WRITTEN QUESTION E-0493/02 by Glyn Ford (PSE) to the Commission. Carriers' liability.
Date: 2002-02-22
Institutions: European Parliament, Provisional data
Subjects: Austria, EU migration policy, border control, illegal migration, international human rights law, liability, right of asylum, rights of aliens, transport company

5.12.2002

EN

Official Journal of the European Communities

C 301 E/45

(2002/C 301 E/050)

WRITTEN QUESTION E-0493/02

by Glyn Ford (PSE) to the Commission

(22 February 2002)

Subject: Carriers’ liability

Does the European Commission share the view that one solution to the problem of irregular migration is a
true and serious joint effort by EU Member States to review closely, with all parties concerned, the
mechanisms of
in particular whether asylum-seekers do have the right
spontaneously to make a claim for protection, rather than to extend carriers’ liability laws to shift more
responsibility onto all means of transport?

the Geneva Convention,

Joint answer
to Written Questions E-0488/02, E-0489/02, E-0490/02, E-0491/02, E-0492/02
and 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:

(cid:1) 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
immigration (1) the Commission has highlighted that the scale of the
common policy on illegal
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.

(cid:1) 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.

(cid:1) 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.

(cid:1) 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.

C 301 E/46

Official Journal of the European Communities

EN

5.12.2002

On the detailed points raised by the Honourable Member:

(cid:1) Question E-0488/02: The Austrian Constitutional Court has

the national Austrian carriers liability legislation.

indeed recently quashed certain
the Austrian
provisions of
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
immigration. This judgement does not change the
liability as a means of
Commission’s view that carriers liability legislation may be an efficient
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.

In its judgement,

restricting illegal

tool

(cid:1) 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.

(cid:1) 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.

(cid:1) 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.

(cid:1) 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
the possibilities of modern technology and tele-
common policy on illegal
communication will
improve the efficiency and targeting of control measures and thereby reduce
inconveniences.

immigration that

(cid:1) 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 (cid:1) in close contact with Member
States and other interested parties (cid:1) 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.