European Commission gets a visa negotiating mandate

On 13 March, at the EU-US Ministerial Troika, a “twin track” approach was agreed so that the Commission would be able to negotiate matters under EU responsibility with the US whereas EU Member States will negotiate those issues under their responsibility. There have been serious tensions between the Member States and the European Commission over the conduct of negotiations.

On 18 April, the Justice and Home Affairs Council adopted, by a QMV, a decision providing the European Commission with a mandate to start negotiations for an agreement with the USA on the Visa-Waiver Programme. The Council decision authorises the Commission, on behalf of the European Community, to open negotiations with the US on those conditions for participation in the US VWP that fall under the responsibility of the European Community. Having reached this agreement on the mandate, the EU can carry on with its “twin track” approach on visa-waiver negotiations with the US.

The US has been refusing to grant visa-free access to the EU as a whole on the grounds that it would not be able to ensure that all EU Member States meet its security requirements. The Commission has now got what it wants: a mandate to allow it to conduct the negotiations in the name of all Member States. The US would have to negotiate with the Commission the framework of an EU-wide visa waiver scheme before concluding agreements with individual Member States. The Commission has already made clear that it would not grant to the US access to the EU policy database, Schengen Information System in order to guarantee a visa-free access to the United States for all its citizens. According to Vice-President Jacques Barrot, “the Commission would not accept an agreement at all costs, above all an agreement without reciprocity.”

Up to now, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Slovakia and Malta have signed Memoranda of Understanding with the US on its Visa Waiver Program. The European Commission has been particularly concerned that Member States concluding bilateral agreements with the US would give more information about their citizens than allowed under EU rules. Therefore, the Commission has stressed that it “reserves the right to take action in accordance with the Treaty.”

Member States are required to observe the scope of the mandate and to keep the Commission informed about the negotiations content with the US. Under the mandate the Commission is entitled to negotiate in four areas. The Commission has the power to negotiate with the US on its intended Electronic Travel Authorisation scheme. The Commission will seek information on the US intention with regards to its Electronic System of Travel Authorisation (ESTA) on which there are suspicions that it will impose an obligation comparable to a visa. The Commission is also in charge of the exchange of information in the areas of migration, border management and visas.

According to Europolitics, diplomats have said that “this does not concern the contents of exchanged information, but rather the data protection provisions and a possible reciprocal reaction to any new demands.” The issues over the precise data are within the Commission’s power (data which belongs to Member States) and it would be fully defined when the US presents a finalised list of precisely which data it demands. The Commission will also deal with the strengthening of standards of travel documents as well as the issues of airport security. Even as this happens, the presence of armed air marshals falls under national competence agreements.

The Commission wants to open negotiations with the US as soon as possible. An EU delegation is due to travel to the US to open negotiations. According to New Europe, one spokeswoman from the US State department has said that “According to the US Constitution, we are supposed to talk bilaterally with other countries and I don’t know about this decision.” On the other hand, Jacques Barrot has said that the Commission wants to secure the membership of all EU Member States in the US VWP, adding that the current situation is an “injustice which gives the impression that there are two different categories of European citizens”.

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