CELEX: 52015PC0643
Language: en
Date: 2015-12-15
Title: Proposal for a COUNCIL DECISION on the conclusion of the Agreement between the European Union and the People's Republic of China on the short-stay visa waiver for holders of diplomatic passports

EUROPEAN COMMISSION
            Brussels, 15.12.2015
            COM(2015) 643 final
            2015/0293(NLE)
            Proposal for a
            COUNCIL DECISION
            on the conclusion of the Agreement between the European Union and the People's Republic of China on the short-stay visa waiver for holders of diplomatic passports
            
               
         
         
            
               EXPLANATORY MEMORANDUM
            
            
               1.CONTEXT OF THE PROPOSAL
            
            
               •Reasons for and objectives of the proposal
            
            
               In the context of the EU-China Mobility and Migration Dialogue, the European Union and the People's Republic of China agreed on a cooperation package comprising measures in the area of irregular migration and visa policy that would be negotiated or implemented in two interdependent phases. In the first phase, a reciprocal visa waiver agreement for holders of diplomatic passports would be negotiated and Member States would be authorised by the Chinese authorities to open visa application centres in 15 designated Chinese cities. Regular expert meetings on combating irregular migration, including the identification and readmission of irregular migrants, would also be established in the first phase. In the second phase, both sides would negotiate visa facilitation and readmission agreements. This package was finalised and endorsed by both sides' political leaders at the 17th EU-China Summit on 29 June 2015.
            
            
               
                  On 14 September 2015 the Council authorised the opening of negotiations with China for a short-stay visa waiver agreement for holders of diplomatic passports and addressed negotiating directives to the Commission. The negotiations were opened on 21 September and conducted by exchange of written notes. The agreement was initialled by the chief negotiators of the EU and China respectively on 3 and 4 November 2015. Member States were regularly kept informed of the negotiations during meetings of the Visa Working Party of the Council.
               
            
            
               •Consistency with existing policy provisions in the policy area
            
            
               Council Regulation (EC) No 539/2001
                  1
                lists the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States and those whose nationals are exempt from that requirement. Regulation (EC) No 539/2001 is applied by all Member States, with the exception of Ireland and the United Kingdom, as well as by Iceland, Liechtenstein, Norway and Switzerland. 
            
            
               China is among those countries whose nationals are required to hold a visa when travelling to the Schengen area. EU citizens also need a visa to enter China. 
            
            
               •Consistency with other Union policies
            
            
               The Migration and Mobility Dialogue between the EU and China was established in October 2013 and aims at exchanging views on respective migration policies along the four pillars of Global Approach to Migration and Mobility as well as at discussing possibilities for cooperation on issues of mutual interest. 
            
            
               2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
            
            
               •Legal basis
            
            
               For the Union, the legal basis for the agreement is point (a) of Article 77(2) of the Treaty on the Functioning of the European Union (TFEU), in conjunction with Article 218 thereof.
            
            
               The attached proposal constitutes the legal instrument for concluding the agreement. The Council will decide by qualified majority after the signing of the agreement, on behalf of the Union, by a person designated by the presidency of the Council and after having obtained the consent of the European Parliament in accordance with point (a) of the second subparagraph of Article 218(6) TFEU.
            
            
               •Subsidiarity (for non-exclusive competence) 
            
            
               
                  While Article 4(1)(a) of Regulation (EC) No 539/2001 enables individual Member States to conclude bilateral agreements with third countries exempting holders of diplomatic passports, service/official passports or special passports from the visa requirement, only an EU-level agreement can achieve that effect for all Member States and thereby offer leverage for agreements with third countries in related areas, such as readmission of irregular migrants. 
               
            
            
               •Proportionality
            
            
               
                  Only an international agreement can derogate from the general visa requirement for Chinese citizens, which is necessary to achieve the above-mentioned objectives. 
               
            
            
               •Choice of the instrument
            
         
         
            
               
                  See above.
               
            
            
               3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
            
            
               •Ex-post evaluations/fitness checks of existing legislation
            
            
               
                  n/a
               
            
            
               •Stakeholder consultations
            
            
               
                  Member States were consulted both in the Council's High-Level Working Group on Asylum and the Visa Working Party.
               
            
            
               •Collection and use of expertise
            
            
               
                  n/a
               
            
            
               •Impact assessment
            
            
               
                  No Impact Assessment has been carried out, as the initiative is not expected to have any measurable economic or social benefits. It is essentially a political agreement. 
               
            
            
               •Regulatory fitness and simplification
            
            
               
                  n/a
               
            
            
               •Fundamental rights
            
            
               
                  n/a
               
            
            
               4.BUDGETARY IMPLICATIONS
            
            
               
                  n/a
               
            
            
               5.OTHER ELEMENTS
            
            
               •Implementation plans and monitoring, evaluation and reporting arrangements
            
            
               
                  The agreement establishes a Joint Committee for the management of the agreement whose tasks include, among others, the monitoring of its implementation as well as suggesting amendments or additions.
               
            
            
               •Explanatory documents (for directives)
            
         
         
            
               
                  n/a
               
            
            
               •Detailed explanation of the specific provisions of the proposal
            
            
               The Commission considers that the objectives set by the Council in its negotiating directives were fully attained. Its main provisions can be summarised as follows:
            
            
               Purpose and scope
            
            
               The agreement provides for visa-free travel for citizens of the European Union holding a valid diplomatic passport or an EU laissez-passer
                  2
                and for citizens of China holding a valid diplomatic passport when travelling to the territory of the other Contracting Party. 
            
            
               In order to safeguard equal treatment of all EU Member States, a provision has been included in the agreement stating that China may suspend or terminate the agreement only in respect of all the Member States of the European Union and that the Union may also only suspend or terminate the agreement in respect of all of its Member States.
            
            
               The specific situation of the United Kingdom and Ireland is reflected in the preamble. 
            
            
               Duration of stay
            
            
               The agreement provides for visa-free travel for a maximum period of 90 days in any 180-day period. A joint declaration on the interpretation of this period of 90 days in any 180-day period is attached to the agreement. 
            
            
               The agreement takes into account the situation of the Member States that do not yet apply the Schengen acquis in full. As long as they are not part of the Schengen area without internal borders, the visa waiver confers a right for the Chinese holders of diplomatic passports to stay for 90 days in any 180-day period on the territory of each of those Member States (currently Bulgaria, Croatia, Cyprus and Romania), independently of the period calculated for the whole Schengen area.
            
            
               Visits by high officials
            
            
               The agreement stipulates that officials at or above vice-ministerial level of the central government and officers of or above the rank of major general of the armed forces must inform the competent authorities of the country to be visited through diplomatic channels before they travel to its territory for official purposes.
            
            
               Exchange of specimens
            
            
               The agreement provides for the exchange of specimens of diplomatic passports and the EU laissez-passer no later than 90 days after the date of signature of the agreement.
            
            
               Territorial application
            
            
               The agreement clarifies that the visa waiver for Chinese holders of diplomatic passports only applies to the European territories of France and the Netherlands.
            
            
               Joint declarations
            
            
               In addition to the joint declaration referred to above, two other joint declarations are attached to the agreement:
            
            
               –on the association of Norway, Iceland, Switzerland and Liechtenstein to the implementation, application and development of the Schengen acquis;
            
            
               –on the relationship of this agreement to other fields of cooperation in the framework of the EU-China Mobility and Migration Dialogue.
            
         
         
            
               Conclusion
            
            
               In the light of the above-mentioned results, the Commission proposes that the Council approve, after obtaining the consent of the European Parliament, the Agreement between the European Union and China on the short-stay visa waiver for holders of diplomatic passports.
            
            
            
               2015/0293 (NLE)
            
            
               Proposal for a
            
            
               COUNCIL DECISION
            
            
               on the conclusion of the Agreement between the European Union and the People's Republic of China on the short-stay visa waiver for holders of diplomatic passports
            
            
               THE COUNCIL OF THE EUROPEAN UNION,
            
            
               Having regard to the Treaty on the Functioning of the European Union, and in particular point (a) of Article 77(2), in conjunction with Article 218(6), thereof,
            
            
               Having regard to the proposal from the European Commission,
            
            
               Having regard to the consent of the European Parliament
                  3
               ,
            
            
               Whereas:
            
            
               (1)The Commission has negotiated on behalf of the European Union an agreement with the People's Republic of China on the shortstay visa waiver for holders of diplomatic passports (the 'Agreement').
            
            
               (2)In accordance with Council Decision (EU) 2015/…
                  4
               
                  5
               , the Agreement has been signed and is applied on a provisional basis as from …
                  6
               .
            
            
               (3)The Agreement sets up a Joint Committee of experts for the management of the Agreement. The Union is to be represented within that Joint Committee by the Commission, which should be assisted by the representatives of the Member States.
            
            
               (4)This Decision constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC
                  7
               ; the United Kingdom is therefore not taking part in the adoption of this Decision and is not bound by it or subject to its application.
            
            
               (5)This Decision constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC
                  8
               ; Ireland is therefore not taking part in the adoption of this Decision and is not bound by it or subject to its application.
            
            
               (6)The Agreement should be approved on behalf of the European Union,
            
            
               HAS ADOPTED THIS DECISION: 
            
            
               Article 1
            
         
         
            
               The Agreement between the European Union and the People's Republic of China on the shortstay visa waiver for holders of diplomatic passports is hereby approved on behalf of the Union.
            
            
               Article 2
            
            
               The President of the Council shall give, on behalf of the Union, the notification provided for in Article 10(1) of the Agreement
                  9
               .
            
            
               Article 3
            
            
               The Commission, assisted by the representatives of the Member States, shall represent the Union within the Joint Committee of experts set up pursuant to Article 7 of the Agreement.
            
            
               Article 4
            
            
               This Decision shall enter into force on the day of its adoption.
            
            
               Done at Brussels,
            
            
               
                     For the Council
               
               
                     The President
               
            
         
         
            
                  
                     (1)
                  Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ L 81, 21.03.2001, p. 1
               
               
                  
                     (2)
                  Issued in accordance with Council Regulation (EU) No 1417/2013 of 17 December 2013 laying down the form of the laissez-passer issued by the European Union, OJ L 353, 28.12.2013, p. 26-39.
               
               
                  
                     (3)
                  Consent given on … (not yet published in the Official Journal).
               
               
                  
                     (4)
                  Council Decision (EU) 2015/… of … on the signing, on behalf of the European Union, and provisional application of the Agreement between the European Union and the People's Republic of China on the short-stay visa waiver for holders of diplomatic passports (OJ…).
               
               
                  
                     (5)
                  OJ: Please insert the number, the date and the OJ reference of the Council Decision and complete the footnote accordingly.
               
               
                  
                     (6)
                  OJ: Please insert the date three days following that of signature of the Agreement.
               
               
                  
                     (7)
                  Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1.6.2000, p. 43).
               
               
                  
                     (8)
                  Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20).
               
               
                  
                     (9)
                  The date of entry into force of the Agreement will be published in the Official Journal of the European Union by the General Secretariat of the Council.
               
            
      
    ---documentbreak--- 
      
         
               EUROPEAN COMMISSION
            Brussels, 15.12.2015
            COM(2015) 643 final
            ANNEX
            to the
            Proposal for a Council Decision
            on the conclusion of the Agreement between the European Union and the People's Republic of China on the short-stay visa waiver for holders of diplomatic passports
            
               
         
         
            
               ANNEX
            
            
               to the
            
            
               Proposal for a Council Decision
            
            
               on the conclusion of the Agreement between the European Union and the People's Republic of China on the short-stay visa waiver for holders of diplomatic passports
            
            
            
            
            
            
            
            
            
            
            
            
            
            
            
            
         
         
            
            
            
            
            
            
            
            
            
            
            
            
            
            
            
               AGREEMENT 
            
            
               BETWEEN THE EUROPEAN UNION AND THE PEOPLE'S REPUBLIC OF CHINA 
            
            
               ON THE SHORT-STAY VISA WAIVER FOR HOLDERS OF DIPLOMATIC PASSPORTS
            
            
            
               THE EUROPEAN UNION, hereinafter referred to as "the Union" or "the EU", and
            
            
         
         
            
               THE PEOPLE'S REPUBLIC OF CHINA, hereinafter referred to as "China", 
            
            
            
               hereinafter referred to jointly as the "Contracting Parties",
            
            
            
               WITH A VIEW to further developing friendly relations between the Contracting Parties and continuing to strengthen close ties between the Contracting Parties;
            
            
            
               DESIRING to facilitate travel by ensuring visa-free entry and short stay for holders of diplomatic passports and EU laissez-passer and to safeguard the principles of equality and reciprocity,
            
            
            
               TAKING INTO ACCOUNT the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice and the Protocol on the Schengen acquis integrated into the framework of the European Union, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, and confirming that the provisions of this Agreement do not apply to the United Kingdom and Ireland,
            
            
            
               HAVE AGREED AS FOLLOWS:
            
            
            
               ARTICLE 1
            
            
            
               Purpose
            
            
            
               This Agreement provides for visa-free travel for the citizens of the Union and for the citizens of China, holders of a valid diplomatic passport or EU laissez-passer,  when travelling to the territory of the other Contracting Party for a maximum period of 90 days in any 180-day period.
            
            
            
            
         
         
            
            
            
               ARTICLE 2
            
            
            
               Definitions
            
            
            
               For the purpose of this Agreement:
            
            
            
               (a)
                     "Member State" shall mean any Member State of the Union, with the exception of the United Kingdom and Ireland;
            
            
            
               (b)
                     "a citizen of the Union" shall mean a national of a Member State as defined in point (a);
            
            
            
               (c)
                     "a citizen of China" shall mean any person who holds the Chinese nationality;
            
            
            
               (d)
                     "Schengen area" shall mean the area without internal borders comprising the territories of the Member States as defined in point (a) applying the Schengen acquis in full;
            
            
            
               (e)
                     "EU laissez-passer" shall mean the document issued by the Union to certain servants of the institutions of the Union in accordance with Council Regulation (EU) No 1417/2013
                  1
               .
            
            
            
            
         
         
            
            
            
            
            
            
            
            
            
            
            
            
            
            
               ARTICLE 3
            
            
            
               Scope of application
            
            
            
               1.
                     Citizens of the Union holding a valid diplomatic passport issued by a Member State or an EU laissez-passer may enter and stay without a visa in the territory of China for the period of stay as defined in Article 4(1).
            
            
            
               Citizens of China holding a valid diplomatic passport issued by China may enter and stay without a visa in the territory of the Member States for the period of stay as defined in Article 4(2).
            
         
         
            
            
               2.
                     The visa waiver provided for by this Agreement shall apply without prejudice to the laws of the Contracting Parties relating to the conditions of entry and short stay. The Member States and China reserve the right to refuse entry into and short stay in their territories if one or more of these conditions is not met.
            
            
            
               3. 
                     The citizens of the Union benefiting from this Agreement shall comply with the laws and regulations in force in the territory of China during their stay.
            
            
            
               The citizens of China benefiting from this Agreement shall comply with the laws and regulations in force in the territory of each Member State during their stay.
            
            
            
               4.
                     The visa waiver applies regardless of the mode of transport used to cross the borders of the Contracting Parties.
            
            
            
               5.
                     Without prejudice to Article 8, issues not covered by this Agreement shall be governed by Union law, the national law of the Member States and by the national law of China.
            
            
            
            
            
            
            
            
            
            
            
         
         
            
               ARTICLE 4
            
            
            
               Duration of stay
            
            
            
               1.
                     Citizens of the Union holding a valid diplomatic passport issued by a Member State or an EU laissez-passer may stay in the territory of China for a maximum period of 90 days in any 180-day period.
            
            
            
               2.
                     Citizens of China holding a valid diplomatic passport issued by China may stay in the territory of the Member States fully applying the Schengen acquis for a maximum period of 90 days in any 180-day period. That period shall be calculated independently of any stay in a Member State which does not yet apply the Schengen acquis in full.
            
            
            
               Citizens of China holding a valid diplomatic passport issued by China may stay for a maximum period of 90 days in any 180-day period in the territory of each of the Member States that do not yet apply the Schengen acquis in full, independently of the period of stay calculated for the territory of the Member States fully applying the Schengen acquis.
            
            
            
               3.
                     This Agreement does not affect the possibility for China and the Member States to extend the period of stay beyond 90 days in accordance with their respective national laws and Union law.
            
            
            
            
            
            
               ARTICLE 5
            
            
            
               Visits by high officials
            
            
            
               Officials at or above vice ministerial level of the central government and officers of or above the rank of major general of the armed forces of China shall inform the competent authorities of the Member States through diplomatic channels before their travel to the latter’s territory for official purposes.
            
         
         
            
            
               Officials at or above vice ministerial level of the central government of the Member States and officers of or above the rank of major general of the armed forces of the Member States shall inform the competent authorities of China through diplomatic channels before their travel to the latter’s territory for official purposes.
            
            
            
            
               ARTICLE 6
            
            
            
               Territorial application
            
            
            
               1.
                     As regards the French Republic, this Agreement shall apply only to the European territory of the French Republic.
            
            
            
               2.
                     As regards the Kingdom of the Netherlands, this Agreement shall apply only to the European territory of the Kingdom of the Netherlands.
            
            
            
            
            
            
               ARTICLE 7
            
            
            
               Joint Committee for the management of the Agreement
            
            
            
               1.
                     The Contracting Parties shall set up a Joint Committee of experts (hereinafter referred to as the "Committee"), composed of representatives of the Union and representatives of China. The Union shall be represented by the European Commission.
            
         
         
            
            
               2.
                     The Committee shall have, inter alia, the following tasks:
            
            
            
               (a)
                     monitoring the implementation of this Agreement;
            
            
            
               (b)
                     suggesting amendments or additions to this Agreement;
            
            
            
               (c)
                     settling disputes arising from the interpretation or application of  this Agreement.
            
            
            
               3.
                     The Committee shall be convened whenever necessary, at the request of one of the Contracting Parties.
            
            
            
               4.
                     The Committee shall establish its rules of procedure.
            
            
            
            
            
            
               ARTICLE 8
            
            
            
               Relationship of this Agreement to existing bilateral visa waiver agreements
                  between the Member States and China
            
            
         
         
            
               This Agreement shall take precedence over any bilateral agreements or arrangements concluded between individual Member States and China, in so far as their provisions cover issues falling within the scope of this Agreement. 
            
            
            
            
            
            
               ARTICLE 9
            
            
            
               Exchange of specimens 
            
            
            
               1. 
                     If they have not done so already, China, the Member States and the Union shall exchange, through diplomatic channels, specimens of their valid diplomatic passports and the EU laissez-passer no later than 90 days after the date of signature of this Agreement.
            
            
            
               2. 
                     In case of introduction of new diplomatic passports or EU laissez-passer or modification of the existing ones, China, the Member States and the Union shall convey to each other, through diplomatic channels, specimens of these new or modified passports or EU laissez-passer, accompanied by detailed information on their specifications and applicability, not later than 90 days prior to its application.
            
            
            
            
            
            
            
            
            
         
         
            
            
            
            
            
            
               ARTICLE 10
            
            
            
               Final provisions
            
            
            
               1.
                     This Agreement shall enter into force on the first day of the second month following the date of the later of the two notifications by which the Contracting Parties notify each other that the respective internal procedures necessary for that purpose have been completed.
            
            
            
               This Agreement shall be applied on a provisional basis as from the third day following the date of signature hereof.
            
            
            
               2.
                     This Agreement is concluded for an indefinite period, unless terminated in accordance with paragraph 5.
            
            
            
               3.
                     This Agreement may be amended by written agreement of the Contracting Parties. Amendments shall enter into force after the Contracting Parties have notified each other of the completion of their internal procedures necessary for this purpose.
            
            
            
               4.
                     Each Contracting Party may suspend in whole or in part this Agreement, in particular, for reasons of public policy, the protection of national security or the protection of public health, illegal immigration or upon the reintroduction of the visa requirement by either Contracting Party. The decision on suspension shall be notified to the other Contracting Party not later than two months before its planned entry into force. A Contracting Party that has suspended the application of this Agreement shall immediately inform the other Contracting Party should  the reasons for that suspension cease to exist and shall lift that suspension.
            
            
            
               5.
                     Each Contracting Party may terminate this Agreement by giving written notice to the other Party. This Agreement shall cease to be in force 90 days thereafter.
            
         
         
            
            
               6.
                     China may suspend or terminate this Agreement only in respect of all the Member States.
            
            
            
               7.
                     The Union may suspend or terminate this Agreement only in respect of all of its Member States.
            
            
            
            
               Done in duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, Swedish and Chinese languages, each text being equally authentic. In case of divergence between authentic language versions, the English language version shall prevail.
            
            
               JOINT DECLARATION WITH REGARD TO ICELAND, NORWAY, SWITZERLAND
                  AND LIECHTENSTEIN 
            
            
            
               The Contracting Parties take note of the close relationship between the European Union and Norway, Iceland, Switzerland and Liechtenstein, particularly by virtue of the Agreements of 18 May 1999 and 26 October 2004 concerning the association of those countries with the implementation, application and development of the Schengen acquis. 
            
            
            
               In such circumstances it is desirable that the authorities of Norway, Iceland, Switzerland, and Liechtenstein, on the one hand, and China, on the other hand, conclude, without delay, bilateral agreements on the short-stay visa waiver for holders of diplomatic passports in terms similar to those of this Agreement. 
            
            
            
            
            
               JOINT DECLARATION ON THE INTERPRETATION OF THE PERIOD OF 90 DAYS
                  IN ANY 180-DAY PERIOD AS SET OUT IN ARTICLE 4 OF THIS AGREEMENT
            
            
            
               The Contracting Parties understand that the maximum period of 90 days in any 180-day period as provided for by Article 4 of this Agreement means either a continuous visit or several consecutive visits, the total duration of which does not exceed 90 days in any 180-day period.
            
            
            
               The notion of "any" implies the application of a moving 180-day reference period, looking backwards at each day of the stay into the last 180-day period, in order to verify if the 90 days in any 180-day period requirement continues to be fulfilled. Inter alia, it means that an absence for an uninterrupted period of 90 days allows for a new stay for up to 90 days.
            
         
         
            
            
            
            
            
            
            
            
            
            
            
            
            
               JOINT DECLARATION ON OTHER FIELDS OF COOPERATION IN THE FRAMEWORK OF THE EU-CHINA MOBILITY AND MIGRATION DIALOGUE
            
            
            
               The Contracting Parties recall that this Agreement is one of the outcomes of the negotiation roadmap agreed upon in the minutes of the second round of the EU-China Mobility and Migration Dialogue and endorsed by political leaders in the joint statement of the 17th EU-China Summit. This roadmap includes, in the first stage, negotiation and signing of a reciprocal visa waiver agreement for holders of diplomatic passports, the opening of visa application centres in mutually agreed Chinese cities without consular presence, and launching practical cooperation in combating illegal migration, and, in the second stage, negotiation of agreements on visa facilitation and cooperation in combating illegal migration.  
            
            
            
               The Contracting Parties reiterate their firm intention to respect the commitments taken in the roadmap and their common understanding that those commitments are interdependent and form part of an indivisible package.
            
            
            
            
         
         
            
               _________________
            
            
            
         
         
            
                  
                     (1)
                  Council Regulation (EU) No 1417/2013 of 17 December 2013 laying down the form of the laissez-passer issued by the European Union, OJ L 353, 28.12.2013, p. 26.