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

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 Community, 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) 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 European 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.
(2) The application of Directive 2001/40/EC(1) may result in financial imbalances where 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 for the bilateral compensation of Member States should therefore be adopted.
(3) This Decision should also constitute the basis for establishing the criteria and practical arrangements required for the implementation of the provisions of Article 24 of the Schengen Convention.
(4) Since the objective of the proposed action, namely financial 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 adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In 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.
(5) This Decision respects the fundamental rights and 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.
(6) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European 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 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, 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.
(7) 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 Agreement(3).
(8) In accordance with Article 3 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, the United Kingdom has notified its wish to take part in the adoption and application of this Decision. To the extent that this Decision also implements the provisions of Article 24 of the Schengen Convention, in accordance with Article 7 of Directive 2001/40/EC, it does not affect the United Kingdom.
(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 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,