COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL State of play and way forward as regards the situation of non-reciprocity in the area of visa policy
Date: 2018-12-19
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Bulgaria, Croatia, Cyprus, EU visa policy, Poland, Romania, United States, external border of the EU, foreign national

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 19.12.2018  COM(2018) 855 final  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL State of play and way forward as regards the situation of non-reciprocity in the area of visa policy  
 
 
I. INTRODUCTION 

On 12 April 2016, the Commission presented a Communication on the state of play and the 
possible ways forward as regards the situation of non-reciprocity with certain third countries 
in the area of visa policy.1 In that Communication it was noted that with the active support of 
the Commission, the vast majority of the non-reciprocity cases notified as regards eight third 
countries  had  been  solved.  However,  the  Communication  recalled  that,  if  the  third  country 
concerned had not lifted the visa requirement by 12 April 2016, Council Regulation (EC) No 
539/2001  of  15  March  2001  as  amended  by  the  European  Parliament  and  Council  by 
Regulation  (EU)  No  1289/2013  of  11  December  2013,  obliges  the  Commission  to  adopt  a 
delegated  act  suspending  for  12  months  the  visa waiver  for  nationals  of  that  third  country.2 
The Regulation also requires that the Commission take into account the consequences of the 
suspension of the visa waiver for the external relations of the EU and its Member States.  

The April 2016 Communication assessed the consequences and impact  of the suspension of 
the  visa  waiver  for  EU  citizens  and  businesses  as  well  as  nationals  of  the  third  countries 
concerned,  and  invited  the  European  Parliament  and  the  Council  to  discuss  the  most 
appropriate  way  forward.  The  Commission  subsequently  presented  four  follow-up 
Communications:  in  July3  and  December4  2016,  and  in  May5  and  December6  2017.  In  its 
latest Communication on visa reciprocity from December 2017, the Commission provided an 
overview  of  the  state  of  play  and  possible  ways  forward  as  regards  the  situation  of  non-
reciprocity  with  the  United  States  (notified  by  Bulgaria,  Croatia,  Cyprus,  Poland  and 
Romania), as the only remaining case of non-reciprocity7.  

When the latest Communication was presented in the European Parliament, some Members of 
the  European  Parliament  Committee  on  Civil  Liberties,  Justice  and  Home  Affairs  called  on 
the  Commission  to  adopt  a  delegated  act  suspending  the  visa  waiver  for  nationals  of  the 
United  States,  while  others  agreed  with  the  Commission  on  the  impact  such  a  suspension 
would have on transatlantic relations, and acknowledged the ongoing efforts to achieve visa 
reciprocity. As reported in previous Communications, in the past twelve months, the Council 
has not discussed the matter. 

This  Communication  takes  stock  of  progress  achieved  towards  visa  reciprocity  with  the 
United States since December 2017.  

II. LATEST DEVELOPMENTS  

1.  U.S. Visa Waiver Program requirements and developments  

1   COM(2016) 221 final of 12 April 2016. 
2   This  provision  can  now  be  found  in  Regulation  (EU)  2018/1806  of  the  European  Parliament  and  of  the 
Council  of  14  November  2018  listing  the  third  countries  whose  nationals  must  be  in  possession  of  visas 
when  crossing  the  external  borders  and  those  whose  nationals  are  exempt  from  that  requirement 
(codification), OJ L 303, 28.11.2018, p. 39. 

3   COM(2016) 481 final of 12 July 2016. 
4   COM(2016) 816 final of 21 December 2016. 
5   COM (2017) 227 final of 2 May 2017. 
6   COM(2017) 813 final of 20 December 2017. 
7   The previous Communication provided an overview of all the resolved cases of non-reciprocity: in 2014 the 
Commission received notifications of non-reciprocity situations from five Member States: Bulgaria, Croatia, 
Cyprus, Poland and Romania. These notifications related to Canada, the United States, Australia, Brunei and 
Japan. The situations of non-reciprocity with Canada, Australia, Brunei and Japan have all been resolved by 
achieving full visa waiver reciprocity. On 6 November 2018 Japan informed Romania that the visa waiver 
for holders of Romanian passports, including temporary passports,  which  was  in force  until 31 December 
2018, will be made permanent as from 1 January 2019. 

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Visa  Waiver  Program  requirements  are  set  by  the  United  States  and  are  either  stipulated  in 
United  States  law,  which  is  notably  the  case  for  visa  refusal  rate,  or  are  part  of  executive 
requirements introduced by the Department of Homeland Security. 

The  Visa  Waiver  Program  is  seen  by  the  United  States  not  only  as  a  travel  facilitation 
programme,  but  also  as  a  security  programme.  The  United  States  strengthened  the  security 
elements  of  the  programme,  namely  by  introducing  some  additional  Visa  Waiver  Program 
enhancements in December 2017. The enhancements were introduced by  the Department of 
Homeland  Security  and  mainly  concerned  overstay  rates,  aviation  security  and  further 
tightening  of  security  requirements,  in  particular  requiring  full  implementation  of  existing 
information  sharing  arrangements  to  systematically  screen  travellers  against  United  States. 
counterterrorism  information8.  The  Commission  is  closely  following  these  developments, 
which apply to both current and aspiring members of the Visa Waiver Program, and are now 
to be considered as ‘baseline requirements’. 

When  assessing  the  five  Member  States  concerned,  in  order  for  them  to  be  considered  for 
designation  to  the  Visa  Waiver  Program,  the  United  States  has  notably  focused  on  the 
following requirements: 

Visa refusal rate 

According  to  United  States  legislation,  as  stipulated  in  the  United  States  Immigration  and 
Nationality Act, the aspiring countries for the Visa Waiver Program shall have a refusal rate 
for  non-immigrant  visas  less  than  3%  per  year  or  a  2-years  average  of  less  than  2%. 
According  to  visa  refusal  statistics  for  2017,  four  out  of  five  Member  States  are  above  the 
required 3% threshold (Bulgaria 14,97%, Croatia 5,1%, Poland 5,92% and Romania 11,76%). 
The Member States concerned are actively working towards decreasing the refusal rate. It is 
noted  that  progress  has  been  made  as  visa  refusal  rates  have  decreased  for  several  Member 
States concerned as compared to 2016 figures. Bulgaria has recorded a steady decrease of the 
visa refusal rate over the last years, with refusals decreasing from 17,3% in 2015, 16,9% in 
2016  to  14,97%  in  2017.  The  refusal  rate  for  Croatia  also  decreased  from  6,8%  in  2016  to 
5,1%  in  2017.  Cyprus  has  remained  under  the  3%  threshold,  with  the  refusal  rate  lowering 
from 2% in 2016 to 1,69% in 20179. While the visa refusal rate for Poland in 2017 showed a 
slight increase compared to the previous year (5,4% in 2016), overall figures show a steady 
downward trend over the last years. The visa refusal rates for Romania have remained steady 
over the last years, with the 2017 refusal rate witnessing a slight increase compared to 2016 
(11,4%).  

Several  Member  States  have  been  conducting  information  campaigns,  with  EU  financial 
support,  and  active  participation  of  local  United  States  consular  sections,  as  a  way  to  raise 
awareness  of  conditions  to  travel  to  the  United  States  and  consequently  bringing  down  the 
visa refusal rate (this is notably the case for Croatia, Bulgaria and Romania over the course of 
2017). Other Member States concerned have also conducted outreach activities: Bulgaria has 
worked  with  the  local  consular  United  States  section  to  prepare  guidelines  explaining  the 
United  States  visa  application  process,  including  the  visa  interview.  Other  Member  States 
concerned have also conducted similar outreach activities in the past.  

8   https://www.dhs.gov/news/2017/12/15/secretary-kirstjen-nielsen-announces-targeted-security-

enhancements-visa-waiver  

9   While Cyprus already complies with the 3% visa refusal rate requirement, the United States signalled that 
they are looking the totality of all relevant circumstances and the division of the island remains a particular 
challenge. 

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In this respect, a detailed breakdown of visa refusal rates has been requested from the United 
States authorities for the Member States concerned to better target their outreach campaigns. 

Implementation of the Preventing and Combating Serious Crime Agreement  

In addition to signing the Preventing and Combating Serious Crime Agreement, the targeted 
enhancements  introduced  by  the  United  States  Department  of  Homeland  Security  in  2017 
have  made  it  mandatory  for  the  Preventing  and  Combating  Serious  Crime  Agreement  to  be 
fully implemented for a country to be considered for Visa Waiver Program designation. All 
Member  States  concerned  have  advanced  work  on  the  fulfilment  of  this  criterion.  Bulgaria, 
Croatia, Cyprus and Romania have signed and ratified this type of agreement with the United 
States  and  have  worked  on  its  full  implementation  in  order  to  meet  Visa  Waiver  Program 
requirements set by the United States.  

At the tripartite meeting in May 2018 (see section II.2 below), Poland announced its intention 
to  restart  negotiations  with  the  United  States  to  sign  the  Preventing  and  Combating  Serious 
Crime  Agreement,  which  had  been  initialled  in  2013  but  had  not  yet  been  signed.  At  the 
tripartite  meeting  in  October,  discussions  focused  on  how  to  accelerate  the  work  for  the 
signature and conclusion of the Preventing and Combating Serious Crime agreement between 
the  United  States  and  Poland,  with  end  of  2018  set  as  a  target  date  for  the  review  of  the 
initialled agreement. The Commission supports a swift conclusion of the agreement, as well 
as  its  implementation,  since  this  is  a  requirement  set  by  the  United  States  in  order  to  be 
considered for designation. 

Implementation of Homeland Security Presidential Directive 6 / Terrorist Screening Center 
Agreement10  

In  a  similar  vein,  in  addition  to  signing  the  Homeland  Security  Presidential  Directive 6  / 
Terrorist  Screening  Center  Agreement,  the  executive  amendments  introduced  by  the 
Department of Homeland Security to the Visa Waiver Program in December 2017 have made 
it mandatory for this agreement to be fully implemented. All Member States concerned have 
signed  and  ratified  this  agreement,  however  in  order  to  consider  this  agreement  fully 
implemented, the United States requires more frequent reporting and systematic use of U.S.-
provided  information.  All  Member  States  concerned  have  advanced  work  to  meet  this 
requirement,  for  instance  by  establishing  operational  information  sharing  between  their 
national authorities and the United States Terrorist Screening Center. 

Reporting of lost and stolen passports  

As  a  security  measure,  the  United  States  requires  that  all  Visa  Waiver  Program  countries 
report lost and stolen passports to multilateral organisations such as Interpol no later than 24 
hours after becoming aware of the theft or loss. Most Member States concerned already have 
in place automated solutions for daily reporting. Cyprus is manually reporting lost and stolen 
passports on a daily basis and is currently working to introduce automated reporting in 2019. 

Apart from the measures described above, the progress of the five Member States concerned 
in meeting the criteria should also be seen as part of the overall EU efforts in areas such as 

10   Homeland  Security  Presidential  Directive 6/Terrorist  Screening  Center  Agreement  (HSPD6/TSC)  is  a 
security  agreement  stipulating  arrangements  to  share  information  about  known  or  suspected  terrorists 
between a Visa Waiver Programme country and the United States Terrorist Screening Center.  

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aviation security, the fight against terrorism, and document security, where the EU and United 
States  are  engaged  in  a  joint  global  effort  and  are  working  together  for  enhanced  global 
security against shared threats. 

Finally, regarding overall developments of the Visa Waiver Program, it is to be noted that the 
United States Immigration and Nationality Act stipulates that when the U.S. Air Exit System 
is in place, the Secretary of the Department of Homeland Security would again have the right 
to  derogate from the 3% visa refusal  rate threshold.  In this case, countries with  visa refusal 
rate  of  less  than  10%  could  be  considered  for  designation  into  the  Visa  Waiver  Program, 
provided  that  they  fulfil  all  the  other  requirements.  The  Commission  also  notes  that  the 
biometric  Air  Exit  System  has  been  flagged  as  an  important  issue  by  many  United  States 
lawmakers. However, the United States’ authorities have referred to budgetary constraints as 
a  reason  for  not  implementing  the  Air  Exit  System  yet,  with  pilot  projects  having  been 
launched  only  at  some  airports.  In  contacts  with  the  United  States,  the  Commission  has 
pointed  out  that  the  EU  has  adopted  a  similar  system  (the  Entry/Exit  System),  which  is 
currently being implemented, and that it stands ready to share its experience with the United 
States.  

Regarding the outstanding requirements for the Visa Waiver Program, the main legal obstacle 
for  four  Member  States  remains  the  visa  refusal  rate.  In  addition,  according  to  the  United 
States authorities, other Visa Waiver Program requirements such as reporting to the Interpol 
Stolen  and  Lost  Travel  Documents’  database  on  a  daily  basis  and  the  signature  and  full 
implementation  of  the  Preventing  and  Combatting  Serious  Crime  agreement  were  still  not 
fully implemented for some of the Member States concerned. 

2.  Overview of EU-United States contacts 

During  the  preceding  12  months,  political  and  technical  contacts  have  been  significantly 
stepped  up  and  the  Commission  has  continued  to  urge  the  United  States  at  all  possible 
occasions  to  further  cooperate  with  the  five  Member  States  concerned  and  to  accelerate 
progress towards full visa reciprocity. In its contacts with the United States, in coordination 
with  the  five  Member  States  concerned,  the  Commission  called  for  these  efforts  to  lead  to 
intensified and concrete action on all sides, on the basis of objective criteria. 

Visa  reciprocity  was  discussed  at  all  official  meetings  between  the  EU  and  the  U.S.  in 
particular at the occasion of the two EU-U.S. Justice and Home Affairs Ministerial meetings - 
held in Sofia in May and in Washington D.C. in November, at the EU-U.S. Justice and Home 
Affairs  Senior  Officials’  meetings  -  held  in  February  and  in  September  2018,  and  at  the 
tripartite  meetings  -  held  between  the  Commission,  the  United  States  and  the  five  Member 
States concerned in Washington D.C. in May and again in Brussels in October 2018.  

Tripartite meeting in Washington D.C.  

After six tripartite meetings held in Brussels, at the beginning of May 2018 the tripartite talks 
took  place  for  the  first  time  in  Washington  D.C.  From  the  United  States,  a  wide  range  of 
experts  participated  and  contacts  with  senior  officials  took  place,  which  provided  the 
opportunity  for  the  five  Member  States  concerned  and  the  Commission  to  engage  with  key 

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United  States  interlocutors.  The  five  Member  States  concerned  completed  a  self-assessment 
matrix  provided  by  the  Department  of  Homeland  Security  on  the  fulfilment  of  the  Visa 
Waiver Program requirements in order to assess areas where progress had been made and to 
accelerate  the  work  on  what  United  States  authorities  consider  to  be  the  outstanding 
requirements (see section II.1 above).  

Side meetings with various stakeholders also took place in Washington D.C., including with 
Congress officials, in order to raise awareness of the visa reciprocity issue and on extensive 
measures  taken  by  the  EU,  including  the  five  Member  States  concerned,  on  enhancing 
security and strengthening external border management. 

EU-U.S. Justice and Home Affairs Ministerial in Sofia  

At the EU-U.S. Justice and Home Affairs Ministerial held on 22-23  May, both the Bulgarian 
Presidency of the Council of the EU and the Commission underlined the urgency to advance 
towards full EU-U.S. visa reciprocity. The United States restated its position that all countries 
have to meet the United States statutory requirements to join the Visa Waiver Program, which 
is  still not  the case for the five Member States concerned,  and that the United States would 
continue  to  engage  with  these  Member  States  on  this  matter.  The  joint  statement  issued 
after the Ministerial meeting stated that the European Union and the United States took 
stock of the continuing progress by the European Union and the United States, including 
that  of  the  five  concerned  EU  Member  States,  towards  meeting  the  statutory 
requirements of the Visa Waiver Program, in order to be considered for designation. 

Tripartite meeting in Brussels 

The next tripartite meeting took place in October in Brussels. Work to track progress made by 
each of the Member States continued on the basis of the updated self-assessment matrix.  It 
noted progress achieved since the previous tripartite meeting in May, and focused on efforts 
towards decreasing the visa refusal rate, on work towards the full implementation of relevant 
security agreements and obtaining clear and objective guidance from the United States side on 
what remains to be done to meet the remaining requirements. The conclusion of this tripartite 
meeting was that progress had been made by some of the Member States concerned towards 
full implementation of the relevant agreements as part of the requirements. 

EU-U.S. Justice and Home Affairs Ministerial in Washington D.C.  

The EU-U.S. Justice and Home Affairs Ministerial Meeting took place in Washington D.C., 
on  9  November  2018,  where  strong  calls  for  making  progress  on  achieving  visa  reciprocity 
were repeated by the Commission and the Austrian Presidency of the Council of the EU. The 
Commission  reiterated  the  need  for  concrete  and  objective  benchmarks  in  order  for  the 
Member  States  concerned  to  better  focus  their  efforts  towards  fulfilling  the  Visa  Waiver 
Program  requirements.  The  joint  statement  issued  after  the  Ministerial  meeting 
underlined  that  both  sides  agreed  on  the  importance  of  advancing  towards  reciprocal 
visa free travel under their respective legal frameworks and, following the most recent 
tripartite  meeting  on  visa  reciprocity,  welcomed  the  progress  of  the  five  concerned 
Member  States  towards  meeting  the  statutory  requirements  of  the  Visa  Waiver 
Program,  in  order  to  be  considered  for  designation  in  the  programme.  The  Ministerial 
meeting recorded progress and resulted in commitment from the United States to work with 

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the Member States concerned in order to provide further guidance for ongoing work towards 
meeting the Visa Waiver Program requirements. 

III. THE COMMISSION’ CONTINUOUS ENGAGEMENT AND NEXT STEPS   

1.  Support to and coordination with the Member States concerned 

While most Visa Waiver Program requirements set by the United States fall under the areas of 
bilateral  cooperation  between  the  United  States  and  each  of  the  Member  States  concerned, 
reciprocity is a fundamental principle of EU visa policy, and the Commission will continue to 
support actively the five Member States and to work closely with them in order to help them 
to fulfil the requirements for U.S. Visa Waiver Program designation.  

In addition to facilitating regular meetings in the established tripartite format, the Commission 
is  continuously  coordinating  and  exchanging  information  with  the  five  Member  States 
concerned  in  order  to  ensure  appropriate  follow  up  in  the  relevant  areas  and  has  also  made 
available  financial  support,  where  needed.  Financial  support  has  been  made  available  under 
national  programmes  of  the  Internal  Security  Fund.  All  recent  initiatives  to  strengthen 
external border management and advance towards a genuine and effective Security Union in 
the  EU  area  are  also  highly  relevant  in  this  context.  The  regular  information  exchange 
between  the  Member  States  concerned  and  the  Commission  is  enabling  to  track  progress 
made by the five Member States concerned in their efforts to fulfil the Visa Waiver Program 
criteria. 

2.  Upcoming contacts with the United States 

Upcoming  contacts  at  all  levels,  including  technical  and  political  –  both  in  tripartite  and 
bilateral contexts, will provide opportunities and occasions to follow up on progress achieved. 
These contacts include the next EU-U.S. Justice and Home Affairs Senior Officials’ Meeting, 
which will take place in early 2019, as well as a next tripartite meeting.  

The  next  EU-U.S.  Justice  and  Home  Affairs  Ministerial  meeting,  which  is  planned  to  take 
place later in spring 2019 in Bucharest, Romania, will offer an opportunity to advance further 
progress.  The  five  Member  States  concerned  should  also  use  every  opportunity  offered  at 
bilateral level to engage with the Unites States and to achieve progress. 

IV. CONCLUSIONS  

The Commission remains committed to achieving full visa reciprocity for all Member States 
as  a  matter  of  priority.  As  regards  the  United  States,  as  the  only  remaining  case  of  non-
reciprocity, the Commission remains engaged in a result-oriented process.  

The  Commission  will  continue  its  engagement  with  the  United  States  and  with  the  five 
Member States concerned to accelerate progress towards full visa reciprocity. As things stand, 
the  Commission  maintains  its  position  that  cooperation  and  joint  diplomatic  engagement, 
where  the  Commission  is  in  close  coordination  with  the  five  Member  States  concerned, 
continues to be the most appropriate way forward.  

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Therefore,  the  Commission  still  considers  that  the  adoption  of  a  delegated  act  temporarily 
suspending the exemption from the visa requirement for nationals of the United States would 
be counterproductive at this moment and it would not serve to achieve the objective of visa-
free travel for all EU citizens. This position can be reviewed in light of developments.  

In this context, it is essential to continue ensuring that the EU speaks with one voice on this 
important  matter.  The  Commission  will  continue  to  work  closely  with  both  the  European 
Parliament  and  the  Council  to  achieve  full  visa  reciprocity  and  will  report  on  the  further 
developments in September 2019. 

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