Since the enactment of the Consolidated Appropriations Act of 2016, which contained significant changes to the United States’ Visa Waiver Program (VWP) with the inclusion of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, there has been considerable concern—and uncertainty—about the impact the new law will have on individuals who have long-relied on visa-free travel between European Union countries and the United States. The implications are of particular interest to international companies who have relied on the VWP to bring employees to the United States for short-term visits. We have written previously about the new VWP laws and related considerations for employers. In addition to concerns about the impact on VWP Member Country citizens, however, U.S citizens reliant on the visa free access to VWP countries must also consider, and monitor closely, the potential for the EU to impose commensurate visa requirements on the United States. This post discusses recent developments within the European Union in regards to the VWP.

On April 12, 2016, the European Commission published a “Communication from the Commission to the European Parliament and the Council.” A FAQ document answering questions about the implications of the Commission’s communication can be found here. The communication was transmitted pursuant to Council regulation No. 539/2001, which governs Member States’ participation in the visa-free travel regime, outlines obligations and responsibilities, as well as procedures for addressing reciprocity issues with third countries.

While instances of third country nonreciprocity with certain EU Member States (including the United States’ denial to Bulgaria, Croatia, Cyprus, Poland, and Romania of VWP reciprocity) are at the core of the Commission’s communication, the communication also addresses recent changes to the United States’ VWP laws in the context of restrictions upon visa-free travel among program countries. In December 2015, the EU Ambassador to the United States, David O’Sullivan, along with the ambassadors of the 28 EU countries, wrote an open letter cautioning the United States against enacting VWP restrictions, and raising the possibility that the EU Member States may be compelled to enact “legally mandated reciprocal measures.”

In its April 12 communication, the European Commission states that “[v]isa waiver reciprocity is a principle of the EU’s common visa policy and an objective which the Union should pursue in a proactive manner in its relations with third countries, thus contributing to improving the credibility and consistency of the Union’s external relations.” Pursuant to regulation 539/2001, the consequence for a third country that “applies a visa requirement” is for the Commission, after certain actions are taken by the affected Member State, to adopt a suspension of the third country’s visa exemption.

The first step in the process for an affected EU Member State is for the Member State to notify the commission and publish the notification in the Commission’s Official Journal. The Council regulation gives the Commission the authority to adopt an implementing act that suspends for six months the visa exemption for the third country, or, which is currently the case, publish a report assessing the situation and explaining the reasons for not suspending visa waiver reciprocity. The regulations provide a framework for additional suspension periods, but in light of the fact that the Council or the European Parliament may object to the Commission’s proposed actions, authority ultimately rests with those bodies. To date, the Commission has not taken action to suspend nonreciprocating third countries but is instead pursuing the alternative course of periodic reporting and consultation, as provided by the regulation.

The Commission also discusses the enactment of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. The Commission makes clear that the new law has a “potential impact” on “all Member States,” but noted that none of the Member States officially notified the Commission in accordance with Article 1(4)(a) of the Council regulations, therefore did not trigger remedial measures under the regulations. The Commission outlines the significant practical, economic, and diplomatic impacts that suspension of EU visa waiver reciprocity would have. Ultimately, the Commission’s communication determines that continued engagement with the United States and other nonreciprocating third countries on issues of nonreciprocity and other visa requirements is the preferred course.

So what is the likelihood that the EU will act to suspend or otherwise restrict the visa exemption for the United States based upon new U.S. VWP laws? The Commission states:

In parallel to discussing full visa reciprocity, the Commission will continue to monitor the implementation of the changes in the Visa Waiver Program which introduce additional travel restrictions for nationals of Visa Waiver Program countries and engage with the US to ensure that these changes are implemented in a manner which limits negative consequences for bona fide EU travelers. In this context, the Commission will invite the US to consider the legislative initiatives brought forward (e.g. the “Equal Protection in Travel Act of 2016”) in order to mitigate restrictions imposed on dual nationals.

The Commission highlights the Equal Protection in Travel Act of 2016 (S.2449 and H.R.4380), introduced in the Senate and House respectively by Senator Jeff Flake (R-AZ) and Representative Justin Amash (R-MI). The Equal Protection in Travel Act would repeal the portion of the new VWP law that barred VWP participation based upon status as a “dual national” from the list of enumerated countries. The citation and encouragement to Congress to consider pending legislation that would mitigate in part the restrictions enacted in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act suggest the Commission will continue to take a measured approach to working with the United States to achieve satisfactory refinements to the new U.S. VWP laws as well as full VWP reciprocity among EU Member States. The Commission notes at the end of its report, however, that it “urges” the United States to “demonstrate [its] commitment by introducing tangible measures to achieve full visa reciprocity for all 28 Member States of the European Union.” The Commission’s goal to bring about change in current U.S. VWP policy likely faces challenges in the short term. Given current domestic and international events, continued attention in the U.S. Congress on security aspects of immigration policy, and national electoral politics, swift policy changes to the U.S. VWP may prove elusive.

With respect to next steps in view of the Council regulations, in its communication the Commission recommends the European Parliament and the Council to “urgently launch discussions and to take a position on the most appropriate way forward.” The Commission has asked the European Parliament and the Council to advise the Commission by July 12, 2016 of its decisions on the issues raised in its communication. With respect to the changes enacted in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act, it appears unlikely the EU will take concrete actions to impose similar visa requirements on the United States. But in light of the EU ambassadors’ letter of December 2015, continued attention to the new U.S. VWP laws, and pending action on July 12, 2016, from the Council and European Parliament, VWP-reliant companies and individuals must pay careful attention to developments within the EU’s governing bodies.