# EUR-Lex - 52012PC0265 - EN

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# 52012PC0265

**Proposal for a COUNCIL DECISION on the signature of the Agreement between the European Union and Ukraine amending the Agreement between the European Community and Ukraine on the facilitation of the issuance of visas /* COM/2012/0265 final - 2012/0137 (NLE) */**

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EXPLANATORY MEMORANDUM

I.            POLITICAL AND LEGAL
FRAMEWORK

The Visa Facilitation Agreement
between the European Community and Ukraine[1]
has been in force since 1 January 2008.

Article 12 of the Visa
Facilitation Agreement establishes a Joint Committee tasked inter alia
with monitoring the implementation of the Agreement and suggesting amendments
and additions thereto. The Joint Committee, at its 6th meeting on 5
May 2011 in Brussels endorsed suggestions for amendments and additions to the
Visa Facilitation Agreement.

At political level, at
the 8th EU-Ukraine Ministerial Meeting on Justice, Freedom and
Security on 9 June 2010, the Parties looked forward to
constructive negotiations on possible amendments to the Visa Facilitation Agreement.

On that basis the Commission
presented on 29 October 2010 a recommendation to the
Council in order to authorise the Commission to open negotiations with Ukraine
on an Agreement amending the Visa Facilitation Agreement.

Following the
authorisation given by the Council on 11 April 2011, the
negotiations with Ukraine on an Agreement amending
the Visa Facilitation Agreement were opened in Brussels on 6 May 2011. Three
further rounds of negotiations took place on 11 July 2011 in Kiev and on 9
November 2011 and 14 December 2011 in Brussels. The final text of the amending Agreement
was initialled in February 2012 by the chief negotiators.

Member States have been
regularly informed and consulted in the relevant Council Working Groups at all
stages of the negotiations.

On the part of the
Union, the legal basis for the amending Agreement is Article 77(2)(a), in
conjunction with Article 218 of the TFEU.

The attached proposal
constitutes the legal instrument for the signature of the amending Agreement.
The Council will decide by qualified majority.

II.          OUTCOME OF THE
NEGOTIATIONS

The Commission considers that the
objectives set by the Council in its negotiating directives were attained and
that the draft amending Agreement is acceptable to the Union.

The final content of it can be summarised
as follows:

-           simplified requirements for documents to be presented
regarding the purpose of the journey for the following categories of
applicants:

(a)        drivers
conducting international cargo and passenger transportation services and
journalists: have been reviewed.

(b)        members
of the technical crew accompanying journalists, participants in official
exchange programmes organised by municipal entities other than twin cities, close
relatives of EU citizens residing in the territory of the Member State of which
they are nationals, persons accompanying persons visiting for medical reasons, representatives
of civil society organisations undertaking trips for the purposes of
educational training, seminars, conferences, members of the professions
participating in international exhibitions, conferences, symposia, seminars or other
similar events, representatives of religious communities, and participants in
official EU cross-border cooperation programmes: have been introduced;

-           clarification of the provisions
on the period of validity of multiple-entry visas for the following categories
of applicants:

(a)        the
categories listed in Article 5(1) of the Visa Facilitation Agreement as well as national
and regional prosecutors and their deputies, spouses, children and parents
visiting citizens of the European Union residing in the territory of the Member
State of which they are nationals, and the technical crew accompanying journalists
in a professional capacity:

in principle,
multiple-entry visas valid for five years shall be issued. Multiple-entry visas
with a shorter period of validity shall only be issued where the expiry date of
the travel document requires this or where the need or the intention to travel
frequently or regularly is manifestly limited to a shorter period;

(b)        the
categories listed in Article 5(2) of the Visa Facilitation Agreement as well as participants
in official exchange programmes organised by municipal entities other than twin
cities, representatives of civil society organisations travelling regularly to
Member States for the purposes of educational training, seminars, conferences,
participants in official EU cross-border cooperation programmes, students and
post-graduate students who regularly travel for the purposes of study or
educational training, representatives of the religious communities, members of
the professions participating in international exhibitions, conferences,
symposia, seminars or other similar events held in the territory of the Member
States, persons needing to visit regularly for medical reasons and necessary
accompanying persons:

in principle,
multiple-entry visas valid for one year shall be issued. Multiple-entry visas
with a shorter period of validity shall only be issued where the expiry date of
the travel document requires this or where the need or the intention to travel
frequently or regularly is manifestly limited to a shorter period;

-           the possibility of charging a
fee of EUR 70 in case of urgent applications:

(a)        is
abolished for cases, where the visa application and supporting documents are
submitted by the visa applicant
without justification only three days or less before his/her departure;

(b)        is
introduced for cases, where based on the distance between the applicant's place of residence and the place where the application
has been submitted, the applicant has requested that a decision on the
application be taken within three days of its submission and the consulate has
accepted to take a decision within three days;

-           a full waiving of the visa fee for
the following additional categories of applicants: close relatives of citizens
of the European Union residing in the territory of the Member State of which
they are nationals, participants in official exchange programmes organised by
other municipal entities than twin cities, the technical crew accompanying
journalists in a professional capacity, representatives of the religious
communities, members of the professions participating in international
exhibitions, conferences, symposia, seminars or other similar events, participants
aged 25 years or less in seminars, conferences, sports, cultural or educational
events, organised by non-profit organisations, representatives of civil society
organisations undertaking trips for the purposes of educational training,
seminars, conferences, participants in official EU cross-border cooperation
programmes;

-           the possibility for an external
service provider, with whom a Member State cooperates in view of issuing a
visa, to charge a service fee of up to EUR 30, while maintaining the possibility
of all applicants to lodge their applications directly at a consulate;

-           the requirement that appointments
for lodging an application, where required, shall, as a rule, take place within
a period of two weeks from the date when the appointment was requested;

-           the exemption from the visa
requirement for short stays for the citizens of Ukraine who are holders of
biometric service passports. A European Union declaration on the provision
containing this exemption from the visa requirement is attached to the amending
Agreement. The amending Agreement clarifies that this does not affect the
applicability of provisions of existing bilateral Agreements or arrangements
between individual Member States and Ukraine on the exemption of the holders of
non-biometric service passports from the visa requirement for short stays;

-           replying to a specific request
formulated by Ukraine, a European Union Declaration is attached to the amending
Agreement on documents to be submitted when applying for short-stay visas;

-           replying to specific requests
formulated by Ukraine, a European Union Declaration is attached to the amending
Agreement on facilitations for family members not covered by the legally binding
provisions of the Visa Facilitation Agreement;

-           the specific situations of
Denmark, Ireland and the United Kingdom are reflected in the preamble;

-           the association of Switzerland
and Liechtenstein to the implementation, application and development of the
Schengen acquis is reflected in a Joint Declaration to the amending Agreement.

III.         CONCLUSIONS

In light of the above-mentioned results,
the Commission proposes that the Council

-           decide that the Agreement between
the European Union and Ukraine amending the Agreement between the European
Community and Ukraine on the facilitation of the issuance of visas be signed on
behalf of the Union and authorise the Commission to appoint the person(s) duly
empowered to sign on behalf of the Union.

2012/0137 (NLE)

Proposal for a

COUNCIL DECISION

on the signature of the Agreement between
the European Union and Ukraine amending the Agreement between the European
Community and Ukraine on the facilitation of the issuance of visas

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 77(2a), in conjunction with Article 218 (5), thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       The Agreement between the
European Community and Ukraine on the facilitation of the issuance of visas
entered into force on 1 January 2008.

(2)       On 11 April 2011 the
Council authorised the Commission to open negotiations with Ukraine on an
Agreement between the European Union and Ukraine amending the Agreement between
the European Community and Ukraine on the facilitation of the issuance of visas.
The negotiations were successfully concluded by the initialling of the
Agreement in February 2012.

(3)       The amending Agreement
should be signed by the negotiator on behalf of the European Union, subject to
its conclusion at a later date.

(4)       In accordance with the Protocol
on the Schengen acquis integrated into the framework of the European
Union and the Protocol on the position of the United Kingdom and Ireland in
respect of the area of freedom, security and justice, annexed to the Treaty on
European Union and to the Treaty on the Functioning of the European Union, and
confirming that the provisions of the amending Agreement do not apply to the
United Kingdom and Ireland,

(5)       In accordance with the
Protocol on the position of Denmark annexed to the Treaty on European Union and
to the Treaty on the Functioning of the European Union and confirming that the
provisions of the amending Agreement do not apply to Denmark,

HAS ADOPTED THIS DECISION:

Article 1

The Commission is authorised to sign, on
behalf of the European Union, the Agreement between the European Union and Ukraine
amending the Agreement between the European Community and Ukraine on the
facilitation of the issuance of visas, and to designate the persons empowered to
proceed to the signature.

The text of the amending Agreement to be
signed is attached to this Decision.

Article 2

This Decision shall enter into force on the
day of its adoption.

Done at Brussels,

For
the Council

The
President

ANNEX

AGREEMENT

between the European Union and Ukraine
amending the Agreement between the European Community and Ukraine on the facilitation
of the issuance of visas

THE EUROPEAN UNION,

of the one part, and

UKRAINE,

of the other part,

hereinafter referred to as ‘the Parties’,

HAVING REGARD to the Agreement between the
European Community and Ukraine on the facilitation of the issuance of visas,
which entered into force on 1 January 2008,

DESIRING to further facilitate people to
people contacts,

RECOGNISING the importance of the
introduction of a visa free travel regime for the citizens of Ukraine in due
course, provided that the conditions for well-managed and secure mobility are
in place,

TAKING INTO ACCOUNT the entry into force of
Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13
July 2009 establishing a Community Code on Visas (Visa Code), notably providing
the obligatory motivation of a visa refusal and the right to appeal for
applicants in case of refusal,

TAKING INTO ACCOUNT the Protocol on the
position of the United Kingdom and Ireland in respect of the area of freedom,
security and justice and the Protocol on the Schengen acquis integrated
into the framework of the European Union, annexed to the Treaty on European
Union and to the Treaty on the Functioning of the European Union, and
confirming that the provisions of this Agreement do not apply to the United
Kingdom and Ireland,

TAKING INTO ACCOUNT the Protocol on the
position of Denmark annexed to the Treaty on European Union and to the Treaty
on the Functioning of the European Union and confirming that the provisions of
this Agreement do not apply to Denmark,

HAVE AGREED AS FOLLOWS:

Article 1

The Agreement between the European
Community and Ukraine on the facilitation of the issuance of visas, hereinafter
referred to as 'the Agreement', shall be amended in accordance with the
provisions of this Article:

[Title
of the Agreement]

(1)
In the title, the word "Community"
shall be replaced by the word "Union".

[Article
1 of the Agreement

Purpose
and scope of application]

(2)
In Article 1 paragraph 2, the following first
sentence shall be inserted:

Ukraine may only reintroduce the visa
requirement for citizens or certain categories of citizens of all Member States
and not for citizens or certain categories of citizens of individual Member
States.

[Article
2 of the Agreement

General
Clause]

(3)
In Article 2 paragraphs 1 and 2, the word
"Community" shall be replaced by the words "European
Union".

[Article
3 of the Agreement

Definitions]

(4)
In Article 3 point (e), the word
"Community" shall be replaced by the words "European
Union".

[Article
4 of the Agreement

Supporting
documents regarding the purpose of the journey]

(5)
Article 4 paragraph 1 shall be amended as
follows:

(a)
point (c) shall be replaced by the following:

"(c) for drivers conducting
international cargo and passenger transportation services to the territories of
the Member States in vehicles registered in Ukraine:

— a written request from the national
association of carriers of Ukraine providing for international road
transportation, stating the purpose, duration, destination(s), and frequency of
the trips;"

(b)
point (e) shall be replaced by the following:

"(e) for journalists and the technical
crew accompanying them in a professional capacity:

— a certificate or other document issued by
a professional organisation or the applicant's employer proving that the person
concerned is a qualified journalist and stating that the purpose of the journey
is to carry out journalistic work or proving that the person is a member of the
technical crew accompanying the journalist in a professional capacity;"

(c)
point (i) shall be replaced by the following:

"(i) for participants in official
exchange programmes organised by twin cities and other municipal entities:

— a written request of the Head of
Administration/Mayor of these cities or other municipal entities;"

(d)
point (j) shall be replaced by the following:

"(j) for close relatives — spouse,
children (including adopted), parents (including custodians), grandparents and
grandchildren — visiting citizens of Ukraine legally residing in the territory
of the Member States or citizens of the European Union residing in the
territory of the Member State of which they are nationals:

— a written request from the host
person;"

(e)
point (m) shall be replaced by the following:

"(m) for visiting for medical reasons
and necessary accompanying persons:

— an official document of the medical
institution confirming necessity of medical care in this institution, the
necessity of being accompanied and proof of sufficient financial means to pay
the medical treatment;

(f)
the following points (n) to (q) shall be
inserted:

"(n) for representatives of civil
society organisations when undertaking trips for the purposes of educational
training, seminars, conferences, including in the framework of exchange
programmes:

— a written request issued by the host
organisation, a confirmation that the person is representing the civil society
organisation and the certificate on establishment of such organisation from the
relevant Register issued by a state authority in accordance with the national
legislation;

(o) for members of the professions
participating in international exhibitions, conferences, symposia, seminars or
other similar events held in the territory of the Member States:

— a written request from the host
organisation confirming that the person concerned is participating in the
event;

(p) for representatives of the religious
communities:

— a written request from a religious
community registered in Ukraine, stating the purpose, duration and frequency of
the trips;

(q) for participants in official EU
cross-border cooperation programmes, such as under the European Neighbourhood
and Partnership Instrument (ENPI):

— a written request by the host
organisation."

[Article
5 of the Agreement

Issuance
of multiple-entry visas]

(6)
Article 5 paragraphs 1 to 3 shall be replaced by
the following:

"1. Diplomatic missions and consular
posts of the Member States shall issue multiple-entry visas with the term of
validity of five years to the following categories of persons:

(a) members of national and regional
Governments and Parliaments, Constitutional Courts and Supreme Courts, national
and regional prosecutors and their deputies, if they are not exempted from the
visa requirement by the present Agreement, in the exercise of their duties;

(b) permanent members of official
delegations who, following official invitations addressed to Ukraine, shall
regularly participate in meetings, consultations, negotiations or exchange
programmes, as well as in events held in the territory of the Member States by
intergovernmental organisations;

(c) spouses and children (including
adopted), who are under the age of 21 or are dependant, and parents (including
custodians) visiting citizens of Ukraine legally residing in the territory of
the Member States or citizens of the European Union residing in the territory
of the Member State of which they are nationals;

(d) business people and representatives of
business organisations who regularly travel to the Member States;

(e) journalists and the technical crew
accompanying them in a professional capacity.

By way of derogation from the first
sentence, where the need or the intention to travel frequently or regularly is
manifestly limited to a shorter period, the term of validity of the
multiple-entry visa shall be limited to that period, in particular where

- in the case of the persons referred to in
lit. a, the term of office,

- in the case of the persons referred to in
lit. b. the term of the validity of the status as a permanent member of an
official delegation,

- in the case of the persons referred to in
lit. c, the period of validity of the authorisation for legal residence of
citizens of Ukraine legally residing in the European Union,

- in the case of the persons referred to in
lit. d the term of validity of the status as a representative of the business
organisation or the work contract,

- in the case of the persons referred to in
lit. e the work contract

is less than five years.

2. Diplomatic missions and consular posts
of the Member States shall issue multiple-entry visas with the term of validity
of one year to the following categories of persons, provided that during the
previous year they have obtained at least one visa, have made use of it in
accordance with the laws on entry and stay of the visited State:

(a) drivers conducting international cargo
and passenger transportation services to the territories of the Member States
in vehicles registered in Ukraine;

(b) members of train, refrigerator and
locomotive crews in international trains, travelling to the territories of the
Member States;

(c) persons participating in scientific,
cultural and artistic activities, including university and other exchange
programmes, who regularly travel to the Member States;

(d) participants in international sports
events and persons accompanying them in a professional capacity;

(e) participants in official exchange
programmes organised by twin cities and other municipal entities;

(f) representatives of civil society
organisations travelling regularly to Member States for the purposes of
educational training, seminars, conferences, including in the framework of
exchange programmes;

(g) for participants in official EU
cross-border cooperation programmes, such as under the European Neighbourhood
and Partnership Instrument (ENPI);

(h) students and post-graduate students who
regularly travel for the purposes of study or educational training, including
in the framework of exchange programmes;

(i) for representatives of the religious
communities:

(j) for members of the professions
participating in international exhibitions, conferences, symposia, seminars or
other similar events held in the territory of the Member States;

(k) persons needing to visit regularly for
medical reasons and necessary accompanying persons.

By way of derogation from the first
sentence, where the need or the intention to travel frequently or regularly is
manifestly limited to a shorter period, the term of validity of the
multiple-entry visa shall be limited to that period.

3. Diplomatic missions and consular posts
of the Member States shall issue multiple-entry visas with the term of validity
of a minimum of two years and a maximum of five years to the categories of
persons referred to in paragraph 2 of this Article, provided that during the
previous two years they have made use of the one year multiple-entry visas in
accordance with the laws on entry and stay of the visited State unless the need
or the intention to travel frequently or regularly is manifestly limited to a
shorter period, in which case the term of validity of the multiple-entry visa
shall be limited to that period."

[Article
6 of the Agreement

Fees
for processing visa applications]

(7)
Article 6 shall be amended as follows:

(a)
paragraph 3 shall be replaced by the following:

"3. The Member States shall charge a
fee of EUR 70 for processing visas in cases where, based on the distance
between the applicant's place of residence and the place where the application
has been submitted, the applicant has requested that a decision on the
application be taken within three days of its submission, and the consulate has
accepted to take a decision within three days."

(b)
paragraph 4 shall be amended as follows:

(i)         the first sentence shall be
replaced by the following:

"4. Without prejudice to paragraph 5
fees for processing the visa application are waived for the following
categories of persons:"

(ii)        in point (a) the following
words shall be inserted:

"or citizens of the European Union
residing in the territory of the Member State of which they are nationals"

(iii)       in point (i) the following
words shall be inserted:

"and other municipal entities"

(iv)       in point (j) the following words
shall be inserted:

"and the technical crew accompanying
them in a professional capacity"

(v)        the following points (o) to (s)
shall be inserted:

"(o) representatives of the religious
communities;

(p) for members of the professions
participating in international exhibitions, conferences, symposia, seminars or
other similar events held in the territory of the Member States;

(q) participants aged 25 years or less in
seminars, conferences, sports, cultural or educational events, organised by
non-profit organisations;

(r) representatives of civil society
organisations undertaking trips for the purposes of educational training,
seminars, conferences, including in the framework of exchange programmes;

(s) for participants in official EU
cross-border cooperation programmes, such as under the European Neighbourhood
and Partnership Instrument (ENPI)."

(vi)       the following sentence shall be
inserted:

"The first sentence shall apply also
where the purpose of the journey is transit."

(c)
the following paragraph shall be inserted:

"5. If a Member State cooperates with
an external service provider in view of issuing a visa the external service
provider may charge a service fee. This fee shall be proportionate to the costs
incurred by the external service provider while performing its tasks and shall
not exceed EUR 30. The Member States shall maintain the possibility for all applicants
to lodge their applications directly at their consulates If applicants are
required to obtain an appointment for the lodging of an application the
appointment shall, as a rule, take place within
a period of two weeks from the date when the appointment was requested."

[Article
10 of the Agreement

Diplomatic
passports]

(8)
Article 10 shall be amended as follows:

(a)
the title shall be replaced by the following:

"Diplomatic and service
passports";

(b)
in paragraph 2, which shall be renumbered 3, the
words "in paragraph 1" shall be replaced by "in paragraphs 1 and
2";

(c)
a new paragraph 2 shall be inserted as follows:

"2. Citizens of Ukraine, holders of
valid biometric service passports can enter, leave and transit through the
territories of the Member States without visas."

[Article
12

Joint
Committee for management of the Agreement]

(9)
Article 12 paragraph 1 shall be amended as
follows:

(a)
in the first sentence the word
"Community" shall be replaced by the word "Union";

(b)
in the second sentence, the word
"Community" shall be replaced by the words "European Union"
and the words "Commission of the European Communities" by the words
"European Commission".

[Article
13 of the Agreement

Relation
of this Agreement with bilateral Agreements between Member States and Ukraine]

(10)
The existing paragraph shall be numbered 1 and
the following new paragraph 2 shall be inserted:

"2. The provisions of bilateral
Agreements or arrangements between individual Member States and Ukraine
concluded before the entry into force of this Agreement providing for the
exemption of the holders of non-biometric service passports from the visa
requirement shall continue to apply without prejudice to the right of the
Member States concerned or Ukraine to denounce or suspend these bilateral
agreements or arrangements."

Article 2

This Agreement shall be ratified or
approved by the Parties in accordance with their respective procedures and
shall enter into force on the first day of the second month following the date
on which the last Party notifies the other that the procedures referred to
above have been completed.

Done at XXX, on the XXX day of XXX in the
year two thousand and twelve, in duplicate in the Bulgarian, Czech, Danish,
Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian,
Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian,
Spanish, Swedish and Ukrainian languages, each of these texts being equally
authentic.

For the European Union

For Ukraine

EUROPEAN UNION DECLARATION ON DOCUMENTS
TO BE SUBMITTED WHEN APPLYING FOR SHORT-STAY VISAS

The European Union will establish a
harmonised list of supporting documents, in accordance with Article 48
paragraph 1 lit. a of the Visa Code, in order to ensure that applicants from
Ukraine are required to submit, in principle, the same supporting documents.

EUROPEAN UNION DECLARATION ON
FACILITATIONS FOR FAMILY MEMBERS

The European Union takes note of the
suggestion of Ukraine to give a wider definition to the notion of family
members that should benefit from visa facilitation as well as of the importance
that Ukraine attaches to the simplification of movement of this category of
persons.

In order to ease the mobility of an
extended number of persons which have family links (in particular sisters and
brothers and their children) with citizens of Ukraine legally residing in the
territories of Member States or with citizens of the European Union residing in
the territory of the Member State of which they are nationals, the European
Union invites the Member States’ consular offices to make full use of the
existing possibilities in the Visa Code for facilitating the issuance of visas
to this category of persons, including in particular, the simplification of
documentary evidence requested for the applicants, exemptions from handling fees
and, where appropriate, the issuing of multiple-entry visas.

EUROPEAN UNION DECLARATION ON ARTICLE 10
PARAGRAPH 2 OF THE AGREEMENT

The European Union may invoke a
partial suspension of the Agreement and in particular of Article 10 paragraph
2, in accordance with the procedure set up by Article 14 paragraph 5 of the
Agreement, if the implementation of Article 10 paragraph 2 is abused
by Ukraine or leads to a threat to public security. If the implementation
of Article 10 paragraph 2 is suspended, the European Union shall initiate
consultations in the framework of the Committee set up by the Agreement with a
view to solving the problems that led to the suspension.

JOINT DECLARATION CONCERNING SWITZERLAND
AND LIECHTENSTEIN

The Parties take note of the close relationship
between the Union and Switzerland and Liechtenstein, particularly by virtue of
the Agreement of 26 October 2004 concerning the association of these countries
with the implementation, application and development of the Schengen acquis.

In such circumstances, it is desirable that
the authorities of Switzerland and Liechtenstein and Ukraine conclude, without
delay, bilateral agreements on the facilitation of the issuance of short-stay
visas in similar terms as the amended Agreement.

[1]               Agreement between the European
Community and Ukraine on the facilitation of the issuance of visas, OJ L
332/68, 18.12.2007.