Initiative of the Italian Republic with a view to adopting a Council Decision on the organisation of joint flights for removals of third-country nationals illegally present in the territory of two or more Member States

(2003/C 223/04)

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 Comprehensive Plan to combat illegal immigration and trafficking of human beings in the European Union(1), adopted on 28 February 2002, states that readmission and return policy is an integral and vital component of the fight against illegal immigration. To that end, the plan emphasises the necessity of highlighting a number of practical measures, including the establishment of a joint approach and cooperation between Member States with regard to the implementation of return measures. Common standards should therefore be adopted for return procedures.

(2) The plan for the management of the external borders of the European Union, approved by the Council on 13 June 2002, provides for rational repatriation operations as one of the measures and actions for the integrated management of the external borders of the Member States of the European Union.

(3) The Return Action Programme, approved by the Council on 28 November 2002, recommends - as one of the measures and actions with regard to improved operational cooperation among Member States - that the return of third-country nationals illegally resident in a Member State should be made as efficient as possible by sharing existing capacities for such removal.

(4) Member States are to implement this Decision with due respect for human rights and fundamental freedoms, and in particular for the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading treatment or Punishment of 10 December 1984, the Geneva Convention of 28 July 1951 and the New York Protocol thereto of 31 January 1967, relating to the Status of Refugees, the Convention on the Rights of the Child of 20 November 1989, and the Charter of Fundamental Rights of the European Union of 18 December 2000(2).

(5) 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 does not take part in the adoption of this Decision, and is therefore not bound by it or subject to its application. However, given that this Decision aims to build upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark, in accordance with Article 5 of the abovementioned Protocol, is to decide within a period of 6 months after the Council has adopted this Decision, whether it will transpose it into its national law.

(6) As regards the Republic of Iceland and the Kingdom of Norway, this Decision 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(3), 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(4). As a result of the procedures laid down in the Agreement, the rights and obligations arising from this Decision should also apply to those two States and in relations between those two States and the Member States of the European Community to which this Decision is addressed.

(7) 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 Decision and therefore, without prejudice to Article 4 of that Protocol, are not bound by it or subject to its application,

HAS ADOPTED THIS DECISION:

Article 1

Purpose

The purpose of this Decision is to rationalise operations for removals of third-country nationals who are the subject of removal orders taken by two or more Member States, through the organisation of joint flights.

Article 2

Definitions

For the purposes of this Decision:

(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) "national authority": means the authority in each Member State which is responsible for organising flights for removals of third-country nationals who are the subject of removal orders;

(c) "joint flight": means the transport of third-country nationals who are the subject of removal orders in two or more Member States, carried out by the air carrier for the purpose stated;

(d) "escort": means the personnel of two or more Member States responsible for accompanying third-country nationals, who are the subject of removal orders, on a joint flight, including persons responsible for medical care and interpreters.

Article 3

Designation of national authorities

Each Member State shall designate within its competent national authorities an authority responsible for organising joint flights for third-country nationals who are the subject of removal orders from national territory.

Article 4

Organisation of joint flights

The national authorities shall adopt the measures necessary to ensure that joint flights are conducted properly. In particular they shall:

(a) inform the other Member States in good time whenever joint flights are organised, indicating the number of seats available on board the plane used;

(b) notify the national authority organising the flight whether or not they wish to participate in the joint flight;

(c) having contacted the other national authorities, arrange a preliminary meeting with representatives of the participating Member States, where this is necessary for the organisation of the joint flights;

(d) establish the organisational details, the procedures to be followed and the numbers of third-country nationals, who are the subject of removal orders, and escort personnel, including medical staff and interpreters, to be carried on the joint flight;

(e) identify the air carrier to be used for the joint operation for the removal of the said third-country nationals;

(f) obtain the necessary authorisation for the joint flight from the competent authorities of the third country for which the flight is bound;

(g) establish with the selected carrier the cost of the return operation, indicating expenditure arising from the chartering of the aircraft, catering, and any additional costs, and determine how costs are to be shared among the Member States taking part in the joint flight, dealing directly with those concerned;

(h) appoint the leader of the escort for the joint flight;

(i) ensure that the air carrier selected submits the relevant flight plan, having obtained the necessary flyover, landing and, where required, transit authorisations, and that it provides assistance to the said third-country nationals and the escort personnel on the flight throughout the entire transport operation.

Article 5

Decisions on escort personnel

1. The national authorities shall obtain the following information before such flights are organised:

- whether the third-country national concerned has a criminal record, with particular reference to the type of offence that the person has committed, if any;

- third-country nationals' behaviour while detained in facilities provided for under the respective national legislation before removal or otherwise during the time spent pending adoption of the removal orders (for example, aggressive, rebellious or violent behaviour).

2. Once the information referred to in paragraph 1 has been obtained, the national authorities shall assess the level of risk attaching to the operation. On the basis of that assessment the nature and number of the staff to be deployed shall be determined, using personnel specially trained in advance.

In the case of any third-country nationals on board who may seriously disrupt the flight, arrangements shall be made for an appropriate escort service capable of dealing with violent behaviour which could endanger the safety of the flight itself.

Article 6

Monitoring implementation

Member States shall take the necessary steps to appoint their representatives to participate in the proceedings of a special committee tasked with monitoring implementation of this Decision.

Article 7

Application

This Decision shall apply from the thirtieth day following that of its publication in the Official Journal of the European Union.

Article 8

Addressees

This Decision 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 142, 14.6.2002, p. 23.

(2) OJ C 364, 18.12.2000, p. 1.

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

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