Decision-makers and decision-making procedures

The structure of the section reflects the main elements of EU visa policy towards the Eastern neighbours: visa facilitation process which consists of concluding, implementing and reviewing the VFAs; and visa liberalisation which is centred on visa dialogues and VLAPs and finalised with the amendment to the Council Regulation 539/2001 transferring a neighbouring country from the ‘black’ to ‘white’ visa list.

VFAs

Having the right of initiative, the Commission proposes to the Council to initiate negotiations on a VFA or an agreement amending it. Acting upon the negotiating mandate of the Council, the Commission conducts negotiations and signs the text of the agreement which has to be approved through the consent procedure by the EP (before the Lisbon Treaty – the EP was consulted) and then adopted by the Council by QMV. In the Commission, the profile DG for visa issues is Home Affairs.6 _{There are different}

Directorates in DG Home dealing with visa facilitation and visa liberalisation issues. Until the end of 2014, the visa unit of Directorate for Schengen affairs dealt with VFAs and implementation of EU visa acquis (Community Code on Visas), whereas the unit on international affairs of Directorate responsible for Strategy dealt with visa liberalisation and VLAPs.7

The Director of Visa Unit is chairperson of the Joint Committee for the implementation of the VFAs from the EU side. The Joint Committee is established by the VFA and composed of EU representatives (the Commission assisted by experts from the member states) and representatives of a partner country. The Committee is tasked to monitor the implementation of the VFA, suggest amendments or additions to the agreement and settle disputes arising from the interpretation or application of the provisions in the agreement. The body meets at least once a year or whenever necessary. In practice, it convenes once a year in Brussels and once a year in the partner country or via a video- conference (Interview 15). Member state representatives are invited to these meetings and also briefed afterwards. As a Commission official explained, the Joint Committee on the implementation of VFA with Ukraine was usually more attended, while that with Moldova, as a rule, drew interest mainly from Romania and Poland (ibidem).

In the Council, issues related to VFAs are first dealt with by the Visa Working Party. The Visa Working Party agenda includes VFAs, amendments to VFAs and monitoring of work of the Joint Committee for implementation of the VFAs (Interview 13). Other Council bodies that may deal with VFAs are the High Level Working Group on Asylum and Migration and the Strategic Committee on Immigration, Frontiers and Asylum

Commissioners) in the second Barosso’s Commission (2010-2014).

7 In Jean-Claude Juncker’s Commission (2014-2019), the DG Home Affairs was renamed into DG Migration and Home Affairs and reorganisations of directorates and units within the two DGs

(SCIFA). The latter prepares on a monthly basis the agenda of the Council of Ministers for Justice and Home Affairs (JHA Council). When preparing a negotiating mandate, the Council working groups dealing with visa issues usually consult a corresponding geographic working party, which in the case of the Eastern neighbours is COEST – Working Party on Eastern Europe and Central Asia (Council 2005a). Above SCIFA, COREPER discusses and approves all agenda items for JHA Council meetings. In home affairs, the role of the six-month rotating Presidency is key in forming the agenda of the Council bodies (Interview 13).

In the EP, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) plays a central role on all visa policy related issues. It is responsible for drafting the EP recommendation on the conclusion of a VFA. Visa policy is also discussed by the Committee on Foreign Affairs (AFET) that can be invited by LIBE to draft an opinion on the conclusion of the VFA.

Visa dialogues and VLAPs

The decision to offer a dialogue examining the conditions for visa-free travel to a partner country is is taken by the EU Council. The formal decision to launch a visa dialogue is taken bilaterally. In the case of Ukraine, it was agreed at a Ukraine-EU Troika meeting at the level of justice and home affairs ministers in May 2008 and further approved by the EU-Ukraine summit of 9 September 2008. In the case of Moldova, the intention to start such a dialogue in 2010 was declared by the EU- Moldova Cooperation Council on 21 December 2009.

From the EU side, the visa dialogue is chaired by the Commission represented by the Director of the Unit on International Affairs of DG Home. The visa dialogue has two phases: an exploratory phase and operational phase. During the exploratory phase, the

Commission in cooperation with experts from the member states assess the relevant factors for visa liberalisation structured in four blocs: document security, including biometrics; illegal migration, including readmission; public order and security; and external relations. This evaluation includes on-site visits to a partner country and dialogue with the relevant authorities. It allows to formulate recommendations for setting up relevant conditions for visa-free travel which are presented in a “Gap Analysis” (Caras 2011). This report is discussed with the EU member states at the Council working groups meetings. As a result of these discussions, the Council may invite the Commission to draft a VLAP setting up conditions to be met by the partner country before the possible establishment of visa-free travel regime.

When the Commission presents the VLAP to the partner country, the visa dialogue enters the operational stage. The Commission is responsible for monitoring and evaluation of the implementation of the VLAP by the partner country. The monitoring and reporting on the first three blocks of a VLAP (document security, illegal migration and public order and security) is carried out by the Unit on International Relations of DG Home. The EEAS is responsible for monitoring and drafting the report on the implementation of the fourth block on external relations and fundamental rights. The Commission and the EEAS also draw on reports of EU member states’ experts which evaluate the progress of the partner country on the sets of benchmarks of the VLAP. The experts are selected by the Commission and the EEAS from the proposals made by the member states. The experts write their reports based on findings of the evaluation missions in the country to which they go together with the staff of the Commission’s DG Home and the EEAS (Interview 9).

Home and after inter-service consultations is approved by the College (Interview 38). The Commission submits reports to the EP and the Council and also publishes it on its website. When the partner country fulfils the complete set of benchmarks of the first legislation stage of the VLAP, the Commission decides to move the country to the second implementation stage. When Moldova was to be moved to the second stage of the VLAP in 2012, there was a dispute between the Commission and the Council regarding the role of the Council in this process. The Commission argued that it should be the decision of the Commission because it was the process of implementation of the VLAP and there was no decision point for the Council. However, France and Germany insisted that the EU member states to co-decide (ibidem). Thus, it was decided that the Council takes the decision to launch the assessment of the benchmarks set out under the second phase upon the Commission’s proposal (Interview 40). The Council does this by adopting Council Conclusions. In the case of Ukraine and Georgia, this rule was followed (Council 2012a; Council 2014b; Council 2014a). The decisions on VLAP issues are taken by consensus in the Council (Interview 40).

While the member states base their decision on the Commission’s report, they may also have some information coming from their capitals on the issues they are interested in most (Interview 9). In some member states’ embassies in the EaP countries, there are staff in charge of internal affairs who monitor VLAP issues (Interview 24).

In contrast to visa liberalisation with the Western Balkan countries, in the case of the EaP countries, there is a role for the EEAS and a bigger role of the member states who have reserved the right to disagree with the Commission’s assessment of the VLAP implementation. This is a result of lessons learnt from the liberalisation with Western Balkan countries: in the VLAPs there is more emphasis on the fourth block regulating

fundamental rights, including protection of minorities, and the member states want to ensure that they have control over the implementation process (Trauner & Manigrassi 2014).

Amending Council Regulation 539/2001

When the Commission concludes that a partner country has implemented all the benchmarks and the Council endorses this conclusion (in the case of Moldova, there was no separate Council Conclusions, but the decision was endorsed later by the EaP summit in Vilnius), the Commission initiates the amendment of Council Regulation 539/2001 and drafts its proposal to the EP and the Council who co-decide through the ordinary legislative procedure (before the Lisbon Treaty the EP was consulted). The EP votes upon the recommendation of LIBE committee which may also invite AFET to give its opinion. The Council decides by QMV, however, in practice in case of the Western Balkan countries and Moldova, the decision on transferring these countries from the annex I (the ‘black’ visa list) to the annex II (the ‘white’ list) has been taken by unanimity (Interview 1).

In the Council, COEST and COPERER deal with visa dialogue and VLAPs. When an amendment of the Council Regulation 539/2001 is considered, Visa Working Party supported by SCIFA and High-Level Group on Asylum and Migration deal with the issue (Interview 38).