The European Commission can maintain visa waiver for US citizens, even without full reciprocity

According to the European Treaties, Member States have delegated to the EU institutions the power to enact regulations on the short stay of third-country nationals inside the EU¹. This area of work includes the European common policy on short-stay visas, controls at external borders, and also the conditions under which foreign nationals from a defined list of countries may enter and stay in the UE for a short period of time without a visa.

Pursuant to this principle, the European Parliament and the Council of the European Union have adopted a serie of regulations « listing the third countries whose nationals must be in possession of visas when crossing the external borders, and those whose nationals are exempt from that requirement« , the last one, currently in force, being regulation n°2018/1806 of November 14, 2018.

The establishment of this list takes into account many factors, including the policy of third countries regarding illegal immigration, security and human rights, the economic benefit, and the EU’s relations with these contries following a constant principle of reciprocity². In this respect, the power to exempt foreign nationals from short-stay visa requirement is undeniably an important aspect, inter alia, of the EU’s external relations.

In order to achieve full reciprocity on visa exemptions, the 2018 regulation establishes a procedure, to be followed in case a third country does not apply full reciprocity on EU citizens, meaning that this country would be on the EU list of exemptions from visa requirement, while imposing such an obligation on nationals from at least one EU Member State³.

Once all available means to obtain reciprocity have been exhausted, this procedure can in theory drive the European Commission to suspend the exemption from the visa requirement for 12 months for the nationals of the concerned third country.

For example, while US citizens have benefited from EU visa exemption since the aforementioned list was first implemented in 2001⁴, the US have only progressively admited EU countries in their visa waiver program.

In 2020, after years of bilateral negociations, the US still imposed visa requirement on Bulgarian, Croatian, Cypriot and Romanian nationals. Considering this infrigement of the reciprocity rule, and following the principle of solidarity between EU Member States, the European Parliament called upon the Commission to temporarily suspend the US from the EU visa exemption list, pursuant to the above-mentioned procedure.

The same year, the Commission refused.

Thus, in order to compel the Commission to adopt the said suspension, the European Parliament brought an action to the Court of Justice of the EU, which was heard on December 15, 2022.

Finally, the Court rendered its judgment on September 5, 2023, ruling that in such a situation the Commission enjoyed a certain margin of discretion, and that while being called upon to suspend the US, it had to take into account the following considerations⁵ :

• « the outcome of the measures taken by the Member State concerned with a view to ensuring visa-free travel with the third country in question« 
• « the steps taken » by the Commission itself to ensure free travel for the nationals of the Member State concerned in the third country in question
• « the consequences of the suspension of the exemption from the visa requirement for the external relations of the Union and its Member States with the third country in question« 

As ruled by the Court, « the obligation to take those various circumstances into account would serve no purpose if the Commission were automatically required to adopt » an act of suspension.

As a matter of fact, the Court held that the Commission had not made a wrongful use of its discretion by refusing to undertake such a suspension.

In the end, it seems that the third criteria in the above list weighed more than the others in the Court’s decision. Indeed the latter underlined that such a measure would have « significant negative impacts in a wide range of policy areas and sectors. »

One can only imagine how would the US react in case free travel of US citizens in all EU countries was, even temporarily, suspended. It would at least induce comparable retaliatory measures, most likely the end of free travel in the US for all EU citizens and possibly an unfortunate transatlantic diplomatic crisis, which the Court and the Commission probably wanted to avoid.

CJEU – 05/09/2023 – Parliament v Commission, case C-137/21

1. Section 2 of article 77 of the Treaty on the Functioning of the European Union ↩︎
2. Article 1 of Regulation 2018/1806 of the European Parliament and of the Council of 14 November 2018 ↩︎
3. Article 7 of Regulation 2018/1806 of the European Parliament and of the Council of 14 November 2018 ↩︎
4. Regulation 539/2001 of 15 March 2001 ↩︎
5. Section (d) of article 7 of regulation 2018/1806 of the European Parliamen and of Council of 14 November 2018 ↩︎