52016PC0190

EUROPEAN COMMISSION

Brussels, 8.4.2016

COM(2016) 190 final

2016/0100(NLE)

Proposal for a

COUNCIL DECISION

on the conclusion of the Agreement between the European Union and Tuvalu on the short-stay visa waiver

EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

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.

Regulation (EU) No 509/2014 of the European Parliament and of the Council 2 amended Regulation (EC) No 539/2001 by transferring 19 countries to Annex II, which lists the third countries whose nationals are exempt from the visa requirement. Those 19 countries are: Colombia, Dominica, Grenada, Kiribati, Marshall Islands, Micronesia, Nauru, Palau, Peru, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Solomon Islands, Timor-Leste, Tonga, Trinidad and Tobago, Tuvalu, the United Arab Emirates and Vanuatu. The reference to each of those countries in Annex II is accompanied by a footnote which specifies that "the exemption from the visa requirement shall apply from the date of entry into force of an agreement on visa exemption to be concluded with the European Union".

Regulation (EU) No 509/2014 was adopted on 20 May 2014 and entered into force on 9 June 2014. In July 2014, the Commission presented a Recommendation to the Council to authorise it to start negotiations on visa waiver agreements with each of the following 17 countries: Dominica, Grenada, Kiribati, Marshall Islands, Micronesia, Nauru, Palau, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Solomon Islands, Timor-Leste, Tonga, Trinidad and Tobago, Tuvalu, the United Arab Emirates and Vanuatu 3 . On 9 October 2014, the Council addressed negotiating directives to the Commission.

The first series of visa waiver agreements were signed on 6 May 2015 (United Arab Emirates), 26 May 2015 (Timor-Leste) and 28 May 2015 (Dominica, Grenada, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Trinidad and Tobago and Vanuatu) and provisionally apply from the date of signature pending their entry into force. The Council has authorised the signature of a second series of visa waiver agreements with Tonga (signed on 20 November 2015), Colombia (signed on 2 December 2015), Kiribati (date of signature to be determined) and Palau (signed on 7 December 2015). These four agreements provisionally apply from the day following the date of signature pending their entry into force.

The negotiations with Tuvalu were opened on 19 November 2014. During that meeting the entire draft text could be reviewed and agreement was reached on all aspects during further exchanges. The agreement was initialled by the chief negotiators in Brussels on 8 October 2015. The Member States were informed during a meeting of the Visa Working Party of the Council held on 26 October 2015.

2.LEGAL BASIS

On the part of 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.

3.OUTCOME OF THE NEGOTIATIONS

The Commission considers that the objectives set by the Council in its negotiating directives were attained and that the draft visa waiver agreement is acceptable to the Union.

The final content of it can be summarised as follows:

Purpose

In order to safeguard equal treatment of all EU citizens, a provision has been included in the agreement stating that Tuvalu 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.

Scope

The visa waiver covers all categories of persons (holders of ordinary, diplomatic, service/official and special passports) travelling for all kinds of purposes, except for the purpose of carrying out a paid activity. For this latter category, each Member State and also Tuvalu remain free to impose the visa requirement on the citizens of the other Party in accordance with the applicable Union or national law. In order to ensure harmonised implementation, a joint declaration is attached to the agreement on the interpretation of the category of persons travelling for the purpose of carrying out a paid activity.

Duration of stay

The agreement provides for visa-free travel for the citizens of the European Union and for the citizens of Tuvalu when travelling to the territory of the other Contracting Party 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 nationals of Tuvalu to stay for 90 days in any 180-day 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.

Territorial application

The agreement contains provisions related to its territorial application: in the case of France and the Netherlands, the visa waiver would entitle nationals of Tuvalu to stay only in those Member States’ European territories.

Declarations

In addition to the joint declarations 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 full dissemination of information about the content and consequences of the visa waiver agreement and related issues, such as the entry conditions.

4.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 Tuvalu on the short-stay visa waiver.

2016/0100 (NLE)

Proposal for a

COUNCIL DECISION

on the conclusion of the Agreement between the European Union and Tuvalu on the short-stay visa waiver

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 point (a)(v) of the second subparagraph of Article 218(6) thereof,

Having regard to the proposal from the European Commission,

Having regard to the consent of the European Parliament 4 ,

Whereas:

(1)The Commission has negotiated on behalf of the European Union an agreement with Tuvalu on the short-stay visa waiver (the ‘Agreement’).

(2)In accordance with Council Decision (EU) 2015/[…], the Agreement has been signed and is applied on a provisional basis as from […].

(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 5 ; 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 6 ; 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,

HAS ADOPTED THIS DECISION:

Article 1

The Agreement between the European Union and Tuvalu on the short-stay visa waiver 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 8(1) of the Agreement 7 .

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 6 of the Agreement.

Article 4

This Decision shall enter into force on the day of its adoption.

Done at …,

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) Regulation (EU) No 509/2014 of the European Parliament and of the Council of 15 May 2014 amending Council Regulation (EC) No 539/2001 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 149, 20.05.2014, p. 67

(3) COM (2014) 467, 17.7.2014

(4) Consent given on […]

(5) 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).

(6) 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).

(7) 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.

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EUROPEAN COMMISSION

Brussels, 8.4.2016

COM(2016) 190 final

ANNEX

to the

Proposal for a Council Decision

on the conclusion of the Agreement between the European Union and Tuvalu on the short-stay visa waiver

ANNEX

to the

Proposal for a Council Decision

on the conclusion of the Agreement between the European Union and Tuvalu on the short-stay visa waiver

AGREEMENT

between the European Union and Tuvalu on the short-stay visa waiver

THE EUROPEAN UNION, hereinafter referred to as "the Union" or "the EU", and

TUVALU,

hereinafter referred to jointly as the "Contracting Parties",

WITH A VIEW TO further developing friendly relations between the Contracting Parties and desiring to facilitate travel by ensuring visa-free entry and short stay for their citizens,

HAVING REGARD to Regulation (EU) No 509/2014 of the European Parliament and of the Council of 15 May 2014 amending Council Regulation (EC) No 539/2001 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 1 by, inter alia, transferring 19 third countries, including Tuvalu, to the list of third countries whose nationals are exempt from the visa requirement for short stays in the Member States,

BEARING IN MIND that Article 1 of Regulation (EU) No 509/2014 states that for those 19 countries, the exemption from the visa requirement shall apply from the date of entry into force of an agreement on visa exemption to be concluded with the Union,

DESIRING to safeguard the principle of equal treatment of all EU citizens,

TAKING INTO ACCOUNT that persons travelling for the purpose of carrying out a paid activity during their short stay are not covered by this Agreement and therefore for that category the relevant rules of Union law and national law of the Member States and the national law of Tuvalu on the visa obligation or exemption and on the access to employment continue to apply,

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 Tuvalu 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);

(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.

ARTICLE 3

Scope of application

1. Citizens of the Union holding a valid ordinary, diplomatic, service, official or special passport issued by a Member State may enter and stay without a visa in the territory of Tuvalu for the period of stay as defined in Article 4(1).

Citizens of Tuvalu holding a valid ordinary, diplomatic, service, official or special passport issued by Tuvalu 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. Paragraph 1 of this Article does not apply to persons travelling for the purpose of carrying out a paid activity.

For that category of persons, each Member State individually may decide to impose a visa requirement on the citizens of Tuvalu or to withdraw it inaccordance with Article 4(3) of Council Regulation (EC) No 539/2001 2 .

For that category of persons, Tuvalu may decide on the visa requirement or the visa waiver for the citizens of each Member State individually in accordance with its national law.

3. 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 Tuvalu reserve the right to refuse entry into and short stay in their territories if one or more of these conditions is not met.

4. The visa waiver applies regardless of the mode of transport used to cross the borders of the Contracting Parties.

5. 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 Tuvalu.

ARTICLE 4

Duration of stay

1. Citizens of the Union may stay in the territory of Tuvalu for a maximum period of 90 days in any 180-day period.

2. Citizens of Tuvalu 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 Tuvalu 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 Tuvalu 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

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 6

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 Tuvalu. 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;

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 7

Relationship of this Agreement to existing bilateral visa waiver agreements
between the Member States and Tuvalu

This Agreement shall take precedence over any bilateral agreements or arrangements concluded between individual Member States and Tuvalu, in so far as they cover issues falling within the scope hereof.

ARTICLE 8

Final provisions

1. This Agreement shall be ratified or approved by the Contracting Parties in accordance with their respective internal procedures and 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 those procedures have been completed.

This Agreement shall be applied on a provisional basis as from the 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. Tuvalu 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 and Swedish languages, each text being equally authentic.

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 Tuvalu, on the other hand, conclude, without delay, bilateral agreements on the short-stay visa waiver in terms similar to those of this Agreement.

JOINT DECLARATION ON THE INTERPRETATION OF THE CATEGORY OF PERSONS TRAVELLING FOR THE PURPOSE OF CARRYING OUT A PAID ACTIVITY
AS PROVIDED FOR IN ARTICLE 3(2) OF THIS AGREEMENT

Desiring to ensure a common interpretation, the Contracting Parties agree that, for the purposes of this Agreement, the category of persons carrying out a paid activity covers persons entering for the purpose of carrying out a gainful occupation or remunerated activity in the territory of the other Contracting Party as an employee or as a service provider.

This category should not cover:

– businesspersons, i.e. persons travelling for the purpose of business deliberations (without being employed in the country of the other Contracting Party),

– sportspersons or artists performing an activity on an ad-hoc basis,

– journalists sent by the media of their country of residence, and,

– intra-corporate trainees.

The implementation of this Declaration shall be monitored by the Joint Committee within its responsibility under Article 6 of this Agreement, which may propose modifications when, on the basis of the experiences of the Contracting Parties, it considers it necessary.

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 INFORMING CITIZENS
ABOUT THE VISA WAIVER AGREEMENT

Recognising the importance of transparency for the citizens of the European Union and the citizens of Tuvalu, the Contracting Parties agree to ensure full dissemination of information about the content and consequences of the visa waiver agreement and related issues, such as the entry conditions.

_________________

(1) OJEU L 149, 20.5.2014, p. 67.

(2) 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 (OJEU L 81, 21.3.2001, p. 1).

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