Proposal for a COUNCIL DECISION on the signature of the Agreement between the European Union and the Federative Republic of Brazil on short-stay visa waiver for holders of diplomatic, service or official passports
Date: 2010-08-06
Institutions: European Commission
Subjects: Brazil, EU visa policy, admission of aliens, agreement (EU), diplomatic protocol, residence permit

EN 

EN 

   EN 

 
 
EUROPEAN COMMISSION 

Brussels, 6.8.2010 
COM(2010)409 final 

2010/0221 (NLE) 

Proposal for a  

COUNCIL DECISION 

on the signature of the Agreement between the European Union and the Federative 
Republic of Brazil on short-stay visa waiver for holders of diplomatic, service or official 
passports 

EN 

   EN 

 
 
 
  
EXPLANATORY MEMORANDUM 

1. 

POLITICAL AND LEGAL BACKGROUND 

In accordance with Council Regulation (EC) No 539/20011, Brazilian nationals can travel to 
all Member States of the European Union without requiring a visa for short stays. This should 
be reciprocated by Brazil, however the country still requires a visa from the nationals of four 
Member States: Estonia, Cyprus, Malta and Latvia.  

For  constitutional  reasons,  Brazil  cannot  grant  a  visa  waiver  for  these  Member  States 
unilaterally;  it  is  necessary  to  conclude  a  visa  waiver  agreement  to  be  ratified  by  its 
Parliament.  

Brazil  has  bilateral  visa  waiver  agreements  with  the  Member  States,  except  the  four 
concerned.  These  bilateral  agreements  differ  from  each  other  considerably  as  regards  their 
personal scope of application (i.e. as regards the categories of persons benefiting from the visa 
waiver). 

It stems from the nature of the common visa policy and the exclusive external competence of 
the European Union in this area that only the Union can negotiate and conclude a visa waiver 
agreement, and not the individual Member States. Therefore, on 18 April 2008, the Council 
adopted a decision authorizing  the  Commission  to  open  negotiations  on  the  conclusion  of  a 
short-stay visa-waiver agreement between the European Union and Brazil. 

The negotiations started on 2 July 2008. 

During the negotiations, the Contracting Parties agreed to conclude two separate agreements: 
one  on  ordinary  passport  holders  and  the  other  on  diplomatic  and  service  passport  holders, 
since the agreement on diplomatic and service passport holders does not need to be ratified by 
the Brazilian Congress, thus its ratification can go quicker and separately from the agreement 
on ordinary passport holders. 

The negotiations on the visa waiver agreement for holders of diplomatic and service passports 
were finalized on 19 November 2009. 

Member States have been informed and consulted several times in the Visa Working Party of 
the Council. 

The Agreement was initialled on 28 April 2010. 

On the part of the Union, the legal basis for the Agreement is Article 77 (2) (a), in conjunction 
with Article 218 of the TFEU2. 

The attached proposals constitute the legal instruments for the signature and conclusion of the 
Agreement.  The  Council  will  decide  by  qualified  majority.  The  European  Parliament  will 
have to give its consent on the conclusion of the Agreement, in accordance with Article 218 
(6) (a) (v) of the TFEU. 

1 
2 

OJ L 81, 21.3.2001, p.1 
Treaty on the Functioning of the European Union, OJ C 115, 9.5.2008, p. 47 

EN 

2 

   EN 

 
                                                 
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  the  visa  waiver  agreement  for  diplomatic,  service  or  official  passport 
holders can be summarised as follows. 

Purpose and Scope 

The  EU-Brazil  agreement  gives  reciprocal  access  to  visa-free  travel  for  short  stays  for  all 
Brazilian and EU citizens holding a diplomatic, service or official passport. 

European citizens are already exempt from the visa obligation by Brazil, with the exception of 
the citizens of Estonia, Cyprus, Malta and Latvia. In order to safeguard equal treatment of all 
EU citizens, a provision has been included in the Agreement stating that Brazil may suspend 
or terminate the Agreement only in respect of all the Member States of the European Union 
and, reciprocally, the Union may also suspend or terminate the Agreement only 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  the  travelling  of  persons  holding  a  diplomatic,  service  or  official 
passport. 

Duration of stay 

The  citizens  of  the  Contracting  Parties  may  stay  in  each  other's  territory  for  a  maximum 
period  of  three  months  during  a  six  months  period  following  the  date  of  first  entry  into  the 
territory of the Contracting Party. 

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 Brazil to stay for three months on 
the territory of each of those Member States (Cyprus, Bulgaria, Romania), independently of 
the period calculated for the whole Schengen area. 

Other provisions 

To  settle  disputes  arising  from  the  interpretation  or  application  of  the  provisions,  this 
agreement shall be managed by the Committee of Experts set up by the Agreement between 
the European Union and the Federative Republic of Brazil on the short-stay visa waiver for 
holders of ordinary passports. 

A clause on the exchange of specimen of the passports has been inserted into the agreement. 

3. 

CONCLUSIONS 

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

–  decides that the Agreement be signed on behalf of the European Union and authorise the 
President of the Council to appoint the person(s) duly empowered to sign on behalf of the 
Union. 

EN 

3 

   EN 

 
2010/0221 (NLE) 

Proposal for a  

COUNCIL DECISION 

on the signature of the Agreement between the European Union and the Federative 
Republic of Brazil on short-stay visa waiver for holders of diplomatic, service or official 
passports 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission3, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

In  order  to  harmonise  their  visa  policy  with  the  provisions  of  Regulation  (EC)  No 
539/2001,  Member  States  granted  visa  waiver  to  the  nationals  of  the  Federative 
Republic of Brazil (hereinafter: Brazil) prior to their accession to the European Union, 
as Brazil figures on the list of third countries whose nationals are exempt from the visa 
requirement. 

For  constitutional  reasons,  Brazil  cannot  grant  visa  waiver  for  the  Member  States 
unilaterally;  it  is  necessary  to  conclude  a  visa  waiver  agreement  to  be  ratified  by  its 
Parliament.  

Brazil  has  bilateral  visa  waiver  agreements  with  most  of  the  Member  States, 
concluded prior to their accession to the European Union or prior to the establishment 
of the common visa policy. However, there are still four Member States, with whom a 
bilateral visa waiver agreement was not concluded in the past, consequently Brazil still 
requires a visa from the nationals of these Member States for short stays.  

It  stems  from  the  nature  of  the  common  visa  policy  and  the  exclusive  external 
competence of the European Union in this area that only the Union can negotiate and 
conclude a visa waiver agreement, and not the individual Member States.  

In view of the non-reciprocal treatment of Brazil towards certain Member States, by its 
decision  of  18  April  2008,  the  Council  authorised  the  Commission  to  negotiate  an 
agreement between the European Union and Brazil on short-stay visa waiver in order 
to restore reciprocal visa waiver. 

3 

……………………. 

EN 

4 

   EN 

 
                                                 
(6) 

(7) 

(8) 

(9) 

Negotiations  on  the  agreement  were  opened  on  2  July  2008  and  concluded  on  19 
November 2009. 

Subject  to  their  possible  conclusion  at  a  later  date,  the  Agreements  initialled  in 
Brussels on 28 April 2010, should be signed.  

This  Decision  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in 
which  the  United  Kingdom  does  not  take  part,  in  accordance  with  Council  Decision 
2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great 
Britain  and  Northern  Ireland  to  take  part  in  some  of  the  provisions  of  the  Schengen 
acquis4.  The  United  Kingdom  is  therefore  not  taking  part  in  its  adoption  and  is  not 
bound by it or subject to its application. 

This  Decision  constitutes  a  development  of  provisions  of  the  Schengen  acquis  in 
which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 
28 February 2002 concerning Ireland’s request to take part in some of the provisions 
of the Schengen acquis5. Ireland is therefore not taking part in its adoption and is not 
bound by it or subject to its application. 

HAS DECIDED AS FOLLOWS:  

Article 1 

The  signing  of  the  Agreement  between  the  European  Union  and  the  Federative  Republic  of 
Brazil  on  short-stay  visa  waiver  for  holders  of  diplomatic,  service  or  official  passports 
(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  President  of  the  Council  is  hereby  authorised  to  designate  the  person(s)  empowered  to 
sign the Agreement on behalf of the European Union, subject to its conclusion. 

Done at Brussels,  

For the Council 
The President 

4 
5 

OJ L 131, 1.6.2000, p. 43. 
OJ L 64, 7.3.2002, p. 20. 

EN 

5 

   EN 

 
 
 
                                                 
ANNEX  

AGREEMENT 

between 

the European Union and the Federative Republic of Brazil 

on short-stay visa waiver for holders of diplomatic, service or official passports 

The European Union, hereinafter referred to as "Union" 

and 

the Federative Republic of Brazil, hereinafter referred to as "Brazil" 

hereinafter referred to as the Contracting Parties; 

(1)  Desiring  to  safeguard  the  principle  of  reciprocity  and  to  facilitate  travel  by 
ensuring  visa  free  entry  and  short  stay  for  the  citizens  of  all  Member  States  of  the 
European Union and for the nationals of Brazil who are holders of valid diplomatic, 
official or service passports 

(2)  Reiterating their commitment to ensure reciprocal visa-free travel swiftly, fully 
respecting  the  completion  of  the  respective  parliamentary  and  other  internal 
procedures; 

(3)  With  a  view  to  further  developing  friendly  relations  and  continuing  to 
strengthen close ties between the Contracting Parties; 

(4)  Taking  into  account  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,  annexed  to  the  Treaty  on  European  Union  and  the  Treaty 
establishing  the  European  Community  and  confirming  that  the  provisions  of  this 
agreement do not apply to the United Kingdom and Ireland; 

Have agreed as follows: 

Article 1 – Purpose and scope 

Citizens of the European Union and citizens of Brazil, holders of a valid diplomatic, service 
or official passport, are allowed to enter, transit through and stay without a visa in the territory 
of  the  other  Contracting  Party  for  a  maximum  period  of  stay  of  three  months  during  a  six 
months period in accordance with the provisions of this Agreement. 

For the purpose of this Agreement: 

Article 2 – Definitions 

EN 

6 

   EN 

 
 
 
(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 national of Brazil" shall mean any person who holds the Brazilian nationality; 

(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; 

(e) Schengen acquis shall mean all measures aimed at ensuring the free movement of persons 
in  an  area  without  internal  borders,  in  conjunction  with  directly  related  flanking  measures 
with respect to external border controls, asylum and immigration and measures to prevent and 
combat crime. 

Article 3 – Conditions of visa waiver and stay 

1. 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 Brazil reserve the right to refuse entry into and short stay in their territories if one or more 
of these conditions are not met. 

2. The citizens of the European Union benefiting from this Agreement shall comply with the 
laws and regulations in force in the territory of Brazil during their stay. 

3.  The  nationals  of  Brazil  benefiting  from  this  Agreement  shall  comply  with  the  laws  and 
regulations in force in the territory of each Member State during their stay. 

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

5. Without prejudice to Article 6, visa issues not covered by this Agreement shall be governed 
by Union law, national law of the Member States and by national law of Brazil. 

Article 4 - Duration of stay 

1. The citizens of the European Union holding a valid diplomatic, official or service passport 
may stay in the territory of Brazil for a maximum period of three months during a six months 
period following the date of first entry into the territory of the country. 

2. The citizens of Brazil holding a valid diplomatic, official or service passport may stay in 
the  Schengen  area  for  a  maximum  period  of  three  months  during  a  six  months  period 
following  the  date  of  first  entry  into  the  territory  of  any  Member State  fully  applying  the 
Schengen  acquis.  This  period  of  three  months  during  a  period  of  six  months  shall  be 
calculated  independently  of  any  stay  in  a  Member State  which  does  not  yet  apply  the 
Schengen acquis in full. 

The citizens of Brazil holding a valid diplomatic, official or service passport may stay for a 
maximum period of three months during a six months period following the date of first entry 
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 Schengen area.  

EN 

7 

   EN 

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

Article 5 – Management of the Agreement 

1. The Contracting Parties shall make use of the Committee of Experts (hereinafter referred to 
as  the  "Committee")  mentioned  in  the  Agreement  between  the  European  Union  and  the 
Federative  Republic  of  Brazil  on  the  short-stay  visa  waiver  for  holders  of  ordinary 
passports to settle disputes arising from the interpretation or application of the provisions of 
this Agreement. 

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

Article 6 – Relation between this Agreement and existing bilateral visa waiver 
agreements between the Member States and Brazil 

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

Article 7– Exchange of specimen of passports 

1.  If  they  have  not  done  so  already,  Brazil  and  the  Member  States  shall  exchange,  through 
diplomatic channels, specimens of their valid diplomatic, official or service passports no later 
than thirty (30) days after the date of signature of this Agreement. 

2. In case of introduction of new diplomatic, official or service passports or modification of 
the  existing  ones,  the  Parties  shall  convey  to  each  other,  through  diplomatic  channels, 
specimens of these new or modified passports, accompanied by detailed information on their 
specifications and applicability, not later than thirty (30) days prior to its application. 

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 of this article. 

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. 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. 

EN 

8 

   EN 

 
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. Brazil may suspend or terminate this Agreement only in respect of all the Member States of 
the European Union. 

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

Done in Brussels, on……… 2008, in duplicate each in the Bulgarian, 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.  

For the European Union For the Federative Republic of Brazil 

EN 

9 

   EN