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MEMO/09/466

Brussels, 20 October 2009

Fifth 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 and ad-hoc Report from the Commission to the Council on the re-introduction of the visa requirement by Canada for citizens of the Czech Republic

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, such as Australia, Brazil, Brunei Darussalam, Canada and the United States of America (U.S.), maintained the visa obligation for citizens of one or more Member States.

Council Regulation (EC) N° 851/2005 introduced a new mechanism building on a system of compulsory notification of cases of non-reciprocity, including steps by the Commission to ensure reciprocity in visa waiver for all EU Member States and Commission reports to the Council and the European Parliament 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, the third on 13 September 2007 and the fourth on 23 July 2008. 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 fifth Commission report of 19 October 2009

The fifth reciprocity report was adopted by Commission on 19 October 2009. It describes the steps taken by the Commission towards those third countries who maintained a situation of non-reciprocity.

The main conclusions of the report are:

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

Japan – Following the mass media information campaign by Romania to inform its nationals under which conditions they can travel visa-free to Japan and the deployment of an internal affairs attaché in Tokyo, the visa requirement is temporarily waived for nationals of Romania from 1 September 2009 to 31 December 2011.

Panama – Panama informed the Commission that as from 19 September 2008 citizens of Bulgaria and Romania were no longer required to hold a visa to enter Panamanian territory.

Singapore – As from 1 November 2008, Singapore would grant nationals of the current 27 EU Member States an upfront 90-day visit pass and 90-day visa-free stay at the point of arrival.

With two countries further progress has been achieved:

Australia – On 27 October 2008, Australia introduced the eVisitors system. All Member States including the associated Schengen countries, regardless of their present status, are the first countries to benefit from it. This introduction has brought about equal treatment of the citizens of all Member States and Schengen associated countries. Nevertheless, the Commission will continue to closely monitor its implementation as a significant number of applications is still handled manually. Furthermore, the assessment on whether the eVisitors system is tantamount to the Schengen visa application process is ongoing.

U.S. – On 17 November 2008, the Czech Republic, Estonia, Latvia, Lithuania, Hungary and Slovakia joined the Visa Waiver Program (VWP). On 30 December 2008, also Malta joined the VWP.

ESTA – Following a preliminary assessment (on the basis of the Interim Final Rule) the Commission preliminarily concluded that at this stage the Electronic System for Travel Authorization (ESTA) cannot be considered as tantamount to the Schengen visa application process as defined in the Common Consular Instructions. Once the Final Rule on ESTA is published in the U.S. Federal Register, the Commission will issue a final assessment taking into account any possible changes. The U.S. administration informed that the Final Rule will be issued in the coming months.

TPA – In relation to the ESTA, special attention has been given to the proposal for a Travel Promotion Act of 2009 (TPA). The TPA would amend the Immigration and Nationality Act to direct the Secretary of Homeland Security to collect a fee for the use of ESTA. The proposed fee is the sum of $10 per travel authorisation and an amount that will at least ensure recovery of the full costs of providing and administering the ESTA.

Concerns about the proposed fee have been voiced in several letters to the U.S. administration and Congress and through press statements by the Head of the Commission Delegation in Washington. The fee is considered a step backwards in the joint endeavours to ease transatlantic mobility and taxing foreign travellers to promote tourism counterproductive to the envisaged purpose.

On 9 September 2009, the U.S. Senate adopted the proposed TPA. As a result, concerns were once again voiced in letters to Members of the House of Representatives. On 7 October 2009, the U.S. House of Representatives passed the TPA unchanged as part of another Bill. The U.S. legislative process is therefore well advanced and early enactment of the TPA now seems likely.

HIV/AIDS – Given the fact that pursuant to the U.S. Immigration and Nationality Act HIV-positive persons still may not travel under the U.S. VWP, Vice President Barrot, together with Commissioner Vassiliou, sent a letter to Ms Sebelius, Secretary of Health and Human Services, as the solution to the issue is within the competence of the U.S. Department of Health and Human Services. In her reply Secretary Sebelius informed that on 2 July 2009 a notice of proposed rulemaking was published to remove HIV references from the list of medical examinations certain aliens must undergo in order to be admitted into the U.S. If those references are removed, an individual having HIV infection would be able to travel under the VWP. The process is still ongoing.

Visa refusal rate – One of the conditions of the 9/11 Act is that a biometric air exit system be set up " that can verify the departure of not less than 97 percent of foreign nationals who exit through airports of the U.S." The Secretary of Homeland Security had to inform Congress on progress on this by 30 June 2009 in order to keep the visa waiver authority with a visa refusal rate criterion of 10%. However, to date, the Secretary has not made such a notification, meaning that the visa refusal rate for the purposes of the VWP may not exceed 3%.

With three countries no progress on reciprocity has been achieved since the fourth report of 23 July 2008:

Brazil – The visa waiver agreement between Lithuania and Brazil, signed in 2003, entered into force on 13 January 2009.

On 2 July 2008, the Commission formally opened negotiations with Brazil on a short-stay visa waiver agreement. Negotiations began in practice in November and December 2008. In the course of 2009, the Commission held several meetings with Brazil in order to reach an agreement on a compromise text for a visa waiver agreement. However, no substantial progress could be achieved. In this respect, Vice-President Barrot sent a letter to the Brazilian Minister of External Relations, Mr Amorim, on 31 July 2009 in which on the one hand he reiterated the need to accelerate and finalise the negotiations on the visa waiver agreement and on the other hand referred to the fact that the European Community had already shown a high degree of flexibility.

From 29 September to 1 October 2009, the Commission had a further round of negotiations with the Brazilian authorities in Brasilia. During these negotiations the parties succeeded to agree to a draft text of the short-stay visa waiver agreement for holders of ordinary passports.

Brunei Darussalam – All Member States benefit from a 30 day visa waiver. This visa waiver can be extended locally for two periods of 30 days up to a total visa waiver stay of 90 days. The Commission had consultations with the Brunei Darussalam Mission to the European Union at technical level to discuss the possibilities for a visa waiver of 90 days comparable to the situation for U.S. citizens and thereby achieving full reciprocity.

Canada – The visa requirement is maintained for nationals of Bulgaria and Romania, and as from 14 July 2009 reintroduced for nationals of the Czech Republic (see below for content of separate report on this reintroduction). Following the technical visits to Romania and Bulgaria in April 2008, Canada shared the key findings of its reviews with Bulgaria and Romania. Both Member States have provided updated information related to the findings of the review. Canada has shared its concerns with both Member States but has also expressed its intention to continue working together and has asked them to share updated information on the areas of concern. Furthermore, Canada will continue to monitor the conditions in Bulgaria and Romania as well as the progress made towards meeting Canada's criteria for visa exemption.

The issue: the reintroduction of the visa requirement by Canada for citizens of the Czech Republic

On 14 July 2009, in accordance with Council Regulation (EC) No 539/2001, as amended by Council Regulation (EC) No 851/2005, the Czech Republic has notified the Commission and the Council that as of 14 July 2009 Canada unilaterally applies the visa regime to nationals of the Czech Republic. This notification has been published in the Official Journal on 6 August 2009 , which means that in accordance with Council Regulation (EC) No 539/2001 the Commission shall report to the Council within 90 days from this date of publication; therefore, by 6 November 2009.

Content of the ad-hoc report of 19 October 2009

On 13 July 2009, the Canadian authorities informed the Czech authorities that the visa requirement would be reintroduced for Czech nationals as from the next day.

On 20 July 2009, the Czech Republic notified the Commission and the Council that the Czech Republic has imposed the visa requirement for holders of Canadian diplomatic and service passports as from 16 July 2009.

The issue of the reimposition of the visa requirement by Canada for Czech citizens has been discussed in Council at several occasions. At these occasions Member States expressed concern about the situation and indicated that the issue should be solved quickly by the Commission and should not escalate.

Following the reintroduction of the visa requirement, the Commission consulted both the Czech and Canadian authorities regularly on the issue, at which occasions both Canada and the Czech Republic have explained their position on the issue.

Assesment – This is the first time that a third country has re-imposed a visa requirement for citizens of a Member State. This highly regrettable situation should be brought to an end as soon as possible.

The Commission acknowledges that Canada provides several visa process facilitations to Czech citizens in the Czech Republic but calls upon Canada to return to the previous situation regarding the visa issuance process for Czech citizens by reinstating visa issuing facilities in the Czech Republic.

The Commission welcomes the willingness of all sides to engage in a dialogue and encourages Canada and the Czech Republic to continue their consultations in the framework of a Canada-Czech Republic Experts Working Group to address all issues in relation to the re-imposition of the visa requirement; e.g. for Canada to clarify its asylum system and the immigration violations by Czech travellers, and for the Czech Republic to clarify the implementation of its programmes and policies regarding minorities and in particular Roma communities. The Commission calls upon Canada to set out clearly a path of measures it intends to take to lift the visa requirement for Czech citizens in the near future.

Unless the measures mentioned above are established, in a satisfactory manner, by the end of 2009 the Commission will recommend imposing or re-imposing a visa requirement for certain categories of Canadian citizens; e.g. holders of diplomatic and service passports.

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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