What’s the story?

The European Union has a list of countries whose citizens can travel to the EU / Schengen area for 90 days in any 180-day period without needing a visa.

These countries include the USA, Canada, Australia, New Zealand and the UK. Usually, this is based on the fact that EU citizens are not required to get a visa when they travel to those countries. In other words it’s based on reciprocity. 

So US citizens can benefit from these rules and they do not require a visa when they travel to the EU or Schengen area countries like Switzerland and Norway. However, while most EU citizens can travel to the US for up to 90 days without a visa (although they do need an ESTA visa waiver), this has not been true for all EU nationalities.

EU rules state that if a non-EU country decides to introduce a visa requirement for citizens of one or more EU member states, then the European Commission can propose to suspend the visa exemption for their nationals too.

In 2014, the EU raised with the US the issue of non-reciprocity of visa waivers concerning Bulgarian, Croatian, Cypriot and Romanian citizens (at the time Poland was also affected, but since 2019 Polish citizens can travel to the US under the visa-waiver system).

Under EU legislation, if a third country does not lift the visa requirement within 24 months from the notification, the Commission can propose a legal act to suspend the exemption for its nationals for 12 months.

Because the US did not change its approach, in 2017 and 2020 the European Parliament had called on the Commission to reintroduce the visa requirement for US citizens – effectively meaning that the millions of American tourists who head to Europe each year would need to go through the process of getting a visa prior to travel.

“The discrimination that Bulgarians, Croatians (Croatia has since become part of the Schengen area and now benefits from the US visa-waiver system), Cypriots and Romanians experience when travelling to the US is unacceptable. Respecting the fundamental principle of solidarity among EU members, we call on the Commission to act as established in European legislation and table a proposal to suspend the visa exemption for US nationals,” Juan Fernando López Aguilar, chair of the European parliament’s civil liberties committee, said back in 2020.

But the Commission refused.

It argued that given the close relations between the EU and the US and the importance of US tourists for the EU economy, the suspension would have had “significant negative impacts in a wide range of policy areas and sectors”.

In terms of the number of tourist arrivals and tourist spending, the US is the most lucrative market for the EU. In 2016 American visitors spent a combined total of 74 million nights throughout EU countries. France is the number one EU country for US visitors followed by Italy and Germany.

In 2016, tourists from the US carried out 27 million trips to Europe.

Given the lack of action, the European Parliament decided to take the Commission to the EU Court of Justice.

What was the verdict?

In the judgement passed on Tuesday, the Court ruled that the Commission was not required to suspend the visa exemption for US citizens just because of lack of reciprocity.

“The Commission enjoys political discretion to decide whether such a suspension is appropriate,” said the Court.

According to the EU judges, the Commission is not automatically required to suspend the visa exemption, but must take into account a series of factors, including the consequences the suspension may cause – in this case mainly the economic importance of millions of US tourists as well as the impact on certain policy areas. The Court therefore dismissed the Parliament’s action.

“The Commission did not exceed its discretion in taking the view that it was not required to suspend the exemption of United States nationals from the visa requirement, with the result that it cannot be accused of having failed to act,” read the judgement.

The US visa waiver programme ESTA covers citizens from Andorra, Australia, Austria, Belgium Brunei, Chile, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Poland, Portugal, the Republic of Korea, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Taiwan and the United Kingdom. The other EU nationalities are still excluded.

Under the planned ETIAS scheme visitors from the US and other non-EU countries will have to pay in future for a visa waiver to visit EU and Schengen area countries.

This means that American tourists coming to the EU will be required to get travel authorisation through an ETIAS visa waiver ahead of the trip – using an online system. 

This article was produced in collaboration with Europe Street news.