Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the Agreement between the European Union and the Republic of Belarus on the readmission of persons residing without authorisation
Date: 2019-08-30
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Belarus, EU visa policy, agreement (EU), illegal migration, residence permit, return migration, signature of an agreement

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   EUROPEAN COMMISSION  Brussels, 30.8.2019  COM(2019) 404 final 2019/0185 (NLE)  Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of the Agreement between the European Union  and the Republic of Belarus on the readmission of persons residing without authorisation  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

In the context of the Eastern Partnership Summit in May 2009, the EU reaffirmed its political 
support  towards  full  liberalization  of  the  visa  regime  in  a  secure  environment,  and  towards 
promoting mobility by concluding visa facilitation and readmission agreements with Eastern 
Partnership countries. According to the common approach for the development of EU policy 
on visa facilitation agreed at the level of COREPER by the Member States in December 2005, 
a visa facilitation agreement would not be concluded without a readmission agreement being 
in place. 

On  that  basis,  the  Commission  presented  on  12  November  2010,  a  recommendation  to  the 
Council  with  a  view  to  obtaining  directives  to  negotiate  Agreements  with  the  Republic  of 
Belarus on,  respectively, the facilitation of the issuance of short-stay visas, and readmission 
of persons residing without authorisation. 

On  28  February  2011,  the  Council  formally  authorised  the  Commission  to  negotiate  a 
readmission agreement between the European Union and Belarus. 

The  negotiations  were  formally  launched  on  30  January  2014  and  the  first  round  of  formal 
negotiations  was  held  in  Minsk  on  13  June  2014.  It  was  followed  by  a  three  rounds  of 
negotiations  first  in  Brussels  on  25  November  2014  then  and  on  11  March  2015  and  on  20 
June 2017 in Minsk. The chief negotiators initialled the text of the agreement on 17 June 2019 
via exchange of emails. 

In  the  meantime,  Belarus,  the  European  Union  and  seven  participating  Member  States 
(Bulgaria,  Romania,  Lithuania,  Poland,  Hungary,  Finland  and  Latvia)  signed  a  Joint 
Declaration on a Mobility Partnership on 13 October 2016. 

Member States have been regularly informed and consulted at all (informal and formal) stages 
of the readmission negotiations. 

Member States have been regularly informed and consulted in the relevant Council’s Working 
Parties at all stages of the negotiations. The final draft of the Agreement text was shared with 
the  Justice  and  Home  Affairs  Counsellors  (Migration,  Integration,  and  Expulsion)  and 
endorsed, via silence procedure, on 12 April 2019. 

On  17  April  2019,  the  European  Parliament  was  informed  about  the  conclusion  of 
negotiations on both the Visa Facilitation and Readmission Agreements, by means of a letter 
sent  by  the  Director  General  of  DG  Migration  and  Home  Affairs  to  the  Chair  of  the 
Committee on Civil Liberties, Justice and Home Affairs. The draft texts of both Agreements 
were annexed.  

The proposed decision concerning the conclusion sets out the necessary internal arrangements 
for the practical application of the Agreement. In particular, it specifies that the Commission, 
assisted by experts from Member States, represents  the Union within the Joint Readmission 
Committee set up by Article 19 of the Agreement. 

The attached proposal constitutes the legal instrument for the signing of the Agreement. The 
Council will decide by qualified majority. 

2. 

AIM AND CONTENT OF THE AGREEMENT  

The Agreement between the European Union and the Republic of Belarus on the readmission 
of  persons  residing  without  authorisation  (hereinafter:  ‘the  Agreement’)  aims  to  establish 

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rapid  and  effective  procedures  for  the  identification  and  safe  and  orderly  return  of  persons 
who do not,  or no longer, fulfil the conditions  for entry to,  presence in,  or residence on the 
territory of Belarus or one of the Member States of the European Union, and to facilitate the 
transit of such persons in a spirit of co-operation. 

The Commission considers that the objectives set by the Council in its negotiating directives 
were attained and that the draft Readmission Agreement is acceptable to the Union. 

The final content of this Agreement can be summarised as follows: 

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The Agreement is divided into 8 sections with 24 articles altogether. The Agreement 
also contains 7 annexes, which form an integral part of it, and 5 joint declarations. 

The Agreement contains an opening clause, reaffirming that the Agreement shall be 
applied  so  as  to  ensure  respect  for  human  rights,  and  for  the  obligations  and 
responsibilities  of  the  Requested  State  and  Requesting  State  under  relevant 
international instruments applicable to them, and reiterating that the Requested State 
shall  in  particular  ensure  the  protection  of  the  rights  of  persons  readmitted  to  its 
territory in compliance with those international instruments. 

The readmission obligations set out in the Agreement (Articles 3 - 6) are drawn up in 
a  fully  reciprocal  manner,  comprising  own  nationals  (Articles  3  and  5)  as  well  as 
third country nationals and stateless persons (Articles 4 and 6).  

The  obligation  to  readmit  own  nationals  includes  also  former  own  nationals  who 
have been deprived of, or who have renounced their nationality without acquiring the 
nationality of another State. 

The readmission obligation with regard to own nationals covers also family members 
(i.e. spouses  and minor  unmarried  children) regardless  of their nationality  and who 
do not have an independent right of residence in the Requesting State.  

The  obligation  to  readmit  third  country  nationals  and  stateless  persons  (Articles  4 
and 6) is linked to the following prerequisites: (a) the person concerned holds, at the 
time of entry, either a residence permit issued by the Requested State or a valid visa 
issued by the Requested State accompanied by a proof of entry to the territory of the 
Requested  State;  or  (b)  the  person  concerned  illegally  and  directly  entered  the 
territory  of  the  Requesting  State  after  having  stayed  on,  or  transited  through,  the 
territory  of  the  Requested  State.  Such  readmission  obligation  does  not  apply  in 
relation to persons who have only been in airside transit or who have been issued a 
visa  or  a  residence  permit  by  the  Requesting  State  unless  i)  the  visa  or  residence 
permit, issued by the Requested State has a longer period of validity, ii) the visa or 
residence permit issued by the Requesting State has been obtained fraudulently or iii) 
that person fails to observe any condition attached to the visa. 

For  own  nationals,  in  case  of  expiry  of  the  specified  delay,  and  for  third  country 
nationals  or  stateless  persons  Belarus  accepts  the  use  of  the  European  travel 
document  for  return  (Articles  3(5)  and  4(3)).  The  equivalent  standard  document  of 
the Republic of Belarus is included in Annex 7. 

Section  III  of  the  Agreement  (Articles  7  to  13  in  conjunction  with  annexes  1  to  5) 
contains  the  necessary  technical  provisions  regarding  the  readmission  procedure 
(readmission  application,  means  of  evidence,  time  limits,  transfer  modalities  and 
modes of transportation) and 'readmission in error' (Article 13). Procedural flexibility 
is provided by the fact that no readmission application will be needed in cases where 
the person to be readmitted is in possession of a valid travel document (Article 7(2)).  

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3. 

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In Article 7(3), the Agreement sets out the so-called accelerated procedure which has 
been  agreed  upon  for  persons  apprehended  in  an  area  which  extends  up  to  30 
kilometres  from  the  common  land  border  between  a  Member  State  and  Belarus,  as 
well  as  within  the  territory  of  the  international  airports  of  the  Member  States  and 
Belarus.  Under  the  accelerated  procedure,  readmission  applications  have  to  be 
submitted within 2 working days and replies have to be given within 2 working days, 
whereas  under  the  normal  procedure  the  time  limit  for  replies  is  10  calendar  days 
(Article 11(2)). 

The  Agreement  contains  a  section  on  transit  operations  (Articles  14  and  15  in 
conjunction with annex 6). 

Articles 16, 17 and 18 contain the necessary rules on costs, data protection and the 
relation to other international obligations. 

The Joint Readmission Committee will be composed, and have the tasks and powers, 
as set out in Article 19. 

In  order  to  facilitate  the  implementation  of  this  Agreement,  Article  20  creates  the 
possibility  for  Belarus  and  individual  Member  States  to  conclude  bilateral 
implementing Protocols. The relation between bilateral agreements or arrangements 
and this Agreement is clarified by Article 21. 

The  final  provisions  (Articles  22  to  24)  contain  the  necessary  rules  on  territorial 
application, entry into force, duration, possible amendments, suspension, termination 
and the legal status of the annexes to the agreement.  

The specific situation of Denmark, Ireland and the United Kingdom of Great Britain 
and  Northern  Ireland  is  reflected  in  the  preamble,  Article  1(d),  Article  22(2)  and, 
regarding Denmark, in a relevant joint declaration. The close association of Iceland, 
Norway,  Switzerland  and  Liechtenstein  with  the  implementation,  application  and 
development of the Schengen acquis has been taken into account, and is reflected in 
relevant joint declarations to the Agreement. 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This proposal is submitted to the Council in order to authorise the signing of the Agreement.  

The  legal  basis  for  this  proposal  is  Article  79(3)  of  the  Treaty  on  the  Functioning  of  the 
European Union (TFEU), in conjunction with Article 218(5) thereof.  

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Subsidiarity (for non-exclusive competence)  

Not applicable.  

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Proportionality 

The present proposal does not go beyond what is necessary to achieve the objective pursued, 
namely the  conclusion  of  an international agreement  on the readmission of persons residing 
without authorisation. 

4. 

BUDGETARY IMPLICATIONS 

This proposal does not entail additional costs for the EU budget.  

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5. 

CONCLUSIONS 

In the light of the above-mentioned results, the Commission proposes that the Council decides 
that  the  Agreement  is  signed  on  behalf  of  the  Union  and  authorises  the  Council  Secretariat 
General to establish the respective instrument of full powers.  

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2019/0185 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signing, on behalf of the European Union, of the Agreement between the 
European Union  
and the Republic of Belarus on the readmission of persons residing without 
authorisation 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 79(3), in conjunction with Article 218(5), thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

On  28  February  2011,  the  Council  authorised  the  Commission  to  open  negotiations 
with  Belarus  on  the  readmission  of  persons  residing  without  authorisation.  The 
negotiations were successfully concluded by the initialling of the Agreement between 
the  European  Union  and  the  Republic  of  Belarus  on  the  readmission  of  persons 
residing  without  authorisation  (ʻthe  Agreementʼ)  via  exchange  of  emails  on  17  June 
2019. 

In the context of the Eastern Partnership Summit in May 2009, the EU reaffirmed its 
political support towards full liberalization of the visa regime in a secure environment, 
and  towards  promoting  mobility  by  concluding  visa  facilitation  and  readmission 
agreements with Eastern Partnership countries. 

The  purpose  of  the  Agreement  is  to  establish  rapid  and  effective  procedures  for  the 
identification  and  safe  and  orderly  return  of  persons  who  do  not,  or  no  longer,  fulfil 
the conditions for entry to, presence in, or residence on the territory of Belarus or one 
of  the  Member  States  of  the  European  Union,  and  to  facilitate  the  transit  of  such 
persons in a spirit of co-operation. 

In accordance with [Articles 1 and 2] Article 3 of Protocol No 21 on the position of 
the United Kingdom and Ireland in respect of the area of freedom, security and justice, 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European  Union,  [and  without  prejudice  to  Article  4  of  that  Protocol,]  the  United 
Kingdom [is not taking part in the adoption of this Decision and will not be bound by 
it or  subject  to  its  application [unless it notifies its  wish to that effect  in accordance 
with that Protocol] / has notified [, by letter of …,] its wish to take part in the adoption 
and application of this Decision]. 

In accordance with [Articles 1 and 2] Article 3 of Protocol No 21 on the  position of 
the United Kingdom and Ireland, annexed to the Treaty on European Union and to the 
Treaty on the Functioning of the European Union, [and without prejudice to Article 4 
of the said Protocol,] Ireland [is not taking part in the adoption of this Decision and 
will not be bound by it or subject to its application [unless it notifies its wish to that 

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effect  in  accordance  with  that  Protocol] /  has  notified  [,  by  letter  of  …,]  its  wish  to 
take part in the adoption and application of this Decision]. 

(6) 

(7) 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark, 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European Union, Denmark is not taking part in the adoption of this Decision and is not 
bound by it or subject to its application, 

Therefore, the Agreement should be signed on behalf of the European Union, subject 
to its conclusion at a later date, and the Joint Declarations attached to the Agreement 
be approved, 

HAS ADOPTED THIS DECISION:  

The signing of the Agreement between the European Union and the Republic of Belarus on 
the readmission of persons residing without authorisation is approved on behalf of the Union, 
subject to the conclusion of said Agreement1. 

Article 1 

The Joint Declarations attached to the Agreement shall be approved on behalf of the Union. 

Article 2 

The  Council  Secretariat  General  shall  establish  the  instrument  of  full  powers  to  sign  the 
Agreement,  subject  to  its  conclusion,  for  the  person(s)  indicated  by  the  negotiator  of  the 
Agreement.  

Article 3 

This Decision shall enter into force on the day of its adoption 

Done at Brussels, 

Article 4 

For the Council 
The President 

1 

The text of the Agreement will be published together with the decision on its conclusion. 

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