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Parliamentary questions
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1 April 2011
Answer given by Ms Malmström on behalf of the Commission
Question reference: E-010183/2010

On 10 November 2010, the Commission informed the European Parliament that it was in the process of evaluating whether the ‘twin-track approach’ to the Visa Waiver Program (VWP) negotiations with the United States of America (USA), agreed in 2008, had to be updated in light of the changes brought about by the Lisbon Treaty, which abolished the pillar structure of the Treaties.

The Commission has completed its legal analysis of this issue and on that basis, Commissioner Malmström sent a letter to the Chairman of the LIBE Committee on 14 March 2011, informing about the results of the legal assessment:

The areas of police cooperation in criminal matters and judicial cooperation are now areas of shared competence. This means that, in principle, Member States can continue negotiating and concluding agreements in these areas with third countries as long as the EU has not done so.

This Member State competence is however not unlimited: Member States cannot conclude agreements that would either affect the EU acquis, including instruments in the areas of police cooperation in criminal matters and judicial cooperation, or alter their scope.

Given the exclusive competence of the EU in the field of visa policy, and the fact that the bilateral agreements constitute de facto a pre-condition for access to the VWP, in principle the Commission could recommend to the Council to negotiate on behalf of the EU an agreement covering all conditions related to the access to the VWP. However, in view of the present situation, where already a significant number of Member States have concluded with the US agreements on terrorist screening and agreements on enhancing cooperation in preventing and combating serious crime, the Commission takes the view that Member States can continue to negotiate bilateral agreements, however on the understanding and only to the extent that such agreements do not affect the EU acquis in the areas of police cooperation in criminal matters and judicial cooperation, in particular with regard to the exchange of law enforcement information.

On 10 March 2011, the Commission sent letters to the Member States, requesting them to provide the texts of their bilateral agreements with the US concerning ‘Enhancing cooperation in preventing and combating serious crime’ and ‘The exchange of screening information concerning known or suspected terrorists’, or information on ongoing negotiations with the US, in order to assess whether these agreements affect the EU acquis or alter its scope.

The Commission will provide replies to the specific questions raised by the Honourable Member as regards the compliance of these bilateral agreements with the EU acquis after the completion of its assessment.

OJ C 265 E, 09/09/2011
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