REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Seventh report on certain third countries' maintenance of visa requirements in breach of the principle of reciprocity
Date: 2012-11-26
Institutions: European Commission
Subjects: Australia, Brazil, Brunei, Canada, EU visa policy, Japan, Schengen Agreement, United States, external border of the EU, passport, third country

EUROPEAN 
COMMISSION 

Brussels, 26.11.2012  
COM(2012) 681 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

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

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REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

Seventh 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 .................................................................................................................. 4 

Results achieved since the Commission's sixth report on reciprocity ......................... 5 

Australia ....................................................................................................................... 5 

Brazil ............................................................................................................................ 6 

Brunei Darussalam ....................................................................................................... 7 

Canada.......................................................................................................................... 8 

Japan........................................................................................................................... 10 

United States of America (U.S.) ................................................................................ 11 

Conclusion.................................................................................................................. 14 

ANNEX.................................................................................................................................... 16 

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1. 

INTRODUCTION 

Council Regulation (EC) No 539/2001 of 15 March 20011, listing the third countries whose 
nationals  must  be  in  possession  of  visas  when  crossing  the  external  borders  of  the  Member 
States (Annex I to the Regulation, the "negative list") and those whose nationals are exempt 
from that requirement (Annex II to the Regulation, the "positive list"), 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 States. 

The current visa reciprocity mechanism was introduced by Council Regulation (EC) 851/2005 
of  2  June  2005  amending  Council  Regulation  (EC)  539/20012.  In  the  framework  of  this 
mechanism,  in  case  a  third  country  on  the  positive  list  introduces  a  visa  requirement  for 
citizens  of  one  or  more  Member  States,  the  Commission  must  take  steps  to  obtain  the 
restoration of the visa-free travel by the third country concerned and it must provide a report 
to the Council which may be accompanied by a proposal on the temporary restoration of the 
visa  requirement  for  nationals  of  the  third  country  concerned.  In  addition,  the  Commission 
must provide bi-annual reports to the European Parliament and the Council on the situation of 
non-reciprocity which may be accompanied by appropriate proposals, if necessary. 

The  six  regular  visa  reciprocity  reports  adopted  by  the  Commission  so  far3  show  that  the 
current  reciprocity  mechanism  has  proven  to  be quite efficient: through the efforts made  by 
the  Commission  and  the  Member  States  concerned,  the  number  of  cases  of  non-reciprocity 
which existed at the moment of its entry into force or at the moment of the entry into force of 
the Accession  Treaty  of  20054 - in total, nearly one hundred cases with 18 third countries - 
have been reduced considerably. 

In  addition  to  the  six  regular  reports,  the  Commission  adopted  one  ad-hoc  report  on  the  re-
introduction  by  Canada  of  the  visa  requirement  for  Czech  citizens  in  July  20095.  This 
represents  the  only  case  since  the  introduction  of  the  current  visa  reciprocity  mechanism  in 
2005 where a third country on the positive list has re-imposed a visa requirement for citizens 
of a Member State.  

The visa reciprocity reports presented by the Commission so far show that only a very limited 
number  of  "non-reciprocity  cases"  continue  to  exist.  In  its  sixth  reciprocity  report  the 
Commission stated that: 

"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 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 

1 
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4 
5 

OJ L 81, 21.3.2001. 
OJ L 141, 4.6. 2005. 
COM(2006)  3  final  of  10.1.2006,  COM(2006)  568  final  of  2.10.2006,  COM(2007)  533  final  of 
13.9.2007, COM(2008) 486 final/2 of 9.9.2008, COM(2009) 560 final of 19.10.2009, COM (2010) 620 
fnal of 5.11.2010. 
OJ L 157, 21.6.2005. 
COM(2009) 562 final of 19.10.2009. 

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countries  in  their  domestic  legislation  (e.g.  not  issuing  biometric  passports,  not  meeting 
thresholds set for visa refusal and/or overstay rates)." 

Consequently, the Commission invited the European Parliament, the Council and the Member 
States to reflect on how to further address these cases of non-reciprocity.  

In March 2011, the European Parliament adopted a declaration in which it called inter alia for 
a revision of the existing reciprocity mechanism6. 

In  its  proposal  of  24  May  2011  to  amend  Council  Regulation  (EC)  No  539/20017,  the 
Commission  proposed  to  modify  the  existing  reciprocity  mechanism  in  light  of  the 
consequences of the entry into force of the Lisbon Treaty, by adding to it the co-decisive role 
of the European Parliament. Further to suggestions made by some Member States and taking 
into  account  the  calls  made  by  the  European  Parliament  for  a  new  reciprocity  mechanism, 
negotiations  with  the  European  Parliament  and  the  Council  are  ongoing  with  a  view  to 
revising the existing reciprocity mechanism in order to make it more efficient, while ensuring 
the  full  respect  of  the  provisions  of  the  Treaties.  In  particular,  the  new,  revised  reciprocity 
mechanism should aim for a quicker and more efficient reaction in case a third country on the 
positive list introduces a visa requirement for one or more Member States.  

In accordance with the provisions of the existing reciprocity mechanism, the present, seventh, 
visa reciprocity report takes stock of the results of the efforts made since the adoption of the 
sixth report on 5 November 2010, with a view to achieving full visa reciprocity with all third 
countries on the positive list. 

2. 

RESULTS ACHIEVED SINCE THE COMMISSION'S SIXTH REPORT ON RECIPROCITY 

2.1. 

Australia 

Situation at the time of the sixth reciprocity report 

Citizens  of  all  Member  States  and  Schengen  associated  countries  are  entitled  to  use  the 
eVisitor  system  since  27 October  2008.8  The  Commission  considered  that  in  principle, 
eVisitor  provides  equal  treatment  of  the  citizens  of  all  Member  States  and  Schengen 
associated countries. However, the quarterly reports on eVisitor application statistics showed 
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 
therefore engaged to continue to closely monitor the processing of eVisitor applications. The 
Commission would submit its assessment of whether eVisitor is equivalent to the Schengen 
visa application process in a separate document. 

Current situation 

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Written  Declaration  0089/2010  "Restoration  of  reciprocity  in  the  visa  regime  –  solidarity  with  the 
unequal  status  of  Czech  citizens  following  the  unilateral  introduction  of  visas  by  Canada",  8  March 
2011. 
COM (2011) 290 final. 
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. 

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Citizens of all Member States and Schengen associated countries continue to use the eVisitor 
system,  although  the  applications  from  the  citizens  of  certain  Member  States  are  mainly 
processed manually to allow for additional examination by the Australian authorities. 

Processing of eVisitor applications 

Australia  provided  the  Commission  with  regular,  quarterly  reports  on  eVisitor  application 
statistics covering the period from 1 July 2010 to 30 September 2011. 

The quarterly reports show that the average autogrant rate remains very high (86,36 %). The 
autogrant  is  an  automated  process  by  which  an  eVisitor  application  is  checked  and,  if  the 
automated  checks  are  satisfied,  the  eVisitor  authorisation  is  granted,  usually  within  minutes 
after lodging the application. 

The autogrant rates for Bulgaria and Romania were the lowest among the Member States and 
showed a decrease in the reporting period (from 37 % for each of them in the quarterly report 
on the period 1/07/2010 to 30/09/2010, down to 18 % and 23 %, respectively, in the quarterly 
report  on  the  period  1/07/2011  to  30/09/2011).  Due  to  stated  integrity  concerns  regarding 
applicants  from  Bulgaria  and  Romania,  Australia  had  decided  to  process  more  of  these 
applications  manually.  As  a  consequence,  these  applications  are  examined  and  the  eVisitor 
authorisation is granted/refused within 2-10 working days. 

Furthermore,  the  reports  showed  that  the  Member  States  with  the  highest  Modified  Non-
Return Rate (MNRR)  rates  were Bulgaria, Latvia, Lithuania and Romania. The MNRR is a 
calculation of the percentage of visitors who have arrived and whose initial visas have expired 
within  the  reporting  period  and  who  have  remained  in  Australia  unlawfully,  departed 
Australia on an expired visa or applied for a subsequent visa other than visas that are deemed 
to  be  of  benefit  to  Australia.  The  highest  MNRR  rates  varied  considerably  among  the 
quarterly reporting periods (from 9,84% for Latvia during the quarterly period 1/10/2010 to 
31/12/2010, down to 4,45% for Lithuania during the quarterly period 1/04/2011 to 30/06/2011 
and  for  Romania  during  the  quarterly  period  1/07/2011  to  30/09/2011,  while  the  average 
MNRR rates varied between 1,69% and 0,62%). 

Further to the request by Australian authorities at the EU-Australia Senior Officials Dialogue 
on migration, asylum and diversity issues on 28 November 2011, it was agreed that Australia 
will in the future provide ad-hoc reports on the eVisitor application statistics at the request of 
the Commission, in order to enable the Commission to continue to monitor the processing of 
eVisitor applications.  

As  already  stated  in  the  sixth  visa  reciprocity  report,  the  assessment  of  whether  eVisitor  is 
equivalent to the Schengen visa application process will be issued in a separate document, in 
parallel  with  the  assessment  of  the  Final  Rule  on  ESTA  ("electronic  system  for  travel 
authorization") (see below under 2.6.), considering their similar characteristics. 

Assessment 

In principle, eVisitor continues to provide equal treatment of the citizens of all Member States 
and  Schengen  associated  countries.  In  addition,  the  average  autogrant  percentage  remains 
consistent  and  very  high.  The  current  situation  does  not  lead  to  problems  for  EU  citizens. 
However,  the  Commission  will  continue  to  monitor  the  processing  of  eVisitor  applications 
with  a  view  to  completing  its  assessment  whether  or  not  eVisitor  is  equivalent  to  the 
Schengen visa application process. 

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2.2. 

Brazil 

Situation at the time of the sixth reciprocity report 

Agreements between the EU and Brazil on short-stay visa waiver for holders of diplomatic, 
service  or  official  passports  and  for  holders  of  ordinary  passports  were  initialled  by  both 
parties  in  April  2010.  The  Commission  endeavoured  an  early  ratification  of  the  two 
agreements by the European Union and engaged to monitor ratification by the Brazilian side, 
in order to ensure the visa-free travel to Brazil by the citizens of all Member States. 

Current situation 

The agreements between the European Union and Brazil on short-stay visa waiver for holders 
of diplomatic, service or official passports and for holders of ordinary passports were formally 
signed on 8 November 2010. 

On 24 February 2011, the Council adopted the Decisions on conclusion of the two short stay 
visa waiver agreements with Brazil, and the Brazilian side was notified immediately. 

The  Brazilian  Government  approved  the  short  stay  visa  waiver  agreement  for  holders  of 
diplomatic, service or official passports on 7 December 2010. Consequently, this Agreement 
entered into force on 1 April 2011 and full visa reciprocity has thus been achieved for these 
categories of passport holders. 

In  June  2011,  the  Commission  sent  a  letter  to  the  Brazilian  Minister  of  Foreign  Affairs, 
enquiring about the state of play of Brazil's internal ratification procedures of the short stay 
visa  waiver  agreement  for  ordinary  passport  holders  and  urging  the  Brazilian  authorities  to 
demonstrate the country's commitment to grant visa waiver to all EU citizens – including the 
citizens  of  four  Member  States  (Cyprus,  Estonia,  Latvia  and  Malta)  still  requiring  a  visa  to 
enter Brazil - by ratifying it as early as possible.  

The  short-stay  visa  waiver  agreement  for  ordinary  passport  holders  was  submitted  to  the 
Brazilian Congress for ratification only on 3 October 2011. At the EU - Brazil Summit on 4 
October 2011 in Brussels, both parties stressed the importance of the entry into force of this 
agreement at the earliest. 

Following the approval of this agreement by the Chamber of Deputies on 19 April 2012 and 
by the Senate on 27 June 2012, the process of ratification by Brazil is completed. Further to 
the notification sent by the Brazilian side, the EU-Brazil agreement on short-stay visa waiver 
for holders of ordinary passport holders entered into force on 1 October 2012.  

Assessment 

The  Commission  welcomes  the  entry  into  force  of  the  EU-Brazil  short-stay  visa  waiver 
agreement  for  holders  of  diplomatic,  service  or  official  passports  on  1 April  2011.  The 
Commission welcomes the completion of the ratification process by the Brazilian side, albeit 
with a significant delay, of the short stay visa waiver agreement for ordinary passport holders, 
following the approval given by the Chamber of Deputies on 19 April 2012 and by the Senate 
on 27 June 2012. The Commission welcomes the full implementation of the agreement since 
1 October 2012, which will ensure full visa waiver reciprocity with Brazil, including for the 
citizens of the four Member States who still required a visa in order to travel to Brazil for a 
short stay.  

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2.3. 

Brunei Darussalam 

Situation at the time of the sixth reciprocity report 

The  citizens  of  all  Member  States  benefited  from  a  30-day  visa  waiver,  which  could  be 
extended locally for two periods of 30 days each, up to a maximum visa-free stay of 90 days. 
On 24 June 2010, the Commission formally requested the authorities of Brunei Darussalam to 
grant EU citizens a 90 days visa waiver in order to ensure full visa waiver reciprocity. 

Current situation 

In  reply  to  the  letter  from  the  Commission  of  24  June  2010,  the  authorities  of  Brunei 
Darussalam informed the Commission by letter of 30 September 2011 that the citizens of all 
EU  Member  States  now  enjoy  a  90-day  visa-free  stay  in  Brunei  Darussalam,  thus  ensuring 
full visa waiver reciprocity.  

On 5 January 2012 the Commission formally requested the authorities of Brunei Darussalam 
to  extend  the  period  of  visa-free  stay  to  90  days  also  for  the  citizens  of  the  Schengen 
associated countries, which already benefit from a visa waiver of up to 30 days in the case of 
Iceland and Norway and up to 14 days in the case of Liechtenstein and Switzerland. By letter 
of 15 October 2012, the authorities of Brunei Darussalam informed the Commission that the 
citizens of Iceland, Norway and Switzerland now also enjoy a 90-day visa-free stay in Brunei 
Darussalam.  

Assessment 

The Commission welcomes the extension by Brunei Darussalam of the visa waiver to 90 days 
for  the  citizens  of  all  Member  States  as  from  30  September  2011,  thus  ensuring  full  visa 
waiver  reciprocity.  It  also  welcomes  the  extension  of  the  visa  waiver  to  90  days  for  the 
citizens  of  Iceland,  Norway  and  Switzerland  as  of  15  October  2012.  The  Commission  now 
intends to formally request the authorities of Brunei Darussalam to extend the period of visa-
free stay to 90 days also for the citizens of Liechtenstein. 

2.4. 

Canada 

Situation at the time of the sixth reciprocity report 

In  the  context  of  implementing  the  "path  of  measures",  agreed  by  the  Czech  Republic  and 
Canada in the framework of the Czech Republic – Canada Experts Working Group (EWG), 
Canada committed to carry out a data-gathering visit to the Czech Republic before the end of 
2010, which could open concrete prospects for a decision by Canada on the return to a visa 
waiver for Czech citizens. Furthermore, 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. 

The  Commission  undertook  to  closely  monitor  the  progress  of  the  implementation  of  the 
outlined steps by Canada, in particular, the prompt and appropriate follow-up by Canada of its 
data-gathering mission to the Czech Republic. In case of a positive assessment resulting from 
that mission, the Commission expected Canada to promptly lift the visa obligation for Czech 
citizens  in  line  with  its  previously  made  commitments  in  the  context  of  the  "path  of 
measures". The Commission noted that, in accordance with the minutes of the second Czech 
Republic  –  Canada  Experts  Working  Group  (EWG)  meeting  of  15 March  2010,  agreed 

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between the Czech Republic, Canada and the Commission, "the adoption of the new Canadian 
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 
Canada  to  decide  to  lift  the  visa  requirement  before  the  date  of  implementation  of  this  new 
Canadian asylum legislation".  

Bulgaria and Romania did not yet meet all the criteria for visa exemption set by Canada. The 
Commission  undertook  to  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.  

Current situation 

Canada carried out a data-gathering visit to the Czech Republic on 31 January – 4 February 
2011. The Commission requested Canada to provide it with the report of the data-gathering 
visit  on  every  occasion  and  at  all  levels,  including  at  a  meeting  between  Commissioner 
Malmström and Canada's Minister for Immigration, Citizenship and Multiculturalism Kenney 
on 30 August 2011, by means of a demarche carried out by the EU Delegation in Canada on 
23  November  2011  and  at  a  meeting  of  the  European  External  Action  Service  with  Deputy 
Minister Yeates on 17 January 2012.  

On  30  August  2011,  the  Canadian  authorities  informed  the  Commission  that  the 
implementation of the "Balanced Refugee Reform Act" was postponed from December 2011 
until June 2012. 

On  16  February  2012,  the  Canadian  government  –  now  a  majority  government  after  the 
general  elections  held  in  May  2011  -  introduced  a  new  draft  law  "Protecting  Canada's 
Immigration  System  Act"  in  order  to,  among  others,  address  the  issue  of  unfounded  asylum 
applications from EU citizens. The objective of the new draft Act is to prevent the abuse of 
Canada's immigration and refugee system, remove pressure imposed on the system by bogus 
or  illegitimate  refugee  claims  and  reduce  the  processing  times  and  backlog.  The  draft  Act 
provides  inter  alia  for  a  significant  reduction  of  the  time  for  examination  of  asylum 
applications from Designated Countries of Origin (DCOs). It is expected that most of the EU 
Member States will become DCOs.  

On 8 March 2012, Canada provided the Commission with a concept paper on a possible EU-
Canada agreement on managing asylum claimant flows, the conclusion of which Canada sees 
as  a  step  in  addressing  its  concerns  related  to  the  high  number  of  unfounded  asylum 
applications  by  EU  nationals  and  which  would  permit  the  lifting  by  Canada  of  the  visa 
requirement for Bulgaria, the Czech Republic and Romania. Since then, the Commission held 
preliminary  discussions  with  senior  Canadian  officials  on  the  concept  paper,  indicating  that 
the  mechanism  proposed  by  Canada  is  not  feasible  due  to  a  number  of  legal  and  political 
reasons.  In  particular,  such  an  agreement  would  conflict  with  the  fundamental  principle 
enshrined in the EU Treaty of mutual recognition of the Member States as safe countries of 
origin  in  respect  of  each  other,  and  with  the  good  functioning  of  the  Common  European 
Asylum System. Moreover, there is no legal basis in the Treaties for concluding agreements 
between the EU and a third country concerning EU citizens applying for asylum in that third 
country. 

The "Protecting Canada's Immigration System Act" was adopted on 28 June 2012. The Act 
will  be  fully  implemented  once  additional  regulations  and  operational  guidelines  have  been 

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drafted  and  additional  staff  has  been  recruited  and  trained.  Some  measures  of  the  new  law 
came into effect immediately after adoption, while others will come into effect later this year 
at  a  date  that  will  be  determined  by  the  Canadian  government9.  The  "Balanced  Refugee 
Reform Act", which was scheduled to enter into force on 29 June 2012, was abandoned. 

Canadian  authorities  have  underlined  that  the  new  law  will  help  to  reduce  the  pull  factors, 
while the push factors leading to the current unsatisfactory situation remain. Therefore, they 
consider  that  additional  measures  to  be  taken  together  with  the  EU  are  required  in  order  to 
address  the  problem.  The  Commission  and  Canada  decided  to  hold  informal  technical 
consultations  at  expert  level  to  explore  alternative  solutions  that  could  contribute  to  solving 
the issue of the unfounded asylum applications from the EU. The first technical consultations 
took place on 25 June 2012. The Commission provided the Canadian authorities with detailed 
information  on  the  main  principles  governing  the  relevant  EU  policies,  with  a  view  to 
identifying  possible  ideas  for  further  follow-up.  The  Canadian  authorities  informed  that  the 
process  of  implementation  of  the  "Protecting  Canada's  Immigration  System  Act"  will  be 
completed before the end of 2012. 

Assessment 

As regards the Czech Republic – Canada visa issue, the Commission regrets that Canada has 
not provided to the Commission its report on the data-gathering visit to the Czech Republic 
until now nor any other adequate base for cooperation between the Czech Republic, Canada 
and the Commission in the framework of the agreed "path of measures". 

The  continuing  lack  of  solution  for  this  issue  could  also  have  an  unfortunate  impact  on  the 
approval  and  ratification  process  of  several  important  EU-Canada  agreements  which  are 
currently  under  negotiation.  In  this  regard,  the  Commission  notes  the  Declaration  of  the 
European Parliament on the "Restoration of reciprocity in the visa regime – solidarity with the 
unequal status of Czech citizens following the unilateral introduction of visas by Canada" of 
March  201110  where  the  EP  calls  for  the  lifting  by  Canada  of  the  visa  requirement  for  the 
three Member States concerned as soon as possible and - unless this breach of reciprocity is 
resolved  soon  -  for  equivalent  retaliatory  measures  to  be  adopted  by  the  EU,  mentioning  the 
risks for the future ratification of the EU-Canada Comprehensive Economic and Trade Agreement 
(CETA). 

The Commission considers that the provisions of Canada's new law on "Protecting Canada's 
Immigration  System  Act",  adopted  on  28  June  2012,  and  in  particular  the  decision  to 
designate EU Member States as safe countries of origin and to treat applications made by their 
nationals  in  an  accelerated  procedure,  should  be  able  to  function  as  a  deterrent  to  future 
unfounded asylum applications from the EU. Consequently, the Commission expects Canada 
to lift the visa obligation for Czech citizens from the moment when the relevant provisions of 
the new law come into effect.  

In  the  framework  of  the  informal  technical  consultations  at  expert  level  between  the 
Commission and Canada  which  took  place  on 25 June 2012, the Commission committed to 
look for ways of closer cooperation and explore possible alternative suggestions together with 
Canada and in full coordination with the Member States concerned, with a view to addressing 
the  issue  of  the  increasing  numbers  of  asylum  seekers  in  Canada  originating  from  the  EU. 

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10 

Some new measures related to biometric data will enter into force in 2013.  
O.J. C 199 E, 7.7.2012, p. 89. 

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However,  such  measures  of  closer  cooperation  should  not  constitute  pre-conditions  for  the 
lifting of the visa requirement by Canada. 

The Commission will continue to raise the issue of non-reciprocity in its contacts with Canada 
in order to have full visa reciprocity in place as soon as possible.  

2.5. 

Japan 

Situation at the time of the sixth reciprocity report 

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

The  Commission  expressed  hope  that  the  evaluation  of  the  first  year  of  the  temporary  visa 
waiver  for  Romanian  citizens  by  the  Japanese  Immigration  Bureau  covering  the  period  of 
September 2009 – August 2010 would lead Japan to convert the temporary visa waiver into a 
permanent one. 

Current situation 

All Member States continue to enjoy visa-free travel to Japan. However, citizens of Romania 
still only benefit from a temporary visa waiver. On the basis of the results of the evaluation of 
the first period of the temporary visa waiver for Romanian citizens (September 2009 – August 
2010),  Japan  decided  to  continue  the  implementation  of  the  temporary  visa  waiver  for  the 
second  period  (September  2010  –  December  2011).  Japan  noted  certain  concerns  regarding 
the fulfilment of the conditions of entry and/or stay by Romanian citizens. 

In response to the concerns expressed by Japan, the Ministry of Administration and Interior of 
Romania dispatched an attaché to the Embassy of Romania in Japan and Romanian authorities 
carried out a public awareness raising campaign regarding the conditions for entry and stay in 
Japan, in accordance with the conditions for temporarily lifting the visa requirement.  

The Commission held bilateral meetings with the Japanese authorities on 26 July 2011 and 7 
December  2011,  and  a  technical  tripartite  meeting  with  the  Romanian  and  Japanese 
authorities on 10 November 2011, in order to discuss the concerns raised by Japan regarding 
the number of irregular entries and/or stays by Romanian citizens in Japan. The Commission 
called on the Japanese authorities, when carrying out their assessment of the temporary visa 
waiver,  to  take  into  account  the  very  limited  number  of  irregular  entries  and/or  stays  by 
Romanian citizens in Japan. The Commission proposed to organise a further tripartite meeting 
with  the  Romanian  and  Japanese  authorities  in  order  to  identify  specific  measures  which 
could diminish the number of irregular stays. 

On  28  December  2011,  Japan  decided  to  extend  the  implementation  of  the  temporary  visa 
waiver  until  31  December  2012,  on  the  condition  that  an  attaché  of  the  Ministry  of 
Administration and Interior continues to be dispatched to the Embassy of Romania in Japan 
and that the Romanian authorities continue to carry out awareness raising activities regarding 
the conditions for entry and stay in Japan and risks of human trafficking.  

Assessment 

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The Commission welcomes the decision by the Japanese authorities to extend the temporary 
visa waiver for Romanian citizens until 31 December 2012. The Commission is committed to 
identify, in close cooperation with the Romanian authorities, the appropriate solutions in order 
to  address  the  concerns  raised  by  the  Japanese  authorities.  The  Commission  hopes  that  the 
implementation of appropriate measures by Romania will lead Japan to convert the temporary 
visa waiver into a permanent one.  

2.6. 

United States of America (U.S.) 

Situation at the time of the sixth reciprocity report 

The Commission was pleased that Greece joined the Visa Waiver Program (VWP) on 5 April 
2010,  and  committed  to  continue  to  raise  in  its  contacts  with  the  U.S.  the  issue  of  non-
reciprocity  for  citizens  of  Bulgaria,  Cyprus,  Poland  and  Romania,  in  order  to  have  full  visa 
reciprocity in place as soon as possible. 

The Commission regretted very much the adoption by the U.S. of the interim final rule on the 
ESTA  ("electronic  system  for  travel  authorization")  fee,  while  understanding  that  this 
decision  was  taken  in  accordance  with  the  Travel  Promotion  Act's  obligations.  The 
Commission had sent written comments on the interim final rule on the ESTA fee to the U.S. 
on 7 October 2010 in the framework of the public consultation procedure set up by them.  

The Commission awaited the publication by the U.S. authorities of the Final Rule on ESTA in 
order to complete its assessment of the ESTA with a view to determining whether or not it is 
equivalent to  the  Schengen  visa  application process; there was no  doubt that charging a fee 
would be an important element in this assessment.  

The  Commission  also  committed  to  look  more  closely  into  the  "twin  track  approach",  as 
agreed  by  the  Committee  of  Permanent  Representatives  (Coreper)  on  12  March  2008,  in 
relation to the execution of external competences further to the entry into force of the Lisbon 
Treaty.  

Current situation 

The U.S. authorities have not yet published the Final Rule on ESTA, nor provided a reply to 
the Commission's comments on the interim Final Rule on ESTA fee.  

Once  the  Final  Rule  on  ESTA  is  published,  the  Commission  will  issue  a  final  assessment 
taking into account any possible changes, including the introduction of a fee for the ESTA.  

The Commission has continued to raise the issue of non-reciprocity and the concerns related 
to the introduction of the ESTA fee with the U.S. authorities at political and technical levels.11  

In a statement made during the visit of the Polish President Komorowski in December 2010 to 
Washington D.C., President Obama committed to make the accession of Member States to the 
VWP a priority, to be solved during his presidency. 

11 

Notably at the EU-U.S. Summits on 20 November 2010 and 28 November 2011, during the visit of the 
Director General of Directorate-General Home Affairs to Washington D.C. in November 2010, at the 
EU-US Justice and Home Affairs Ministerial meetings in December 2010, April 2011, November 2011 
and June 2012, and at the EU-US Justice and Home Affairs Senior Officials' Meetings in January 2011, 
July 2011, January 2012 and July 2012. 

EN 

12 

   EN 

 
                                                 
In March 2011, a new draft bill "Secure Travel and Counterterrorism Partnership Program 
Act of 2011" (S. 497 and H.R. 959) was introduced in Congress and received the support from 
President  Obama.  Among  others,  it  aimed  at  updating  the  eligibility  criteria  for  joining  the 
VWP  by  replacing  the  visa  refusal  rate  with  the  overstay  rate  which  should  not  exceed 
three percent.  The  draft  bill  also  provided  for  a  possibility  to  waive  the  overstay  rate 
requirement under certain conditions. 

In  January  2012,  a  new  draft  legislation  "Visa  Waiver  Program  Enhanced  Security  and 
Reform  Act"  (S. 2046  and  H.R.  3855)  was  introduced  in  Congress,  which  substitutes  the 
previous draft bill "Secure Travel and Counterterrorism Partnership Program Act of 2011". 
The  new  draft  legislation  requires  applicant  countries  to  maintain  an  overstay  rate  not 
exceeding three percent, in addition to the existing  requirement  to  maintain  an  average  visa 
refusal rate of not more than three percent. Furthermore, it reinstates the waiver authority for 
the Secretary of Homeland Security to enable a country to be designated in the VWP under 
certain conditions, including having a visa refusal rate below 10%, and creates a probationary 
period for VWP countries if they do not maintain an overstay rate under 3 % or fail to comply 
with any other VWP requirements. In addition, the new draft legislation changes the method 
for calculating visa refusal rates. 

In  January  2012,  President  Obama  issued  an  Executive  Order  to  improve  visa  and  foreign 
visitor processing and travel promotion in order to create jobs and spur economic growth in 
the  United  States,  while  continuing  to  protect  national  security.  Among  others,  it  calls  for 
increased efforts to expand the VWP.  

Another  draft  legislation  "Jobs  Originated  through  Launching  Travel  Act"  (JOLT  Act)  (S. 
2233)  was  introduced  by  a  bipartisan  group  in  the  Senate  in  March  2012,  which  aims  at 
expanding the VWP and includes certain language from the "Visa Waiver Program Enhanced 
Security  and  Reform  Act".  The  draft  JOLT  Act  reflects  the  approach  followed  in  the 
Executive Order to improve visa and foreign visitor processing and travel promotion.  

The new draft VWP legislation is still under consideration by the U.S. Congress12.  

As of 13 April 2012, the U.S. Department of State increased the visa processing fees for most 
non-immigrant  visa  applications,  including  an  increase  for  the  visas  applied  for  business  or 
tourism purposes from 140 USD to 160 USD.  

The Commission carried out a legal analysis of the consequences of the entry into force of the 
Lisbon  Treaty  on  the  "twin-track  approach",  agreed  by  Coreper  on  12 March  2008  for  the 
negotiations with the U.S. in the context of the VWP negotiations13. As a result of the entry 
into  force  of  the  Lisbon  Treaty  Member  States  can,  in  principle,  continue  negotiating  and 
concluding  agreements  with  third  countries  in  the  areas  of  police  cooperation  and  judicial 

12 

13 

At the last EU-US Senior Official meeting (25-26 July 2012) the US Department of Homeland Security 
(DHS) stressed that Congress linked the adoption of new eligibility criteria to the implementation of an 
effective  'entry-exit  system'  –  necessary  to  calculate  a  reliable  overstay  rate  per  country  of  origin. 
Despite  important  efforts,  the  DHS  has  experienced  difficulties  implementing  a  reliable  'exit  system' 
and it anticipates that achieving this objective will take months. 
For  further  information  on  the  "twin-track  approach",  see  the  Commission's  fourth  reciprocity  report 
(COM(2008)  486  final/2  of  9.9.2008)  and  the  fifth  reciprocity  report  (COM(2009)560  final).  The 
negotiations  on  the  exchange  of  letters  between  the  EU  and  the  U.S.  regarding  certain  conditions  for 
access to the VWP which fell under EC competence for entry  or continued participation in the VWP 
have not been pursued actively with the U.S. since 2009: the U.S. does not require that Member States 
enter into bilateral agreements with the U.S. regarding these requirements. 

EN 

13 

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cooperation in criminal matters – which are now areas of shared competence - as long as the 
EU has not concluded such agreements with these third countries. However, this competence 
of the Member States is not unlimited: Member States cannot conclude agreements that would 
either  affect  the  EU  acquis,  including  instruments  in  the  areas  of  police  cooperation  and 
judicial cooperation in criminal matters, or alter its scope.  

Given the exhaustive exercise by the Union of its competence in the field of visa policy, and 
the fact that the bilateral agreements constitute de facto a pre-condition for getting access to 
the VWP, in principle, an overarching EU-U.S. agreement covering all conditions related to 
the access to the VWP should be negotiated and concluded. However, in view of the present 
situation,  in  which  a  significant  number  of  Member  States  have  already  concluded  with  the 
U.S.  agreements  on  terrorist  screening  and  agreements  on  enhancing  cooperation  in 
preventing and combating serious crime, Member States may continue to negotiate and apply 
such bilateral agreements, on condition that these agreements do not affect or alter the scope 
of  the  Union's  common  rules  in  the  area  of  police  cooperation  and  judicial  cooperation  in 
criminal  matters,  in  particular  with  regard  to  the  exchange  of  law  enforcement  information, 
and in the area of data protection in this context.  

The Commission requested Member States to provide the texts of their bilateral agreements 
with the U.S. concluded under the VWP, or to provide information on ongoing negotiations, 
in order to verify compliance with the Union's common rules.  

The outcome of the Commission's scrutiny regarding law enforcement cooperation is that the 
bilaterally  concluded  'Agreements  on  Enhancing  Cooperation  in  Preventing  and  Combating 
Serious  Crime'  and  the  'Agreements  on  the  Exchange  of  Screening  Information  Concerning 
Known or Suspected Terrorists' which were provided by Member States are compatible with 
the  Union's  common  rules  in  the  field  of  police  cooperation  and  judicial  cooperation  in 
criminal matters and do not alter their scope (see Annex for an overview of the notifications 
received from Member States and a detailed assessment). 

As regards the compliance with the EU acquis in the area of data protection, the Commission 
notes that a general reference to the applicability of each Party’s national law, which can be 
found  in  most  of  the  bilateral  agreements  concluded  under  the  VWP,  may  not  always  be 
sufficient  to  ensure  the  level  of  protection  required  by  Council  Framework  Decision 
2008/977/JHA  of  27  November  2008  on  the  protection  of  personal  data  processed  in  the 
framework of police and judicial co-operation in criminal matters14 ("Framework Decision"). 
Furthermore,  some  of  the  bilateral  agreements  between  Member  States  and  the  U.S.  lack  a 
clear  purpose  limitation  and  strict  criteria  qualifying  the  cases  for  further  processing  of  the 
transferred data. This might raise issues of the compliance of these agreements with the EU 
acquis and, in particular, its rules limiting further processing for purposes different to that for 
which the data were collected15.  

The  Commission  is  currently  negotiating  with  the  U.S.  an  agreement  for  the  exchange  of 
personal  data  processed  in  the  framework  of  police  and  judicial  cooperation  in  criminal 
matters. This agreement will eventually complement the existing and future agreements in the 
field  of  police  and  judicial  co-operation  in  criminal  matters  with  the  necessary  safeguards 
from a data protection point of view. 

Assessment 

14 
15 

OJ L 350, 30.12.2008 
Art. 3, par. 2, of the Framework Decision. 

EN 

14 

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The Commission regrets that the U.S. authorities did not reply to its written comments on the 
interim final rule on the ESTA fee, sent to them in October 2010.  

The  Commission  has  not  yet  completed  its  assessment  of  the  ESTA  with  a  view  to 
determining  whether  or  not  it  is  equivalent  to  the  Schengen  visa  application  process  as  the 
Final Rule on ESTA has yet to be published in the U.S. Federal Register. 

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.  

Currently the maximum visa refusal rate threshold allowed for applicant countries to the VWP 
is three per cent. Based on the figures for 2011 of the four Member States not yet participating 
in the VWP, only Cyprus meets this threshold; the visa refusal rates in 2011 were 15,7% for 
Bulgaria, 10,2% for Poland and 22,4% for Romania. The setting up by the US authorities of a 
biometric airport exit system would allow them, in accordance with US legislation, to increase 
the maximum visa refusal rate threshold to 10 per cent. 

The Commission will continue to closely monitor the developments related to the setting up 
by  the  U.S.  authorities  of  the  airport  exit  system,  in  order  to  ensure,  among  others,  that 
overstays  are  accurately  monitored  and  calculated  and  to  make  possible  the  increase  of  the 
visa refusal rate threshold to 10 percent. 

The Commission regrets the increase of the visa processing fees by the U.S. authorities, which 
has further negative consequences, in particular, for the citizens of the four Member States not 
yet participating in the VWP wishing to travel to the U.S. 

The  Commission  welcomes  the  Administration-supported  new  draft  VWP  legislation.  The 
Commission  considers  that  the  new  draft  legislation  could  open  the  way  for  additional 
Member States to join the VWP and it looks forward to its adoption as soon as possible. 

3. 

CONCLUSION 

The  Commission  is  pleased  that  in  the  context  of  the  implementation  of  the  current  visa 
reciprocity mechanism, full visa reciprocity was achieved or is within reach with further third 
countries: 

– 

– 

– 

full  visa  reciprocity  was  achieved  for  all  Member  States  with  Brunei  Darussalam, 
further to the decision adopted by the authorities of Brunei Darussalam to extend the 
visa  waiver  to  90  days;  since  15  October  2012,  citizens  of  Iceland,  Norway  and 
Switzerland  also  enjoy  a  90-day  visa-free  stay  in  Brunei  Darussalam.  The 
Commission will now request the authorities of Brunei Darussalam to extend the visa 
waiver to 90 days also for citizens of Liechtenstein; 

the EU-Brazil short stay visa waiver agreement for ordinary passport holders entered 
into  force  on  1  October  2012,  enabling  the  citizens  of  all  Member  States  to  travel 
visa-free to Brazil; 

the  Commission  welcomes  the  decision  by  the  Japanese  authorities  to  extend  the 
temporary  visa  waiver  granted  for  Romanian  citizens  until  31  December  2012  and 
expects that, further to the implementation of specific measures to be agreed between 

EN 

15 

   EN 

 
Romania  and  Japan,  the  temporary  visa  waiver  will  be  converted  by  Japan  into  a 
permanent one. 

As regards the U.S., the proposed new draft VWP legislation, if adopted, could open the way 
for additional Member States to join the VWP  and thus achieve further substantial progress 
towards full visa reciprocity with the U.S.  

As  regards  the  re-introduction  by  Canada  of  a  visa  requirement  for  Czech  citizens,  the 
Commission  regrets  that  Canada  did  not  provide  to  the  Commission  its  report  on  the  data-
gathering  visit  to  the  Czech  Republic  until  now  and  thus  it  has  de  facto  hindered  the 
cooperation in the framework of the Czech-Canada experts' working group. The Commission 
is looking forward to the full implementation before the end of 2012 of Canada's new asylum 
legislation which should do away with important pull factors and thereby significantly reduce 
the number of unfounded asylum applications from the EU. Once these provisions of the new 
law would come into effect, they should allow the Canadian authorities to decide to lift again 
the  visa  requirement  for  Czech  citizens.  The  Commission  is  committed  to  exploring  with 
Canada  and  in  full  coordination  with  the  Member  States  concerned,  politically  and  legally 
feasible  ways  of  cooperation  with  regard  to  the  issue  of  the  unfounded  asylum  applications 
originating in the EU; such forms of cooperation should not, however, be a pre-condition for 
the  lifting  by  Canada  of  the  visa  requirement  for  the  citizens  of  the  three  Member  States 
concerned. 

The  Commission  is  looking  forward  to  the  adoption  by  the  European  Parliament  and  the 
Council  of  the  draft  Regulation  amending  Regulation  539/2001,  which  aims,  inter  alia,  to 
establish a new, more efficient reciprocity mechanism. Once adopted, both the few remaining 
and any new cases of non-reciprocity will be examined and acted upon by the Commission in 
accordance with this revised reciprocity mechanism. 

EN 

16 

   EN 

 
ANNEX 

Overview and assessment of Member States' bilateral agreements with the U.S. in the 
context of the legal analysis of the consequences of the entry into force of the Lisbon 
Treaty for the "twin-track approach" to the VWP negotiations with the U.S. 

– 

Overview of the bilateral agreements 

The  Commission  has  requested  Member  States  to  provide  the  texts  of  the  'Agreements  on 
Enhancing Cooperation in Preventing and Combating Serious Crime' and the 'Agreements on 
the  Exchange  of  Screening  Information  Concerning  Known  or  Suspected  Terrorists', 
concluded with the U.S. in the context of the Visa Waiver Program (VWP), or information on 
ongoing negotiations, in order to assess if these agreements affect the EU acquis or alter its 
scope. 

Fifteen Member States (Czech Republic, Denmark, Germany, Estonia, Greece, Italy, Latvia, 
Lithuania,  Hungary,  Malta,  the  Netherlands,  Austria,  Portugal,  Slovakia  and  Finland) 
submitted  texts  of  their  bilateral  agreements  with  the  U.S.  concerning  the  Agreements  on 
Enhancing  Cooperation  in  Preventing  and  Combating  Serious  Crime.  Regarding  the 
Agreements  on  the  Exchange  of  Screening  Information  Concerning  Known  or  Suspected 
Terrorists,  six  Member  States  (Estonia,  Greece,  Latvia,  Hungary,  Slovakia  and  Slovenia) 
provided texts of these bilateral agreements with the U.S. The table below gives an overview 
of the replies received from Member States16: 

16 

Explanatory note: "X" means "agreement concluded" and "-" means "no agreement concluded". 

EN 

17 

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TSC agreement19 

- 
- (initial comments on the draft 
agreement sent to US) 
X (classified text; not provided) 
- (awaits draft agreement from 
US) 
- 
X 
X 
No information provided 
In negotiations with the US (text 
not provided) 
Memorandum for the exchange 
of information with US TSC of 
2007 and the text of 
implementing arrangements from 
2009 not provided; 1986 
bilateral agreement provided 
- (negotiations not yet started; 
authorities scrutinize text of 
agreement) 
X 
No information provided 

Prüm-like agreement 
(PCSC agreement)20 
Negotiations ongoing  
- (initial comments on the 
draft agreement sent to US) 
X 
X 

X 
X 
X 
No information provided 
In negotiations with the US 
(text not provided) 
X 

- (negotiations not yet 
started; authorities scrutinize 
text of agreement) 
X 
X 

No information provided 
X 

No information provided 
X 

- 
No information provided  

X21  
X 

Declarati
on18 

X 

MS  MoU17 

- 

X 
- 

- 
X 
X 

BE 
BG 

CZ 
DK 

DE 
EE 
EL 
ES 
FR 

IT 

CY 

- 

X 
No 
informatio
n provided. 

No 
informatio
n provided. 
X 
No 
informatio
n provided. 
- 

- 

- 

X 

LV 
LT 

LU 
HU 

MT 
NL 

AT 
PL 
PT 
RO 

SI 

SK 
FI 

17 

18 

19 
20 
21 
22 
23 

- 
X (classified text; not provided) 
Negotiations ongoing 
initial phase of consultations 
with US 
X 

X 

X 
- 

X 
- 
X22 
initial phase of consultations 
with US 
Preparing to launch 
negotiations 
X 
X23 

Memorandum  of  Understanding  regarding  the  United  States  Visa  Waiver  Program  (VWP)  and  related  enhanced 
security measures 
Declaration regarding principles of cooperation on enhanced bilateral security measures for international travel and 
the requirements of the US VWP 
Agreement on the Exchange of Screening Information Concerning Known or Suspected Terrorists 
Agreement on Enhancing Cooperation in Preventing and Combating Serious Crime 
Not yet ratified. 
Under ratification procedure. 
Pending Parliamentary approval process. 

EN 

18 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
MS  MoU17 

SE 

- 

Declarati
on18 

TSC agreement19 

- 

Prüm-like agreement 
(PCSC agreement)20 
-  

– 

Results  of  the  Commission's  scrutiny  of  Member  States'  bilateral  agreements 
with the U.S. concluded under the VWP 

The aim of the Commission's request was to verify that Member States' bilateral agreements 
with  the  U.S.  concluded  under  the  VWP  comply  with  the  existing  EU  rules  in  the  areas  of 
police  cooperation  and  judicial  cooperation  in  criminal  matters,  in  particular  with  regard  to 
the exchange of law enforcement information, including: 

– 

– 

– 

– 

Council  Decision  2005/671/JHA  of  20  September  2005  on  the  exchange  of 
information and cooperation concerning terrorist offences; 

Council  Framework  Decision  2006/960/JHA  of  18  December  2006  on  simplifying 
the exchange of information and intelligence between law enforcement authorities of 
the Member States of the European Union (the "Swedish Initiative"); 

Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border 
cooperation, particularly in combating terrorism and cross-border crime (the "Prüm" 
Decision);  

Council Framework Decision 2008/977/JAI of 27 November 2008 on the protection 
of  personal  data  processed  in  the  framework  of  police  and  judicial  cooperation  in 
criminal matters. 

According to the results of the Commission's scrutiny, the bilaterally concluded 'Agreements 
on Enhancing Cooperation in Preventing and Combating Serious Crime' and the 'Agreements 
on  the  Exchange  of  Screening  Information  Concerning  Known  or  Suspected  Terrorists'  are 
compatible with the EU acquis in the field of police cooperation and judicial cooperation in 
criminal  matters  and  do  not  alter  its  scope.  The  "Prüm"  Decision  (Council  Decision 
2008/615/JHA)  does  not  affect  bilateral  or  multilateral  agreements  between  Member  States 
and  third  countries,  as  stipulated  in  Article  35(6)  of  the  Decision.  Likewise,  the  so-called 
"Swedish  Initiative"  (Council  Framework  Decision  2006/960/JHA)  is  without  prejudice  to 
bilateral or multilateral agreements between Member States and third countries, as stipulated 
in Article 1(2) of the Framework Decision. The Agreements are also compatible with Council 
Decision 2005/671/JHA and do not alter its scope, as the Council Decision is limited to the 
transfer  of  information  from  Member  States to  Europol,  Eurojust  and  other  Member  States. 
More precisely, the Council Decision is limited to the transfer of all relevant information to 
Europol and interested Member States concerning and resulting from criminal investigations 
with  respect  to  terrorist  offences,  as  stipulated  in  Articles  2(1)  and  2(6)  of  the  Council 
Decision,  and  to  the  transfer  of  all  relevant  information  to  Eurojust  and  interested  Member 
States concerning prosecutions and convictions for terrorist offences, as stipulated in Articles 
2(2) and 2(6) of the Council Decision. Council Decision 2005/671/JHA does not regulate the 
transfer of information to third countries. 

Regarding  the  exchange  of  passenger  name  record  (PNR)  data,  the  Commission  ensured 
already at the start of the "twin-track approach" that the bilateral agreements between Member 

EN 

19 

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States  and  the  U.S.  would  not  include  PNR  data.  None  of  the  bilateral  agreements 
communicated to the Commission provides for the exchange of PNR data.  

Closer police and judicial cooperation in criminal matters must go hand in hand with respect 
for  fundamental  rights,  in  particular,  the  right  to  respect  for  privacy  and  to  protection  of 
personal  data.  This  right  has  to  be  guaranteed  by  special  data  protection  arrangements24. 
Improved information exchange in the European Union often  implies  collaboration between 
Member States, given the cross-border nature of crime fighting and security issues. In cases 
where personal data is transmitted or made  available  between  Member  States'  authorities or 
by such authorities to authorities or information systems established on the basis of Title VI of 
the  pre-Lisbon  Treaty  on  European  Union  (such  as  Eurojust,  Europol  etc.),  the  Council 
Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data 
processed  in  the  framework  of  police  and  judicial  co-operation  in  criminal  matters25 
("Framework Decision") applies. The Framework Decision also applies where personal data 
is  transmitted  or  made  available  to  Member  States'  authorities  by  authorities  or  information 
systems established on the basis of Title VI of the (pre-Lisbon) Treaty on European Union26. 

Article  13  of  Council  Framework  Decision  2008/977/JHA  lays  down  the  applicable  rules 
when  competent  authorities  transfer  personal  data  to  third  countries,  among  which  is  the 
requirement for the third State to ensure an adequate level of protection for the intended data 
processing27. According to Article 13, paragraph 4, of the Framework Decision, the adequacy 
of the level of protection is assessed in the light of all the circumstances surrounding the data 
transfer  operation(s).  In  particular,  the  nature  of  the  data,  the  purpose  and  duration  of  the 
processing, as well as the legal framework of the third State should be evaluated. By way of 
derogation from this requirement, personal data can be transferred only under strict conditions 
such as, inter alia, the fact that the third country offers appropriate and effective safeguards28. 

The  bilateral  agreements  between  Member  States  and  the  U.S.  concerning  data  transfers 
falling within the scope of the Framework Decision should therefore fulfill these criteria.  

Against this background, a general reference to the applicability of each Party’s national law, 
which can be found in most of the bilateral agreements concluded under the VWP, may not 
always  be  sufficient  to  ensure  the  level  of  protection  required  by  the  Framework  Decision. 
Furthermore,  some  of  the  bilateral  agreements  between  Member  States  and  the  U.S.  are 
missing a clear purpose limitation and strict criteria qualifying the cases for further processing 
of the transferred data. This might raise issues of the compliance of these agreements with the 
EU acquis and, in particular, its rules limiting further processing for purposes different to that 
for which the data were collected29.  

The  Commission  is  currently  negotiating  with  the  U.S.  an  agreement  for  the  exchange  of 
personal  data  processed  in  the  framework  of  police  and  judicial  cooperation  in  criminal 
matters. This agreement will eventually complement the existing and future agreements in the 
field  of  police  and  judicial  co-operation  in  criminal  matters  with  the  necessary  safeguards 
from a data protection point of view. 

24 

25 
26 
27 
28 
29 

Recital  17  of  Council  decision  2008/615/JHA  of  23  June  2008  on  the  stepping  up  of  cross-border 
cooperation, particularly in combating terrorism and cross-border crime. 
OJ L 350, 30.12.2008. 
Art. 1, par. 2, of the Framework Decision. 
Art. 13, par. 1(d), of the Framework Decision. 
Art. 13, par. 3, of the Framework Decision. 
Art. 3, par. 2, of the Framework Decision. 

EN 

20 

   EN