.
9.The Member State(s) concerned shall remain responsible for compliance with data protection rules for the processing of data and shall be supervised in accordance with Article 28 of Directive 95/46/EC.
Cooperation with an external service provider shall not limit or exclude any liability arising under the national law of the Member State(s) concerned for breaches of obligations with regard to the personal data of applicants or the performance of one or more of the tasks referred to in paragraph 6. This provision is without prejudice to any action which may be taken directly against the external service provider under the national law of the third country concerned.
10.The Member State(s) concerned shall provide training to the external service provider, corresponding to the knowledge needed to offer an appropriate service and sufficient information to applicants.
11.The Member State(s) concerned shall closely monitor the implementation of the legal instrument referred to in paragraph 2, including:
(a)the general information on visa requirements and application forms provided by the external service provider to applicants;
(b)all the technical and organisational security measures required to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the cooperation involves the transmission of files and data to the consulate of the Member State(s) concerned, and all other unlawful forms of processing personal data;
(c)the collection and transmission of biometric identifiers;
(d)the measures taken to ensure compliance with data protection provisions.
To this end, the consulate(s) of the Member State(s) concerned shall, on a regular basis, carry out spot checks on the premises of the external service provider.
12.In the event of termination of cooperation with an external service provider, Member States shall ensure the continuity of full service.
13.Member States shall provide the Commission with a copy of the legal instrument referred to in paragraph 2.
Article 44Encryption and secure transfer of data
1.In the case of representation arrangements between Member States and cooperation of Member States with an external service provider and recourse to honorary consuls, the represented Member State(s) or the Member State(s) concerned shall ensure that the data are fully encrypted, whether electronically transferred or physically transferred on an electronic storage medium from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned.
2.In third countries which prohibit encryption of data to be electronically transferred from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned, the represented Members State(s) or the Member State(s) concerned shall not allow the representing Member State or the external service provider or the honorary consul to transfer data electronically.
In such a case, the represented Member State(s) or the Member State(s) concerned shall ensure that the electronic data are transferred physically in fully encrypted form on an electronic storage medium from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned by a consular officer of a Member State or, where such a transfer would require disproportionate or unreasonable measures to be taken, in another safe and secure way, for example by using established operators experienced in transporting sensitive documents and data in the third country concerned.
3.In all cases the level of security for the transfer shall be adapted to the sensitive nature of the data.
4.The Member States or the Community shall endeavour to reach agreement with the third countries concerned with the aim of lifting the prohibition against encryption of data to be electronically transferred from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned.
Article 45Member States’ cooperation with commercial intermediaries
1.Member States may cooperate with commercial intermediaries for the lodging of applications, except for the collection of biometric identifiers.
2.Such cooperation shall be based on the granting of an accreditation by Member States’ relevant authorities. The accreditation shall, in particular, be based on the verification of the following aspects:
(a)the current status of the commercial intermediary: current licence, the commercial register, contracts with banks;
(b)existing contracts with commercial partners based in the Member States offering accommodation and other package tour services;
(c)contracts with transport companies, which must include an outward journey, as well as a guaranteed and fixed return journey.
3.Accredited commercial intermediaries shall be monitored regularly by spot checks involving personal or telephone interviews with applicants, verification of trips and accommodation, verification that the travel medical insurance provided is adequate and covers individual travellers, and wherever deemed necessary, verification of the documents relating to group return.
4.Within local Schengen cooperation, information shall be exchanged on the performance of the accredited commercial intermediaries concerning irregularities detected and refusal of applications submitted by commercial intermediaries, and on detected forms of travel document fraud and failure to carry out scheduled trips.
5.Within local Schengen cooperation, lists shall be exchanged of commercial intermediaries to which accreditation has been given by each consulate and from which accreditation has been withdrawn, together with the reasons for any such withdrawal.
Each consulate shall make sure that the public is informed about the list of accredited commercial intermediaries with which it cooperates.
Article 46Compilation of statistics
Member States shall compile annual statistics on visas, in accordance with the table set out in Annex XII. These statistics shall be submitted by 1 March for the preceding calendar year.
Article 47Information to the general public
1.Member States’ central authorities and consulates shall provide the general public with all relevant information in relation to the application for a visa, in particular:
(a)the criteria, conditions and procedures for applying for a visa;
(b)the means of obtaining an appointment, if applicable;
(c)where the application may be submitted (competent consulate, Common Application Centre or external service provider);
(d)accredited commercial intermediaries;
(e)the fact that the stamp as provided for in Article 20 has no legal implications;
(f)the time limits for examining applications provided for in Article 23(1), (2) and (3);
(g)the third countries whose nationals or specific categories of whose nationals are subject to prior consultation or information;
(h)that negative decisions on applications must be notified to the applicant, that such decisions must state the reasons on which they are based and that applicants whose applications are refused have a right to appeal, with information regarding the procedure to be followed in the event of an appeal, including the competent authority, as well as the time limit for lodging an appeal;
(i)that mere possession of a visa does not confer an automatic right of entry and that the holders of visa are requested to present proof that they fulfil the entry conditions at the external border, as provided for in Article 5 of the Schengen Borders Code.
2.The representing and represented Member State shall inform the general public about representation arrangements as referred to in Article 8 before such arrangements enter into force.