Defining the position of the Commission following the European Parliament resolution of 22 October 2020 on obligations of the Commission in the field of visa reciprocity and reporting on the state of play

I. INTRODUCTION

This Communication defines the position of the Commission for the purposes of Article 265 of the Treaty on the Functioning of the European Union following the European Parliament Resolution of 22 October 2020 on ‘obligations of the Commission in the field of visa reciprocity in accordance with Article 7 of Regulation (EU) 2018/1806’. It also reports on the developments in the field of visa reciprocity with the United States since March 2020, when the last Communication was adopted, underlining the continued efforts and engagement of the Commission to address the current situation of non-reciprocity, notwithstanding the COVID-19 pandemic.

The Resolution adopted by the European Parliament on 22 October 2020 represents the follow up to an oral question debated in the European Parliament plenary on 19 October 2020. In its answer to this question, the Commission restated its commitment to achieving visa reciprocity for all Member States as a matter of priority. The Commission also explained that, as regards the United States, it remains fully engaged in a results-oriented process, in close coordination with the Member States concerned, and that the results achieved show that tangible progress towards full visa waiver reciprocity can be achieved through the current route of continued engagement and joint diplomatic contacts. In the Resolution, the European Parliament considers that the Commission is “legally obliged to adopt a delegated act temporarily suspending the exemption from the visa requirement for nationals of third countries”, which have not lifted the visa requirement for citizens of certain Member States by the deadline of 12 April 2016. In practice, this refers to the United States only since the citizens of Bulgaria, Croatia, Cyprus and Romania are still visa required when travelling to the United States. It also calls on the Commission, based on Article 265 of the Treaty on the Functioning of the European Union, to adopt the required delegated act within two months from the date of adoption of the Resolution.

II. BACKGROUND

On 12 April 2016, the Commission presented a Communication on the state of play and possible ways forward as regard the situation of non-reciprocity with certain third countries in the area of visa policy. The Communication noted that, with the active support of the Commission, the vast majority of the non-reciprocity cases notified as regard third countries had been solved. However, it was also recalled that, if the remaining third countries with visa requirements did not lift them by 12 April 2016, the Commission would be obliged to adopt a delegated act suspending the visa waiver for their nationals for a period of 12 months in accordance with Regulation (EC) No 539/2001 of 15 March 2001, as amended by Regulation (EU) No 1289/2013 of 11 December 2013. The Regulation also required that the Commission take into account the consequences of the suspension of the visa waiver for the external relations of the EU and its Member States.

The April 2016 Communication assessed the consequences and impact of the suspension of the visa waiver for EU citizens and businesses as well as nationals of the third countries concerned, and invited the European Parliament and the Council to discuss the most appropriate way forward. The Commission subsequently presented six follow-up Communications: in July and December 2016, in May and December 2017, in December 2018 , and in March 2020 . In the last one, the Commission provided an overview of the state of play and the way forward as regard the situation of non-reciprocity with the United States which still affects citizens of Bulgaria, Croatia, Cyprus and Romania, i.e. the only remaining case of non-reciprocity. It also reported on progress achieved by Poland, which joined the United States Visa Waiver Program in November 2019.

The Communication presented in March 2020 noted the extraordinary situation in terms of implementation of visa policies world-wide, given the proliferation of visa-related measures taken by many countries to fight the COVID-19 pandemic. As of 13 March 2020, the United States imposed temporary travel restrictions on non-essential travel of foreign nationals who, regardless of their nationality, have been physically present in the Schengen area or have visited it 14 days prior to entering United States territory . These restrictions were extended to Ireland and the United Kingdom on 16 March . Since these entry restrictions are based on physical presence in an area rather than nationality, they cannot be considered as linked with visa reciprocity . The European Union took similar steps to restrict non-essential travel into the Union.

III. RECENT DEVELOPMENTS

1.Overview of EU-United States contacts and their follow-up

Although it was not possible to organise physical meetings after March 2020, the issue of non-reciprocity was addressed in all relevant videoconferences between the EU and the United States. It was, most notably, on the agenda of the EU-U.S. Justice and Home Affairs Ministerial meeting, held on 28 May 2020. It was also thoroughly discussed at the EU-U.S. Justice and Home Affairs Senior Officials’ meeting on 15 September 2020, and in the tripartite meetings (held between the Commission, the United States and the Member States concerned) on18-19 June 2020 and 10-11 December 2020.

EU-U.S. Justice and Home Affairs Ministerial meeting (May 2020)

At the EU-U.S. Justice and Home Affairs Ministerial meeting held on 28 May 2020, both the Croatian Presidency of the Council of the European Union and the Commission reiterated the importance of extending the U.S. Visa Waiver Program to all EU Member States. While recalling the progress made through the entry of Poland into the Visa Waiver Program, which demonstrates that joint pragmatic technical and diplomatic engagement is bearing fruit, it was stressed that securing waivers for the four remaining Member States remains a priority. It was agreed that in order to achieve progress, constructive engagement based on tailored work-plans elaborated by the United States for each of the four Member States concerned and guiding them towards full compliance with the U.S. Visa Waiver Program security requirements, should continue.

Tripartite meeting in June 2020

A tripartite videoconference meeting, dedicated to the issue of visa reciprocity, took place on 18-19 June 2020. It brought together representatives from the United States, the Commission and the Member States concerned - Bulgaria, Croatia, Cyprus and Romania. Continued engagement, despite the pandemic and the suspension of all non-essential travel between the EU and United States, showed the importance of the visa reciprocity issue. The participants explored how to continue common work in the COVID-19 context and discussed progress on outstanding U.S. Visa Waiver Program security requirements and on visa refusal rates.

Despite ongoing COVID-19 travel restrictions and the worldwide suspension of most of the U.S. visa service operations since March, representatives of the United States did not envisage changes to the method of calculating how visa-refusal rates are determined for the 2020 fiscal year. The visa-refusal rate is an important legal requirement for any country that aspires to join the U.S. Visa Waiver Program .

Regarding the outstanding U.S. Visa Waiver Program security requirements, there was a second round of discussions on the tailored work-plans provided by the United States to the four concerned Member States in 2019. The discussion on the basis of concrete country-specific work plans was considered by the Member States concerned as an improvement compared to the previous approach which was based on a more general assessment of the security requirements. Since the work plans contain guidance which is specific to each Member State, they allow the latter to focus their efforts on meeting the outstanding requirements. The plans, in fact, contain suggested actions to be taken by the Member States to reach compliance, as reported in the March 2020 Communication. The work-plans were revisited during the tripartite meeting and their implementation assessed, with all four Member States demonstrating progress on a range of work-strands. These include implementation of information-sharing agreements (namely Preventing and Combating Serious Crime Agreement), using information provided by the United States for enhanced screening and counter-terrorism efforts, as well as increased national screening capabilities. While acknowledging progress, the United States reiterated that its assessment follows a holistic approach, and it did not consider all the requisite agreements as fully implemented yet .

As an outcome of the meeting, all four Member States committed to continue working on various work-strands from their respective work-plans. The United States committed to continue reviewing the respective work-plans and give continuous feedback.

Tripartite meeting in December 2020

Another round of tripartite meeting took place on 10 and 11 December 2020, over videoconference. It served to underline the engagement despite the continued context of a global pandemic. The visa refusal rates for the 2020 fiscal years were not yet publicly available, but the U.S. authorities underlined the that the decline in 2020 also translated in a sharp decline in visa applications.