Explanatory Memorandum to COM(2018)176 - Signing of the Agreement with Brazil amending the Agreement with Brazil on short-stay visa waiver for holders of diplomatic, service or official passports - Main contents
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| dossier | COM(2018)176 - Signing of the Agreement with Brazil amending the Agreement with Brazil on short-stay visa waiver for holders of diplomatic, ... |
|---|---|
| source | COM(2018)176  |
| date | 11-04-2018 |
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 agreements 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 Brazil were successfully finalised on 31 October 2017 by the initialling of the agreements amending the two Agreements between the European Union and the Federative Republic of Brazil on short-stay visa waiver for holders of diplomatic, service or official passports, and for holders of ordinary passports. Both parties have agreed to adopt the new definition of short-stay, among other 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 agreements.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The Agreement between the European Union and the Federative Republic of Brazil amending the Agreement between the European Union and the Federative Republic of Brazil on short-stay visa waiver for holders of diplomatic, service or official passports (hereinafter: ‘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 signing of the Agreement.
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 Brazil, on the one hand, and Iceland, Liechtenstein, Norway and Switzerland, on the other, to accordingly modify their existing bilateral visa waiver agreements.
• Subsidiarity (for non-exclusive competence)
Under Article 77(2)(a) TFEU, the negotiation of visa waiver agreements is within the exclusive competence of the Union.
In addition, 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. Hence, action at Union level is required.
• Proportionality
The present proposal does not go beyond what is necessary to achieve the objective pursued, namely the modification of the existing agreement between the Federative Republic of Brazil and the European Union on short-stay visa waiver for holders of diplomatic, service or official passports.
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 Brazil to amend the agreement between the two parties on short-stay visa waiver for holders of diplomatic, service or official passports. Member States were informed of the progress of negotiations in 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 holding a valid diplomatic, service or official passport and for the citizens of Brazil holding a valid diplomatic, service or official passport 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.
b. Final provision – suspension of the Agreement (Article 8(4))
The Agreement modifies the last sentence of Article 8 i 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 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 agreement with the Federative Republic of Brazil on short-stay visa waiver for holders of diplomatic, service or official passports 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.
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 Union and the Federative Republic of Brazil on short-stay visa waiver for holders of diplomatic, service or official passports remain unaffected by the Agreement, including the territorial scope.
6. CONCLUSION
In the light of the above-mentioned results, the Commission proposes that the Council decide that the Agreement be signed on behalf of the Union and authorise the President of the Council to appoint the person(s) duly empowered to sign on behalf of the Union.