Visa Code: allowing temporary suspension of visa waivers and strengthening the reciprocity mechanism

Europe needs to amend its common visa policy to tackle issues like the big increase in asylum claims from the Western Balkans, for example, as well as the need for a common EU response when a third country introduces visas for an EU Member State. On 14 July 2009, Canada, for example, reintroduced  the visa requirement for Czech citizens and has still not revoked that decision, despite whatever pressure the Commission may have brought to bear. The fact that it has been impossible to find a favourable solution in this case constitutes a highly damaging precedent for the European Union's common visa policy.

The Council Regulation No 539/2001, listing the third countries whose nationals must be in possession of visas when crossing the EU's external borders and those whose nationals are exempt from that requirement, has already been amended eight times since its adoption in 2001. However, all the recent modifications of the Regulation focused only on the revision of the positive and the negative visa lists annexed to it, ie. which countries can benefit from visa waivers.

Now, a mechanism needs to be introduced that will enable the European Union to react quickly to the issues mentioned above.

Amendment of the current regulation: two main goals

The current proposal from the European Commission for an amendment of Regulation No 539/2001 has two main goals:

1. Making provisions for a visa safeguard clause allowing the rapid, temporary, suspension of a visa waiver for a third country on the positive list in case of an emergency situation, where an urgent response needs to be given to solve difficulties faced by Member States.
2. Modifying the reciprocity mechanism: a suggestion has been made by a Member State to modify the current reciprocity mechanism in order to make it more efficient. According to this suggestion, the Commission would be obliged to present a proposal, within a very short period of time, for a temporary restoration of a visa requirement for nationals of third countries that don't lift a visa obligation within 12 months of its introduction for a Member State. However, such a modification of the reciprocity mechanism would infringe the exclusive right of initiative of the Commission and would not necessarily lead to adoption of the proposed retaliatory measure.

EPP Group MEP Agustin Diaz De Mera, who is responsible in Parliament for the proposal, has worked hard to find the right balance between the two issues in his report.

New rules allowing temporary suspension of visa waivers

A more accurate term should be used to describe the safeguard clause, since its objective is to ‘suspend’ the visa waiver when certain circumstances arise. It would perhaps be better to use a different wording such as ‘suspension clause or mechanism’.

It seems clear that the mechanism should only be triggered in very specific emergency situations in which a ‘substantial’ and sudden increase has been detected in the number of irregular immigrants or the number of unfounded applications for international protection.

It would be desirable for Parliament to take part in the procedure from the time when the Commission first decides to consider a request made by any of the Member States, a request which should moreover also be forwarded to Parliament. This means that Parliament should be informed at the same time as the Commission when a Member State submits a request for suspension, and not only when the start of the comitology process is announced.

Strengthening the 'reciprocity mechanism'

Reciprocity is one of the principles that inspired the common visa policy, i.e. a third country that benefits from a visa waiver must extend the same treatment to European Union citizens. However, Diaz De Mera thinks that, even though this principle provides a basis for policy in this field, it should not be used as an argument with which to call into question the fairness of a visa obligation imposed on citizens of a Member State by a third country, where that country considers the Member State concerned to have become a source of irregular immigration. To this end, Parliament called on the Commission to establish 'a new mechanism that guarantees full visa reciprocity for all Member States while ensuring that if a non-EU country breaches that visa reciprocity, all Member States will immediately restore the visa requirement for nationals of that country'.

Next steps

The Parliament and the Council have tried to reach an agreement on this report over many trialogues, the tripartite meetings between the Parliament, the Council and the Commission. Negotiations are ongoing. On 8 April, Diaz de Mera's report will be submitted to a vote in the Committee on Civil Liberties, Justice and Home Affairs.