Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air
Date: 2003-11-25
Institutions: Council of the European Union
Subjects: air transport, foreign national, illegal migration, removal, transit

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COUNCIL DIRECTIVE 2003/110/EC

of 25 November 2003

on assistance in cases of transit for the purposes of removal by air

THE COUNCIL OF THE EUROPEAN UNION,

(7)

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

Having regard to the initiative of
Germany,

the Federal Republic of

Having regard to the opinion of the European Parliament,

Whereas:

(1)

(2)

(3)

(4)

(5)

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 stan-
dardisation of procedures.

terminating the residence of

Removal by air is increasingly gaining in importance for
the purpose 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.

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
third-country
the Contracting Parties
(SCH/Com-ex (98) 10) (2) already
nationals by air,
address the need for cooperation between Member States
in the field of removal by air of third-country nationals.

in returning

The sovereignty of the Member States, particularly with
regard to the use of direct force against third-country
nationals resisting removal should remain unaffected.

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
should remain unaffected.

(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.

(8)

(9)

Member States are to implement this Directive with due
respect for human rights and fundamental freedoms, in
particular 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 the European
Convention for the Protection of Human Rights and
Fundamental Freedoms. In accordance with the applic-
able international obligations, transit by air should be
neither requested nor granted if in the third country of
destination or of 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
religion, nationality,
risk by reason of his/her
membership of a particular social group or political
conviction.

race,

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 procedures for the exercise of implementing powers
conferred on the Commission (3).

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on Euro-
pean Union and the Treaty establishing the European
Community, Denmark is not participating in the adop-
tion 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 Three of the Treaty establishing the European
Community to the extent that it applies to third-country
nationals who do not fulfil or who no longer fulfil the
conditions for a short stay applicable within the territory
of a Member State by virtue of the provisions of the
Schengen acquis,
in accordance with Article 5 of 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
or not.

(10) 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 by the
Council of the European Union and the Republic of
Iceland and the Kingdom of Norway concerning the
association of these two States with the implementation,
application and development of the Schengen acquis (4),
to the extent that it applies to third-country nationals
who do not fulfil or who no longer fulfil the conditions
for a short stay applicable within the territory of a
Member State by virtue of
the
Schengen acquis, which fall within the area referred to in
Article 1, point C, of Council Decision 1999/437/EC of
17 May 1999 on certain arrangements for the applica-
tion of that Agreement (5).

the provisions of

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

(3) OJ L 184, 17.7.1999, p. 23.
(4) OJ L 176, 10.7.1999, p. 36.
(5) OJ L 176, 10.7.1999, p. 31.

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(11)

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
establishing the European Community, these Member
States are not taking part in the adoption of this Direc-
tive and therefore, subject to Article 4 of that Protocol,
are not bound by it or subject to its application.

(12)

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,

HAS ADOPTED THIS DIRECTIVE:

Article 1

The purpose of this Directive is to define measures on assis-
tance between the competent authorities at Member State
airports of
transit with regard to unescorted and escorted
removals by air.

Article 2

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 via the airport of transit of
another Member State;

(c) ‘requested Member State’ or ‘transit Member State’ means
the Member State via whose airport of transit the transit is
to be effected;

(d) ‘escort’ means all persons from the requesting Member State
responsible for accompanying the third-country national,
including persons responsible for medical care and inter-
preters;

(e) ‘transit by air’ means the passage of

the third-country
national and, if necessary, the escort through the area of
the airport of the requested Member State for the purposes
of removal by air.

Article 3

A Member State wishing to return a third-country
1.
national by air shall examine whether it is possible to use a
direct flight to the country of destination.

If a Member State wishing to return a third-country
2.
national cannot for reasonable practical circumstances use a
direct flight to the country of destination, it can request transit
by air via another Member State. An application for transit by
air shall
in principle not be made if the removal measure
requires a change of airport on the territory of the requested
Member State.

3. Without prejudice to the obligations of Article 8, the
requested Member State may refuse transit by air if:

(a) the third-country national under national legislation in the
requested Member State is charged with criminal offences
or is wanted for the carrying out of a sentence;

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

destination is not feasible;

(c) the removal measure requires a change of airport on the

territory of the requested Member State;

(d) the requested assistance is

impossible at a particular

moment for practical reasons, or

(e) the third-country national will be a threat to public policy,
public security, public health or to the international rela-
tions of the requested Member State.

In the case of paragraph 3(d), the requested Member State
4.
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 by air may be assisted, in so far as the other
conditions are complied with.

5.
Authorisations for transit by air which have already been
issued may be revoked by the requested Member State if
circumstances within the meaning of paragraph 3 subsequently
come to light, justifying a refusal of the transit.

6.
The requested Member State shall inform the requesting
Member State forthwith of the refusal or revocation of a transit
by air authorisation under paragraph 3 or 5 or of any other
reason why the transit is not possible, and shall provide an
explanation of the reasons.

Article 4

1.
The request for escorted or unescorted transit by air and
the 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 days before the transit. This time limit
may be waived in particularly urgent and duly justified cases.

The requested Member State shall inform the requesting
2.
Member State forthwith of its decision within two days. This
time limit may be extended in duly justified cases by a
maximum of 48 hours. Transit by air shall not be started
without the approval of the requested Member State.

Where no reply is provided by the requested Member State
within the deadline referred to in the first subparagraph, the
transit operations may be started by means of a notification by
the requesting Member State.

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

Member States shall notify the Commission regarding the
agreements or arrangements referred to in the third sub-
to the
paragraph. The Commission shall
Council on such agreements and arrangements.

regularly report

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For the purposes of dealing with the request under para-
3.
graph 1, the information on the form to be used for requesting
and authorising transit by air in accordance with the Annex
shall be forwarded to the requested Member State.

The measures necessary for the update and the adjustment of
the transit request as set out in the Annex as well as the
methods of its transmission shall be taken in accordance with
the procedure referred to in Article 9(2).

4. With respect to any request for transit, the requesting
Member State shall provide the requested Member State with
the details as provided for in the Annex.

The Member States shall each appoint a central authority

5.
to which requests under paragraph 1 are to be sent.

The central authorities shall appoint contact points for all the
relevant airports of transit who can be contacted throughout
the transit operations.

Article 5

The requesting Member State shall

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

The transit operation shall take place at a maximum within 24
hours.

2.
The requested Member State, subject to mutual consulta-
tions with the requesting Member State within available means
and in compliance with relevant international standards, shall
provide all the assistance measures necessary from landing and
the opening of the aircraft doors until it is ensured that the
third-country national has left. However, mutual consultations
are not required in the cases referred to in point (b).

This relates to the following assistance measures in particular:

(a) meeting the third-country national at

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

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

national and, if necessary, his/her escort;

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

necessary, his/her escort;

(d) receiving, keeping and forwarding travel documents, parti-

cularly in the case of unescorted removals;

(e) in cases of unescorted transit,

informing the requesting
Member State of the place and time of departure of the
third-country national from the territory of the Member
State concerned;

(f) informing the requesting Member State if any serious inci-
dents took place during the transit of the third-country
national.

The requested Member State may, in accordance with its

3.
national law:

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

third-country national to resist the transit.

4. Without prejudice to Article 6(1),
in cases where the
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.

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 paragraphs
2, 3 and 4.

The costs of the services provided according to paragraph

6.
2(b) and (c) shall be borne by the requesting Member State.

The remaining costs shall also be borne by the requesting
Member State to the extent that they are actual and quantifi-
able.

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

Article 6

The requesting Member State shall undertake to readmit

1.
the third-country national forthwith if:

(a) the transit by air authorisation was refused or revoked

under Article 3(3) or (5);

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

State without authorisation during the transit;

(c) removal of the third-country national to another transit
country or to the country of destination, or boarding of the
connecting flight, was unsuccessful; or

(d) transit by air is not possible for another reason.

The requested Member State shall assist with the readmis-
2.
sion 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.

Article 7

1. When carrying out the transit operation, the powers of
the escorts shall be limited to self-defence. In addition, in the
absence of law-enforcement officers from the transit Member
State or for the purpose of supporting the law-enforcement
officers,
the escorts may use reasonable and proportionate
action in response to an immediate and serious risk to prevent
the third-country national
from escaping, causing injury to
himself/herself or to a third party, or damage to property.

(a) place and accommodate the third-country nationals in a

secure facility;

Under all circumstances escorts must comply with the legisla-
tion of the requested Member State.

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Escorts shall not carry weapons during transit by air and
2.
shall wear civilian clothes. They shall provide means of appro-
priate identification,
including the transit authorisation deliv-
ered by the transit Member State, or where applicable, the noti-
fication referred to in Article 4(2), at
the
requested Member State.

the request of

Article 8

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 international conventions
on human rights and fundamental freedoms and from interna-
tional conventions on the extradition of persons.

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

Article 11

The Decision of the Executive Committee of 21 April 1998 on
in returning
cooperation between the Contracting Parties
foreign nationals by air
shall be
repealed.

(SCH/Com-ex (98) 10)

Article 9

Article 12

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.

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

Article 13

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

Article 10

Done at Brussels, 25 November 2003.

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 6 December 2005 They shall forthwith inform
the Commission thereof.

For the Council

The President

G. TREMONTI

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