WRITTEN QUESTION E-0488/02

by Glyn Ford (PSE) to the Commission

(22 February 2002)

Subject: Carriers' liability

On 13 March 2001, Antonio Vitorino stated that carriers' liability legislation may be an efficient tool in fighting illegal immigration and that it would be necessary, in the long run, to take the matter even further and look coherently at all means of transport, including freight transport. Since then, a number of developments have taken place.

On 1 October 2001, the Austrian Constitutional Court declared that the country's carriers' liability law was unconstitutional and therefore null and void. The Austrian Supreme Court noted that carriers were delegated a number of tasks normally performed by officials at immigration desks and that it was therefore not clear how they could avoid depriving asylum-seekers of their right to claim protection as guaranteed under the 1951 Geneva Convention.

Taking these factors into consideration, does the European Commission still support the views expressed by Commissioner Vitorino in favour of carriers' liability legislation?

Joint answerto Written Questions E-0488/02, E-0489/02, E-0490/02, E-0491/02, E-0492/02and E-0493/02 given by Mr Vitorino on behalf of the Commission

(4 April 2002)

All six questions posed by the Honourable Member relate directly to the issue of carriers liability and should therefore be answered jointly.

On the general issues raised by the Honourable Member:

- The fight against illegal immigration is a policy issue of the highest importance in all Member States as well as beyond Union borders. In its recent Communication to the Council and the Parliament on a common policy on illegal immigration(1) the Commission has highlighted that the scale of the problem of illegal immigration is unlikely to diminish in the near future. This view was confirmed by the Action Plan on illegal immigration and trafficking of human beings adopted on 28 February 2002 by the Justice and Home Affairs Council. At the same time, the Commission underlined, in particular in its Communication on a common asylum procedure and uniform status, valid throughout the Union, for those granted asylum(2), that one of the objectives of such a procedure and status was to find a proper balance between the full respect of the specificity of humanitarian admission and the legitimate aims of preventing and fighting against illegal immigration.

- For the moment, the issue of carriers' liability is not yet fully harmonised at European level. Article 26 of the Schengen Convention as supplemented by the recently adopted Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985(3) contains certain provisions on carriers' liability. However, these provisions only cover passenger transport, not goods transport; moreover, rail transport is only partly covered and Member States have a wide discretion in implementing these provisions. It is to be noted that this Directive contains a safeguard clause ensuring that penalties imposed are without prejudice to Member States' obligations in cases where a third country national seeks international protection.

- With this in mind, the Commission has supported as a useful initiative the organisation of a Round Table on Carriers Liability on 30 November 2001. This Round Table brought together representatives from Member States, transport industry, European institutions, humanitarian organisations and other interested parties, to discuss the issue of carriers liability and illegal immigration and to reflect on possible ways forward at a European level. Taking into account the success of this Round Table and the fact that several issues deserve further in-depth consideration, the Commission decided to continue this exercise. A series of expert meetings in 2002, focusing on topics identified in the course of discussions at the Round Table, has already been scheduled.

- In substance, the Commission considers that three main issues need to be examined and made compatible: to look for common European solutions, to ensure compatibility with the letter and the spirit of the Geneva Convention and to assure that the free movement of goods and persons within the Common Market is not unduly hampered, whilst avoiding excessive burdens on industry.

On the detailed points raised by the Honourable Member:

- Question E-0488/02: The Austrian Constitutional Court has indeed recently quashed certain provisions of the national Austrian carriers liability legislation. In its judgement, the Austrian Constitutional Court criticised, based on Article 18 of the Austrian Constitution, the lack of legal clarity and certainty of the quashed provisions, but it did not challenge the principle of carriers liability as a means of restricting illegal immigration. This judgement does not change the Commission's view that carriers liability legislation may be an efficient tool in fighting illegal immigration but that attention must be given to a careful drafting of such legislation, in view of taking into account all aspects involved. As already mentioned above, this issue is currently being further examined within the Round Table process on carriers' liability.

- Question E-0489/02: The Commission considers that it is possible for Member States to adopt carriers liability laws and to respect, at the same time, the obligations to which they subscribed under the 1951 Geneva Convention. The challenging task of respecting the humanitarian dimension when drafting and applying carriers liability rules will be one of the topics to be examined in depth by experts within the above-mentioned Round Table process on carriers liability.

- Question E-0490/02: The difference is that in the first case (repatriation), the asylum seeker has already entered the territory and jurisdiction of a Member State, whilst in the second case (refusal to board a flight) the potential asylum seeker is still on the territory of a third country. This is relevant for the rules applicable to the asylum seeker concerned.

- Question E-0491/02: Carriers liability legislation must not be seen as an isolated phenomenon. It is one policy instrument, used in the wider context of regulating and managing migration flows. In its above-mentioned Communication on a common policy on illegal immigration the Commission has proposed a wide ranging set of measures ranging from pre-frontier measures (e.g. awareness raising campaigns) to criminal law (fight against smuggling and trafficking of human beings) which will help to prevent the risk raised by the Honourable Member.

- Question E-0492/02: It is unavoidable that control measure may bring about discomfort for travellers. The Commission is confident and has underlined this in its above-mentioned Communication on a common policy on illegal immigration that the possibilities of modern technology and telecommunication will improve the efficiency and targeting of control measures and thereby reduce inconveniences.

- Question E-0493/02: Following the mandate given to it by the Tampere European Council of 15 and 16 October 1999, absolute respect of the right to seek asylum is to be reaffirmed and the full and inclusive application of the Geneva Convention on refugees is the basis of the Common European Asylum System, being established. The Commission has elaborated in close contact with Member States and other interested parties several legislative proposals defining and harmonising the rules applicable to asylum seekers, refugees and other persons in need of international protection in the Union. The Commission hopes that discussion of these proposals in Council will result in a well-balanced set of European rules on asylum. The Commission believes that in addition to these negotiations, there is scope for reflecting at European level on ways and means to allow those who are genuinely in need of international protection to have safer and more orderly access to the Union territory. That is why studies are being launched with a view to examine issues such as processing asylum claims outside the Union and resettlement schemes.

(1) COM(2001) 672 final.

(2) COM(2000) 755 final.

(3) OJ L 187, 10.7.2001.