COUNCIL DECISION
of 29 April 2004
on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders
(2004/573/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 63(3)(b) thereof,
Having regard to the initiative of the Italian Republic (1),
Whereas:
(1)
The comprehensive plan to combat illegal immigration and trafficking of human beings in the European Union (2), approved by the Council on 28 February 2002, which built upon the Communication of 15 November 2001 from the Commission to the Council and to the European Parliament on a common policy on illegal immigration states that readmission and return policy is an integral and vital component of the fight against illegal immigration. To that end, the Comprehensive Plan emphasises the necessity of highlighting a number of practical measures, including the establishment of a joint approach and cooperation between Member States with regard to the implementation of return measures. Common standards should therefore be adopted for return procedures.
(2)
The plan for the management of the external borders of the European Union, approved by the Council on 13 June 2002, which built upon the Communication of 7 May 2002 from the Commission to the Council and the European Parliament ‘Towards integrated management of the external borders of the Member States of the European Union’, provides for rational repatriation operations as one of the measures and actions for the integrated management of the external borders of the Member States of the European Union.
(3)
The Return Action Programme, approved by the Council on 28 November 2002, which built upon the Commission Green Paper of 10 April 2002 on a Community return policy on illegal residents, as well as on the Communication of 14 October 2002 from the Commission to the European Parliament and to the Council on a Community return policy on illegal residents recommends, as one of the measures and actions with regard to improved operational cooperation among Member States, that the return of third-country nationals illegally resident in a Member State should be made as efficient as possible by sharing existing capacities for organising joint flights.
(4)
It is important to avoid a vacuum of the Community in the field of the organisation of joint flights.
(5)
As from 1 May 2004 the Council can no longer act on an initiative of a Member State.
(6)
The Council has exhausted all the possibilities to obtain in time the opinion of the European Parliament.
(7)
Under these exceptional circumstances the Decision should be adopted without the opinion of the European Parliament.
(8)
Member States are to implement this Decision with due respect for human rights and fundamental freedoms, and in particular for the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, the United Nations Convention against torture and other cruel, inhuman or degrading treatment or punishment of 10 December 1984, the Geneva Convention of 28 July 1951 and the New York Protocol thereto of 31 January 1967, relating to the status of refugees, the Convention on the rights of the child of 20 November 1989, and the Charter of fundamental rights of the European Union of 18 December 2000 (3).
(9)
This Decision should apply without prejudice to the relevant international instruments in the area of removal by air, such as Annex 9 to the 1944 Chicago Convention on International Civil Aviation (ICAO) and the relevant documents of the European Civil Aviation Conference (ECAC).
(10)
The non-binding Common Guidelines on security provisions for joint removals by air should provide useful guidance in the implementation of this Decision.
(11)
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Decision, and is not bound by it or subject to its application. However, given that this Decision builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark, in accordance with Article 5 of the said Protocol, is to decide within a period of six months after the Council has adopted this Decision, whether it will implement it in its national law.
(12)
As regards the Republic of Iceland and the Kingdom of Norway, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded on 18 May 1999 between the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis (4), which fall within the area referred to in Article 1, point C of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of that Agreement (5). As a result of the procedures laid down in the said Agreement, the rights and obligations arising from this Decision should also apply to those two States and in relations between those two States and the Member States of the European Community to which this Decision is addressed.
(13)
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union and to the Treaty establishing the European Community, these Member States have notified their wish to take part in the adoption and application of this Decision,
HAS ADOPTED THIS DECISION:
Article 1
Purpose
The purpose of this Decision is to coordinate joint removals by air, from two or more Member States, of third-country nationals who are subjects of individual removal orders (hereinafter referred to as third-country nationals).
Article 2
Definitions
For the purpose of this Decision:
(a)
‘third-country national’, means any person who is not a national of a Member State of the European Union, the Republic of Iceland or the Kingdom of Norway;
(b)
‘organising Member State’, means a Member State, which is responsible for the organisation of joint flights;
(c)
‘participating Member State’, means a Member State which participates in joint flights organised by an organising Member State;
(d)
‘joint flight’, means the transport of third-country nationals carried out by an air carrier selected for that purpose;
(e)
‘removal operations’ and ‘joint removals by air’, mean all the activities which are necessary to return the third-country nationals concerned, including transport on joint flights;
(f)
‘escort(s)’, means the security personnel responsible for accompanying third-country nationals on a joint flight and the persons in charge of medical care and interpreters.
Article 3
National authority
Each Member State shall appoint the national authority responsible for organising and/or participating in joint flights and communicate the relevant information to the other Member States.
Article 4
Tasks of the organising Member State
1. Where a Member State decides to organise a joint flight for the removal of third-country nationals which is open to the participation of the other Member States, it shall inform the national authorities of those Member States.
2. The national authority of the organising Member State shall adopt the necessary measures to ensure that the joint flight is conducted properly. In particular, it shall:
(a)
select the air carrier and determine with the selected air carrier all the relevant costs of the joint flight, assume the relevant contractual obligations and ensure that it takes all the measures necessary for carrying out the joint flight, including providing the appropriate assistance to the third-country nationals and to the escorts;
(b)
request and receive, from the third-countries of transit and destination, the authorisations which are required for the implementation of the joint flight;
(c)
make use of contacts and make the appropriate arrangements for the organisation of the joint flight with the participating Member States.
(d)
define the operational details and procedures and determine, in agreement with the participating Member States, the number of the escorts which is appropriate in relation to the number of third-country nationals to be removed;
(e)
conclude all the appropriate financial arrangements with the participating Member States.
Article 5
Tasks of the participating Member State
Where it decides to participate in a joint flight, a participating Member State shall:
(a)
inform the national authority of the organising Member State of its intention to participate in the joint flight, specifying the number of third-country nationals to be removed;
(b)
provide a sufficient number of escorts for each third-country national to be removed. If the escorts are to be provided solely by the organising Member State, each participating Member State shall ensure the presence of at least two representatives on board. These representatives, who shall have the same status as the escorts, shall be in charge of handing over the third-country nationals for whom they are responsible to the authorities of the country of destination.
Article 6
Common tasks
The organising Member State and each participating Member State shall:
(a)
ensure that each third-country national and the escorts hold valid travel documents and any other necessary additional documents, such as entry and/or transit visas, certificates or records;
(b)
inform, as soon as possible, their diplomatic and consular representations in the third-countries of transit and destination of the arrangements concerning the joint flight, in order to obtain necessary assistance.
Article 7
Final clause
In carrying out joint removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air attached hereto.
Article 8
Entry into force
This Decision shall take effect from the day following that of its publication in the Official Journal of the European Union.
Article 9
Addressees
This Decision is addressed to the Member States in accordance with the Treaty.
Done at Luxembourg, 29 April 2004.