Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals
Date: 2001-05-28
Institutions: Council of the European Union
Subjects: EU Member State, cooperation policy, crime, foreign national, public safety, residence permit

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Official Journal of the European Communities

2.6.2001

COUNCIL DIRECTIVE 2001/40/EC

of 28 May 2001

on the mutual recognition of decisions on the expulsion of third country nationals

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 63(3) thereof,

(7)

Having regard to the initiative of the French Republic (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

The Treaty stipulates that the Council is to adopt meas-
ures on immigration policy within areas comprising
conditions of entry and residence as well as illegal immi-
gration and illegal residence.

The Tampere European Council on 15 and 16 October
1999 reaffirmed its resolve to create an area of freedom,
security and justice. For that purpose, a common Euro-
pean policy on asylum and migration should aim both
at fair treatment of third country nationals and better
management of migration flows.

The need to ensure greater effectiveness in enforcing
expulsion decisions and better cooperation between
Member States entails mutual recognition of expulsion
decisions.

Decisions on the expulsion of third country nationals
have to be adopted in accordance with fundamental
rights, as safeguarded by the European Convention for
the Protection of Human Rights and Fundamental Free-
doms of 4 November 1950, in particular Articles 3 and
8 thereof, and the Geneva Convention relating to the
Status of Refugees of 28 July 1951 and as they result
from the constitutional principles common to the
Member States.

In accordance with the principle of subsidiarity,
the
objective of the proposed action, namely cooperation
between Member States on expulsion of third country
nationals, cannot be sufficiently achieved by the Member
States and can therefore, by reason of the effects of the
envisaged action, be better achieved by the Community.
This Directive does not go beyond what is necessary to
achieve that objective.

In accordance with Article 3 of the Protocol on the
position of the United Kingdom and Ireland annexed to
the Treaty on European Union and the Treaty estab-
lishing the European Community, the United Kingdom
has given notice by letter of 18 October 2000 of its

wish to take part in the adoption and application of this
Directive.

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on Euro-
pean Union and the Treaty establishing the European
Community, Denmark is not participating in the adop-
tion of this Directive, and is therefore not bound by it or
subject to its application. Given that this Directive aims
to build upon the Schengen acquis under the provisions
of Title IV of
the Treaty establishing the European
Community, in accordance with Article 5 of the above-
mentioned Protocol, Denmark will decide within a
period of six months after the Council has adopted this
Directive whether it will transpose this decision into its
national

law.

(8)

As regards the Republic of Iceland and the Kingdom of
Norway, this Directive constitutes a development of the
Schengen acquis within the meaning of the agreement
concluded on 18 May 1999 between the Council of the
European Union and those two States. As a result of the
procedures laid down in the agreement, the rights and
obligations arising from this Directive should also apply
to those two States and in relations between those two
the European
States
Community to which this Directive is addressed,

and the Member States of

HAS ADOPTED THIS DIRECTIVE:

Article 1

1. Without prejudice to the obligations arising from Article
23 and to the application of Article 96 of the Convention
implementing the Schengen Agreement of 14 June 1985,
signed at Schengen on 19 June 1990, hereinafter referred to as
the ‘Schengen Convention’, the purpose of this Directive is to
make possible the recognition of an expulsion decision issued
by a competent authority in one Member State, hereinafter
referred to as the ‘issuing Member State’, against a third
country national present within the territory of another
Member State, hereinafter referred to as the ‘enforcing Member
State’.

Any decision taken pursuant to paragraph 1 shall be
the

2.
implemented according to the applicable legislation of
enforcing Member State.

(1) OJ C 243, 24.8.2000, p. 1.
(2) Opinion delivered on 13 March 2001 (not yet published in the

Official Journal).

3.
This Directive shall not apply to family members of
citizens of the Union who have exercised their right of free
movement.

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Article 2

Article 5

For the purposes of this Directive,

(a) ‘third country national’ shall mean anyone who is not a

national of any of the Member States;

(b) ‘expulsion decision’ shall mean any decision which orders
an expulsion taken by a competent administrative authority
of an issuing Member State;

(c) ‘enforcement measure’ shall mean any measure taken by
the enforcing Member State with a view to implementing
an expulsion decision.

Article 3

The expulsion referred to in Article 1 shall apply to the

1.
following cases:

(a) a third country national

is the subject of an expulsion
decision based on a serious and present threat to public
order or to national security and safety,
taken in the
following cases:

— conviction of a third country national by the issuing
Member State for an offence punishable by a penalty
involving deprivation of liberty of at least one year,
— the existence of serious grounds for believing that a
third country national has committed serious criminal
offences or the existence of solid evidence of his inten-
tion to commit such offences within the territory of a
Member State.

if

Without prejudice to Article 25(2) of the Schengen Conven-
tion,
the person concerned holds a residence permit
issued by the enforcing Member State or by another
Member State, the enforcing State shall consult the issuing
State and the State which issued the permit. The existence
of an expulsion decision taken under this point shall allow
for the residence permit to be withdrawn if this is author-
ised by the national legislation of the State which issued the
permit;

(b) a third country national

is the subject of an expulsion
decision based on failure to comply with national rules on
the entry or residence of aliens.

In the two cases referred to in (a) and (b), the expulsion
decision must not have been rescinded or suspended by the
issuing Member State.

2. Member States shall apply this Directive with due respect
for human rights and fundamental freedoms.

3.
This Directive shall be applied without prejudice to the
provisions of the Convention Determining the State Respon-
sible for Examining Applications for Asylum Lodged in one of
the Member States of the European Communities and readmis-
sion agreements between Member States.

Article 4

The Member States shall ensure that the third country national
concerned may,
in accordance with the enforcing Member
State's legislation, bring proceedings for a remedy against any
measure referred to in Article 1(2).

Protection of personal data and data security shall be ensured
in accordance with Directive 95/46/EC of the European Parlia-
ment 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 (1).

Without prejudice to Articles 101 and 102 of the Schengen
Convention, personal data files shall be used in the context of
this Directive only for the purposes laid down therein.

Article 6

the issuing Member State and of

The authorities of
the
enforcing Member State shall make use of all appropriate
means of cooperation and of exchanging information to imple-
ment this Directive.

The issuing Member State shall provide the enforcing Member
State with all documents needed to certify the continued enfor-
ceability of
the decision by the fastest appropriate means,
where appropriate in accordance with the relevant provisions
of the SIRENE Manual.

The enforcing Member State shall first examine the situation of
the person concerned to ensure that neither the relevant inter-
national instruments nor the national rules applicable conflict
with the enforcement of the expulsion decision.

implementation of

After
the
the
enforcing Member State shall inform the issuing Member State.

enforcement measure,

Article 7

Member States shall compensate each other for any financial
imbalances which may result from application of this Directive
where expulsion cannot be effected at the expense of the
national(s) of the third country concerned.

In order to enable this Article to be implemented, the Council,
acting on a proposal from the Commission, shall adopt appro-
priate criteria and practical arrangements before 2 December
2002. These criteria and practical arrangements shall also apply
to the implementation of Article 24 of the Schengen Conven-
tion.

Article 8

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive not later than 2 December 2002. 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
Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of domestic law which they adopt
in the field governed by this Directive.

(1) OJ L 281, 23.11.1995, p. 31.

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Article 9

This Directive shall enter into force the day of its publication in the Official
Communities.

Journal of the European

This Directive is addressed to the Member States, in accordance with the Treaty establishing the European
Community.

Article 10

Done at Brussels, 28 May 2001.

For the Council

The President

T. BODSTRÖM