Proposal for a Council Decision setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Council Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third country nationals
Date: 2003-02-03
Institutions: European Commission
Subjects: EU migration policy, financial equalisation, foreign national, removal

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 03.02.2003
COM(2003) 49 final

2003/0019 (CNS)

Proposal for a

COUNCIL DECISION

setting out the criteria and practical arrangements for the compensation of the financial
imbalances resulting from the application of Council Directive 2001/40/EC on the
mutual recognition of decisions on the expulsion of third country nationals

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. INTRODUCTION

The Council Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of
third-country nationals was adopted on 28 May 20011 to make possible the recognition of an
expulsion decision issued by a competent authority of another Member State. It stressed the
need to ensure greater effectiveness in enforcing expulsion decisions and better co-operation
between Member States, including the mutual recognition of expulsion decisions.

The application of Council Directive 2001/40/EC may result in financial imbalances where
expulsion decisions cannot be effected at the expense of the third country national concerned.
Member States shall, therefore, compensate each other for any financial imbalances, which
may result from such mutual recognition.

To that end Article 7 of the Directive requests the Council to adopt appropriate criteria and
practical arrangements. This Council Decision will introduce the required mechanism for the
bilateral compensation of financial imbalances due to the application of Council Directive
2001/40/EC.

In addition, Article 7 of the Directive requests that these criteria and practical arrangements
shall also apply to the implementation of Article 24 of the Schengen Convention. Due to the
fact, that this complex issue could significantly delay the full application of Council Directive
2001/40/EC to which Member States have to comply with on 2 December 2002 at the latest,
this Council Decision will not introduce a multilateral burden sharing mechanism as requested
in Article 24 of the Schengen Convention on the financial imbalances which may result from
the obligation as set down in Article 23 of the Convention. Nevertheless, the criteria and
practical arrangements on the calculation of the individual costs of a removal operation per
returnee as defined in this Decision should be the basis for the similar calculation of the
enforcing State in the framework of a future instrument for Article 24 of the Convention.

2. OBJECTIVE

The purpose of this Decision is to introduce appropriate criteria and practical arrangements
for the compensation of any financial imbalances which may result from the application of
Council Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of
third-country nationals of 28 May 2001.

The core principle of this Decision is that the issuing Member State should reimburse the
enforcing Member State on the basis of the actual costs. Preliminary discussions in the
Council highlighted the need for a set of guiding principles both in relation to expenditure
during the enforcement as well as in relation to the actual procedure of reimbursement.

Reimbursements would be necessary in relation to three types of costs incurred: transport
costs, administrative costs and accommodation costs. It also became clear that a ceiling would
need to be established for each category to ensure that any costs are at all times kept
reasonable, comparable and balanced.

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OJ L 149 of 2 June 2001, p. 35.

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3. SUBSIDIARITY

In accordance with the principle of subsidiarity, the objective of the proposed action, namely
financial burden-sharing for co-operation between Member States on the 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
Decision does not go beyond what is necessary to achieve that objective.

4. COMMENTARY ON ARTICLES

Article 1

This article defines the purpose of this decision.

Article 2

This article requires the issuing Member State to compensate the enforcing Member State for
any financial imbalances which may result from the application of Directive 2001/40/EC and
defines the concept of recoverable actual costs.

Recoverable actual costs under this Decision will include transport costs for the returnee and
up to two escorts, administrative costs such as fees for issuing visas and return travel
documents, detention costs for up to three months and accommodation costs during the
enforcement either in a transit area of a third country or in the country of origin. In principle,
these elements represent an exhaustive list of recoverable costs in order to define a clear
ceiling for reimbursement in order to keep costs reasonable, comparable and balanced.

However, paragraph 4 allows that Member States agree on a bilateral basis to reimburse costs
exceeding the minimum costs or to reimburse other additional costs. This clause permits that
e.g. charter flights, which exceed the defined ceiling, can be subject for reimbursement, when
the Member States concerned agree.

Article 3

This article describes the procedure that must be followed by Member States when submitting
and processing claims for reimbursement. It establishes a transparent procedure for legal
certainty and clarity.

limits reimbursement

to enforcement measures carried out within three years of an
It
expulsion decision being issued in order to define the time of the responsibility of the issuing
Member State. To ensure that any reimbursement requests are made promptly, this Decision
allows for the rejection of any reimbursement requests submitted more than one year after the
enforcement.

The requests are channelled through national contact points in order to identify the competent
authority or responsible body for payment. The national contact points ensure the orderly
delivery of the request and inform the enforcing authority about the responsible body for
payment.

Notifications of payment and motivations for refusals shall also be forwarded to the national
contact points in order to enable national contact points to comply with the reporting
obligations as set out in Article 4.

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Article 4

This article obliges the national contact points of Member States to register and report
annually to the Commission the total number of forced returns, the number of enforcement
measures made under the articles of Directive 2001/40/EC and the number of expulsion
decisions which could be recognised and enforced by other Member States.

Article 5

This article limits the reimbursement to expulsion decisions, which have been issued after the
entry into force of this Decision. Moreover, it describes how and when this Decision will
enter into force.

This article defines who is addressed by this decision.

Article 6

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2003/0019 (CNS)

Proposal for a

COUNCIL DECISION

setting out the criteria and practical arrangements for the compensation of the financial
imbalances resulting from the application of Council Directive 2001/40/EC 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,

Having regard to the proposal from the Commission2,

Having regard to the opinion of the European Parliament3,

Whereas:

(1)

(2)

(3)

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 European
policy on asylum and migration should aim both at fair treatment of third country
nationals and better management of migration flows. These objectives were confirmed
by the Laeken European Council on 14 and 15 December 2001 and the Seville
European Council on 21 and 22 June 2002. The need to fight against
illegal
immigration, including taking appropriate measures to promote the return of illegal
residents, was particularly emphasised.

The application of Directive 2001/40/EC of 28 May 2001 on the mutual recognition of
in financial
decisions on the expulsion of third country nationals may result
imbalances where expulsion decisions cannot be effected at the expense of the third
country national concerned. Appropriate criteria and practical arrangements for the
bilateral compensation of Member States should therefore be adopted.

In accordance with the principle of subsidiarity, the objective of the proposed action,
namely financial burden-sharing for co-operation between Member States on
expulsion of third country nationals in case of mutual recognition of expulsion
decisions, 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 Decision does not go beyond what is necessary to achieve that objective.

(4)

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark
annexed to the Treaty on European Union and the Treaty establishing the European

2

3

OJ C , , p. .
OJ C , , p. .

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Community, Denmark is not participating in the adoption of this Decision, and is
therefore not bound by it or subject to its application. Given that this Decision 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 Decision whether it will apply this Decision.

(5)

(6)

As regards the Republic of Iceland and the Kingdom of Norway,
this Decision
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 Decision should also apply to those two States and in
the European
relations between those two States and the Member States of
Community to which this Decision is addressed.

This Decision respects the fundamental rights and observes the principles recognised
in particular by the Charter of Fundamental Rights of the European Union as general
principles of Community law. In particular this Decision seeks to ensure full respect
for human dignity and the protection in the event of expulsion and removal, promoting
the application of Articles 1, 18 and 19 of the Charter.

HAS ADOPTED THIS DECISION:

Article 1

This Decision sets out appropriate criteria and practical arrangements for the compensation of
imbalances which may result from the application of Council Directive
any financial
2001/40/EC where expulsion cannot be effected at the expense of the national(s) of the third
country concerned.

Article 2

(1)

(2)

(3)

The issuing Member State shall compensate the enforcing Member State for any
financial imbalances, which may result from the application of the above-mentioned
Directive where expulsion cannot be effected at the expense of the national(s) of the
third country concerned.

The reimbursement shall take place at the request of the enforcing Member State on
the basis of actual costs.

The following shall be regarded as minimum recoverable costs in respect of the
returnee and up to two escorts per returnee:

–

–

Transport costs; this includes the actual costs for flight tickets up to the amount
of the official IATA tariff for the respective flight at the time of enforcement.
The actual costs for land transport by car or train can be claimed on the basis of
a second class train ticket
the time of
enforcement.

the respective distance at

for

Administrative costs; this includes the actual costs for visa fees and the fees for
the issuing of return travel documents (laissez-passer).

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–

Accommodation costs; this includes the actual costs for the returnee’s stay in a
detention facility for a duration of no more than three months. During the
enforcement, accommodation costs for the returnee and the escorts are covered
in a transit area of a third country and for the unavoidable short stay of the
escorts in the country of origin.

Paragraph 3 shall not prevent Member States from agreeing on a bilateral basis to
reimburse costs exceeding the minimum costs or to reimburse other additional costs.

Article 3

Reimbursement requests shall be made in writing and shall be accompanied by
documentary proof of the recoverable costs

Reimbursement cannot be claimed for the enforcement of expulsion decisions, issued
more than three years prior to their enforcement.

Requests for reimbursement submitted more than one year after the enforcement has
taken place may be rejected.

National contact points shall be established for the implementation of this Decision.
The national contact points are listed in the annex of this Decision.

The request for reimbursement shall be sent by the competent authority of the
enforcing Member State via the national contact point in that Member State. The
national contact point in the enforcing Member State shall send the request to the
national contact point of the issuing Member State who shall forward the request to
the competent authority of that Member State. The national contact point of the
issuing Member State shall inform the national contact point of the enforcing
Member State as to the responsible authority for reimbursement.

Payments shall be made to the competent authority of the enforcing Member State
within three months of the receipt of the request by the national contact point of the
issuing Member State. Member States may establish bilateral arrangements as to
modes of payment.

A refusal to reimburse shall be made in writing, stating reasons for the refusal, and
shall be sent to the competent authority of the enforcing Member State within three
months of the receipt of the request.

The national contact points of the enforcing Member State and of the issuing
Member State shall be informed of payments and of refusals to reimburse.

(4)

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

Article 4

Each national contact point shall submit an annual report to the Commission specifying the
following:

a)

b)

the total number of forced returns made by the relevant Member State;

the total number of enforcement measures taken under Directive 2001/40/EC;

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c)

d)

the total number of refusals to reimburse together with the reasons for such refusals;

the total number of expulsion decisions taken by the competent administrative
authority of the relevant Member State, which could be recognised and enforced by
other Member States.

The annual report shall also include statements on the implementation of this Decision and
recommendations for
improvements of the criteria and practical arrangements of this
Decision.

Article 5

(1)

(2)

Requests for reimbursement can only be made for expulsion decisions, which are
issued after the entry into force of this Decision.

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

Article 6

This Decision is addressed to the Member States.

Done at Brussels,

For the Council
The President

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ANNEX

List of national contact points

(to be completed)

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