Brussels, 23/07/2008 (Agence Europe) -The European Commission has recently asked the United States whether it will be prepared to conclude an agreement to facilitate the inclusion of all Member States in the American Visa Waiver Program (VWP). There are 12 Member States still not enjoying the benefits of the VWP: Bulgaria, Cyprus, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, Poland, the Czech Republic, Romania and Slovakia.
The Commissioner with responsibility for Justice, Liberty and Security, Jacques Barrot, wrote to the American Secretary for Homeland Security, Michael Chertoff, on Wednesday 25 June, proposing a "simplified and reduced agreement" on most of the elements of the negotiation mandate which was granted to the Commission in April (see below). Given that European requirements may fulfil American requirements, the Commission would like an agreement to be made by a simple exchange of letters, a procedure which is faster, but also less binding than a protocol agreement. The Commission is also proposing the creation of a "task force" to look into the development of an experimental platform for the exchange of biometric data of asylum seekers. The Americans had initially proposed an exchange of data contained within Eurodac, the EU database for the comparison of digital fingerprints from asylum seekers and illegal immigrants. In view of the fact that the legal basis of Eurodac does not provide for the exchange of data with third countries, the idea would consist of working on a pilot project in which certain Member States would agree to pool data taken from their national files. The Commission has so far not had any response to its letter from Washington. This question will be tackled at a meeting of high-level EU/United States civil servants, to be held in Paris on 30 and 31 July, to prepare for the Justice and Home Affairs troika, scheduled for December in Washington.
On 18 April, the Council of the EU granted a mandate allowing the Commission to start negotiations with the United States, with a view to allowing the 12 countries still not included in the VWP to join it (EUROPE 9646). The mandate authorises the Commission to open negotiations with Washington to agree on reasonable and appropriate conditions to include all Member States in the VWP. It lays down the following "negotiation directives": (1) the Commission must examine the nature of the Electronic System for Travel Authorisation (ESTA) and the modalities for its application (EUROPE 9677 and 9675). The text specifies that the Community reserves the right to impose any comparable measures under the principle of reciprocity. It is worth noting that the Commission has yet to return its verdict and state whether the ESTA is similar in nature to a visa. (2) The Commission will study the scope of an agreement on the transfer of information, which is strictly limited to the requirements of the new American security measures. Any EU/United States agreement must respect Community standards for data protection included in the directive 95/46/EC. If the EU feels that a new agreement on the exchange of information with the United States is necessary, a new negotiation mandate will be adopted. (3) A future EU/United States agreement will recollect that the Member States and the Americans will be bound to take back their nationals in line with international law. (4) Concerning the security of travel documents, the Commission is tasked with ensuring that the Europeans may visit the United States without a visa if they hold an optical passport issued before 26 October 2005, an optical passport with a digital photograph issued before 26 November 2006, or a biometric passport issued after 26 October 2006. (5) The agreement must also refer to international airport security standards as a minimum reference. Lastly, the mandate provides for the creation of a joint EU/United States expert committee to supervise the implementation of the future agreement.
If the United States responds to the Commission, this will be the end of a long headache for the EU, which favoured a "Twin Track" approach, which would firstly have left the Member States free to negotiate bilateral agreements with the Americans and, secondly, allowed negotiations to be held under a European mandate on the exclusive competences of the Union (EUROPE 9621 and 9639). "It would have been preferable to negotiate a joint agreement, because as you can see from the mandate, the exclusive competences of the Community do not go very far", a diplomat explained.
In the meantime, bilateral negotiations are continuing well. The American Department for Homeland Security announced in June that it had signed bilateral protocols with seven countries of the EU, with the intention of including them in the VWP by the end of the year. These countries are: the Czech Republic, Estonia, Latvia, Slovakia, Lithuania, Hungary and Malta. The US Deputy Secretary for Homeland Security, Richard Barth, said on Wednesday 16 July that negotiations to allow Greece to join the VWP were back on track and that Athens would be able to join the programme before the end of the year. These negotiations had been broken off in April (EUROPE 9663). On 16 June, the United States also signed a temporary declaration on the VWP with Bulgaria. The American Secretary of State, Condoleezza Rice, recently said that she hoped to see Bulgaria join the VWP, but without specifying a date (EUROPE 9685). The Bulgarian authorities hope to be able to join the programme in 2009. (B.C./trans.fl)