COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Defining the position of the Commission following the European Parliament resolution of 22 October 2020 on obligations of the Commission in the field of visa reciprocity and reporting on the state of play
Date: 2020-12-22
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Bulgaria, Croatia, Cyprus, EU visa policy, Romania, United States, coronavirus disease, epidemic, external border of the EU, foreign national

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 22.12.2020  COM(2020) 851 final  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Defining the position of the Commission following the European Parliament resolution of 22 October 2020 on obligations of the Commission in the field of visa reciprocity and reporting on the state of play       
 
 
I. INTRODUCTION 

This Communication defines the position of the Commission for the purposes of Article 265 
of the Treaty on the Functioning of the European Union following the European Parliament 
Resolution  of  22  October  2020  on  ‘obligations  of  the  Commission  in  the  field  of  visa 
reciprocity in accordance with Article 7 of Regulation (EU) 2018/1806’. It also reports on the 
developments in the field of visa reciprocity with the United States since March 2020, when 
the  last  Communication  was  adopted,  underlining  the  continued  efforts  and  engagement  of 
the  Commission  to  address  the  current  situation  of  non-reciprocity,  notwithstanding  the 
COVID-19 pandemic. 

The  Resolution  adopted  by  the  European  Parliament  on  22  October  2020  represents  the 
follow  up  to  an  oral  question  debated  in  the  European  Parliament  plenary  on  19  October 
2020.  In  its  answer  to  this  question,  the  Commission  restated  its  commitment  to  achieving 
visa reciprocity for all Member States as a matter of priority. The Commission also explained 
that,  as  regards  the  United  States,  it  remains  fully  engaged  in  a  results-oriented  process,  in 
close coordination with the Member States concerned, and that the results achieved show that 
tangible  progress  towards  full  visa  waiver  reciprocity  can  be  achieved  through  the  current 
route of continued engagement and joint diplomatic contacts. In the Resolution, the European 
Parliament  considers  that  the  Commission  is  “legally  obliged  to  adopt  a  delegated  act 
temporarily  suspending  the  exemption  from  the  visa  requirement  for  nationals  of  third 
countries”, which have not lifted the visa requirement for citizens of certain Member States 
by the deadline of 12 April 2016. In practice, this refers to the United States only since the 
citizens of Bulgaria, Croatia, Cyprus and Romania are still visa required when travelling to 
the United States. It also calls on the Commission, based on Article 265 of the Treaty on the 
Functioning  of the European Union, to  adopt  the required delegated act  within two months 
from the date of adoption of the Resolution. 

II. BACKGROUND 

On  12  April  2016,  the  Commission  presented  a  Communication  on  the  state  of  play  and 
possible ways forward as regard the situation of non-reciprocity with certain third countries 
in  the  area  of  visa  policy.1  The  Communication  noted  that,  with  the  active  support  of  the 
Commission, the vast majority of the non-reciprocity cases notified as regard third countries 
had  been  solved.2  However,  it  was  also  recalled  that,  if  the  remaining  third  countries  with 
visa requirements did  not  lift them by 12 April 2016, the Commission would  be obliged to 
adopt a delegated act suspending the visa waiver for their nationals for a period of 12 months 
in  accordance  with  Regulation  (EC)  No  539/2001  of  15  March  2001,  as  amended  by 
Regulation (EU) No 1289/2013 of 11 December 2013.3 The Regulation also required that the 

1   COM(2016) 221 final of 12 April 2016. 
2 

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. 

3   See  Article  1(4)  of  that  Regulation.  The  same  obligation  is  now  provided  for  by  Article  7  of  Regulation 
(EU)  2018/1806  of  the  European  Parliament  and  of  the  Council  of  14  November  2018  listing  the  third 

1 

 
 
                                                           
 
Commission take into account the consequences of the suspension of the visa waiver for the 
external relations of the EU and its Member States.4 

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  six  follow-up 
Communications: in July5 and December6 2016, in May7 and December8 2017, in December 
20189,  and  in  March  202010.  In  the  last  one,  the  Commission  provided  an  overview  of  the 
state of play and the way forward as regard the situation of non-reciprocity with the United 
States  which  still  affects  citizens  of  Bulgaria,  Croatia,  Cyprus  and  Romania,  i.e.  the  only 
remaining  case  of  non-reciprocity.  It  also  reported  on  progress  achieved  by  Poland,  which 
joined the United States Visa Waiver Program in November 2019. 

The  Communication  presented  in  March  2020  noted  the  extraordinary  situation  in  terms  of 
implementation of visa policies world-wide, given the proliferation of visa-related measures 
taken by many countries to fight the COVID-19 pandemic. As of 13 March 2020, the United 
States imposed temporary travel restrictions on non-essential travel of foreign nationals who, 
regardless  of  their  nationality,  have  been  physically  present  in  the  Schengen  area  or  have 
visited it 14 days prior to entering United States territory11. These restrictions were extended 
to Ireland and the United Kingdom on 16 March12. Since these entry restrictions are based on 
physical presence in an area rather than nationality, they cannot be considered as linked with 
visa reciprocity13. The European Union took similar steps to restrict non-essential travel into 
the Union.14  

III. RECENT DEVELOPMENTS  

1.  Overview of EU-United States contacts and their follow-up  

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,  which 
codified Regulation 539/2001. 

5   COM(2016) 481 final of 12 July 2016. 
6   COM(2016) 816 final of 21 December 2016. 
7   COM(2017) 227 final of 2 May 2017. 
8   COM(2017) 813 final of 20 December 2017. 
9   COM(2018) 855 final of 19 December 2018. 
10   COM(2020) 119 final of 23 March 2020. 
11   https://www.dhs.gov/news/2020/03/11/homeland-security-acting-secretary-chad-f-wolf-s-statement-

presidential-proclamation  

12   https://www.dhs.gov/news/2020/03/16/department-homeland-security-outlines-new-process-americans-

returning-schengen-area  

13   As of 19 March, the United States issued a global health advisory for the entire world as level 4, its highest 
level,  advising  against  travelling,  which  has  been  maintained  in  the  reporting  period.  As  a  consequence, 
routine  U.S. visa  services  worldwide  were  first  temporarily suspended  worldwide.  As of July, the United 
Stated started a phased resumption of visa services, notably emergency and mission critical visa services. 
14   COM(2020) 115 final of 16 March 2020 and Council Recommendation 2020/912 of 30 June 2020 on the 

temporary restriction on non-essential travel into the EU and the possible lifting of such restriction. 

2 

 
 
                                                                                                                                                                                     
 
Although  it  was  not  possible  to  organise  physical  meetings  after  March  2020,  the  issue  of 
non-reciprocity  was  addressed  in  all  relevant  videoconferences  between  the  EU  and  the 
United States. It was, most notably, on the agenda of the EU-U.S. Justice and Home Affairs 
Ministerial meeting, held on 28 May 2020. It was also thoroughly discussed at the EU-U.S. 
Justice  and  Home  Affairs  Senior  Officials’  meeting  on  15  September  2020,  and  in  the 
tripartite meetings (held between the Commission, the United States and the Member States 
concerned) on18-19 June 2020 and 10-11 December 2020. 

EU-U.S. Justice and Home Affairs Ministerial meeting (May 2020) 

At the EU-U.S. Justice and Home Affairs Ministerial meeting held on 28 May 2020, both the 
Croatian Presidency of the Council of the European Union and the Commission reiterated the 
importance  of  extending  the  U.S.  Visa  Waiver  Program  to  all  EU  Member  States.  While 
recalling the progress made through the entry of Poland into the Visa Waiver Program, which 
demonstrates that joint pragmatic technical and diplomatic engagement is bearing fruit, it was 
stressed that securing waivers for the four remaining Member States remains a priority. It was 
agreed  that  in  order  to  achieve  progress,  constructive  engagement  based  on  tailored  work-
plans  elaborated  by  the  United  States  for  each  of  the  four  Member  States  concerned  and 
guiding  them  towards  full  compliance  with  the  U.S.  Visa  Waiver  Program  security 
requirements, should continue. 

Tripartite meeting in June 2020 

A tripartite videoconference meeting, dedicated to the issue of visa reciprocity, took place on 
18-19 June 2020. It brought together representatives from the United States, the Commission 
and  the  Member  States  concerned  -  Bulgaria,  Croatia,  Cyprus  and  Romania.  Continued 
engagement, despite the pandemic and the suspension of all non-essential travel between the 
EU and United States, showed the importance of the visa reciprocity issue. The participants 
explored how to continue common work in the COVID-19 context and discussed progress on 
outstanding U.S. Visa Waiver Program security requirements and on visa refusal rates. 

Despite ongoing COVID-19 travel restrictions and the worldwide suspension of most of the 
U.S.  visa  service  operations  since  March,  representatives  of  the  United  States  did  not 
envisage changes to the method of calculating how visa-refusal rates are determined for the 
2020 fiscal year. The visa-refusal rate is an important legal requirement for any country that 
aspires to join the U.S. Visa Waiver Program15.  

Regarding  the  outstanding  U.S.  Visa  Waiver  Program  security  requirements,  there  was  a 
second round of discussions on the tailored work-plans provided by the United States to the 
four  concerned  Member  States  in  2019.  The  discussion  on  the  basis  of  concrete  country-
specific  work  plans  was  considered  by  the  Member  States  concerned  as  an  improvement 
compared  to  the  previous  approach  which  was  based  on  a  more  general  assessment  of  the 
security  requirements.  Since  the  work  plans  contain  guidance  which  is  specific  to  each 

15   According to United States legislation, as stipulated in the United States Immigration and Nationality Act, 
the aspiring countries for the Visa Waiver Program must have a refusal rate for non-immigrant visas of less 
than 3% per year or a two-year average of less than 2%. 

3 

 
 
                                                           
Member  State,  they  allow  the  latter  to  focus  their  efforts  on  meeting  the  outstanding 
requirements. The plans, in fact, contain suggested actions to be taken by the Member States 
to  reach  compliance,  as  reported  in  the  March  2020  Communication.  The  work-plans  were 
revisited  during  the  tripartite  meeting  and  their  implementation  assessed,  with  all  four 
Member  States  demonstrating  progress  on  a  range  of  work-strands.  These  include 
implementation  of  information-sharing  agreements  (namely  Preventing  and  Combating 
Serious  Crime  Agreement),  using  information  provided  by  the  United  States  for  enhanced 
screening and counter-terrorism efforts,  as well as increased national  screening capabilities. 
While  acknowledging  progress,  the  United  States  reiterated  that  its  assessment  follows  a 
holistic  approach,  and  it  did  not  consider  all  the  requisite  agreements  as  fully  implemented 
yet16. 

As  an  outcome  of  the  meeting,  all  four  Member  States  committed  to  continue  working  on 
various  work-strands  from  their  respective  work-plans.  The  United  States  committed  to 
continue reviewing the respective work-plans and give continuous feedback. 

Tripartite meeting in December 2020 

Another  round  of  tripartite  meeting  took  place  on  10  and  11  December  2020,  over 
videoconference.  It  served  to  underline  the  engagement  despite  the  continued  context  of  a 
global  pandemic.  The  visa  refusal  rates  for  the  2020  fiscal  years  were  not  yet  publicly 
available, but the U.S. authorities underlined the that the decline in 2020 also translated in a 
sharp decline in visa applications. 

The  meeting  therefore  focused  on  the  security  requirements,  by  having  a  third  round  of 
discussions  on  the  tailored  work-plans  provided  by  the  U.S.  authorities  to  each  of  the 
Member  States  concerned.  All  Member  States  demonstrated  further  progress  on  a  range  of 
work-strands. Enhancing  the integrity of national passport issuing systems was raised as an 
issue,  to  a  different  degree,  for  each  of  the  four  Member  States  concerned,  with  schemes 
offering expedited ways to  citizenship and addressing cases  of fraud in  the passport  offices 
flagged as a particular area of concern.  

As part of the meeting, the Commission services delivered a presentation on European Travel 
Information  and  Authorisation  System  (ETIAS)  and  overall  interoperability  of  information 
systems for migration and security, in order to raise awareness of U.S. authorities for this area 
where EU rules exist. 

As an outcome of the meeting, all four Member States committed to continue addressing the 
suggested  actions  from  the  work-plans.  The  United  States  committed  to  refining  the 
respective  work-plans,  if  need  be,  in  light  of  actions  already  taken.  The  Commission 
committed to subsequently address other horizontal issues, where EU rules exist. 

16   As  previously  reported,  in  addition  to  signing  the  Preventing  and  Combating  Serious  Crime  Agreement 
(PCSC), the targeted enhancements introduced by the United States Department of Homeland Security in 
2017 have made it mandatory for this Agreement to be fully implemented for a country to be considered for 
Visa Waiver Program designation. 

4 

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

Visa refusal rate 

 As  reported  in  the  March  2020  Communication,  the  visa  refusal  rate  for  2019  showed 
decreases for all four Member States concerned, bringing some of them close to the legally 
required 3% threshold. Cyprus remains under 3%, Croatia decreased to 4%, and Bulgaria and 
Romania both recorded rates under 10% for the first time – i.e. 9.75% for Bulgaria and 9.11% 
for Romania. The visa refusal rates for the 2020 fiscal year, which ended in September, are 
not yet available.  

Security requirements 

As previously reported, Bulgaria, Croatia, Cyprus and Romania have signed and ratified the 
Preventing  and  Combating  Serious  Crime  Agreement  (PCSC)  with  the  United  States,  and 
have worked on its full implementation, which according to United States authorities is not 
yet the case. 

Work on meeting the overall security requirements continues on the basis of the work-plans 
which the U.S. authorities individually tailored for each Member State concerned (see section 
II.2). The next  tripartite  meeting, planned for the spring 2021 will focus  on the progress  in 
actions identified in the work-plans.  

3.  Current political context in the United States and EU-U.S. bilateral relations 

Following  the  Presidential,  Congress,  State  and  local  elections  on  3  November  2020,  the 
United  States  administration  has  now  entered  a  transition  period.  It  will  last  until  the 
Inauguration  Day  scheduled  for  20  January  2021.  This  means  that  the  incumbent 
administration is not expected to take any forward-looking policy decisions, including on visa 
reciprocity. Political engagement will resume after the inauguration of the new President and 
his Cabinet. 

On 2 December 2020, the Commission, together with the European External Action Service, 
issued  a  Joint  Communication  “A  new  EU-US  agenda  for  global  change”17.  The  Joint 
Communication  puts  forward  a  proposal  for  a  new,  forward-looking  transatlantic  agenda,  
conveys a positive political message to the upcoming US Administration, on the importance 
of  renewing  our  transatlantic  partnership  and  recalls  that  for  people  on  both  sides  of  the 
Atlantic,  transatlantic  ties  are  a  vital  element  of  their  societies,  identities,  economies  and 
personal lives.  

As  stated  in  the  Joint  Communication,  the  change  in  administration  in  the  United  States 
provides  a  unique  opportunity  to  define  a  new  transatlantic  agenda  for  global  cooperation.  
One of the guiding principles of such a partnership should be to work together on solutions to 
bilateral  differences  that  respect  our  common  values.  In  this  context,  it  will  important  to 
assess the stance of the incoming United States administration to visa reciprocity issues. 

17   JOIN(2020) 22 final 

5 

 
 
                                                           
IV. NEXT STEPS AND CONCLUSIONS 

The  Commission  reiterates  its  intention  to  continue  to  actively  support  the  four  Member 
States  concerned  in  order  to  help  them  fulfil  the  requirements  of  the  U.S.  Visa  Waiver 
Program.  

Upcoming  meetings,  both  technical  and  political  (in  tripartite  and  bilateral  formats),  will 
provide opportunities to maintain the momentum. The next regular tripartite meeting, planned 
for spring 2021, should take forward the technical work based on the work-plans provided by 
the United States to each of the four remaining Member States, allowing the latter to further 
operationalise the U.S. Visa Waiver Program security requirements. 

The next EU-U.S. Justice and Home Affairs Senior Officials’ meeting, expected to take place 
in  early  spring  2021,  followed  by  the  EU-U.S.  Justice  and  Home  Affairs’  Ministerial 
meeting, planned for summer 2021 in Portugal, will allow to assess progress made. 

The Commission remains committed to achieving full visa reciprocity for all Member States 
as  a  matter  of  priority.  It  will  continue  working  with  the  United  States  and  concerned 
Member States to advance towards full visa reciprocity building on the momentum created by 
the  joint  Communication  on  a  new  EU-US  agenda  for  global  change.  Given  the  entry  of 
Poland into the United States Visa Waiver Program, the extraordinary context stemming from 
the  COVID-19  pandemic  –  which  has  negatively  impacted  travel  and  the  overall 
implementation of visa policies word-wide, and the continued progress made by the Member 
States concerned, the Commission maintains its position that – as long as there is sustained 
progress – cooperation and joint diplomatic engagement, whereby the Commission works in 
close coordination with the Member States concerned, continues to be the most appropriate 
way forward. It has to be noted that the Member States concerned agree to continue dialogue 
and achieve results with the United States through constructive engagement with the United 
States  and  that  none  of  them  has  invited  the  Commission  to  adopt  the  delegated  act 
temporarily suspending the visa exemption for U.S. nationals. 

The  Commission  also  takes  into  account  that  suspending  the  exemption  from  the  visa 
requirement for nationals  of the United States would  have significant  negative impacts  in  a 
wide range of policy areas and sectors, as well adversely affect trans-Atlantic cooperation and 
our  external  relations  with  a  strategic  partner.  It  may  also  endanger  visa-free  travel  to  the 
United States  for all other EU citizens, if the United States would follow up on indications 
repeatedly  given  that  the  mere  adoption  by  the  Commission  of  a  delegated  act  on  the 
suspension  of  the  visa  waiver  for  United  States’  citizens  would  immediately  result  in  the 
United  States  adopting  retaliatory  measures,  reintroducing  a  visa  requirement  for  all  EU 
citizens.  

Against  this  background,  the  Commission  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, especially at this point in time and would not best serve 
the objective of attaining visa-free travel to the United States for all EU citizens. 

6 

 
 
The  Commission  will  continue  to  work  closely  with  the  European  Parliament  and  with  the 
Council  to  achieve  full  visa  reciprocity  and  will  keep  the  European  Parliament  and  the 
Council  abreast  of  further  developments.  It  will  report  on  further  developments  to  the 
European Parliament and the Council by December 2021. 

7