Initiative of the Republic of Finland with a view to the adoption of a Council Regulation determining obligations as between the Member States for the readmission of third-country nationals

(1999/C 353/05)

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 Republic of Finland,

Having regard to the opinion of the European Parliament(1),

Whereas:

(1) Community immigration policy in the area referred to in Article 63(3)(b) of the Treaty includes measures concerning the repatriation of illegal residents and this requires taking measures on readmission in general;

(2) The European Council meeting in Tampere on 15 and 16 October 1999 agreed that, among the elements to be included in the development of a common policy on asylum and immigration, consideration should be given to rules on readmission between the Member States;

(3) This Regulation builds on the Schengen acquis within the meaning of the Protocol integrating the Schengen acquis into the framework of the European Union, especially in view of the fact that the Member States are under an obligation, in accordance with Article 23 of the Convention of 19 June 1990 implementing the Schengen Agreement, to return third-country nationals found illegally present on their territories to their countries of origin or to another third country which they may lawfully enter;

(4) It is therefore appropriate to determine which Member State should be under the obligation to return such third-country nationals;

(5) It should, however, remain as a priority that Member States return third-country nationals found illegally present on their territories to their countries of origin or to another third country which they are entitled to enter;

(6) It is also appropriate to determine which Member State should be under the obligation to readmit third-country nationals for the purpose of implementing a readmission agreement concluded by the Community;

(7) This Regulation should not affect the Member States' obligations arising from international agreements on extradition and transit;

(8) In so far as personal data is communicated under this Regulation the procedure, content and the way of using this information must be in accordance with 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(2);

(9) The measures necessary for the implementation of this Regulation are to 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),

HAS ADOPTED THIS REGULATION:

Article 1

Purpose and scope

1. The purpose of this Regulation is to determine obligations as between the Member States for the readmission of third-country nationals.

2. This Regulation shall apply to situations where a third-country national does not fulfil, or no longer fulfils, the conditions in force for entry to, or residence on, the territory of a Member State.

3. The provisions of this Regulation, with the execption of Articles 7 and 10, shall also apply when a Member State has readmitted a third-country national pursuant to a Community readmission agreement or any other similar arrangements.

4. This Regulation shall not apply to a third-country national whose right to reside in the territory of a Member State derives from the Treaty or the Agreement on the European Economic Area.

5. Nothing in this Regulation shall prevent a Member State from returning a third-country national, who does not fulfil, or no longer fulfils, the conditions in force for entry to, or residence on, the territory of that Member State, to his country of origin or to another third country which he is entitled to enter.

Article 2

Definitions

For the purposes of this Regulation:

(a) "third-country national" means a person who is not a citizen of the Union, as referred to in Article 17 of the Treaty;

(b) "residence permit" means a decision by the competent authorities of a Member State allowing a third-country national to stay on its territory, with the exception of visas and leave to stay granted during the examination of an application for a residence permit or for asylum;

(c) "visa" means a decision by a Member State with a view to authorising a third-country national to enter its territory, or the territory of all the Member States bound by the Convention implementing the Schengen Agreement. It shall not include a transit visa or an airport-transit visa.

Article 3

Criteria for readmission

The criteria set out in Articles 4 to 10 shall apply in the order in which they appear for the purpose of determining which Member State is under the obligation to readmit a third-country national pursuant to this Regulation.

Article 4

Valid residence permit

Where a third-country national is in possession of a valid residence permit, the Member State which issued the permit shall be obliged to readmit the third-country national.

Article 5

Valid visa

Where a third-country national is in possession of a valid visa, the Member State which issued the visa shall be obliged to readmit the third-country national.

Article 6

More than one valid residence permit or visa

Where a third-country national is in possession of more than one valid residence permit or visa issued by different Member States, the obligation for readmission shall be assumed by the Member States in the following order:

(a) the Member State which issued the residence permit conferring the right to the longest period of residence or, where the periods of validity of all the permits are identical, the Member State which issued the residence permit having the latest expiry date;

(b) the Member State which issued the visa having the latest expiry date where the various visas are of the same type, whether they enable a third-country national to enter the territory of one Member State or the territory of all the Member States bound by the Convention referred to in Article 2(c);

(c) where the visas are of differents kinds, the Member State which issued the visa conferring the longest period of stay, or, where the periods of stay are identical, the Member State which issued the visa having the latest expiry date.

Article 7

Expired residence permit or visa

1. The readmission obligation referred to in Articles 3, 4, 5 and 6 shall also apply where a third-country national is in possession of one or more residence permits which have expired less than two years previously, or one or more visas which have expired less than six months previously.

2. In the case of a residence permit ora visa issued by a Member State with a view to authorising the third-country national to enter its own territory, the obligation referred to in paragraph 1 shall apply only if the third-country national entered the territory of the Member State which issued the residence permit or the visa during the period of their validity; the latter condition shall not apply in the case of a visa issued by a Member State with a view to authorising the third-country national to enter the territory of all the Member States bound by the Convention referred to in Article 2(c).

3. The readmission obligation referred to in paragraph 1 shall apply only for such time as the third-country national has not left the territory of the Member States.

Article 8

Irregular entry

1. When it can be proved that a third-country national has irregularly crossed the border into a Member State by land, sea or air, having come from a third country, that Member State shall be obliged to readmit the third-country national.

2. The Member State referred to in paragraph 1 shall cease to be under such an obligation, however, if it is proved that the third-country national has been living in another Member State for at least six months before it was established that he does not fulfil, or no longer fulfils, the conditions in force for entry or residence. In that case it is the latter Member State which shall be obliged to readmit the third-country national.

Article 9

Responsibility for checks at external borders

1. The obligation for readmission shall be incumbent on the Member State responsible for controlling the entry of the third-country national onto the territory of the Member States.

2. Notwithstanding paragraph 1, if a third-country national, after lawfully entering a Member State in which he is not subject to a visa requirement, has entered another Member State in which he is not subject to a visa requirement, the latter Member State shall be under the obligation to readmit him.

Article 10

Enforcing return

When a Member State has started to enforce the necessary measures for the third-country national to return to his country of origin or to another country which he is entitled to enter, it is that Member State which shall be under the obligation for readmission, so long as the third-country national has not left the territory of the Member States.

Article 11

Proof of entry

1. For the purposes of Articles 8 and 9 the entry onto the territory of Member States may be proved conclusively by the following means:

(a) an entry stamp affixed to the travel document by a competent authority of a Member State;

(b) an exit stamp of a third State adjacent to a Member State, taking into account the travel route and date of frontier crossing;

(c) travel tickets, which are capable of formally establishing entry;

(d) an embarkation/disembarkation card showing the date of entry into the territory of a Member State.

2. The entry onto the territory of Member States may also be established by indicative evidence. The existence of such evidence shall establish a presumption of entry.

Article 12

Time limits for readmission

1. The application for readmission shall be submitted to the competent authorities of the requested Member State no later than six months after the competent authorities of the requesting Member State have become aware that the third-country national may be illegally present on its territory.

2. The requested Member State shall reply to readmission requests addressed to it as soon as possible and, in any event, within one month. Failure to act within that period shall amount to acceptance of the application.

3. The requested Member State shall take charge of third-country nationals whose readmission has been agreed to without delay and, in any event, within one month. On application by the requesting Member State, this time limit may be extended as necessary to deal with legal requirements or practical difficulties.

Article 13

Transit

A Member State shall allow the transit of third-country nationals if requested by another Member State and if admission by the Member State responsible for readmission and, where applicable, transit via any other Member State are assured.

Article 14

Costs

1. All transport costs incurred in connection with readmission as far as the border of the Member State which is under the obligation to readmit, in so far as they cannot be recovered from the person or carrier concerned, shall be borne by the Member State requesting readmission.

2. Member States shall bear the costs relating to the assistance given by their own authorities during transit through their territory.

Article 15

Data protection

1. In so far as personal data have to be communicated in order to implement this Regulation, such information may concern only the following:

(a) particulars of the person to be readmitted and, where necessary, of the members of the person's family (surname, any patronymic, forename, any previous names, nicknames or pseudonyms, aliases, date and place of birth, sex, current and any previous nationality);

(b) passport, identity card and other identity and travel documents and laissez-passer (number, period of validity, date of issue, issuing authority, place of issue, etc.);

(c) other details necessary for identifying the persons to be readmitted or for checking whether the conditions for readmission pursuant to this Regulation have been met, such as fingerprints and photographs;

(d) stopping places and itineraries;

(e) residence permits or visas issued.

2. Data which have been communicated and are then erased by the communicating authority must also be erased by the recipient authority within six months after the data is no longer necessary for the purposes of this Regulation.

Article 16

Implementing measures

Further measures necessary for implementing this Regulation shall be adopted in accordance with Article 17, including in particular:

(a) the procedure for reciprocal notification and the practicalities invovled;

(b) the information to be contained in readmission and transit applications;

(c) the documentation and indicative evidence for the presumption required for readmission and the value to be attributed to such material;

(d) designation of the authorities responsible for implementing this Regulation;

(e) cost arrangements, and

(f) general implementing measures relating to the use of the standard travel document, attached to the Council recommendation of 30 November 1994 concerning the adoption of a standard document for the expulsion of third-country nationals(4).

Article 17

Management committee

1. The Commission shall be assisted by a management committee.

2. Where reference is made to this Article, the management procedure laid down in Article 4 of Council Decision 1999/468/EC shall apply.

The period referred to in Article 4(3) of Decision 1999/468/EC shall be three months.

3. The committee shall adopt its own rules of procedue.

Article 18

Entry into force

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

This Regulation shall be binding in its entirety and directly applicable in the Member States, in accordance with the Treaty establishing the European Community.

Done at ...

For the Council

The President

(1) Opinion delivered on ... (not yet published in the Official Journal).

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

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

(4) OJ C 274, 19.9.1996, p. 18.