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Document 52015PC0435

Proposal for a COUNCIL DECISION on the signing, on behalf of the Union, and provisional application of the Agreement between the European Union and the Republic of Colombia on the short-stay visa waiver

COM/2015/0435 final - 2015/0198 (NLE)

Brussels, 14.9.2015

COM(2015) 435 final

2015/0198(NLE)

Proposal for a

COUNCIL DECISION

on the signing, on behalf of the Union, and provisional application of the Agreement between the European Union and the Republic of Colombia 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. 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.

Colombia and Peru were, according to Recital 5 of Regulation (EU) No 509/2014 and the joint declaration issued at the time of adoption, subject to a specific procedure which required a further assessment of those countries against the relevant criteria, before the Commission could present to the Council recommendations for decisions authorising the opening of negotiations on visa waiver agreements with those two countries. In October 2014, the Commission adopted a report 3 broadly assessing the situation of Colombia against the criteria listed in Article 1 of Regulation (EC) No 539/2001, as amended by Regulation (EU) No 509/2014; a report about Peru was adopted in parallel 4 . The report examined data and developments in migration and mobility (Schengen visas, legal migration, irregular migration, travel document security and fraud), crime and security, economy, trade and tourism, external relations and human rights issues, regional coherence and reciprocity. It also assessed the risk scenarios possibly resulting from visa liberalisation. The Commission concluded that the significant improvement of the Colombian economic, social and security situation in recent years provided justification that Colombians should be granted visa-free access to the Member States' territory, while the risks related to visa liberalisation were considered to be manageable, inter alia by reinforced cooperation on return and correctly implemented border controls. In addition, the visa waiver agreement contains the necessary safeguards to suspend or terminate the agreement should this be required to avoid security or migration risks for the Union.

In March 2015, the Commission presented a Recommendation to the Council to authorise it to start negotiations on visa waiver agreements with Colombia and Peru 5 . On 19 May 2015, the Council addressed negotiating directives to the Commission. The negotiations with Colombia were held on 20 May 2015 in Brussels. During that meeting the entire draft text could be reviewed, a few modifications were suggested and agreement was reached on all aspects.

The agreement was initialled by the chief negotiators on 9 June 2015; an official ceremony was held in the margins of the EU-CELAC Summit on 10 June 2015. The text of the agreement had been circulated to Member States on 27 May 2015 and further information was provided during a meeting of the Visa Working Party of the Council on 15 June 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 the signature of the agreement. The Council will decide by qualified majority.

Taking into account the fact that Colombia will be able to complete its internal ratification procedure quickly, the proposed decision on the signature sets out the provisional application of the agreement as from the 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.

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

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

In order to safeguard equal treatment of all EU citizens, a provision has been included in the agreement stating that Colombia 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 Colombia 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 Colombia 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 Colombia 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 Colombia to stay only in those Member States’ European territories.

Declarations

In addition to the joint declarations referred to above, four 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;

on the introduction of biometric passports by the Republic of Colombia, declaring that Colombia commits to issuing biometric passports by 31 August 2015 at the latest and that failure to introduce biometric passports by 31 December 2015 constitutes sufficient grounds for suspension of the agreement; and

on cooperation concerning irregular migration. This declaration recalls the commitment pursuant to Article 49(3) of the Political Dialogue and Cooperation Agreement between the Union and the Andean Community with regard to the readmission of their irregular migrants. The Parties will closely monitor this commitment and agree to conclude a readmission agreement upon request by either Party, in particular in case of an increase of irregular migration and in problems regarding the readmission of irregular migrants. Failure to conclude a readmission agreement upon request constitutes sufficient grounds for suspension of the agreement.

4.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.

2015/0198 (NLE)

Proposal for a

COUNCIL DECISION

on the signing, on behalf of the Union, and provisional application of the Agreement between the European Union and the Republic of Colombia 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 Article 218(5) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1)Regulation (EU) No 509/2014 of the European Parliament and the Council 6 transferred from Annex I to Annex II of Council Regulation (EC) No 539/2001 7 the reference to Colombia.

(2)The reference to that country is accompanied by a footnote indicating 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.

(3)Pursuant to Recital 5 of Regulation (EU) No 509/2014, the Commission assessed the situation of Colombia with regard to the criteria set out in that Regulation. On 29 October 2014, the Commission adopted a report concluding that the significant improvement of the Colombian economic, social and security situation in recent years provided justification that Colombian nationals should be exempted from the visa requirement when travelling to the Member States' territory.

(4)By decision of 19 May 2015, the Council authorised the Commission to negotiate an agreement between the European Union and Colombia on the short-stay visa waiver. Negotiations on the agreement were held on 20 May 2015.

(5)The Agreement initialled on 9 June 2015 should be signed and the attached declarations be approved. The Agreement should be applied on a provisional basis, pending the completion of procedures for its formal conclusion.

(6)In accordance with 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 the Agreement do not apply to the United Kingdom and Ireland,

HAS ADOPTED THIS DECISION:

Article 1

The signing of the Agreement between the European Union and the Republic of Colombia on the short-stay visa waiver (hereinafter referred to as the Agreement) is hereby approved on behalf of the Union, subject to its conclusion.

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, subject to its conclusion.

Article 4

The Agreement shall be applied on a provisional basis as from the day following the date of signature thereof pending the completion of the procedures for conclusion.

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) 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) 665, 29.10.2014
(4) COM (2014) 663, 29.10.2014
(5) COM (2015) 119, 11.3.2015
(6) 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.
(7) 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.
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Brussels, 14.9.2015

COM(2015) 435 final

ANNEX

to the

Proposal for a Council Decision

on the signing, on behalf of the Union, and provisional application of the Agreement between the European Union and the Republic of Colombia on the short-stay visa waiver


ANNEX

to the

Proposal for a Council Decision

on the signing, on behalf of the Union, and provisional application of the Agreement between the European Union and the Republic of Colombia on the short-stay visa waiver



AGREEMENT

between the European Union and the Republic of Colombia on the short-stay visa waiver

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

THE REPUBLIC OF COLOMBIA, hereinafter referred to as "Colombia",

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 Colombia, 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 Colombia 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 Colombia 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 Colombia" shall mean a national of Colombia;

(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)    "Schengen acquis" shall mean all measures aimed at ensuring the free movement of persons in an area without internal borders, in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration and measures to prevent and combat crime.

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 Colombia for the period of stay as defined in Article 4(1).

Citizens of Colombia holding a valid ordinary, diplomatic, service, official or special passport issued by Colombia 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 Colombia or to withdraw it inaccordance with Article 4(3) of Council Regulation (EC) No 539/2001 2 .

For that category of persons, Colombia 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 Colombia 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 Colombia.

ARTICLE 4

Duration of stay

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

2.    Citizens of Colombia 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 Colombia 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 Colombia 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 Colombia. The Union shall be represented by the European Commission.

2.    The Committee shall have 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;

(d)    any other task agreed upon by the Contracting Parties.

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 Colombia

This Agreement shall take precedence over any bilateral agreements or arrangements concluded between individual Member States and Colombia, 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.

Pending its entry into force, this Agreement shall be applied 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, irregular 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.    Colombia 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, Spanish, Czech, Danish, German, Estonian, Greek, English, French, Croatian, Italian, Latvian, Lithuanian, Hungarian, Maltese, Dutch, Polish, Portuguese, Romanian, Slovak, Slovenian, Finnish 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 Colombia, 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 Colombia, 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.

Joint Declaration ON the introduction of biometric passports by the Republic of Colombia

The Republic of Colombia as a Contracting Party declares that it has awarded a contract concerning the production of biometric passports and commits to issuing biometric passports to its citizens by 31 August 2015 at the latest. These passports will comply fully with ICAO requirements stipulated in ICAO Doc 9303.

The Contracting Parties agree that failure to introduce biometric passports by 31 December 2015 constitutes sufficient ground for suspension of this Agreement in accordance with the procedures laid down in Article 8(4).

JOINT DECLARATION ON COOPERATION CONCERNING IRREGULAR MIGRATION

The Contracting Parties recall their commitment pursuant to Article 49(3) of the Political Dialogue and Cooperation Agreement between the European Community and its Member States, of the one part, and the Andean Community and its member countries, of the other part (signed in 2003), with regard to the readmission of their irregular migrants.

The Contracting Parties will closely monitor this commitment. They agree to conclude, upon request by either party, and in particular in case of an increase of irregular migration and in problems regarding the readmission of irregular migrants following the entry into force of the short-stay visa waiver agreement, an agreement regulating the specific obligations of both parties on readmission.

The Contracting Parties agree that such a readmission agreement would be an important element strengthening the mutual commitments taken in this Agreement and that failure to conclude such a readmission agreement upon request constitutes sufficient ground for suspension of this Agreement in accordance with the procedures laid down in Article 8(4).

_________________

(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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