2004/191/EC: Council Decision of 23 February 2004 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third-country nationals
Date: 2004-02-23
Institutions: Council of the European Union
Subjects: EU migration policy, financial equalisation, foreign national, removal

27.2.2004

EN

Official Journal of the European Union

L 60/55

COUNCIL DECISION

of 23 February 2004

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

(2004/191/EC)

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Whereas:

(1)

(2)

(3)

(4)

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 Euro-
pean 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.

imbalances where

The application of Directive 2001/40/EC (1) may result
in financial
expulsion decisions,
despite the efforts made by the enforcing Member State,
cannot be effected at the expense of the third country
national concerned or of a third party. Appropriate
criteria and practical arrangements
the bilateral
compensation of Member States should therefore be
adopted.

for

This Decision should also constitute the basis for estab-
lishing the criteria and practical arrangements required
for the implementation of the provisions of Article 24
of the Schengen Convention.

Since the objective of the proposed action, namely finan-
cial burden-sharing for cooperation between Member
States on expulsion of third-country nationals in the
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 action, be better
achieved at Community level,
the Community may
in accordance with the principle of
adopt measures,
In
subsidiarity as set out in Article 5 of the Treaty.

(5)

(6)

(7)

accordance with the principle of proportionality, as set
out in that Article, this Decision does not go beyond
what is necessary in order to achieve that objective.

the fundamental

rights and
This Decision respects
observes the principles reflected in particular in the
Charter of Fundamental Rights of the European Union.
In particular this Decision seeks to ensure full respect for
human dignity in the event of expulsion and removal, as
reflected in Articles 1, 18 and 19 of the Charter.

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 taking part in the adoption
of this Decision, and is not bound by it or subject to its
application. Given that this Decision builds upon the
Schengen acquis under the provisions of Title IV of Part
Three of
the Treaty establishing the European Com-
munity 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, Denmark will,
in accordance with
Article 5 of the said Protocol, decide within a period of
six months after the Council has adopted this Decision
whether it will implement it in its national law.

As regards Iceland and Norway, this Decision constitutes
a development of
the Schengen acquis within the
meaning of the Agreement concluded by the Council of
the European Union and the Republic of Iceland and the
Kingdom of Norway concerning the association of those
two States with the implementation, application and
development of the Schengen acquis (2), 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, 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 application of that Agree-
ment (3).

(1) OJ L 149, 2.6.2001, p. 34.

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

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Official Journal of the European Union

27.2.2004

(8)

(9)

In accordance with Article 3 of the Protocol on the posi-
tion of the United Kingdom and Ireland, annexed to the
Treaty on the European Union and to the Treaty estab-
lishing the European Community, the United Kingdom
has notified its wish to take part in the adoption and
application of this Decision. To the extent that this Deci-
sion also implements the provisions of Article 24 of the
Schengen Convention, in accordance with Article 7 of
Directive 2001/40/EC,
the United
Kingdom.

it does not affect

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, and
without prejudice to Article 4 of
the said Protocol,
Ireland is not taking part in the adoption and application
of this Decision and is not bound by it or subject to its
application.

(10)

This Directive
constitutes an act building on the
Schengen acquis or otherwise related to it within the
meaning of Article 3(2) of the 2003 Act of Accession,

HAS ADOPTED THIS DECISION:

Article 1

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

the expense of

Article 2

1.
The issuing Member State shall compensate the enforcing
Member State for financial imbalances, which may result from
the application of Directive 2001/40/EC where expulsion
cannot be effected at the expense of the national(s) of the third
country concerned.

The enforcing Member State shall provide the issuing Member
State with general information about the indicative costs of the
removal operations.

The reimbursement shall take place at the request of the
2.
enforcing Member State on the basis of the minimum actual
costs and on the basis of the following principles:

(a) transport costs. These include 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 or maritime transport by car, train or boat
can be claimed on the basis of a second class train or boat
ticket for the respective distance at the time of enforce-
ment;

(b) administrative costs. These include the actual costs for visa
fees and the fees for the issuing of return travel documents
(laissez-passer);

(c) mission allowances per diem for the escorts. These are to
be determined in accordance with the applicable national
legislation and/or practice;

(d) accommodation costs for the escorts. These include actual
costs for these persons' stay in a transit area of a third
country and for their strictly necessary short stay for the
implementation of their mission in the country of origin.
For the purpose of reimbursement, the number of escorts
shall not exceed two persons per returnee, unless, on the
basis of the assessment of the enforcing Member State and
in agreement with the issuing Member State, more escorts
are required;

(e) accommodation costs for the returnee. These include the
actual costs for the returnee's stay in an appropriate facility
in accordance with the applicable national legislation and/
or practice of the enforcing Member State. A maximum
period of three months of stay shall be reimbursed. Where
the returnee's stay is expected to last longer than three
months,
the enforcing Member State and the issuing
Member State shall agree to the additional costs;

(f) medical costs. These include the actual costs for the provi-
sion of medical treatment to the returnee and the escorts in
emergency
hospitalisation
expenses.

necessary

including

cases,

Where necessary, the enforcing Member State shall consult the
issuing Member State and agree on costs exceeding those set
out in this paragraph or on additional costs.

Article 3

1.
Reimbursement requests shall be made in writing and
shall be accompanied by documentary proof of the recoverable
costs.

2.
Requests for reimbursement can only be made for expul-
sion decisions, which are issued after this Decision takes effect.

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

Requests for reimbursement submitted more than one

3.
year after the enforcement has taken place may be rejected.

4.
Each Member State shall establish a national contact
point for the implementation of this Decision and communi-
cate the relevant data to the other Member States.

Any request for reimbursement shall be sent by the national
contact point of the enforcing Member State to the national
contact point of the issuing Member State, which shall inform
the national contact point of the enforcing Member State of the
receipt of the request.

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Official Journal of the European Union

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5. Within a maximum of three months the national contact
point of the issuing Member State shall communicate to the
national contact point of
the enforcing Member State the
acceptance or the refusal of the request. Such a communication
shall be in writing, stating the reasons in case of refusal.

6.
Payments shall be made within a maximum of three
months from the acceptance of the payment by the national
contact point of the issuing Member State.

The national contact points of the enforcing Member
7.
State and of the issuing Member State shall be informed of
payments and of refusals to reimburse.

Article 4

1.
In order to monitor the smooth implementation of this
Decision as well as of the Directive 2001/40/EC, each national
contact point shall regularly provide information concerning in
particular: the total number of enforcement measures taken
under Directive 2001/40/EC which were reimbursed in accord-
ance to this Decision and the total number of refusals to reim-
burse together with the reasons for such refusals.

Such information may also include recommendations
2.
with a view to improving the criteria and practical arrange-
ments of this Decision.

Article 5

This Decision shall take effect on the day following that of its
publication in the Official Journal of the European Union.

Article 6

This Decision is addressed to the Member States.

Done at Brussels, 23 February 2004.

For the Council

The President

B. COWEN