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Brussels, 23 July 2008

Fourth Report from the Commission to the European Parliament and the Council on certain third countries' maintenance of visa requirements in breach of the principle of reciprocity

The issue: the new visa reciprocity mechanism

Regulation N° 539/2001 establishes the joint lists of third countries whose citizens are required to have a visa (negative list) and of third countries whose citizens are exempted from the visa requirement (positive list) by the Member States.

By their date of accession, the Member States joining the EU in 2004 and 2007 had to implement this Regulation and abolish the visa obligation for third countries of the positive list. According to the reciprocity principle, when the European Union has exempted a third country from the visa obligation, this third country should also exempt European Union citizens from the visa obligation. However, a number of these third countries maintained the visa obligation for citizens of one or more Member States, such as Australia, Brazil, Brunei Darussalam, Canada, Singapore and United States of America (USA).

Council Regulation (EC) N° 851/2005 introduces a new mechanism building on a system of compulsory notification of cases of non-reciprocity, including the steps by the Commission to ensure reciprocity in visa waiver for all EU Member States and Commission reports to the Council that are possibly accompanied by proposals for a temporary reintroduction of the visa obligation for the nationals of the third countries concerned.

The new mechanism also includes a joint Council/Commission declaration, which refers to the possibility of applying to the third country or countries concerned other provisional measures, particularly in political, economic or commercial fields.

The first Commission report was adopted on 10 January 2006, the second on 3 October 2006 and the third on 13 September 2007. These reports describe the steps taken by the Commission towards the third countries notified by the Member States in relation with non-reciprocity situations and gives information about their results.

Content of the third Commission report of 13 September 2007

The third Commission report was adopted on 13 September 2007.

Main conclusions of the report:

Several new cases of non-reciprocity were notified by Bulgaria and Romania after their accession to the EU. However, Mexico and New Zealand already abolished the visa requirement for citizens of Bulgaria and Romania within less than six months from their entry in the EU.

A comprehensive visa waiver agreement should soon be negotiated with Brazil.

Significant progress has been achieved with Australia and equal treatment for citizens of all Member States is expected to start from mid-2008.

Canada has made its visa review process more transparent and provided more information on its thresholds. However, no progress has been achieved in lifting visa requirements.

The USA has recently adopted new legislation modifying the Visa Waiver Program (VWP); the conditions and timeline for implementation of this new legislation have to be carefully monitored.

Although Canada and the USA have shown some progress, it is indicated that if no tangible progress would be achieved in the near future – i.e. extension of the visa waiver to at least one Member State before the end of 2007 - appropriate measures could be considered towards both countries (restoration of the visa requirement or measures in the political, economic or commercial fields).

The Council took note of the Commission's report and indicated that the competent Council bodies will continue the discussion.

Content of the fourth Commission report of 23 July 2008

The fourth reciprocity report was adopted by Commission on 23 July 2008. It describes the steps taken by the Commission towards those third countries with which the situation of non-reciprocity has been maintained.

The main conclusions of the report are:

With respect to three countries full reciprocity is now in place:

Israel - As from 1 March 2008, Romanian citizens are exempted from the visa requirement when entering Israel for a short stay.

Malaysia - Bulgaria informed the Commission that its citizens are exempt from the visa requirement for Malaysia as from 18 December 2007.

Paraguay - Bulgaria informed the Commission that a visa waiver agreement between Bulgaria and Paraguay, signed on 17 March 2006, entered into force on 27 March 2008. On 10 August 2008, the authorities of Paraguay informed the Commission that Romanian citizens are not required to be in a possession of a visa when entering Paraguay.

With four countries the steps to achieve reciprocity are ongoing:

Australia - Australia has provided the "autogrant facility" status to citizens of the remaining four Member States: Slovakia as from 20 March 2008 and Bulgaria, Poland and Romania as from 16 June 2008. This means that citizens of all Member States either enjoy the "autogrant facility" or need an Electronic Travel Authority. Australia postponed the introduction of the eVisitors system from mid-2008 to October 2008. All Member States including the associated Schengen countries, regardless of their present status, will be the first countries to benefit from this eVisitors system. The Commission will closely monitor the introduction of the eVisitors system.

Brazil - Romania informed the Commission that, following the entry into force of the Agreement between the Government of Romania and the Government of the Federative Republic of Brazil concerning the abolition of the visa system, as of 11 November 2007, Romanian citizens are exempt from the visa obligation for transit and journeys of short duration. On 18 April 2008, the Council adopted a decision authorizing the Commission to open negotiations on the conclusion of a short-stay visa-waiver agreement between the European Community and Brazil. On 2 July 2008 the negotiations for a short stay visa waiver agreement were opened.

Brunei Darussalam – All EU Member States and associated countries benefit from a 30 day visa waiver. According to information provided on the website of the Ministry of Foreign Affairs of Brunei Darussalam, a 90 day visa waiver arrangement is granted only to holders of ordinary U.S. machine readable passports. Since nationals from one third country benefit from a more favorable regime, the Commission will seek clarification from Brunei Darussalam's authorities on this differentiation and will assess the situation with Brunei Darussalam once this clarification has been provided.

Canada - Canada lifted the visa requirement for nationals of the Czech Republic and Latvia on 31 October 2007 and for nationals of Hungary, Lithuania, Poland and Slovakia on 29 February 2008. With regard to Lithuania and Poland, as from 1 January 2009 only their nationals holding biometric passports will be able to travel to Canada without a visa. A Canadian delegation conducted technical visits to Romania and Bulgaria in April 2008 to review the visa requirement. The Commission will continue to pursue discussions with Canada with a view to lifting visa requirements for Bulgaria and Romania.

With four countries no progress on reciprocity has been achieved since the third report of 13 September 2007:

Japan - By letter of 10 April 2008, the Ambassador of Japan to the European Union informed the Commission that the Japanese authorities are currently examining the possibility of taking measures to extend the visa exemption to Romanian nationals for short stays. The Commission takes note of this Japanese answer but looks forward to a full reply to its own note of July 2007. In line with the text agreed at the 2008 EU-Japan Summit, the Commission reiterates its request for full visa waiver reciprocity with respect to the citizens of all EU Member States and underlines the importance both EU and Japanese leaders attached to resolving this issue.

Panama - The authorities of Panama have confirmed their intention to waive the visa requirement for citizens of Bulgaria and Romania; however the internal procedures initiated to that end have not yet been finalized. The Commission will give a reasonable time period to the authorities of Panama to finalize these administrative procedures and closely monitor this process in order to encourage a fast resolution of this outstanding visa reciprocity issue.

Singapore - On 1 April 2008, the authorities of Singapore informed the Commission that no change to their visa program would be introduced. The Commission has asked for clarification on information received from the Singaporean authorities that visa waiver agreements are being negotiated with the Czech Republic, Estonia and Bulgaria, allowing the citizens of those Member States to enter Singapore for a period of 90 days without needing to apply for an extension. The Commission regrets that a three month visa free stay has not been granted to the citizens of all EU Member States, whereas Singaporean citizens enjoy a "three months within six months" visa-free stay in the EU. Furthermore the Commission observes that there is no indication that the visa waiver for EU citizens will match the one granted to three other countries (Australia, South Korea and USA) enjoying a preferential treatment. The Commission suggests that, while analyzing the information received by Singapore and the Member States with respect to the negotiations of visa waiver agreements, the introduction of retaliatory measures should be considered.

USA - On 30 January 2008, the U.S. authorities provided the Commission with two draft Memoranda of Understanding (MoU), which the USA intended to sign respectively with Visa Waiver Program (VWP) candidate countries and those countries already in the VWP. The draft MoU contained several elements falling under EC responsibility, e.g. the Electronic System for Travel Authorization (ESTA), enhanced standards for travel documents and provisions of information generated by Schengen rules.

On 12 March 2008, the Committee of Permanent Representatives (Coreper) agreed to pursue a twin track approach: "In order to enable the designation of all EU Member States in the U.S. VWP, there was common agreement that Member States may initiate or develop bilateral commitments with the USA. In this context, it is being understood that EC law will be respected and that the Commission will be kept fully informed. The EC track to be negotiated by the Commission will follow the common approach agreed on 5 March 2008." At the EU-US JLS Ministerial Troika meeting on 12-13 March 2008, the EU and the US agreed in a statement to follow such a twin track approach: "Those matters that fall within national responsibilities will be discussed with national authorities while those that fall within EU responsibility will be discussed with EU authorities."

EC-track - On 18 April 2008, the Council adopted a mandate for the Commission to negotiate an agreement between the European Community and the USA regarding certain conditions for access to the U.S. VWP in accordance with Section 711 of the "Implementing Recommendations of the 9/11 Commission Act of 2007". In line with this mandate the Commission drafted an EC-US agreement, endorsed by Member States. The purpose of this agreement is to record satisfaction of U.S. legal requirements which fall under EC competence for entry or continued participation in the VWP. This draft agreement served as the basis for the first meeting between the Commission and U.S. authorities on 29 April 2008. At that meeting the USA confirmed its commitment to cooperate on the development of the EC track.

Information exchange is of key concern for U.S. authorities within the EC track. However, the Commission and the Member States do not consider it possible to exchange information from EU databases (e.g. Eurodac and SIS) with third countries, due to legal constraints. Nevertheless, the Commission is committed to exploring further the possibilities for information sharing with U.S. authorities. This was reiterated in the letter Vice-President Barrot sent to Secretary Chertoff on 25 June 2008, in which he outlined the need to record satisfaction of U.S. legal requirements which fall under EC responsibility (repatriation, enhanced travel documents and airport security) for entry into or continued participation in the VWP. The USA has not yet responded to it.

ESTA - On 9 June 2008, the Interim Final Rule for the ESTA was published in the Federal Register. The Commission will provide its preliminary assessment on the basis of this Interim Final Rule as to whether or not the ESTA is tantamount to the Schengen visa application process as defined in the Common Consular Instructions, together with an analysis of the implications of ESTA for the protection of personal data. However, the Commission will be able to give a final assessment only once the Final Rule has been published in the Federal Register; i.e. 60 days before its entry into force.

Bilateral track - Seven Member States have signed a MoU with the USA: the Czech Republic on 27 February 2008, Estonia and Latvia on 12 March 2008, Hungary, Lithuania and Slovakia on 17 March 2008, and Malta on 11 April 2008. Furthermore, Bulgaria signed an interim declaration outlining the security requirements of the VWP with the USA on 17 June 2008. Germany signed an agreement on enhancing cooperation in preventing and combating serious crime on 11 March 2008 and Hungary signed on 20 May 2008 an agreement with the USA on exchange of screening information concerning known or suspected terrorists.

Despite all efforts of the Commission and individual Member States and the promises by the USA to include additional EU Member States into the VWP this year, no tangible progress has been made. Therefore, the Commission will propose retaliatory measures – e.g. temporary restoration of the visa requirement for U.S. nationals holding diplomatic and service/official passports – as from 1 January 2009 if no progress is achieved.

For the time being, citizens of the following 12 EU Member States still need a visa when travelling to the US: Bulgaria, the Czech Republic, Estonia, Greece, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Romania and Slovakia.

Further action

The Commission will continue the dialogue with those third countries that do not yet offer full reciprocity to all Member States.

The Commission will again report to the European Parliament and Council no later than 30 June 2009.

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