Initiative of the French Republic with a view to adopting a Council Directive on mutual recognition of decisions on the expulsion of third country nationals

(2000/C 243/01)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63(3) thereof,

Having regard to the initiative by the French Republic,

Having regard to the opinion of the European Parliament,

Whereas:

(1) The Treaty stipulates that the Council is to adopt measures on immigration policy within areas comprising conditions of entry and residence as well as illegal immigration and illegal residence.

(2) The European Council of Tampere on 15 and 16 October 1999, reaffirmed its resolve to create an area of freedom, security and justice. For that purpose, a common European policy on asylum and migration should aim both at fair treatment of third country nationals and better management of migration flows.

(3) The need to ensure greater effectiveness in enforcing expulsion decisions and better cooperation between Member States entails mutual recognition of expulsion decisions.

(4) Decisions for the expulsion of third country nationals have to be adopted in accordance with fundamental rights, as safeguarded by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, in particular Articles 3 and 8 thereof, and the Geneva Convention relating to the Status of Refugees of 28 July 1951 and as they result from the constitutional principles common to the Member States.

(5) In accordance with the principles of subsidiarity and proportionality, the objective of the proposed action, namely cooperation between Member States on expulsion of third country nationals, cannot be sufficiently achieved by the Member States and can therefore, by reason of the effects of the action, be better achieved by the Community. This Directive does not go beyond what is necessary to achieve that objective,

HAS ADOPTED THIS DIRECTIVE:

Article 1

1. The purpose of this Directive is to make possible the enforcement of an expulsion decision issued by a competent authority in one Member State, hereinafter referred to as the "issuing Member State", against a third country national present within the territory of another Member State, hereinafter referred to as the "enforcing Member State".

2. The expulsion referred to in paragraph 1 shall be carried out in accordance with the conditions laid down in this Directive.

Article 2

For the purposes of this Directive,

(a) "third country national" shall mean anyone above the age of majority who is not a national of any of the Member States;

(b) "expulsion decision" shall mean any decision of an administrative nature taken by the competent authority of a Member State;

(c) "enforcement measure" shall mean any measure implementing an expulsion decision taken by the enforcing Member State.

Article 3

The expulsion referred to in Article 1 shall be carried out in the following cases:

(a) a third country national shall be the subject of an expulsion decision based on a serious and present threat to public policy or public security or to national security, taken in the following cases:

- sentencing of a third country national by the issuing Member State to a non-suspended penalty involving deprivation of liberty of at least one year,

- the existence of serious grounds for believing that a third country national has committed serious criminal offences or the existence of solid evidence of his intention to commit such offences within the territory of a Member State.

Possession of a residence permit shall not prevent the carrying out of an expulsion decision taken under this point. That decision must be based on a serious present threat and be consistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;

(b) a third country national is the subject of an expulsion decision based on failure to comply with national regulations on the entry or residence of aliens.

In the two cases referred to in (a) and (b), the expulsion decision must not have been rescinded or suspended.

Article 4

If the enforcing Member State has no information as to the continued enforceability of the expulsion decision, it shall ascertain from the issuing Member State that the decision remains enforceable.

The enforcing Member State shall first examine the situation of the person concerned under the relevant international instruments and under the national rules applicable.

Article 5

The third country national concerned must be able to bring proceedings for a remedy against the enforcement measure under the conditions laid down by the enforcing Member State's legislation.

Where, under the enforcing Member State's legislation, such remedy is not suspensive in effect, that State shall carry out the enforcement measure and inform the issuing Member State accordingly.

Where, under the enforcing Member State's legislation, such remedy is suspensive in effect, the enforcement measure shall not be carried out until all remedies have been exhausted and the issuing State's enforcement measure upheld. The enforcing Member State shall inform the issuing Member State of the enforcement of the measure.

Article 6

Protection of personal data and data security shall be ensured in accordance with national legislation adopted pursuant to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(1).

Article 7

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than ...(2). 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 domestic law which they adopt in the field governed by this Directive.

Article 8

This Directive is addressed to the Member States.

Article 9

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

Done at Brussels, ...

For the Council

The President

...

(1) OJ L 281, 23.11.1995, p. 31.

(2) ... years from the date of entry into force of this Directive.