Council Directive 2003/110/EC

of 25 November 2003

on assistance in cases of transit for the purposes of removal by air

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 Federal Republic of Germany,

Having regard to the opinion of the European Parliament,

Whereas:

(1) Mutual assistance for the purposes of removal takes into consideration the common objective of ending the illegal residence of third-country nationals who are the subject of removal orders. Rules binding on all the Member States contribute furthermore to legal certainty and standardisation of procedures.

(2) Removal by air is increasingly gaining in importance for the purpose of terminating the residence of third-country nationals. Despite the efforts of the Member States to give priority to using direct flights, it may be necessary, from an economic viewpoint or insufficient availability of direct flights, to use flight connections via airports of transit of other Member States.

(3) The Council recommendation of 22 December 1995 on concerted action and cooperation in carrying out removal measures(1) and the decision of the Executive Committee of 21 April 1998 on cooperation between the Contracting Parties in returning third-country nationals by air, (SCH/Com-ex (98) 10)(2) already address the need for cooperation between Member States in the field of removal by air of third-country nationals.

(4) The sovereignty of the Member States, particularly with regard to the use of direct force against third-country nationals resisting removal should remain unaffected.

(5) The Convention of 14 September 1963 on Offences and Certain Other Acts committed on board Aircraft (Tokyo Convention), particularly with regard to the on-board powers of the pilot responsible and matters of liability should remain unaffected.

(6) With regard to the briefing of airlines as to how to conduct unescorted and escorted removals, reference is made to Annex 9 to the Convention of the International Civil Aviation Organisation (ICAO) of 7 December 1944.

(7) Member States are to implement this Directive with due respect for human rights and fundamental freedoms, in particular the Geneva Convention relating to the status of refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967 and the European Convention for the Protection of Human Rights and Fundamental Freedoms. In accordance with the applicable international obligations, transit by air should be neither requested nor granted if in the third country of destination or of transit the third-country national faces the threat of inhumane or humiliating treatment, torture or the death penalty, or if his life or liberty would be at risk by reason of his/her race, religion, nationality, membership of a particular social group or political conviction.

(8) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(3).

(9) 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 participating in the adoption of this Directive, and is therefore not bound by it or subject to its application. Given that this Directive builds upon the Schengen acquis under the provisions of Title IV of part Three of the Treaty establishing the European Community to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions for a short stay applicable within the territory of a Member State by virtue of the provisions of the Schengen acquis, in accordance with Article 5 of the abovementioned Protocol, Denmark is to decide within a period of six months after the Council has adopted this Directive, whether it will implement it in its national law or not.

(10) As regards the Republic of Iceland and the Kingdom of Norway, this Directive constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded on 18 May 1999 by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of these two States with the implementation, application and development of the Schengen acquis(4), to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions for a short stay applicable within the territory of a Member State by virtue of the provisions of the Schengen acquis, 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).

(11) In accordance with Articles 1 and 2 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 are not taking part in the adoption of this Directive and therefore, subject to Article 4 of that Protocol, are not bound by it or subject to its application.

(12) This Directive constitutes an act building on the Schengen acquis or otherwise related to it within the meaning of Article 3(1) of the 2003 Act of Accession,

HAS ADOPTED THIS DIRECTIVE:

Article 1

The purpose of this Directive is to define measures on assistance between the competent authorities at Member State airports of transit with regard to unescorted and escorted removals by air.

Article 2

For the purposes of this Directive:

(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) "requesting Member State" means the Member State which enforces a removal order in respect of a third-country national and requests transit via the airport of transit of another Member State;

(c) "requested Member State" or "transit Member State" means the Member State via whose airport of transit the transit is to be effected;

(d) "escort" means all persons from the requesting Member State responsible for accompanying the third-country national, including persons responsible for medical care and interpreters;

(e) "transit by air" means the passage of the third-country national and, if necessary, the escort through the area of the airport of the requested Member State for the purposes of removal by air.

Article 3

1. A Member State wishing to return a third-country national by air shall examine whether it is possible to use a direct flight to the country of destination.

2. If a Member State wishing to return a third-country national cannot for reasonable practical circumstances use a direct flight to the country of destination, it can request transit by air via another Member State. An application for transit by air shall in principle not be made if the removal measure requires a change of airport on the territory of the requested Member State.

3. Without prejudice to the obligations of Article 8, the requested Member State may refuse transit by air if:

(a) the third-country national under national legislation in the requested Member State is charged with criminal offences or is wanted for the carrying out of a sentence;

(b) transit through other States or admission by the country of destination is not feasible;

(c) the removal measure requires a change of airport on the territory of the requested Member State;

(d) the requested assistance is impossible at a particular moment for practical reasons, or

(e) the third-country national will be a threat to public policy, public security, public health or to the international relations of the requested Member State.

4. In the case of paragraph 3(d), the requested Member State shall as quickly as possible inform the requesting Member State of a date as close as possible to the originally requested date on which transit by air may be assisted, in so far as the other conditions are complied with.

5. Authorisations for transit by air which have already been issued may be revoked by the requested Member State if circumstances within the meaning of paragraph 3 subsequently come to light, justifying a refusal of the transit.

6. The requested Member State shall inform the requesting Member State forthwith of the refusal or revocation of a transit by air authorisation under paragraph 3 or 5 or of any other reason why the transit is not possible, and shall provide an explanation of the reasons.

Article 4

1. The request for escorted or unescorted transit by air and the associated assistance measures under Article 5(1) shall be made in writing by the requesting Member State. It shall reach the requested Member State as early as possible, and in any case no later than two days before the transit. This time limit may be waived in particularly urgent and duly justified cases.

2. The requested Member State shall inform the requesting Member State forthwith of its decision within two days. This time limit may be extended in duly justified cases by a maximum of 48 hours. Transit by air shall not be started without the approval of the requested Member State.

Where no reply is provided by the requested Member State within the deadline referred to in the first subparagraph, the transit operations may be started by means of a notification by the requesting Member State.

Member States may provide on the basis of bilateral or multilateral agreements or arrangements that the transit operations may be started by means of a notification by the requesting Member State.

Member States shall notify the Commission regarding the agreements or arrangements referred to in the third subparagraph. The Commission shall regularly report to the Council on such agreements and arrangements.

3. For the purposes of dealing with the request under paragraph 1, the information on the form to be used for requesting and authorising transit by air in accordance with the Annex shall be forwarded to the requested Member State.

The measures necessary for the update and the adjustment of the transit request as set out in the Annex as well as the methods of its transmission shall be taken in accordance with the procedure referred to in Article 9(2).

4. With respect to any request for transit, the requesting Member State shall provide the requested Member State with the details as provided for in the Annex.

5. The Member States shall each appoint a central authority to which requests under paragraph 1 are to be sent.

The central authorities shall appoint contact points for all the relevant airports of transit who can be contacted throughout the transit operations.

Article 5

1. The requesting Member State shall take appropriate arrangements to ensure that the transit operation takes place in the shortest possible time.

The transit operation shall take place at a maximum within 24 hours.

2. The requested Member State, subject to mutual consultations with the requesting Member State within available means and in compliance with relevant international standards, shall provide all the assistance measures necessary from landing and the opening of the aircraft doors until it is ensured that the third-country national has left. However, mutual consultations are not required in the cases referred to in point (b).

This relates to the following assistance measures in particular:

(a) meeting the third-country national at the aircraft and escorting him/her within the confines of the transit airport, in particular to his/her connecting flight;

(b) providing emergency medical care to the third-country national and, if necessary, his/her escort;

(c) providing sustenance for the third-country national and, if necessary, his/her escort;

(d) receiving, keeping and forwarding travel documents, particularly in the case of unescorted removals;

(e) in cases of unescorted transit, informing the requesting Member State of the place and time of departure of the third-country national from the territory of the Member State concerned;

(f) informing the requesting Member State if any serious incidents took place during the transit of the third-country national.

3. The requested Member State may, in accordance with its national law:

(a) place and accommodate the third-country nationals in a secure facility;

(b) use legitimate means to prevent or end any attempt by the third-country national to resist the transit.

4. Without prejudice to Article 6(1), in cases where the completion of transit operations cannot be ensured, despite the assistance provided for in accordance with paragraphs 1 and 2, the requested Member State may, upon request by and in consultation with the requesting Member State, take all the necessary assistance measures to continue the transit operation.

In such cases, the time limit referred to in paragraph 1 may be extended by a maximum of 48 hours.

5. The competent authorities of the requested Member State with whom responsibility for the measure lies shall decide the nature and extent of the assistance afforded under paragraphs 2, 3 and 4.

6. The costs of the services provided according to paragraph 2(b) and (c) shall be borne by the requesting Member State.

The remaining costs shall also be borne by the requesting Member State to the extent that they are actual and quantifiable.

Member States shall provide appropriate information with regard to the criteria of quantification of the costs referred to in the second subparagraph.

Article 6

1. The requesting Member State shall undertake to readmit the third-country national forthwith if:

(a) the transit by air authorisation was refused or revoked under Article 3(3) or (5);

(b) the third-country national entered the requested Member State without authorisation during the transit;

(c) removal of the third-country national to another transit country or to the country of destination, or boarding of the connecting flight, was unsuccessful; or

(d) transit by air is not possible for another reason.

2. The requested Member State shall assist with the readmission of the third-country national to the requesting Member State in the cases referred to in paragraph 1. The requesting Member State shall bear the costs incurred in returning the third-country national.

Article 7

1. When carrying out the transit operation, the powers of the escorts shall be limited to self-defence. In addition, in the absence of law-enforcement officers from the transit Member State or for the purpose of supporting the law-enforcement officers, the escorts may use reasonable and proportionate action in response to an immediate and serious risk to prevent the third-country national from escaping, causing injury to himself/herself or to a third party, or damage to property.

Under all circumstances escorts must comply with the legislation of the requested Member State.

2. Escorts shall not carry weapons during transit by air and shall wear civilian clothes. They shall provide means of appropriate identification, including the transit authorisation delivered by the transit Member State, or where applicable, the notification referred to in Article 4(2), at the request of the requested Member State.

Article 8

This Directive shall be without prejudice to the obligations arising from the Geneva Convention relating to the status of refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, from international conventions on human rights and fundamental freedoms and from international conventions on the extradition of persons.

Article 9

1. The Commission shall be assisted by a committee.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at one month.

3. The Committee shall adopt its Rules of Procedure.

Article 10

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 6 December 2005 They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 11

The Decision of the Executive Committee of 21 April 1998 on cooperation between the Contracting Parties in returning foreign nationals by air (SCH/Com-ex (98) 10) shall be repealed.

Article 12

This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

Article 13

This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community.

Done at Brussels, 25 November 2003.

For the Council

The President

G. Tremonti

(1) OJ C 5, 10.1.1996, p. 3.

(2) OJ L 239, 22.9.2000, p. 193.

(3) OJ L 184, 17.7.1999, p. 23.

(4) OJ L 176, 10.7.1999, p. 36.

(5) OJ L 176, 10.7.1999, p. 31.

ANNEX

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