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

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EUROPEAN COMMISSION 

Brussels, 6.8.2010 
COM(2010)420 final 

2010/0228 (NLE) 

Proposal for a 

COUNCIL DECISION 

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

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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 and have been finalized on 1 October 2009.  

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. 

After the talks have stalled in July 2009 due to the disagreement between the parties on the 
personal  scope  of  the  visa  waiver  for  ordinary  passport  holders,  on  23  September  2009 
COREPER adapted the mandate to negotiate the visa waiver agreement with Brazil.  

According to the conclusions of COREPER, the Commission had to negotiate a visa waiver 
agreement with Brazil which provides: 

–  short-stay  visa-free  travel  for  visits  of  up  to  three  months  in  a  six  months  period  to  the 
Schengen area and to Romania, Bulgaria and Cyprus for Brazilian nationals and to Brazil 
for  EU  citizens  on  a  reciprocal  basis  with  a  more  limited  scope  than  the  existing  visa 
regime  at  present  under  Regulation  539/2001,  i.e.  the  agreement  would  basically  only 
apply to tourists and business people; 

–  a clause maintaining the existing bilateral visa waiver agreements in so far as they establish 
visa-free travel to Brazil for the categories of persons not covered by the EU agreement; 

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OJ L 81, 21.3.2001, p.1 

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–  and that as far as Brazilian nationals are concerned, the agreement can only cover visits to 
the Schengen area and to Romania, Bulgaria and Cyprus, and should apply irrespective of 
their point of departure and their place of residence. As far as EU citizens are concerned, 
the  agreement  should  apply  irrespective  of  their  point  of  departure  and  their  place  of 
residence when travelling to Brazil. 

At the fourth round of negotiations, held in Brasilia on 29 September – 1 October 2009, the 
text of a short-stay visa-waiver agreement for ordinary passport holders between the EU and 
Brazil could be finalized and thus the negotiations were concluded. 

With  regard  to  the  visa  waiver  agreement  for  ordinary  passport  holders,  preserving  the 
bilateral agreements, in so far as they establish visa-free travel for categories of persons not 
covered  by  the  EU-Brazil  agreement,  is  part  of  the  overall  package  deal  with  Brazil,  which 
was agreed in Brasilia, in accordance with the mandate. 
Given the specific circumstances, in order to pass a clear message to Brazil and to safeguard 
the existing bilateral agreements, a unilateral declaration has been made by the EU and sent to 
Brazil  in  form  of  a  letter  on  5  February  2010  that  the  European  Union  might  suspend  the 
agreement  if  Brazil  starts  denouncing  the  existing  bilateral  agreements.  This  approach  has 
been endorsed by Member States as well at the Visa Working Party of 20 January 2010. 

In its reply dated 14 April 2010 to the EU's letter, Brazil confirmed its intention to renegotiate 
some of the old bilateral agreements with the Member States. The two letters are attached to 
this proposal in Annexes II and III.  

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

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. 

2. 

OUTCOME OF THE NEGOTIATIONS 

The Commission considers that the objectives set by the Council in its negotiating directives – 
including the adaptation of the mandate by COREPER on 23 September 2009 – were attained 
and that the draft visa waiver agreement is acceptable to the Union. 

The  final  content  of  the  visa  waiver  agreement  for  ordinary  passport  holders  can  be 
summarised as follows. 

Purpose and Scope 

The EU-Brazil agreement gives a reciprocal visa waiver for travel for the purpose of tourism 
and  business  for  all  Brazilian  and  EU  citizens,  including  the  nationals  of  the  four  Member 
States not enjoying visa-free travel to Brazil at present.  

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Treaty on the Functioning of the European Union, OJ C 115, 9.5.2008, p. 47 

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The  two  purposes  "tourism"  and  "business"  are  widely  defined  in  the  agreement,  including 
e.g. sportsmen and artists provided that no remuneration is received for their activity, and also 
certain  disputed  categories,  such  as  family  visits  or  official  meetings,  which  will  also  be 
covered  by  the  categories  of  "tourists"  and  "business  people"  respectively.  These  two 
categories covered by the EU-Brazil agreement would cover 90-95 % of all the travelers.  
A  series  of  categories  (e.g.  students,  researchers,  artists,  religious  people  etc.,  which  are 
defined  by  the  Brazilian  national  law)  are  excluded  from  the  scope  of  the  agreement.  The 
agreement provides that the bilateral agreements concluded between Brazil and the Member 
States  covering  such  other  categories  not  covered  by  the  EU-Brazil  agreement  continue  to 
apply  insofar  as  they  provide  for  visa  waiver  for  those  categories.  This  way  EU  citizens 
falling under other categories (than tourism and business) covered by the bilateral agreements, 
can continue to benefit from the visa waiver under these bilateral agreements.  

The  category  of  persons  travelling  for  the  purpose  of  carrying  out  a  paid  activity  is  also 
excluded  from  the  scope  of  the  Agreement.  For  this  category,  each  Member  State  and  also 
Brazil  remain  free  to  impose  the  visa  requirement  on  the  citizens  of  the  other  Party  in 
accordance  with  the  applicable  Union  or  national  law,  or  in  accordance  with  bilateral 
agreements, which cover this category. 

In  consequence,  the  EU-Brazil  agreement  does  not  reduce  the  access  to  visa  free  travel  to 
Brazil  for  the  citizens  of  Member  States  having  a  bilateral  agreement  with  Brazil,  but 
basically maintains the status quo for these citizens.  
The  above  arrangements  on  the  scope  constitute  the  best  compromise  which  could  be 
achieved  by  the  Contracting  Parties  within  the  given  special  circumstances  and  they  are  in 
line with the mandate as amended by COREPER on 23 September 2009. 

Duration of stay 

The duration of stay is limited by the agreement to three months during a six-month period in 
the Schengen area. Thus, this agreement puts an end to the possibility provided to Brazilian 
nationals by the bilateral agreements to cumulate the three months stays per Member State in 
the Schengen area. 

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. 

Territorial application 

As  the  overseas  territories  of  France  and  the  Netherlands  do  not  form  part  of  the  Schengen 
area  and  the  visa  rules  (e.g.  Regulation  539/2001)  do  not  apply  there,  the  EU-Brazil 
agreement cannot cover these territories. On the other hand, EU nationals residing in any third 
country or an overseas territory of a Member State should be covered by the visa waiver (eg. a 
Dutch national residing in the USA or in Aruba, or a French residing in French Polynesia) in 
accordance with their nationality.  

The Agreement provides for visa-free travel for the citizens of Brazil when travelling 
to  the  European  territories  of  the  Member  States  and  should  apply  irrespective  of 
their point of departure and their place of residence.  

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As far as EU citizens are concerned, the agreement provides for visa-free travel when 
travelling  to  Brazil,  irrespective  of  their  point  of  departure  and  their  place  of 
residence. 

Nevertheless,  such  rules  on  the  territorial  application  are  not  pronounced  explicitly  in  the 
Agreement,  but  the  existing  rules  under  Union  law  and  Brazilian  national  law  continue  to 
apply, including bilateral agreements between Brazil and France and the Netherlands covering 
the non-European territories. 

This approach has been accepted by Member States at the meeting of the JHA Counsellors of 
5 October 2009. 

Other provisions 

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 Agreement sets up a Committee of experts for the management of the Agreement.  

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

A clause on the exchange of specimen of the passports has been inserted to the agreement. 
A  joint  declaration  has  been  made  on  full  dissemination  of  information  for  the  smooth 
implementation of the agreement.  

3. 

CONCLUSIONS 

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

–  approves, after obtaining the consent of the European Parliament, the attached Agreement 
between  the  European  Union  and  Brazil  on  short-stay  visa  waiver  for  the  holders  of 
ordinary passports. 

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2010/0228 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the European Union and the Federative 
Republic of Brazil on short-stay visa waiver for holders of ordinary 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 (6) (a) (v) thereof, 

Having regard to the proposal from the European Commission, 

Having regard to the consent of the European Parliament3, 

Whereas:  

(1) 

(2) 

(3) 

(4) 

The Commission has negotiated on behalf of the European Union an Agreement with 
the  Federative  Republic  of  Brazil  on  short-stay  visa  waiver  for  holders  of  ordinary 
passports.  

This  Agreement  has  been  signed,  on  behalf  of  the  European  Union,  on  …….2010 
subject to its conclusion at a later date, in accordance with Decision……../……/EU of 
the Council of [………….] 

The Agreement establishes a Committee for the management of the Agreement. It is 
appropriate  to  provide  for  a  simplified  procedure  for  the  establishment  of  the  Union 
position in this case. 

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. 

(5) 

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 

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OJ C… 
OJ L 131, 1.6.2000, p. 43. 

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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 Agreement between the European Union and the Federative Republic of Brazil on short-
stay visa waiver for holders of ordinary passports is hereby approved on behalf of the Union. 

The text of the agreement is attached to this Decision. 

The  President  of  the  Council  shall  give  the  notification  provided  for  in  Article  9  (1)  of  the 
Agreement6. 

Article 2 

Article 3 

This Decision shall be published in the Official Journal of the European Union. 

Done at Brussels,  

For the Council 
The President 

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OJ L 64, 7.3.2002, p. 20. 
The date of entry into force of the Agreement will be published in the Official Journal of the European 
Union [by the General Secretariat of the Council]. 

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ANNEX I 

AGREEMENT 

between 

the European Union and the Federative Republic of Brazil 

on short-stay visa waiver for holders of ordinary passports 

The European Union, hereinafter referred to as "the 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;  

(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 

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

Article 2  

Definitions 

For the purpose of this Agreement: 

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(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  

Scope of application 

1. For the purposes of this Agreement tourism and business purposes shall mean: 

•  touristic activities; 

•  visiting relatives; 

•  prospection  of  commercial  opportunities,  attending  meetings,  signing  contracts  and 

financial, management and administrative activities; 

•  attending  meetings,  conferences,  seminars  provided  that  no  remuneration  is  received  for 
from  respective  Brazilian/EU  sources  for  those  activities  (other  than  the  cost  of  stay 
directly or via a daily income); 

•  participation in sports competitions and artistic contests, provided that the participants do 
not receive any remuneration from respective Brazilian/EU sources, even if they compete 
for prizes, including prizes with money reward. 

2. Citizens of the European Union and nationals of Brazil who wish to carry out remunerated 
activities or be employed, engage in research, traineeships, studies and social work, as well as 
undertake technical assistance, missionary, religious or artistic activities, are not covered by 
this Agreement.  

Article 4 

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.  

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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 7, 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 5  

Duration of stay  

1.  For  the  purposes  of  this  Agreement  the  citizens  of  the  European  Union  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. For the purposes of this Agreement the citizens of Brazil 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. 

3. The citizens of Brazil 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.  

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

Article 6 

Management of the Agreement 

1. The Contracting Parties shall set up a Committee of experts (hereinafter referred to as the 
"committee"). 

The  committee  shall  be  composed  of  representatives  of  the  European  Union  and  of  Brazil. 
The Union shall be represented by the European Commission. 

2.  The  committee  shall  be  convened,  whenever  necessary,  at  the  request  of  one  of  the 
Contracting  Parties,  to  monitor  the  implementation  of  this  Agreement  and  settle  disputes 
arising from the interpretation or application of the provisions of this Agreement. 

Article 7  

Relation between this Agreement and existing bilateral  
visa agreements between the Member States and Brazil 

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This  Agreement  shall  be  without  prejudice  to  existing  bilateral  agreements  or  arrangements 
concluded  between  individual  Member  States  and Brazil, in so far as their provisions cover 
issues falling outside the scope of this Agreement. 

Article 8 
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 ordinary passports no later than thirty (30) days 
after the date of signature of this Agreement. 

2. In case of introduction of new ordinary 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 9 

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 two 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. 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  

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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 
Brazil,  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 travel 
documents valid for visa-free travel, the territorial application, including the list of Member 
States  fully  implementing  the  Schengen  acquis,  the  allowed  period  of  stay  and  the  entry 
conditions, including the right of appeal in case of refusal. 

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