Initiative of the Italian Republic with a view to adopting a Council Directive on assistance in cases of transit through the territory of one or more Member States in the context of removal orders taken by Member States against third-country nationals
Date: 2003-09-19
Institutions: Italy
Subjects: EU Member State, EU migration policy, foreign national, illegal migration, removal, transit

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Official Journal of the European Union

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Once the information referred to in paragraph 1 has been
2.
obtained, the national authorities shall assess the level of risk
attaching to the operation. On the basis of that assessment the
nature and number of
to be deployed shall be
the staff
determined, using personnel specially trained in advance.

In the case of any third-country nationals on board who may
seriously disrupt the flight, arrangements shall be made for an
appropriate escort service capable of dealing with violent
behaviour which could endanger the safety of the flight itself.

Article 7

Application

This Decision shall apply from the thirtieth day following that
of its publication in the Official Journal of the European Union.

Article 8

Addressees

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

Article 6

Monitoring implementation

Done at . . .

Member States shall take the necessary steps to appoint their
representatives to participate in the proceedings of a special
this
committee tasked with monitoring implementation of
Decision.

For the Council

The President

. . .

Initiative of the Italian Republic with a view to adopting a Council Directive on assistance in cases
of transit through the territory of one or more Member States in the context of removal orders
taken by Member States against third-country nationals

(2003/C 223/05)

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the initiative of the Italian Republic,

Having regard to the Opinion of the European Parliament,

Whereas:

(1) The Council Recommendation of 22 December 1995 on
concerted action and cooperation in carrying out removal
measures (1) and the Decision of the Executive Committee
of 21 April 1998 on cooperation between the
Contracting Parties in returning third-country nationals
(SCH/Com-ex (98) 10) (2) already address the
by air
need for cooperation between Member States in the
field of
third-country nationals.
Specific rules on the matter have been laid down in
Council Directive 2003/. . ./EC on assistance in cases of
transit for the purposes of removal by air.

removal by air of

(2) There is a need to terminate the illegal residence of third-
country nationals subject to final orders for removal from
territory, using direct and mutual-assistance
national

procedures,
Member States.

in the

field of

removal, between the

(3) It is necessary to reach agreement among the Member
States on mutual support and assistance in implementing
return and readmission measures in cases of transit by air,
sea and land in accordance with the Comprehensive Plan
to combat illegal immigration and trafficking in human
beings in the European Union, approved by the Council
on 28 February 2002, and the Plan for the management
the European Union (3)
of
approved by the Council on 13 June 2002, which were
confirmed by the Return Action Programme approved by
the Council on 28 November 2002.

external borders of

the

(4) The sovereignty of the Member States, particularly with
regard to the use of direct force against third-country
nationals resisting removal orders should remain unaf-
fected.

(5) The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
implementing powers
the exercise of
procedures
conferred on the Commission (4).

for

(1) OJ C 5, 10.1.1996, p. 3.
(2) OJ L 239, 22.9.2000, p. 193.

(3) OJ C 142, 14.6.2002, p. 23.
(4) OJ L 184, 17.7.1999, p. 23.

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the European Convention for

(6) Member States are to implement this Directive with full
respect for human rights and fundamental freedoms, as
guaranteed in particular under the Geneva Convention
relating to the status of refugees of 28 July 1951, as
amended by the New York Protocol of 31 January
1967, and under
the
Protection of Human Rights and Fundamental Freedoms.
In accordance with the applicable international obli-
gations, transit by air should be neither requested nor
granted if in the third country of destination or transit
the third-country national faces the threat of 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 or membership of a particular social
group or political conviction.

establishing

the Treaty

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

(8) As regards the Republic of Iceland and the Kingdom of
Norway, this Directive constitutes a development of the
provisions of the Schengen acquis within the meaning of
the Agreement concluded on 18 May 1999 between the
Council of
the European Union and the Republic of
Iceland and the Kingdom of Norway concerning the
latters' association with the implementation, application
and development of the Schengen acquis (1), which fall
within the area referred to in Article 1, point
(c) of
Council Decision 1999/437/EC of 17 May 1999 on
that
certain arrangements
Agreement (2). As a result of the procedures laid down
in the Agreement,
the rights and obligations arising
from this Directive will also apply to those two States
and in relations between those two States and the
Member States of the European Community to which
this Directive is addressed.

application of

the

for

HAS ADOPTED THIS DIRECTIVE:

Article 1

Objective

this Directive is

The purpose of
to define measures on
assistance between the competent authorities of the Member
States in cases of escorted transit through the territory of one
or more Member States of third-country nationals who are the
subject of removal orders by a Member State.

Article 2

Definitions

For the purposes of this Directive:

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

(b) ‘requesting Member State’ means the Member State which
enforces a removal order in respect of a third-country
national and requests transit by land through another
Member State;

(c) ‘requested Member State’ or ‘transit Member State’ means
the Member State through whose territory the escorted
removal of third-country nationals who are the subject of
removal orders by a Member State is to be effected;

(d) ‘transit

through the territory’ means the territory of a
Member State through which third-country nationals who
are the subject of removal orders are removed, including
transfer between two ports of the Member States using
regular sea-links;

(e) ‘carrier’ means a natural or legal person that transports, on
a professional basis or in an official capacity, third-country
nationals who are the subject of removal orders by the
Member States;

(9) In accordance with Articles 1 and 2 of the Protocol on
the position of the United Kingdom and Ireland annexed
to the Treaty on the European Union and to the Treaty
these Member
establishing the European Community,
this
States are not
that
Directive and therefore, subject
Protocol, are not bound by it or subject to its application.

in the adoption of
to Article 4 of

taking part

(f)

‘escort’ personnel means
requested
the
Member State's personnel responsible for accompanying
the
subject of a
removal order,
including persons responsible for medical
care and interpreters.

third-country national who is

requesting or

the

(10) This Directive constitutes an act building on the Schengen
acquis or otherwise related to it within the meaning of
Article 3(1) of the 2003 Act of Accession.

(1) OJ L 176, 10.7.1999, p. 36.
(2) OJ L 176, 10.7.1999, p. 31.

Article 3

General principles

1.
Before removing third-country nationals, who are the
subject to removal orders, through the territory of one or
more Member States, Member States
first examine
whether it is possible to use direct air or sea links with the
country of origin or destination of the said nationals.

shall

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The decision to remove a third-country national, who is
2.
the subject of a removal order, through the territory of one or
more Member States shall be taken on the basis of practical
considerations such as the geographical proximity to another
Member State of the third-country national's country of origin
or destination.

3.
To this end, the requesting Member State may avail itself
of the procedures provided for in any readmission agreements
entered into bilaterally or multilaterally with the third-country
national's country of origin or destination and between the
Member States, or, in the latter case, in agreements on entry
for transit purposes.

4. Without prejudice to the obligations referred to in Article
10, the requested Member States(s) may refuse transit through
the territory of a Member State if:

(a)

in accordance with existing legislation, the third-country
national, who is the subject of a removal order, is subject
to criminal proceedings in the requested Member State or
has been condemned to serve a prison sentence in that
State;

(b) transit through the territory of one or more Member States
or admission to the third country of final destination is not
possible for any reason;

(c) the requested assistance is
moment for practical reasons;

impossible at a particular

(d) the third-country national, who is the subject of a removal
order, will be a threat to public security, public policy or
the
to the international
public health or
requested Member State;

relations of

(e) the third country of origin or final destination has a border

with the requesting Member State.

In the case referred to in paragraph 4(c), the requested
5.
Member State(s)
shall as quickly as possible inform the
requesting Member State of a date as close as possible to the
originally requested date on which transit may be assisted,
insofar as the other conditions are complied with.

Authorisations already issued for transit

through the
6.
territory of one or more Member States may be withdrawn
by the requested Member State(s)
if the circumstances that
may justify refusal of assistance during transit as referred to
in paragraph 4 arise after the authorisations were granted.

7.
The requested Member State(s) shall immediately notify
the requesting Member State of the refusal or withdrawal of a
transit authorisation under paragraphs 4 and 6 and shall
provide an explanation of the reasons.

The above procedures and requirements shall apply in the
transit by land through several

8.
same way in the case of
Member States in succession.

Article 4

Request for transit

1.
The request for transit through the territory of one or
more Member States for the purpose of removing third-country
nationals, who are the subject of removal orders, and the
related assistance measures referred to in Article 7 shall be
communicated in writing by the requesting Member State to
the requested Member State(s) as soon as possible and in any
case not later than two days before the transit. This time limit
may be waived in particularly urgent and duly justified cases.

In the case of transit through several Member States, the
2.
requesting Member State shall at the same time communicate
in writing the request for the actual transit and the related
assistance measures in accordance with the procedures laid
down in paragraph 1.

3.
The requesting Member State shall in due course notify
the requested Member State(s) in writing of the withdrawal of
any request for transit.

4. Within two days of the request for transit through the
territory of one or more Member States, the requested Member
State(s) shall notify the requesting State of the acceptance or
refusal of assistance; in the latter case, reasons shall be given
for the refusal. The above time-limit may be extended in duly
justified cases.

5. Where no reply is provided by the requested Member
State(s) within the time-limit referred to in paragraph 4, the
transit operations may be started by means of a notification by
the requesting Member State.

6.
Transit through the territory of a Member State may in
no event take place without the approval of the requested
Member State(s) or notification by the requesting Member
State as referred to in paragraph 5.

Member States may provide on the basis of bilateral or multi-
lateral agreements or arrangements
transit operations
through the territory to be started by means of a notification
by the requesting Member State.

for

Member States shall notify the Commission regarding the
agreements and/or arrangements referred to in the second
subparagraph. The Commission shall regularly report to the
Council on such agreements and/or arrangements.

Article 5

Transit arrangements

1.
The arrangements for transit through the territory of one
or more Member States shall be communicated using the
attached form, which must be transmitted to the requested
Member State(s). The necessary measures for adjusting and
amending that form, as well as the methods of transmission,
shall be taken in accordance with the procedure set out in
Article 11.

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The Member States shall designate a central authority to
for

forwarding and receiving requests

2.
be responsible for
assistance in cases of transit.

On the basis of bilateral or multilateral agreements or
3.
arrangements the Member States may establish the border
posts through which third-country nationals who are the
subject of removal orders are allowed to enter their territory
in transit, making use of all existing opportunities for coop-
eration and, where provided for, of any common cross-border
cooperation offices that may be set up at internal borders.

The requesting Member State shall

indicate in the
4.
application form for transit the crossing point through which
entry into the requested Member State is
the
crossing points located at
the borders with other Member
States in the case of transit through several Member States,
and the Member State's exit crossing point with the country
of origin or destination of the third-country national who is
being removed.

requested,

Article 6

Carriers used

1.
For the purposes of transit through the territory of one or
more Member States, use may be made of public carriers such
as scheduled trains,
ferries or buses or unmarked police
vehicles.

2. Where police vehicles are used it may be agreed that
through the territory of certain requested Member
transit
States
from those
shall be provided by police vehicles
Member States.

(c) emergency medical assistance for the said third-country

national and escort personnel;

(d) assistance in the event of incidents while the said third-

country national is in transit;

(e) providing sustenance for the said third-country national

and, if necessary, his/her escort;

(f) communicating the details concerning the time and place
of the transit operation and giving notice that the said
third-country national has been finally removed from the
territory of the Member States.

In accordance with the national legislation in force, the

3.
requested Member State(s) may:

(a) arrange accommodation for escort personnel and the third-
country national, who is the subject of a removal order,
with an appropriately secure facility for the latter;

(b) use legitimate means to prevent or end any attempt by the

said third-country national to resist the transit.

in cases where the
4. Without prejudice to Article 8(1),
completion of transit operations cannot be ensured, despite
the assistance provided for in accordance with paragraphs 1
and 2, the requested Member State may, upon request by and
in consultation with the requesting Member State, take all the
necessary assistance measures to continue the transit operation.

In such cases, the time-limit referred to in paragraph 1 may be
extended by a maximum of 48 hours.

Article 7

Assistance measures

5.
The competent authorities of the requested Member State
with whom responsibility for the measure lies shall decide the
nature and extent of the assistance afforded under paragraph 4.

The requesting Member State shall

take appropriate
1.
arrangements to ensure that the transit operation takes place
in the shortest possible time.

6.
The costs of the services provided according to paragraph
2(c), (d) and (e) shall be borne by the requesting Member State.

As a general rule, the transit operation shall take place within
36 hours.

The

2.
requesting State with all possible assistance during transit.

requested Member

shall provide

State(s)

the

This relates to the following assistance measures in particular:

(a) the competent personnel of the requested Member State(s)
making direct contact with the third-country national, who
is the subject of a removal order, and the escort upon entry
into national territory;

The remaining costs shall also be borne by the requesting
Member State to the extent that they are actual and quan-
tifiable. Where the requested Member State considers
it
necessary unilaterally to adopt further assistance measures for
the security of the transit operation, the costs arising from the
adoption of such measures shall be agreed with the requesting
Member State for the purposes of any reimbursement.

Member States shall provide appropriate information with
regard to the criteria of quantification of the costs referred to
in the second subparagraph.

Article 8

Readmission by the requesting State

(b) providing the said third-country national and, if necessary,
escort personnel with assistance to ensure that the transit
operation is completed successfully;

The requesting Member State shall readmit

1.
the third-
country national, who is the subject of a removal order, to
its territory at the earliest opportunity if:

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(a) authorisation for transit through the territory of one or
more Member States has been refused or revoked for the
reasons mentioned in Article 3(4) and (6);

Article 11

Committee procedure

(b) the removal of

the said third-country national
country of origin or destination was unsuccessful;

to the

(c) transit through the territory of one or more Member States

cannot continue for any other reason.

2.
The requested Member State shall assist with the read-
mission of the third-country national, who is the subject of a
removal order, 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 said third-country
national.

Article 9

Escorts

Removals in transit through the territory of one or more

1.
Member States shall take place with an escort.

transit operations,

the powers of
2. When carrying out
escort personnel shall be limited to legitimate defence.
In
addition, in the absence of law-enforcement officers from the
requested Member State, escort personnel may take reasonable
and proportionate action to deal with a serious and immediate
risk so as to prevent the third-country national, who is the
subject of a removal order, from escaping or from causing
injury to himself or to others or damage to property.

Under all circumstances escort personnel must comply with the
legislation of the requested Member State.

Escort personnel shall not carry weapons during transit
3.
operations and shall wear civilian clothes. They shall have
appropriate identification together with the transit author-
isation issued by the Member States concerned or, where
appropriate, the notification referred to in Article 4(5), at the
request of the requested Member State.

Article 10

Safeguard clause concerning asylum

This Directive shall be without prejudice to the obligations
arising from the Geneva Convention relating to the status of
refugees of 28 July 1951 and the New York Protocol of 31
relating to
January 1967,
human rights and fundamental
freedoms and from the
Convention Determining the State Responsible for Examining
Applications for Asylum Lodged in one of the Member States
of
from international
European Community
conventions on the extradition of persons.

from international conventions

and

the

1.

The Commission shall be assisted by a committee.

2. Where reference is made to this paragraph, Articles 5 and
7 of Decision 1999/468/EC shall apply.

The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at one month.

3.

The Committee shall adopt its rules of procedure.

Article 12

Final clause

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 the
Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
order to implement this Directive.

Article 13

Entry into force

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Union.

Article 14

Addressees

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

Done at . . .

For the Council

The President

. . .