Initiative of the Federal Republic of Germany with a view to adopting a Council Directive on assistance in cases of transit for the purposes of removal by air

(2003/C 4/04)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, 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) Having regard to the Council Recommendation of 22 December 1995 on concerted action and cooperation in carrying out removal measures(1) and to the Decision of the Schengen Executive Committee of 21 April 1998 on cooperation between the contracting parties in returning third-country nationals by air.

(2) 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.

(3) 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.

(4) The sovereignty of the Member States - particularly with regard to the use of direct force against aliens resisting removal - are to 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 - are to 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.

(8) 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 instrument aims to build upon the Schengen acquis under the provisions of Title IV of the Treaty establishing the European Community, 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.

(9) As regards the Republic of Iceland and the Kingdom of Norway, this Directive constitutes a development of the Schengen acquis within the meaning of the agreement concluded on 18 May 1999 by the Council of the European Union and those two States. As a result of the procedures laid down in the agreement, the rights and obligations arising from this Directive are also to apply to those two States and in relations between those two States and the Member States of the European Community to which this Directive is addressed,

HAS ADOPTED THIS DIRECTIVE:

Article 1

1. This Directive shall cover measures enabling the competent authorities at European Union airports of transit to assist with unescorted and escorted removals.

2. In cases in which removal to a transit State or State of destination is unsuccessful, requested Member States shall also assist with the readmission of the third-country national to the requesting Member State under this Directive.

Article 2

For the purposes of this Directive:

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

(c) "transit" shall mean the period during which the third-country national and, if necessary, the escort are required to remain in the area of the airport of the requested Member State for the purposes of removal by air;

(d) "requesting Member State" shall mean 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;

(e) "requested Member State" shall mean the Member State via whose airport of transit the transit is to be effected.

Article 3

1. The requested Member State shall assist the transit of third-country nationals to be removed in accordance with the provisions of this Directive.

2. The requesting Member State shall give priority to examining whether removal to the State of destination using a direct flight is possible. An application for transit shall in principle not be made if the measure for removal requires a change of airport on the territory of a Member State.

3. An application for transit shall not be made, or may be refused, if in the State of destination or another transit State 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 race, religion, nationality, membership of a particular social group or political conviction.

4. Transit may also be refused if:

(a) criminal charges would have to be brought against the third-country national in the requested Member State;

(b) transit through other States or admission by the State of destination cannot be guaranteed; or

(c) exceptionally the requested assistance is impossible at a particular moment for organisational reasons.

5. In the case of paragraph 4(c), the requested Member State shall immediately inform the requesting Member State of a date on which transit may be assisted, in so far as the other conditions are complied with.

6. Transit authorisations already issued may be revoked by the requested Member State if circumstances within the meaning of paragraphs 3 and 4 subsequently come to light, justifying a refusal of transit.

7. The requested Member State shall inform the requesting Member State forthwith of the refusal or revocation of a transit authorisation under paragraphs 3, 4 or 6 or of any other reason why transit is not possible, and shall provide an explanation of the reasons.

Article 4

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

(a) the transit authorisation was refused or revoked under Article 3(3), (4) or (6);

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

(c) removal of the third-country national to another transit State or to the State of destination was unsuccessful; or

(d) transit is not possible for another reason.

2. The requested Member State shall effect the return 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 5

1. The requested Member State shall take 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. This relates to the following assistance measures in particular:

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

(b) placing and accommodating the third-country national in a detention room on grounds of public safety or public policy;

(c) using legitimate force to prevent or end any attempt by the third-country national to resist transit;

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

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

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

(g) informing the requesting Member State of the place and time of departure of an unescorted third-country national from the territory of the European Union.

2. The competent authorities of the requested Member State with whom responsibility for the measures lies shall decide the nature and extent of the assistance afforded under paragraph 1.

3. Escorts shall have no sovereign powers on the territory of the requested Member State. Measures taken in the context of the general rights to self-defence and to emergency action in accordance with the legislation of the requested Member State shall remain unaffected. Escorts shall not carry weapons during transit and shall identify themselves by means of service passports at the request of the requested Member State.

4. The costs of services provided under paragraph 1(d) and (e) shall be borne by the requesting Member State. The remaining costs shall be borne by the requested Member State.

Article 6

1. The request for escorted or unescorted transit 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 working days before transit.

2. The time limit laid down in paragraph 1 may, however, be waived in cases of unescorted removals for which no assistance measures under Article 5(1) are required and in particularly urgent and duly justified cases.

3. The requested Member State shall inform the requesting Member State forthwith of its decision. Transit may not be commenced without the approval of the requested Member State.

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

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

6. In the case of unescorted removals, the requesting Member State shall provide the requested Member State with the personal details, details of the travel document, and flight details of the third-country national as provided for on the form given in the Annex. Should the requested Member State take assistance measures under Article 5(1), the requesting Member State shall also provide it with the seat number of the third-country national as it appears on the passenger list.

7. Any transit authorisation issued shall at the same time confer exemption from visa requirements.

8. The central authorities of the Member States shall provide each other with the telephone numbers of airport immigration officers who can be contacted throughout the transit operation.

Article 7

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 the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities and from international conventions on the extradition of persons.

Article 8

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before ... 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 the main provisions of national law which they adopt in the field covered by this Directive to the Commission.

Article 9

This Directive shall enter into force 30 days after its publication in the Official Journal of the European Communities.

Article 10

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

Done at ...

For the Council

The President

...

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

ANNEX

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