Proposal for a COUNCIL DECISION concerning the signing of the Agreement between the European Community and the Government of the Macao Special Administrative Region of the People's Republic of China 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 Macao Special Administrative Region (SAR) of the People's Republic of China, by its decision of 28 May 2001. This negotiating mandate formed part of a political agreement reached on the Community's new visa regulation during the Council meeting of 1 December 2000, when JHA Ministers agreed on the list of countries whose citizens must be in possession of visas when crossing the EU's external borders and of those whose citizens are exempt from this requirement. As far as Macao was concerned, JHA Ministers agreed that holders of the "Macao Special Administrative Region" passport would be exempted from the visa requirement, as from the entry into force of the new regulation. In addition, in a statement entered in the Council minutes, the Commission was asked to submit, as soon as possible, a recommendation for a Council decision authorising it to negotiate a readmission agreement between the European Community and Macao. At the beginning of March 2001, the Commission submitted this recommendation and, on 15 March 2001, the Council formally adopted the new visa regulation (Council Regulation (EC) N° 539/2001) which entered into force on 10 April 2001.

At the beginning of July 2001, the Commission transmitted a draft Readmission Agreement text to the Macao authorities. Following written replies from Macao, and an informal meeting of technical experts in Brussels on 2 October 2001, a round of formal negotiations took place in Macao on 22 October 2001. The Agreement was initialled in Brussels on 18 October 2002, on the occasion of the 9th meeting of the EC-Macao Joint Committee.

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

For the Community, the legal basis for the Agreement is Article 63(3)(b), in conjunction with Article 300 of the TEC. As far as Macao is concerned, it is important to note that, after reunification in 1999, it is now part of the People's Republic of China but enjoys, according to its Basic Law, a high degree of autonomy over its internal affairs, including immigration controls on entry, stay and departure from the region (as a separate travel area and immigration territory).

The attached proposals constitute the legal instrument for the signature and conclusion of the Agreement. The Council will decide by unanimity (Article 300(2)(1) in conjunction with Article 67 of the EC Treaty). The European Parliament will have to be formally consulted on the conclusion of the Agreement, in accordance with Article 300(3) of the EC Treaty.

The proposed decision concerning the conclusion of the Agreement sets out the necessary internal arrangements for its practical application. In particular, it specifies that the Commission, assisted by experts from Member States, represents the Community within the Readmission 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 position 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 Readmission 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 Readmission 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 have been attained and that the draft Readmission Agreement is acceptable to the Community.

The final content of the Agreement can be summarised as follows:

- The Agreement is divided into 8 sections with 21 articles altogether. It also contains 6 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 manner, concerning own nationals and permanent residents respectively (Articles 2 and 4) as well as persons subject to another jurisdiction (Articles 3 and 5). They all contain a formulation clarifying that readmission shall take place without any formalities other than those specified in this Agreement. Although the definition of "persons subject to another jurisdiction" in Article 1(d) does not explicitly state that this term includes stateless persons, their inclusion has been ensured through a joint declaration.

- The obligation to readmit persons subject to another jurisdiction (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 of the requested Party, or (b) the person to be readmitted after having entered (lawfully or unlawfully) the territory of the requested Party proceeds to enter the territory of the requesting Party unlawfully directly from the territory of the requested Party. Exempted from these obligations are persons in airside transit and all persons to whom the requesting Party has issued a residence authorisation with a longer period of validity. The specific situation of persons merely transiting through Macao is also reflected in a joint declaration to the agreement.

- Under certain circumstances, the Macao SAR accepts the use of the EU's standard travel document for expulsion purposes (Article 2 para. 2 and Article 3 para. 3).

- 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 6) contains the necessary technical provisions regarding the readmission procedure (readmission application, means of evidence, time limits, transfer details and modes of transport). 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, a written communication only and 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 composition of the Readmission Committee and its tasks and powers are 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 Macao SAR. The relation between such implementing Protocols and this Agreement is clarified by Article 19.

- The final provisions (Articles 20 and 21) contain the necessary rules on entry into force, duration, termination and legal status of the annexes to the agreement.

- The specific situation of Denmark is reflected in the preamble, Article 1(a), Article 20 and in a joint declaration attached to the Agreement. The close association of Norway and Iceland with 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, the Commission proposes the Council to:

- 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 Macao SAR 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 Government of the Macao Special Administrative Region of the People's Republic of China 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(3)(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 [...] of [...], p. [...]

WHEREAS:

(1) By its decision of 28 May 2001, the Council authorised the Commission to negotiate an agreement between the European Community and the Government of the Macao Special Administrative Region of the People's Republic of China on the readmission of persons residing without authorisation.

(2) Negotiations for the Agreement took place in Macao in October 2001.

(3) Subject to its possible conclusion at a later date, the Agreement initialled in Brussels on 18th October 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 Macao Special Administrative Region of the People's Republic of China on the readmission of persons residing without authorisation.

Done at Brussels,

For the Council

The President