Opinion of the European Economic and Social Committee on the "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" (COM(2003) 49 final — 2003/0019 (CNS))
Date: 2003-06-18
Institutions: European Economic and Social Committee
Subjects: EU migration policy, financial equalisation, foreign national, removal

16.9.2003

EN

Official Journal of the European Union

C 220/77

Opinion of the European Economic and Social Committee on the ‘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’

(COM(2003) 49 final — 2003/0019 (CNS))

(2003/C 220/16)

On 17 June 2003 the European Economic and Social Committee decided, in accordance with Rule 29(2)
of its Rules of Procedures, to draw up an own-initiative opinion on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 28 May 2003. The rapporteur was Mr Pariza
Castaños.

At its 400th plenary session of 18 and 19 June 2003 (meeting of 18 June), the European Economic and
Social Committee adopted the following opinion by 82 votes to five with six abstentions.

1.

Introduction

For various reasons the EESC believes that this opinion
1.1.
should assess Council Directive 2001/40/EC on the mutual
recognition of decisions on the expulsion of third country
nationals.

1.6.
The EESC therefore intends in this opinion first to
consider Directive 2001/40/EC and then analyse the proposed
Council Decision on the compensation of financial imbalances
in accordance with Article 7 of this Directive.

2. Summary of Council Directive 2001/40/EC

1.2. When the French Presidency decided to propose this
Directive to the Council, the EESC was not consulted and did
not therefore have the opportunity to issue the mandatory
opinion.

2.1.
Council Directive 2001/40/EC of 28 May 2001, which
followed on from the Tampere European Council of 15
and 16 October 1999, approved the mutual recognition of
decisions on the expulsion of third country nationals.

In its opinions, the EESC has always encouraged the
1.3.
EU to adopt a common policy on immigration and asylum, in
accordance with the Treaty’s mandate and the political
approach followed by the Tampere Council; as a result, it has
contributed to progress in harmonising Community legislation
in this area.

2.2.
The aim of the Directive is to make possible the
recognition of an expulsion decision issued by the competent
authority in one Member State against a third country national
present within the territory of another Member State.

It is not possible to issue an opinion on the ‘Proposal
1.4.
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’ without first expressing a view on the Directive itself,
which provides the basis for the recognition of expulsion
decisions between the Member States.

1.5.
The technical and procedural rules for compensating
financial imbalances cannot be analysed without a political
and legal assessment of Directive 2001/40/EC, bearing in mind
the need to respect all the safeguards that are provided in
Community law, as laid down in the EU Charter of Fundamen-
tal Rights and the European Convention on Human Rights, for
people who may be affected by this Directive.

The expulsions covered by the Directive concern the

2.3.
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
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 crimi-
nal offences or the existence of solid evidence of
his intention to commit such offences within the
territory of a Member State.

C 220/78

EN

Official Journal of the European Union

16.9.2003

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.

3. Summary of the proposed Council Decision

2.4.
If the person concerned holds a residence permit issued
by the enforcing Member State or by another Member State,
the enforcing State must consult the issuing State and the State
which issued the permit.

2.5.
The existence of an expulsion decision taken in accord-
ance with Article 3.1a) of the Directive must allow for the
residence permit to be withdrawn if this is authorised by the
national
legislation of the State which issued the permit,
without prejudice to Article 25(2) of the Schengen Convention.

3.1.
The proposed Council Decision introduces 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.

in financial

The application of the aforementioned Council Direc-
3.2.
imbalances where expulsion
tive may result
decisions cannot be effected at the expense of the third country
national concerned. Hence appropriate criteria and practical
arrangements must be adopted for the bilateral compensation
of the Member States.

2.6.
The expulsion decisions covered by the Directive must
not have been rescinded or suspended by the issuing Member
State.

3.3.
The financial burden-sharing for cooperation between
Member States on the expulsion of third country nationals
cannot be sufficiently achieved by the Member States alone
and may therefore require action by the Community.

The Member States must ensure that the third country
2.7.
national concerned may bring proceedings for a remedy
against any such expulsion measure.

2.8.
Protection of personal data and data security and the
free movement of such data must be ensured. Personal data
files may be used only for the purposes laid down in the
Schengen Convention.

2.9.
The authorities of the Member States must make use
of all appropriate means of cooperation and of exchanging
information. As part of this cooperation, the issuing Member
State must provide the enforcing Member State with all
documents needed to certify the continued enforceability of
the decision by the fastest appropriate means.

2.10.
The enforcing Member State must first examine the
situation of the person concerned to ensure that neither the
relevant international instruments nor the applicable national
rules conflict with the enforcement of the expulsion decision.

2.11. Member States must 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.

2.12. Member States must bring into force the laws,
regulations and administrative provisions necessary to comply
with this Directive not later than 2 December 2002, along
with the criteria and practical arrangements for compensating
the financial imbalances resulting from the Directive’s appli-
cation.

The Member State issuing the expulsion decision must
3.4.
compensate the enforcing Member State for any financial
imbalances which may result from the application of the
Directive. Reimbursement is at the request of the enforcing
Member State and on the basis of actual costs.

3.5. Minimum recoverable costs under the Decision will
include:

— transport costs for the returnee and up to two escorts,

— administrative costs,

— accommodation costs.

3.6. Member States may agree on a bilateral basis to
reimburse costs exceeding the minimum costs or to reimburse
other additional costs.

Reimbursement requests must be made in writing and
3.7.
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.

Payments must be made to the competent authority of
3.8.
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 arrange-
ments as to modes of payment. Any refusal to reimburse must
be made in writing, stating reasons for the refusal, and be sent
to the competent authority of the enforcing Member State
within three months.

16.9.2003

EN

Official Journal of the European Union

C 220/79

Each national contact point has to submit an annual
3.9.
report
to the Commission including statements on the
implementation of the Decision and recommendations for
improvements to the criteria and practical arrangements.

protection should be extended to all relatives regardless
of their nationality (i.e. they may be nationals of non-EU
countries).

4. Comments on Directive 2001/40/EC

4.1.
This Directive starts on the wrong footing, as it
provides for the mutual recognition of decisions on the
expulsion of third country nationals when there is still no
common legislation on immigration and asylum. As stated by
the EESC in several opinions, the Council needs to speed up its
work on drafting a proper common policy on immigration
and asylum based on the conclusions of the Tampere Council
so that migration flows can be managed more effectively.
However, until now this legislation has been ‘delayed’ at the
Council which, somewhat contradictorily, is stepping up the
pace of legislative work on compulsory return and the mutual
recognition of expulsion orders. The Council
is thereby
hindering the creation of an area of freedom, safety and justice
where the rights and duties of third country nationals are
properly safeguarded.

4.2.
This Directive does, however, contribute to harmonis-
ing Community legislation on the mutual recognition of
decisions on the expulsion of third country nationals.

4.3. With this Directive, the Council continues to ‘put the
cart before the horse’, as pointed out by the EESC in previous
It would be premature to apply this measure
opinions.
without harmonised standards and criteria on, for example,
the subsidiary protection that is given to people granted
asylum (and asylum seekers) under the Geneva Convention of
1951. This was stated in the EESC’s opinion (1) on the
‘Communication from the Commission to the Council and the
European Parliament on a Community return policy on illegal
residents’.

4.4.
Any mechanism for the mutual recognition of expul-
sion decisions should therefore be part of a framework of
common legislation on immigration and asylum. Without
common legislation, any enforcing Member State will be
obliged to cooperate in enforcing an expulsion decision for
reasons that are not covered, or indeed explicitly excluded, in
its own legislation. This Directive repeats the mistakes and
lack of safeguards found in many aspects of the Schengen
Convention.

4.5.
The Committee welcomes the fact that the Directive
does not apply to family members of EU citizens who
have exercised their right of free movement. However, such

( 1) EESC opinion on the ‘Communication from the Commission to
the Council and the European Parliament on a Community return
policy on illegal residents’, OJ C 85, 8.4.2003.

4.6.
Regarding the implementation of this Directive, the
EESC believes that some of the safeguards laid down in the
Charter of Fundamental Rights and the European Convention
on Human Rights are not properly respected. It therefore calls
on the Member States to respect all the aforementioned
safeguards, as well as those enshrined in the constitutional
traditions of the Member States.

4.7.
The EESC believes that expulsion or forced return
decisions cannot merely be administrative decisions, and the
courts may intervene. All people affected by such expulsion or
forced return procedures must be guaranteed the protection of
the courts, with the due safeguards provided by rule of law
and in accordance with the legislation of each Member State.
The expulsion cannot be enforced if protective measures to
suspend and/or rescind the expulsion have been issued by a
legal or administrative authority.

4.8.
The enforcing Member State must not merely formally
‘ensure’, but must tangibly guarantee legal protection, so that
a third country national may, in accordance with the enforcing
Member State’s legislation, bring proceedings for a remedy
against any expulsion measure (2). The right to appeal against
any expulsion measure or forced return must always have
suspensive effect, since this is the only means of guaranteeing
the fundamental rights of the person concerned. (3)

4.9. Without questioning the nature of a ‘permanent resol-
ution’, the enforcing Member State that examines the situation
of the person concerned must take account of legal factors,
such as the statute of limitations; humanitarian factors, such
as the situation in the country of origin (4) (e.g. civil wars (5),
factors, such as serious
persecutions, disasters); personal

(2) According to the Court of Justice of the European Communities,
‘There may not be inferred from Article 8 [of the Directive] an
obligation for the Member States to permit an alien to remain in
their territory for the duration of the proceedings, so long as he is
able nevertheless to obtain a fair hearing and to present his
defence in full.’ (Judgment of 5 March 1980, Pecastaing, Case
98/79.)

(3) EESC opinion on the ‘Green Paper on a Community return policy

on illegal residents’, OJ C 61, 14.3.2003.

(4) EESC opinion on the ‘Communication from the Commission to
the Council and the European Parliament on a common policy
on illegal immigration’, OJ C 149, 21.6.2002; OJ C 61, 14.3.2003.
(5) See European Court of Human Rights case law, in particular the
case of ECHR Judgment Ahmed v. Austria, of 17 December 1996,
expulsion order concerning a Somali national, not enforced due
to his being in clear danger in his country of origin (Somalia) and
because if Austria did expel him it would be in contravention of
the Convention; and Hatami v. Sweden, of 9 October 1998,
decision to expel Iranian national to Iran, not enforced and
subsequently repealed.

C 220/80

EN

Official Journal of the European Union

16.9.2003

illness (1), etc. (2); roots, such as ties with family members in
the enforcing Member State or other EU countries; and the
loss of personal ties with the country of origin owing to a long
period of absence from the country that may render an
expulsion order ineffective.

4.10.
The EESC believes that Member States that enforce
expulsion decisions must also ensure that the people affected
by such procedures are granted effective legal protection in
accordance with the legislation of each Member State.

The EESC (3) supports the Commission in proposing
4.11.
voluntary return policies. Consequently expulsions and forced
returns must be regarded as very harsh procedures that should
only be applied in exceptional circumstances. The authorities
must therefore make decisions on a case-by-case basis and
consider other alternatives depending on the person’s employ-
family situation and integration into the host
ties,
ment
society (4).

4.12.
country nationals who:

Expulsion decisions should not apply to those third

— legally reside within an EU state and

— have integrated through employment and family ties and

— have lost links with the third country of origin due to

their long period of absence.

consequences must be proportionate to the legal ruling (5). The
concept of ‘existence of serious grounds’ found in the Directive
could result in the violation of some of the rights protected by
Article 1 of the European Convention on Human Rights (6)
and the Charter of Fundamental Rights. Indeed, the European
Convention on Human Rights sets out various rights for aliens
who are to be expelled. EU legislation must also take account
of the extensive European Court of Human Rights case law.

5. Comments on the Proposal for a Council Decision

5.1.
This Proposal aims to ensure that the actual costs of
enforcing an expulsion, where expulsion cannot be effected at
the expense of the third party national, are covered by the
Member State issuing the expulsion decision,
in order to
prevent any financial imbalances that may result from the
application of Directive 2001/40/EC.

5.2.
In the EESC’s view, the procedure proposed in the
Council Decision for compensating financial imbalances can-
not be implemented until there is common legislation on
immigration and asylum.

These third country nationals should face the full weight of
the law as would any EU national.

5.3.
In exceptional circumstances, e.g. when many people
move to Member States following humanitarian crises, a
Community budget could be established to ensure proper
treatment for people affected by return procedures.

4.13.
Expulsion decisions must be based on a serious and
present threat to public order or to national security and safety
that has been established by a legal ruling. The administrative

( 1) ECHR Judgment B.B. v. France, of 7 October 1998, risk of
Congolese (former Zaïrean) national suffering from Aids being
deported to his country of origin where he would not receive
appropriate medical treatment. And, Andric v Sweden, Majic v
Sweden and others, of 23 February 1999, which established that
the expulsion order cannot be enforced while the alien is receiving
obligatory psychiatric treatment.

( 2) OJ C 61, 14.3.2003.
( 3) OJ C 85, 8.4.2003; OJ C 61, 14.3.2003.
( 4) Any administrative procedure for expulsion takes time (despite
mechanisms that many States have incorporated into their
legislation to speed up procedures). During this time, there may
be factors or circumstances that change the alien’s legal status
(e.g. marriage, birth of a child that has the nationality of an EU
Member State, etc.) or circumstances that render the expulsion
decision ineffective from a humanitarian point of view.

(5) The legislation of the Member States prohibits double jeopardy.
The Greek Presidency recently drew up an initiative for a
framework decision of the Council concerning the application of
the ne bis in idem principle.

(6) ECHR Judgment, of 13 December 2001, case of Ezzouhdi v
France. The applicant arrived in France at the age of five and has
lived there ever since. He followed his studies in France and
worked there for several years. His mother and brothers also live
in France, and the Court therefore ruled that the exclusion order
affects his right to family life. Moreover, the order was based on a
conviction for personal use of narcotics in accordance with the
Criminal Code. The Court considers that the crimes for which the
applicant was convicted (two years in prison for crimes against
the legislation on narcotics linked primarily to the personal use of
drugs) do not reasonably indicate that the applicant is a serious
threat to public order, as demonstrated by his light sentence
despite the fact that he had re-offended. The crimes committed by
the applicant could not be considered, either separately or
together, to justify the severity of the measure, owing to the fact
that he has ties with France but does not seem to have any links
with Morocco other than nationality, or the permanent nature of
the exclusion order.

16.9.2003

EN

Official Journal of the European Union

C 220/81

The Member States will only have to reimburse the
5.4.
costs of
applying the Directive when expulsions are
accompanied by effective legal protection and due respect for
human rights.

The EESC believes it is unacceptable for EU Member
5.5.
States to have to meet the costs of expelling people if
investigations reveal there is a threat to their human rights. It
points out that Articles 3, 5, 6, 8 and 13 of the European
Convention on Human Rights and Articles 3, 4, 19, 24 and
47 of the Charter of Fundamental Rights are all applicable to
expulsion procedures.

It is difficult for Member States to conclude readmission
5.6.
agreements with some third countries. The EU must therefore
endeavour to sign readmission agreements as part of its foreign
policy. The EU may sign readmission agreements with third
countries. These agreements must include clauses safeguarding
the human rights of returnees, and ensuring that returnees will
not be punished for leaving the country. These agreements
must be complemented by other political, economic or social
instruments that are in the interests of third countries, in the
context of EU foreign policy, as proposed in the EESC’s
opinion (1) on the ‘Green Paper on a Community return policy
on illegal residents’.

5.7.
It is very important for the EU to establish a proper
relationship between immigration policy and development
policy in the future. In this context, some well-managed
returns may be positive both for the economic and social
development of third countries, and for the integration of the
people concerned.

The EESC believes that programmes need to be set up
5.8.
to foster voluntary return through international organisations
and NGOs. These programmes could be financed by the EU,
as recommended by the EESC’s opinion (2) on the ‘Communi-
cation from the Commission to the Council and the European
Parliament on a common policy on illegal immigration’. It will
often be more effective to enforce expulsion decisions under
readmission agreements, using the budget earmarked for
administering expulsion decisions.

5.9.
Article 2(4) allows Member States to conclude bilateral
agreements to reimburse costs exceeding the minimum costs
established. This will encourage returnees to be transported to
their country of origin by charter flight in order to reduce
transport costs. Transport conditions must respect the dignity
of
to life, and physical and
psychological integrity.

the person and their right

( 1) OJ C 61, 14.3.2003.
( 2) EESC opinion on the ‘Communication from the Commission to
the Council and the European Parliament on a common policy
on illegal immigration’, OJ C 149, 21.6.2002.

5.10.
Although this collective method of managing expul-
sions does not correspond legally to the model of ‘collective
expulsions’, the EESC recommends that it should only be used
in exceptional circumstances. It should be remembered that
Article 19 of the EU Charter of Fundamental Rights prohibits
collective expulsions.

5.11.
The EESC welcomes the stipulation that reimburse-
ment is only valid for expulsion decisions enforced within
three years of being issued. It also agrees that requests for
reimbursement submitted more than one year after enforce-
ment may be rejected. Adequate reasons will have to be given
for any refusal to pay.

5.12.
Establishing national contact points will ensure pro-
per and transparent management on the basis of common
rules and a legally established procedure.

5.13.
The Council Decision stipulates that accommodation
costs can be reimbursed for a period not exceeding three
months. The EESC’s opinion (1) on the ‘Green Paper on a
Community return policy on illegal residents’ stated that
detention pending removal must not exceed thirty days, and
the persons concerned must be held in specific detention
centres and not in ordinary prisons. Prisons may only be used
as a detention centre if the expulsion is the result of crimes
having been committed.

5.14.
The annual reports to be submitted by each contact
point to the Commission must specify the motives for the
expulsion order on the basis of Article 3 of the Directive, and
the financial cost of the forced repatriations actually carried
out.

6.

Final comments

6.1.
The compensation mechanisms relating to the manage-
ment of expulsion decisions will be faster and more effective
when there is a common policy on immigration and asylum.
The open coordination method must be complementary to
for avoiding
the common legislation and not a pretext
developing it.

6.2.
Budgetary constraints must never adversely affect the
level of protection or proper treatment of people who are the
subject of expulsion decisions. Moreover, under no circum-
stances must such constraints result in unlawful extensions of
the period of detention, poor treatment of persons, or
restrictions on their fundamental rights (with the exception of
freedom of movement).

C 220/82

EN

Official Journal of the European Union

16.9.2003

6.3.
As laid down in Article 19 of the Charter of Fundamen-
tal Rights, consideration must be given to certain groups in
specific situations who should not be subject to expulsion
decisions. As recommended in the aforementioned EESC
opinion on the ‘Green Paper on a Community return policy
on illegal residents’ (1),
it must be possible to extend this

( 1) The Commission itself recommends that ‘A European return
policy should be fully respectful of human rights and fundamental
freedoms and as such be seen in the context of the European
Union’s human rights policies both within the European Union
and in its external relations. Article 6 of the Treaty on European
Union, reaffirms that the European Union “is founded on the
principles of liberty, democracy, respect for human rights and
fundamental freedoms, and the rule of law, principles which are
common to the Member States”.’ Green Paper on a Community
return policy on illegal residents, point 2(4). COM(2002) 175 final.

consideration to particularly vulnerable people who find
themselves in one of the following situations:

— return implies family separation, either from children or

parents;

— return implies serious harm for minors in their charge;

— the person suffers from a serious physical or psychologi-

cal injury;

— the safety,

life and freedom of the person may be at

considerable risk, in the country of origin or transit.

Brussels, 18 June 2003.

The President

of the European Economic and Social Committee

Roger BRIESCH