Initiative of the Federal Republic of Germany with a view to adopting a Council Directive on assistance in cases of transit for the purposes of removal by air
Date: 2003-01-09
Institutions: Germany
Subjects: Germany, air transport, foreign national, illegal migration, removal, transit

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II

(Preparatory Acts)

COUNCIL

Initiative of the Federal Republic of Germany with a view to adopting a Council Directive on
assistance in cases of transit for the purposes of removal by air

(2003/C 4/04)

THE COUNCIL OF THE EUROPEAN UNION,

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

(6) With regard to the briefing of airlines as to how to conduct
unescorted and escorted removals, reference is made to
Annex 9 to the Convention of
the International Civil
Aviation Organisation (ICAO) of 7 December 1944.

Having regard to the initiative of
Germany,

the Federal Republic of

(7) Member States are to implement this Directive with due
respect for human rights and fundamental freedoms.

Having regard to the Opinion of the European Parliament,

Whereas:

(1) Having regard to the Council Recommendation of 22
December 1995 on concerted action and cooperation in
carrying out removal measures (1) and to the Decision of
the Schengen Executive Committee of 21 April 1998 on
cooperation between the contracting parties in returning
third-country nationals by air.

(2) Mutual assistance for the purposes of removal takes into
consideration the common objective of ending the illegal
residence of third-country nationals who are the subject of
removal orders. Rules binding on all the Member States
contribute furthermore to legal certainty and standard-
isation of procedures.

(3) Removal by air is increasingly gaining in importance for
the purpose of terminating the residence of third-country
nationals. Despite the efforts of the Member States to give
priority to using direct flights, it may be necessary, from an
economic viewpoint or insufficient availability of direct
flights, to use flight connections via airports of transit of
other Member States.

(4) The sovereignty of the Member States — particularly with
regard to the use of direct force against aliens resisting
removal — are to remain unaffected.

(5) The Convention of 14 September 1963 on Offences and
Certain Other Acts committed on board aircraft (Tokyo
Convention) — particularly with regard to the on-board
powers of the pilot responsible and matters of liability —
are to remain unaffected.

(1) OJ C 5, 10.1.1996, p. 3.

the

the

and

Treaty

establishing

participating

(8) In accordance with Articles 1 and 2 of the Protocol on the
position of Denmark annexed to the Treaty on European
European
Union
the
is not
Community, Denmark
adoption of this Directive, and is therefore not bound by
it or subject to its application. Given that this instrument
aims
the
to build upon the Schengen acquis under
the Treaty establishing the
provisions of Title IV of
in accordance with Article 5 of
European Community,
the abovementioned Protocol, Denmark is
to decide
within a period of six months after
the Council has
adopted this Directive whether it will implement it in its
national law.

in

(9) As regards the Republic of Iceland and the Kingdom of
Norway, this Directive constitutes a development of the
the agreement
Schengen acquis within the meaning of
concluded on 18 May 1999 by 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 are also to apply
to those two States and in relations between those two
States
European
Community to which this Directive is addressed,

the Member

States

and

the

of

HAS ADOPTED THIS DIRECTIVE:

Article 1

This Directive

1.
the
competent authorities at European Union airports of transit
to assist with unescorted and escorted removals.

cover measures

enabling

shall

2.
In cases in which removal to a transit State or State of
destination is unsuccessful, requested Member States shall also
assist with the readmission of the third-country national to the
requesting Member State under this Directive.

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Article 2

For the purposes of this Directive:

on which transit may be assisted,
conditions are complied with.

in so far as the other

(a)

‘third-country national’ shall mean any person who is not a
national of a Member State of the European Union, the
Republic of Iceland or the Kingdom of Norway;

6.
Transit authorisations already issued may be revoked by
the requested Member State if circumstances within the
meaning of paragraphs 3 and 4 subsequently come to light,
justifying a refusal of transit.

(b) ‘escort’ shall mean all persons from the requesting Member
third-country
including persons responsible for medical care

responsible for accompanying the

State
national,
and interpreters;

(c)

‘transit’ shall mean the period during which the third-
country national and, if necessary, the escort are required
to remain in the area of
the requested
Member State for the purposes of removal by air;

the airport of

(d) ‘requesting Member State’ shall mean the Member State
which enforces a removal order in respect of a third-
country national and requests transit via the airport of
transit of another Member State;

The requested Member State shall inform the requesting
7.
Member State forthwith of the refusal or revocation of a transit
authorisation under paragraphs 3, 4 or 6 or of any other
reason why transit is not possible, and shall provide an expla-
nation of the reasons.

Article 4

The requesting Member State shall undertake to readmit

1.
the third-country national forthwith if:

(a) the transit authorisation was refused or revoked under

Article 3(3), (4) or (6);

(e)

‘requested Member State’ shall mean the Member State via
whose airport of transit the transit is to be effected.

(b) the third-country national entered the requested Member

State without authorisation during transit;

Article 3

1.
The requested Member State shall assist the transit of
third-country nationals to be removed in accordance with the
provisions of this Directive.

(c) removal of the third-country national to another transit
State or to the State of destination was unsuccessful; or

(d) transit is not possible for another reason.

2.
The requesting Member State shall give priority to
examining whether removal to the State of destination using
a direct flight is possible. An application for transit shall in
principle not be made if the measure for removal requires a
change of airport on the territory of a Member State.

2.
The requested Member State shall effect the return of the
third-country national to the requesting Member State in the
cases referred to in paragraph 1. The requesting Member State
shall bear the costs incurred in returning the third-country
national.

3.
An application for transit shall not be made, or may be
refused, if in the State of destination or another transit State
the third-country national
inhumane or
humiliating treatment, torture or the death penalty, or if his
life or liberty would be at risk by reason of his race, religion,
nationality, membership of a particular social group or political
conviction.

faces the threat of

Article 5

The requested Member State shall take all the assistance
the
the third-country
is ensured that
relates to the following assistance

1.
measures necessary from landing and the opening of
it
aircraft doors until
national has left. This
measures in particular:

4.

Transit may also be refused if:

(a) criminal charges would have to be brought against the
third-country national in the requested Member State;

(b) transit through other States or admission by the State of

destination cannot be guaranteed; or

(a) meeting the third-country national at

the aircraft and
escorting him within the confines of the transit airport,
in particular to his connecting flight;

(b) placing and accommodating the third-country national in a
detention room on grounds of public safety or public
policy;

(c) exceptionally the requested assistance is impossible at a

particular moment for organisational reasons.

(c) using legitimate force to prevent or end any attempt by the

third-country national to resist transit;

5.
In the case of paragraph 4(c), the requested Member State
shall immediately inform the requesting Member State of a date

(d) providing emergency medical care to the third-country

national and, if necessary, his escort;

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(e) providing sustenance for the third-country national and, if

necessary, his escort;

(f)

receiving, keeping and forwarding travel documents,
particularly in the case of unescorted removals; and

(g)

informing the requesting Member State of the place and
time of departure of an unescorted third-country national
from the territory of the European Union.

2.
The competent authorities of the requested Member State
with whom responsibility for the measures lies shall decide the
nature and extent of the assistance afforded under paragraph 1.

Escorts shall have no sovereign powers on the territory of
3.
the requested Member State. Measures taken in the context of
the general rights to self-defence and to emergency action in
accordance with the legislation of the requested Member State
shall remain unaffected. Escorts shall not carry weapons during
transit and shall
identify themselves by means of service
passports at the request of the requested Member State.

4.
The costs of services provided under paragraph 1(d) and
(e) shall be borne by the requesting Member State. The
remaining costs shall be borne by the requested Member State.

Article 6

The request for escorted or unescorted transit and the
1.
associated assistance measures under Article 5(1) shall be
made in writing by the requesting Member State.
It shall
reach the requested Member State as early as possible, and in
any case no later than two working days before transit.

2.
The time limit laid down in paragraph 1 may, however,
be waived in cases of unescorted removals for which no
assistance measures under Article 5(1) are required and in
particularly urgent and duly justified cases.

3.
The requested Member State shall inform the requesting
Member State forthwith of its decision. Transit may not be
commenced without the approval of the requested Member
State.

4. Member States shall each appoint a central authority to
which requests under paragraph 1 are to be sent.

For the purposes of dealing with the request under
5.
paragraph 1, the information on the form to be used for
requesting and authorising transit
in accordance with the
Annex shall be forwarded to the requested Member State.

In the case of unescorted removals,

6.
the requesting
Member State shall provide the requested Member State with
the personal details, details of the travel document, and flight
details of the third-country national as provided for on the

form given in the Annex. Should the requested Member State
take assistance measures under Article 5(1),
the requesting
Member State shall also provide it with the seat number of
the third-country national as it appears on the passenger list.

Any transit authorisation issued shall at the same time

7.
confer exemption from visa requirements.

8.
The central authorities of the Member States shall provide
each other with the telephone numbers of airport immigration
officers who can be contacted throughout the transit operation.

Article 7

This Directive shall be without prejudice to the obligations
arising 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,
from the Convention deter-
mining the State responsible for examining applications for
asylum lodged in one of the Member States of the European
Communities and from international conventions on the
extradition of persons.

Article 8

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before
forthwith inform the
Commission thereof.

. . . They

shall

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 the main provisions of
law which they adopt in the field covered by this
national
Directive to the Commission.

Article 9

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

Article 10

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

Done at . . .

For the Council

The President

. . .

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ANNEX

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