Initiative of the Republic of Finland with a view to the adoption of a Council Regulation determining obligations as between the Member States for the readmission of third-country nationals
Date: 1999-12-07
Institutions: Finland
Subjects: EC Regulation, EU visa policy, Finland, admission of aliens, foreign national, residence permit

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Official Journal of the European Communities

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II

(Preparatory Acts pursuant to Title VI of the Treaty on European Union)

COUNCIL

Initiative of the Republic of Finland with a view to the adoption of a Council Regulation deter-
mining obligations as between the Member States for the readmission of third-country nationals

(1999/C 353/05)

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 Republic of Finland,

Having regard to the opinion of the European Parliament (1),

Whereas:

(1) Community immigration policy in the area referred to in
Article 63(3)(b) of the Treaty includes measures concerning
the repatriation of illegal residents and this requires taking
measures on readmission in general;

(2) The European Council meeting in Tampere on 15 and 16
October 1999 agreed that, among the elements to be
included in the development of a common policy on
asylum and immigration, consideration should be given
to rules on readmission between the Member States;

the fact

(3) This Regulation builds on the Schengen acquis within the
meaning of the Protocol
integrating the Schengen acquis
into the framework of the European Union, especially in
the Member States are under an
view of
obligation,
the
Convention of 19 June 1990 implementing the Schengen
Agreement, to return third-country nationals found illegally
present on their territories to their countries of origin or to
another third country which they may lawfully enter;

in accordance with Article 23 of

that

(4) It

is therefore appropriate to determine which Member
State should be under the obligation to return such third-
country nationals;

(5) It should, however, remain as a priority that Member States
return third-country nationals found illegally present on
their territories to their countries of origin or to another
third country which they are entitled to enter;

(6) It is also appropriate to determine which Member State
should be under the obligation to readmit third-country
nationals for the purpose of implementing a readmission
agreement concluded by the Community;

(7) This Regulation should not affect the Member States’ obli-
on

from international

agreements

gations
extradition and transit;

arising

(8) In so far as personal data is communicated under this
Regulation the procedure, content and the way of using
this information must be in accordance with Directive
95/46/EC of the European Parliament and of the Council
of 24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free
movement of such data (2);

(9) The measures necessary for the implementation of

this
Regulation are to be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
implementing powers
the exercise of
procedures
conferred on the Commission (3),

for

HAS ADOPTED THIS REGULATION:

Article 1

Purpose and scope

The purpose of

1.
this Regulation is to determine obli-
gations as between the Member States for the readmission of
third-country nationals.

This Regulation shall apply to situations where a third-
2.
country national does not
the
conditions in force for entry to, or residence on, the territory
of a Member State.

fulfil, or no longer fulfils,

3.
The provisions of this Regulation, with the execption of
Articles 7 and 10, shall also apply when a Member State has
readmitted a third-country national pursuant to a Community
readmission agreement or any other similar arrangements.

(1) Opinion delivered on . . . (not yet published in the Official Journal).

(2) OJ L 281, 23.11.1995, p. 31.
(3) OJ L 184, 17.7.1999, p. 23.

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This Regulation shall not apply to a third-country
4.
national whose right to reside in the territory of a Member
State derives
the Agreement on the
European Economic Area.

from the Treaty or

5.
Nothing in this Regulation shall prevent a Member State
from returning a third-country national, who does not fulfil, or
no longer fulfils,
the conditions in force for entry to, or
to his
residence on,
country of origin or to another third country which he is
entitled to enter.

that Member State,

the territory of

Article 2

Definitions

For the purposes of this Regulation:

(a) (cid:145)third-country national(cid:146) means a person who is not a citizen
of the Union, as referred to in Article 17 of the Treaty;

(b) (cid:145)residence permit(cid:146) means a decision by the competent auth-
orities of a Member State allowing a third-country national
to stay on its territory, with the exception of visas and leave
to stay granted during the examination of an application
for a residence permit or for asylum;

(c) (cid:145)visa(cid:146) means a decision by a Member State with a view to
authorising a third-country national to enter its territory, or
the Member States bound by the
the territory of all
Convention implementing the Schengen Agreement.
It
shall not include a transit visa or an airport-transit visa.

Article 3

Criteria for readmission

The criteria set out in Articles 4 to 10 shall apply in the order
in which they appear for the purpose of determining which
Member State is under the obligation to readmit a third-
country national pursuant to this Regulation.

Article 4

Valid residence permit

Where a third-country national
is in possession of a valid
residence permit, the Member State which issued the permit
shall be obliged to readmit the third-country national.

Article 5

Valid visa

Where a third-country national is in possession of a valid visa,
the Member State which issued the visa shall be obliged to
readmit the third-country national.

Article 6

More than one valid residence permit or visa

Where a third-country national is in possession of more than
one valid residence permit or visa issued by different Member
States, the obligation for readmission shall be assumed by the
Member States in the following order:

(a) the Member State which issued the residence permit
conferring the right to the longest period of residence or,
where the periods of validity of all the permits are identical,
the Member State which issued the residence permit having
the latest expiry date;

(b) the Member State which issued the visa having the latest
expiry date where the various visas are of the same type,
whether they enable a third-country national to enter the
territory of one Member State or the territory of all the
Member States bound by the Convention referred to in
Article 2(c);

(c) where the visas are of differents kinds, the Member State
which issued the visa conferring the longest period of stay,
or, where the periods of stay are identical, the Member
State which issued the visa having the latest expiry date.

Article 7

Expired residence permit or visa

The readmission obligation referred to in Articles 3, 4, 5
1.
and 6 shall also apply where a third-country national
is in
possession of one or more residence permits which have
expired less than two years previously, or one or more visas
which have expired less than six months previously.

2.
In the case of a residence permit ora visa issued by a
Member State with a view to authorising the third-country
national to enter its own territory, the obligation referred to
in paragraph 1 shall apply only if the third-country national
entered the territory of the Member State which issued the
residence permit or
their
validity; the latter condition shall not apply in the case of a
visa issued by a Member State with a view to authorising the
third-country national to enter the territory of all the Member
States bound by the Convention referred to in Article 2(c).

the visa during the period of

3.
The readmission obligation referred to in paragraph 1
shall apply only for such time as the third-country national
has not left the territory of the Member States.

Article 8

Irregular entry

1. When it can be proved that a third-country national has
irregularly crossed the border into a Member State by land, sea
or air, having come from a third country, that Member State
shall be obliged to readmit the third-country national.

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The Member State referred to in paragraph 1 shall cease
2.
to be under such an obligation, however, if it is proved that the
third-country national has been living in another Member State
for at least six months before it was established that he does
not fulfil, or no longer fulfils, the conditions in force for entry
or residence. In that case it is the latter Member State which
shall be obliged to readmit the third-country national.

Article 12

Time limits for readmission

1.
The application for readmission shall be submitted to the
competent authorities of the requested Member State no later
than six months after
the
requesting Member State have become aware that the third-
country national may be illegally present on its territory.

the competent authorities of

Article 9

Responsibility for checks at external borders

1.
The obligation for readmission shall be incumbent on the
Member State responsible for controlling the entry of the third-
country national onto the territory of the Member States.

2.
The requested Member State shall reply to readmission
requests addressed to it as soon as possible and, in any event,
within one month. Failure to act within that period shall
amount to acceptance of the application.

2.
Notwithstanding paragraph 1, if a third-country national,
after lawfully entering a Member State in which he is not
subject to a visa requirement, has entered another Member
State in which he is not subject to a visa requirement, the
latter Member State shall be under the obligation to readmit
him.

3.
The requested Member State shall take charge of third-
country nationals whose readmission has been agreed to
in any event, within one month. On
without delay and,
application by the requesting Member State, this time limit
may be extended as necessary to deal with legal requirements
or practical difficulties.

Article 10

Enforcing return

for

the third-country national

When a Member State has started to enforce the necessary
measures
to return to his
country of origin or to another country which he is entitled
it is that Member State which shall be under the
to enter,
obligation for
the third-country
so long as
national has not left the territory of the Member States.

readmission,

Article 11

Proof of entry

1.
For the purposes of Articles 8 and 9 the entry onto the
territory of Member States may be proved conclusively by the
following means:

(a) an entry stamp affixed to the travel document by a

competent authority of a Member State;

(b) an exit stamp of a third State adjacent to a Member State,
taking into account the travel route and date of frontier
crossing;

(c) travel tickets, which are capable of formally establishing

entry;

(d) an embarkation/disembarkation card showing the date of

entry into the territory of a Member State.

2.
The entry onto the territory of Member States may also
be established by indicative evidence. The existence of such
evidence shall establish a presumption of entry.

Article 13

Transit

if

third-country
A Member State shall allow the transit of
nationals
requested by another Member State and if
admission by the Member State responsible for readmission
and, where applicable, transit via any other Member State are
assured.

Article 14

Costs

All

1.
transport costs incurred in connection with read-
mission as far as the border of the Member State which is
under the obligation to readmit, in so far as they cannot be
recovered from the person or carrier concerned, shall be borne
by the Member State requesting readmission.

relating to the
2. Member States
assistance given by their own authorities during transit
through their territory.

shall bear

the costs

Article 15

Data protection

In so far as personal data have to be communicated in
this Regulation, such information may

1.
order to implement
concern only the following:

the person to be readmitted and, where
(a) particulars of
necessary, of
family
the members of
(surname, any patronymic, forename, any previous names,
nicknames or pseudonyms, aliases, date and place of birth,
sex, current and any previous nationality);

the person’s

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(b) passport,

identity card and other

identity and travel
documents and laissez-passer (number, period of validity,
date of issue, issuing authority, place of issue, etc.);

(c) other details necessary for identifying the persons to be
readmitted or for checking whether the conditions for read-
mission pursuant to this Regulation have been met, such as
fingerprints and photographs;

(d) stopping places and itineraries;

(e) residence permits or visas issued.

2.
Data which have been communicated and are then erased
by the communicating authority must also be erased by the
recipient authority within six months after the data is no
longer necessary for the purposes of this Regulation.

Article 16

Implementing measures

Further measures necessary for implementing this Regulation
shall be adopted in accordance with Article 17, including in
particular:

(a) the procedure for reciprocal notification and the prac-

ticalities invovled;

(b) the information to be contained in readmission and transit

applications;

(c) the documentation and indicative

the
presumption required for readmission and the value to be
attributed to such material;

evidence

for

mendation of 30 November 1994 concerning the adoption
of a standard document for the expulsion of third-country
nationals (1).

Article 17

Management committee

The Commission shall be assisted by a management

1.
committee.

2. Where reference is made to this Article, the management
procedure laid down in Article 4 of Council Decision
1999/468/EC shall apply.

The period referred to in Article 4(3) of Decision 1999/468/EC
shall be three months.

3.

The committee shall adopt its own rules of procedue.

Article 18

Entry into force

This Regulation shall enter into force on the day following its
publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly
applicable in the Member States,
in accordance with the
Treaty establishing the European Community.

(d) designation of the authorities responsible for implementing

this Regulation;

(e) cost arrangements, and

(f) general implementing measures relating to the use of the
standard travel document, attached to the Council recom-

Done at . . .

For the Council

The President

(1) OJ C 274, 19.9.1996, p. 18.