# EUR-Lex - 52015PC0107 - EN

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# 52015PC0107

**Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, and provisional application of the Agreement between the European Union and the Independent State of Samoa on the short-stay visa waiver /* COM/2015/0107 final - 2015/0055 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           POLITICAL AND LEGAL
BACKGROUND

Council
Regulation (EC) No 539/2001[1]
lists the third countries whose nationals must be in possession of a visa when
crossing the external borders of the Member States and those whose
nationals are exempt from that requirement. Regulation (EC) No 539/2001 is
applied by all Member States, with the exception of Ireland and the United
Kingdom.

Regulation (EU)
No 509/2014 of the European Parliament and of the Council[2] amended Regulation (EC)
No 539/2001 by transferring 19 countries to Annex II, which lists the third
countries whose nationals are exempt from the visa requirement. Those 19
countries are: Colombia, Dominica, Grenada, Kiribati, Marshall Islands,
Micronesia, Nauru, Palau, Peru, Saint Lucia, Saint Vincent and the Grenadines,
Samoa, Solomon Islands, Timor-Leste, Tonga, Trinidad and Tobago, Tuvalu, the
United Arab Emirates and Vanuatu. The reference to each of those countries in
Annex II is accompanied by a footnote which specifies that "the exemption
from the visa requirement shall apply from the date of entry into force of an
agreement on visa exemption to be concluded with the European Union".

Regulation (EU)
No 509/2014 was adopted on 20 May 2014 and entered into force on 9 June
2014. In July 2014, the Commission presented a Recommendation to the Council to
authorise it to start negotiations on visa waiver agreements with each of the
following 17 countries: Dominica, Grenada, Kiribati, Marshall Islands,
Micronesia, Nauru, Palau, Saint Lucia, Saint Vincent and the Grenadines, Samoa,
Solomon Islands, Timor-Leste, Tonga, Trinidad and Tobago, Tuvalu, the United
Arab Emirates and Vanuatu[3].
On 9 October 2014, the Council addressed negotiating directives to the
Commission.

Colombia and
Peru are, according to Recital 5 of Regulation (EU) No 509/2014 and the
joint declaration issued at the time of adoption, subject to a specific
procedure which requires a further assessment of the fulfilment by them of the
relevant criteria, before the Commission can present to the Council
recommendations for decisions authorising the opening of negotiations on visa
waiver agreements with those two countries. They were therefore not included in
the above-mentioned Recommendation to the Council.

The
negotiations on the visa waiver agreement with Samoa were opened on 19 November
2014 in Brussels. During that meeting the entire draft text could be reviewed
and agreement was reached on all its aspects. After a number of subsequent
informal exchanges, the agreement was initialled by the chief negotiators on 15
December 2014.

The Member States were informed during the
meeting of the Visa Working Party of the Council held on 21 November 2014.

On the part of the Union, the legal basis
for the agreement 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 attached
proposal constitutes the legal instrument for the signature of the agreement.
The Council will decide by qualified majority.

Taking into
account the fact that Samoa will be able to complete its internal ratification
procedure quickly and the long period of time since the Commission first
proposed to exempt citizens of Samoa from the visa requirement (November 2012),
the proposed decision on the signature sets out the provisional application of
the agreement as from the date of its signature in accordance with Article
218(5) TFEU. Considering the need for the European Parliament’s consent before
the agreement is concluded, the Commission will inform the European Parliament
of the provisional application of the agreement.

2.           OUTCOME OF THE
NEGOTIATIONS

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

The final
content of it can be summarised as follows:

Purpose

The agreement provides for visa-free travel
for the citizens of the European Union and for the citizens of Samoa when
travelling to the territory of the other Contracting Party for a maximum period
of 90 days in any 180-day period.

In order to safeguard equal treatment of
all EU citizens, a provision has been included in the agreement stating that
Samoa may suspend or terminate the agreement only in respect of all the Member
States of the European Union and that the Union may also only suspend or
terminate the agreement in respect of all of its Member States.

The specific
situation of the United Kingdom and Ireland is reflected in the preamble.

Scope

The visa waiver covers all categories of
persons (ordinary, diplomatic, service/official and special passport holders)
travelling for all kinds of purposes, except for the purpose of carrying out a
paid activity. For this latter category, each Member State and also Samoa
remain free to impose the visa requirement on the citizens of the other Party
in accordance with the applicable Union or national law. In order to ensure
harmonised implementation, a joint declaration is attached to the agreement on
the interpretation of the category of persons travelling for the purpose of
carrying out a paid activity.

Duration of stay

The agreement provides for visa-free travel
for the citizens of the European Union and for the citizens of Samoa when
travelling to the territory of the other Contracting Party for a maximum period
of 90 days in any 180-day period. A joint declaration on the interpretation of
this period of 90 days is attached to the agreement.

The agreement takes into account the
situation of the Member States that do not yet apply the Schengen acquis
in full. As long as they are not part of the Schengen area without internal
borders, the visa waiver confers a right for the nationals of Samoa to stay for
90 days in any 180-day on the territory of each of those Member States
(Bulgaria, Croatia, Cyprus and Romania), independently of the period calculated
for the whole Schengen area.

Territorial application

The agreement contains provisions related
to its territorial application: in the case of France and the Netherlands, the
visa waiver would entitle nationals of Samoa to stay only in those Member
States’ European territories.

Declarations

Other joint
declarations are attached to the agreement:

- on the full
dissemination of information about the content and consequences of the visa
waiver agreement and related issues, such as the entry conditions, and

- on the
association of Norway, Iceland, Switzerland and Liechtenstein to the
implementation, application and development of the Schengen acquis.

3.           CONCLUSIONS

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;

– 
approve the provisional application of the
agreement pending its entry into force.

2015/0055 (NLE)

Proposal for a

COUNCIL DECISION

on the signing, on behalf of the European
Union, and provisional application of the Agreement between the European Union
and the Independent State of Samoa on the short-stay visa waiver

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the
Commission,

Whereas:

(1)       Regulation (EU) No 509/2014 of the European Parliament and
the Council[4]
transferred from Annex I to Annex II of Council Regulation (EC) No
539/2001[5]
the reference to Samoa.

(2)       The reference to that
country is accompanied by a footnote indicating that the exemption from the
visa requirement shall apply from the date of entry into force of an agreement
on visa exemption to be concluded with the European Union.

(3)       By decision of 9 October
2014, the Council authorised the Commission to negotiate an agreement between
the European Union and Samoa on the short-stay visa waiver.

(4)       Negotiations on the
agreement were opened on 19 November 2014.

(5)       The Agreement initialled
on 15 December 2014 should be signed and the attached declarations be approved.
The Agreement should be applied on a provisional basis, pending the completion
of the procedures for its formal conclusion.

(6)       In accordance with 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 the Treaty on the Functioning of the European Union, and confirming
that the provisions of the Agreement do not apply to the United Kingdom and
Ireland,

HAS DECIDED AS FOLLOWS:

Article 1

The signing of the Agreement between the
European Union and the Independent State of Samoa on the short-stay visa waiver
(hereinafter referred to as the Agreement) is hereby approved on behalf of the
Union, subject to its conclusion.

The text of the Agreement is attached to
this Decision.

Article 2

The declarations attached to this Decision
shall be approved on behalf of the Union.

Article 3

The President of the Council is hereby
authorised to designate the person(s) empowered to sign the Agreement on behalf
of the Union, subject to its conclusion.

Article 4

The Agreement shall be applied on a
provisional basis as from the date of signature thereof pending the completion
of the procedures for conclusion.

Done at Brussels,

For
the Council

The
President

[1]               Council Regulation (EC) No 539/2001 of 15 March 2001
listing the third countries whose nationals must be in possession of visas when
crossing the external borders and those whose nationals are exempt from that
requirement, OJ L 81, 21.03.2001, p. 1

[2]               Regulation (EU) No 509/2014 of the European
Parliament and of the Council of 15 May 2014 amending Council Regulation (EC)
No 539/2001 listing the third countries whose nationals must be in possession
of visas when crossing the external borders and those whose nationals are
exempt from that requirement, OJ L 149, 20.05.2014, p. 67

[3]               COM (2014) 467, 17.7.2014

[4]               Regulation (EU) No 509/2014 of the European
Parliament and of the Council of 15 May 2014 amending Council Regulation (EC)
No 539/2001 listing the third countries whose nationals must be in possession
of visas when crossing the external borders and those whose nationals are
exempt from that requirement, OJ L 149, 20.05.2014, p. 67.

[5]               Council Regulation (EC) No 539/2001 of 15 March 2001
listing the third countries whose nationals must be in possession of visas when
crossing the external borders and those whose nationals are exempt from that
requirement, OJ L 81, 21.03.2001, p. 1.

ANNEX

to the

Proposal for a Council Decision

on the signing, on behalf of the
European Union, and provisional application of the Agreement between the
European Union and the Independent State of Samoa on the short-stay visa waiver

AGREEMENT

between the European Union and the Independent State
of Samoa on the short-stay visa waiver

THE EUROPEAN UNION, hereinafter referred to as
"the Union", and

THE INDEPENDENT STATE OF SAMOA, hereinafter
referred to as “Samoa” and jointly with the Union as the "Contracting
Parties",

WITH A VIEW TO further developing friendly
relations between the Contracting Parties and desiring to facilitate travel by
ensuring visa-free entry and short stay for their citizens,

HAVING REGARD to Regulation (EU) No 509/2014
of the European Parliament and of the Council of 15 May 2014, amending Council
Regulation (EC) No 539/2001 listing the third countries whose nationals must be
in possession of visas when crossing the external borders and those whose
nationals are exempt from that requirement by, inter alia, transferring 19
third countries, including Samoa, to the list of third countries whose
nationals are exempt from the visa requirement for short stays in the Member
States of the European Union (EU),

BEARING IN MIND that Article 1 of Regulation
(EU) No 509/2014 states that for these 19 countries, the
exemption from the visa requirement shall apply from the date of entry into
force of an agreement on visa exemption to be concluded with the European Union,

DESIRING to safeguard the principle of equal
treatment of all EU citizens,

TAKING INTO ACCOUNT that persons travelling
for the purpose of carrying out a paid activity during their short stay are not
covered by this Agreement and therefore for this category the relevant rules of
Union law and national law of the Member States and the national law of Samoa
on the visa obligation or exemption and on the access to employment continue to
apply,

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 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,

HAVE AGREED AS FOLLOWS:

Article
1

Purpose

This Agreement provides for visa-free travel
for the citizens of the European Union and for the citizens of Samoa when
travelling to the territory of the other Contracting Party for a maximum period
of 90 days in any 180-day period.

Article
2

Definitions

For the purpose of this Agreement:

(a) "Member State" shall mean any
Member State of the European Union, with the exception of the United Kingdom
and Ireland;

(b) "a citizen of the European
Union" shall mean a national of a Member State as defined in point (a);

(c) "a citizen of Samoa" shall mean
any person who holds the citizenship of Samoa;

(d) "Schengen area" shall mean the
area without internal borders comprising the territories of the Member States
as defined in point (a) applying the Schengen acquis in full.

Article
3

Scope
of application

1. The citizens of the European Union holding
a valid ordinary, diplomatic, service, official or special passport issued by a
Member State may enter and stay without a visa in the territory of Samoa for
the period of stay as defined in Article 4(1).

The citizens of Samoa holding a valid
ordinary, diplomatic, service, official or special passport issued by Samoa may
enter and stay without a visa in the territory of the Member States for the
period of stay as defined in Article 4(2).

2. Paragraph 1 does not apply to persons
travelling for the purpose of carrying out a paid activity.

For this category of persons, each Member
State individually may decide to impose the visa requirement on the citizens of
Samoa or to withdraw it according to Article 4(3) of Regulation (EC) No
539/2001.

For this category of persons, Samoa may decide
on the visa requirement or the visa waiver for the citizens of each Member
State individually in accordance with its national law.

3. The visa waiver provided by this Agreement
shall apply without prejudice to the laws of the Contracting Parties relating
to the conditions of entry and short stay. The Member States and Samoa reserve
the right to refuse entry into and short stay in their territories if one or
more of these conditions are not met.

4. The visa waiver applies regardless of the
mode of transport used to cross the borders of the Contracting Parties.

5. Issues not covered by this Agreement shall
be governed by Union law, national law of the Member States and by national law
of Samoa.

Article
4

Duration
of stay

1. The citizens of the European Union may stay
in the territory of Samoa for a maximum period of 90
days in any 180-day period.

2. The citizens of Samoa may stay in the
territory of the Member States fully applying the Schengen acquis for a maximum
period of 90 days in any 180-day. This period shall be calculated independently
of any stay in a Member State which does not yet apply the Schengen acquis in
full.

The citizens of Samoa may stay for a maximum
period of 90 days in any 180-day in the territory of each of the Member States
that do not yet apply the Schengen acquis in full, independently of the period
of stay calculated for the territory of the Member States fully applying the
Schengen acquis.

3. This Agreement does not affect the
possibility for Samoa and the Member States to extend the period of stay beyond
90 days in accordance with national law and Union law.

Article
5

Territorial
application

1. As regards the French Republic, the
provisions of this Agreement shall apply only to the European territory of the
French Republic.

2. As regards the Kingdom of the Netherlands,
the provisions of this Agreement shall apply only to the European territory of
the Kingdom of the Netherlands.

Article
6

Joint
Committee for the management of the Agreement

1. The Contracting Parties shall set up a
Joint Committee of experts (hereinafter referred to as the
"Committee"), composed of representatives of the European Union and
representatives of Samoa. The Union shall be represented by the European
Commission.

2. The Committee shall have, inter alia, the
following tasks:

(a) monitoring the implementation of this
Agreement;

(b) suggesting amendments or additions to this
Agreement;

(c) settling disputes arising from the
interpretation or application of the provisions of this Agreement.

3. The Committee shall be convened whenever
necessary at the request of one of the Contracting Parties.

4. The Committee shall establish its rules of
procedure.

Article
7

Relation
between this Agreement and existing bilateral visa waiver agreements between
the Member States and Samoa

This Agreement shall take precedence over the
provisions of any bilateral agreements or arrangements concluded between
individual Member States and Samoa, insofar as their provisions cover issues
falling within the scope of this Agreement.

Article
8

Final
provisions

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

2. This Agreement is concluded for an
indefinite period of time, unless terminated in accordance with paragraph 5.

3. This Agreement may be amended by written
agreement of the Contracting Parties. Amendments shall enter into force after
the Contracting Parties have notified each other of the completion of their
internal procedures necessary for this purpose.

4. Each Contracting Party may suspend in whole
or in part this Agreement, in particular, for reasons of public policy,
protection of national security or protection of public health, illegal
immigration or the reintroduction of the visa requirement by either Contracting
Party. The decision on suspension shall be notified to the other Contracting
Party not later than 2 months before its entry into force. The Contracting
Party that has suspended the application of this Agreement shall immediately
inform the other Contracting Party once the reasons for suspension no longer
exist.

5. Each Contracting Party may terminate this
Agreement by giving written notice to the other Party. This Agreement shall
cease to be in force 90 days after the date of such notification.

6. Samoa may suspend or terminate this
Agreement only in respect of all the Member States.

7. The Union may suspend or terminate this
Agreement only in respect of all of its Member States.

Done at Brussels, in duplicate each in the
Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French,
German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish,
Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, each of
these texts being equally authentic.

JOINT DECLARATION WITH REGARD TO ICELAND,
NORWAY, SWITZERLAND AND LIECHTENSTEIN

The Contracting Parties take note of the
close relationship between the European Union and Norway, Iceland, Switzerland
and Liechtenstein, particularly by virtue of the Agreements of 18 May 1999 and
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 Norway, Iceland, Switzerland, Liechtenstein, on the one
hand, and Samoa, on the other hand, conclude, without delay, bilateral
agreements on the short-stay visa waiver in similar terms as this Agreement.

JOINT DECLARATION ON THE INTERPRETATION OF
THE CATEGORY OF PERSONS TRAVELLING FOR THE PURPOSE OF CARRYING OUT A PAID
ACTIVITY AS PROVIDED IN ARTICLE 3(2) OF THIS AGREEMENT

Desiring to ensure a common interpretation,
the Contracting Parties agree that, for the purpose of this Agreement, the
category of persons carrying out a paid activity covers persons entering for
the purpose of carrying out a gainful occupation/remunerated activity in the
territory of the other Contracting Party as an employee or as a service
provider.

This category should not cover:

— businesspersons, i.e. persons travelling
for the purpose of business deliberation (without being employed in the country
of the other Contracting Party),

— sportspersons and artists performing an
activity on an ad-hoc basis,

— journalists sent by the media of their
country of residence, and,

— intra-corporate trainees.

The implementation of this Declaration
shall be monitored by the Joint Committee within its responsibility under
Article 6 of this Agreement, which may propose modifications when, on the basis
of the experiences of the Contracting Parties, it considers it necessary.

JOINT DECLARATION ON THE INTERPRETATION OF THE
PERIOD OF 90 DAYS IN ANY 180-DAY PERIOD AS SET OUT IN ARTICLE 4 OF THIS
AGREEMENT

The Contracting Parties understand that the
maximum period of 90 days in any 180-day as provided by Article 4 of this
Agreement means either a continuous visit or several consecutive visits, the
duration of which does not exceed 90 days in any 180-day period in total.

The notion of "any" implies the
application of a moving 180-day reference period, looking backwards at each day
of the stay into the last 180-day period, in order to verify if the 90 days in
any 180-day requirement continues to be fulfilled. Among others, it means that
an absence for an uninterrupted period of 90 days allows for a new stay for up
to 90 days.

JOINT DECLARATION ON THE INFORMATION OF THE
CITIZENS ABOUT THE VISA WAIVER AGREEMENT

Recognising the importance of transparency for
the citizens of the European Union and the nationals of Samoa, the Contracting
Parties agree to ensure full dissemination of information about the content and
consequences of the visa waiver agreement and related issues, such as the entry
conditions.