|
|
|
||
|
THE EUROPEAN
UNION |
|
|||
|
|
|
|
|
|
MIGR 24 COMIX 259 |
|
||
LEGISLATIVE
ACTS AND OTHER INSTRUMENTS
|
Subject : |
Council Directive
on the mutual recognition of decisions on the expulsion of third-country nationals |
COUNCIL DIRECTIVE 2001/ /EC
of
on the mutual recognition of decisions on the
expulsion of third country nationals
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 initiative of the French Republic [1],
Having regard to
the Opinion of the European Parliament [2],
Whereas:
(1) The
Treaty stipulates that the Council is to adopt measures on immigration policy
within areas comprising conditions of entry and residence as well as illegal
immigration and illegal residence.
(2) 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.
(3) The
need to ensure greater effectiveness in enforcing expulsion decisions and
better cooperation between Member States entails mutual recognition of
expulsion decisions.
(4) Decisions
on the expulsion of third country nationals have to be adopted in accordance
with fundamental rights, as safeguarded by the European Convention for the
Protection of Human Rights and Fundamental Freedoms of
4 November 1950, in particular Articles 3 and 8 thereof, and the
Geneva Convention relating to the Status of Refugees of 28 July 1951
and as they result from the constitutional principles common to the Member
States.
(5) In
accordance with the principle of subsidiarity, the objective of the proposed
action, namely cooperation between Member States on expulsion of third country
nationals, cannot be sufficiently achieved by the Member States and can
therefore, by reason of the effects of the envisaged action, be better achieved
by the Community. This Directive
does not go beyond what is necessary to achieve that objective.
(6) In
accordance with Article 3 of the Protocol on the position of the United Kingdom
and Ireland annexed to the Treaty on European Union and the Treaty establishing
the European Community, the United Kingdom has given notice by letter of 18
October 2000 of its wish to take part in the adoption and application of this
Directive.
(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 Treaty establishing 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 aims to build upon the Schengen acquis under the
provisions of Title IV of the Treaty establishing the European
Community, in accordance with Article 5 of the abovementioned Protocol, Denmark will decide within a period of six months
after the Council has adopted this Directive whether it will transpose this
decision into its national law.
(8) As regards the
Republic of Iceland and the Kingdom of Norway, this Directive constitutes a
development of the Schengen acquis within the meaning of the agreement
concluded on 18 May 1999 between the Council of the European Union
and those two States. As a result
of the procedures laid down in the agreement, the rights and obligations
arising from this Directive should 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,
HAS ADOPTED THIS
DIRECTIVE:
Article 1
1. Without prejudice to the
obligations arising from Article 23 and to the application of Article 96
of the Convention implementing the Schengen Agreement of
14 June 1985, signed at Schengen on 19 June 1990,
hereinafter referred to as the "Schengen Convention", the purpose of
this Directive is to make possible the recognition of an expulsion decision
issued by a competent authority in one Member State, hereinafter referred to as
the "issuing Member State", against a third country national present
within the territory of another Member State, hereinafter referred to as the
"enforcing Member State".
2. Any decision taken pursuant to
paragraph 1 shall be implemented according to the applicable legislation of the
enforcing Member State.
3. This Directive shall not apply to
family members of citizens of the Union who have exercised their right of free
movement.
Article 2
For the purposes
of this Directive,
(a) "third
country national" shall mean anyone who is not a national of any of the
Member States;
(b) "expulsion
decision" shall mean any decision which orders an expulsion taken by a
competent administrative authority of an issuing Member State;
(c) "enforcement
measure" shall mean any measure taken by the enforcing Member State with a
view to implementing an expulsion decision.
Article 3
1. The expulsion referred to in
Article 1 shall apply to the following cases:
(a) a
third country national is the subject of an expulsion decision based on a
serious and present threat to public order or to national security and safety,
taken in the following cases:
– conviction
of a third country national by the issuing Member State for an offence
punishable by a penalty involving deprivation of liberty of at least one year,
– the
existence of serious grounds for believing that a third country national has
committed serious criminal offences or the existence of solid evidence of his
intention to commit such offences within the territory of a Member State.
Without prejudice to Article 25(2) of the
Schengen Convention, if the person concerned holds a residence permit issued by
the enforcing Member State or by another Member State, the enforcing State
shall consult the issuing State and the State which issued the permit. The existence of an expulsion decision
taken under this point shall allow for the residence permit to be withdrawn if
this is authorised by the national legislation of the State which issued the
permit;
(b) a
third country national is the subject of an expulsion decision based on failure
to comply with national rules on the entry or residence of aliens.
In the two cases
referred to in (a) and (b), the expulsion decision must not have been rescinded
or suspended by the issuing Member State.
2. Member States shall apply this
Directive with due respect for human rights and fundamental freedoms.
3. This Directive shall be applied
without prejudice to the provisions of the Convention Determining the State
Responsible for Examining Applications for Asylum Lodged in one of the Member
States of the European Communities and readmission agreements between Member
States.
Article 4
The Member States
shall ensure that the third country national concerned may, in accordance with
the enforcing Member State's legislation, bring proceedings for a remedy
against any measure referred to in Article 1(2).
Article 5
Protection of
personal data and data security shall be ensured in accordance with
Directive 95/46/EC of the European Parliament and of the Council of
24 October 1995 on the protection of individuals with regard to the
processing of personal data and on the free movement of such data [3].
Without prejudice
to Articles 101 and 102 of the Schengen Convention, personal data files
shall be used in the context of this Directive only for the purposes laid down
therein.
Article 6
The authorities of
the issuing Member State and of the enforcing Member State shall make use of
all appropriate means of cooperation and of exchanging information to implement
this Directive.
The issuing Member
State shall provide the enforcing Member State with all documents needed to
certify the continued enforceability of the decision by the fastest appropriate
means, where necessary in accordance with the relevant provisions of the SIRENE
Manual.
The enforcing
Member State shall first examine the situation of the person concerned to
ensure that neither the relevant international instruments nor the national
rules applicable conflict with the enforcement of the expulsion decision.
After
implementation of the enforcement measure, the enforcing Member State shall
inform the issuing Member State.
Article 7
Member States
shall compensate each other for any financial imbalances which may result from
application of this Directive where expulsion cannot be effected at the expense
of the national(s) of the third country concerned.
In order to enable
this Article to be implemented, the Council, acting on a proposal from the
Commission, shall adopt appropriate criteria and practical arrangements before
.......... *.
These criteria and practical arrangements shall also apply to the
implementation of Article 24 of the Schengen Agreement.
Article 8
1. Member States shall bring into
force the laws, regulations and administrative provisions necessary to comply
with this Directive not later than .......... *
. They shall forthwith inform the
Commission thereof.
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 domestic law which they
adopt in the field governed by this Directive.
Article 9
This Directive
shall enter into force the day of its publication in the Official Journal of
the European Communities.
Article 10
This Directive is
addressed to the Member States, in accordance with the Treaty establishing the
European Community.
Done at
For
the Council
The
President
