Proposal for a COUNCIL DECISION concerning the signing of the Memorandum of Understanding between the European Community and the National Tourism Administration of the People's Republic of China on visa and related issues concerning tourist groups from the People's Republic of China (ADS)

(presented by the Commission)

EXPLANATORY MEMORANDUM

I. Political and legal framework

In the Joint Press Statement of the 5th EU-China Summit, leaders stressed the importance of people to people contact between China and the EU, in particular through an increased number of visits by organised travel groups of Chinese citizens to Europe. According to the World Tourism Organisation, China will become one of the biggest sources of global tourism within the next ten years. It is estimated that 100 million Chinese could be travelling abroad by 2020 and increased Chinese tourism to Europe will undoubtedly lead to substantial economic and cultural benefits.

However, travel restrictions still apply for Chinese nationals. According to the legislation of the People's Republic of China, Chinese nationals can make tourist tours abroad only to tourist destinations which have been determined in bilateral tourism agreements with states of destination. Only after the Chinese State Council has granted Approved Destination Status (ADS) to a country, and thereby approved it as a destination for its citizens, can a bilateral ADS agreement be drawn up to allow Chinese tourist groups to travel to that country.

On 22 April 2002, the Commission had adopted a recommendation for a Council decision to authorise it to open negotiations for an ADS Agreement between the Community and the People's Republic of China. On 16 September 2002, the Council authorised the Commission to negotiate an ADS accord between the Community and China.

Once the ADS memorandum of understanding is signed, Chinese nationals will still need to be in possession of a visa to enter the Community (as required by Council regulation 539/2001), but will benefit under the memorandum of understanding from facilitated procedures to obtain tourism visas, thus fostering development of Chinese tourism in Europe and people to people contacts. However, the Commission and Member States deemed it essential to prevent abuse of the mechanism, notably by illegal overstayers. Consequently, the negotiation mandate given to the Commission included the requirement for a legally binding readmission clause in the agreement.

The Commission held a first round of exploratory talks with the Chinese National Tourism Administration (CNTA) in Beijing on 29 October 2002. A draft text for a future agreement was transmitted to the Chinese Side on 20 January 2003. The first round of formal negotiations for a Community ADS Agreement with China took place on 12 February 2003 and good progress had been achieved. However, because of SARS and China's resistance to the inclusion of a readmission clause within the text, only limited progress was achieved, even though several proposals and counterproposals on the text had been exchanged. On 1 July 2003, the CNTA confirmed in writing that ADS Status has been granted to the European Community.

A breakthrough in the negotiations was only achieved after intense political pressure from the EU on China during the Athens, Bali and New York EU-China Foreign Minister Troika Meetings (June-September 2003). Furthermore, the EU stressed its wish to conclude an ADS accord together with other agreements during the EU-China Summit. On 23 September 2003, a Chinese counterproposal was received featuring a state obligation to readmit overstayers within the text of the accord.

On 30 September 2003, the second round of negotiations took place in Beijing during which a final text was agreed upon. The memorandum of understanding, which is legally binding, was initialled in Beijing on 30 October 2003 during the 6th EU-China Summit. The fact that the Commission has been able to make the Chinese agree to a readmission clause is a major achievement, which none of the 23 countries (including Germany and Hungary) who already have a bilateral agreement has been able to obtain. The unprecedented acceptance by Beijing of a readmission clause within the ADS context could well pave the way for the Commission in its efforts to have China agree to open negotiations on a readmission agreement.

Member States, in particular through the Asia Oceania Working Group, the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA), the Visa Working Group and the High Level Working Group on Migration have regularly been informed and consulted at all stages of the negotiations.

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 Memorandum of Understanding is acceptable to the Community.

The final content of the draft can be summarised as follows:

- The Memorandum of Understanding is divided into 4 sections with 8 articles altogether. It also contains a protocol in the annex on the New Member States and four joint declarations.

- Section I, Articles 1-3, provide definitions and set out the purpose and scope of the Memorandum of Understanding

- Section II, Article 4 and 5, deal with visa procedures and readmission. Article 4 describes the procedures to be followed for the granting of short-term Schengen visas which have to contain the 'ADS' reference. The procedures are based on the Council decision of 12 July 2002, which introduced into the Common Consular Instructions (CCI) specific and detailed rules concerning visa applications processed by private administrative agencies, travel agencies and package tour operators. The Chinese designated travel agencies will act as authorised representatives of the visa applicants and forward the visa applications of their tour group. Personal interviews may beprovided for. The visa applications will be processed in accordance with applicable legislation. Measures will be taken against designated Chinese travel agencies in breach of EU and/or Chinese regulations.

- The readmission obligation of the Government of the People's Republic of China is clearly spelled out in Article 5 of the Memorandum of Understanding. Paragraph 1 sets out the obligation of the participating travel agencies to report without delay to the Member State having issued the visa and to the CNTA, any ADS tourist missing from the group or not having returned to China. Paragraph 2 states that the related travel agencies will work immediately with the competent departments of the Contracting Parties in the case of an illegal overstayer to help send back and receive the tourist, "who shall be readmitted by the Government of the People's Republic of China". Paragraph 2 further establishes that documentary evidence must be provided to prove identity as a Chinese citizen. Paragraph 5 of the joint declaration on implementation arrangements states that the documentary evidence referred to in Article 5 (2) of the MoU must include passports, visas applications, EU immigration control records, travel agency documents, or photocopies thereof.

- Section III, Article 6 creates the Approved Destination Status Committee to help implement the Memorandum of Understanding. The Committee must establish its own rules of procedure and will meet whenever necessary at the request of one of the Contracting Parties. The Community will be represented by the Commission.

- Section IV, Articles 7 and 8 contains the necessary rules on entry into force, duration and termination of the Memorandum of Understanding. Article 7 specifies that similar ADS MoUs between a Member State and China will no longer apply as of the entry into force of this MoU. Paragraph 6 of Article 8 states that the MoU will be legally binding on the two Contracting Parties under public international law.

- The Annex contains a protocol on the New Member States stating that, by derogation from Article 4(3) of the MoU, the Member States acceding to the European Union on 1 May 2004 will issue national visas limited to their own territory until the Council Decision provided for in Article 3 (2) of the Act of Accession takes effect.

- The joint declaration on implementation arrangements makes specific recommendations regarding travel agencies, protection of Chinese tourist rights, tour leaders and tour guides, information requirements and documentary evidence. It is important to note that the lists of travel agencies to be furnished to the CNTA by Member States are open lists, which have to be updated regularly.

- The specific situation of Denmark, the United Kingdom and Ireland is reflected in the 5th and 6th recital and in two joint declarations attached to the Memorandum of Understanding. The close association of Norway and Iceland to the implementation, application and development of the Schengen Acquis is likewise reflected in a joint declaration attached to theMemorandum of Understanding.

III. the draft decisions

The attached proposals constitute the legal instrument for the signature and conclusion of the Memorandum of Understanding. The legal basis for the signature and conclusion of the Memorandum of Understanding are Article 62 (2)_(b) (ii) and (iv) and Article 63 (3) (b) EC in conjunction with Article 300 EC. The Council will decide by unanimity, Art. 300 para. 2 subpara. 1 in conj. with Art. 67 (1) EC Treaty. The European Parliament will have to be formally consulted on the conclusion of the Memorandum of Understanding, in accordance with the first paragraph of Art. 300 para. 3 EC Treaty.

The proposed decision concerning the conclusion of the Agreement sets out a simplified procedure for the establishment of the Community position in the ADS Committee established by Article 6 of the Agreement. These procedures follow those that have been adopted by the Council in the decision concerning the conclusion of the readmission agreement with Hong Kong.

The implementation of the Agreement will also require cooperation between the consular authorities of the Member States applying the agreement. Subject to any contrary provision in the agreement, the provisions of the Common Consular Instructions, and in particular the provisions of Part VIII regarding consular cooperation at local level, will be applicable. [1]

[1] OJ C 313, 16.12.2002, p. 1.

IV. Conclusions

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

- decide that the Memorandum of Understanding be signed on behalf of the Community and authorise the President of the Council to appoint the person(s) duly empowered to sign on behalf of the Community;

- approve, after consultation of the European Parliament, the attached Memorandum of Understanding between the European Community and the National Tourism Administration of the People's Republic of China.

Proposal for a COUNCIL DECISION concerning the signing of the Memorandum of Understanding between the European Community and the National Tourism Administration of the People's Republic of China on visa and related issues concerning tourist groups from the People's Republic of China (ADS)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 62 (2) (b) (ii) and (iv) and 63 (3) (b) EC in conjunction with Article 300 paragraph 2, first subparagraph, second sentence thereof,

Having regard to the proposal from the Commission [2]

[2]

Whereas:

(1) By its Decision of 16 September 2002, the Council authorised the Commission to negotiate an agreement between the European Community and the Government of the People's Republic of China on Authorised Destination Status (ADS).

(2) Negotiations for the Agreement took place in Beijing in February and September 2003.

(3) Subject to its possible conclusion at a later date, the Memorandum of Understanding initialled in Beijing on 30th October 2003 should be signed.

(4) In accordance with the Protocol on the position of the United Kingdom and Ireland, and the Protocol integrating the Schengen acquis into the framework of the European Union, the United Kingdom and Ireland do not take part in the adoption of this Decision and are therefore not bound by it or subject to its application.

(5) In accordance with the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Decision and is therefore not bound by it or subject to its application.

HAS DECIDED AS FOLLOWS:

Sole Article

Subject to possible conclusion at a later date, the President of the Council is hereby authorised to designate the person(s) empowered to sign, on behalf of the European Community, the Memorandum of Understanding between the European Community and the National Tourism Administration of the People's Republic of China on visa and related issues concerning tourist groups from the People's Republic of China (ADS).

Done at Brussels,

For the Council

The President