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Document 52015PC0645
Proposal for a COUNCIL DECISION 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
Proposal for a COUNCIL DECISION 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
Proposal for a COUNCIL DECISION 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
COM/2015/0645 final - 2015/0294 (NLE)
EUROPEAN COMMISSION
Brussels, 15.12.2015
COM(2015) 645 final
2015/0294(NLE)
Proposal for a
COUNCIL DECISION
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
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 the signing of the agreement. The Council will decide by qualified majority.
Taking into account the fact that both parties have committed themselves in the EU-China Summit statement to complete the first phase by the end of 2015 (which also includes the entry into effect of this agreement), the proposed decision on the signing sets out the provisional application of the agreement as from the third day following the date of its signature in accordance with Article 218(5) TFEU. Considering the need for the European Parliament’s consent before the agreement is concluded, the Commission will inform the European Parliament of the provisional application of the agreement.
•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
–decide that the agreement be signed on behalf of the Union and authorise the President of the Council to appoint the person(s) duly empowered to sign on behalf of the Union;
–approve the provisional application of the agreement pending its entry into force.
2015/0294 (NLE)
Proposal for a
COUNCIL DECISION
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
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(5), thereof,
Having regard to the proposal from the European Commission,
Whereas:
(1)In the context of the EU-China Mobility and Migration Dialogue, the Union and the People's Republic of China agreed on a cooperation package of measures in the area of irregular migration and visa policy, including a reciprocal visa waiver agreement for holders of diplomatic passports.
(2)On 14 September 2015, the Council adopted a decision authorising the Commission to open negotiations with the People's Republic of China for the conclusion of an agreement on the shortstay visa waiver for holders of diplomatic passports (the ‘Agreement’).
(3)Negotiations on the Agreement were opened on 21 September 2015 and were successfully finalised by the initialling thereof, by exchange of letters, on 3 November 2015 by the Union and on 4 November 2015 by the People's Republic of China.
(4)The Agreement should be signed, and the declarations attached to the Agreement should be approved, on behalf of the Union. The Agreement should be applied on a provisional basis as from the third day following the date of signature thereof, pending the completion of the procedures for its formal conclusion.
(5)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 3 ; 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.
(6)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 4 ; Ireland is therefore not taking part in the adoption of this Decision and is not bound by it or subject to its application,
HAS ADOPTED THIS DECISION:
Article 1
The signing of the Agreement between the European Union and the People's Republic of China on the shortstay visa waiver for holders of diplomatic passports (the ‘Agreement’) is hereby approved on behalf of the Union, subject to the conclusion of the said Agreement.
The text of the Agreement is attached to this Decision.
Article 2
The declarations attached to this Decision shall be approved on behalf of the Union.
Article 3
The President of the Council is hereby authorised to designate the person(s) empowered to sign the Agreement on behalf of the Union.
Article 4
The Agreement shall be applied on a provisional basis as from the third day following the date of signature thereof 5 , pending the completion of the procedures for its conclusion.
Article 5
This Decision shall enter into force on the day of its adoption.
Done at Brussels,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 15.12.2015
COM(2015) 645 final
ANNEX
to the
Proposal for a Council Decision
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
ANNEX
to the
Proposal for a Council Decision
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
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.
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