Proposal for a COUNCIL DECISION concerning the signing of the Agreement between the European Community and the Democratic Socialist Republic of Sri Lanka on the readmission of persons residing without authorisation

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. POLITICAL AND LEGAL FRAMEWORK

The Justice and Home Affairs (JHA) Council authorised the Commission to negotiate a readmission agreement between the European Community and the Democratic Socialist Republic of Sri Lanka, by its decision of 8 September 2000. In January 2001, the Commission transmitted a draft Readmission Agreement text to the Sri Lanka authorities. Following written replies from Sri Lanka, one round of formal negotiations took place in Brussels in July 2001 followed by one round of formal negotiations in Colombo, Sri Lanka in March 2002. The Agreement was initialled in Brussels on 30 May 2002.

Member States have regularly been informed and consulted at all (informal and formal) stages of the negotiations.

On the part of the Community, the legal base for the Agreement is Article 63 para. 3 lit. b), in conjunction with Article 300 TEC. The attached proposals constitute the legal instrument for the signature and conclusion of the Agreement. The Council will decide by unanimity (Art. 300 para. 2 subpara. 1 in conjunction with Art. 67 TEC . The European Parliament will have to be formally consulted on the conclusion of the Agreement, in accordance with Art. 300 para. 3 TEC.

The proposed decision concerning the conclusion sets out the necessary internal arrangements for the practical application of the Agreement. In particular, it specifies that the Commission, assisted by experts from Member States, represents the Community within the Joint Committee set up by Article 17 of the Agreement. Further, the Agreement establishes a readmission committee which has powers to take decisions having legal effect on certain technical matters. Given the technical character of these decisions, it appears appropriate to provide for a simplified procedure for the establishment of the Community positions in such cases. These procedures are identical with the ones that have been adopted by the Council in the decision concerning the conclusion of the readmission agreement with Hong Kong. In this respect the decision provides that, as regards the adoption of the rules of procedure of the Joint Committee, this will be done by the Commission in consultation with a special committee designated by the Council. As regards other decisions to be taken by the Joint Committee, it is proposed that the Community position will be adopted by the Council, acting by qualified majority, on a proposal by the Commission.

2. OUTCOME OF THE NEGOTIATIONS

The Commission considers that the objectives set by the Council in its negotiating directives were attained and that the draft Readmission Agreement is acceptable to the Community.

The final content of it can be summarised as follows:

- The Agreement is divided into 8 sections with 22 articles altogether. It also contains 7 annexes, which form an integral part of it, and five joint declarations.

- The readmission obligations set out in the Agreement (Articles 2 to 5) are drawn up in a fully reciprocal way and have to be read in conjunction with the definitions in Article 1. They comprise own nationals (Articles 2 and 4) as well as third-country nationals and stateless persons (Articles 3 and 5). All four articles contain a formulation clarifying that readmission shall take place without any formalities other than those specified in this Agreement;

- The obligation to readmit third-country nationals and stateless persons (Articles 3 and 5) is linked to the following prerequisites: (a) the person to be readmitted held, at the time of entry, a valid residence authorisation or a valid visa of the requested Party, or (b) the person to be readmitted entered unlawfully the territory of the requesting Party coming directly, i.e. without any in-between-stops, from the territory of the requested Party. Exempted from these obligations are persons in airside transit and all persons to whom the requesting Party issued a visa or residence authorisation with a longer period of validity.

- Sri Lanka did not accept the unilateral use, by EU Member States, of the EU's standard travel document for expulsion purposes but it agreed to introduce a common provisional travel document which, under certain circumstances, can be used for return purposes under this Agreement (Article 2 para. 2, Article 3 para. 3, Article 4 para. 2 and Article 5 para. 4);

- The Agreement contains a section on transit operations (Articles 12 and 13);

- Section III of the Agreement (Articles 6 to 11 in conjunction with annexes 1 to 7) contains the necessary technical provisions regarding the readmission procedure (readmission application, means of evidence, time limits, transfer modalities and modes of transportation). Some procedural flexibility is provided by the fact that in cases where the person to be readmitted is in possession of valid travel documents and willing to return voluntarily, only a written communication - but no formal submission of a readmission application - will be needed (Article 6);

- Articles 14 to 16 contain the necessary rules on costs, data protection and the non-affection of other International rights and obligations applicable to the Parties;

- The Committee of experts will be composed, and have the tasks and powers, as set out in Article 17;

- In order to execute this Agreement in practice, Article 18 empowers Member States to conclude bilateral implementing Protocols with the Sri Lanka government. The relation between such implementing Protocols and this Agreement is clarified by Article 19;

- The final provisions (Art. 20 to 22) contain the necessary rules on entry into force, duration, termination and the legal status of the annexes to the agreement;

- The specific situation of Denmark is reflected in the preamble, Article 1 lit. a), Article 20 and in a joint declaration attached to the Agreement. The close association of Norway and Iceland to the implementation, application and development of the Schengen Acquis is likewise reflected in a joint declaration to the Agreement.

3. CONCLUSIONS

In the light of the above-mentioned results, the Commission proposes that the Council

- decide that the Agreement be signed on behalf of the Community and authorise the President of the Council to appoint the person(s) duly empowered to sign on behalf of the Community;

- approve, after consultation of the European Parliament, the attached Agreement between the European Community and the Sri Lanka government on the readmission of persons residing without authorisation.

Proposal for a COUNCIL DECISION concerning the signing of the Agreement between the European Community and the Democratic Socialist Republic of Sri Lanka on the readmission of persons residing without authorisation

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 63, paragraph 3 lit. b), in conjunction with the second sentence of the first subparagraph of Article 300 (2) thereof,

Having regard to the proposal from the Commission [1],

[1] OJ C

WHEREAS:

(1) By its decision of 8 September 2000, the Council authorised the Commission to negotiate an agreement between the European Community and the Democratic Socialist Republic of Sri Lanka on the readmission of persons residing without authorisation.

(2) Negotiations for the Agreement took place in Brussels in July 2001 and in Colombo, Sri Lanka, in March 2002.

(3) Subject to its possible conclusion at a later date, the Agreement initialled in Brussels on 30 May 2002 should be signed.

HAS DECIDED AS FOLLOWS:

Sole Article

Subject to a possible conclusion at a later date, the President of the Council is hereby authorised to designate the person(s) empowered to sign, on behalf of the European Community, the Agreement between the European Community and the Government of the Democratic Socialist Republic of Sri Lanka on the readmission of persons residing without authorisation.

Done at Brussels,

For the Council

The President