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 Vanuatu 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 4 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 Vanuatu 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 Vanuatu 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 Vanuatu 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 Vanuatu 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 Vanuatu 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 Vanuatu 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 Vanuatu 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 Vanuatu 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.

2015/0044 (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 Republic of Vanuatu 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 Vanuatu.

(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 Vanuatu on the short-stay visa waiver.

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

(5) The Agreement initialled on 4 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 Republic of Vanuatu 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.

AGREEMENT

between the European Union and the Republic of Vanuatu on the short-stay visa waiver

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

THE REPUBLIC OF VANUATU, hereinafter referred to as “Vanuatu” 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 Vanuatu, 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 Vanuatu 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 Vanuatu 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 Vanuatu" shall mean any person who holds the citizenship of Vanuatu;

(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 Vanuatu for the period of stay as defined in Article 4(1).

The citizens of Vanuatu holding a valid ordinary, diplomatic, service, official or special passport issued by Vanuatu 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 Vanuatu or to withdraw it according to Article 4(3) of Regulation (EC) No 539/2001.

For this category of persons, Vanuatu 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 Vanuatu 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 Vanuatu.

Article 4

Duration of stay

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

2. The citizens of Vanuatu 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 Vanuatu 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 Vanuatu 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 Vanuatu. 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 Vanuatu

This Agreement shall take precedence over the provisions of any bilateral agreements or arrangements concluded between individual Member States and Vanuatu, 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. Vanuatu 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 Vanuatu, 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 Vanuatu, 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.