52003PC0790(02)

Proposal for a COUNCIL DECISION concerning the conclusion of the Memorandum of Understanding between the European Community and the National Tourism Administration of the People's Republic of China on visa and related issues concerning tourist groups from the People's Republic of China (ADS)

(presented by the Commission)

EXPLANATORY MEMORANDUM

I. Political and legal framework

In the Joint Press Statement of the 5th EU-China Summit, leaders stressed the importance of people to people contact between China and the EU, in particular through an increased number of visits by organised travel groups of Chinese citizens to Europe. According to the World Tourism Organisation, China will become one of the biggest sources of global tourism within the next ten years. It is estimated that 100 million Chinese could be travelling abroad by 2020 and increased Chinese tourism to Europe will undoubtedly lead to substantial economic and cultural benefits.

However, travel restrictions still apply for Chinese nationals. According to the legislation of the People's Republic of China, Chinese nationals can make tourist tours abroad only to tourist destinations which have been determined in bilateral tourism agreements with states of destination. Only after the Chinese State Council has granted Approved Destination Status (ADS) to a country, and thereby approved it as a destination for its citizens, can a bilateral ADS agreement be drawn up to allow Chinese tourist groups to travel to that country.

On 22 April 2002, the Commission had adopted a recommendation for a Council decision to authorise it to open negotiations for an ADS Agreement between the Community and the People's Republic of China. On 16 September 2002, the Council authorised the Commission to negotiate an ADS accord between the Community and China.

Once the ADS memorandum of understanding is signed, Chinese nationals will still need to be in possession of a visa to enter the Community (as required by Council regulation 539/2001), but will benefit under the memorandum of understanding from facilitated procedures to obtain tourism visas, thus fostering development of Chinese tourism in Europe and people to people contacts. However, the Commission and Member States deemed it essential to prevent abuse of the mechanism, notably by illegal overstayers. Consequently, the negotiation mandate given to the Commission included the requirement for a legally binding readmission clause in the agreement.

The Commission held a first round of exploratory talks with the Chinese National Tourism Administration (CNTA) in Beijing on 29 October 2002. A draft text for a future agreement was transmitted to the Chinese Side on 20 January 2003. The first round of formal negotiations for a Community ADS Agreement with China took place on 12 February 2003 and good progress had been achieved. However, because of SARS and China's resistance to the inclusion of a readmission clause within the text, only limited progress was achieved, even though several proposals and counterproposals on the text had been exchanged. On 1 July 2003, the CNTA confirmed in writing that ADS Status has been granted to the European Community.

A breakthrough in the negotiations was only achieved after intense political pressure from the EU on China during the Athens, Bali and New York EU-China Foreign Minister Troika Meetings (June-September 2003). Furthermore, the EU stressed its wish to conclude an ADS accord together with other agreements during the EU-China Summit. On 23 September 2003, a Chinese counterproposal was received featuring a state obligation to readmit overstayers within the text of the accord.

On 30 September 2003, the second round of negotiations took place in Beijing during which a final text was agreed upon. The memorandum of understanding, which is legally binding, was initialled in Beijing on 30 October 2003 during the 6th EU-China Summit. The fact that the Commission has been able to make the Chinese agree to a readmission clause is a major achievement, which none of the 23 countries (including Germany and Hungary) who already have a bilateral agreement has been able to obtain. The unprecedented acceptance by Beijing of a readmission clause within the ADS context could well pave the way for the Commission in its efforts to have China agree to open negotiations on a readmission agreement.

Member States, in particular through the Asia Oceania Working Group, the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA), the Visa Working Group and the High Level Working Group on Migration have regularly been informed and consulted at all stages of the negotiations.

II. Outcome of the negotiations

The Commission considers that the objectives set by the Council in its negotiating directives were attained and that the draft Memorandum of Understanding is acceptable to the Community.

The final content of the draft can be summarised as follows:

- The Memorandum of Understanding is divided into 4 sections with 8 articles altogether. It also contains a protocol in the annex on the New Member States and four joint declarations.

- Section I, Articles 1-3, provide definitions and set out the purpose and scope of the Memorandum of Understanding

- Section II, Article 4 and 5, deal with visa procedures and readmission. Article 4 describes the procedures to be followed for the granting of short-term Schengen visas which have to contain the 'ADS' reference. The procedures are based on the Council decision of 12 July 2002, which introduced into the Common Consular Instructions (CCI) specific and detailed rules concerning visa applications processed by private administrative agencies, travel agencies and package tour operators. The Chinese designated travel agencies will act as authorised representatives of the visa applicants and forward the visa applications of their tour group. Personal interviews may beprovided for. The visa applications will be processed in accordance with applicable legislation. Measures will be taken against designated Chinese travel agencies in breach of EU and/or Chinese regulations.

- The readmission obligation of the Government of the People's Republic of China is clearly spelled out in Article 5 of the Memorandum of Understanding. Paragraph 1 sets out the obligation of the participating travel agencies to report without delay to the Member State having issued the visa and to the CNTA, any ADS tourist missing from the group or not having returned to China. Paragraph 2 states that the related travel agencies will work immediately with the competent departments of the Contracting Parties in the case of an illegal overstayer to help send back and receive the tourist, "who shall be readmitted by the Government of the People's Republic of China". Paragraph 2 further establishes that documentary evidence must be provided to prove identity as a Chinese citizen. Paragraph 5 of the joint declaration on implementation arrangements states that the documentary evidence referred to in Article 5 (2) of the MoU must include passports, visas applications, EU immigration control records, travel agency documents, or photocopies thereof.

- Section III, Article 6 creates the Approved Destination Status Committee to help implement the Memorandum of Understanding. The Committee must establish its own rules of procedure and will meet whenever necessary at the request of one of the Contracting Parties. The Community will be represented by the Commission.

- Section IV, Articles 7 and 8 contains the necessary rules on entry into force, duration and termination of the Memorandum of Understanding. Article 7 specifies that similar ADS MoUs between a Member State and China will no longer apply as of the entry into force of this MoU. Paragraph 6 of Article 8 states that the MoU will be legally binding on the two Contracting Parties under public international law.

- The Annex contains a protocol on the New Member States stating that, by derogation from Article 4(3) of the MoU, the Member States acceding to the European Union on 1 May 2004 will issue national visas limited to their own territory until the Council Decision provided for in Article 3 (2) of the Act of Accession takes effect.

- The joint declaration on implementation arrangements makes specific recommendations regarding travel agencies, protection of Chinese tourist rights, tour leaders and tour guides, information requirements and documentary evidence. It is important to note that the lists of travel agencies to be furnished to the CNTA by Member States are open lists, which have to be updated regularly.

- The specific situation of Denmark, the United Kingdom and Ireland is reflected in the 5th and 6th recital and in two joint declarations attached to the Memorandum of Understanding. The close association of Norway and Iceland to the implementation, application and development of the Schengen Acquis is likewise reflected in a joint declaration attached to theMemorandum of Understanding.

III. the draft decisions

The attached proposals constitute the legal instrument for the signature and conclusion of the Memorandum of Understanding. The legal basis for the signature and conclusion of the Memorandum of Understanding are Article 62 (2)_(b) (ii) and (iv) and Article 63 (3) (b) EC in conjunction with Article 300 EC. The Council will decide by unanimity, Art. 300 para. 2 subpara. 1 in conj. with Art. 67 (1) EC Treaty. The European Parliament will have to be formally consulted on the conclusion of the Memorandum of Understanding, in accordance with the first paragraph of Art. 300 para. 3 EC Treaty.

The proposed decision concerning the conclusion of the Agreement sets out a simplified procedure for the establishment of the Community position in the ADS Committee established by Article 6 of the Agreement. These procedures follow those that have been adopted by the Council in the decision concerning the conclusion of the readmission agreement with Hong Kong.

The implementation of the Agreement will also require cooperation between the consular authorities of the Member States applying the agreement. Subject to any contrary provision in the agreement, the provisions of the Common Consular Instructions, and in particular the provisions of Part VIII regarding consular cooperation at local level, will be applicable. [1]

[1] OJ C 313, 16.12.2002, p. 1.

IV. Conclusions

In the light of the above-mentioned results, the Commission proposes that the Council should:

- decide that the Memorandum of Understanding be signed on behalf of the Community and authorise the President of the Council to appoint the person(s) duly empowered to sign on behalf of the Community;

- approve, after consultation of the European Parliament, the attached Memorandum of Understanding between the European Community and the National Tourism Administration of the People's Republic of China.

2003/0299 (CNS)

Proposal for a COUNCIL DECISION concerning the conclusion of the Memorandum of Understanding between the European Community and the National Tourism Administration of the People's Republic of China on visa and related issues concerning tourist groups from the People's Republic of China (ADS)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular, Article 62(2) (b) (ii) and (iv) and 63(3) (b) EC in conjunction with Article 300 paragraph 2, first subparagraph, second sentence, and paragraph 3, first subparagraph thereof

Having regard to the proposal from the Commission [2]

[2]

Having regard to the opinion of the European Parliament [3]

[3] OJ C

Whereas:

(1) The Commission has negotiated on behalf of the European Community a Memorandum of Understanding between the European Community and the National Tourism Administration of the People's Republic of China on visa and related issues concerning tourist groups from the People's Republic of China (ADS).

(2) This Agreement was signed, on behalf of the European Community, on .......2003 subject to its possible conclusion at a later date, in accordance with Council Decision......../....../EC of [.............]

(3) This Agreement should be approved.

(4) The Agreement establishes a Committee which may take decisions having legal effect on certain technical matters. It is therefore appropriate to provide for simplified procedures for the establishment of the Community position in such cases.

(5) In accordance with the Protocol on the position of the United Kingdom and Ireland, and the Protocol integrating the Schengen acquis into the framework of the European Union, the United Kingdom and Ireland do not take part in the adoption of this Decision and are therefore not bound by it or subject to its application.

(6) In accordance with the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Decision and is therefore not bound by it or subject to its application.

HAS DECIDED AS FOLLOWS:

Article 1

The Memorandum of Understanding between the European Community and the National Tourism Administration of the People's Republic of China on visa and related issues concerning tourist groups from the People's Republic of China (ADS) is hereby approved on behalf of the Community.

The text of the Memorandum of Understanding is attached to this Decision.

Article 2

The President of the Council shall give the notification provided for in Article 8 (2) of the Memorandum of Understanding [4].

[4] The date of entry into force of the Memorandum of Understanding will be published in the Official Journal of the European Union by the General Secretariat of the Council.

Article 3

The position of the Community within the Approved Destination Status Committee with regard to the adoption of its rules of procedure as required under Article 6 (5) of the Memorandum of Understanding shall be taken by the Commission after consultation of a special committee designated by the Council.

For all other decisions of the Approved Destination Status Committee, the position of the Community shall be adopted by the Council, acting by a qualified majority, on a proposal from the Commission.

Article 4

This Decision shall be published in the Official Journal of the EuropeanUnion.

Done at Brussels,

For the Council

The President

ANNEX

MEMORANDUM OF UNDERSTANDING

between the National Tourism Administration of the People's Republic of China,

and The European Community

On Visa and Related Issues concerning Tourist Groups from

the People's Republic of China

(ADS)

THE NATIONAL TOURISM ADMINISTRATION OF THE PEOPLE'S REPUBLIC OF CHINA

and

THE EUROPEAN COMMUNITY,

Hereinafter referred to as "the Contracting Parties"

Desiring to facilitate organised group travel from the People's Republic of China to the Community;

Conscious that such travel will require matters of visa and related issues to be addressed;

Considering that such travel will contribute to strengthening the tourism sectors in both China and the Community;

Determined to ensure that this Memorandum of Understanding will be applied in strict conformity with the applicable Chinese regulations and the Community's internal market disciplines;

Considering that the provisions of this Memorandum of Understanding do not apply to the United Kingdom and Ireland, in accordance with the Protocol on the position of the United Kingdom and Ireland, and the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to the Treaty on European Union and the Treaty establishing the European Community;

Considering that the provisions of this Memorandum of Understanding do not apply to the Kingdom of Denmark, in accordance with the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community;

HAVE AGREED AS FOLLOWS:

section i: subject and definitions

Article 1 Definitions

For the purpose of this Memorandum of Understanding:

(a) "Member State" shall mean any Member State of the European Community, with the exception of the Kingdom of Denmark, Ireland, and the United Kingdom.

(b) "Chinese Citizen" shall mean any person who holds the passport of the People's Republic of China.

(c) "Territory of the Community" shall mean the Territory in which the treaty establishing the European Community is applicable with the exception of the territory of Denmark, of Ireland, of the United Kingdom and of the French overseas departments.

(d) "Chinese Designated Travel agency", shall mean any travel agency selected and designated by the National Tourism Administration of the People's Republic of China (CNTA).

(e) "Courier" shall mean the person entitled to submit visa applications for a tourist group to the embassies or consular offices of Member States in China according to the procedure established in Article 4 paragraph 2 of this Memorandum of Understanding.

(f) "Schengen Visa" is the uniform visa laid down in Article 10 of the Schengen Application Convention.

Article 2

Purpose and Scope of Application

This Memorandum of Understanding shall apply to the travel by tourist groups of Chinese citizens at their own expenses from China to the territory of the Community. For this purpose, the Community shall enjoy the status of an approved destination (ADS).

Such travel will be organised in accordance with the provisions and requirements set out in this Memorandum of Understanding.

Article 3 Tourist Groups

Participants in Chinese tourist groups shall enter and leave the territory of the Community as a group. They shall travel within the territory of the Community as a group according to the established travel programme. The minimum number of participants in a tourist group should be no less than five

SECTION II. visa procedure and readmission

Article 4 Visa Procedure

1. Chinese Designated Travel Agencies

(a) The Chinese side shall designate travel agencies in China (hereinafter referred to as "Chinese designated travel agencies") which have been authorised by the CNTA to operate outbound travel of Chinese citizens to the Member States. The Member States' embassies and consular offices shall accredit these designated travel agencies to act as authorised representatives of the visa applicants. The CNTA will notify to the Commission and the Member States' embassies and consular offices the list of the Chinese designated travel agencies, including their addresses, telephone numbers, fax numbers, emails and contact persons.

(b) In case of any violation of EU and/or Chinese regulations by a Chinese designated travel agency in operating the outbound travel of the Chinese citizens, appropriate measures against such agency in accordance with the legislation in force will be taken. This includes, where appropriate, the withdrawal of the travel agency's designation by China, or of its accreditation with the Member States' embassies or consular offices in China.

2. Couriers

(a) Each Chinese designated travel agency may appoint up to two persons to act on their behalf and account as couriers in the necessary visa application process for Chinese tourist groups wishing to visit the territory of the Community. The couriers are entitled to submit visa applications for such groups to the embassies or consular offices of Member States in China.

(b) They shall be authorised to enter Member States' embassies or consular offices with a badge issued by CNTA and a photo identity badge and certificate issued by Member States' embassies or consular offices, to which the CNTA shall give relevant details of the persons acting as couriers of each travel agency. The certificate will contain at least the name and address of the travel agency and the name of the agent acting as courier.

(c) In case a designated travel agency is no longer accredited with a Member State's embassy or consular office, the travel agency concerned is obliged to return the badges and certificates to the issuing Member State's embassy or consular office for their subsequent invalidation. Furthermore, an accredited travel agency has the obligation to return the badge and certificate to the issuing Member State's embassy or consular office if the person who was acting as its courier is no longer employed in that capacity with that agency.

3. Visa Applications

(a) When lodging visa applications for a group of clients of an accredited Chinese travel agency with the Member States' embassies or consular offices, the travel agencies shall also submit the following documents: a communication signed by the representative of the said travel agency with information on the planned trip, payment of travel costs, adequate insurance, the names of the tour participants, together with each participant's passport and duly completed application forms signed by each traveller. Where necessary, further documents and/or information may be requested by the Member States' embassies or consular offices.

(b) The visa applications will be processed according to applicable legislation. Visas shall in principle be granted by Member States' embassies or consular offices in whose territory the sole or main destination of the foreseen visit is located. Where it is impossible to determine the main destination, or where visits of equal length are foreseen, the Member State's embassy or consular office of the first entry into Community territory shall be in charge of granting the visa. Member States' embassies or consular offices may foresee personal or telephone interviews with applicants.

(c) The visa to be issued by the Member States' embassies or consular offices shall be a Schengen visa, limited to a maximum of thirty days, issued in conformity with applicable legislation. It shall be an individual Schengen visa carrying the reference "ADS".

(d) If the embassies or consular offices of the Community approve visa applications from travel agencies, other organisations or individuals that are not designated travel agencies by CNTA, CNTA shall not be responsible for any problems arising during the subsequent trip in the territory of the Community.

Article 5 Illegal Overstay and Readmission

1. Chinese designated travel agencies and the participating Community travel agencies are required to report, without delay, to their respective authorities, the CNTA and the competent authority of the Member State having issued the visa, any ADS tourist missing from the group as well as any ADS tourist not having returned to China.

2. In case of any illegal overstay of any ADS tourist, the related travel agencies of the Contracting Parties shall work immediately with the competent departments of the Contracting Parties to help sending back and receiving the tourist, who shall be readmitted by the Government of the People's Republic of China. Documentary evidence shall be provided to prove his or her identity as a Chinese citizen for the purpose of readmission. The airfare shall be borne by the tourist. If the tourist cannot afford it, the costs associated with his or her repatriation have to be borne by the competent authority of the Member State concerned, which will then ask the relevant Chinese designated travel agency to pay back the airfare by receipt. In this case, the related Chinese travel agency shall repay the airfare cost to the competent authority of the Member State concerned within 30 days after the readmission of the tourist and recover the costs from the tourist.

SECTION III. implementation and information exchange

Article 6 Approved Destination Status Committee

1. In order to ensure the sound operation of this Memorandum of Understanding, the Contracting Parties shall exchange information and data in good time, and work closely together. In order to monitor the correct implementation of the Memorandum of Understanding, a consultative mechanism will be established.

2. To this end, the Contracting Parties shall set up an Approved Destination Status Committee (hereinafter referred to as "the Committee") which will, in particular, have the task

a) to monitor the application of this Memorandum of Understanding and to draft a report on the implementation of the Memorandum of Understanding every year;

b) to decide on implementing arrangements necessary for the uniform execution of it;

c) to have regular exchanges of information;

d) to recommend amendments to this Memorandum of Understanding to the Contracting Parties.

3. The Committee shall be composed of Representatives of the Contracting Parties. The Community shall be represented by the European Commission; China shall be represented by the National Tourism Administration of the People's Republic of China.

4. The Committee shall meet whenever necessary at the request of one of the Contracting Parties.

5. The Committee shall establish its rules of procedure.

SECTION IV. final provisions

Article 7 ADS Arrangements of Member States

Any similar Memorandum of Understanding or arrangement between China and a Member State shall no longer be applied as of the entry into force of this Memorandum of Understanding.

Article 8

Entry into Force, Duration and Termination

1. This Memorandum of Understanding shall be ratified or approved by the Contracting Parties in accordance with their respective procedures.

2. This Memorandum of Understanding shall enter into force on the first day of the second month after the date on which the Contracting Parties notify each other that the procedures referred to in the first paragraph have been completed.

3. This Memorandum of Understanding shall remain in force indefinitely, unless terminated in accordance with paragraph 4 of this Article.

4. Each Contracting Party may terminate this Memorandum of Understanding by giving written notice to the other Contracting Party. This Memorandum of Understanding shall cease to apply three months after the date of such notification.

5. This Memorandum of Understanding 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.

6. This Memorandum of Understanding shall be legally binding on the two Contracting Parties.

Done at xxx on the xxxh day of xxx in the year 2003, in duplicate in the Chinese, Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish languages, each of these texts being equally authentic.

For the European Community // For the

National Tourism Administration of the People's Republic of China

ANNEX

Protocol on the New Member States

In accordance with the Act of Accession, the Member States acceding to the European Union on 1 May 2004 (Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, and Slovakia) do not yet issue Schengen visas.

Therefore, by derogation from Article 4 (3) of the Memorandum of Understanding, and until the Council Decision foreseen in Article 3 (2) of the Act of Accession takes effect, the Member State concerned shall issue national visas limited to its own territory.

Joint Declaration on Implementation Arrangements

1. Travel Agencies

The Community recommends Member States and their tourism service providers to furnish to CNTA a list of the travel agencies in their territory, including their addresses, telephone numbers, fax numbers, emails and contact persons. These lists should be updated regularly and transmitted to CNTA.

The Contracting Parties furthermore understand that both Contracting Parties' travel agencies shall be entitled to select their own business partners from the other Contracting Party and conclude contracts with them. The said travel agencies are responsible for all business arrangements covering the tour such as the tour programmes, costs, services, and payments in the tour contract with their respective business partners.

2. Protection of Chinese tourist rights

The legitimate rights and interests of the Chinese citizens travelling to the territory of the Community in tourist groups shall be protected by the pertinent legislations of the Community, Member States and China. In case of violation, those regulations shall be applied to the relevant agencies.

The Community encourages the Member States and their tourism service providers to set up hotlines for consultation and emergency assistance to Chinese tourists.

3. Tour Leaders and Tour Guides

The Contracting Parties understand that accredited Chinese travel agencies shall appoint a tour leader or tour leaders for each group.

The tour leader shall ensure that Chinese tourist groups travelling to the territory of the Community in accordance with this Memorandum of Understanding enter and leave the territory of the Community as a group. The tour leader will be required to carry copies of all tickets and passports throughout the trip.

The Contracting Parties take note that, in addition to the obligatory tour leader provided by the Chinese travel agencies, Community travel agencies may provide tour guides for each Chinese tourist group for the duration of the stay on the territory of the Community.

These tour guides may accompany the group from the time it enters to the time it leaves the territory of the Community, on the conditions provided by the law applicable in each Member State, and endeavour to solve any problems that may arise in consultation with the Chinese tour leader.

4. Information Requirements

The Community encourages the Member States and their tourism service providers to make relevant information available to the Chinese designated travel agencies, in particular regarding travel possibilities to and within the territory of the Community, important travel services for Chinese travellers and their prices and information which serves to protect the travellers' legitimate rights.

5. Documentary Evidence

The Contracting Parties agree that documentary evidence referred to in Article 5, paragraph 2 of this Memorandum of Understanding, shall include passports, visa applications, EU immigration control records, travel agency documents, or photocopies thereof.

Joint Declaration concerning Denmark

The Contracting Parties take note that this Memorandum of Understanding does not apply to the territory of the Kingdom of Denmark. In such circumstances the National Tourism Administration of the People's Republic of China and the authorities of Denmark state their willingness to conclude, without delay, an Approved Destination Status arrangement in the same terms as this Memorandum of Understanding.

Joint Declaration concerning the United Kingdom and Ireland

The Contracting Parties take note that this Memorandum of Understanding does not apply to the territory of the United Kingdom and Ireland. In such circumstances it is desirable that the National Tourism Administration of the People's Republic of China and the authorities of the United Kingdom and of Ireland conclude an Approved Destination Status arrangement in similar terms as this Memorandum of Understanding.

Joint Declaration concerning Iceland and Norway

The Contracting Parties take note of the close relationship between the European Community and Iceland and Norway, particularly by virtue of the Agreement of 18 May 1999 concerning the association of these countries with the implementation, application and development of the Schengen acquis. In such circumstances it is appropriate that the National Tourism Administration of the People's Republic of China concludes an Approved Destination Status arrangement with Iceland and Norway in similar terms as this Memorandum of Understanding.