Proposal for a COUNCIL DECISION on the conclusion, on behalf of the European Community, of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organised Crime

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. BACKGROUND

In its Resolution 53/111 of 9 December 1998, the United Nations' General Assembly (UNGA) decided to establish an open-ended intergovernmental ad-hoc committee charged with elaborating a Convention against transnational organised crime (UNTOC), supplemented by three Protocols

- to prevent, suppress and punish trafficking in persons, especially women and children (Trafficking Protocol);

- against the smuggling of migrants by land, air and sea (Smuggling Protocol); and

- against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition (Firearms Protocol).

The first formal session of the ad-hoc committee took place in Vienna in January 1999.

In July 1999, the Commission presented to the Council a recommendation for a Council decision authorising it to negotiate all the elements of the UNTOC and the Smuggling Protocol that are subject to Community competence.

In response to these recommendations, the Council authorised the Commission to negotiate the draft UNTOC [1] and the draft Smuggling Protocol [2].

[1] Decision of 2 May 2000.

[2] Decision of 14 February 2000.

The Commission actively participated in the UN negotiations in Vienna, in close co-operation with EU Member States and non-EU G8 countries. Negotiations on the UNTOC were completed in July 2000 while the finalisation of the Smuggling Protocol took until October 2000. The UNGA adopted these instruments at its 55th session on 15 November 2000 [3] and opened them for signature.

[3] UN General Assembly Resolution A/RES/55/25

The Italian Government hosted, from 12 to 15 December 2000, a high-level political conference in Palermo for the purpose of signing the UNTOC and the Smuggling Protocol. Since the Commission, in conformity with the negotiating directives issued to it, had successfully negotiated for these instruments not only to be open for signature by States but also by regional economic integration organisations, such as the EC, the Council authorised the signing, on behalf of the European Community, of the UNTOC and the Smuggling Protocol during this conference. [4] On 12 December 2000, the European Community formally signed these instruments in Palermo, along with all EU Member States.

[4] Council Decision 2001/87/EC, OJ L 30 of 1.2.2001, p. 44.

The UNTOC [will enter] [entered] into force on 29 September 2003. The Smuggling Protocol has not yet entered into force, which requires its ratification by at least 40 States. According to their final provisions, the Protocol cannot enter into force before the Convention and in order to become a Party to a Protocol, a State or a regional economic integration organisation must also become a Party to the Convention. For that reason a draft Council Decision on the conclusion, on behalf of the European Community, of the UNTOC is tabled in parallel with the present document.

A regional economic integration organisation cannot ratify the Smuggling Protocol before at least one of its Member States has already done so. Of the 15 EU Member States, Spain (on 1 March 2002) and France (on 29 October 2002) have already deposited a document of ratification for the UNTOC, the Smuggling and Trafficking Protocols with the UN Secretariat General; the other Member States are still in the process of ratification.

2. OUTCOME OF NEGOTIATIONS ON THE SMUGGLING PROTOCOL

The Commission considers that the objectives set by the Council in its negotiating directives have been well attained.

The Smuggling Protocol contains several provisions which fall under Community competence (Title IV TEC). These provisions are generally consistent with the relevant Community acquis in the field of asylum, immigration and external borders, and in particular with the "Schengen" acquis, as defined by Council Decision 1999/435/EC of 20 May 1999 [5], and a number of them even have an identical wording.

[5] OJ L 176 of 10 July 1999, p. 1

The Protocol's provision on measures to be taken at borders includes the possibility of a closer co-operation between border control authorities and the imposition of sanctions against carriers. As provided for in the negotiating directives, these border-related measures are of a standard that complies with the acquis communautaire, in particular with Articles 26 and 27 (1) of the Convention implementing the Schengen Agreement of 14 June 1985 [6] and supplementing secondary legislation [7]. In conformity with the negotiating directives, the Protocol also contains provisions requiring the Contracting Parties to control the security and quality of their travel and identity documents, including visa, and to verify the legitimacy and validity of such documents where there is a suspicion that they are being used for the purposes of trafficking in persons or the smuggling of migrants. This obligation is in line with the acquis communautaire, in particular Council Regulation (EC) N° 1683/95 [8], as amended by Regulation (EC) N° 334/2002 [9], on a uniform format for visas. The Protocol also includes a saving clause which clarifies that the provisions of the Protocol are without prejudice to the obligations of States under International law, including the 1951 Geneva Convention and the 1967 Protocol relating to the status of refugees and the principle of non-refoulment contained therein. Although the EC is not a Party to the said Convention, it is bound by its content in particular through Article 63 point 1 TEC.

[6] OJ L 239 of 22 September 2000, p. 19

[7] Council Directive 2001/51/EC of 28 June 2001, OJ L 187 of 10 July 2001, p. 45

[8] OJ L 164 of 14 July 1995, p. 1

[9] OJ L 53 of 23 February 2002, p. 7

Finally, the Protocol's obligations for States with regard to facilitating and accepting the return and repatriation of persons who are their own nationals or holding a permanent residence authorisation for their territories are in line with the Community's ongoing negotiations on the conclusion of agreements with third-countries on the readmission of persons illegally entering or staying on the territories of Member States.

3. SPECIAL POSITION OF THE UNITED KINGDOM, IRELAND AND DENMARK

The provisions of the Smuggling Protocol which are subject to Community competence, fall within the scope of Part III, Title IV of the Treaty establishing the European Community.

Pursuant to Article 1 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom and Ireland will not be bound by these provisions as part of the Community unless they "opt-in" in the manner provided by the Protocol.

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not bound by these provisions as part of the Community.

4. CONCLUSIONS

The Smuggling Protocol is the first global instrument on the fight against transnational organised crime and smuggling of migrants. It sets a very useful multilateral framework and a variety of important minimum standards for all participating States. Consequently, the European Community has a high interest in seeing it enter into force as soon as possible. Completing the process of ratification by the European Community sends a clear signal that the Community is committed to the aims of this instrument.

The attached proposal for a Council Decision constitutes the legal instrument for the conclusion of the Smuggling Protocol by the European Community, the legal basis for which can be found in Articles 62 and 63 in conjunction with Article 300 TEC. The proposal contains a first Article that approves the Protocol on behalf of the European Community. The second Article authorises the President of the Council to designate the person empowered to deposit, on behalf of the European Community, the instrument of approval. The text of the Protocol appears in Annex I. Annex II comprises the declaration on the extent of the European Community's competence with respect to matters governed by the Protocol, which has to be deposited together with the instrument of approval (Art. 21 (3) Smuggling Protocol).

The Council will decide by unanimity after consulting the European Parliament (Article 300(2) first subparagraph in conjunction with Article 67 TEC, Article 300 (3) first subparagraph TEC).

The Commission accordingly proposes that the Council adopt the attached Decision.

2003/0196 (CNS)

Proposal for a COUNCIL DECISION on the conclusion, on behalf of the European Community, of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organised Crime

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 62 point 2 and 63 point 3, in conjunction with the first subparagraph of Article 300(2) and first subparagraph of Article 300(3) thereof;

Having regard to the proposal from the Commission, [10]

[10] OJ, p.

Having regard to the opinion of the European Parliament [11],

[11] OJ , p.

Whereas:

(1) The elements of the Protocol which are subject to Community competence were negotiated by the Commission, with the approval of the Council, on behalf of the Community,

(2) The Council instructed the Commission to negotiate the accession of the Community to the international agreement in question,

(3) Negotiations were successfully concluded and the resulting instrument has been signed by the Community on 12 December 2000 in accordance with Council Decision (2001/87/EC) of 8 December 2000 [12],

[12] OJ L 30 of 1.2.2001, p. 44

(4) Some Member States are parties to the Protocol while the ratification process is under way in other Member States,

(5) The provisions of the Protocol, which are subject to Community competence, fall within the scope of Part III, Title IV of the Treaty establishing the European Community,

(6) Pursuant to Article 1 [Article 3] of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom and Ireland [are] [are not] participating in the adoption of this decision and, consequently, [will] [will not] be bound by the provisions of the Protocol, which are subject to Community competence, as part of the Community,

(7) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark will not be bound by the provisions of the Protocol, which are subject to Community competence, as part of the Community,

(8) The conclusion of the Convention was approved on behalf of the European Community by Council Decision (.../.../EC) of ... [13] which is a condition for the European Community to become a Party to the Protocol, pursuant to Article 37 (2) of the Convention,

[13] OJ , p.

(9) The other conditions permitting the Community to deposit the instrument of approval provided for in Article 36 (3) of the Convention and Article 21 (3) of the Protocol have been fulfilled,

(10) The Protocol should be approved to enable the Community to become a party to it within the limits of its competence,

(11) The Community must, when depositing the instrument of approval, also deposit a declaration on the extent of the European Community's competence with respect to matters governed by the Protocol under Article 21 (3) of the Smuggling Protocol,

HAS DECIDED AS FOLLOWS:

Article 1

The Protocol against the smuggling of migrants by land, air and sea, supplementing the United Nations Convention against transnational organised crime, as set out in Annex I, is hereby approved on behalf of the European Community.

The Community's instrument of formal confirmation shall comprise a declaration of competence according to Article 21 (3) of the Protocol as set out in Annex II.

Article 2

The President of the Council is authorised to designate the person empowered to deposit the instrument of formal confirmation in order to bind the Community.

This Decision shall be published in the Official Journal of the European Union.

Done at Brussels,

For the Council,

The President

ANNEXES

ANNEX I will include the text of the Protocol.

ANNEX II

DECLARATION CONCERNING THE COMPETENCE OF THE EUROPEAN COMMUNITY WITH REGARD TO MATTERS GOVERNED BY THE Protocol AGAINST the smuggling of migrants by land, air and sea, SUPPLEMENTING THE UNITED NATIONS CONVENTION against transnational organised crime

Article 21 (3) of the Protocol provides that the instrument of accession of a regional economic integration organisation shall contain a declaration specifying the matters governed by the Protocol in respect of which competence has been transferred to the organisation by its Member States which are Parties to the Protocol.

The Protocol against the smuggling of migrants by land, air and sea shall apply, with regard to the competences transferred to the European Community, to the territories in which the Treaty establishing the European Community is applied and under the conditions laid down in that Treaty, in particular Article 299 thereof and the Protocols annexed to it.

Pursuant to Article 1 [Article 3] of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom and Ireland [will not] [will] be bound by the provisions of the Protocol, which are subject to Community competence, as part of the Community. Consequently this declaration [is not] [is] applicable to the territories of the United Kingdom and Ireland.

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark will not be bound by the provisions of the Protocol, which are subject to Community competence, as part of the Community.

Pursuant to Article 299, this declaration is also not applicable to the territories of the Member States in which the said Treaty does not apply and is without prejudice to such acts or positions as may be adopted under the Protocol by the Member States concerned on behalf of and in the interests of those territories. In accordance with the provision referred to above, this declaration indicates the competence that the Member States have transferred to the Community under the Treaties in matters governed by the Protocol. The scope and the exercise of such Community competence are, by their nature, subject to continuous development, and the Community will complete or amend this declaration, if necessary, in accordance with Article 21 (3) of the Protocol.

The Community points out that it has competence with regard to crossing of external borders of the Member States, regulating standards and procedures when carrying out checks on persons at such borders and rules on visas for intended stays of no more than three months. The Community is also competent for measures on immigration policy regarding conditions of entry and residence and measures to counter illegal immigration and illegal residence, including repatriation of illegal residents. Relevant Community legislation is comprised in the Schengen acquis on external borders and on travel and identity documents, as integrated into the framework of the European Community, and its further development. Hence in these fields it is for the Community to adopt the relevant rules and regulations and, within its competence, to enter into external undertakings with third States or competent international organisation.