on the signing, on behalf of the European Union, of the Agreement between the European Union and the Federative Republic of Brazil amending the Agreement between the European Union and the Federative Republic of Brazil on short-stay visa waiver for holders of ordinary passports

EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

Regulation (EU) No 610/2013 of 26 June 2013 (hereinafter: the SBC amendment) amended the Convention implementing the Schengen Agreement (CISA), Regulation (EC) No 562/2006 (Schengen Borders Code [SBC]) and Regulation (EC) No 810/2009 (the Visa Code) and – among others – re-defined the concept of 'short-stay' for third-country nationals in the Schengen area. As from 18 October 2013, for third-country nationals – irrespective of being visa required or exempt – who intend to travel to the Schengen area for a short-stay, the maximum duration of authorised stay is defined as '90 days in any 180-day period'. Contrary to the definition in force until 18 October 2013 (three months during a six-month period from the date of first entry), the new concept is more precise by setting the duration in days, instead of months. Moreover, the term 'from the date of first entry' which gave rise to many uncertainties and questions has been dropped from the definition.

The SBC amendment has introduced all the necessary changes in the EU's visa and borders acquis, i.e. the CISA, the SBC, the Visa Code and Regulation (EC) No 539/2001. However, the concept of short-stay is also enshrined in international agreements concluded by the European Union. The visa waiver agreements concluded with Antigua and Barbuda, the Bahamas, Barbados, Brazil, Mauritius, Saint Kitts and Nevis and Seychelles still refer to the old definition ('three months during a six months period following the date of first entry') when defining the duration of visa-free stay.

On 16 July 2014 the Commission adopted a recommendation for a Council Decision for authorising the opening of negotiations for amending the short-stay visa waiver agreements between the European Union and the above mentioned countries, which the Council adopted on 9 October 2014. The purpose was to implement vis-à-vis these seven countries the new definition of short-stay as provided by the SBC amendment. Furthermore, defining 'short-stay' in the visa waiver agreements in terms of days, rather than in months, is less complex to be verified and calculated by electronic/IT means, and thus more fitting for centralised border management systems, such as the proposed Entry/Exit system (EES).

Following the authorisation of the Council, the Commission started negotiations to amend the visa waiver agreements with the seven countries (Antigua and Barbuda, the Bahamas, Barbados, Brazil, Mauritius, Saint Kitts and Nevis and Seychelles).

The negotiations with Brazil were successfully finalised on 31 October 2017 by the initialling of the agreements amending the two Agreements between the European Union and the Federative Republic of Brazil on short-stay visa waiver for holders of ordinary passports, and for holders of diplomatic, service and official passports. Both parties have agreed to adopt the new definition of 'short-stay', among other technical details (see further below), but all amendments are insignificant from the traveller's point of view.

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

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•Legal basis

The Agreement between the European Union and the Federative Republic of Brazil amending the Agreement between the European Union and the Federative Republic of Brazil on short-stay visa waiver for holders of ordinary passports (hereinafter: ‘the Agreement’) requires approval of both contracting parties in accordance with their respective procedures. On the part of the Union, this requires Council decisions on the signing and conclusion of the Agreement.

This proposal is submitted to the Council in order to authorise the signing of the Agreement.

The Agreement ensures legal coherence as well as harmonisation among Member States, by adhering to the new definition of short-stay as is provided by the SBC amendment, which provides a clear-cut interpretation of 'short-stay'.

The legal basis for this proposal 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 Union has no power to amend visa waiver agreements that would bind the four countries that are associated with the implementation of the Schengen acquis, including the common visa policy. In order to ensure a harmonised approach and implementation of the provisions on the duration of authorised stay in the Schengen area, a joint declaration is included in the Agreement, stating the desirability for Brazil, on the one hand, and Iceland, Liechtenstein, Norway and Switzerland, on the other, to accordingly modify their existing bilateral visa waiver agreements.

•Subsidiarity (for non-exclusive competence)

Under Article 77(2)(a) TFEU, the negotiation of visa waiver agreements is within the exclusive competence of the Union.

In addition, if one of the contracting parties to an international agreement is the European Union, then any amendment of such an agreement cannot be legally implemented by Member States themselves. Hence, action at Union level is required.

•Proportionality