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
Date: 2001-06-28
Institutions: Council of the European Union
Subjects: Schengen Agreement, carriage of passengers, carrier, foreign national, return migration, rights of aliens

10.7.2001

EN

Official Journal of the European Communities

L 187/45

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

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 61(a) and Article 63(3)(b)
thereof,

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)

In order to combat illegal immigration effectively, it is
essential that all the Member States introduce provisions
laying down the obligations of carriers transporting
foreign nationals into the territory of the Member States.
In addition, in order to ensure a greater effectiveness of
this objective, the financial penalties currently provided
for by the Member States for cases where carriers fail to
meet their control obligations should be harmonised to
the extent possible, taking into account the differences
in legal systems and practices between the Member
States.

This measure is among the general provisions aimed at
curbing migratory flows and combating illegal immigra-
tion.

Application of this Directive is without prejudice to the
obligations
resulting from the Geneva Convention
relating to the Status of Refugees of 28 July 1951, as
amended by the New York Protocol of 31 January 1967.

The freedom of the Member States to retain or introduce
additional measures or penalties for carriers, whether
referred to in this Directive or not, should not be
affected.

Member States should ensure that in any proceedings
brought against carriers which may result in the applica-
tion of penalties, the rights of defence and the right of
appeal against such decisions can be exercised effec-
tively.

This Directive builds on the Schengen acquis, in accord-
ance with the Protocol integrating it into the framework
of the European Union, as laid down by Annex A to
Council Decision 1999/435/EC of 20 May 1999
concerning the definition of the Schengen acquis for the
purpose of determining, in conformity with the relevant
the Treaty establishing the European
provisions of
Community and the Treaty on European Union, the

(7)

(8)

(9)

legal basis for each of the provisions or decisions which
constitute the acquis (3).

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
gave notice, by letter of 25 October 2000, of its wish to
take part
this
Directive.

in the adoption and application of

Pursuant to Article 1 of the aforementioned Protocol,
Ireland is not participating in the adoption of
this
Directive. Consequently and without prejudice to Article
4 of the aforementioned Protocol, the provisions of this
Directive do not apply to Ireland.

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 instrument
aims to build upon the Schengen acquis under the provi-
sions of Title IV of the Treaty establishing the European
Community, in accordance with Article 5 of the above-
mentioned Protocol, Denmark shall decide within a
period of 6 months after the Council has adopted this
Directive whether it will implement it in its national law.

(10) 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
the
concluded on 18 May 1999 by the Council of
European Union and those two States concerning the
lattter's association with the implementation, application
and development of the Schengen acquis (4),

HAS ADOPTED THIS DIRECTIVE:

Article 1

The aim of this Directive is to supplement the provisions of
Article 26 of
the Convention implementing the Schengen
Agreement of 14 June 1985, signed at Schengen on 19 June
1990 (5) (hereinafter referred to as ‘the Schengen Convention’)
and to define certain conditions with respect to their imple-
mentation.

(1) OJ C 269, 20.9.2000, p. 8.
(2) Opinion delivered on 13 March 2001 (not yet published in the

Official Journal).

(3) OJ L 176, 10.7.1999, p. 1.
(4) OJ L 176, 10.7.1999, p. 3.
(5) OJ L 239, 22.9.2000, p. 1.

L 187/46

EN

Official Journal of the European Communities

10.7.2001

Article 2

Article 5

Member States shall take the necessary steps to ensure that the
obligation of carriers to return third country nationals provided
for in the provisions of Article 26(1)(a) of
the Schengen
Convention shall also apply when entry is refused to a third-
country national

in transit if:

(a) the carrier which was to take him to his country of destina-

tion refuses to take him on board;

(b) or the authorities of the State of destination have refused
him entry and have sent him back to the Member State
through which he transited.

Article 3

Member States shall take the necessary measures to oblige
carriers which are unable to effect the return of a third-country
national whose entry is refused to find means of onward
transportation immediately and to bear the cost thereof, or, if
immediate onward transportation is not possible, to assume
responsibility for the costs of the stay and return of the third-
country national

in question.

Article 4

1. Member States shall
take the necessary measures to
ensure that the penalties applicable to carriers under the provi-
sions of Article 26(2) and (3) of the Schengen Convention are
dissuasive, effective and proportionate and that:

(a) either the maximum amount of the applicable financial
penalties is not less than EUR 5 000 or equivalent national
currency at the rate of exchange published in the Official
Journal on 10 August 2001, for each person carried, or

(b) the minimum amount of these penalties is not less than
EUR 3 000 or equivalent national currency at the rate of
exchange published in the Official Journal on 10 August
2001, for each person carried, or

(c) the maximum amount of the penalty imposed as a lump
sum for each infringement is not less that EUR 500 000 or
equivalent national currency at
the rate of exchange
published in the Official Journal on 10 August 2001, irres-
pective of the number of persons carried.

2.
Paragraph 1 is without prejudice to Member States' obli-
gations in cases where a third country national seeks inter-
national protection.

This Directive shall not prevent Member States from adopting
or retaining, for carriers which do not comply with the obliga-
tions arising from the provisions of Article 26(2) and (3) of the
Schengen Convention and of Article 2 of this Directive, other
measures involving penalties of another kind, such as immobi-
lisation, seizure and confiscation of the means of transport, or
temporary suspension or withdrawal of the operating licence.

Article 6

Member States shall ensure that their laws, regulations and
administrative provisions stipulate that carriers against which
proceedings are brought with a view to imposing penalties
have effective rights of defence and appeal.

Article 7

1. Member States shall
take the necessary measures to
comply with this Directive not later than 11 February 2003.
They shall forthwith inform the Commission thereof.

2. 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.

3. Member States shall communicate the main provisions of
law which they adopt in the field covered by this
national
Directive to the Commission.

Article 8

This Directive shall enter into force 30 days after its publica-
tion in the Official Journal of the European Communities.

Article 9

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

Done at Luxembourg, 28 June 2001.

For the Council

The President

B. ROSENGREN