EC on the mutual recognition of decisions on the expulsion of third country nationals - Main contents

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dossier	COM(2003)49 - Criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of ...
source	COM(2003)49
date	03-02-2003

1. INTRODUCTION

The Council Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third-country nationals was adopted on 28 May 2001 i to make possible the recognition of an expulsion decision issued by a competent authority of another Member State. It stressed the need to ensure greater effectiveness in enforcing expulsion decisions and better co-operation between Member States, including the mutual recognition of expulsion decisions.

The application of Council Directive 2001/40/EC may result in financial imbalances where expulsion decisions cannot be effected at the expense of the third country national concerned. Member States shall, therefore, compensate each other for any financial imbalances, which may result from such mutual recognition.

To that end Article 7 of the Directive requests the Council to adopt appropriate criteria and practical arrangements. This Council Decision will introduce the required mechanism for the bilateral compensation of financial imbalances due to the application of Council Directive 2001/40/EC.

In addition, Article 7 of the Directive requests that these criteria and practical arrangements shall also apply to the implementation of Article 24 of the Schengen Convention. Due to the fact, that this complex issue could significantly delay the full application of Council Directive 2001/40/EC to which Member States have to comply with on 2 December 2002 at the latest, this Council Decision will not introduce a multilateral burden sharing mechanism as requested in Article 24 of the Schengen Convention on the financial imbalances which may result from the obligation as set down in Article 23 of the Convention. Nevertheless, the criteria and practical arrangements on the calculation of the individual costs of a removal operation per returnee as defined in this Decision should be the basis for the similar calculation of the enforcing State in the framework of a future instrument for Article 24 of the Convention.

2. OBJECTIVE

The purpose of this Decision is to introduce appropriate criteria and practical arrangements for the compensation of any financial imbalances which may result from the application of Council Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third-country nationals of 28 May 2001.

The core principle of this Decision is that the issuing Member State should reimburse the enforcing Member State on the basis of the actual costs. Preliminary discussions in the Council highlighted the need for a set of guiding principles both in relation to expenditure during the enforcement as well as in relation to the actual procedure of reimbursement.

Reimbursements would be necessary in relation to three types of costs incurred: transport costs, administrative costs and accommodation costs. It also became clear that a ceiling would need to be established for each category to ensure that any costs are at all times kept reasonable, comparable and balanced.

3. SUBSIDIARITY

In accordance with the principle of subsidiarity, the objective of the proposed action, namely financial burden-sharing for co-operation between Member States on the 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 Decision does not go beyond what is necessary to achieve that objective.

4. COMMENTARY ON ARTICLES

Article 1

This article defines the purpose of this decision.

Article 2

This article requires the issuing Member State to compensate the enforcing Member State for any financial imbalances which may result from the application of Directive 2001/40/EC and defines the concept of recoverable actual costs.

Recoverable actual costs under this Decision will include transport costs for the returnee and up to two escorts, administrative costs such as fees for issuing visas and return travel documents, detention costs for up to three months and accommodation costs during the enforcement either in a transit area of a third country or in the country of origin. In principle, these elements represent an exhaustive list of recoverable costs in order to define a clear ceiling for reimbursement in order to keep costs reasonable, comparable and balanced.

However, paragraph 4 allows that Member States agree on a bilateral basis to reimburse costs exceeding the minimum costs or to reimburse other additional costs. This clause permits that e.g. charter flights, which exceed the defined ceiling, can be subject for reimbursement, when the Member States concerned agree.

Article 3

This article describes the procedure that must be followed by Member States when submitting and processing claims for reimbursement. It establishes a transparent procedure for legal certainty and clarity.

It limits reimbursement to enforcement measures carried out within three years of an expulsion decision being issued in order to define the time of the responsibility of the issuing Member State. To ensure that any reimbursement requests are made promptly, this Decision allows for the rejection of any reimbursement requests submitted more than one year after the enforcement.

The requests are channelled through national contact points in order to identify the competent authority or responsible body for payment. The national contact points ensure the orderly delivery of the request and inform the enforcing authority about the responsible body for payment.

Notifications of payment and motivations for refusals shall also be forwarded to the national contact points in order to enable national contact points to comply with the reporting obligations as set out in Article 4.

Article 4

This article obliges the national contact points of Member States to register and report annually to the Commission the total number of forced returns, the number of enforcement measures made under the articles of Directive 2001/40/EC and the number of expulsion decisions which could be recognised and enforced by other Member States.

Article 5

This article limits the reimbursement to expulsion decisions, which have been issued after the entry into force of this Decision. Moreover, it describes how and when this Decision will enter into force.

Article 6

This article defines who is addressed by this decision.