Initiative of the Italian Republic with a view to adopting a Council Directive on assistance in cases of transit through the territory of one or more Member States in the context of removal orders taken by Member States against third-country nationals

(2003/C 223/05)

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 Italian Republic,

Having regard to the Opinion of the European Parliament,

Whereas:

(1) The Council Recommendation of 22 December 1995 on concerted action and cooperation in carrying out removal measures(1) and the Decision of the Executive Committee of 21 April 1998 on cooperation between the Contracting Parties in returning third-country nationals by air (SCH/Com-ex (98) 10)(2) already address the need for cooperation between Member States in the field of removal by air of third-country nationals. Specific rules on the matter have been laid down in Council Directive 2003/.../EC on assistance in cases of transit for the purposes of removal by air.

(2) There is a need to terminate the illegal residence of third-country nationals subject to final orders for removal from national territory, using direct and mutual-assistance procedures, in the field of removal, between the Member States.

(3) It is necessary to reach agreement among the Member States on mutual support and assistance in implementing return and readmission measures in cases of transit by air, sea and land in accordance with the Comprehensive Plan to combat illegal immigration and trafficking in human beings in the European Union, approved by the Council on 28 February 2002, and the Plan for the management of the external borders of the European Union(3) approved by the Council on 13 June 2002, which were confirmed by the Return Action Programme approved by the Council on 28 November 2002.

(4) The sovereignty of the Member States, particularly with regard to the use of direct force against third-country nationals resisting removal orders should remain unaffected.

(5) The measures necessary for the implementation of this Directive should 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(4).

(6) Member States are to implement this Directive with full respect for human rights and fundamental freedoms, as guaranteed in particular under the Geneva Convention relating to the status of refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, and under the European Convention for the Protection of Human Rights and Fundamental Freedoms. In accordance with the applicable international obligations, transit by air should be neither requested nor granted if in the third country of destination or transit 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 or membership of a particular social group or political conviction.

(7) 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 Directive builds upon the Schengen acquis under the provisions of Title IV of Part III 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 adoption of this Council Directive whether it will implement it in its national law or not.

(8) As regards the Republic of Iceland and the Kingdom of Norway, this Directive constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded on 18 May 1999 between the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis(5), which fall within the area referred to in Article 1, point (c) of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of that Agreement(6). As a result of the procedures laid down in the Agreement, the rights and obligations arising from this Directive will also 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.

(9) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union and to the Treaty establishing the European Community, these Member States are not taking part in the adoption of this Directive and therefore, subject to Article 4 of that Protocol, are not bound by it or subject to its application.

(10) This Directive constitutes an act building on the Schengen acquis or otherwise related to it within the meaning of Article 3(1) of the 2003 Act of Accession.

HAS ADOPTED THIS DIRECTIVE:

Article 1

Objective

The purpose of this Directive is to define measures on assistance between the competent authorities of the Member States in cases of escorted transit through the territory of one or more Member States of third-country nationals who are the subject of removal orders by a Member State.

Article 2

Definitions

For the purposes of this Directive:

(a) "third-country national" means 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) "requesting Member State" means the Member State which enforces a removal order in respect of a third-country national and requests transit by land through another Member State;

(c) "requested Member State" or "transit Member State" means the Member State through whose territory the escorted removal of third-country nationals who are the subject of removal orders by a Member State is to be effected;

(d) "transit through the territory" means the territory of a Member State through which third-country nationals who are the subject of removal orders are removed, including transfer between two ports of the Member States using regular sea-links;

(e) "carrier" means a natural or legal person that transports, on a professional basis or in an official capacity, third-country nationals who are the subject of removal orders by the Member States;

(f) "escort" personnel means the requesting or requested Member State's personnel responsible for accompanying the third-country national who is the subject of a removal order, including persons responsible for medical care and interpreters.

Article 3

General principles

1. Before removing third-country nationals, who are the subject to removal orders, through the territory of one or more Member States, Member States shall first examine whether it is possible to use direct air or sea links with the country of origin or destination of the said nationals.

2. The decision to remove a third-country national, who is the subject of a removal order, through the territory of one or more Member States shall be taken on the basis of practical considerations such as the geographical proximity to another Member State of the third-country national's country of origin or destination.

3. To this end, the requesting Member State may avail itself of the procedures provided for in any readmission agreements entered into bilaterally or multilaterally with the third-country national's country of origin or destination and between the Member States, or, in the latter case, in agreements on entry for transit purposes.

4. Without prejudice to the obligations referred to in Article 10, the requested Member States(s) may refuse transit through the territory of a Member State if:

(a) in accordance with existing legislation, the third-country national, who is the subject of a removal order, is subject to criminal proceedings in the requested Member State or has been condemned to serve a prison sentence in that State;

(b) transit through the territory of one or more Member States or admission to the third country of final destination is not possible for any reason;

(c) the requested assistance is impossible at a particular moment for practical reasons;

(d) the third-country national, who is the subject of a removal order, will be a threat to public security, public policy or public health or to the international relations of the requested Member State;

(e) the third country of origin or final destination has a border with the requesting Member State.

5. In the case referred to in paragraph 4(c), the requested Member State(s) shall as quickly as possible inform the requesting Member State of a date as close as possible to the originally requested date on which transit may be assisted, insofar as the other conditions are complied with.

6. Authorisations already issued for transit through the territory of one or more Member States may be withdrawn by the requested Member State(s) if the circumstances that may justify refusal of assistance during transit as referred to in paragraph 4 arise after the authorisations were granted.

7. The requested Member State(s) shall immediately notify the requesting Member State of the refusal or withdrawal of a transit authorisation under paragraphs 4 and 6 and shall provide an explanation of the reasons.

8. The above procedures and requirements shall apply in the same way in the case of transit by land through several Member States in succession.

Article 4

Request for transit

1. The request for transit through the territory of one or more Member States for the purpose of removing third-country nationals, who are the subject of removal orders, and the related assistance measures referred to in Article 7 shall be communicated in writing by the requesting Member State to the requested Member State(s) as soon as possible and in any case not later than two days before the transit. This time limit may be waived in particularly urgent and duly justified cases.

2. In the case of transit through several Member States, the requesting Member State shall at the same time communicate in writing the request for the actual transit and the related assistance measures in accordance with the procedures laid down in paragraph 1.

3. The requesting Member State shall in due course notify the requested Member State(s) in writing of the withdrawal of any request for transit.

4. Within two days of the request for transit through the territory of one or more Member States, the requested Member State(s) shall notify the requesting State of the acceptance or refusal of assistance; in the latter case, reasons shall be given for the refusal. The above time-limit may be extended in duly justified cases.

5. Where no reply is provided by the requested Member State(s) within the time-limit referred to in paragraph 4, the transit operations may be started by means of a notification by the requesting Member State.

6. Transit through the territory of a Member State may in no event take place without the approval of the requested Member State(s) or notification by the requesting Member State as referred to in paragraph 5.

Member States may provide on the basis of bilateral or multilateral agreements or arrangements for transit operations through the territory to be started by means of a notification by the requesting Member State.

Member States shall notify the Commission regarding the agreements and/or arrangements referred to in the second subparagraph. The Commission shall regularly report to the Council on such agreements and/or arrangements.

Article 5

Transit arrangements

1. The arrangements for transit through the territory of one or more Member States shall be communicated using the attached form, which must be transmitted to the requested Member State(s). The necessary measures for adjusting and amending that form, as well as the methods of transmission, shall be taken in accordance with the procedure set out in Article 11.

2. The Member States shall designate a central authority to be responsible for forwarding and receiving requests for assistance in cases of transit.

3. On the basis of bilateral or multilateral agreements or arrangements the Member States may establish the border posts through which third-country nationals who are the subject of removal orders are allowed to enter their territory in transit, making use of all existing opportunities for cooperation and, where provided for, of any common cross-border cooperation offices that may be set up at internal borders.

4. The requesting Member State shall indicate in the application form for transit the crossing point through which entry into the requested Member State is requested, the crossing points located at the borders with other Member States in the case of transit through several Member States, and the Member State's exit crossing point with the country of origin or destination of the third-country national who is being removed.

Article 6

Carriers used

1. For the purposes of transit through the territory of one or more Member States, use may be made of public carriers such as scheduled trains, ferries or buses or unmarked police vehicles.

2. Where police vehicles are used it may be agreed that transit through the territory of certain requested Member States shall be provided by police vehicles from those Member States.

Article 7

Assistance measures

1. The requesting Member State shall take appropriate arrangements to ensure that the transit operation takes place in the shortest possible time.

As a general rule, the transit operation shall take place within 36 hours.

2. The requested Member State(s) shall provide the requesting State with all possible assistance during transit.

This relates to the following assistance measures in particular:

(a) the competent personnel of the requested Member State(s) making direct contact with the third-country national, who is the subject of a removal order, and the escort upon entry into national territory;

(b) providing the said third-country national and, if necessary, escort personnel with assistance to ensure that the transit operation is completed successfully;

(c) emergency medical assistance for the said third-country national and escort personnel;

(d) assistance in the event of incidents while the said third-country national is in transit;

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

(f) communicating the details concerning the time and place of the transit operation and giving notice that the said third-country national has been finally removed from the territory of the Member States.

3. In accordance with the national legislation in force, the requested Member State(s) may:

(a) arrange accommodation for escort personnel and the third-country national, who is the subject of a removal order, with an appropriately secure facility for the latter;

(b) use legitimate means to prevent or end any attempt by the said third-country national to resist the transit.

4. Without prejudice to Article 8(1), in cases where the completion of transit operations cannot be ensured, despite the assistance provided for in accordance with paragraphs 1 and 2, the requested Member State may, upon request by and in consultation with the requesting Member State, take all the necessary assistance measures to continue the transit operation.

In such cases, the time-limit referred to in paragraph 1 may be extended by a maximum of 48 hours.

5. The competent authorities of the requested Member State with whom responsibility for the measure lies shall decide the nature and extent of the assistance afforded under paragraph 4.

6. The costs of the services provided according to paragraph 2(c), (d) and (e) shall be borne by the requesting Member State.

The remaining costs shall also be borne by the requesting Member State to the extent that they are actual and quantifiable. Where the requested Member State considers it necessary unilaterally to adopt further assistance measures for the security of the transit operation, the costs arising from the adoption of such measures shall be agreed with the requesting Member State for the purposes of any reimbursement.

Member States shall provide appropriate information with regard to the criteria of quantification of the costs referred to in the second subparagraph.

Article 8

Readmission by the requesting State

1. The requesting Member State shall readmit the third-country national, who is the subject of a removal order, to its territory at the earliest opportunity if:

(a) authorisation for transit through the territory of one or more Member States has been refused or revoked for the reasons mentioned in Article 3(4) and (6);

(b) the removal of the said third-country national to the country of origin or destination was unsuccessful;

(c) transit through the territory of one or more Member States cannot continue for any other reason.

2. The requested Member State shall assist with the readmission of the third-country national, who is the subject of a removal order, 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 said third-country national.

Article 9

Escorts

1. Removals in transit through the territory of one or more Member States shall take place with an escort.

2. When carrying out transit operations, the powers of escort personnel shall be limited to legitimate defence. In addition, in the absence of law-enforcement officers from the requested Member State, escort personnel may take reasonable and proportionate action to deal with a serious and immediate risk so as to prevent the third-country national, who is the subject of a removal order, from escaping or from causing injury to himself or to others or damage to property.

Under all circumstances escort personnel must comply with the legislation of the requested Member State.

3. Escort personnel shall not carry weapons during transit operations and shall wear civilian clothes. They shall have appropriate identification together with the transit authorisation issued by the Member States concerned or, where appropriate, the notification referred to in Article 4(5), at the request of the requested Member State.

Article 10

Safeguard clause concerning asylum

This Directive shall be without prejudice to the obligations arising from the Geneva Convention relating to the status of refugees of 28 July 1951 and the New York Protocol of 31 January 1967, from international conventions relating to human rights and fundamental freedoms and from the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Community and from international conventions on the extradition of persons.

Article 11

Committee procedure

1. The Commission shall be assisted by a committee.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at one month.

3. The Committee shall adopt its rules of procedure.

Article 12

Final clause

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 the Member States.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in order to implement this Directive.

Article 13

Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

Article 14

Addressees

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.

(2) OJ L 239, 22.9.2000, p. 193.

(3) OJ C 142, 14.6.2002, p. 23.

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

(5) OJ L 176, 10.7.1999, p. 36.

(6) OJ L 176, 10.7.1999, p. 31.