Explanatory Memorandum to COM(2007)425-1 - Signing of the Agreement with Bosnia and Herzegovina on readmission - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2007)425-1 - Signing of the Agreement with Bosnia and Herzegovina on readmission. |
|---|---|
| source | COM(2007)425  |
| date | 27-07-2007 |
The importance for Bosnia and Herzegovina as well as for all the other Western Balkan countries of coping with illegal migration issues was reaffirmed in the conclusions of the EU-Western Balkans Summit held in Thessaloniki on 21 June 2003, which also confirmed the European perspective of the countries of the Western Balkans. According to the same conclusions, the dialogue on visa issues will be dependent on combating, inter alia, illegal immigration. As regards readmission, the “Thessaloniki agenda” announced the commitment of the EU to conduct and conclude readmission agreements with all the countries in the region. It further invited Bosnia and Herzegovina and the other Western Balkan countries to take all the necessary measures to facilitate the conclusion, and ensure the implementation, of such agreements.
On 13 November 2006 the General Affairs and External Relations Council formally authorised the Commission to negotiate a readmission agreement with Bosnia and Herzegovina. Negotiating directives for readmission agreements with the other Western Balkan countries were adopted by the Council on the same day. In November 2006 the Commission transmitted a draft agreement between the European Community and Bosnia and Herzegovina to the Bosnian authorities. The negotiations were launched on 30 November 2006 and the first formal round took place in Brussels on 20 December 2006. Two further rounds were held in Brussels in parallel ("back-to-back") with the negotiations on an EC-Bosnia and Herzegovina visa facilitation agreement. The last formal round of negotiations took place on 10 April 2007 during which all outstanding issues were agreed including the readmission of the former nationals of the Socialist Federal Republic of Yugoslavia who have acquired no other nationality. The final text of the agreement was initialled by chief negotiators of the two sides on the same day.
Member States have been regularly informed and consulted at all (informal and formal) stages of the readmission negotiations.
On the part of the Community, the legal basis for the Agreement is Article 63(3)(b), in conjunction with Article 300 TEC.
The attached proposals constitute the legal instrument for the signature and conclusion of the readmission agreement. The Council will decide by qualified majority. The European Parliament will have to be formally consulted on the conclusion of the Agreement, in accordance with Art. 300(3) EC Treaty.
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 represents the Community within the Joint Readmission Committee set up by Article 18 of the Agreement. Under Article 18 i, the readmission committee shall adopt its own rules of procedure. As in the case for the other readmission agreements so far concluded by the Community, the Community position in this regard shall be established by the Commission in consultation with a special committee designated by the Council. As regards other decisions to be taken by the Joint Committee, the Community position shall be established in accordance with the applicable provisions of the Treaty.
Contents
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 Community.
The draft Readmission Agreement with Bosnia and Herzegovina has been to the extent possible harmonised with the draft Readmission Agreements with the other Western Balkan countries.
The final content of it can be summarised as follows:
- The Agreement is divided into 8 sections with 23 Articles altogether. It also contains 7 Annexes, which form an integral part of it and 4 joint declarations.
- The readmission obligations set out in the Agreement (Articles 2 to 5) are drawn up in a fully reciprocal way, comprising own nationals (Articles 2 and 4) as well as third country nationals and stateless persons including for Bosnia and Herzegovina former nationals of the Socialist Federal Republic of Yugoslavia who have acquired no other nationality (Articles 3 and 5).
- The obligation to readmit own nationals includes also former own nationals who have renounced, or who have been deprived of, 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) who hold another nationality than the person to be readmitted and who do not have an independent right of residence in the Requesting State.
- The obligation to readmit third country nationals and stateless persons (Article 3) is linked to the following prerequisites: (a) the person concerned holds or at the time of entry held, a valid visa or residence permit issued by 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. Exempted from these obligations are persons in airside transit and all persons to whom the Requesting State has issued a visa or residence authorisation before or after entry to its territory.
- The former nationals of the Socialist Federal Republic of Yugoslavia who have acquired no other nationality were treated as a separate category (Article 3(3)). Their readmission shall be accepted by Bosnia and Herzegovina provided two conditions are met: their place of birth was on Bosnia and Herzegovina's territory and their place of permanent residence on the date of independence of Bosnia and Herzegovina (i.e. 6 April 1992) was on the territory of that State. The specific conditions for the readmission of this category of persons were applied horizontally in all the readmission agreements with the Western Balkans countries.
- Both for own nationals, in case of expiry of specified delay, as well as for third country nationals or stateless persons, in all cases, Bosnia and Herzegovina accepts the use of the EU's standard travel document for expulsion purposes (Articles 2 i and 3(4)).
- Section III of the Agreement (Articles 6 to 12 in conjunction with Annexes 1 to 6) contains the necessary technical provisions regarding the readmission procedure (the form and content of the readmission application, means of evidence, time limits, transfer modalities and modes of transportation). Some procedural flexibility is provided by the fact that no readmission will be needed in cases where the person to be readmitted is in possession of a valid national passport and, if he or she is a third-country national, also holds a valid visa or residence authorisation of the State which has to readmit him or her (Article 6(2)). The time limit for replies for all readmission applications is 10 calendar days with the right to an extension with up to 6 calendar days upon request and in duly motivated cases.
- The agreement contains also a section on transit operations (Articles 13 and 14 in conjunction with Annex 7).
- Articles 15 to 17 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 18.
- In order to execute this Agreement in practice, Article 19 creates the possibility for Bosnia and Herzegovina and individual Member States to conclude bilateral implementing Protocols. The relation between the bilateral implementing Protocols as well as other existing bilateral readmission agreements between Bosnia and Herzegovina and individual Member States with this Agreement is clarified by Article 20.
- The final provisions (Art. 21 to 23) contain the necessary rules on entry into force, duration, possible amendments, suspension, termination and the legal status of the Annexes to the agreement.
- The specific situation of Denmark is reflected in the preamble, Articles 1(d), 21 i and in a joint declaration attached to the Agreement. The close association of Norway, Iceland and Switzerland to the implementation, application and development of the Schengen Acquis is likewise reflected in joint declarations to the Agreement.
In the light of the above-mentioned results, the Commission proposes that the Council
- decide that the Agreement be signed on behalf of the Community and authorise the President of the Council to appoint the person(s) duly empowered to sign on behalf of the Community;
- approve, after consultation of the European Parliament, the attached Agreement between the European Community and Bosnia and Herzegovina on readmission.
COUNCIL DECISION
concerning the signing of the Agreement between the European Community and Bosnia and Herzegovina on readmission
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 63, paragraph 3 lit. b), in conjunction with the first sentence of the first subparagraph of Article 300 i thereof,
Having regard to the proposal from the Commission i,
WHEREAS:
By its decision of 13 November 2006, the Council authorised the Commission to negotiate an agreement between the European Community and Bosnia and Herzegovina on readmission.
Negotiations for the Agreement took place between 30 November 2006 and 10 April 2007.
Subject to its possible conclusion at a later date, the Agreement initialled in Brussels on 10 April 2007 should be signed.
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 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.
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 to the Treaty establishing the European Community, Ireland has notified its wish to take part in the adoption and application of this Decision.
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Decision and is not bound by it or subject to its application,
HAS DECIDED AS FOLLOWS:
Subject to a possible conclusion at a later date, the President of the Council is hereby authorised to designate the person(s) empowered to sign, on behalf of the European Community, the Agreement between the European Community and Bosnia and Herzegovina on readmission.
Done in Brussels, the………..of…………2007.
The President