Explanatory Memorandum to COM(2017)394 - Conclusion of the Agreement with the Bahamas amending the Agreement with the Bahamas on the short-stay visa waiver - Main contents
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| dossier | COM(2017)394 - Conclusion of the Agreement with the Bahamas amending the Agreement with the Bahamas on the short-stay visa waiver. |
|---|---|
| source | COM(2017)394  |
| date | 28-07-2017 |
1. CONTEXT OF THE PROPOSAL
Regulation (EU) No 610/2013 of 26 June 2013 1 (hereinafter: the SBC amendment) amended the Convention implementing the Schengen Agreement 2 (CISA), Regulation (EC) No 562/2006 3 (Schengen Borders Code [SBC]) and Regulation (EC) No 810/2009 4 (the Visa Code) and – among others – re-defined the concept of short-stay for third-country nationals in the Schengen area. As from 18 October 2013, for third-country nationals – irrespective of being visa required or exempt – who intend to travel to the Schengen area for a short-stay, the maximum duration of authorised stay is defined as 90 days in any 180-day period. Contrary to the definition in force until 18 October 2013 (three months during a six-month period from the date of first entry), the new concept is more precise by setting the duration in days, instead of months. Moreover, the term from the date of first entry which gave rise to many uncertainties and questions has been dropped from the definition.
The SBC amendment has introduced all the necessary changes in the EU's visa and borders acquis, i.e. the CISA, the SBC, the Visa Code and Regulation (EC) No 539/2001 5 . However, the concept of short-stay is also enshrined in international agreements concluded by the European Union. The visa waiver agreements concluded with Antigua and Barbuda 6 , the Bahamas 7 , Barbados 8 , Brazil 9 , Mauritius 10 , Saint Kitts and Nevis 11 and Seychelles 12 still refer to the old definition ('three months during a six months period following the date of first entry' 13 ) when defining the duration of visa-free stay.
On 16 July 2014 the Commission adopted a recommendation for a Council Decision for authorising the opening of negotiations for amending the short-stay visa waiver agreement between the European Union and the above mentioned countries 14 , which the Council adopted on 9 October 2014. 15 The purpose was to implement vis-à-vis these seven countries the new definition of short-stay as provided by the SBC amendment. Furthermore, defining short-stay in the visa waiver agreements in terms of days, rather than in months, is less complex to be verified and calculated by electronic/IT means, and thus more fitting for centralised border management systems, such as the proposed Entry/Exit system (EES) 16 .
Following the authorisation of the Council, the Commission started negotiations to amend the visa waiver agreements with the seven countries (Antigua and Barbuda, the Bahamas, Barbados, Brazil, Mauritius, Saint Kitts and Nevis and Seychelles).
The negotiations with the Commonwealth of the Bahamas were successfully finalised by the initialling of the amending agreement on 30 August 2016. Both parties have agreed to adopt the new definition of short-stay throughout the visa waiver agreement between the EU and the Bahamas. In addition, the agreement entails the modification of a few technical details (see further below), but all amendments are insignificant from the traveller's point of view.
The specific situation of the United Kingdom and Ireland is reflected in the preamble of the agreement.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The agreement requires approval of both contracting parties in accordance with their respective procedures. On the part of the Union, this requires Council decisions on the signing and conclusion of the agreement.
This proposal is submitted to the Council in order to authorise the conclusion of the Agreement to amend the Agreement between the European Community and the Commonwealth of the Bahamas on the short-stay visa waiver.
The agreement ensures legal coherence as well as harmonisation among Member States, by adhering to the new definition of short-stay as is provided by the SBC amendment, which provides a clear-cut interpretation of short-stay.
The legal basis for this proposal is point (a) of Article 77(2) of the Treaty on the Functioning of the European Union (TFEU), in conjunction with Article 218 thereof.
The Union has no power to amend visa waiver agreements that would bind the four countries that are associated with the implementation of the Schengen acquis, including the common visa policy. In order to ensure a harmonised approach and implementation of the provisions on the duration of authorised stay in the Schengen area, a joint declaration is included in the agreement, stating the desirability for the Bahamas, on the one hand, and Iceland, Liechtenstein, Norway and Switzerland, on the other, to accordingly modify their existing bilateral visa waiver agreements.
The attached proposal constitutes the legal instrument for concluding the agreement. The Council will decide by qualified majority after the signing of the agreement, on behalf of the Union, by a person designated by the presidency of the Council and after having obtained the consent of the European Parliament in accordance with point (a) of the second subparagraph of Article 218(6) TFEU.
• Subsidiarity (for non-exclusive competence)
If one of the contracting parties to an international agreement is the European Union, then any amendment of such an agreement cannot be legally implemented by Member States themselves. The visa waiver agreement with the Bahamas has been concluded by the European Union. Hence, action at Union level is required.
Moreover, the conclusion of visa waiver agreements by Member States would affect the Union acquis in the field of visas (Article 3(2) TFEU).
• Proportionality
The present proposal does not go beyond what is necessary to achieve the objective pursued, namely the modification of the existing visa waiver agreement between the Bahamas and the Union.
3. BUDGETARY IMPLICATIONS
This proposal does not entail additional costs for the EU budget.
4. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESMENTS
• Stakeholder consultations
On 9 October 2014, the Council adopted negotiating directives which authorized the Commission to open negotiations with the Commonwealth of the Bahamas to amend the visa waiver agreement between the two parties. Member States were informed of the progress of negotiations on meetings of the Visa Working Party.
5. OTHER ELEMENTS
• Outcome of negotiations
The Commission considers that the objectives set by the Council in its negotiating directives were attained and that the draft agreement is acceptable to the Union.
The final content of it can be summarised as follows:
The agreement provides for visa-free travel for the citizens of the European Union and for the citizens of the Commonwealth of the Bahamas when travelling to the other Contracting Party for a maximum period of 90 days in any 180-day period (instead of a maximum period of three months during a six months period following the date of first entry). The new definition is applied throughout the agreement between the European Union and the Commonwealth of the Bahamas on the short-stay visa waiver.
b. Final provision – suspension of the agreement (Article 8(4))
The agreement modifies the last sentence of Article 8 i by adding and shall lift that suspension. Hence, the last sentence of Article 8 i will read as follows: 'A Contracting Party that has suspended the application of this Agreement shall immediately inform the other Contracting Party should the reasons for that suspension cease to exist and shall lift that suspension.' By adding the words and shall lift that suspension to the current text, the amended agreement clarifies that a suspension of the visa waiver shall actually be lifted if the reasons that led to the suspension disappear. On this point, the amendment aligns the wording of the visa waiver agreement with the Bahamas with that of all other visa waiver agreements signed by the Union in 2015 and 2016. On 14 June 2016, the Visa Working Party was consulted on this amendment and no Member State raised any objections.
c. Replacing Community by 'Union'
Since the entry into force of the Treaty of Lisbon, on 1 December 2009, the European Union alone has acquired a consolidated legal personality. However, the European Community is still enshrined in international agreements that entered into force prior to the Treaty of Lisbon, as is the case for the Agreement between the European Community and the Commonwealth of the Bahamas on the short-stay visa waiver. The amending agreement therefore replaces 'Community' by Union throughout the visa waiver agreement.
Two joint declarations are attached to the agreement:
- On the interpretation of 90 days in any 180-day period, and;
- Concerning Iceland, Norway, Switzerland and Liechtenstein.
The agreement will enter into force on the first day of the 6th month following the date on which the last Contracting Party notifies the other that the ratification procedures have been completed. To ensure legal certainty and enable travellers to comprehend the law and to comply with it, a sufficiently long transitional period is necessary. Once ratification of the agreement has been completed, the six-month period will allow travellers to complete short stays that are still entirely calculated under the old definition, before entry into force of the new short-stay definition and its 180-day backward-looking reference period.
All other provisions of the existing agreement between the European Community and the Commonwealth of the Bahamas on the short-stay visa waiver remain unaffected by the amending agreement, including the territorial scope.
6. CONCLUSION
In the light of the above-mentioned results, the Commission proposes that the Council approves, after obtaining the consent of the European Parliament, the Agreement between the European Union and the Commonwealth of the Bahamas amending the Agreement between the European Community and the Commonwealth of the Bahamas on the short-stay visa waiver.