Brussels, 06/03/2008 (Agence Europe) - On Wednesday 5 March, EU ambassadors were able to adopt a common approach with regard to the red lines that member states should not exceed when complying with the new US security demands relating to the “Visa Waiver Program” (VWP). The Commission also undertook to put a draft negotiating brief to the Council next week, to be approved by qualified majority. The content of the mandate would be legally binding for member states, thus compelling the latter to comply even when bilateral agreements are signed with Washington.
EU is prey to new American security demands. At present, the United States maintains visa requirements for nationals of 12 countries: Bulgaria, the Czech Republic, Greece, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Romania and Slovakia. With a view to including them all in the VWP, the United States updated its legislation on the VWP in 2007 by introducing more stringent security measures (EUROPE 9488). It recently specified what these measures would be in a memorandum of understanding (MOU) sent to a number of member states still subject to the visa requirement. The problem is that several of these measures significantly overlap onto Community competence. Despite this, the Czech Republic has decided to go it alone by negotiating and then signing the MOU, thus opening the road to concluding other bilateral agreements with the United States so that visas may be lifted (EUROPE 9612). Warnings from the Commission, which is itself suffering from internal dissension on the subject, will not have much effect. Are talks already underway frozen? “That is the question. Two or three other states are said to be about to sign”, a diplomatic source states. By deciding on a common approach, the EU once more gains control of a dossier considered as one of the thorniest justice and home affairs matters at the present time. This burst of energy on the part of the EU comes just at the right time in that the EU-US ministerial troika is to unfold on 13 March, in Slovenia, in the presence of US Secretary for Homeland Security Michael Chertoff and US Secretary for Justice Michael Mukasey.
Red lines set by the EU. “The aim is to have all EU member states participating as quickly as possible in the US VWP in order to ensure full reciprocal visa free travel and equal treatment for all EU citizens”, the ambassadors point out in a document published after their meeting. The common approach means that member states will be limited in their talks with the United States by the fact that the visa policy comes under the scope of EU competence. They are also under an obligation to respect the principle of solidarity (Article 10-2 of the EU Treaty). Given the impact of VWP legislation on certain EU competences, member states are constrained in their freedom to act, ambassadors say. The EU and its member states therefore adopt a common approach concerning discussions with the United States on the VWP and its implementation. This last point is all the more important as the Czech Republic has begun to negotiate a protocol for implementation to which the Commission has access. One diplomat states: “The Commission says it is shocked as the Americans want to force member states to give, bilaterally, their data contained in the SIS and VIS”.
European guidelines concern other more specific points of the memorandum of understanding proposed by Washington. On the subject of Passenger Name Records (PNRs), the EU/US agreement signed in 2007 should suffice and no additional condition should be added. In the same way, information sharing with the United States on PNR data from a third country should comply with the existing PNR agreement. The presence of US air marshals on flights landing or taking off from a member state comes under the competence of each EU member state. The possibility for the Community to impose obligations to which member states should comply should be recognised, especially concerning the possible introduction of the Electronic Travel Authorisation (ETA) procedure, often assimilated to a visa. No member state must give the US any access whatsoever to the European databases such as the Schengen Information System (SIS) or the Visa Information System (VIS). The Union considers that, for the exchange of data on stolen or lost passports, the current system of transmission via Europol is sufficient. Any change in this way of proceeding must be the subject of an agreement at European level. Airport security, as set out by the International Civil Aviation Organisation (ICAO) is sufficiently guaranteed by Community regulations. Nonetheless, the EU considers that US inspections could be granted in the case of direct flights linking these airports and the United States.
Participation in VWP should possibly create the same rights for all citizens of EU member states when it is a matter of the status of their passport. This amounts to saying that states should be able to continue to benefit from exemption to hold a biometric passport when travelling to the United States. All member states should accept readmission of its own citizens and permanent residents expelled by the United States. Any agreement on this subject would be acceptable on the basis of reciprocity and should be negotiated and concluded between the Community and the United States.
In September 2007, the Commission published a report on visa reciprocity in which it had decided that it would not take any retaliatory measures for now against the United States which does not respect the principle of visa reciprocity towards all EU countries (EUROPE 9503). The Commission will be presenting a new report in June. “It is not too late for the Commission to be far more aggressive in its June report, so that it does not lose face”, one diplomat says. (B.C.)