REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Sixth report on certain third countries' maintenance of visa requirements in breach of the principle of reciprocity
Date: 2010-11-05
Institutions: European Commission
Subjects: EU visa policy, admission of aliens, external border of the EU, foreign national, residence permit, rights of aliens, third country

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EUROPEAN COMMISSION 

Brussels, 5.11.2010 
COM(2010) 620 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

Sixth report 
on certain third countries' maintenance of visa requirements in breach of the principle 
of reciprocity 

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TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

2.5. 

2.6. 

3. 

Introduction .................................................................................................................. 3 

Results achieved since the Commission's fifth report on reciprocity .......................... 3 

Australia ....................................................................................................................... 3 

Brazil ............................................................................................................................ 5 

Brunei Darussalam ....................................................................................................... 6 

Canada.......................................................................................................................... 6 

Japan............................................................................................................................. 9 

United States of America (U.S.) .................................................................................. 9 

Conclusion.................................................................................................................. 12 

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1. 

INTRODUCTION 

Council Regulation (EC) No 539/2001 of 15 March 2001, listing the third countries 
whose nationals must be in possession of visas when crossing the external borders of 
the Member States (Annex 1 to the Regulation, the "negative list") and those whose 
nationals are exempt from that requirement (Annex II to the Regulation, the "positive 
list")1,  is  the  basic  instrument  of  our  common  visa  policy,  providing  a  reciprocity 
mechanism  for  cases  where  a  third  country  on  the  positive  list  maintains  or 
introduces a visa requirement for the citizens of one or more Member States2. 

The first four reports3 showed gradual progress achieved in solving non-reciprocity 
issues.  The  fifth  visa  reciprocity  report4  of  19  October  2009  showed  that  only  five 
third countries on the positive list still continued to require visas from citizens of one 
or more Member States. 

On the same date, the Commission adopted an ad-hoc report on the re-imposition of 
the visa requirement by Canada for Czech citizens5. For the first time a third country 
on the positive list had re-imposed a visa requirement for citizens of a Member State 
since  the  introduction  of  the  new  visa  reciprocity  mechanism  in  2005.  The 
Commission  concluded  that  unless  Canada  were  to  take  positive  steps  towards 
facilitating  formalities  for  Czech  citizens  wishing  to  visit  Canada  and  setting  out  a 
path  of  measures  towards  the  restoration  of  visa-free  travel  for  them  by  the  end  of 
2009,  the  Commission  would  recommend  imposing  or  re-imposing  a  visa 
requirement for certain categories of Canadian citizens. 

Both reports were presented to the JHA Council on 23 October 2009. The Council 
requested  the  Commission  to  continue  its  efforts  to  achieve  full  reciprocity  in  the 
case  of  third  countries  continuing  to  impose  a  visa  requirement  in  breach  of  the 
principle of reciprocity, including, in particular, through the restoration of visa free 
travel for Czech nationals in relation to Canada. 

The present sixth visa reciprocity report takes stock of the results of the efforts made 
since 19 October 2009. 

2. 

RESULTS ACHIEVED SINCE THE COMMISSION'S FIFTH REPORT ON RECIPROCITY 

2.1. 

Australia 

Current situation 

Since  27  October  2008,  citizens  of  all  Member  States  and  Schengen  associated 
countries  are  entitled  to  use  the  eVisitor  system  regardless  of  their  previous  status 

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OJ L 81, 21.3.2001, p. 1. 
The current visa reciprocity mechanism has been introduced by amending Council Regulation (EC) No 
539/2001 by Council Regulation (EC) No 851/2005 of 2 June 2005 (OJ L 141, 4.6. 2005, p.3.). 
COM(2006)  3  final  of  10.1.2006,  COM(2006)  568  final  of  2.10.2006,  COM(2006)  533  final  of 
13.9.2007, COM(2008) 486 final/2 of 9.9.2008. 
COM(2009) 560 final. 
COM(2009) 562 final. 

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(i.e. ETA or eVisa)6. An “eVisitor” is an authorisation to visit Australia for tourism 
or business purposes, for a maximum period of three months per entry. An eVisitor is 
valid for twelve months from the date it is granted. 

Processing of eVisitor applications 

Since the introduction of the eVisitor system Australia has provided the Commission 
with  regular  reports  on  eVisitor  application  statistics  covering  all  Member  States. 
The  third  report  covering  the  period  from  1  July  2009  to  31  October  2009  was 
provided  on  18  January  2010.  During  this  period  132,036  eVisitor  authorisations 
were  granted  of  which  88.54%  were  granted  automatically.  Except  for  citizens  of 
Romania  (28.99%),  Bulgaria  (40.95%)  and  Slovakia  (69.92%)  the  autogrant  rate  is 
above  82%,  with  Greek  citizens  having  the  highest  rate  at  95.59%.  Due  to  stated 
integrity  concerns  regarding  applicants  from  some  Member  States,  Australia  had 
decided  to  process  more  of  their  applications  manually  and  examine  them  more 
carefully.  745  applications  were  refused,  of  which  263  were  made  by  Romanian 
citizens.  Moreover,  the  statistics  show  that  the  average  Modified  Non-Return  Rate 
(MNRR7) was 0.71% while Latvia had the highest rate at 5.63%. 

In addition, an overview was given of the first full year of eVisitor (27 October 2008 
–  31  October  2009).  During  that  year  358,273  applications  were  lodged,  of  which 
86.94%  were  granted  automatically.  1,863  refusals  were  noted,  of  which  761  for 
Romanian citizens. The average MNRR was 0.59%, while Romania had the highest 
rate  of  4.83%.  Australia  has  stated  that  although  no  additional  integrity  concerns 
arose  during  the  first  year,  continued  monitoring  of  applications  by  Bulgarian  and 
Romanian citizens is required. 

On 4 April 2010, Australia provided a fourth report covering the period from 1 July 
2009  to  31  January  2010.  During  this  period  255,178  eVisitor  authorisations  were 
granted,  of  which  87.69%  were  granted  automatically.  Romania  (25.63%)  and 
Bulgaria (36.61%) had the lowest autogrant rates. Romania had the highest MNRR 
of 6.23% and Bulgaria a rate of 3.72%, while the average rate was 0.75%. 

On 10 June 2010, Australia provided a fifth report covering the period of 1 July 2009 
to 30 April 2010, and the period 1 July 2008 to 30 April 2009. A comparison of those 
two  periods  shows  that  the  autogrant  rate  has  increased  from  85.32%  to  87.09%. 
However,  the  autogrant  rates  for  Bulgarian  and  Romanian  applicants  significantly 
decreased  respectively  from  87.30%  to  35.38%,  and  from  78.57%  to  27.94%.  This 
reflects the fact that, due to stated integrity concerns, Australia is processing more of 
their  applications  manually.  Moreover,  Australia  has  stated  that  applications  by 
Latvian citizens are also emerging as an integrity concern. 

The  assessment  of  whether  eVisitor  is  tantamount  to  the  Schengen  visa  application 
process is being finalised and will be submitted in a separate document soon. 

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See Annex 2 of the first visa reciprocity report (COM(2006) 3 final) for further explanation of ETA and 
the eVisa. 
The Modified Non-Return Rate (MNRR) is a calculation of the percentage of visitors who have arrived, 
whose  initial  visas  has  expired  within  the  reporting  period  and  either  remain  in  Australia  unlawfully, 
who departed Australia on an expired visa, or who have applied for a subsequent visa other than visas 
that are deemed to be of benefit to Australia. 

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Assessment 

In  principle,  eVisitor  provides  equal  treatment  of  the  citizens  of  all  Member  States 
and  Schengen  associated  countries.  Besides,  the  average  autogrant  percentage 
remains  very  high.  However,  the  reports  show  that  due  to  Australia’s  integrity 
concerns  applications  by  citizens  of  some  Member  States  are  mainly  processed 
manually  in  order  to  allow  for  additional  examination.  The  Commission  will 
therefore continue to closely monitor the processing of eVisitor applications. 

2.2. 

Brazil 

Current situation 

The citizens of four Member States (Cyprus, Estonia, Latvia and Malta) still require 
a visa to enter Brazil. 

Steps taken to achieve reciprocity 

At  the  last  round  of  negotiations  held  in  Brasilia  from  29  September  to  1  October 
2009,  the  text  of  a  short-stay  visa-waiver  agreement  for  ordinary  passport  holders 
between the European Union and Brazil was finalised and thus the negotiations were 
concluded. The negotiations on the visa waiver agreement for holders of diplomatic, 
service or official passports were finalised on 19 November 2009. 

The  remaining  issue  of  a  unilateral  declaration  of  the  European  Union  to  be 
communicated  to  Brazil  in  order  to  safeguard  the  existing  bilateral  agreements 
(which  provide  a  visa  waiver  for  categories  of  travellers  not  covered  by  the  EU-
Brazil  agreement)  has  been  solved  through  an  exchange  of  letters  between  the 
Commission and Brazil between February and April 2010. In its letter the European 
Commission  declares  that  the  European  Union  may  suspend  the  agreement  for 
ordinary  passport  holders  if  Brazil  were  to  start  denouncing  the  existing  bilateral 
agreements.  In  its  reply,  Brazil  took  note  of  the  EU  declaration  and  reaffirmed  its 
intention to renegotiate some of the bilateral agreements on a case-by-case basis, in 
cooperation with the other party. 

On 28 April 2010, both agreements were formally initialled. 

On  6  August  2010  the  Commission  adopted  the  draft  decisions  on  signature  and 
conclusion of the two EU-Brazil short-stay visa waiver agreements. The decisions on 
signature were adopted by the Council at the JHA Council meeting on 7-8 October 
2010, which will allow the EU side to formally sign the agreements with Brazil. 

Assessment 

The  Commission  welcomes  the  initialling  of  the  respective  short-stay  visa  waiver 
agreements for holders of ordinary passports and for holders of diplomatic, service or 
official passports. The Commission hopes that both parties will be able to ratify both 
agreements through their internal procedures as soon as possible, in order to ensure 
that the citizens of all Member States will be able to travel visa-free to Brazil. 

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2.3. 

Brunei Darussalam 

Current situation 

The  citizens  of  all  Member  States  benefit  from  a  30-day  visa  waiver.  This  visa 
waiver can be extended locally for two periods of 30 days each, up to a maximum 
visa-free  stay  of  90  days.  However,  citizens  of  the  U.S.  enjoy  a  preferential 
immediate 90-day visa-free stay if they hold an ordinary machine-readable passport. 

Steps taken to achieve reciprocity 

The Commission has held further consultations with the Brunei Darussalam Mission 
to the European Union at technical level to discuss the possibilities for a full 90 days’ 
visa  waiver  for  EU  citizens.  Internal  discussions  among  ministries  of  Brunei 
Darussalam on the possibilities to extend the visa waiver to 90 days have taken place. 
However, the authorities of Brunei Darussalam require a formal request from the EU 
side to extend the visa waiver to 90 days. On 24 June 2010, the Commission formally 
requested  the  authorities  of  Brunei  Darussalam  to  grant  EU  citizens  a  90  days  visa 
waiver. 

Assessment 

The  Commission  will  await  the  reaction  from  Brunei  Darussalam  to  its  formal 
request before defining possible further action. 

2.4. 

Canada 

Current situation 

The visa requirement is maintained for citizens of Bulgaria, the Czech Republic and 
Romania. 

State of play regarding the Czech Republic 

Following the re-introduction of the visa requirement by Canada for nationals of the 
Czech  Republic  on  14  July  2009,  the  Commission  adopted  on  19  October  2009  an 
ad-hoc report on this re-introduction. The Commission indicated two conditions for 
Canada  to  establish,  in  a  satisfactory  manner,  by  the  end  of  2009:  reinstating  visa 
issuing  facilities  in  the  Czech  Republic  and  setting  out  a  path  of  measures  towards 
the  restoration  of  visa-free  travel  for  Czech  nationals.  The  Commission  would 
recommend  imposing  or  re-imposing  a  visa  requirement  for  certain  categories  of 
Canadian citizens, unless Canada were to meet these two conditions. 

By  letter  of  10  December  2009,  Canada  informed  the  Commission  that  as  of  21 
December  2009,  Czech  visa  applicants  would  be  able  to  submit  their  applications, 
speak to a visa office employee and pick up their visas at the Embassy of Canada in 
Prague.  At  the  Justice  and  Home  Affairs  Council  of  25  February  2010,  the 
Commission indicated that by opening visa facilities in Prague as from 21 December 
2009 the first of the two conditions set in the ad-hoc report had been met. 

On  15  March  2010,  the  second  Canada-Czech  Republic  Experts  Working  Group 
meeting took place in Prague and was also attended by the Commission. The meeting 

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allowed  for  an  in-depth  discussion  on  the  possible  content  of  the  path  of  measures 
that would lead Canada to decide to lift the visa requirement for Czech citizens in the 
future.  Based  on  this  discussion,  the  Commission  drafted  an  outline  of  the  path  of 
measures,  which  consists  of  two  parts:  firstly,  measures  for  which  the  process  has 
already  been  launched  and  which,  in  the  longer  run,  should  prevent  a  situation 
similar to the one that led Canada to re-introduce the visa obligation for the Czech 
Republic;  secondly,  measures  that  would  allow  Canada  to  decide  to  lift  the  visa 
obligation  before  the  first  measures  are  fully  implemented.  Both  Canada  and  the 
Czech Republic agreed to this outline of the path of measures. 

On 30 March 2010, the Canadian Government tabled the Balanced Refugee Reform 
Act  (Bill  C-11)  in  Parliament.  The  Bill  includes  changes  at  the  Immigration  and 
Refugee  Board  (IRB),  the  authority  to  designate  safe  countries  of  origin,  limits  on 
pre-removal risk assessments and other post-claim processes, and timely removals of 
failed asylum claimants. This should lead to quicker decisions, provide protection for 
persons  who  need  it,  and  faster  removals  of  rejected  applicants.  Following  the 
approval by the House of Commons and the Senate the Bill received Royal Assent 
by  the  Government  General  on  29  June  2010.  The  Royal  Assent  is  the  period  of 
implementation  of  the  Bill,  during  which  additional  regulations  and  operational 
guidelines will have to be drafted and additional staff be recruited and trained. On 14 
May 2010, the third Canada-Czech Republic Experts Working Group meeting took 
place in Ottawa and was also attended by the Commission. The outline of the path of 
measures  as  agreed  following  the  meeting  in  Prague  was  used  as  a  basis  for 
discussion. Each point of the outline was discussed, and for each point actions and 
timelines were set. Agreement has been reached on measures to be implemented. The 
document drafted by the Czech Republic, was by the mutual agreement between the 
Czech  Republic  and  Canada  named:  “Measures  Pertinent  to  the  Visa  Regime 
between the Czech Republic and Canada (as agreed at the EWG Meeting in Ottawa 
on 14 May 2010)”. 

On 20 September 2010, the fourth Canada-Czech Republic Experts Working Group 
meeting  took  place  in  Prague  and  was  again  attended  by  the  Commission.  The 
progress  of  implementation  of  the  actions  agreed  in  the  document  “Measures 
Pertinent to the Visa Regime between the Czech Republic and Canada” was checked. 
It  was  agreed  that  Canada  will  carry  out  an  expert  data-gathering  mission  to  the 
Czech  Republic  in  the  framework  of  its  visa  policy  review  in  November  or  the 
beginning of December 2010. Canada informed that the implementing regulations for 
the Balanced Refugee Reform Act should be adopted and the Act should enter into 
force before the end of 2011. 

State of play regarding Bulgaria and Romania 

The  issue  of  visa-free  travel  for  all  EU  citizens  to  Canada  was  raised  on  several 
occasions,  in  particular  at  the  EU-Canada  Summit  on  5  May  2010  where  the 
European Union strongly pressed for the common goal of visa-free travel to Canada 
for  all  EU  citizens.  Canada  reaffirmed  its  commitment  to  resolve  the  remaining 
obstacles to achieving this common goal as soon as possible. 

Following  technical  visits  by  Canadian  officials  to  Bulgaria  and  Romania  in  April 
2008, Canada shared the key findings  of  its  reviews  with Bulgaria and Romania in 
March 2009. Both Member States have provided updated information related to the 

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findings  of  the  review.  Canada  shared  its  outstanding  concerns  with  both  Member 
States, expressed its intention to continue working together and said that it would be 
receptive to receiving further updates on the areas of concern.  

Since  the  last  report,  Canadian  officials  have  met  several  times  with  Romanian 
Embassy  officials  in  Ottawa  to  discuss  visa  and  migration  issues.  Canada  has 
communicated  to  the  Romanian  authorities  that  it  is  not  planning  to  lift  the  visa 
requirement  at  this  time.  In  addition,  Canada  has  communicated  to  both  Member 
States  that  it  continues  to  monitor  country  conditions  and  the  progress  made  in 
Romania and Bulgaria toward Canada’s criteria for visa exemption. 

Assessment 

As  regards  the  situation  with  the  Czech  Republic,  the  Commission  had  set  two 
conditions to be met by Canada. The first condition was fulfilled by the opening of 
visa facilities in Prague as from 21 December 2010. 

As regards the second condition on the path of measures towards the restoration of 
visa-free  travel  for  Czech  nationals,  the  Commission  takes  note  of  the  ongoing 
reform of the asylum system in Canada and cooperation between the Governments of 
the  Czech  Republic  and  Canada..  Following  the  third  Canada-Czech  Republic 
Experts  Working  Group  meeting,  Canada  and  the  Czech  Republic  agreed  on  the 
document  drafted  by  the  Czech  Republic  and  entitled  “Measures  Pertinent  to  the 
Visa  Regime  Between  the  Czech  Republic  and  Canada  (as  agreed  at  the  EWG 
Meeting in Ottawa on May 14th, 2010)”. The Commission in this respect appreciates 
a  full  cooperation  of  the  Czech  Republic  on  the  implementation  of  these  measures 
and  notes  that  the  above  document  constitutes  the  "path  of  measures",  thereby 
implementing the second condition. Thus the Commission considers that Canada has 
met both conditions set in the ad-hoc report. 

At the fourth Canada-Czech Republic Experts Working Group meeting on 20 September 2010 
in  Prague,  further  progress  was  achieved  in  the  implementation  of  the  path  of  measures;  in 
particular,  it  was  agreed  that  Canada  will  carry  out  a  data-gathering  mission  to  the  Czech 
Republic in the framework of its visa policy review before the end of 2010, which could open 
concrete  prospects  for  a  decision  by  Canada  on  the  return  to  a  visa  waiver  for  the  Czech 
citizens. The Commission notes that the re-lifting of the visa requirement for Czech citizens 
should  not  await  the  implementation  of  the  asylum  reform  in  Canada;  it  was  agreed  by  the 
Czech Republic, Canada and the Commission in the minutes of the second Experts Working 
Group  meeting  on  15 March  2010  "that  the  adoption  of  the  new  CAN  asylum  legislation  – 
which  may  not  be  implemented  before  2013  –  should  not  condition  the  lifting  of  the  visa 
requirement; the implementation of the path of other measures would allow CAN to decide to 
lift  the  visa  requirement  before  the  date  of  implementation  of  this  new  CAN  asylum 
legislation",  and  confirmed  by  Canada  at  the  fourth  Experts  Working  Group  meeting  on  20 
September 2010. The Commission will closely monitor the progress of the implementation of 
outlined steps by Canada, in particular, the prompt and appropriate follow-up by Canada of its 
data-gathering mission to the Czech Republic expected to take place before the end of 2010. 
In  case  of  a  positive  assessment  the  Commission  expects  Canada  to  promptly  lift  its  visa 
obligation for Czech citizens in line with its previous commitments as set out in the ad-hoc 
report and the path of measures. 

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Regarding Bulgaria and Romania the Commission is aware that both countries do not 
yet meet all criteria for visa exemption set by Canada. Nevertheless, the Commission 
will closely monitor the situation and continue to pursue discussions with Canada in 
order to achieve progress towards the lifting of the visa requirements for citizens of 
Bulgaria and Romania.  

2.5. 

Japan 

Current situation 

All  Member  States  enjoy  visa-free  travel  to  Japan.  However,  visa-free  travel  for 
citizens of Romania has been granted on a temporary basis only, from 1 September 
2009 to 31 December 2011. 

Temporary visa waiver for Romanian citizens 

Japan has stated that it will evaluate the temporary visa waiver for Romanian citizens 
one  year  after  its  entry  into  force.  From  September  to  December  2010,  the 
Immigration  Bureau  of  the  Ministry  of  Justice  of  Japan  will  collect  and  analyse 
relevant information, including the over-stay rate.  

The attaché dispatched from the Ministry of Administration and Interior of Romania 
to the Embassy of Romania in Japan – one of the conditions for temporarily lifting 
the  visa  requirement  –  has  developed  close  cooperative  relations  with  the  Japanese 
Immigration Bureau. 

Assessment 

The Commission will await the evaluation on the first year of temporary visa waiver 
for  Romanian  citizens  by  the  Japanese  Immigration  Bureau  and  hopes  that  this 
evaluation  will  lead  Japan  to  convert  the  temporary  visa  waiver  into  a  permanent 
one. 

2.6. 

United States of America (U.S.) 

Current situation 

The  visa  requirement  is  maintained  for  citizens  of  Bulgaria,  Cyprus,  Poland  and 
Romania. 

On 5 April 2010, Greece joined the Visa Waiver Program (VWP). 

Steps taken to achieve reciprocity 

The  Commission  has  continued  to  raise  the  issue  of  non-reciprocity  with  the  U.S. 
authorities at technical and political levels, notably at the EU-US Justice and Home 

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Affairs  Ministerial  Troika  meeting  on  28  October  2009,  the  EU-US  Task  Force 
meetings  on  10  December  2009  and  10  March  2010,  the  EU-US  Senior  Level 
Informal Justice and Home Affairs meetings in January 2010 and in July 2010, and 
the  EU-US  Justice  and  Home  Affairs  Ministerial  meeting  on  8-9  April  2010.  On  2 
November 2009, the Final Rule on medical examination of Aliens was published in 
the U.S. Federal Register Vol. 74, No. 210, which came into effect as from 4 January 
2010.  This  rule  deleted  HIV/AIDS  from  the  list  of  communicable  diseases.  This 
means that persons with HIV/AIDS are eligible to travel under the VWP as from 4 
January 2010. 

On 20 January 2010, U.S. Customs and Border Protection (CBP) initiated a 60-day 
transition  period  to  enforced  Electronic  System  for  Travel  Authorization  (ESTA) 
compliance for air carriers. Airlines may refuse boarding to VWP travellers without 
an approved ESTA. 

On 4 March  2010, President Obama signed  into law  H.R.  1299,  the  “United  States 
Capitol  Police  Administrative  Technical  Corrections  Act  of  2009,”  which  includes 
the  Travel  Promotion  Act  of  2009  (TPA).  The  TPA  amends  the  Immigration  and 
Nationality Act in the sense that no later than 6 months after the date of enactment of 
the TPA, the Secretary of Homeland Security shall establish a fee for the use of the 
ESTA  and  begin  assessment  and  collection  of  that  fee.  The  initial  fee  shall  be  the 
sum of $10 per travel authorisation and an amount that will at least ensure recovery 
of the full costs of providing and administering the ESTA, to be determined by the 
Secretary of Homeland Security. Concerns about the fee have been voiced at several 
occasions and letters (see the fifth visa reciprocity report for detailed information on 
the  concerns  voiced  in  various  demarches)8.  In  addition,  on  23  December  2009, 
concerns were once again raised in common letters by the European Union and Japan 
to Secretary of State Clinton and Secretary of Homeland Security Napolitano. 

the 

On  20  May  2010,  Secretary  of  Homeland  Security  Napolitano  announced  the 
elimination of the paper arrival/departure form (Form I-94W) for travellers under the 
VWP. By the end of this summer the use of the paper I-94W form will be eliminated 
at all airports. This means that travellers only have to fill in the ESTA on the website 
and  no  longer  need  to  fill  in  the  I-94W  form  additionally.On  6  August 
the  U.S.  Homeland 
timeframe 
2010, respecting 
Security Customs  and  Border  Protection announced 
the  publication  of the 
interim final rule on a Travel Promotion Fee and a Fee for Use of the System of the 
Electronic  System  for  Travel  Authorization  (ESTA),  which  became  effective 
on 8 September 2010. It requires ESTA applicants to pay a fee of $14, which is the 
sum  of  $10  per  travel  authorization,  defined  in  the  TPA  bill,  and  a  fee  of  $4, 
determined by the Secretary of Homeland Security, to ensure the recovery of the full 
costs of providing and administering the ESTA system. The $4 fee is charged to all 
applicants applying for electronic travel authorization, while the $10 fee is charged 
only for approved ESTA applications. 

set  by  TPA  bill, 

The ESTA fee is required for new registrations on or after 8 September 2010. In the 
case of a traveller already registered in ESTA, in principle he/she does not need to 
re-register and pay the fee after 8 September 2010.  

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COM(2009) 560 final, p. 7 and 8. 

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The  payment  has  to  be  made  by  selected  credit  or  debit  cards.  DHS  is  examining 
other measures of payment for the future. 

On  the  same  day  of  the  announcement  by  the  U.S.  of  the  interim  final  rule  on  the 
ESTA fee, a public statement was issued by the Commission expressing, on the one 
hand,  understanding  that  this  decision  is  taken  in  accordance  with  the  legal 
obligations  under  the  TPA  bill,  but  on  the  other  hand,  regretting  very  much  the 
introduction  of  the  fee.  The  concerns  repeatedly  raised  by  the  EU  and  the 
Commission  were  reiterated  that  these  new  requirements,  applicable  only  to 
travellers  under  the  VWP,  are  inconsistent  with  the  commitment  of  the  U.S.  to 
facilitate transatlantic mobility and will be an additional onus for European citizens 
travelling to the U.S.  

The  Commission  sent  written  comments  on  this  interim  final  rule  to  the  U.S.  on 
7 October 2010 in the framework of the public consultation procedure set up by the 
U.S.,  recalling  once  again  its  concerns  regarding  the  hindrance  to  transatlantic 
mobility created by these new requirements and providing specific comments on the 
provisions of this interim rule, e.g. on the means of payment and the data protection 
aspects. 

The  Final  Rule  on  ESTA  has  not  yet  been  published  in  the  U.S.  Federal  Register. 
Once  it  is  published,  the  Commission  will  issue  a  final  assessment  taking  into 
account any possible changes, including the introduction of a fee for the ESTA. 

track  approach",  as  agreed  by 

The  "twin 
the  Committee  of  Permanent 
Representatives  (Coreper)  on  12  March  2008,  requires  special  consideration  in 
relation  to  the  execution  of  external  competences  under  the  Lisbon  Treaty.  This  is 
something  the  Commission  will  look  into  more  closely.  However,  even  though  the 
EU track has not yet been finalized, the U.S. has let additional Member States join 
the VWP; e.g. Greece in April 2010. Furthermore, it should be noted that some of the 
U.S.  legal  requirements  which  fall  under  EU  competence  –  and  which  would  be 
covered  by  an  EU-U.S.  exchange  of  letters  as  being  met  –  for  (continued) 
participation in the VWP, are not yet met by some Member States; e.g. the issuance 
of biometric passports. 

Assessment 

The Commission is pleased that Greece has joined the VWP as well. As no biometric 
airport  exit  system  –  that  can  verify  the  departure  of  not  less  than  97  percent  of 
foreign nationals who exit through U.S. airports – is in place yet (being one  of the 
conditions of the 9/11 Act), the visa refusal rate threshold remains three percent. This 
means  that  based  on  the  latest  visa  refusal  rates  of  the  four  Member  States  not  yet 
participating  in  the  VWP  only  Cyprus  meets  this  threshold.  However,  Cyprus  does 
not  meet  other  legal  criteria  set  by  the  U.S.  for  participation  in  the  VWP.  The 
Commission will continue to raise the issue of non-reciprocity in its contacts with the 
U.S. in order to have full visa reciprocity in place as soon as possible. 

Regarding the issue of HIV/AIDS, the Commission appreciates that HIV/AIDS has 
been  removed  from  the  list  of  communicable  diseases  and  that  persons  with 
HIV/AIDS are now eligible to travel under the VWP. 

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In  relation  to  the  interim  final  rule  on  the  ESTA  fee,  the  Commission,  while 
understanding  that  this  decision  is  taken  in  accordance  with  the  Travel  Promotion 
Act's  obligations,  has  regretted  very  much  the  introduction  by  the  U.S.  of  this  new 
fee.  The  Commission  has  reiterated  the  concerns,  already  voiced  in  numerous 
demarches at EU level, that the introduction of a fee for ESTA is an additional onus 
for  European  citizens  travelling  to  the  U.S.  and  is  inconsistent  with  the  often-
repeated commitment to transatlantic contacts and cooperation. The Commission has 
sent written comments on the interim final rule on the ESTA fee to the U.S. in the 
framework of the public consultation procedure set up by them on 7 October 2010. 
The Commission will continue to raise its concerns over the ESTA fee with the U.S. 

The Commission has not yet completed its assessment of the ESTA with a view to 
determining whether or not it is tantamount to the Schengen visa application process 
as  the  Final  Rule  on  ESTA  has  yet  to  be  published  in  the  U.S.  Federal  Register. 
There is no doubt that charging a fee will be an additional factor in this assessment. 

3. 

CONCLUSION 

The  implementation  of  the  new  visa  reciprocity  mechanism  established  in  2005 
through  Council  Regulation  (EC)  No  851/2005  can  be  considered  as  satisfactory. 
Australia and Japan now provide equal treatment of citizens of all Member States but 
final determination of full visa reciprocity awaits respectively further assessment of 
the  eVisitor  system  and  the  permanent  visa  waiver  for  Romania.  With  Brazil  the 
European Union will sign very soon two visa waiver agreements – one on ordinary 
passport  holders,  the  other  on  holders  of  diplomatic,  service  or  official  passports  – 
which  will  ensure  visa  reciprocity.  The  Commission  will  endeavour  an  early 
ratification  of  these  agreements  by  the  European  Union  and  monitor  ratification  by 
the Brazilian side. 

Only  a  very  limited  number  of  "non  reciprocity"  cases  subsist,  two  of  which  have 
specific characteristics: 

–  Brunei-Darussalam grants all EU citizens a visa waiver, but it is valid only for 30 
days,  renewable  twice  for  30  days;  the  Commission  will  continue  efforts  to 
establish full reciprocity although the current situation does not lead to problems 
for EU citizens; 

–  Canada has re-introduced the visa requirement for Czech citizens, in 2010 Canada 
has adopted a reform of its asylum system and agreed to review the visa regime 
with  the  Czech  Republic  before  the  new  Canadian  asylum  legislation  is 
implemented  in  the  end  of  2011.  The  Czech  Republic  is  fully  cooperating  with 
Canada on agreed path of measures supporting this process.   . The steps indicated 
by Canada with a goal to review the visa regime with the Czech Republic will be 
closely  monitored  by  the  Commission,  in  particular,  the  prompt  and  appropriate 
follow-up by Canada of its data-gathering mission to the Czech Republic expected 
to  take  place  before  the  end  of  2010.  In  case  of  a  positive  assessment  the 
Commission expects Canada to lift visa obligation for Czech citizens. 

–  When addressing the other remaining cases of non-reciprocity, i.e. as regards the 
U.S.  (visa  requirement  for  Bulgaria,  Cyprus,  Romania  and  Poland)  and  Canada 
(visa requirement for Bulgaria and Romania), the EU is confronted with the limits 

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of its reciprocity mechanism as set out in the current acquis. In these cases indeed 
Member States are considered by third countries not to meet objective criteria for 
visa  waiver  set  out  unilaterally  by  these  third  countries  in  their  domestic 
legislation  (e.g.  not  issuing  biometric  passports,  not  meeting  thresholds  set  for 
visa refusal and/or overstay rates). 

The Commission will continue to raise these issues at all relevant occasions and in 
all  appropriate  fora  with  the  third  countries  concerned.  At  the  same  time,  the 
Commission invites the European Parliament, the Council and the Member States to 
reflect on how to further address these cases of non-reciprocity. 

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